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Marijuana: Hawaii Supreme Court Rejects Religious Use Defense

Submitted by Phillip Smith on (Issue #504)
Politics & Advocacy

In a split decision, the Hawaii Supreme Court has ruled against a Big Island man who claimed he smoked marijuana as part of his religion and thus should not be prosecuted. In its September 21 decision in State v. Sunderland, the Court rejected Joseph Sunderland's argument that the Religious Freedom Restoration Act protected him from prosecution, but failed to address his contention that privacy provisions of the Hawaii state constitution also protected him from arrest for using marijuana in his home.

Volcano National Park, Hawaii Island
The case started in 2003, when a Big Island police officer searching for a missing child spotted a marijuana pipe on Sunderland's kitchen table. Sunderland admitted the pipe was his, said he had used it to smoke marijuana that morning, and told the officer he had a right to use it for religious purposes. Sunderland presented a membership card in The Cannabis Ministry, a religious organization headed by Roger Christie that uses marijuana as a sacrament.

Sunderland was subsequently charged with promoting a detrimental drug in the third degree, the Hawaiian version of a paraphernalia law violation. Before trial, Sunderland filed a motion to dismiss, arguing that his constitutional right to the free exercise of religion precluded his prosecution for using marijuana.

"I believe that God put the holy herb onto this earth to help mankind to better understand Him," Sunderland told the trial court.

The trial court disagreed with Sunderland's legal argument, and Sunderland was found guilty and fined $175. He appealed, and now the state Supreme Court has shot him down.

Citing precedent to reject the applicability of the Religious Freedom Restoration Act to the states, the court held that under controlling law, the state has a legitimate "compelling interest" in regulating marijuana use, and thus, "the free exercise clause of the First Amendment is not a viable defense."

But there may still be a glimmer of hope for both Sunderland and the rest of Hawaii's pot smokers. The Supreme Court did not address Sunderland's contention that Hawaii privacy protections should immunize his in-house marijuana use, arguing that he had failed to present it in a timely fashion. But in his dissenting opinion Justice Levinson suggested that such a right indeed exists.

The framers of Hawaii's constitution meant to limit criminal sanctions to cases where people are harmed, Levinson argued. "The issue is whether... a fundamental right to privacy... constrains the state from criminalizing mere possession of marijuana for personal use. My thesis is that it does," Levinson wrote.

Sunderland's attorney, public defender Deborah Kim, said she planned to ask the high court to address the privacy issue. "The court has ducked the question of whether the right to privacy prevents the police from enforcing marijuana laws when someone is using marijuana in their home for religious purposes," Kim said. "The question is still very much open."

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


Anonymous (not verified)

The people who prosecute cannabis use by responsible adults are the ones who should be prosecuted. And thoughs who practice religious discrimination will be dealt with by the Creator in this life time or the next. The system can not admitt to being wrong, because it would have to give reperations to all who have been harmed do to their unGodly law.

Ras Kwame

Fri, 10/05/2007 - 2:31pm Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)

what the court found offensive was that he had 16 year old girls around his pipe. they only gave him a 175 dollar fine and they said it was because they felt his religious use was sincere and they respected that but that he was being irresponsible by promoting it to kids, which is a discussion that society needs to have but until I personally view this as a good ruling because they show respect for responsible religious use

Tue, 10/23/2007 - 3:04am Permalink
Anonymous (not verified)

Hawaii exempts the use of peyote for religious purposes. Hawaii exempts the use of marijuana for medical purposes. Hawaii exempts the use of tobacco and alcohol for recreational purposes. How in the name of God's creation did they determine a person has no right to use marijuana in the privacy of their own home for religious purposes? One judge held that the right to privacy (which is explicitly guaranteed by an amendment to the Hawaii Constitution) in conjunction with the right to free exercise of religion triggers constitutional protection. How can courts find a right to have an abortion but fail to protect religious freedom? This is beyond belief.

Rev. Carl E. Olsen
Ethiopian Zion Coptic Church
Cannabis Churches

Fri, 10/05/2007 - 2:48pm Permalink
Rural WA (not verified)

In reply to by Anonymous (not verified)

The DEA issued an NPRM to place 5-MeO-DMT in Schedule I and has reopened the period for public comment because the first notice was defective.

So far one substantial objection has been posted which objects primarily on grounds the Controlled Substances Act is unconstitutional rather than the sham findings for placement in Schedule I. I'll copy some of that argument below from PUBLIC SUBMISSION DEA-2009-0008-0007.1.

Docket No. DEA-331 has gotten confusing because its documents are split between two folders but comments can be submitted to the newer folder. Why not mosey over to, do a search for "dea-331", read what's been posted and add your two cents worth.

If we want to end the drug war we should be objecting to scheduling decisions and challenging the Constitutionality of the CSA at every opportunity. NPRMs give a chance to speak publicly without having to be on trial or able to hire lawyers. Sometimes comments do change a proposed rule and maybe a good enough argument will give a person a shot at pro bono representation. For the latter you'd normally want to identify why you're in a class that can demand a hearing and make that demand during the comment period.

Be sure to read the technical stuff about what formats DEA will accept, how the comment has to identify the Docket No. it applies to and what has to be done to prevent personal identifying information from being posted. Comments can also be emailed as attachments to [email protected] or sent to the snail mail address in the notices.

This is from the already posted comment I mentioned:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." -- First Amendment to the United States Constitution

My first objection to the proposed rule is that the DEA is acting through delegation of a power that is Constitutionally invalid. The scheduling system of the Controlled Substances Act has been fatally flawed from its inception by its violation of the First Amendment. The Comprehensive Drug Abuse Prevention And Control Act of 1970 is deliberately not religiously neutral and one of the functions of the Controlled Substances Act is to act as a means of enforcing a primitive, muddled political-religious orthodoxy which has evolved into a primitive, muddled state religion. The CSA was intended to prefer some religious beliefs and organizations. The CSA was intended to discriminatorily and prejudicially suppress disfavored free exercise of religion that could not be extinguished.

"The term 'controlled substance' means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter. The term does not include distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986." -- 21 U.S.C. 802(6)

21 U.S.C. 802(6) violates the Establishment Clause by giving preference to some religions. The exclusion of alcohol from possible scheduling as a controlled substance includes wine which is used sacramentally, ritually or both by many major religious denominations in the United States. This preferment is clearly no accident though it is unspoken. The Comprehensive Drug Abuse Prevention And Control Act of 1970 could not conceivably have passed if it had not given this special protection to religions which so many members of Congress (and the voters they depended on to remain members of Congress) belonged to.


The CSA was passed at a time when many people, including politicians, openly expressed fear that use of certain drugs was leading to "new" and unorthodox religious beliefs within the general population, deluded mysticism, increasing numbers of people with faith who did not belong to organized religious institutions, increasing popularity of "foreign" religions and was a threat to well established religious denominations by fostering defection, heresy or schism. Extravagent claims and beliefs about religious use of psychedelic drugs from proponents and oponents were near their peak in 1970 with the news media giving the most attention to the most sensational claims. Attempts to found "psychedelic churches" or have drug laws overturned on First Amendment grounds were very troublesome to many members of Congress. Political opposition to these religious "threats" was openly advocated at that time. There was and is a remarkably anamistic view of "drugs" by opponents of their use or "abuse" and an overlapping sense of them as tools of the Devil. Religious repression has always been more than an "incidental" effect of the CSA.

"The term 'controlled substance' means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter. The term does not include distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986." -- 21 U.S.C. 802(6)

Placing a substance in a certain Schedule or removing it from a certain Schedule is primarily based on 21 U.S.C. 801, 21 U.S.C. 801a, 21 U.S.C. 802, 21 U.S.C. 811, 21 U.S.C. 812, 21 U.S.C. 813, 21 U.S.C. 814 and arbitrary decisions. The restrictive medical use provisions of all schedules prohibit religious use except when the religious use is identical to medical use as the government defines it. Even in these instances the ability to exercise religious/medical use of controlled substances is dependent on assent from government authorized people and institutions. The churchly dispensers or withholders of "gifts of grace" and healing who often abrogate choice of medicines for reasons that have little or nothing to do with medical expertise. This highlights the degree to which the Free Exercise and Establishment Clauses address intertwined matters and the degree to which the federal government directly regulates the practice of medicine and the practice of pharmacy within the States (which is more of a Tenth Amendment issue).

Code Of Federal Regulations SPECIAL EXEMPT PERSONS
Section 1307.31 Native American Church. The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration. Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law.

This exemption applies to ingestion of peyote; "nondrug use" is clearly a theological decision not a scientific one.

There are indisputabley grave questions about the religious neutrality of the Controlled Substances Act since controlled substances are restricted from nonmedical use, wine is one of only four substances excluded from definition as a controlled substance and religious use is nonmedical use. These Constitutional issues have not been acknowledged by the Supreme Court when stating the Controlled Substances Act is a "neutral law of general applicability" and determing the proper standard of scrutiny for conflict with the First Amendment.

[end quote]

The DEA is tentatively planning to issue an NPRM in December to end the "peyote exemption" for the Native American Church. If it does issue that NPRM there will be plenty of lawyers rushing to defend the NAC and maybe some can be snagged for a direct challenge of the Controlled Substances Act. Especially likely if any NAC people decide it's better for them to challenge the CSA's Constitutionality than just seek continued special exemption from a law that oppresses everyone.

Sun, 11/08/2009 - 6:57am Permalink
Anonymous (not verified)

It's time for our Governments to listen to the voice of the people and stop telling lies about cannabis. People know that cannabis is a natural herb that has many benefits for medicinal uses as well as the cousin, HEMP, that is available for food, fiber, fuel, and many more uses. If you are reading this and disagree with the benefits of this plant then you are simply uneducated. Maybe you are being brainwashed and receiving a check to keep the establishment in force to continue this propaganda campaign against this beneficial plant. 1...2...3...WAKEUP!

Sat, 10/06/2007 - 2:52am Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)

Cannabis is a gift to humankind. The government knows that its uses are numerous and very positive and predictable. However, they will continue to let the greedy pharmaceutical companies poison adults and children alike with the dangerous chemicals doctors give out each and every day all of the country. The hipocracy is deafening!!!

Wed, 08/27/2008 - 3:46am Permalink
Anonymous (not verified)

How can there be any "compelling interest" that nullifies a amendment to the constitution of the USA? I would like to know what "compulsion" overides a constitutional amendment.By "compelling" ,do they mean an irresistable impulse? What obligation compells the court? Is it an obligation to society? Or could it be...duty to the system that appointed them. Got drugwar? war crimes/criminals...

Sat, 10/06/2007 - 10:52am Permalink
Anonymous (not verified)

I dont understand? smoking a joint is actual medicine for some and for others it might be a religion thing but who cares?????????. i just smoked a joint and am planning to vacation in hawaii for a week in may.So i came across this article and i think the man was doing nothing wrong he was in the privacy of his own home. Smoke on!!! ;).

Sat, 03/01/2008 - 1:36am Permalink
Anonymous (not verified)

On the third day God said, "Let the earth bring forth grass, the herb that yields seed, and the fruit tree that yields fruit according to its kind, whose seed is in itself, on the earth"; and it IS SO! Man in his stubborness, continues to think Moses and The Law can carry them across the river Jordan to the promised land, but God has anointed Yeshua as the way through these waters. The deeper truth of the myth, revealed only to the most high, is the root of the crusade to crucify those for whom this grass, this herb, this tree of life is but food for the spirit, that it may be holy as God is Holy. In this true communion with God, the world passes away, and the lust of it, while the anti-christs abound, at every chance to beat us down, yet by this we know that it is the last hour. Remember children, he who does the will of God abides forever.

Wed, 04/02/2008 - 11:14pm Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)

I am being beaten upon in my head by the abuse of those who cast out what God has called holy! Men and women who have turned their back on what they began to fear would suck the life out of them! They turn and run in fear of coming to the light of God by simply consecrating themselves to the Lord our God thru the Entheogenic Use of Kaneh Bosm.

I don't know why people hate who Christ is inside, always seeking to be one with God of course He will be about His anointing sharing the sacrament with everyone he's drawn to.

Why I have to be so beaten upon for knowing that Kaneh Bosm is the Love I have from God, I pray God your wrath will find out why! For here I sit under dictate of the government, who has purposefully chosen to deny my Religious life, by first denying me my religious rights. See, as long as your religion isn't allowed to exist, then you aren't allowed to have rights!

And since the zelous secularism of the law has declared, "God's sacrament is Illegal!"; since it's not allowed to recognize God, it can't ever say that you should be allowed to have what the law has declined; God!

I am looking at 5 years for doing what my God said. But since my government has denied my love as Gods, I'm a liar seeking only to be drug addict!

Please God! How long before the weakness of my flesh begins killing the flesh of those who won't allow God in, by simply accepting my sincere religious beliefs and allowing me to partake with you in the entheogenic sacrament; Kaneh Bosm.
(Exodus 30)

Hey.. if you have any other words you wish to share about Marijuana and the religious use of it please contact me.
[email protected]

I run and need help from kind hearted believers like yourself! Shalom Keshet

Fri, 06/06/2008 - 3:42pm Permalink
Anonymous (not verified)

Mauiwowee is a dangerous drug, that is addictive to youngs kid from 12-17 years old. It carries no value or medical value that cant be met more effectively by legal drugs. young teens that uses marijuana are more likely to use other drugs like ice, cocaine, and herion. So far most of my friends ended up mixing ice and marijuana. Having too much THC in your body weakens the immune system and lead to high risks of lung infections.

Thu, 04/03/2008 - 9:17pm Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)

by i mean your friends are idiots, just like you. where did you get your MD or do even know what that means??lol I didnt see any references to back your non-factual idiotic statements of any kind. I hate to tell you this, but its been written and proven since around the early 20th ( just for you, the 1900's) and i think the title was "Narcomania", that cannabis helps you to get of other drugs and that the only time cannabis was mentioned in a drug book was to state that its helped to stop drug addictions. Not sure about your last statement so unlike you ill wait till im better informed so i wont help spread seeds of ignorance. do more, learn more, then talk more about something you will know more about. I smoke cannabis and am 28, and have smoked from my early days till now with breaks now and then (military time no puffing) and now that im out im smoking again, the point is... guess what... i never have or will try anything else. Try real friends like that.... ( that can show restraint and productivity in society ) then maybe you'll get your head out the ground and spread your wings and really soar.
Popeye the sailor

ps the rest of the world cant be wrong. have you even left your suburban neighborhood??

Tue, 04/22/2008 - 4:17pm Permalink
nosailnomore (not verified)

In reply to by Anonymous (not verified)

I have RA (rheumatoid arthritis) and autoimmune disease. MJ has been clinically proven to reduce pain, reduce inflammation, reduce involuntary weight loss, improve disease associated depression. Pharmaceuticals to reduce pain and depression adversely effected my liver functions and worsened my depression (and made me mean). MJ makes me happy and helps me to tolerate a life that is suckin' pretty bad. Not to mention MJ saved my marriage.
Christians are the most vocal against Medical MJ, I thought they were supposed to be compassionate?

Fri, 09/11/2009 - 4:57pm Permalink
BigHawaii (not verified)

Getting tired of people saying mary jane is a gateway drug...I tried marijuana as a young child, and been smokin it for damn near 15 years straight. I come from a neighborhood of drug dealers and drug users (H.B,puna) and chronics like crazy...lots of my friends smoke ice and snort coke...Im one of the ones smoking up all the weed while they do that dumb stuff..its a gateway drug if your weak minded, trying to be cool like the rest of the crew, or just followin footsteps of your chronic parents..

Fri, 12/11/2009 - 11:51am Permalink
Hlessi Avedon (not verified)

I am a wiccan, the practicianers of my religion have been using weed, shrooms, and payote for religious reasons for over 6,000 years. We use weed as a meditational aid, it clears the head, calms the mind, and opens the subconcience mind. Shrooms and payote have been used as a divination tool because of the visions they enduce. All things on this earth are gifts from the goddess and god and we are ment to use them all the the fullest.

Fri, 02/26/2010 - 1:03am Permalink
Claudius Groenewald (not verified)

God put drugs on this planet for me and you to use

they r here to prepare us for the future of the new age

to help our body's connect with our souls and the great above

and to help speed up the process of evolution

so use your drugs, expand your mind and consciousness, evolve your brain

lose control, have a ball and calibrate this wonderful creation in the name

of Jesus Christ your saviour  

Mon, 09/06/2010 - 7:01am Permalink
Erik (not verified)

  • There are many reasons why cannabis should be legal, however many of the reasons will not sway the opinion of the people on the religious right. These are people who vote as well and need to know the truth just like any one else. Whether a man of science or a man of faith, most people probably agree that God created marijuana. The very first chapter of the Bible explains the variety of God's creations that were made for man. The argument to legalize marijuana in the U. S. should be based on the fact that it was a creation of God, because our country is strong for religious freedom.


  • There are hundreds of different varieties of hemp which provide endless possibilities for the industrial sector of the United States. Is it a national priority to create jobs? Marijuana is America's number one cash crop, creating more revenue than wheat and corn combined. Is it a national priority to reduce debt? Obviously the reasons just go on and on. Remember that our country can easily create laws to control smoking of the substance such as 18+ can only smoke, but please do not confuse the smoking aspect with the importance of hemp in the industry. Thank you.

Re-post if you like :)

Wed, 11/17/2010 - 6:02pm Permalink

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