Marijuana: Arizona Court of Appeals Rejects Religious Defense

In a July 31 decision, the Arizona Court of Appeals has held that there is no religious right to possess marijuana. In so doing, the court rejected the appellant's argument that his right to possess marijuana for religious reasons was protected by both the Arizona and the US Constitution.

The ruling came in Arizona v. Hardesty, a case that began when Daniel Hardesty was pulled over by a police officer in 2005 and subsequently charged with possession of marijuana and drug paraphernalia after the officer first smelled smoked marijuana in the vehicle, then found a joint Hardesty admitted tossing from his window. Hardesty, a member of the Church of Cognizance, argued at trial that he used marijuana for religious purposes and should be exempt from prosecution under both Arizona and federal law. The trial court disagreed.

Now, so has the appeals court. While the court accepted that Hardesty's religious beliefs were sincere, it rejected his arguments that under the free exercise of religion, he had the right to use marijuana as a sacrament. Hardesty had conceded that marijuana is a drug that could have harmful effects and that the state had a "compelling interest" in regulating it, but argued that it had not been regulated in a manner that was "least restrictive" when applied to religion.

In his opinion, Appellate Judge Sheldon Weisberg wrote that while the First Amendment guarantees an absolute right to hold a religious belief, it does not guarantee the same absolute right to put that belief into practice. Similarly, Weisberg held that provisions of Arizona law designed to protect religious freedom did not encompass the religious use of marijuana, citing the state legislature's outright ban on the use and possession of marijuana.

"This statute does not provide any religious exemptions nor does it contemplate an exemption for the use of marijuana that would be consistent with public health and safety," the judge wrote for the unanimous court. "By imposing a total ban, the legislature has deemed that the use and possession of marijuana always pose a risk to public health and welfare."

But the appeals court did leave open the possibility that it could decide differently if someone came before it persuasively arguing that marijuana is not as dangerous as the government suggests. In that case, the "compelling interest" of the state in maintaining a complete prohibition on marijuana would presumably be weakened.

Attorney Daniel DeRiezo, who represents Hardesty, told the Arizona Star after the decision that prosecutors had engaged in "Reefer Madness arguments" in alleging that marijuana use could result in serious harm. An appeal to the state Supreme Court is likely, he said.

Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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WTF

He what?

Hardesty had conceded that marijuana is a drug that could have harmful effects and that the state had a "compelling interest" in regulating it, but argued that it had not been regulated it in a manner that was "least restrictive" when applied to religion.

Is this guy smoking crack and just thinks it is marijuana?

The rest of the Story

Dont believe everything as it's reported. During the evidentiary hearing Mr. Hardestys attorney conceded that the state may have compelling interest in reglating commercial transportation, distribution and sales of marijuana. That did not mean he conceded the state has compelling interest in non-commercial cultivation and use for religious purposes.

Additionaly, I think it was unfair of the court not to mention that Mr. Hardesty AND HIS 2 PASSENGERS, were OFF ROAD in a very remote area of the Coconino National Forest on a primitive dirt road.

By not mentioning this fact, it biases the reader to think Mr. Hardesty was tooling down 1-10 at 75 mph. We do not practice our religion while driving!

But on a primitive dirt road, in an isolated area, in a RV with other passengers, when the campsite is just a few hundred yards away, it would not be prohibited by church tenets.

This case will soon be on the way to the Arizona Supreme Court.

Marijuana vs Alcohol

What is the difference between marijuana and alcohol? Church's that drink wine during prohibition. Did anyone get prosecuted for that. You can't drink and drive but you can get drunk to the point to where you pass out. I never new anyone passing out from marijuana.
I am a disabled gulf war veteran that if they passed medical marijuana laws in alabama would use. But until they do:::::::::::::::???????????????????

Marijuana as a Sacrament

The Ethiopian Zion Coptic Church has used Cannabis as a religious sacrament for centuries. They are also involved in legalizing marijuana. Which could happen soon on other grounds. The DEA is under fire for not re-scheduling Cannabis out of schedule I, where it has been illegally kept, ever since 1996 when the state of California accepted cannabis as a legitimate medicine with "accepted medical use in the U.S." The law does not require all states to find "Accepted Medical Use" only one, however 12 other states have agreed with California that Marijuana has "Accepted Medical Use." All these states allow marijuana use, possession and cultivation at home. Because Marijuana has "Accepted Medical use in the U.S," according to the express terms of PP (8)(b)(1)(A)-(C), marijuana can not legally be listed in schedule I. 21 CFR P. 1308.11 i.e. Schedule I. My guess is marijuana will be removed from any scheduling resulting in the legalization of marijuana and the collapse of the powerful marijuana black market. Thus giving control of marijuana to the government selling only to responsible adults 21 or over. Which is a good thing, right?!?!? Legalize marijuana today and dismiss all non violent marijuana related cases. Our financial troubles would be over from the savings of not enforcing anti marijuana laws to the taxes realized through the legal sale of the safe and therapeutically active substance Delta 9-THC. Google U.S. vs Quaintance for more info. peace...

Its a herb!

Not a Drug! Asprin is a drug and it kills. Cannabis is a herb and has never caused a death! Prohibition does.

Stop prohibition and stop Marijuana coming over the border

Stand up for what you beleive in. Write your congressman today. Write you State representatives. In Alabama on Wed. April 15, 2009 Medical Marijuana passes to the judiciary committee. Please email your State representatives. If you don't live in Alabama send one here any way. We need your help. The big drug company's are killing us in this state. Without insurance we don't have the money to go to the doctor must less pay for a prescription. If we could grow our own for medical purposes who needs to go to the doctor for pain. I am a gulf war veteran that could have gotten killed during the gulf war but can't smoke without being scared of being prosecuted for a non violent crime.

Stop prohibition and stop Marijuana coming over the border

Florida needs help also. Please sign there petition. They need over 600,000 names. Legalize medical marijuana for the United States.

A Natural Right

All plants,including marijuana, are the natural indigenous birth right of every person on the planet. With that great gift and inheritance comes personal responsibility. In the case of cannabis,we are dealing with a plant we have have been using for over 10,000, any law against cannabis is unnatrural and a crime against man, nature and creator.

ceanf

got to love how the state can make claims and not back them up. case in point ...

'the use and possession of marijuana always pose a risk to public health and welfare'

an individual smoking marijuana has no effect on 'public health and welfare'. it does not even begin to encroach on the two. the state of arizona has no proof or evidence to support this claim, yet it cites that claim as the reason for marijuana being illegal in court. I am sure this is not the first time it has made that claim.

Are you serious? Appellate Judge Sheldon Weisberg is an idiot.

"In his opinion, Appellate Judge Sheldon Weisberg wrote that while the First Amendment guarantees an absolute right to hold a religious belief, it does not guarantee the same absolute right to put that belief into practice."

First Amendment: 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.

In the context of the Constitution, exercise is defined as "an act of employing or putting into play".

Victory For Religious Freedom In Arizona 2009 +

Review the links below, Its a AZ case, and remember the facts. All cases are not the same, and as mentioned by the appeals court there was room for another case to create a possibility. ("But the appeals court did leave open the possibility that it could decide differently if someone came before it persuasively arguing that marijuana is not as dangerous as the government suggests. In that case, the "compelling interest" of the state in maintaining a complete prohibition on marijuana would presumably be weakened)

Defendants Motion To Dismiss
http://californiacaregiversunion.memberlodge.com/Default.aspx?pageId=207833

District Attorneys Motion Dismiss
http://californiacaregiversunion.memberlodge.com/Default.aspx?pageId=251298

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