Marijuana: Arizona Supreme Court to Hear Case Asserting Religious Right to Use, Possess

The Arizona Supreme Court agreed Tuesday to decide whether there is a religious right to possess marijuana. The issue is being raised in Arizona v. Hardesty, in which Daniel Hardesty, a member of the Church of Cognizance, an Arizona-based church that practices neo-Zoroastrian tenets and believes marijuana provides spiritual enlightenment and a connection to the divine mind.

Hardesty was arrested for marijuana possession after being stopped for a burned out headlight in 2005 and convicted of marijuana and paraphernalia possession in district court despite arguing that First Amendment protections of the free exercise of religion entitled him to use and possess marijuana as a sacrament in his church. Hardesty appealed, but lost in the appeals court as well.

In rejecting Hardesty's appeal, the appeals court held that while he has the right to believe what he wants, the First Amendment protections do not give him the right to commit criminal offenses for religious reasons. The appeals court also said the legislature has a legitimate interest in banning marijuana and the courts should not second-guess the legislature.

If the state Supreme Court overturns the lower court decisions, it will be the first time an Arizona court has allowed for the religious use of marijuana -- but not the first time an Arizona court has allowed for the religious use of a controlled substance. Arizona courts have ruled repeatedly that the possession of peyote for religious purposes by the Native American Church is allowable.

The appeals court argued that was different. With peyote, there was never any finding that the cactus was addictive or being used in quantities harmful to the health of participants. Also, peyote was used by a "discrete and well-defined group," the court held. Now, one of these months, we'll see if the state Supreme Court agrees.