c. 1996 Religion News Service

SAN FRANCISCO (RNS)-An unusual federal appeals court ruling in a drug smuggling case allows Rastafarians to argue that they should legally be able to use marijuana for religious reasons.

The ruling from the 9th Circuit U.S. Court of Appeals in San Francisco orders a Montana federal judge to retry drug possession charges brought against three alleged marijuana smugglers.

The smugglers-tried after a federal investigation dubbed”Operation Reggae North”-claimed they were Rastafarians and that their use of pot was a constitutionally protected religious practice under the Religious Freedom Restoration Act (RFRA).

In separate rulings both before and after RFRA was enacted in November 1993, Judge Jack D. Shanstrom of Billings dismissed the religious-use defense. A jury later convicted the defendants-Lexi Michelle Bauer, Calvin John Treiber and Dawn Meeks-of drug trafficking, money laundering and possession charges.

In a decision finalized May 20, the 9th Circuit upheld the drug-trafficking and money laundering convictions. However, the appeals court ordered a new trial on the marijuana possession counts to allow the defendants to present a religious-use defense.

RFRA requires the government to show it has a”compelling governmental interest”in enforcing laws that infringe on religious practices and that its enforcement activities are the”least restrictive means”of furthering that interest.

The appeals court held that the lower court did not consider either aspect of the RFRA test, but dismissed the defendants’ religious-use claims out of hand.”We do not exclude the possibility that the government may show that the least restrictive means of preventing the sale and distribution of marijuana is the universal enforcement of the marijuana laws,”Circuit Judge John T. Noonan wrote.”Under RFRA, however, the government had the obligation, first, to show that the application of the marijuana laws to the defendants was in furtherance of a compelling governmental interest,”wrote Noonan,”and, second, to show that the application of these laws to these defendants was the least restrictive means of furthering that compelling governmental interest.” Civil rights attorneys say the ruling is likely to open the door to more court cases in which defendants argue that marijuana should be legal when it is used in religious rituals.”What this case says is that it’s not self-evident that only a total ban on drug use satisfies the government’s interest (in its drug laws),”said Marc Stern, an attorney with the American Jewish Congress in New York.”So it gets you into court. Whether Rastafarians will ever succeed in getting religious exemption is a wholly different question.” Rastafarianism took root in Jamaica in the 19th century and subsequently spread to the United States and other countries among exiled Jamaicans. It numbers from 10,000 to 70,000 adherents, who consider the late Emporer Haile Selassie of Ethiopia as God. Rastafarianism is recognized among experts as an established religion and uses marijuana-called ganja-as a sacrament.

Stern says American Indians won their right to use peyote after a concerted campaign to change federal law. Other factors may make peyote use more amenable to legal toleration than marijuana use. Not only is the use of peyote less addictive, says Stern, but according to Native American religion, it is a sacrilege to take peyote outside the context of a religious ceremony. It is not clear that Rastafarians are so exacting in their ritual use of marijuana.”(The government) could argue that there are so many people who want to smoke marijuana-and it would be so easy to feign a religious belief-that (federal officials) couldn’t possibly police the ban on marijuana generally if we didn’t have a total ban,”Stern says.

But Margaret Crosby, a staff attorney with the American Civil Liberties Union in San Francisco, dismisses the claim that sacramental use of controlled substances should not be tolerated because it could open the door to their abuse.

She said attorneys for a Sacramento school district made a similar argument in a case brought by a Sikh family. In that case, the Livingston Union School District refused to let Sikh children wear a”kirpan”-a ceremonial knife-on school grounds for safety reasons.”If you let these Sikhs come in with these knives, you’re going to have the church of the Uzi right behind them,”the district’s attorneys argued, according to Crosby.

The 9th Circuit court rejected that argument, largely because the school didn’t present evidence of potential security problems to support its insistence on a total ban on kirpans. Meanwhile, the court found that the Sikh family”unquestionably carried their burden”of showing that the kirpans were an integral part of their religion,

As in the Sikh case, the Rastafarians in the marijuana case”will have to bring in a theologian and people with some real expertise in the history of that religion”to carry their burdens of proof under RFRA, Crosby says.

Despite its ruling on the religious-use aspect of the case, the appeals court ruled that drug trafficking and money laundering are another matter.”Nothing before us suggests that Rastafarianism would require this conduct.” The appellate court also warned that the religious-use claim by itself will not get the defendants off the hook.”It is not enough in order to enjoy the protections of the Religious Freedom Restoration Act to claim the name of a religion as a protective cloak,”Noonan cautioned.”Neither the government nor the court has to accept the defendants’ mere say-so.”

MJP END AQUINO