July 31, 2008 - 11:51AM
Saying that freedom of religion is not the same as freedom of action, the
Arizona Court of Appeals on Thursday said there is no religious right in this
state to possess marijuana.
The judges rejected arguments by Daniel Hardesty that the First Amendment
protections of free exercise of religion entitle him to use marijuana as a
"sacrament" of his church. They said the known harmful nature of marijuana gives
the state to power to totally ban possession of the drug.
But the court left the door open to considering future arguments about the
religious freedom to use marijuana. The judges said, however, a defendant would
have to prove that the drug is not as dangerous as the government suggests,
something that did not occur here.
An appeal to the state Supreme Court is likely.
Hardesty was arrested in 2005 after being stopped by police while driving in
At trial, Hardesty testified that he had been a practicing member of the Church
of Cognizance since 1993. And a church official said that the religion, founded
in 1991, is based on "neo-Zoroastrian tenets" and that marijuana provides a
connection to the divine mind and spiritual enlightenment.
Prosecutors never challenged the status of the church but persuaded the judge to
exclude the religious freedom claim. Hardesty was convicted and placed on
probation for 18 months.
But Yavapai County Superior Court Judge Thomas Lindberg said that Hardesty's
claim of religious use of marijuana was not made "in bad faith" and that it was
something Hardesty was "sincerely professing at the time."
Appellate Judge Sheldon Weisberg said the First Amendment encompasses two
protections: the right to believe and the right to perform or abstain from
certain acts for religious reasons. But the judge said while the first is
absolute, the second is not.
In particular, Weisberg said, the state is free to enact certain restrictions on
conduct so long as they are "neutral laws of general applicability." And the
state's ban on marijuana, he said, fits that definition.
The appellate court also brushed aside Hardesty's claim that his actions are
separately protected by provisions in Arizona law that say government can
"substantially burden" an individual's exercise of religion only if it is both
in furtherance of "a compelling governmental interest" and it is done by the
"least restrictive means" of doing so.
Here, Weisberg said, the Legislature expressed its interests by banning outright
the possession and use 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."
And Weisberg said the courts are not in a position to second-guess that
But Daniel DeRienzo, who represents Hardesty, chided the position of prosecutors
that allowing church members to use marijuana would result in serious harm.
He called that "the Reefer Madness argument," referring to a 1936 propaganda
film that depicted teens using marijuana and engaging in manslaughter, suicide,
rape and madness.