The state's interest in banning marijuana outweighs the religious beliefs of an individual that he is entitled to use the drug anywhere, the Arizona Supreme Court ruled Tuesday.
In the first ruling of its kind in Arizona, the justices said state law permits the government to "burden the exercise of religion'' only if it shows a compelling interest and that the restrictions are the "least restrictive means of furthering that interest.'' And Daniel Hardesty conceded to the court that there is some governmental interest in the regulation of marijuana.
But Chief Justice Rebecca White Berch said Hardesty argues that his membership in the Church of Cognizance allows him to use marijuana in any amounts they want, anywhere and at any time, including while driving. She said that makes it clear that an outright ban is the "least restrictive means'' of the government to further its interests in protecting the public.
Tuesday's ruling does not foreclose the possibility that the state's high court might not conclude in another case - one with different facts and religious claims - that some form of religious use of marijuana is protected by Arizona's Free Exercise of Religion Act. Berch, writing for the unanimous court, pointed out that courts have allowed users of peyote to use federal laws to shield them from prosecution against state drug laws.
She said, though, there is "an obvious difference'' between that situations and what is occurring here.
"Members of the Native American Church assert only the religious right to use peyote in limited sacramental rights,'' the chief justice wrote. "Hardesty asserts the right to use marijuana whenever he pleases, including while driving.''
Hardesty was arrested in 2005 after being stopped by police while driving in Yavapai County.
At trial, Hardesty testified that he had been a practicing member of the Church of Cognizance since 1993.
A church official testified 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. The judge also was told that the church is made up of "individual orthodox member monasteries,'' each consisting of a family unit that establishes its own mode of worship.
Yavapai County Superior Court Judge Thomas Lindberg said at the time 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."
Prosecutors never challenged the status of the church. But they persuaded the judge to exclude the religious-freedom claim. Hardesty was convicted and placed on probation for 18 months.
In arguments to the Supreme Court, Hardesty argued that he was entitled to a separate hearing to determine if the state had a compelling interest in regulation marijuana, and whether the outright ban was the least restrictive means of infringing on his religious rights.
Berch, however, said there is a long line of case law showing that marijuana poses a threat to individual health and social welfare. She specifically cited the state's interests in regulating criminal drug trafficking and associated crimes.
As to the issue of the level of restriction, Berch said the government must show only that other means are impractical or ineffective. Given Hardesty's claim that he should be allowed in the name of his religion to use marijuana when and where he wants, the justice said nothing short of an outright ban will protect the public interest.
Daniel DeRienzo, one of Hardesty's attorneys, has criticized 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 claimed high schoolers lured into marijuana use engaged in manslaughter, suicide and rape, and descended into madness.
Tuesday's ruling is the second defeat in two years for members of the Church of Cognizance.
Last year a Graham County couple that claims to have founded the religion in the early 1990s were found guilty of possession and conspiracy with intent to distribute marijuana after being stopped with 172 pounds of marijuana in their vehicle near Las Cruces, N.M. A federal judge in New Mexico rejected their religious freedom arguments.
Danuel Quaintance was sentenced to five years in prison; his wife, Mary, was sentenced to two to three years.
BY HOWARD FISCHER
September 8, 2009