Hoosiers, get your Hookahs.
In the latest Unintended Consequence of the “Religious Freedom” laws now sweeping the country, an Indiana church today was granted tax-exempt status by the IRS. But not just any church: The First Church of Cannabis, which proposes to exploit Indiana’s Religious Freedom Restoration Act (RFRA) to smoke pot at its services.
According to Bill Levin, self-described “Minister of Love and Grand Poobah” of the church, the first service is set for July 1, the day the Indiana RFRA takes effect. “We’re here for love, compassion, understanding, and good health,” Levin told The Daily Beast. “We’re teaching what the original guys originally taught.”
Despite the official IRS designation, it’s clear that the church has a sense of humor. Posted on its Facebook page, the church’s core principles, “The Deity Dozen,” include “Don’t be an asshole” and “Do not be a ‘troll’ on the Internet.” And of course “Cannabis, the ‘healing plant,’ is our sacrament.”
Since becoming an Internet sensation, Levin says the Deity Dozen has been translated into a dozen languages.
Alas, from a legal perspective, the First Church’s sense of humor hurts its chances of prevailing in court. Novel “churches” have been trying to use pot and other “sacraments” for decades now, and courts have had no trouble waving them away.
The question is whether the RFRA changes the game. And the answer is no.
Underneath all the sound and fury, RFRAs like Indiana’s are actually very specific legal provisions. Technically speaking, what they do is increase the burden on the government to justify any law that impacts religious practice. Specifically, if a law “substantially burdens” the exercise of religion, the government must show that it has a “compelling state interest” and that the law is the “least restrictive means” to address it.
The original, federal RFRA was, itself, a response to a case in which two Native Americans were found to have violated federal drug laws for ingesting peyote. Clearly, it was meant to make that practice legal. Similar cases included Santeria sacrifices violating animal welfare laws.
But no one doubts that Native American peyote use and Santeria sacrifices are a sincere religious practice. But in terms of what counts as a religion, the RFRA hasn’t changed anything.
And in that regard, it looks bad for the Church of Cannabis.
The Supreme Court, in particular, has long shied away from a precise way to distinguish real religions from bogus ones. But in constitutional cases, courts have invalidated religious claims far more plausible than those of the First Church of Cannabis. Even Timothy Leary lost his case, back in 1967.
One federal RFRA case, U.S. v. Myers, looked at five factors to determine whether a “Church of Marijuana” (founded in 1973) was authentically religious: ultimate ideas, metaphysical beliefs, a moral system, comprehensiveness of beliefs, and the ‘accoutrements of religion,’ such as important writings, a priesthood, etc.
On these factors, the Church of Cannabis fails. Sure, it has its Deity Dozen, but those “beliefs” aren’t comprehensive, aren’t deeply metaphysical, and aren’t “ultimate” in any religious sense. “I don’t give a crap about the afterlife,” Levin told me.
It also doesn’t help that it was founded on March 26, 2015, the day Indiana’s RFRA was signed, and at the instigation of a radio host.
A much more interesting question would arise if the church were Rastafarian. When it comes to Rastafarianism–officially, an assortment of denominations including the Twelve Tribes of Israel, the Ethiopian Zion Coptic Church, and others–practitioners often get the benefit of the doubt. There isn’t a ton of case law, but one Ninth Circuit case from 2002 did suggest that the federal RFRA protects Rastafarians’ marijuana use–though that was in the context of convicting them of “importation.”
Another promising precedent is the 2006 case of Gonzales v. Centro Unaio Do Vegetal, which, on the basis of RFRA, exempted Brazilian “Christian Spiritualist” practitioners from the Controlled Substances Act, allowing them to drink ayahuasca in religious ritual. Notice the pattern again: a clearly authentic religious group, and a narrow exemption for sacramental use of the medicine (or “drug”).
Almost certainly, UDV-type sects such as Santo Daime would be protected by Indiana’s RFRA as well.
But not the Church of Cannabis. Levin’s protestations notwithstanding, professed beliefs do not a religion make. Not legally, anyway.
What will happen on July 1? Assuming Levin’s service goes forward, it really depends on the Indianapolis police. Conceivably, they could decide that a bunch of pot smokers are not a significant law enforcement priority. This is Levin’s prediction: “Our courts are overwhelmed. Officers are issuing tickets [for marijuana use] just to keep the head count down. So in the worst case scenario, we might be handed a ticket.”
Or Governor Mike Pence could order the cops to just steer clear, adopting an executive interpretation of RFRA that is wider than the judicial one. Said Levin, “I do not believe the state can afford to look bad in the public eye. We have had so much bad press that they can’t afford another drop of it.”
Or everyone could get arrested, assert a religious freedom claim in defense, and perhaps be represented by one of the extreme “religious liberty” law firms like Alliance Defending Freedom or the Becket Fund. So far that hasn’t happened.
“Nobody on the Right will get near me,” Levin says.
Whatever happens in the justice system, you've got to root for a guy like Bill Levin. He conducted his MSNBC interview seated in a leopard-skin wingback chair, a parakeet nibbling at his neck, an unlit cigar in hand. His Leonard Cohen-like voice seemed to provide ample evidence of many years of religious marijuana use. His unkempt white-blond hair, black-and-green marijuana leaf socks, and ungepatchke interior design (including a vintage KISS lunchbox) completed the picture.
This is definitely not the kind of guy Indiana’s religious conservatives meant to protect, and it’s fun to see the Church of Cannabis join the Church of Satan in using conservatives’ religious extremism against them, even if the law isn’t ultimately on its side.
As for Levin, he’s basking in his 15 minutes of fame, and staying on message. As he told me, “I’d like everybody who reads your words to say a simple prayer, every day: ‘I love you.’ I don’t care who the fuck they say it to, say it five times a day. Not enough of us use those three words.”