9th Circuit Court of Appeals Rules Religion May Be Defense to Marijuana Possession

IN THE COURTS March 1996

The U.S. Court of Appeals for the Ninth Circuit ruled on February 2 that under the Religious Freedom Restoration Act of 1993, Rastafarian defendants should be allowed to show that they use marijuana for bona fide religious reasons in their defense against charges of possession of marijuana (U.S. v. Bauer, No. 94-30073, 96 C.D.O.S. 756, 1996WL42240 (9th Cir. 1996); http://www.law.vill.edu/Fed-Ct/Circuit/9th/opinions/9430073.htm; Reynolds Holding, "Rastafarian Pot Could Be Legal," San Francisco Chronicle, February 3, 1996, p. A14; "Marijuana For Religious Reasons," Washington Post, February 5, 1996, p. A10; Associated Press, "Court: Rastafarians Can Hold Marijuana," Chicago Tribune, February 4, 1996, p. 9).

Acting on two tips, police initiated an investigation of marijuana trafficking from Mexico to Billings, Montana. As a result of the investigation, 26 people were indicted in November 1992 on a number of charges, including conspiracy to manufacture and distribute marijuana, money laundering, use of firearms in relation to drug trafficking, and possession with intent to distribute marijuana.

Three of the defendants, Calvin Treiber, Dawn Meeks, and Lexi Bauer, appealed on the grounds that they possessed the marijuana in the course of practicing their religion, Rastafarianism. The Court of Appeals found that Rastafarianism is a recognized religion that considers marijuana a sacrament.

In 1993, Meeks had requested the district court to provide funds for expert testimony on the use of marijuana in Rastafarianism. The district court denied that motion and granted a government motion to prevent any religious defense to the charges. The defendants' trial started on October 3, 1993. On November 17, 1993, the defendants notified the court that President Clinton had signed the Religious Freedom Restoration Act on November 16, 1993. The Act declares that "governments should not substantially burden religious exercise without compelling justification," i.e. government interest. Further, the Act allows for persons who find that a law does "substantially burden" their free exercise of religion to present evidence of such at trial (P.L. 103-141; 42 U.S.C. 2000bb-1). The district court refused to reconsider its ruling on the government's motion.

Post-conviction, the defendants argued that laws regulating marijuana greatly interfere with the ability of Rastafarians to practice their religion. The district court ruled that "the government has an overriding interest in regulating marijuana." The court quoted a 1967 Fifth Circuit decision: "It would be difficult to imagine the harm which would result if the criminal statutes against marihuana were nullified as to those who claim the right to possess and traffick in this drug for religious purposes. For all practical purposes the anti-marihuana laws would be meaningless, and enforcement impossible" (Leary v. U.S., 383 F.2d 851 (5th Cir. 1967), rev'd on other grounds, 395 U.S. 6 (1969)).

The Court of Appeals three judge panel was unanimous that the defendants should have been allowed to present evidence of their religious use of marijuana at trial. Judge John T. Noonan, Jr., writing for the court, found that under the Religious Freedom Restoration Act, the government would be required to show that the burdens on the defendants' religion were in the course of furthering the government's interest and that the laws were the "least restrictive means of furthering that compelling government interest." While the defendants may use the religious argument in their defense of simple possession charges, Noonan wrote that the same argument cannot be applied to other charges of conspiracy to distribute, possession with intent to distribute, and money laundering. "Nothing before us suggests that Rastafarianism would require this conduct," he wrote.

Noonan ordered that the defendants be retried on the simple possession charges. At such trial, Noonan wrote, the government can challenge whether the defendants are Rastafarians. "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 wrote. "Neither the government nor the court has to accept the defendants' mere say-so."

The defendants appealed on a number of other grounds, including inappropriate peremptory challenges to the jury by the prosecution, misleading jury instructions, and selective prosecution. The Court of Appeals found no grounds for any of these arguments.