On January 16, 2007, Carl Olsen filed a lawsuit in the United States District Court for the Southern District of Iowa demanding that the federal government stop persecuting him for his use of marijuana as a religious sacrament.
Olsen’s lawsuit follows his 1984 petition to the United States Drug Enforcement Administration (DEA) for a sacramental exemption for the religious use of marijuana similar to the federal exemption for the sacramental use of peyote that has existed since the federal drug laws were created in 1970 (1).
Supreme Court says drug laws cannot be challenged
Olsen’s first petition was denied in 1990 (2). At that time the United States Supreme Court issued its landmark decision in Employment Division v. Smith (3) (1990) which denied Alfred Smith’s and Galen Black’s claim for unemployment benefits after they were fired from their jobs because of the sacramental use of peyote (4).
In Employment Division v. Smith, the Supreme Court declined to follow previous case law in Sherbert v. Verner (5) (1963) and Wisconsin v. Yoder (6) (1972). Those cases require the courts to consider religious exemptions with an exhaustive search for a threat to public health and safety called the compelling interest test. The Supreme Court’s new ruling said that courts are not required to consider religious exemptions to state’s laws that do not target religion or religious organizations, which are neutral toward religion, and which are generally applied to everyone.
The Supreme Court’s ruling in Employment Division v. Smith inspired such a negative reaction among religious organizations that Congress unanimously passed the Religious Freedom Act of 1993 (RFRA)(7) to overturn the decision. RFRA, as originally enacted, guarantees the application of Sherbert v. Verner and Wisconsin v. Yoder in all cases where state and federal laws burden the practice of religion, including state or federal laws neutral toward religion and generally applicable to everyone.
The United States Supreme Court reviewed the RFRA in 1997. RFRA was invoked to protect church property from a local zoning ordinance in Texas in City of Boerne v. Flores (8) (1997). The Supreme Court ruled that RFRA exceeded Congress’ authority to require application of the compelling interest and least restrictive means test to state laws by way of the Fourteenth Amendment (9).
Again, Congress then passed a law to overturn the effect of the Supreme Court’s ruling in City of Boerne v. Flores. This is the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)(10).
Having failed to base religious protection on the Fourteenth Amendment, Congress based RLUIPA on the Spending and Commerce clauses of the federal Constitution (11). The Supreme Court upheld RLUIPA in Cutter v. Wilkinson (12)(2005) where it was applied to state prisons in Ohio because Ohio accepts federal funding to operate its prisons. Acceptance of federal money establishes a voluntary contract on the part of the state to comply with federal law.
Supreme Court takes another look at the drug laws
In the landmark ruling on February 21, 2006 in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (13) (2006) (UDV hereafter), the Supreme Court upheld RFRA as applied to the federal drug laws. This triggered Olsen’s current lawsuit. The Supreme Court applied the exhaustive search for threats to public health and safety defined in Sherbert v. Verner and Wisconsin v. Yoder. The court found that the drug laws are not neutral toward religion because they allow a sacramental exemption for the use of peyote, that the drug laws are not generally applicable because of various exemptions for scientific purposes, and the drug laws do not prevent the sacramental use of drugs where no injury caused directly by use of the drugs was shown. The court also said the harm caused by use of a drug was only one of the factors to be considered. UDV upholds a long tradition of religious freedom in this country that says a religious practice is absolutely protected unless someone is being injured. It would be impossible for a victimless crime to meet this burden.
Case law prior to UDV
Prior to Olsen’s 1984 petition, religious exemptions to the federal drug laws had been routinely denied in a line of cases following the decision in Leary v. United States (14)(1967). In Leary v United States, decided before Wisconsin v. Yoder, the United States Court of Appeals for the Fifth Circuit refused to apply the compelling interest test found in Sherbert v. Verner. The court said that the drug laws were of such importance that religious exemptions could not be considered.
When the DEA denied Olsen’s petition for a sacramental exemption, the DEA relied on the line of cases following the Leary v. United States ruling and refused to grant Olsen a hearing. In light of the ruling in UDV, a hearing would have been required in which the government would have been required to prove that Olsen’s use of marijuana had injured someone or was so likely to injure someone that a restriction must be applied.
The argument in Olsen’s favor comes directly from the drug law itself. When the Controlled Substances Act of 1970 (15)(CSA hereafter) was enacted, Congress placed marijuana in Schedule I of the CSA as a temporary measure and established a federal commission to find the actual facts about marijuana use and to recommend marijuana’s final scheduling. The commission was named the “Commission on Marihuana and Drug Abuse” (16). In its final report, the Commission wrote, “The Commission is of the unanimous opinion that marihuana use is not such a grave problem that individuals who smoke marihuana, and possess it for that purpose, should be subject to criminal procedures.” (17). Can you see where this is going? Can sacramental use of marijuana create an injury where no injury has ever been shown?
The next item of evidence is the DEA’s 1986 scheduling of a specific product formulation containing dronabinol (syntheticaly manufactured THC) and sesame oil encapsulated in a soft gelatin capsule, which is sold under the brand name of Marinol, in Schedule II. (18). [Editor’s note: see here for detailed explanation regarding Marinol, Dronabinol, and THC.] Shortly after placing the dronabinol capsule in Schedule II, in 1988 the DEA held hearings on the medical use of the marijuana plant. In his findings of fact and conclusions of law, the chief administrative law judge for the DEA wrote, “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man.” (19). Can you see where this is going? Where is the threat to public health and safety sufficient to override Olsen’s religious freedom?
At pages 56–57 of the 1988 DEA decision, the court wrote:
4. Nearly all medicines have toxic, potentially lethal effects. But marijuana is not such a substance. There is no record in the extensive medical literature describing a proven, documented cannabis-induced fatality.
5. This is a remarkable statement. First, the record on marijuana encompasses 5,000 years of human experience. Second, marijuana is now used daily by enormous numbers of people throughout the world. Estimates suggest that from twenty million to fifty million Americans routinely, albeit illegally, smoke marijuana without the benefit of direct medical supervision. Yet, despite this long history of use and the extraordinarily high numbers of social smokers, there are simply no credible medical reports to suggest that consuming marijuana has caused a single death.
6. By contrast aspirin, a commonly used, over-the-counter medicine, causes hundreds of deaths each year.
In 1999, the DEA rescheduled encapsulated dronabinol (that is, Marinol containing synthetic THC) from Schedule II to Schedule III because of its safety (20). According to the DEA dronabinol is “the United States adopted name for the substance (-)-[Delta-9]-(trans)-tetrahydrocannabinol . . . which is thought to be the primary psychoactive ingredient in marijuana.” (21) THC is the pharmaceutically pure principle psychoactive ingredient which is the named and scheduled drug in marijuana.
Driving studies conducted by the federal Department of Transportation, and reported in 1992 (DOT HS 808 065) found that marijuana did not have statistical significance in driving related fatalities. Driving studies conducted by the federal Department of Transportation, and reported in 1999 (DOT HS 808 939) found that marijuana did not cause impairment in driving performance. Alcohol, alone or in combination with other drugs, was the primary cause of poor driving performance and traffic fatalities. Can you see where this is going? Are churches prevented from serving alcohol to their members during church services? Are church members who use marijuana during church services prevented from driving home after the service? Are ordinary people just out to have a good time prohibited from drinking alcoholic beverages in bars even though drunk drivers kill more of us than any other form of accident?
Editor’s Note: Carl Olsen is the President of Iowans for Medical Marijuana.
(1) 21 C.F.R. § 1307.31; 42 U.S.C. § 1996a
(2) Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989), cert. denied, 495 U.S. 906 (1990)
(3) 494 U.S. 872 (1990)
(4) 21 U.S.C. § 812 Schedule I(c)(12)
(5) 374 U.S. 398 (1963)
(6) 406 U.S. 205 (1972)
(7) 42 U.S.C. §§ 2000bb et seq.
(8) 521 U.S. 507 (1997)
(9) U.S. Const. Amend. 14
(10) 42 U.S.C. §§ 2000cc et seq.
(11) U.S. Const. Art. I, Sec. 8, Clause 1 and Clause 3
(12) 544 U.S. 709 (2005)
(13) 546 U.S. 418 (2006)
(14) 383 F.2d 851 (5th Cir. 1967), rev’d on other grounds, 395 U.S. 6 (1969)
(15) Public Law 91-513 – Oct. 27, 1970 [84 STAT. 1280–1281]
(16) Public Law 91-513 – Oct. 27, 1970 [84 STAT. 1280–1281] – Part F – “Establishment of Commission on Marihuana and Drug Abuse” Sec. 601
(17) Final Report at page 150
(18) Vol. 51, Federal Register, Page 17476, Tuesday, May 13. 1986
(19) In the Matter of Marijuana Rescheduling Petition, DEA Docket No. 86-22, Sept 6, 1988
(20) Vol. 64, Federal Register, Page 35928, Friday, July 2, 1999
(21) Donnie Marshall, Deputy Administor DEA, Letter to Simore Monesebian, July 28, 1999.