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
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 RFRA, as originally
enacted, guarantees the application of Sherbert v. Verner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
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
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
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?
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.
(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,
(21) Donnie Marshall, Deputy Administor DEA, Letter to Simore
Monesebian, July 28, 1999.