News Ariz. Supreme Court to decide if religious rights cover pot

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By Howard Fischer

CAPITOL MEDIA SERVICES

PHOENIX — The Arizona Supreme Court agreed Tuesday to decide whether there is a religious right to possess marijuana.

Without comment, the justices granted to hear the arguments of Daniel Hardesty who contends the First Amendment protections of free exercise of religion entitle him to use marijuana as a "sacrament'' of his church. Both a trial judge and the state Court of Appeals rejected those arguments.


If the high court decides otherwise, it would be the first time in Arizona that judges have concluded there is a legal defense for those who use marijuana.


Hardesty was arrested in 2005 after being stopped by police while driving in Yavapai County.


At trial, Hardesty testified he had been a practicing member of the Church of Cognizance since 1993. And a church official said 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.


Prosecutors never challenged the status of the church but convinced the judge to exclude the religious freedom claim. Hardesty was convicted and placed on probation for 18 months.


The appellate court, in rejecting Hardesty's argument, concluded that while he has an absolute right to believe what he wants, the First Amendment does not give him a right to perform or abstain from certain acts for religious reasons.


Appellate Judge Sheldon Weisberg, who wrote that ruling, also said the Legislature has a legitimate interest in the outright ban on the possession and use of marijuana. Weisberg said courts are not in a position to second-guess those laws.


Attorney Daniel DeRienzo who represents Hardesty said there is no evidence that allowing church members to use marijuana would result in serious harms. He called that "the Reefer Madness argument,'' referring to a 1936 propaganda film which showed high schoolers lured into marijuana use engaging in manslaughter, suicide, rape and a descent into madness.


There is a precedent for what Hardesty wants.


Arizona courts have allowed the possession of peyote for religious use by the Native American Church. But Weisberg said that is different, as prosecutors in that case never showed that peyote was addictive or being used in quantities that was harmful to the health of the participants.


And Weisberg said the long and continuous use of peyote by a "discrete and well-defined group'' makes it different than drug use claims by other religions.


http://www. azstarnet. com/sn/printDS/274776