Should the State of Arizona carve out an exemption to its marijuana ban for the pot-worshipping, neo-Zoroastrian Church of Cognizance? That was but one of the legal issues at stake during oral arguments on February 18 before the Arizona Supreme Court in the case of the State of Arizona vs. Danny Ray Hardesty. A member of the Church of Cognizance, Hardesty was popped back in 2005 in Yavapai County for tokin' while driving.
His defense? Marijuana use is central to his religion. Indeed, cannabis is a holy substance in the Church of Cognizance, and it's up to members as to how often and when they partake of the "sacred herb," as it's referred to. The church's "Declaration of Religious Belief," for instance, states that marijuana, "increases cognizance, promotes tranquility, extends longevity, promotes health and welfare."
This same declaration even includes an oath of allegiance to the weed, which proclaims, "I do honor marijuana as the Teacher, the Provider, the Protector...Praise be to Holy Marijuana, the Righteous Teacher of my faith!"
But before you dismiss the CoC as just an excuse for marijuana enthusiasts to get wasted with impunity, keep in mind that the Arizona Supremes are at least entertaining the notion that CoC's weed-worshippers have a claim under the Arizona Free Exercise of Religion Act.
The 1999 law is based closely on a federal law called the Religious Freedom Restoration Act, and it says that government may "substantially burden a person's exercise of religion," only if there's a compelling government interest, and if the government uses "the least restrictive means of furthering that compelling government interest."
The issues before the court are both procedural, and substantive. Hardesty's lawyer argued that his client was not allowed to use religious freedom as a defense during his trial. (Hardesty was convicted and got 18 months probation.) This is counter to the AFERA law, which stipulates that, "A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding..."
A larger issue concerns the "least restrictive means" test. The state argues that a universal ban on marijuana is the least restrictive means for regulating its possible religious use, which seems laughable on its face, considering the legalization of medical marijuana in certain states, and considering the United States Supreme Court's 2006 decision in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal. (Say that three times fast.) In that decision, a potentially more hazardous drug, the hallucinogen DMT was allowed to be offered in a ceremonial tea used by an obscure religious sect. The Supreme Court came to its conclusion using the RFRA, the federal version of our state law, each of which uses almost the same wording.
But if it seems as if Hardesty's lawyer Craig Williams should have carried the day, given these facts, he seemed to stumble when the argument moved from the procedural realm to the substantive. Already, the state had conceded that the CoC was a religion and that Hardesty's belief was sincere.
Williams just wanted the opportunity to go to the jury with the defense that Hardesty was simply following the tenets of his religion, which allows him the use of ganja whenever he feels like it. But when the AZ Supremes wanted him to hypothesize about what outcome he wanted in regards to the "least restrictive means" test, Williams wouldn't go there.
The Supremes peppered him with questions trying to get Williams to play imaginary ball, but Williams resisted,
"I would argue that the facts of the case aren't important here," Williams told the Supremes. "It's the procedure that's important."
Williams' stance seemed to frustrate the justices. And Vice Chief Justice Rebecca White Berch even offered up a hypothetical on Williams' behalf.
"Would it be enough to say...if my client is endangering public safety by his use, then the religious exercise exception falls away?" wondered Berch.
Williams agreed, but he still seemed unprepared to provide a compelling argument for why the state's ban was far too broad, and did not allow for religious exceptions.
The justices didn't leave Assistant Attorney General Joseph Parkhurst off the hook. They asked the state's representative if the government's universal ban would be the least restrictive means of burdening the religion in question if the pot smoker had his altar in his back yard, and only smoked marijuana there during religious ceremonies. But Parkhurst stuck to his guns and rationalized a universal ban on pot, arguing that the evidence of marijuana's ill-effects was overwhelming and incontrovertible.
Justice W. Scott Bales recalled what U.S. Supreme Court Justice Roberts had said in the Ocentro case, that, "It's the typical bureaucratic argument to say if we make an exception for you, we'll have to make one for everybody...[Roberts] rejected that as a rationale for the universal prohibition of DMT."
The justices' decision in Hardesty is due a few weeks from now. I was unable to contact Hardesty himself for this article, and his legal beagle Williams did not return my call. But I did get hold of the man who helped found the CoC, Dan Quaintance of Graham County, Arizona.
Although Quaintance said his church did not condone Hardesty smoking reefer and operating a vehicle at the same time, he suggested that the circumstances of Hardesty's bust were significant.
"He was out in the middle of a forest area," related Quaintance of Hardesty, in his deep buzz of a baritone, "on a dirt trail, going 5 mph...There's hardly a danger to society at that point."
As for the oral arguments before the Arizona Supreme Court (which can be watched online at the court's Web site), Quaintance commented that he liked Justice Berch's hypothetical for a least restrictive means of burdening a religion like the CoC: If a person is a danger to the public, they lose their religious exemption for using pot as a sacrament.
Quaintance claims he can trace the use of cannabis back to the earliest reaches of Zoroastrianism, considered by many to be the world's oldest monotheistic religion. He believes that ancient Zoroastrian holy texts refer to cannabis in a substance called haoma, a sacramental drink described in the Zoroastrian holy book, the Avesta. (Quaintance says believers have to smoke it because of the costs associated with acquiring enough cannabis to make the drink.)
The CoC has been around since the nineties, according to Quaintance, and the church claims a couple of hundred members, many of whom maintain their own "monastaries," referred to as I.O.M.M.s, or "Individual Orthodox Member Monastary." Quaintance's theology is a lot more involved than you might anticipate. And he comes across as a very thoughtful individual who has done a great deal of personal research into the history of religion.
But Quaintance has paid a steep price for his religious beliefs. Where he and his wife Mary Quaintance used to partake of the sacred herb daily, they have been denied the holy hemp for the past three years, forced to undergo regular drug tests to make sure they're clean. See, the Quaintances were arrested in 2006 in New Mexico by the U.S. Border Patrol with 172 pounds of marijuana in their car.
The federal judge in that case, U.S. District Judge Judith Herrera, rejected the Quaintances' religious freedom claim: the insistance that the Pope of Pot and his lady had a right to the 172 pounds of bud because it was to be used in worship. Herrera found that the pair's religious beliefs were not sincere. But if there's one thing that Dan Quaintance seems to be, it's sincere, even if you find his beliefs to be kooky as all get-out.
Still free on bond, the Quaintances were sentenced recently. (The Hardesty case has no immediate impact on theirs: Hardesty is in state court; the Quaintances, federal.) Dan got five years in the slammer. His wife, two to three years. Their petition to remain out pending appeal has been denied, and he has to report to Terminal Island, California before 2 p.m., March 11 to begin serving his sentence. He is 56 years old. His wife Mary is 53, and is currently experiencing heart trouble, so the government is going to let her be treated before she has to report to Victorville, California to begin her incarceration.
The Quaintances have two children and five grandchildren. The most recent grandkid was born premature and had to be flown to Tucson Medical Center. The family sounds very close, as they all live together on adjacent lots surrounded by a fence in Pima, Arizona. Dan and Mary Quaintance have been married 35 years, and their separation from each other and their family will be a severe hardship.
"They've assigned us so far away, it's doubtful our family will be able to make that many trips to visit us during our incarceration," Dan Quaintance told me, sadly.
"I personally can't think of any greater hardship that a person might face than being taken to such great distances away from loved ones," Quaintance e-mailed me later. "I don't worry about the toll on me I worry about the punishment being inflicted on our family as a whole."
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Sure, a lot of folks will scoff, say the Quaintances are just getting what they deserve, make light of them worshipping a plant. (You know, like the druids.) But as far as beliefs go, is it any wackier than believing there's some dude up in the sky with a big gray beard keeping score every time someone yells, "Jesus Christ!" at a stumped toe, or whatever? Hell, all religions are nuts, as far as I'm concerned. And the Quaintances make as good an argument for smoking a doobie as a sacrament as the Catholics do for doling out red wine to minors during communion.
Bottom line is the Quaintances shouldn't have to go to prison because marijuana use should be legal. The ban on it makes no more sense than the prohibition on alcohol did in its day. I say this as someone who has only occasionally partaken at parties. I don't have very good lungs, so it's not my recreational drug of choice. Sure, people who get stoned all the time can be obnoxious. But so can alcoholics.
One day, we will look back on the government's harassment of individuals for smoking something other than tobacco and wonder where this mania for punishing people came from. Unfortunately, that day won't come soon enough to help Dan Quaintance, who seems resigned to his fate.
"I am absolutely being persecuted for my religious beliefs," contended Quaintance. "But then every religion has its martyrs."