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Will Sessions' Religious Liberty Task Force protect sacramental cannabis use?

Posted on August 7th, 2018 by Bill Weinberg and tagged , , , , , , , , , , .

cannabisAttorney General Jeff Sessions' newly announced Religious Liberty Task Force has progressives fearing the worst. But might it open political space to argue for a right to sacramental use of cannabis?

At a Religious Liberty Summit hosted by the US Justice Department on July 31, Attorney General Jeff Sessions announced creation of a "Religious Liberty Task Force" to "help the department fully implement our religious guidance."

'Holy War' on secularism feared
Seeming to refer to secular values, Sessions stated in the announcement: "A dangerous movement, undetected by many, is now challenging and eroding our great tradition of religious freedom. There can be no doubt. This is no little matter. It must be confronted and defeated." He also invoked the unlikely specter of "nuns...being forced to buy contraceptives," in what the New York Times generously called a "not fully accurate" reference to Obama-era policies ensuring that faith-based groups' employee health plans cover birth control.

The notion of "religious guidance" for law enforcement sets off alarm bells for many progressives and liberals, who see potential for transgressing the First Amendment's separation of church and state. Threats to abortion rights and the dignity of the LGBT community are anticipated.

The Human Rights Campaign notes with trepidation that Sessions made his announcement while standing alongside leaders of the anti-LGBT Alliance Defending Freedom (ADF) and their most famous client, the Colorado baker who refused to make a wedding cake for a gay couple, in violation of the state’s anti-discrimination law—resulting a June's Supreme Court ruling in his favor. The Task Force is to be co-chaired by Acting Associate Attorney General Jesse Panuccio, who was an attorney in 2010 for supporters of Proposition 8, California’s same-sex marriage ban (later overturned by the Supreme Court).

The liberal Center for American Progress warns that the Task Froce is "promoting discrimination," and will mean "religious liberty for a select few." Vox calls the Task Force a step toward "Christian nationalism," and notes that Sessions used the Bible verse Romans 13 to justify separating migrant families at the US-Mexico border. Daily Beast said that in announcing the Task Force, Sessions had declared a "Holy War on LGBT people."

And Stephen Colbert quipped that the stated goal of protecting religious groups from persecution "could put a real kink in their Muslim ban."

A religious right to cannabis?
However, Colbert's quip could be more revealing than he knew of a proverbial Achilles' Heel for the religious right in the Task Force mandate. The Task Force has its origins in a May 2017 Executive Order issued by President Trump, calling upon the Attorney General to develop a "religious liberty guidance." That guidance was written up in a Memorandum issued by Sessions on Oct. 6, 2017. And it contains some surprises.

Citing the relevant case law on free exercise of religion brings Sessions into territory pretty far afield from anything that might be termed "Christian nationalism." One case his Memorandum cites repeatedly is the 1993 Church of the Lukumi Babalu Aye v. Hialeah. In that case, the Supreme Court ruled unanimously in favor of the right of Santeria practitioners to conduct animal sacrifices, striking down the efforts by a Florida municipality to ban the practice. Santeria is the Afro-Caribbean religion based on the indigenous African animist tradition of Yoruba, still practiced in Nigeria today.

The Memorandum also makes note that Congress "has provided statutory exemptions for American Indians' use of otherwise regulated articles such as bald eagle feathers and peyote as part of traditional religious practice."

The laws in question here are the American Indian Religious Freedom Act of 1978 and the Religious Freedom Restoration Act of 1993. As the National Constitution Center notes, the latter law has been something of a double-edged sword. It was passed to protect followers of the Native American Church from employment discrimination for their use of peyote. But it was also invoked by the Supreme Court in the 2014 Hobby Lobby decision, which found that employers may exclude contraceptives from their health plans on religious grounds.

Could there similarly be unintended consequences—but in the other direction—for Sessions' new Task Force? Sessions has a notoriously harsh anti-cannabis position. But his own Memorandum invokes a constitutional right to use of an otherwise banned psychoactive substance in the context of religious practice. Can this principle also apply to cannabis?

Rabbinical reefer
Answering in the definite affirmative is Yoseph Leib, author of Cannabis Chassidis: The Ancient and Emerging Torah of Drugs,  which makes the case for a long history of ritual cannabis use in Jewish tradition.

"I don't think there's any question of the historical role of marijuana in all ecstatic religion," Leib told Cannabis Now. "And that includes the early Abrahamic religion. It was there in the breadbasket of Persia and Lebanon, and there are references to it in scripture." Leib is among the scholars who believe that the kaneh bosm mentioned in Exodus and elsewhere in the Old Testament ("sweet cane" in Hebrew) referred to cannabis, and the King James Version rendering of the word as "calamus" is a mis-translation—perhaps intentional.

Leib also believes that the early Hasidic movement of 18th century Poland revived this biblical-era tradition, and that the lulke (water-pipe) traditionally used by early Hasids after the weekly Sabbath actually contained cannabis. And, with a sense of revealing a kind of cultural secret, he adds, "It's incredibly popular in the Hasidic community today." He notes a contemporary tradition among many Hasids of giving out cannabis edibles at kiddush, the Friday night meal that ushers in the Sabbath.

"Cannabis has apparently been there the whole time," Leib says, referring to the long sweep of Jewish history.

Leib says he uses cannabis himself for the midday incense offering or ketoret. As with many elements of Jewish tradition, this is a symbolic reference to ancient Hebrew practice—incense is not actually burned anymore, but the associated prayers still bear the name of the ceremony. Leib sees his practice as part of a long Jewish legacy of "smoking pipes and speculating on the mysteries."

Legal precedent does exist
Cannabis received some official recognition in Jewish religious law when Israel's leading Orthodox authority, Rabbi Chaim Kanievsky, issued a ruling in 2016 that cannabis is kosher for Passover. And the Orthodox Union, the body that sets such standards for America's half-million Orthodox Jews, that same year issued kosher certification for cannabis products available under the New York state medical marijuana program.  

And there is actually some US case law about spiritual use of cannabis—although not very favorable. The Oklevueha Native American Church, an apparently somewhat ersatz offshoot of the American Indian religious body, has waged legal battles for its right to sacramental cannabis use. Its bid to be exempted from the marijuana laws under the Religious Freedom Restoration Act was turned down by the Supreme Court in 2016. But this was after the 9th Circuit Court of Appeals in San Francisco ruled that their case had enough merit to proceed, at least.

In addition to Rastafarians, there are other spiritual traditions from around the world, now well-represented in the United States, with an open practice of ritual cannabis use. India has laws permitting use of bhang for the Hindu festivals of Holi and Shivaratri. As the Hindu American Foundation proudly notes, Holi was honored on the floor of Congress in March 2010 in a speech delivered by then-New York Rep. Steve Israel—albeit without any mention of cannabis.

At a minimum, the Religious Liberty Task Force may provide an opportunity for advocates to call the Trump White House and Sessions Justice Department out on their contradictions—and win further cultural acceptance of cannabis.

Cross-post to Cannabis Now

Photo by Barbara Doduk

 

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