Cannabis leafThe U.S. Court of Appeals for the Ninth Circuit recently upheld the convictions of two ministers of the Hawaii Cannabis Ministry who admitted using and distributing large quantities of cannabis in accordance with their religious beliefs.  The Hawaii Cannabis Ministry was founded in 2000 in the City of Hilo, Hawaii as “a community wherein Cannabis could be celebrated as a sacrament.”  According to one of the ministers, “[t]he consumption, possession, cultivation, and distribution of cannabis are essential and necessary components of the THC ministry.”  The Cannabis Ministry distributes marijuana both to its members and to medical marijuana users.

The Cannabis Ministry achieved rapid success, winning 2,000 to 3,000 converts in Hawaii and another 62,000 worldwide.  This success was based in part on the Ministry’s slogan: “We use cannabis religiously and you can too.”  The Ministry’s website also advertised that its members would know neither “arrest,” “prosecution,” nor “conviction of marijuana charges … starting as soon as you sign up.”  The Ministry’s website even stated that minors could join.  Reportedly, the Ministry turned no one away, and even “boasted of enrolling people who ‘come in on a cruise ship and they, you know they are just here for a day and they need … you know?”

The Ministry would provide its members with “a broad menu of cannabis products to pick up and to take away with them: ‘packets,’ ‘live plants,’ ‘clones,’ ‘seeds,’ ‘candy,’ ‘brownies and chocolate chip cookies all with cannabis,’ ‘holy anointing oil,’ and ‘tinctures.’”  In return for the cannabis products, the Cannabis Ministry members would provide a “donation” in some amount.

According to the Ninth Circuit, the Ministry “wrote down a handful of rules nominally designed to ensure that cannabis went out only to Ministry members or medical marijuana users.  But in practice these rules were little more than parchment barriers.”  The Ministry did not confirm that people seeking marijuana were who their Ministry ID cards identified them to be.  Further, the Ministry “never advised people who came through the express service that there were restrictions on what ‘members’ could do with the sacrament,” such as use it only for religious purposes.

In 2010, a grand jury indicted the Ministry’s reverends and associates with several crimes, including violation of the Controlled Substances Act (CSA).  Two ministers pled guilty to one count of conspiracy to manufacture and distribute marijuana.  One minister was sentenced to 60 months in prison followed by 4 years of supervised release.  The other minister was sentenced to 27 months in prison and 3 years of supervised release.

The ministers challenged their convictions under the Religious Freedom Restoration Act (RFRA), which requires that when government substantially burdens religious exercise it must justify the burden through a compelling government interest advanced in the least restrictive means possible.

The Ninth Circuit found that the government had a compelling interest in “mitigating the risk that cannabis from the Ministry will be diverted to recreational users” and that “mandating [the ministers’] full compliance with the CSA would help to advance this compelling interest to a meaningful degree.”  The Ninth Circuit specifically pointed to the black market for cannabis in the city of Hilo, as well as the risk that cannabis would end up in the hands of minors.  The ministers argued that recent Department of Justice memoranda regarding the CSA with respect to marijuana show that the DOJ has abandoned marijuana enforcement efforts, but the Ninth Circuit rejected this argument.  The Ninth Circuit further found that the government satisfied the least restrictive means requirement, and rejected the ministers’ claims to the contrary.

The Ninth Circuit’s decision in United States of America v. Christie is available here.

*RLUIPA-Defense.com trivia:  The Hawaiian word for cannabis is “pakalolo” (read New York Times article here).  Hawaii has the highest proportion of production to use in the country (see DrugScience.org report, available here).

Original photo by Frances EllenSome rights reserved.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Karla Chaffee Karla Chaffee

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six Fact Patterns of Substantial Burden in RLUIPA: Lessons for Potential Litigants,” (with Dwight Merriam) published in Albany Government Law Review (Spring 2009). Karla has continued to write and speak on RLUIPA and has represented clients in several federal proceedings, including RLUIPA, First Amendment, and Equal Protection claims. In addition to her RLUIPA practice, Karla has litigated complex environmental matters, defending claims under Massachusetts Chapter 21E. Karla’s transactional experience includes pre-acquisition and pre-financing due diligence, environmental risk assessment and risk mitigation. She also represents clients seeking local zoning approvals and counsels them on the impact of proposed or recently enacted land use legislation, as well as on land use trends across the country.

Karla is also a proud member of Robinson+Cole’s Pro Bono Committee and is dedicated to maintaining pro bono work as part of her practice. Her pro bono clients include individuals and families seeking asylum in the United States. She has also represented nonprofit organizations in obtaining tax-exempt status and has served as legal counsel in a zoning appeal for a nonprofit association created to support and protect a national park.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.