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Ariz. Supreme Court to decide if religious rights cover marijuana

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

Without comment, the justices agreed to hear Daniel Hardesty's argument that 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 that 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.

In August of last year, however, Church of Cognizance founders Dan and Mary Quaintance pleaded guilty to possession and conspiracy with intent to distribute marijuana after the U.S. District Court in New Mexico rejected their religious-freedom arguments. They are scheduled to be sentenced Thursday.

Prosecutors in Hardesty's case never challenged the status of the church but persuaded 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 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 the 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 harm.

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 prosecutors in that case never showed peyote was addictive or being used in harmful quantities. And Weisberg said the continuous use of peyote by a "discrete and well-defined group" makes it different from drug-use claims by other religions.