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R. v. The Doobie Brethren

How drug laws have forced the courts to distinguish between 'real' religions and 'fake' ones

Smokers High Life/Flickr

From the Postmedia wire, today:

Christopher Bennett, who claimed that he should be allowed to smoke up to seven grams of marijuana—about 35 joints—every day for religious purposes, argued that Canada’s drug laws infringed upon his religious rights.

But in a 21-page ruling, Judge Michel Shore wrote, “While the applicant has shown that his practice is based on the belief that cannabis is the tree of life, this, in and of itself, does not make it a religious practice.”

Kind of bizarre if you think about it, isn’t it? The idea that “cannabis is the tree of life” could not more obviously be a religious concept, in the ordinary meaning of the term “religious”. What else would you call it? And what would you call an activity predicated on such a belief? If the belief is assumed to be sincere, and Judge Shore specifically concedes this assumption, then it’s a religious practice. The sentence in quotation marks is, when read as plain English, oddly nonsensical.

The nonsense cannot be held against Judge Shore, however; the weight of the caselaw surrounding “freedom of religion” made any other decision impossible. We get into a bit of a fix when we protect “freedom of religion” in a manner separate from the protection of ordinary secular thought and expression; for what is it that we are protecting? It means, in the parlance developed over time in the English-speaking world, that the state disavows the right to mandate or establish some particular religious practice or doctrine; to subject anyone to a religious opinion test as a condition for citizenship benefits or public office; or to single out the beliefs, teachings, and non-harmful rites of any faith for suppression. Freedom of religion is nowhere understood as requiring the state to exonerate a murderer who says “God told me to”; the freedom attaches only to behaviour that does not obtrude onto the rights of others.

Unfortunately, we also have some curious laws against ingesting or inhaling particular substances, and these laws could not stand if “religion” were taken to mean “any strongly held belief about morals and conduct.” Any libertarian’s hatred of the War on Drugs would qualify easily. I went to university with David Malmo-Levine, whose name ended up on a major Supreme Court pot case; I can promise you that marijuana is more important to Malmo-Levine than Jesus is to almost anybody.

So the courts, in order to preserve the state’s power to regulate unobtrusive and victimless personal behaviour, are forced to introduce a practical distinction between legitimate or authentic, and thus protected, religious practices—those that are part of a “particular and comprehensive system of faith and worship”—and those that simply follow from the convictions of an individual. Such a distinction ought to be outrageous to anybody who is not religious.

(And even if you are religious, you might note that Christianity took a long time to become a “particular and comprehensive system”. What we have here is a “freedom of religion” test that wouldn’t have prevented the Crucifixion.)

Moreover, the test really seems pretty easy to game, with a little forethought. By a non-coincidence that has been happy for the judiciary, the potheads who have hitherto tried to claim religious protection have been too stupid to build a proper L. Ron Hubbard-esque structure that would help them acquire it. Judge Shore writes almost with pity of the applicant in today’s case, Christopher Bennett:

On cross-examination, the Applicant eventually volunteered that—in addition to the secular belief that cannabis is the tree of life—he and members of the Church of the Universe share one other seemingly unrelated belief: that “god is god.” Even if one also considers this additional tautological belief, which the Applicant conceded “can mean many things to many individuals,” there is still no evidence that the Applicant’s marihuana use has any connection with a “comprehensive system of faith and worship” as described by the Supreme Court in Amselem.

For example, the Applicant failed to establish any connection between his practice and any moral or ethical precepts or obligations. He did not even suggest that there are any restrictions imposed by the Church of the Universe on the use of marihuana by its adherents. He did not indicate that the Church prohibits the consumption of marihuana in the presence of children or while driving a car or operating heavy machinery. To the contrary, on cross-examination the Applicant repeatedly maintained that all uses of cannabis, no matter what the context, are “sacramental” (and thus presumably permitted). His evidence on this point is consistent with the evidence of the accused in R. v. Hunter, above, who testified that the moral dictates of the Church of the Universe could be summed up by the phrase “[d]o as you will”.

There is also no indication that the Applicant’s practice of consuming marihuana is connected to or part of a particular or comprehensive system of worship. The Applicant never suggested that he consumes marihuana as part of any prescribed rites, rituals, ceremonies or holidays. Given the fact that his daily habit of consuming seven grams of marihuana involves smoking up to 35 joints, the evidence suggests that the Applicant effectively smokes marihuana almost constantly, no matter what the context (he even admitted to having smoked marihuana before his cross-examination in this case). When asked why he requested an exemption to produce and possess enough marihuana to consume seven grams of marihuana per day (as opposed to some other quantity), the Applicant did not point to any religious reasons. Rather, he simply answered that he thought that such a quantity was “pretty reasonable.”

This passage from Shore’s ruling is pure comedy. Which may make you overlook its other potential function: as a convenient guidebook for those who want to start more robust insta-religions that list marijuana among the sacraments. All you need is a “comprehensive system”! You need only assemble some rites and moral precepts and endow them with a vague metaphysical colouring; the world’s history offers a dazzling array of magic undergarments and dietary no-nos to choose from. It would be useful to have a holy book and a creation myth; neither would be difficult to concoct, and plagiarizing from established tradition can only enhance your prestige.

If you find yourself trying to defend your religious eccentricities as “reasonable”, however, you have missed the point. The less reasonable they are—if they’re otherwise harmless—the more convincing the religiousness!