THE WALL STREET JOURNAL
April 9, 2012, 2:52
Ninth Circuit Revives Lawsuit over Religious Marijuana Use
A federal appeals court revived a lawsuit by a Native American religious group seeking an exemption from federal law so its members can use marijuana without fear of prosecution.
In 2009, federal law enforcement officers in Hawaii seized from FedEx one pound of marijuana — worth about $7,000 — that was addressed to a member of the Oklevueha Native American Church. Police later destroyed it.
Michael Rex “Raging Bear” Mooney, the intended recipient, sued the heads of the Justice Department and the Drug Enforcement Administration, seeking to bar the government from enforcing a federal anti-drug law against the church. Mooney, the founder of the 250-member church, argued that the First Amendment and the Religious Freedom Restoration Act protect his flock’s marijuana use.
A lower court threw out the lawsuit, saying Mooney hadn’t shown the church was ever in real danger of prosecution by authorities for religious marijuana use. No one was charged in connection with the marijuana seizure, and a Justice Department lawyer said in court hearings that no investigation was pending.
The Ninth Circuit, its ruling Monday, said prosecution wasn’t a prerequisite for the lawsuit.
“The seizure of Plaintiffs’ marijuana that has already occurred creates a justiciable case and controversy about plaintiffs’ constitutional and statutory entitlement to use marijuana for religious purposes,” wrote Judge Mary Murguia for the three-judge panel.
The panel sent the lawsuit down to the lower court for further proceedings, without offering an opinion on the merits of the case.
Mooney’s group is part of the Native American Church, which has an estimated half million members in 24 states. Members of the church can use peyote for religious purposes, under federal law. The Oklevueha branch members consume marijuana as a sacrament and Eucharist in their religious ceremonies and rites, according to the lawsuit.
A Justice Department spokesman said the agency was reviewing the court’s decision.