03 December 2020

Colorado Does Not Recognize A Marijuana Religious Exemption

The Colorado Court of Appeals rejected a constitutional freedom of religion defense, under the federal and state constitutions of Colorado, from a state criminal marijuana offense in People v. Torline, 2020COA160 (November 12, 2020). The official summary of the case notes that:
The defendant, an ordained minister in a cannabis ministry, challenges his convictions for growing and dispensing marijuana on the ground that he uses marijuana for religious purposes. A division of the court of appeals concludes that applying Colorado’s law criminalizing the possession and growing of marijuana to a person who conducts such activities for religious reasons does not violate the person’s rights under the Free Exercise Clauses of the United States and Colorado Constitutions. Therefore, the division affirms the defendant’s convictions.

The case also contains a nice, compact summary of eleven other jurisdictions (including the U.S. Supreme Court) that have reached the same conclusion on what was a question of first impression in Colorado. 

The pertinent facts were as follows:

¶ 2 In July 2016, Mesa County police officers noticed Torline and another person walking in and out of a garage and loading trash bags into the bed of a pickup truck, which the other person then drove away. Officers stopped the truck for a traffic infraction. A police dog alerted to the presence of drugs, and police discovered that the trash bags contained marijuana. 

¶ 3 Officers contacted Torline, who said there was a marijuana growing operation inside the garage. Torline consented to a search and explained his operation. He estimated that he was growing approximately one hundred and fifteen plants, and that he processed about ten plants per month with a yield of about two ounces per plant.

¶ 4 The prosecution charged Torline with cultivation of marijuana, thirty or more plants, and possession with intent to manufacture or distribute marijuana or marijuana concentrate, more than five pounds but not more than fifty pounds. See § 18-18-406(2)(b)(I), (2)(b)(III)(B), (3)(a)(I), C.R.S. 2016.[1] Torline’s counsel expressed his wish to raise an “affirmative defense” to the charges on the ground that section 18-18-406 violates Torline’s constitutional rights because he engaged in the charged conduct pursuant to a sincerely held religious belief. Defense counsel also asked the trial court to instruct the jury on that defense. 

¶ 5 In support, Torline’s attorney argued the following. Torline is an ordained minister with the Hawaii Cannabis Ministry, an organization professing the belief that the cannabis plant is a gift from God and can aid in the experience of spirituality. The ministry incorporates cannabis into its religious practices, including its prayers, rituals, and sacraments. It has registered members, a hierarchy, a system of beliefs, and holy days. As a “ganja minister,” Torline provides marijuana to members of his congregation, which numbers approximately thirty people in Grand Junction.
[1] The statute has since been amended; we cite the provisions in effect at the time of Torline’s charged conduct. 
The Court relied heavily on Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 876-77 (1990). The core of the analysis was as follows:
¶ 13 Torline acknowledges that sections 18-18-406(3)(a) and 18-18- 406(2)(b) are neutral laws of general applicability. Still, he maintains that applying them to his charged conduct violates his rights under the Free Exercise Clause because the laws “prohibit conduct that was undertaken for religious reasons.” He also asserts that less restrictive means exist to enforce “the government’s compelling interest in marijuana laws.” (He does not, however, identify any other means.) Torline is mistaken. 

¶ 14 The Free Exercise Clause proscribes laws that “single out the religious for disfavored treatment.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, ___, 137 S. Ct. 2012, 2020 (2017). The Free Exercise Clause, however, does not excuse a person from “compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Smith, 494 U.S. at 878- 79. In other words, while the protection for religious belief and the profession of that belief is absolute, the protection for religious conduct is not. Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940); Sanderson v. People, 12 P.3d 851, 853 (Colo. App. 2000). 

¶ 15 To illustrate, in Smith, 494 U.S. at 874, two men were denied unemployment benefits after their employment was terminated for using peyote, a controlled substance. They challenged that decision on the ground that they had ingested the peyote for sacramental purposes at a Native American church to which they belonged. Id. Like Torline, they contended that “their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons.” Id. at 878. 

¶ 16 The Supreme Court rejected that argument, holding that neutral laws of general applicability do not offend the Free Exercise Clause even when they have an incidental effect on religious practices. Id.; see also Sanderson, 12 P.3d at 853 (recognizing this holding of Smith). Hence, the right of free exercise does not relieve a person from complying with a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Smith, 494 U.S. at 879 (citation omitted). The Court reasoned that to make a person’s obligation to obey such a law “contingent upon the law’s coincidence with his religious beliefs . . . permit[s] him, by virtue of his beliefs, ‘to become a law unto himself.’” Id. at 885 (citation omitted). 

¶ 17 Section 18-18-406 is similar to the law challenged in Smith. Because, as in Smith, the statute is a neutral law of general applicability, we have no trouble rejecting Torline’s free exercise challenge. The statute advances the legitimate interests of public health and safety and is rationally related to that end. See Colo. Const. art. XVIII, § 16(1)(b) (finding that regulation of marijuana is in the interest of public health and safety); Town of Dillon v. Yacht Club Condos. Home Owners Ass’n, 2014 CO 37, ¶ 31 (noting a legitimate interest in public health and safety). Therefore, the availability of less burdensome alternatives, if any exist, is irrelevant. See Yacht Club Condos., ¶ 31. 

¶ 18 Moreover, although there can be circumstances where a facially neutral law violates the Free Exercise Clause, Torline does not allege or identify any such circumstances surrounding section 18-18-406. Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 536-40 (1993) (holding that a facially neutral law banning animal sacrifice was unconstitutional because 9 its exceptions for secular conduct and the surrounding circumstances showed that the city adopted the ordinance because of animus toward the SanterĂ­a church). He does not argue that the legislature enacted section 18-18-406 with the object of restricting religious practices. Nor are we aware of circumstances suggesting that the legislation was motivated by religious animus. 

¶ 19 As a result, we join the many jurisdictions that have rejected cannabis ministries’ members’ free-exercise challenges to marijuana convictions. See Guam v. Guerrero, 290 F.3d 1210, 1216 (9th Cir. 2002); United States v. Meyers, 95 F.3d 1475, 1481 (10th Cir. 1996); Hutchinson v. Maine, 641 F. Supp. 2d 40, 47 (D. Me. 2009); Rheuark v. State, 601 So. 2d 135, 139 (Ala. Crim. App. 1992); People v. Trippet, 66 Cal. Rptr. 2d 559, 565 (Ct. App. 1997); Nesbeth v. United States, 870 A.2d 1193, 1198 (D.C. 2005); State v. Sunderland, 168 P.3d 526, 534 (Haw. 2007); State v. Fluewelling, 249 P.3d 375, 379 (Idaho 2011); State v. Venet, 797 P.2d 1055, 1057 (Or. Ct. App. 1990); Burton v. State, 194 S.W.3d 686, 688 (Tex. App. 2006). 

¶ 20 We also note that Colorado is friendlier than most states to marijuana use. Unlike the absolute prohibition in Smith, the statutes under which Torline was convicted are subject to article XVIII, section 16 of the Colorado Constitution, which permits a person to possess, grow, and use marijuana in small amounts for personal use and authorizes a person to conduct larger-scale activities with a license. The Free Exercise Clause does not require a further exception for all religiously motivated uses of marijuana. See Smith, 494 U.S. at 890 (noting that, although states may create statutory exemptions for religious uses of controlled substances, they are not required to do so).

The results is not terribly surprising, particularly because, unlike many of the other precedents relied upon by the Colorado Court of Appeals, the defendant wasn't prohibited from exercising his religion by growing and using marijuana entirely. Instead, he was merely prevented from growing as many plants as he did in disregard of state regulations regarding how that may be done to which he claimed no specific religious objection as the Torline court points out at ¶ 16 above.

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