My effort to allow religious use of marijuana extracts in Iowa

Carl Olsen is the founder of Iowans for Medical Marijuana.

In October, I asked the Polk County District Court to declare religious use as a qualifying condition for participation in the state’s marijuana extract program, Iowa Code Chapter 124E.

On November 23, 2021, the state filed a Motion to Dismiss my Petition for Declaratory Judgment. The state said it had sovereign immunity and cannot be sued.

On November 24, 2021, I filed an application with the Iowa Department of Public Health (IDPH) for access to the program.

The state made three other arguments in its motion to dismiss:

  1. Marijuana is not just another controlled substances in the Iowa Uniform Controlled Substances Act (IUCSA); one of many substances in “Class 1”, subclass 4, “Hallucinogenic substances”. Iowa Code 124.204 Schedule I, § (4) Hallucinogenic substances, ¶ (m) marijuana.
     
  2. The exception for religious use of peyote in the IUCSA does not discriminate against religious use of marijuana.  Iowa Code 124.204 Schedule I, § (4) Hallucinogenic substances, ¶ (p) peyote.  Peyote is exempt for religious use; Iowa Code 124.204(8).
     
  3. Iowa Code Chapter 124E authorizing the unlawful, non-prescription use of marijuana in violation of federal drug law does not create a significant exception to the IUCSA.  See 21 U.S.C. 848 says this is a significant federal crime.

Admittedly, courts have consistently found differences in the popularity of controlled substances. Popularity is considered to create a greater risk of diversion and, therefore, a greater risk to public health.

As far as popularity goes, marijuana is definitely far more popular than anything else in its classification (Schedule I) or its subclass (hallucinogens). Public opinion polling in Iowa shows 54 percent of Iowans would legalize marijuana and 78 percent support expanding medical use.  National polling runs higher with 60 percent in favor of legalization and 91 percent in favor of medical use.

But Iowa Code Chapter 124E is specifically tailored to address both risk of diversion and risk to public health.

When considering religious use of another controlled substances, hoasca, Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 434 (2006), the U.S. Supreme Court said: “In other words, if any Schedule I substance is in fact always highly dangerous in any amount no matter how used, what about the unique relationship with the Tribes justifies allowing their use of peyote? Nothing about the unique political status of the Tribes makes their members immune from the health risks the Government asserts accompany any use of a Schedule I substance, nor insulates the Schedule I substance the Tribes use in religious exercise from the alleged risk of diversion.”

Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 434-435 (2006): “The peyote exception, however, has been in place since the outset of the Controlled Substances Act, and there is no evidence that it has ‘undercut’ the Government’s ability to enforce the ban on peyote use by non-Indians.”

Iowa Code Chapter 124E has not undercut the state’s ability to enforce the state’s ban on marijuana and would easily qualify for a federal exemption based on the U.S. Supreme Court’s analysis of diversion and health in O Centro. There have been no reports of diversion from Iowa’s marijuana extract program and no reports of adverse health effects from participants.

Federal drug law authorizes exemptions.

Iowa Code Chapter 124E is already an exception to Iowa Code Chapter 124.  Iowa Code § 124.401(5). Federal exemption is the missing piece. Without exemption, federal drug law provides severe punishments.

On September 4, 2020, the Iowa Department of Public Health wrote: “The Department has determined that it will move forward with seeking an exception for cannabis as a schedule I substance in Iowa from the DEA, in attempt to minimize conflict between State and Federal Law.”  Program Update, September 4, 2020  But the department hasn’t moved forward.

Iowa’s religious exemption for peyote shows the IUCSA is not neutral toward religion if no one else can apply.  Olsen v. DEA, 878 F.2d 1458, 1461 (D.C. Cir. 1989). Justice Ginsburg wrote: “The DEA’s contention that Congress directed the Administrator automatically to turn away all churches save one opens a grave constitutional question.  A statutory exemption authorized for one church alone, and for which no other church may qualify, presents a ’denominational preference‘ not easily reconciled with the establishment clause.”

The state says religious exemptions for marijuana would lead to religious exemptions for hydrocodone.  If the state were to authorize unlawful, federally illegal drug sales of non-prescription hydrocodone, then I suppose someone would make a religious claim for it. The appropriate response would be; (1) to determine whether the religious claim is sincere; and (2) then to determine whether appropriate safeguards are in place to ensure low risk of diversion and low risk to health. Gonzales v. O Centro, at 436: “We had ‘no cause to believe’ that the compelling interest test ‘would not be applied in an appropriately balanced way’ to specific claims for exemptions as they arose.  Id., at 722.  Nothing in our opinion suggested that courts were not up to the task.”

Forty-seven states have authorized the unlawful, non-prescription use of marijuana products. Not one state has authorized the unlawful, non-prescription use of hydrocodone. The state is showing extreme prejudice here. What Iowa should be doing is applying for a federal exemption so the fragile class of people this law was enacted to protect will not be forced into a choice between suffering or self-incrimination as federal criminals. Give me access to the program and I’ll make sure it receives federal protection.

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