Calif. man has no religious-liberty right to sell pot

Friday, December 5, 2008

A man once called “the Hollywood Wizard of Weed” by High Times magazine has no constitutional religious-liberty right to sell marijuana, a California appeals court ruled recently.


Craig X. Rubin was arrested and convicted by a jury under state law of selling marijuana and possessing marijuana for sale after an undercover police officer purchased quantities of what Rubin marketed as “Purple Power” at his “church,” called Temple 420.


In November 2006, officers executed a search warrant and found more than nine pounds of marijuana, digital scales, 150 bongs and pipes, jars of marijuana and other related paraphernalia. Rubin claimed at trial that he was an ordained Universal Life minister who started Temple 420 as an online ministry. At trial, the judge refused to allow Rubin to reference the First Amendment or the federal law known as the Religious Freedom Restoration Act of 1993. RFRA bars government from substantially burdening an individual’s sincere religious beliefs unless the government is furthering a compelling government interest.


The trial court determined that RFRA and the First Amendment would have little probative value and could mislead the jury. On appeal, the Court of Appeals of California, 2nd Appellate District, agreed in People v. Rubin. The California appeals court noted in its Dec. 1 opinion that the U.S. Supreme Court had ruled in City of Boerne v. Flores (1997) that RFRA was unconstitutional as applied to the states. “In 1997, the United States Supreme Court held that Congress exceeded the scope of its powers in providing that RFRA applied to state laws,” the California court said. “Even if RFRA applied, the statute would have only protected the use of marijuana for religious purposes, not its sale.”


The state appeals court also relied on the Supreme Court’s 1990 decision in Employment Division v. Smith, in which the high court ruled that the First Amendment did not prohibit a state from enforcing generally applicable criminal drug laws even as to claimed religious usage of drugs. “Appellant (Rubin) was prosecuted for selling and possessing marijuana for sale, not its religious use,” the California court wrote.


Rubin also contended that the trial court erred in rejecting his state constitutional defense. A state is free to interpret its own constitution to provide greater protection of individual liberties than the U.S. Constitution does. However, once again precedent did not look kindly upon Rubin’s assertions. The California appeals court noted that the California Supreme Court “has held that our state constitution protects the free exercise of religion, not peripheral activities.”


The appeals court concluded: “It is sufficient to observe that appellant’s theory is at variance with not only constitutional law, it is at variance with common sense.”

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