Washington court denies visitation rights to pot-using parent

Tuesday, February 24, 1998

The only way a Washington state father can gain visitation rights to his son is to alter his Rastafarian religious practices, specifically smoking marijuana, a state appellate court has ruled.

In 1996, a lower court in Washington granted full custody of the boy to his mother, Dianna Fasano, with visitation to his father, Michael Waters, on the condition he cease daily use of marijuana.

Shortly after the lower court’s ruling, Waters filed an appeal claiming the order subverted his First Amendment right to the free exercise of religion and violated the state’s constitution, which provides even greater protection for religious practices. Waters told the lower court that his use of the illegal drug was influenced by Rastafarianism, a Caribbean religion that encourages the smoking of marijuana.

The appellate court, however, agreed recently with the lower court’s visitation order noting that the state has the power to regulate marijuana use even if such regulation impairs a person’s practice of religion.

“Because we find the First Amendment does not excuse Mr. Waters from complying with Washington’s marijuana prohibition, the trial court appropriately considered the illegal nature of Water’s marijuana use in relation to his son’s general welfare,” Judge Walter E. Webster wrote.

Webster’s decision relied, in part, on the U.S. Supreme Court’s 1990 ruling in Employment Div., v. Smith. The Smith case involved a situation where some Native Americans were denied Oregon unemployment benefits after being fired for using peyote, a hallucinogenic drug they maintained was central to the practice of their religion.

The Supreme Court, however, ruled that any burdens to religious practices resulting from Oregon’s drug laws, which applied to everyone, do not violate the free exercise of religion.

The New American Church Association, a California-based nonprofit organization, says federal and state courts should grant a “sacramental marijuana exemption.”

“When spiritually sensitive people are healed with the help of a powerful herbal medicine, like pot or peyote, they quite naturally want to give thanks to something—the mysterious power that sent the plant, or just the spirit of the plant itself,” said Guy Mount, executive director of NACA. “Therefore, we need a religious exemption for sacramental use of marijuana which will establish our right to good medicine and protect us from persecution.”