HIGH COURT TO CONSIDER WHETHER POT CAN BE PART OF RELIGION

PHOENIX - The Arizona Supreme Court has agreed to decide whether
there is a religious right to possess marijuana.

Without comment, the justices granted to hear Daniel Hardesty's
argument that the First Amendment protections of free exercise of
religion entitle him to use marijuana as a "sacrament" of his
church. Both a trial judge and the state Court of Appeals rejected
those arguments.

If the high court decides otherwise, it would be the first time in
Arizona that judges have concluded there is a legal defense for
those who use marijuana.

Hardesty was arrested in 2005 after being stopped by police while
driving in Yavapai County.

At trial, Hardesty testified he had been a practicing member of the
Church of Cognizance since 1993. A church official said that the
religion, founded in 1991, is based on "neo-Zoroastrian tenets" and
that marijuana provides a connection to the divine mind and
spiritual enlightenment.

Prosecutors never challenged the status of the church but convinced
the judge to exclude the religious freedom claim.

Hardesty was convicted and placed on probation for 18 months.

The appellate court, in rejecting Hardesty's argument, concluded
that while he has an absolute right to believe what he wants, the
First Amendment does not give him a right to perform or abstain from
certain acts for religious reasons.

Appellate Judge Sheldon Weisberg, who wrote that ruling, also said
the Legislature has a legitimate interest in the outright ban on the
possession and use of marijuana. Weisberg said courts are not in a
position to second-guess those laws.

Hardesty's attorney Daniel DeRienzo said there is no evidence that
allowing church members to use marijuana would result in serious
harm. He called that "the Reefer Madness argument," referring to a
1936 propaganda film that showed high schoolers lured
into marijuana use engaging in manslaughter, suicide, rape and a
descent into madness.

There is a precedent for what Hardesty wants.

Arizona courts have allowed the possession of peyote for religious
use by the Native American Church. But Weisberg said that is
different, as prosecutors in that case never showed that peyote was
addictive or being used in quantities harmful to the health of the
participants.

Weisberg said the long and continuous use of peyote by a "discreet
and well-defined group" makes it different than drug use claims by
other religions.