united-states constitutional-law religion medical-marijuana kentucky
Question about Freedom of Religion in Kentucky’s State Constitution
<p>The Bill of Rights, Section 5, of Kentucky’s Constitution says:</p>

<blockquote>
  <p>”and the civil rights, <strong>privileges</strong> or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. <strong>No human authority shall, in any case whatever, control or interfere with the rights of conscience</strong>.”</p>
</blockquote>

<p>I personally and sincerely believe when my particular God says:</p>

<blockquote>
  <p>”Behold, I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat.” Genesis 1:29</p>
</blockquote>

<p>...that means I have the God-given <em>right</em> to grow and consume any plant that I wish (ex. Cannabis). Is this true, or is growing and consuming plants not considered a human right?</p>

<p>If you want to sue them, you should start with the US Constitution (as a model), in particular the Free Exercise clause: "Congress shall make no law respecting an establishment of religion, or <em>prohibiting the free exercise thereof</em>". The question is whether one could overturn homicide statutes on the grounds that an individual holds to traditional beliefs that a human sacrifice is required every few months. Or, is it an unconstitutional prohibition of the Mormon belief in polygamy to outlaw polygamy, see <a href="https://supreme.justia.com/cases/federal/us/98/145/case.html" rel="nofollow noreferrer">Reynolds v. US</a>, 98 U.S. 145. The court held that</p>

<blockquote>
  <p>the statute immediately under consideration is within the legislative
  power of Congress. It is constitutional and valid as prescribing a
  rule of action for all those residing in the Territories, and in
  places over which the United States have exclusive control. This being
  so, the only question which remains is whether <em>those who make polygamy
  a part of their religion are excepted from the operation of the
  statute.</em> If they are, then those who do not make polygamy a part of
  their religious belief may be found guilty and punished, while those
  who do, must be acquitted and go free. This would be introducing a new
  element into criminal law. Laws are made for the government of
  actions, and while they cannot interfere with mere religious belief
  and opinions, they may with practices. Suppose one believed that human
  sacrifices were a necessary part of religious worship; would it be
  seriously contended that the civil government under which he lived
  could not interfere to prevent a sacrifice?</p>
</blockquote>

<p>Observe that a religious exception to the law would be unconstitutional, as establishing religion as a means of gaining extra rights. The reductio ad absurdum of the unfettered religious-belief excuse is:</p>

<blockquote>
  <p>Can a man excuse his practices to the contrary
  because of his religious belief? To permit this would be to make the
  professed doctrines of religious belief superior to the law of the
  land, and, in effect, to permit every citizen to become a law unto
  himself. Government could exist only in name under such circumstances.</p>
</blockquote>

<p>The "wall of separation" was modified more recently in the 60's and 70's. In <a href="https://supreme.justia.com/cases/federal/us/406/205/" rel="nofollow noreferrer">Wisconsin v. Yoder</a>, 406 U.S. 205, the issue was compulsory education imposed on Amish children, where higher education was held to be antithetical to the Amish doctrine of a simple life. The court rules that</p>

<blockquote>
  <p>The State's interest in universal education is not totally free from a
  balancing process when it impinges on other fundamental rights, such
  as those specifically protected by the Free Exercise Clause of the
  First Amendment and the traditional interest of parents with respect
  to the religious upbringing of their children</p>
</blockquote>

<p>and especially</p>

<blockquote>
  <p>it was incumbent on the State to show with more particularity how its
  admittedly strong interest in compulsory education would be adversely
  affected by granting an exemption to the Amish</p>
</blockquote>

<p>There were additional holdings pertaining to the legitimacy of the purported belief (that is, is there really such a doctrine – clearly yes). You might have better luck purporting to be a Rastafarian or Hindu, so I will set aside that complication.</p>

<p>The core question will be whether the government has a "compelling interest" in the restriction, also whether the restriction is narrowly tailored. In the case of <a href="https://supreme.justia.com/cases/federal/us/374/398/" rel="nofollow noreferrer">Sherbert v. Verner</a>, 374 U.S. 398, Sherbert's employer required her to work 6 days a week (a change in policy during her time of employment), which she refused to do (as a member of SDA) and was fired. Sherbert was denied unemployment benefits because the firing was for cause. The court ruled that</p>

<blockquote>
  <p>Disqualification of appellant for unemployment compensation benefits,
  solely because of her refusal to accept employment in which she would
  have to work on Saturday contrary to her religious belief, imposes an
  unconstitutional burden on the free exercise of her religion.</p>
</blockquote>

<p>and</p>

<blockquote>
  <p>There is no compelling state interest enforced in the eligibility
  provisions of the South Carolina statute which justifies the
  substantial infringement of appellant's right to religious freedom
  under the First Amendment.</p>
</blockquote>

<p><a href="https://supreme.justia.com/cases/federal/us/494/872/case.html" rel="nofollow noreferrer">Employment Div. v. Smith</a>, 494 U.S. 872 brings us to the neighborhood that you are interested in living in. The relevant detail is that Smith (and Black) were fired for ingesting peyote in connection with a ceremony at a Native American church. The court ruled that</p>

<blockquote>
  <p>The Free Exercise Clause permits the State to prohibit sacramental
  peyote use, and thus to deny unemployment benefits to persons
  discharged for such use</p>
</blockquote>

<p>To be more precise,</p>

<blockquote>
  <p>Although a State would be "prohibiting the free exercise [of
  religion]" in violation of the Clause if it sought to ban the
  performance of (or abstention from) physical acts <em>solely because of
  their religious motivation</em>, the Clause does not relieve an individual
  of the obligation to comply with a <em>law that incidentally forbids (or
  requires) the performance of an act</em> that his religious belief
  requires (or forbids) if the law is not specifically directed to
  religious practice and is otherwise constitutional as applied to those
  who engage in the specified act for nonreligious reasons.</p>
</blockquote>

<p>We can contrast this with <a href="https://supreme.justia.com/cases/federal/us/508/520/" rel="nofollow noreferrer">Lukumi v. Hialeah</a>, 508 U.S. 520. The city of Hialeh passed an ordinance forbidding animal sacrifice, specifically to suppress the Santeria church. The Supreme Court said, no, you may not do that:</p>

<blockquote>
  <p>Under the Free Exercise Clause, a law that burdens religious practice
  need not be justified by a compelling governmental interest if it is
  neutral and of general applicability. However, where such a law is not
  neutral or not of general application, it must undergo the most
  rigorous of scrutiny: It must be justified by a compelling
  governmental interest and must be narrowly tailored to advance that
  interest. Neutrality and general applicability are interrelated, and
  failure to satisfy one requirement is a likely indication that the
  other has not been satisfied</p>
</blockquote>

<p>...</p>

<blockquote>
  <p>The ordinances' texts and operation demonstrate that they are not
  neutral, but have as their object the suppression of Santeria's
  central element, animal sacrifice.</p>
</blockquote>

<p>At least so far, restrictions on drug use have not been overruled as conflicting the the Free Exercise clause, although if e.g. Washington state were to prohibit Mormons from purchasing marijuana (where others can), that would surely be struck down as unconstitutional.</p>

<p>There are a number of other relevant developments, for example Congress passed the <a href="https://www.gpo.gov/fdsys/pkg/STATUTE-107/pdf/STATUTE-107-Pg1488.pdf" rel="nofollow noreferrer">Religious Freedom Restoration Act</a> in 1993, in reaction to Employment v. Smith, and that law statutorily mandating that strict scrutiny be applied to the question of whether a law violates the 1st: but this was ruled unconstitutional as applied to the states in <a href="https://supreme.justia.com/cases/federal/us/521/507/" rel="nofollow noreferrer">City of Boerne v. Flores</a>, 521 U.S. 507. Then in <a href="https://supreme.justia.com/cases/federal/us/546/418/" rel="nofollow noreferrer">Gonzales v. O Centro</a>, 546 U.S. 418 (Schedule 1 tea for religious purposes), the court ruled that</p>

<blockquote>
  <p>The courts below did not err in determining that the Government failed
  to demonstrate, at the preliminary injunction stage, a compelling
  interest in barring the UDV’s sacramental use of hoasca</p>
</blockquote>

<p>which is to say, we have a case where the federal government was prohibited from enforcing a drug prohibition involving religion.</p>

<p>A challenge of the type which you have in mind will surely also involve the question of the legitimacy of the purported religion, where <a href="https://en.wikipedia.org/wiki/Uni%C3%A3o_do_Vegetal" rel="nofollow noreferrer">UDV</a> was founded in 1961 whereas one might suspect that your claimed religion is a pretext to smoke pot (hence the Rastafarian suggestion). The WWII era conscious objector cases held that the CO exception to military service is not limited to governmentally-approved religions, but as a general rule, the courts have not ruled that you can simply claim to have a religious belief which is being infringed on and thereby be excempt from the law. The basic issue would be whether either the US government of the state of Kentucky have a compelling interest in preventing the use of marijuana. The <a href="https://law.justia.com/cases/kentucky/supreme-court/1996/95-sc-458-t-1.html" rel="nofollow noreferrer">Kentucky Supreme Court</a> does indeed recognize the concept of "strict scrutiny", so the case is not doomed from the start. </p>
