Will Indiana's new religious freedom law open up the state to a pot-smoking church?

Will Indiana's new religious freedom law open up the state to a pot-smoking church?

In the last week, the Indianapolis Star became the latest major news organization to pose that question (in a story picked up nationally by sister Gannett paper USA Today):

The Star reports:

The newly formed First Church of Cannabis appears to some observers as an excuse for potheads to get together and light up.
But the "grand poobah" of what followers describe as a new Indiana religion insists there is sanctity in the self-described ministry.
"This is what I live by, and I have more faith in this religion than any other," said Bill Levin, the founder who plans to hold the group's first official service on July 1 — the day Indiana's new Religious Freedom Restoration Act takes effect.
"This is my lifestyle. This is millions of people's lifestyle."
Levin, whose church titles include grand poobah and minister of love, is daring police to arrest him and his followers in what will likely be one of the first tests of the state's new RFRA protections.

Way back in late March, the story received other prominent attention:

But can someone really get away with starting a new church as a detour around Indiana's law against marijuana smoking?

For some, the answer is clear:

But others argue otherwise, including a source quoted by the Washington Post:

Indiana attorney and political commentator Abdul-Hakim Shabazz wrote that Indiana legislators may have put the state in a position to acknowledge those who profess to smoke pot as a religious sacrament.
“You see, if I would argue that under RFRA, as long as you can show that reefer is part of your religious practices, you got a pretty good shot of getting off scott-free,” he wrote. “Remember, under RFRA, the state has to articulate a compelling interest in preventing you from smoking pot. I argue they can’t.”

In the latest media report, the Star quotes Robert A. Katz, an Indiana University law professor skeptical of the First Church of Cannabis' chances of winning in court:

Katz, the IU law professor, said the First Church of Cannabis will have to prove it's a sincere religion, not just an excuse for users to get together and smoke.
Katz doubts Levin will be able to convince a judge that the religion is true.
"If the past is any guide to experience, he's not going to get very far," Katz said.
"That's mainly because these people, while they are nice and delightful, are from a legal perspective that I think most judges would view them as goofballs."

But here's a key missing point from the Star's report: history.

To be more specific: To what extent can — and will — a court consider a church's history in determining whether its practices fall under the protections of the Religious Freedom Restoration Act?

Give Indianapolis television station WTHR credit for addressing that question in the video report embedded above.

Here's what Indiana University law professor David Orentlicher told WTHR:

The court's going to say, "There's no established religion. This church didn't exist until a couple of months ago. And it's all about marijuana smoking."

Will Indiana's new religious freedom law open up the state to a pot-smoking church? Yes, the question makes for intriguing headlines. But no, the newly formed First Church of Cannabis seems unlikely to win in court.

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