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Religious Marijuana Lawsuit Gets New Life in 9th Cir.

By Andrew Chow, Esq. on April 11, 2012 7:02 AM

A Native American group will get its day in court, as the Ninth Circuit has revived part of a lawsuit that seeks permission to smoke marijuana for religious purposes.

The Oklevueha Native American Church of Hawaii sued the Justice Department and Drug Enforcement Administration after agents seized a $7,000 shipment of marijuana addressed to the church's founder in 2009, The Wall Street Journal reports.

The church's lawsuit demanded the return of, or reimbursement for, the seized pot, which was intended for use during religious ceremonies. The church also sought a declaratory judgment affirming the legality of its members' religious marijuana use.

The federal Controlled Substances Act allows the religious use of peyote, which church members also use -- but it does not create an exemption for religious marijuana. That's why the church wants a court to declare religious pot use is OK, to protect its members from possible legal action.

A lower court dismissed the church's religious marijuana lawsuit, and the church appealed. On Monday, the Ninth Circuit revived the suit, but only on one issue: the declaratory judgment.

Because church members were never prosecuted for their religious pot use, the lower court had held there was no controversy for a court to consider.

But the Ninth Circuit disagreed. "The seizure of Plaintiffs' marijuana that has already occurred creates a justiciable case and controversy about plaintiffs' constitutional and statutory entitlement to use marijuana for religious purposes," the court's opinion states, according to the Journal.

The Ninth Circuit's opinion sends the case back to the lower court, which will now reconsider the declaratory judgment issue.

As for the church's demand for the return of their religious marijuana, the Ninth Circuit seemed to agree with the lower court: The pot was destroyed, so it can't be returned. Reimbursement is also not an option under federal law, the lower court held.

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