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Legal Loophole for Religious Psych Use?


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#1 Ramble

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Posted 13 October 2016 - 12:05 AM

All right so I'm not sure where to post this, or if this kind of post is allowed if it's not please let me know I definitely don't want to rock the boat in anyway. But AnyWho I stumbled across this a little while ago and thought it might be useful for those of us who like to pursue Mycology as a hobby. There's an organization called the oratory of mystical sacraments that grants members the legal right to grow things that may not be legal.
Here's something taken directly from their website:

"Our members may legally POSSESS and UTILIZE healing and empowering sacraments such as Cannabis, Peyote, San Pedro, Ayahuasca / DMT, Psilocybe Mushrooms, Coca, Iboga, etc.. Members may legally PRODUCE / GROW sacraments for their own religious use but not for distributing to others.

One does not need to be Native American to register for membership. We are a Native American Church in the sense that we practice and build upon Indigenous traditions, and we are an authorized and blessed branch of Oklevueha Native American Church."

So yeah I just thought I would share that little tidbit of info I stumbled upon.

And again if this sort of post is not allowed please let me know and remove it.

-Ramble
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#2 Sidestreet

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Posted 13 October 2016 - 05:05 AM

It is definitely allowed.  I think you touched on an interesting subject.  I don't have time to look into it right now, but I know that there is a very narrow exception in the law for certain groups who use otherwise scheduled substances.

 

Again, the exception is very narrow and I am skeptical that just anyone would be able to join a church and start using these substances legally.  I'll try to come back with more soon.

 

Also, I'm going to move this thread to our God & Country forum, which is a good place to discuss both religion and law.  :)  We can change the title after it develops a little bit, too.


Edited by Sidestreet, 13 October 2016 - 05:15 AM.

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#3 stmhunter

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Posted 13 October 2016 - 06:57 AM

my wife and i did our dna with ancestry. turns out i'm 21% native american, apache according to my moms side of the family. my wife is 53% not sure what tribe thought.so our kids are about 36%.


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#4 catattack

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Posted 13 October 2016 - 08:35 AM

https://oratoryofmys...hip/?logged=out

 

This is from the above link:

 

 
 
Oblates (Oblati) are individuals normally living in general society, who, while not professed monks or nuns, have individually affiliated themselves with a religious organization of their choice. They make a formal promise to follow the ethics of their religious order in their private life as closely as their individual circumstances and prior commitments permit. In the later Middle Ages, oblatus, confrater, and donatus became interchangeable titles, given to any one who, for his or her generosity or special service to the religious organization, received the privilege of lay membership, with a share in the prayers and good works of the ministers. The generosity one provides to OMS in the form of monetary contributions, volunteer work or contributing one’s services and skills allows one to share in the prayers and good works of the OMS ministers.

OMS members shape their lives by living the wisdom of the Holy Spirit as provided by sacraments such as, but not limited to, the Holy Manna, the Tree of Knowledge, and the Tree of Life. Members agree that if they obligate the sacraments to provide them with profound results such as Theoria or Visio Beatifica than they will strive to align with the wisdom provided to them.

OMS provides online courses freely to registered members. The educational material and tests in these courses will give you a better understanding of these sacraments. The test questions emphasize the key points of the courses and your personal responses to the questions allow us to confirm your formal commitment as an OMS Member / Oblate.

 

WHY BEING A MEMBER OF OMS of ONAC WILL BENEFIT YOU It Provides You A Means To Receive Your Constitutional and God Given Human Rights In  

Attending and accessing Spiritually Empowering and Healing Ceremonies and Sacraments – especially NAC ceremonies and sacraments such as Peyote, Acacia, Cannabis, Ayahuasca, Psilocybe Mushrooms, Iboga, Huachuma, etc. that are otherwise illegal for Non-Members to partake and or be in possession of.

OMS Member Card Holders are guaranteed United States Constitutional Rights and Protections as the First Amendment of the Bill of Rights clearly states and as the Religious Land Use and Institutionalized Persons Act of 2000 outlines these rights and protections in detail, even if one is NOT of American Native Heritage.

Our members may legally POSSESS and UTILIZE healing and empowering sacraments such as Cannabis, Peyote, San Pedro, Ayahuasca / DMT, Psilocybe Mushrooms, Coca, Iboga, etc..  Members may legally PRODUCE / GROW sacraments for their own religious use but not for distributing to others.

One does not need to be Native American to register for membership. We are a Native American Church in the sense that we practice and build upon Indigenous traditions, and we are an authorized and blessed branch of Oklevueha Native American Church.

It Provides Connections With –

Federally recognized Native American Churches that are legally authorized to practice Earth Based Indigenous American Native Spiritually Empowering and Healing Ceremonies on or off Indian Reservations and in the United States Navy.

OMS NAC Medicine People (Minister, Curandera, Clergy, Doctor, Elder, Mara’akame, Reverend, Roadman, Sacred Prayer Pipe Carrier, Water Pourer, Shaman, Counselor, etc.) that will assist you in enhancing your spiritual callings.

An “Oklevueha Native American Church of OMS Membership Card” serves to protect the religious freedom which Native Americans and in fact all Americans have to practice the traditional and biblical traditions of healing, Chirothesia, “Laying on of Hands” and other spirit and energy based practices common to Indigenous peoples since the dawn of human civilization. With this in mind, three United States Higher Courts’ unanimous decisions (the Federal 10th Circuit Court of Appeals, State of Utah Supreme Court and the United States Supreme Court) express very clearly and concisely that:

An “Oklevueha Native American Church Membership of OMS Card” serves to protect the possession and utilization of sacraments which the federal government and a majority of state governments still are unaware of the unique constitutional rights of the Oklevueha Native American Church. With this in mind, three United States Higher Courts’ unanimous decisions (the Federal 10th Circuit Court of Appeals, State of Utah Supreme Court and the United States Supreme Court) express very clearly and concisely that:

Any and all government agencies of the United States have no legal authority to influence any church with its ideology (by-laws) or limit the participation in a church’s religious practices based on race (American Native) or political affiliation (Federally Recognized Tribes);

Cannot deny access to American Native Indigenous Sacred Ceremonial Grounds and / or use of any and all plants, minerals, cactus, herbs, mushrooms, mixtures, extracts, or synthesized sacraments, etc.

As an example and as a matter of law, the United States governments are to protect these constitutional rights. These unanimous rulings state very clearly that all members of ‘any’ federally recognized tribe and/or ‘members’ of a bona fide Native American Church have the constitutional rights and protection to worship with any and all earth-based Sacraments.

It is ONAC’s opinion that a membership contribution is a relatively insignificant sacrifice compared to what our church leaders have endured to enable you to benefit from their sacrifices to receive sacred sacraments, ceremonies, and protection from prosecution for possessing, utilizing, or growing the sacraments you need for your well-being. The benefits and magnitude of what being a member offers far outweighs the membership contribution.  

WE INVITE  YOU TO BECOME A MEMBER OF ORATORY OF MYSTICAL SACRAMENTS A REGISTERED, AUTHORIZED, AND BLESSED BRANCH OF OKLEVUEHA NATIVE AMERICAN CHURCH.

ONCE YOU REGISTER AS A MEMBER, AND COMPLETE THE SACRAMENT COURSES, YOU MAY ACCESS CHURCH SACRAMENTS TO UTILIZE IN YOUR OWN RELIGIOUS PRACTICE AND YOU WILL BE ELIGIBLE TO PARTICIPATE IN OUR RETREATS & CEREMONIES HELD NEAR SANTA FE, NM.  WE ONLY PROVIDE SERVICES TO REGISTERED MEMBERS THAT HAVE SUCCESSFULLY COMPLETED THE SACRAMENT COURSES.  

A MEMBERSHIP CARD WITH OUR BRANCH NAME WILL BE ISSUED AND SENT TO YOU FROM THE MAIN OKLEVUEHA NATIVE AMERICAN CHURCH IN UTAH. MEMBER CARDS HAVE A QR CODE ON THE BACK THAT CAN BE INSTANTLY SCANNED USING A SMARTPHONE FOR INSTANT CONFIRMATION OF YOUR MEMBERSHIP AND LEGAL RIGHTS.

 

sri3.png
© Copyright - Oratory of Mystical Sacraments  

 


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#5 Juthro

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Posted 13 October 2016 - 12:43 PM

I think this is a good place for the info, Ramble.

I'm just curious if this has been tested in front of the courts? Up until now I've only been part of the don't ask / don't tell community. But I like the sound of what this group is giving.

Edited by Juthro, 13 October 2016 - 12:43 PM.

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#6 Ramble

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Posted 13 October 2016 - 01:27 PM

I'm not sure if anyone has gone to through the legal system, but further investigating led me to the OMS' Facebook page WHERE THEY WERE OPENLY OFFERING/SELLING DMT TO MEMBERS! that's a pretty Ballsy move, and I would think that they wouldn't be doing that if they weren't totally protected
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#7 Trippy_Toes

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Posted 13 October 2016 - 09:46 PM

Intriguing....not exactly sure how i feel about this one.

 

I believe the DEA has the autonomy regardless of the religious freedoms act, which may be superseded by the references here, to act at will concerning scheduled substances. 

 

regards and blessings

TT

 

PS 

the big question here is "how much?" if its a suggested donation, i would be inclined to believe in its legitimacy.

 

PSS

Bob Dylan is the shit 


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#8 Sidestreet

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Posted 14 October 2016 - 05:16 AM

Welp, I did some research this morning and I'll come back this weekend with a long answer.

 

The short answer is that there are religious freedom laws on the books at the federal level and in some states that in theory protect the sacramental use of psychedelics.  I'm pretty sure that in a very few places, small groups are able to practice under these laws.

 

However, in general the drug laws are in full force and I'm pretty damn sure that being a member of the OMS of ONAC will not protect you.  On the other hand, if a member is arrested and asserts religious freedom there's always the chance that a good case will result in that person's state.


Edited by Sidestreet, 14 October 2016 - 05:17 AM.

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#9 catattack

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Posted 14 October 2016 - 07:32 AM

Starting a big stink about freedom of religion and having the correct optics would probably have some influence. If the person claiming or invoking the law looks and sounds like Keanu Reeves in "Bill and Ted", one may have a weaker case than a shaman-esque type person who is fluent and looks the part...
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#10 Heirloom Spores

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Posted 14 October 2016 - 08:47 AM

Nice topic. I am a card carrying member of  The Hawai'i Cannabis Ministry. We have had members busted and our founder Roger Christie sent to Federal prison.

 


Edited by Heirloom Spores, 14 October 2016 - 08:49 AM.

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#11 Ramble

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Posted 14 October 2016 - 10:00 AM

Well, that all being said I suppose the real question is: would it be worth buying a membership for a little extra legal cushion should shit ever hit the fan? where are you better off just buying a good lawyer if anything happens
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#12 catattack

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Posted 14 October 2016 - 10:26 AM

That question kind of answers itself..


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#13 Heirloom Spores

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Posted 14 October 2016 - 05:44 PM

A good Lawyer might be able to win a case in court.  For my security I never sell, don't have much of anything. I go about
keeping a low profile.

There was a couple busted in my state who were members of THC ministry and they wanted to fight the charges then backed off because the county attorney said fine the state will take your kids if you want to play hard ball.


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#14 wildedibles

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Posted 15 October 2016 - 05:26 AM

A good Lawyer might be able to win a case in court.  For my security I never sell, don't have much of anything. I go about
keeping a low profile.
There was a couple busted in my state who were members of THC ministry and they wanted to fight the charges then backed off because the county attorney said fine the state will take your kids if you want to play hard ball.


Yep they can always play the kid card .....best thing is dont talk or say one word lawyer

Religious rights could be a good fight in court but I wouldnt say anything to anyone but your lawyer remember anything can and will be used against you

I have heard of this curch before they will help you in yote cerimonys and you can legally use pyote Ive heard that it has worked for some people hearing this up in Canada our natives do not have such rights

this subject is important for me I was born here in canada and my mom and my grandmother and her mother and well been here long time my fam history puts us here in 18-1900s being from europe like many other people I concider myself a witch and well we have no rights as of yet for religious plants or healing rights ....... as a herbalist I still cannot diagnose perscribe or cure disease with herbs .......legally I have to watch my words to not sound like a doctor

times are changing and we do have rights that are worth fighting for :) make your choices carefully
I have my medicinal weed card now and can legaly smoke weed but Im not gonna provoke the athoritys by lighting one up in front of them (even tho I wanna ;)
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#15 Sidestreet

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Posted 15 October 2016 - 04:49 PM

OK, so here’s the long answer:

 

Federal Level

 

There is some basis in the law for the religious use of substances that are otherwise prohibited.  Federally, this basis is found in the Religious Freedom Restoration Act (RFRA).

 

RFRA prohibits government “from ‘substantially burden[ing]’ a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden ‘(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”’

Mark Strasser, Narrow Tailoring, Compelling Interests, and Free Exercise: On Aca, Rfra and Predictability, 53 U. Louisville L. Rev. 467 (2016)

 

 

The RFRA was challenged with respect to its bearing on psychedelic drugs in the U.S. Supreme Court case Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).  The result of that case was that the religious society, Centro Espírita Beneficente União do Vegetal (UDV), temporarily obtained the right to drink ayahuasca without criminal repercussions.  The Supreme Court strictly limited its holding, however:

 

 

The potential impact of the Court’s decision is uncertain because the Court focused

on the importance of a case-by-case approach with respect to religious exemptions from

generally applicable rules. The Court’s decision does not establish a broad precedent for

religious exemptions from criminal statutes. It does, however, appear to establish a

precedent with respect to the type of evidence that must be presented by the government

to establish a compelling interest. The Court made it clear that the government could not

establish a compelling interest in simply enforcing an existing statute; there must be some

other justification for the burden on religious expression.

http://www.mit.edu/a...rts/RS22392.pdf

 

 

The case was remanded back to a lower court so that further findings could be made on the government’s compelling interest.  Basically, the government was to get another bite at the apple.  Strangely, I was unable to find any information on what happened after that.  Even the research service I use doesn’t show the case as being remanded.  If anyone has any info on whether the UDV is still able to practice unmolested, I’d be interested to hear it.

 

Anyway, we are left with some precedent.  On the federal level at least, it seems that each religious tradition must fight a high-stakes battle to win immunity.  As far as I could find, the only other group that has similar rights under the law is the Native American Church:

 

 

The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration. Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law.

21 CFR 1307.31

 

But I think this exception was carved out for that church long before the RFRA or the Supreme Court case.  Incidentally, I was acquainted with a woman who worked as a teacher in an area where the Native American Church held peyote rituals.  She said that the children were hard to keep focused the morning after a ceremony.

 

Very recently, another organization did not fare as well when taking on the feds:

 

The Religious Freedom Restoration Act, which mandates close scrutiny of laws that unintentionally burden religion, does not bar drug-trafficking prosecutions against two self-proclaimed ministers of the Hawaii Cannabis Ministry, a federal appeals court has decided.

 

United States v. Christie et al., No. 14-10233, 2016 WL 3255072 (9th Cir. June 14, 2016).

 

In a June 14 ruling, the 9th U.S. Circuit Court of Appeals rejected the RFRA defense raised by Sherryanne L. and Roger C. Christie, who had argued that their “ministry,” which treats marijuana as a sacrament, shields them from charges they used the religion as a front to deal drugs.

 

The Christies also argued that RFRA required the cannabis exemption they sought because certain American Indian tribes have won the right to use sacramental psychedelic substances, specifically peyote and hoasca, and the law prohibits the government from discriminating among “materially indistinguishable” groups.

 

The 9th Circuit disagreed, noting that the demand for obscure hallucinogens is nothing like the flourishing black market for marijuana.

 

 

 

 

 

State Level

 

Besides on the federal level, a number of states also have so called “religious freedom” laws:

 

 

Arizona

  • • Ariz. Rev. Stat. § 41-1493.01.

Alabama

  • • Ala. Const. art. I, § 3.01.

Connecticut

  • • Conn. Gen. Stat. Ann. § 52-571b.

Florida

  • • Fla. Stat. Ann. §§ 761.02 et seq.

Idaho

  • • Idaho Code Ann. § 73-401.

Illinois

  • • 775 Ill. Comp. Stat. 35/1 et seq.

Missouri

  • • Mo. Rev. Stat. § 1.302.

New Mexico

  • • N.M. Stat. Ann. § 28-22-1.

Oklahoma

  • • Okla. Stat. Ann. tit. 51, §§ 251 et seq.

Pennsylvania

  • • 71 Pa. Stat. Ann. § 2404.

Rhode Island

  • • R.I. Gen. Laws §§ 42-80.1-1 et seq.

South Carolina

  • • S.C. Code Ann. §§ 1-32-10 et seq.

Tennessee

  • • Tenn. Code Ann. § 4-21-1101.

Texas

  • • Tex. Civ. Prac. & Rem. Code §§ 110.001 et seq.

 

 

 

As an example of how one of those laws is applied, here is a case excerpt about a poor soul who tried to assert a religious defense, this time in Arizona:

 

Danny Ray Hardesty seeks review of his convictions for possession of marijuana and drug paraphernalia. He attempted to assert a religious use defense to the charges pursuant to [Arizona drug laws], but was precluded from doing so. We hold that although religious exercise may be asserted as a defense, Hardesty's defense fails as a matter of law. We affirm the convictions.

 

  1. FACTUAL AND PROCEDURAL BACKGROUND

 

 On April 15, 2005, Hardesty was driving his van at night when an officer stopped him because one headlight was out. The officer smelled marijuana and recovered a baggie containing fourteen grams of marijuana from a daypack on the front floorboard of the van, less than two feet from the driver, and a marijuana joint Hardesty had just thrown out the window.

 

Before trial, Hardesty moved to dismiss the charges on the ground that his use of marijuana was a sacrament of his church, the Church of Cognizance. He argued that such use was protected by the free exercise clauses of the Arizona and Federal Constitutions, Arizona's Free Exercise of Religion Act2 (“FERA”), the Religious Freedom Restoration Act of 1993 (“RFRA”), and the International Religious Freedom Act of 1998.

...

 

B. Establishing FERA Claims

1. Allocation of burdens

A party who raises a religious exercise claim or defense under FERA must establish three elements: (1) that an action or refusal to act is motivated by a religious belief, (2) that the religious belief is sincerely held, and (3) that the governmental action substantially burdens the exercise of religious beliefs.

...

In this case, the State conceded all of the elements a defendant must prove to establish a religious exercise defense: that Hardesty held a sincere belief in a true religion and that the law prohibiting possession of marijuana substantially burdened his exercise of religion. As to the State's case, Hardesty conceded during argument on the motion to dismiss that the State had a compelling interest. Accordingly, the only remaining question is whether the State met its burden of proving that the statutory prohibition on the possession of marijuana is the least restrictive means of furthering the government's compelling interest.

 

...

Hardesty urges that Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal required the trial court to hold an evidentiary hearing to determine whether the State has a compelling interest and can accomplish its compelling interest by less restrictive means.

 

Hardesty's reliance on O Centro is misplaced. Although the Court there observed that an exemption may be available under RFRA even though the federal Controlled Substances Act broadly prohibits possession of schedule one substances, (noting peyote exception), the Court did not require an evidentiary hearing in every RFRA case. Instead, once the government establishes a compelling interest, courts must see whether the religious use can be exempted. That is, the government must establish that applying the law in the particular circumstances is the least restrictive means of regulating.

 

...

 

Hardesty claims an unlimited religious right to use marijuana when and where he chooses, and in whatever amounts he sees fit. In the context of this case, no means less restrictive than a ban will achieve the State's conceded interests.

 

Although Hardesty argued to the trial court that he is entitled to assert a religious use defense identical to that afforded peyote users, there is an obvious difference between the two situations. Members of the Native American Church assert only the religious right to use peyote in limited sacramental rites; Hardesty asserts the right to use marijuana whenever he pleases, including while driving. He also failed to address the disparate magnitudes of the illicit use and trafficking of peyote as opposed to marijuana. See Olsen, 878 F.2d at 1463 (citing report that fifteen million pounds of marijuana were seized during an eight-year period compared to only nineteen pounds of peyote). Given Hardesty's religious beliefs, we conclude that there is no less restrictive alternative that would serve the State's compelling public safety interests and still excuse the conduct for which Hardesty was tried and convicted.

 

III. CONCLUSION

Although religious exercise may provide a valid defense under [Arizona drug law], in the circumstances of this case, Hardesty's defense fails as a matter of law. We affirm the judgment of the trial court and vacate the opinion of the court of appeals.

 

State v. Hardesty, 222 Ariz. 363 (2009)

 

In conclusion, there is a basis in the law for the religious use of some substances, but only under a set of narrow circumstances.  Such a right would have to be won by an individual or organization in a hard-fought legal battle with high stakes for the defendant.  For those claiming the religious use of cannabis, the journey will be even more difficult given the precedent set by these cases. 

 

So, I'd say that this kind of defense should really only be attempted by experienced attorneys.  Nothing I say should be construed as legal advice other than this: if you are charged with a crime, don't say boo except to ask for a lawyer and respectfully assert your Fifth Amendment right to silence (yes, you have to literally say you want to assert your right to silence or else your silence can be used against you in open court--fucked up, right?).  If you are charged with a felony, you are entitled to a lawyer at public expense. 

 

As for the organization posted by the OP, they say that they're a Native American Church "in a sense."  It looks fishy to me, especially given that they say that they can give you the legal right to use cannabis and a lot of other things besides peyote.

 

I created a PDF of the info I gathered for this post if anyone’s interested in reading a bit further:

 

Attached File  drug policy and religious freedom research.pdf   428.2KB   25 downloads


Edited by Sidestreet, 15 October 2016 - 05:08 PM.

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#16 Heirloom Spores

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Posted 15 October 2016 - 05:55 PM

The thing about Roger Christie is he even offered to send " Holy Anointing Oil" over the internet for a donation. He was very confident he was untouchable,
many cult leaders break their own laws. A fine example of hubris, pride goes before disaster and arrogant attitude before a fall.

 


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#17 Ramble

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Posted 15 October 2016 - 06:08 PM

That was a good read, tons of good info, thanks for the input Side street. I was thinking it might be too good to be true but hey I guy can hope right?
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#18 wildedibles

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Posted 15 October 2016 - 09:11 PM

Just hope that America will join together on making weed legal...not just state by state federally
I think as soon as Canada does it U.S. will follow suit ... hope I'm right on this one ;)
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#19 Ramble

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Posted 16 October 2016 - 01:02 AM

Here here
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#20 Sidestreet

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Posted 16 October 2016 - 03:06 PM

Just a heads up, I talked to Ramble and he said it was cool to change the title of this thread.  I'll give it a minute first so people can see that it will change.  I might mark it for the Vaults, too, if it develops a little more. 


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