Federalism

Federalism is the relationship between the states and the federal government.

Background

1983

In 1983, Carl Olsen applied for a federal exemption for religious use of marijuana like the exemption for the religious use of peyote found in 21 C.F.R. § 1307.31.

1984

The Iowa Supreme Court found that Olsen is a member and priest of the Ethiopian Zion Coptic Church, and that the Ethiopian Zion Coptic Church is a bona fide religious organization that uses marijuana as it’s sacrament.  See, Olsen v. Iowa, No. 83-301-E (S.D. Iowa, 1986); and see, Town v. State ex rel. Reno, 377 So.2d 648 (Fla. 1979).  Nevertheless, the Iowa Supreme Court found that Olsen’s public and continual use of marijuana was not equal to what the court described as the infrequent and isolated religious use of peyote.

The Ethiopian Zion Coptic Church was incorporated in Jamaica in 1976 and Olsen incorporated a U.S. branch in the State of Iowa in 1984.

1989

The U.S. Court of Appeals and the U.S. Supreme Court rejected the religious exemption on the grounds that marijuana is more widely used than peyote.  See Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989); Olsen v. DEA, 495 U.S. 906 (1990).

1990

Olsen v. DEA was cited by the U.S. Supreme Court in Employment Division v. Smith, 494 U.S. 872 (1990).  In the Smith case, the court held that the federal exemption for the religious use of peyote does not require states to create exemptions for the religious use of peyote, effectively affirming the conclusion the Iowa Supreme Court reached in rejecting Olsen’s religious argument.  This is an example of federalism.  States are not children of the federal government.  The federal government was created to protect the states.

Congress attempted to overturn Employment Division v. Smith by enacting the Religious Freedom Restoration Act of 1993 (RFRA), but the U.S. Supreme Court found RFRA unconstitutional as applied to the states in City of Boerne v. Archbishop Flores, 521 U.S. 507 (1997).

1996

Activists working on Proposition 215 enacted in 1996 in California refused to acknowledge that legalizing marijuana for medical use at the state leval required notifying the federal government that marijuana has accepted medical use in that state.  The activists said federalism was too complex for voters to understand.

2000

Activists working on Colorado Amendment 64 refused to acknowledge that legalizing marijuana for medical use at the state level required notifying the federal government that marijuana has accepted medical use in that state.  The activists instead required Colorado to ask the federal government if marijuana has medical use, and the federal government said no.  In 2015, the Colorado Supreme Court held that creating a state law making marijuana legal for medical use does not make it legal in the absence of any federal recognition of the state law.  See Coats v. Dish Network, 350 P.3d 849, 850 (Colorado 2015).

2011

The Governor of Washington refused to acknowledge that legalizing marijuana for medical use at the state leval requires notifying the federal government that marijuana has accepted medical use in the state.  The governor instead asked the federal government if marijuana has medical use, and the federal government said no.  See, Federal Register: Vol. 81, No. 156, Friday, August 12, 2016, beginning at page 53688.  The state did not appeal the ruling.

2013

In 2013 Olsen intervened in a federal scheduling petition in the United States Court of Appeals for the District of Columbia, arguing that state laws require removing marijuana from federal schedule 1 because the condition Congress placed on schedule 1 was that only substances without accepted medical use in the states can be in schedule 1.  The appeals court did not rule on Olsen’s argument and the U.S. Supreme Court did not accept Olsen’s petition for certiorari.  See, Americans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013).

Olsen v. DEA, No. 13-848 (November 18, 2013).

2017

In 2017, the state of Iowa created Chapter 124E of the Iowa Code, which creates an exception to Iowa Code Chapter 124 (Iowa’s Controlled Substances Act) and Iowa Code Chapter 453B (Iowa’s Drug Tax Act).  See, Iowa Code § 124E.12(4).  Because Iowa law now defines an exception to Iowa Code Chapter 124 for the medical use of marijuana, Iowa must notify the federal government that the medical use of marijuana is exempt from the federal Controlled Substances Act for the same reason.  The federal government currently has an exemption for the religious use of peyote, which is also a federal schedule 1 controlled substance.