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Or Prohibiting the Free Exercise Thereof: Why the First Amendment Doesn’t Protect Rastafarians

By Jayson Whitehead
August 27, 2003

In 1927, Black Nationalist Marcus Garvey landed on the lush shores of Jamaica. Born there in 1887, Garvey immigrated to America in 1916 and spent the next decade promoting his Universal Negro Improvement Association (UNIA). Following his deportation for mail fraud charges, Garvey returned to his native country where his message of black empowerment struck a powerful chord with the disenfranchised lower class.

Boiled down, Garvey’s message stressed a return to Africa, arguing that a white establishment had decentralized black power through slavery and colonialism. Like a latter-day John the Baptist, he preached the imminent return of a savior, telling blacks to “look to Africa for the crowning of a king to know that your redemption is near.” His audience paid close attention when Prince Ras Tafari Makonnen was crowned the new Emperor of Ethiopia in 1930. After he proclaimed himself the “Emperor Haile Selassie (Power of the Trinity) I, Conquering Lion of the Tribe of Judah, Elect of God and King of the Kings of Ethiopia," many were convinced that Garvey’s prophecy had been fulfilled.

As a developing religion, Rastafarianism grabbed ideas from older belief systems. From the Hindus, the Rastas developed the concept of “I and I,” which simply stipulates that God is within all men. And under the doctrine of avatar, Rastas believe that God revealed himself in the person of Moses, who was the first avatar or savior. The second avatar was Elijah, followed by the third avatar, Jesus Christ. The advent of Ras Tafari was the climax of God's revelation. (Even though he is not considered divine, 1970s reggae artist Bob Marley has mythical status among Rastafarians, and quite truthfully, is responsible for much of the religion’s popularity.)

Selassie and Garvey were both adherents of Christianity oddly enough and Rastafarianism is suffused with Christian imagery. “We believe in Jesus but not the Jesus that you have to know to go to Heaven or Hell,” Ernest Knight, a 23-year-old Rastafarian, says. In fact, Rastafarians traditionally view Africa, specifically Ethiopia, as heaven on earth. They do not believe in the Christian afterlife of Heaven or Hell. “We see Jesus more for the things that he taught,” says Knight, “instead of focusing on Heaven or Hell as your salvation.”

Apart from following universal teachings of Jesus Christ like “love one another,” Rastafarians are grounded in the Torah, the first five books of the Old Testament. Like the original Israelites, Rastafarians hold that Jehovah is God, although it is slightly transmuted in the person of Jah. And Rastafarians frequently cite Babylon, which symbolizes the white power structure that has persecuted blacks for hundreds, if not thousands, of years. A prevalent Rasta belief is that whites perverted the Bible, by altering the race of many of the Bible’s chief figures.

Even some beliefs that are unique for the Rastas find their basis in the Old Testament. Leviticus 21:5 ("They shall not make baldness upon their head, neither shall they shave off the corner of their beard…") gave birth to dreadlocks, the elaborate hairstyle worn by Rastas. (Knight’s were recently shorn as a symbol of spiritual rebirth.)

Then there is the holy sacrament of marijuana or ganja ["He causeth the grass for the cattle, and herb for the service of man." (Psalms 104:14)]. For the nearly million worldwide Rastas (and the estimated 3,000 to 5,000 in the U.S.), the smoking of marijuana or ganja is a holy sacrament, not unlike communion is for a Christian. Rastafarians typically believe that each mind-altering experience brings a higher spiritual consciousness, and thus nearness to God. (This sort of practice is by no means unique to Rastas. From ancient Greeks to Native Americans, many religions have incorporated chemical substances as a religious ritual.)

On January 22, 2003, Ernest Knight waited at the cashier’s counter at the International House of Pancakes (IHOP) in Harrisonburg, Virginia. A student at Radford University near Blacksburg, VA, Knight was in town to attend the CD release party of a friend’s band. After the party, Knight and five others retreated to a local bar, and then went to IHOP to get something to eat. As the cashier counted out their change, two policemen entered through the front door and approached the young men. “We had a report that you all were stealing,” the police told them. To his surprise, Knight discovered that an IHOP manager had called police after witnessing one of his friends refilling his own glass. “We just thought we could get our own juice,” he says.

The police officers detected alcohol on their breath and asked the men if they had been drinking. “I said, ‘Yeah, we just got back from the bar.’ And he was like, ‘You seem drunk,’” Knight recalls. “I’m placing you under arrest for drunk in public.’” Once he and a friend were arrested, Knight was then searched and that’s when the police found a canister of marijuana in his pants pocket. “When he found it I told him, ‘This is a part of my religion—the holy sacrament that I practice as a Rastafarian,’” Knight says. “He understood that but he said, ‘Tell it to the judge.’”

Knight became a practicing Rastafarian, and was rechristened Geese Tafari, in the spring of 2002. He first encountered the religion when he worked at a bar in Blacksburg, VA. “A couple of guys from a local reggae band worked there and I started to get interested and started meeting with them,” he says.

When his court date for the marijuana charge came around, Knight failed to hire an attorney. “I thought it would get suspended and the judge would say that I wasn’t guilty because I was practicing my religion,” Knight says. “I did some research on the Religious Freedom Restoration Act (RFRA) and I felt I had a legal argument.” The judge disagreed, and Knight heard a familiar response: “Take it up with the legislature.”

Knight was subsequently convicted of a misdemeanor possession of marijuana, and received a standard sentence of 10 weeks of Alcohol Safety Awareness & Prevention Program classes, a $250 fine, and a year of random drug testing.

To be a Rastafarian in America is to practice one’s religion under the constant threat of prosecution. The federal government condemns virtually all marijuana use and Attorney General John Ashcroft and the drug enforcement authorities have made its eradication one of their top priorities. A laughable campaign to link marijuana to terrorism as well as an assault on medical marijuana, whose development and use in some manner have been ratified by ten states, illustrate the federal government’s antipathy toward the herb.

Furthermore, thanks to the U.S. Supreme Court, any defense on the grounds of religious exercise is a complete wash except in a minority of states. In 1990, the Court overruled a standard set forth in Sherbert v. Verner (1963), which required laws that substantially burden the free exercise of religion to be supported by a compelling government interest.

In Employment Division, Department of Human Resources v. Smith (1990), a member of a Native American church who ingested peyote for sacramental purposes was fired by his employer, a private drug rehabilitation organization. When Smith applied for unemployment compensation, the state agency denied his application because of a statute that disqualified individuals fired for work-related “misconduct.” Arguing that the denial burdened his First Amendment right to freely exercise his religion, Smith sued. In their decision, the Supreme Court refused to apply the Sherbert standard, and instead adopted a “neutral rules of general applicability” test. Under this rule, generally applicable laws may be applied to religious practices, even when not supported by a compelling government interest.

Religious rights advocates were horrified by the Smith decision, and three years later, Congress, with the support of then-President Clinton, passed RFRA. In restoring the Sherbert “compelling interest” standard, Congress declared that its purpose was to “guarantee its application in all cases where free exercise of religion is substantially burdened; and … to provide a claim or defense to persons whose religious exercise is substantially burdened by government.”

The Court responded in City of Boerne v. Flores (1997), finding that Congress had overstepped its bounds under the Fourteenth Amendment, and holding that RFRA was unconstitutional as it applied to the states. The Court’s restoration of Smith’s “neutral rules of general applicability” test, however, did not prevent states from passing their own version of RFRA. While eleven states have passed such legislation, Virginia’s repeated attempts to pass RFRA have failed.

“Congress shall make no law respecting an establishment of religion,” the First Amendment commands. “[O]r prohibiting the free exercise thereof.” In lieu of a state Religious Freedom Restoration Act, Ernest Knight is helpless. Although federal courts have recognized Rastafarianism as a legitimate religion, any free exercise challenge is trumped by the illegality of marijuana. Knight, who says he used to smoke ganja two to three times a day, maintains that his current penalty of random drug testing severely restricts the practicing of his beliefs. “It’s placing a spiritual burden on me,” he says. “I can’t even pursue the spiritual goals that I would like to.” Knight currently has seven more months of drug testing.