Religious drug use in England, South Africa and the United States of America

Abstract

The question of whether there should be a fundamental right to sacramental use of psychotropic drugs, despite the existence of a general prohibition against the drug in question, has been considered by the courts of England, South Africa, and the United States. Despite the commonality of the issues in all three countries, the approaches taken by the courts show significant differences of interest beyond the factual situation. In particular, a consideration of the cases suggests different strategies in evaluating justificatory claims by the state when incidentally restricting religious practice; differing use of cases from other jurisdictions; and differing emphases on the importance of international law in interpreting fundamental rights.

Prohibition, Religious Freedom, and Human Rights: Regulating Traditional Drug Use

“…This chapter will primarily focus on five legal jurisdictions which have considered this issue in varying degrees, as these legal judgments have been reported on the most extensively (see Taylor 1984Taylor , 1988Frank 1990;Loveland 2001;O'Brien 2001;O'Brien andCarter 2002-2003;Edge 2006;Du Plessis 2009;Gibson 2010 (2006) observed regarding the USA, England, and South Africa: All five of the above jurisdictions are pluralist democracies, all are concerned with maintaining drug prohibition, all seek to uphold and respect religious rights, and all five possess religious minorities who use prohibited drugs as a sacrament. Nevertheless, much of the relevant judicial discourse is believed to present a reductionist version of Rastafarianism, 1 in which its beliefs and values are undermined and are reflective of existing judicial preconceptions (O'Brien andCarter 2002-2003).…”

“…The bulk of Rastafarian religious cases stem from the USA, possibly due to the nation's rich tradition in litigating religious liberties claims (Edge 2006). As such, some of the earliest cases concerning the Rastafari originate here.…”

“…the intrinsic, moral value of an individual's rights. As Edge (2006) keenly notes, these are international legal documents of general application and should not, therefore, have been accorded the great significance bestowed upon them throughout this judicial reasoning process. .…”

“…The predominant focus of this section will be on the USA, given their strong tradition of juridification of religious freedom claims (Edge 2006). Comparisons will be drawn between the judicial "treatment" accorded to peyote use by the Native American Church (NAC), and that given to the use of cannabis by Rastafarians.…”