Mike Pence's Pot Problem

Mike Pence's Pot Problem
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With eyes on Mike Pence's Indiana where the state's Religious Freedom Restoration Act (RFRA) is set to take effect July 1, Bill Levin is on the move.

The self-proclaimed minister of love and "Grand Pooba" has created The First Church of Cannabis, described on the church's Go Fund Me page as "based on love and faith with the plant we know and love."

Possession of marijuana is illegal in the state, but Levin claims its usage in his church is a religious practice, undoubtedly testing the law. Members of the First Church -- cannabiterians -- will light up in worship at 12:01 p.m. July 1 in Indianapolis -- just one minute after RFRA becomes a valid defense for religious practices in Indiana.

"It's possibly going to be one of the greatest test cases in the world -- religious freedom," Levin told MSNBC. "We'll find out how religious freedom really works here in Indiana."

The First Church has gained recognition as a tax exempt religious organization and purchased a church building, joining the national ranks of religious institutions -- some whose religious practices seem just as odd as those of The First Church of Cannabis.

Among the list: Colorado's Greenfaith Ministry (a cannabis offshoot of the Oklevueha Native American Church), Oklahoma's Church of the IV Majesties (a Satanist church lasting for a brief stint in Oklahoma City), The Church of Scientology (the subject of HBO's recent documentary that led some to consider the church as a billion dollar enterprise), and the United Church of Bacon (a virtual congregation of skeptics and atheists worshiping bacon simply to poke fun at the pious).

Unconventional faiths like The First Church have tested the federal tax exemption for "churches," and are seemingly changing the definition of religion.

Churches that meet the basic description of a church outlined by the Internal Revenue Service automatically receive a tax exemption. No application is required for these unconventional churches to receive the same religious classification afforded to denominations of yesteryear.

"This is the problem when you have the government involved in deciding what is and what is not a religion by giving [churches] that preferential treatment -- that [the government] can't make that judgment call about whether this is a sincerely held belief or not," Nick Fish, the national program director for the American Atheist Center, told RealClearReligion. "They have to take [churches'] word for it."

The IRS Manual says it "cannot pass judgment on the merits of the applicant's asserted religious belief."

Courts have loosely defined "religion" so as to respect the First Amendment and Establishment Clause by not subjecting religious belief to a "precise definition." But loosely defining the term may further complicate the separation of church and state that Fish says is muddled by religious tax exemption.

"What we have now is the government getting involved with religion by deciding what is and what is not a legitimate belief system, what is and what is not a legitimate religion," said Fish, whose organization filed a lawsuit in a U.S. District Court in 2012 demanding the IRS end its preferential treatment of churches and religious organizations.

"They do that by deciding, 'You get a tax benefit,' or 'You don't,' and that's a problem that [the government] could potentially look at a deeply held religious belief and say, 'You know what? This doesn't qualify as a religion, so we're not going to give you the tax benefit.'"

Fish said his organization advocates for a requirement for churches and religious organizations to go through the same process as secular organizations to obtain nonprofit status -- a process he described as lengthy and transparent.

"What we want them to do is to engage in the same process as the rest of us do," Fish said. "That isn't persecuting religious groups; that isn't attacking churches. That's demanding equality."

But Robert Katz, a law professor at the Indiana University Robert H. McKinney School of Law, said denying churches tax exemption would be no less unfair.

"To single out churches to deny them tax exemption would put a special disability on religion," Katz told RealClearReligion.

"This disability also creates a kind of upside Establishment Clause concern," he said. "It makes secular activity the state's preferred form of social and spiritual exercise. We also don't want the government spending too much time investigating organizations seeking exemptions as churches or religious organizations -- that sort of entanglement could itself create Establishment Clause issues because we want the government to take a hands-off approach to regulating churches and religious organizations."

Katz cited the 1970 U.S. Supreme Court case Waltz v. Tax Commission of the City of New York and said churches are given tax exemption not because of their religious association but because of their shared characteristics with tax exempt secular nonprofits.

As Justice Berger stated in the Waltz opinion, "The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state."

But Fish said The First Church is comically exposing the government's loopholes, and its recognition as a church holds significance for every theist and atheist.

"They're proving a very important fact that under our Constitution, Christianity, Catholicism, Lutheranism, Methodism, Islam, Judaism, Satanism, and Church of Cannabis, they're all just equal," Fish said. "They don't get any special treatment just because there's many, many more Christians than there are people that are following the Church of Cannabis. The government made the right call here recognizing the Church of Cannabis."

Make way for the Grand Pooba.

Anna Dembowski is a 2015 National Journalism Center intern at RealClearReligion.

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