People v. Mitchell (1966)
Less than two years after the California Supreme Court decided Woody and Grady, another entheogen case was decided in California, this time by the Court of Appeals for California’s Second District.1 The case involved a man who claimed that marijuana provided him with religious insights. The case is particularly noteworthy because the court’s analysis introduced another central theme in entheogen jurisprudence; namely a distinction between “religious beliefs” and “personal philosophy.” While only just touched upon in the Mitchell opinion, the metaphysical and semantic differences between beliefs that constitute “religion” and beliefs that merely constitute a “personal philosophy” would later be used by many courts to deny religious protection for users of outlawed entheogens.
The Mitchell case had its genesis in a telephone call made by a Mrs. Mitchell to the local police on the afternoon of January 24, 1965. She reported that her husband, Leroy, had been smoking marijuana nearly every night. She wanted to do something about it. She told the officers that Leroy was currently not at home, but that he would return home by nightfall and would, sure to his routine, spend the evening smoking marijuana.
At about 7:00 p.m. that evening, four police officers quietly took up positions outside the Mitchell household waiting for a prearranged signal from Mrs. Mitchell indicating that her husband was in the process of smoking marijuana. She had previously unlocked the front door so the officers could enter when signaled.
Approximately a half hour after taking up their positions, the officers saw Mrs. Mitchell give them the signal that Leroy was smoking marijuana. With guns drawn, the officers entered the home and smelled the aroma of burning marijuana. They had no trouble spotting Leroy, who was sitting in the living room playing a guitar with a pipe in his mouth. They arrested him without incident.2 Mr. Mitchell then showed the officers a live Cannabis plant growing in the couple’s backyard and a box of harvested marijuana that he kept under the house.
Leroy Mitchell represented himself at his trial. He readily admitted that he smoked marijuana and that all the marijuana found by the police was his alone. He claimed, however, that although he was not a member of any organized religion he smoked marijuana pursuant to a sincere religious belief. He quoted at length from the Bible, asserting that as an “herb of the field,” his use of marijuana was “a divine right of natural inheritance.” Elaborating on his assertion that his use of marijuana was spiritually motivated, Mr. Mitchell, albeit rather convolutedly, testified:
My contention is — my belief is that the church is as yet unaware of itself. The mystery of the church has not been cleared up yet where they can advance to a much more meaningful position, especially as regards raising the young, and I believe that our young people have a right to expect proper and meaningful and very lucid and illuminative guidance from us.
There is a song that is so important to us. This song that we sing everyday in so many words of sound, and if we could hear the song better, the sound of our meaningful creation, especially concerned with the inheritance of the coming generation. It is like — the contention is that not so much that a man has to be a member of his church for a special religion that has to do with the justification of smoking marijuana, but that one has the right to worship as he sees fit, and I have learned from experience that the — writing of a people — sometimes when one has the ability to translate one’s knowledge can be very much like a draughtsman or somebody sitting at a drawing board about to build some new machine and that I believe that what our young people today are trying to make us aware of is that they want to be able to stand and receive the blessings without necessarily being designated to a process of time. It is wonderful that we can invent these various things, but there is a great deal of importance also, on maintaining our ability to comprehend the essential attributes and the essential nature of a well coordinated and well balanced society.
I hope that I will have an opportunity to speak with the Elders of the churches and things like that to perhaps bring some of them out of the idea of sectarian worship, or as religions prevailing with the idea of religion itself, and rather realize these things for their meaningful value and bring them up to date.
I have seen a lot of young men exposed to the idea of guilt — and having completely circumvented that experience myself — and realized that is where the necessity lies. I believe in the right to life, liberty and pursuit of happiness probably has a great deal to do with some of the things that we are concerned with today.
I have heard the problems of marijuana discussed many times and it has come to my attention that actually the only problem that we are having with marijuana is that young people are being faced with the attitude of criminality and, as I say, I hope that I will have the opportunity to communicate with the churches about this, because it is my belief, in plain English that the church should make a very definite and open stand as being a midwife of reason and that our young people are fighting now for the availability to actually intelligently comprehend the situations which confront them.3
Although the jury heard such testimony and was thus aware that Mr. Mitchell viewed his use of marijuana as a religious practice, the trial court refused to instruct the jury that religious practice was a defense to his marijuana offense. As a result, having openly testified that he used marijuana, any jury instruction on his religious defense, he was convicted. He appealed, arguing that the trial court erred by not instructing the jury that religious exercise was a defense to the marijuana charges.
The court of appeals affirmed Mr. Mitchell’s conviction. In the view of the court of appeals, Mr. Mitchell’s use of marijuana was not “religious.” Rather, the court of appeal characterized his beliefs as merely a “personal philosophy.” The court explained that when Mr. Mitchell was asked at trial to explain what was “religious” about his marijuana smoking, the best he could say was: “In the sense that I believe that religion is related to law or constitutionality, I was exercising freedom in my own home to smoke something actually better than tobacco.” The court scoffed that Mr. Mitchell’s “religious ritual,” as he himself described it, was to “[g]et up in the morning and have breakfast, lunch at 12:30, evening meal, say between 6:00 and 7:00 and a pipe of marijuana about 8:00 or 9:00.”4
The court of appeal spurned Mr. Mitchell’s attempt to analogize his use of marijuana to peyote use by members of the Native American Church. Besides pointing out that Mitchell was not a member of any religious organization, the court also distinguished his situation from that of the Native Americans in Woody, saying that Mr. Mitchell’s use of marijuana was not “a central part” of his alleged religious beliefs.5
The Mitchell court opened another can of worms by distinguishing Mr. Mitchell’s marijuana smoking from peyote use by NAC members on the ground that marijuana was a much popular outlawed substance than peyote. By mentioning the difference in popularity between peyote and marijuana, and implying that the more popular substance was less entitled to religious protections, the court was again blind to the implications of its reasoning. On what legitimate basis can a religion’s popularity be held against it from a free exercise perspective? In no other area of free exercise jurisprudence is a religion given less protection simply because it is popular.
At bottom, however, the court of appeal ruled that Mr. Mitchell simply had not proven that his marijuana smoking was truly “religious” in nature. The court made no attempt to define the term “religious,” nor did it offer any technique for distinguishing “religion” from so-called “personal philosophy,” Rather the court of appeal merely remarked that Mr. Mitchell had failed to prove that his use of marijuana was a religious practice “in any sense of that term.”6 Mr. Mitchell, said the court, had failed to prove the first prong of the strict scrutiny test (i.e., that California’s marijuana prohibition burdened his “religion”), and hence his religious defense failed. The Mitchell court closed its opinion by emphasizing that personal philosophies were not protected by the religion clauses of the First Amendment:
…defendant has offered no evidence that his use of marijuana is a religious practice in any sense of that term. In defendant’s discourse to the jury he did refer to the Bible and to the practices of some Hindus, but in essence he was expressing only his own personal philosophy and way of life. He clearly does not bring himself within the principle of constitutional law which was so carefully delineated in Woody.7
The Mitchell opinion is an early microcosm of several of the key elements that will come to inform the analysis used in many of the entheogen cases to come — particularly those that reject a religious defense. While in Woody the California Supreme Court scoffed at the Attorney General’s “slippery slope” argument, the Mitchell court accepted the same fears when recast in terms of the entheogenic substance’s “popularity.” The Mitchell court also reframed what the Woody court likely intended to convey when it noted the central place that peyote played for members of the Native American Church. In the view of the Mitchell court, protection under the Free Exercise Clause was only available if an entheogen was central to a given a religion. Finally, and perhaps most importantly, the Mitchell decision illustrated how a court’s use of the simple labels (“personal philosophy” versus “religion”) could be deployed to completely route around a free exercise defense.
Notes
1 People v. Mitchell (1966) 52 Cal.Rptr. 884, 244 Cal.App.2d 176.
2 The court of appeal’s opinion noted that when the police burst into the room with their weapons drawn, Mr. Mitchell told the officers: “It’s a cool bust, Man, like put the heat away.” Such language, said the court was “jargon common to narcotics users.” (Id. at p. 886.)
3Id. at pp. 886–887.
4Id. at p. 887.
5Id. at p. 888.
6Ibid.
7Ibid.
