Utah faces lawsuit after overruling voters on medical marijuana — with the help of Mormon church
It took Christine Stenquist years to find something to take the edge off of her chronic pain.
Bedridden for a decade and a half after doctors discovered a brain tumor, she suffered from nausea triggered by pain medication that also gave her depression and insomnia.
After exhausting options afforded by standard medicine, Stenquist decided after six years to try something a little more unconventional. “I turned to my 19-year-old daughter. I [said], “Honey, do any of your friends smoke weed?”
It turned out that marijuana was, indeed, the solution that she had been searching for. Not long after smoking her first joint, she was no longer in constant pain, and she could finally sleep and keep down food.
The Utah native was elated when voters in her state in November approved a measure legalizing medical marijuana. Now, just one month after that historic vote, Stenquist and the pro-cannabis group that she heads up is suing Utah Gov. Gary Herbert (R), and the state’s Health Department for vacating the measure approved by the voters and putting in place one more to the liking of conservatives and the Mormon Church — a powerful political force in the state.
Stenquist heads Together for Responsible Use and Cannabis Education (TRUCE) one of a handful of groups that was instrumental in last month’s vote to legalize medical marijuana.
Nearly 53 percent of voters in the state approved Proposition 2 on Election Day, bucking the state’s Republican leaders.
More strikingly, the vote was a repudiation of the Church of Jesus Christ of Latter-day Saints (LDS), which had lobbied heavily against the bill. (More than six in 10 Utah residents are Mormon, and church leaders are not shy about weighing in on political issues.)
Stenquist had hoped that passage of the bill would mean that she no longer would have to resort to vaping secretly in her bedroom, hiding in embarrassment from her children. “I shouldn’t have to live like a criminal because I choose a certain medication,” she told ThinkProgress, choking up during a recent interview.
It turns out it didn’t matter what Utahns had to say about Prop 2. Last week, the state legislature, in a special session called specifically to address the bill, threw out the measure. Prop 2 was already one of the most restrictive medical marijuana laws in the country, but still went too far in making pot available, according to some conservatives.
In its place, lawmakers in the GOP-led legislature passed a bill much more to their liking, the Utah Medical Cannabis Act, also known as House Bill 3001, which Governor Herbert quickly signed into law.
While lawmakers have touted the new law as the “best-designed medical cannabis program in the country,” some patients say it is too restrictive and say many people who need medical marijuana will not be able to access it.
Opponents of the new bill also bristle over the outsize role played by the LDS Church in overturning the will of the voters, interference they say was unconstitutional. Reached by ThinkProgress, the church declined comment for this story.
“This is not a patient-centric bill,” Stenquist told ThinkProgress. “It was born in fear and designed to fail.”
House Bill 3001 limits qualifying conditions, requires a compassionate use board to approve treatment for patients ages 18 to 21, and permits only seven cannabis “pharmacies” in the state, down from the 40 dispensaries that would have been allowed under Prop 2.
This remarkable reduction, patients told ThinkProgress, is emblematic of the state’s continuing effort to keep the drug out of the hands of those who need it, as it will force patients and caretakers to drive significantly further to get cannabis.
And while Prop 2 also allowed for cannabis in edible form, the new law eliminates it almost entirely, with an exception for gelatin gummies.
— Gov. Gary Herbert (@GovHerbert) December 4, 2018
“What they’ve done is criminalize putting THC in butter, sugar, flour, and chocolate,” said Doug Rice, the president of the Epilepsy Association of Utah.
“The majority of gummies are made with gelatin that comes from animal protein… By limiting the choice to only gummies you are severely limiting a large faction of the patients who are Jewish or Muslim or vegan.”
Rice, who is suing the state along with Stenquist, cares for his adult daughter, Ashley, who was born with a rare disease that at one point caused her to have between a dozen and two dozen seizures per day. While CBD, a chemical derived from hemp with low THC, helped reduce the seizures, only whole plant — which includes THC — stopped Ashley’s seizures.
Rice’s religious freedom concerns are particularly interesting, considering given the LDS church’s significant involvement in the development of House Bill 3001, something lawyer Rocky Anderson, who is representing Rice and Steinquist, said is central to their case against the state.
“Because of Utah’s unique history of having had a theocracy prior to statehood, there was a unique provision in Utah’s constitution that goes beyond most states [that] prohibit the establishment by the state of any state religion,” Anderson told ThinkProgress.
“The Utah state constitution expressly prohibits the control of the state or interference in its functions by any church, and that’s exactly what we saw here.”
In early October, the LDS Church announced that it would be willing to support a more restrictive medical marijuana law in Utah.
Church members adhere to a strict health code that includes abstaining from drugs, but some point to evidence its extensive investments in the pharmaceutical industry as another reason for its reticence to back a robust medical marijuana law.
Although the church initially opposed any medical marijuana law whatsoever, its apparent change of heart came after repeatedly signaling its opposition to Prop 2. The sudden willingness to back a less far-reaching measure was seen by some as an attempt to avoid an embarrassing loss, after the measure consistently polled well in the state.
“I really didn’t give a crap if the church needed to save face,” said Stenquist, who left the church some time ago. “This bill is for me and my people and my patients, so it should have been the church that bowed out of that conversation.”
Herbert announced in October that Utah lawmakers had struck a deal with the church. But would not say precisely what the deal was. That meant that voters who went to the polls on Election Day approved an initiative that, for all intents and purposes, was already dead in the water.
Rice does not object to the church having a stance on medical marijuana. The problem, he said, is that he does not believe a religion he does not subscribe should play a central role in determining the kind of medical care he can obtain for his child. “[The church’s involvement] is one of those things that I just kind of find annoying and unsettling,” he said.
In addition to objections over the church’s involvement, Anderson argues that House Bill 3001 is a violation of the supremacy clause of the U.S. Constitution.
While Prop 2 would have allowed for more traditional private dispensaries, the new law gives the state total control over distribution. Anderson also argues that the legislature violated the state constitution by making changes to the initiative after it passed, though other experts say this tenet of the suit is its weakest.
“They don’t have a very good case under current law. While the voters have a right to enact a law, the legislature has the right to change it,” Paul Cassell, a former federal judge and a law professor at the University of Utah, told local media in Salt Lake last week.
Anderson notes that House Bill 3001 “materially differs from Prop 2, and our constitution expressly provides people with a right to legislate,” in laying out the basis for a potential challenge to the new law.
“Whether it’s a democratically sound approach, I suppose it’s something people can debate.”