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Andrew Bergh
Andrew Bergh

June 11, 1998

Parenting or pot? You decide

By ANDREW BERGH
Special to the Journal

Here's a real tough call for a parent.

Suppose you had to choose between your children and marijuana. That's right, either parenting or pot. As horribly unfair as that may sound, that's precisely the election a King County father was forced to make in State v. Waters.

In Oct. 1995, two unwed parents duked it out in an obscure Seattle courtroom. They were fighting, among other things, over custody and visitation rights to their son, Alex Hendrix.

The mother, Dianna Fasano, wasn't lily white, as shown by her history of substance abuse. But the trial judge, evidently impressed by the fact that Fasano had successfully completed a drug rehab program, found her to be "clean, sober and capable."

Although he scored points for honesty, the father, Michael Waters, didn't fare quite so well. Waters openly testified at trial that he smoked marijuana on a daily and day-long basis as part of his Rastafarian religion. A staunch follower of this sect, Waters had to admit that while marijuana use is encouraged by Rastafarianism, it's not a required religious practice.

The judge told Waters that even if his religious motivation was genuine, his daily -- and illegal -- drug use raised concerns about Alex's welfare. Opting to postpone a final decision, the judge imposed conditions on Waters's drug use which, if followed, would improve his chances of gaining access to his son. One such condition was 30 days of drug-free urine samples by the end of the year.

Waters either flunked or never took the urine tests, and he definitely didn't do too well on the attitude test when he next appeared in court for a review hearing in April 1996. His First Amendment right to freedom of religion was being violated, the father claimed, by the restrictions on his religious use of marijuana. Not so, said the judge, who told Waters his visitation rights were being curtailed due to his illegal pot consumption, not his religious beliefs or lifestyle.

Apparently convinced that Waters was too set in his ways, the judge entered a final judgment awarding full custody of Alex to his mother. He also told Waters that his visitation rights would be restricted until he stopped using marijuana. The pot-smoking papa then appealed.

If Waters thought the appeals court would be more sympathetic to his cause, he must've been high on something.

It's true, of course, that individuals have a First Amendment right to follow their religion of choice. Given that protection, states generally can't pass laws that ban particular religious beliefs. For example, if Washington had a law that outlawed Rastafarianism, and if the trial judge had denied Waters visitation because he'd violated that law, Waters would've had a slam dunk case on appeal.

As the appeals court noted, however, the First Amendment doesn't always prevail -- especially where a state has a legitimate interest in regulating conduct like the use of illegal drugs.

Turning to federal law, the appeals court relied upon a 1990 decision by the U.S. Supreme Court. In that case, members of the Native American Church were denied unemployment benefits because they violated an Oregon law criminalizing the use of peyote. Rejecting the members' argument that their First Amendment rights had been violated, the high court said state laws may be applied to religious practices as long as they are supported by a compelling governmental interest and are otherwise "religiously neutral."

Following this precedent, the appeals court ruled against dad. Even if his marijuana use was religiously sincere, the court said, the trial judge properly considered Waters's illegal drug use in determining the best interests of his son.

This obviously doesn't mean Waters won't ever see his son again. But until the dope stays off the dope, he can kiss his visitation rights bye-bye.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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