Ken Larsen has already founded nine religions, including The Church of the Beer God and the Church of the Holy Nudity. These were just to prove a point about personal freedom, Larsen admits. But the religion that might possibly be called The Church of the Liberty Park Drum Circle is different, he says.
The weekly Sunday drum circle is "truly a spiritual experience," says the 65-year-old Larsen, a retired genetic researcher and associate professor at the University of Utah, a perennially unsuccessful political candidate and the founder of the Personal Choice Party. The drum circle is a real religion, he says, and therefore should be exempt from a new city ordinance banning smoking in city parks.
The ordinance grants an exemption for tobacco smoking in American Indian/Alaska Native ceremonies, as well as "First Amendment Activities ... such as smoking or use of materials for bona fide religious purposes." Which is exactly why it applies to the drum circle, says Larsen, because smoking tobacco "enhances the spiritual experience" of the drumming.
That's what he argued in a petition signed by 150 drummers and presented to the Salt Lake City Council last month. "We get all kinds of petitions," says council chairman Van Turner, who adds that the council has no plans to put the matter on the agenda. Now Larsen says maybe he'll take the matter to court.
His campaign to have the drum circle classified as a religion is a reminder that — from polygamy to peyote — America is still struggling to define what "religion" means and how religious practices and the law intersect.
As a religious practice, peyote has fared better than polygamy. In February 2006, the U.S. Supreme Court ruled in an 8-0 opinion that the 1993 Religious Freedom Restoration Act protects a 130-member New Mexico church in its use of a hallucinogenic tea known as hoasca. Chief Justice John G. Roberts noted that using the tea was "a sincere exercise of religion" and that the ruling also included the ceremonial use of peyote. On the other hand, another landmark case ruled that two Oregon Native Americans could be denied unemployment benefits after being fired from their jobs because they had used peyote in a religious ceremony.
That 1990 decision "has undone" the First Amendment, argues Frank K. Flinn, adjunct professor of religious studies at Washington University in St. Louis, Mo. Flinn has served as an expert legal witness in dozens of cases involving the legal rights of religious groups — "all the oddball cases," as Flinn puts it — and over the years he has come up with a definition of religion that he says has been accepted in "quite a few court proceedings, state, federal and international."
For a group or assembly of people to constitute a religion, according to his definition, there has to be "some kind of opening to the divine, to something transcendent." But the divine doesn't have to be God, Flinn says, and the group's beliefs don't have to be a creed. A religion, he says, usually has norms for behavior, rites and ceremonies, and an identifiable community of believers.
To determine whether he considers the Liberty Park Drum Circle a bona fide religion, he says, would require extensive interviews. "This group may be tweaking the nose of the authorities. On the other hand, it may be the beginning of a religion." At this point Flinn laughs uproariously and adds, "I'm not kidding you. Religions start for all kinds of reasons. ... Christianity started with this guy up in Galilee protesting the authorities."
In First Amendment cases, he says, "the burden is always on the state. Because of the First Amendment, you bend over backwards to accommodate." Yes, some groups are fraudulent, he says. "But you have to be very careful claiming something is a fraud."
Indeed, one man's religion is another man's cult. And what may seem misguided or comical or pointless to some people may be meaningful to others.
Drumming can be a spiritual activity, Flinn says, and so can smoking. Native Americans, who have traditionally used a more concentrated form of tobacco, believe that smoke carries prayers to the Creator. But for smoking to be considered a religious practice, he says, "the religious purpose has to define the smoking and not vice versa. Are they smoking and then claiming it's religious, or are they doing the smoking for a religious reason? ... Are they just trying to smoke in a public place?
"The Rastafarians once asked me to defend their use of ganja (marijuana) on religious grounds," Flinn explained recently in an e-mail. "I asked them 'When do you want to use it in a religious context?' They replied 'All the time.' I said I could not defend that use."
Over time, Flinn says, the Supreme Court has moved away from giving either specific content or Christian bias in defining what religion means. "In a sense, the definition of religion is ultimately left to the people to decide. Maybe 'religion' is one of those words like 'love' that always elude definitive definition."
Last Sunday Ken Larsen sat in a chair in the drum circle at Liberty Park. He was wearing a straw hat and his trademark suspenders, and was periodically beating on a flat drum decorated with a picture of an American Indian chief, oblivious to the fact that his beat wasn't in sync with the African rhythms being slapped out on the other side of the circle. The air was heavy with the smell of burning sage.
Not too far away, six police officers on bicycles surveyed the scene. The park patrol began after a man was fatally stabbed at the drum circle in 2005; the idea, said Sgt. Stefhan Bennett, is to make sure the crowd — which sometimes numbers several hundred — "follows the same laws as everyone else." The tobacco smoking ban, he said, makes it easier to crack down on marijuana smokers, although that's not why the City Council passed the ordinance that went into effect last January. Citizens, as well as representatives from the Cancer Society and the Lung Association, asked for the ban because of what they argued was the deleterious effect of outdoor secondhand smoke.
Last Sunday, officers handed out tickets to several people caught smoking cigarettes, but they missed the joints that were surreptitiously passed around. At one point, Larsen rose, walked to the center of the circle and announced "Attention everybody: It is now 4:20." Several people cheered, since 420 is a code word for marijuana.
It would be easy to dismiss Larsen's petition about the drum circle as insincere, especially given the fact that his first correspondence with Mayor Rocky Anderson about the matter argued essentially that religious smokers were being given more leeway and that this violated 14th Amendment rights. Ten days later he began using the argument that the drum circle is a religion.
Larsen grew up LDS, was an "Indian dancer" with the Brigham Young University folk dancers in the mid-1960s, and has studied with a Native American shaman. He once sued the state for the right to buy a gun without a background check, and got the first ticket for cruising State Street so he could challenge that law before the Utah Supreme Court. In 1994 he invented nine religions, including the Church of the Hemp Goddess. His point was this: Some personal freedoms are illegal, but if they were "religions" they would be protected under the First Amendment. But he also insists that the drum circle has given him spiritual insight and is a "bona fide religion."
Here's what happened last Sunday, he explained later in an e-mail: "I relaxed and looked up into the tree. Suddenly, the sunshine coming through the leaves around a branch reminded me of a scene in (the movie) 'The Book of John' when Jesus met Nathaniel." Larsen says he received a message as he looked up at the trees:
"I've been quite disappointed at the slow rate at which names are coming in to get the Personal Choice Party back on the ballot. I am disappointed that my clear logic would not be sufficient to get the City Council to take action on behalf of the Drummers. I was wondering if I should just let it all go and enjoy my life. The message was, essentially, 'You're OK. You don't know how many others are working on the same cause (restoring the freedom of the Founders). Just keep doing what you are doing. You are just fine.' It was like a wink from God."
Larsen's logic goes like this: "If we have the inalienable right to the pursuit of happiness, as long as we do not cause harm, and if the sole purpose of government is to protect our rights, then whatever we believe can make us happy spiritually is a 'bona fide' religion." He finds it ironic, he says, that a state founded by refugees from states whose governments said Mormonism wasn't "bona fide" is now "persecuting other people because of their religion."
"They're using the no-smoking ordinance to have an excuse to harass us," says Bryan Farnsworth about the police in the park. "They've stepped up their attack." The 45-year-old Farnsworth, once a Marine, now walks the streets of Salt Lake City wearing a sarong and a shawl draped over his head to keep off the noonday sun. He says he feels spiritual when he dances at the drum circle. "I feel like I'm being taken up by the energy of the earth and spreading it around."
Whether that constitutes "religion," and whether smoking cigarettes is a religious practice or just a way to relax, may eventually be up to the courts to decide. Making the whole matter more complicated is Rick Brough, a Hopi Indian shaman who last Sunday brought his ceremonial pipe, packed with herbs and tobacco, which he smoked in the center of the drum circle.