CARL ERIC OLSEN, Petitioner v. DRUG ENFORCEMENT ADMINISTRATION, RESPONDENT; CARL
ERIC OLSEN, Appellant v. JOHN LAWN, Administrator, Drug Enforcement Administration
Nos. 86-1442, 86-5455
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
279 U.S. App. D.C. 1, 878 F.2d 1458 (D.C. Cir. 1989)
February 7, 1989, Argued
June 20, 1989, Decided
SUBSEQUENT HISTORY: Writ of certiorari denied Olsen v. Drug Enforcement
Admin., 495 U.S. 906, 110 S. Ct. 1926, 109 L. Ed. 2d 290 (1990)
Related proceeding at Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008)
PRIOR HISTORY: [**1] Petition for Review of an
Order of the Drug Enforcement Administration. Appeal from the United States District
Court for the District of Columbia, D.C. Civil Action No. 86-00236.
Olsen v. Drug Enforcement Admin., 475 U.S. 1030, 106 S. Ct. 1236, 89 L.
Ed. 2d 344 (1986)
COUNSEL: Steven J. Routh (appointed by the court) and William A.
Bradford, Jr. (appointed by the court) were on the Amicus Curiae brief, on behalf
of Petitioner/Appellant, urging remand. Carl Eric Olsen entered an appearance Pro
Curtis E. Hall, Assistant U.S. Attorney, with whom Jay B. Stephens, United States
Attorney, John D. Bates, and R. Craig Lawrence, Assistant U.S. Attorneys, were on
the brief, for Respondent/Appellee. Mark E. Nagle, Assistant U.S. Attorney, also
entered an appearance for Respondent/Appellee.
JUDGES: Ruth B. Ginsburg, Silberman, and Buckley, Circuit Judges.
Dissenting opinion filed by Circuit Judge Buckley.
OPINION BY: GINSBURG
[*1459] GINSBURG, RUTH B., Circuit Judge
Petitioner in this case seeks a religious-use exemption from federal laws proscribing
marijuana. We hold that the first amendment's free exercise of religion guarantee
does not require the requested exemption, and that petitioner was not denied equal
protection-establishment clause rights by the [**2] government's
refusal to accommodate his church's sacramental use of marijuana.
Petitioner Olsen is a member and priest of the Ethiopian Zion Coptic Church. While
the church is alleged to have several thousand members in Jamaica, it has never
had more than between 100 and 200 members in the United States. Olsen asserts, and
the government concedes for purposes of this case, that the church's sacrament is
marijuana; under church teachings, marijuana is combined with tobacco and smoked
"continually all day, through church services, through everything we do."
State v. Olsen, 315 N.W.2d 1, 7 (Iowa 1982) (quoting Olsen's testimony).
Olsen and his fellows have been convicted several times in federal and state courts
of various marijuana offenses, including importation of twenty tons of the drug,
and first amendment challenges to these convictions have been uniformly rejected.
See Olsen v. Iowa, 808 F.2d 652 (8th Cir. 1986); United States v. Rush,
738 F.2d 497 (1st Cir. 1984), cert. denied, 470 U.S. 1004, 84 L. Ed. 2d
378, 105 S. Ct. 1355 (1985);
United States v. Middleton, 690 F.2d 820 (11th Cir. 1982), [**3]
cert. denied, 460 U.S. 1051, 75 L. Ed. 2d 929, 103 S. Ct. 1497 (1983);
State v. Olsen, 315 N.W.2d 1 (Iowa 1982); Town v. State ex rel. Reno,
377 So. 2d 648 (Fla. 1979), cert. denied, 449 U.S. 803, 66 L. Ed. 2d 7,
101 S. Ct. 48 (1980).
The federal convictions were based on the Controlled Substances Act, 21 U.S.C. §§
801-904 (1982), which lists marijuana as a "Schedule I" controlled substance
with a "high potential for abuse." Id. § 812(b)(1)(A) & (c). Between
1983 and 1985, Olsen several times petitioned the Drug Enforcement Administration
(DEA), which administers the Act, for an exemption permitting his church's sacramental
use of marijuana. Olsen maintained that such an exemption is required by the first
amendment's guarantee of the free exercise of religion. He further urged, under
an establishment clause-equal protection rubric, that his church is entitled to
an exemption similar to that granted by federal regulation to the Native American
Church for its sacramental use of peyote. See 21 C.F.R. § 1307.31 (1987).
In an effort to prompt a response from the DEA, Olsen unsuccessfully [**4]
sued in the Eleventh Circuit to compel agency action. Olsen v. DEA, 776 F.2d
267 (11th Cir. 1985) (affirming district court's dismissal of Olsen's complaint),
cert. denied, 475 U.S. 1030, 106 S. Ct. 1236, 89 L. Ed. 2d 344 (1986).
Thereafter, in January 1986, Olsen petitioned the U.S. District Court for the District
of Columbia for a writ of mandamus, and that court, in March 1986, directed the
DEA to show cause why the writ should not issue. In April 1986, in a three-paragraph
letter ruling, the DEA denied Olsen's petitions; the letter reported the DEA's conclusion
that "the immensity of the marijuana abuse problem," and the correspondingly
"compelling governmental interest" in controlling trafficking in and use
of the substance, "outweighed" the church's interest in access to marijuana.
Letter from John C. Lawn, DEA Administrator, to Carl Eric Olsen (Apr. 22, 1986).
The district court then dismissed Olsen's mandamus petition as moot.
Olsen, acting pro se, both petitioned this court for review of the DEA's decision,
and appealed from the district court's dismissal of his mandamus petition. In February
[*1460] 1988, this court, on its own [**5] motion,
directed appointment of members of the law firm of Hogan and Hartson to serve as
amicus curiae "to address those issues raised by [Olsen] and any other issues
appropriate for the court's consideration in this case." [Footnote 1] After
amicus filed a brief, the DEA moved to remand the matter for renewed agency consideration.
In April 1988, we authorized further agency proceedings and instructed the DEA to
supplement the record and return it with a final order by July 29, 1988. On remand,
amicus presented Olsen's proposal for a "restrictive religious exemption"
that would include the following limitations:
-- Church members would be restricted to using marijuana during their Saturday evening
prayer ceremony, which lasts from 8:00 p.m. until 11:00 p.m.;
-- During that ceremony, and for the eight hours following that ceremony, Church
members would not leave the place where the ceremony is conducted; they would not
drive automobiles or otherwise go out in public;
-- Ingestion of marijuana would be limited to Church members who had reached the
age of majority, according to the laws of the state in which the ceremony takes
-- Ingestion of marijuana would be limited to [**6] full Church
members who had undergone the confession ritual for entering the Church's community.
. . .
Memorandum of Court-Appointed Amicus Curiae in Support and on Behalf of Petitioner
Carl E. Olsen at 29-30 (submitted to DEA on remand).
On July 29, 1988, the DEA issued its Final Order, reaffirming its denial of Olsen's
exemption requests. That order, which we set out in full as an Appendix to this
opinion, first disclaimed statutory authority to grant the exemption. According
to the DEA, Congress intended no religious-use exemption from Controlled Substances
Act proscriptions other than the peyote-use permission granted the Native American
Church. Next, the DEA assumed, in order [**7] to rule completely,
that it had authority to consider Olsen's exemption petition. It further accepted,
for purposes of its decision, that the Ethiopian Zion Coptic Church is a bona fide
religion with marijuana as its sacrament. The agency then rejected Olsen's free
exercise claim, concluding that the government has a compelling interest in the
regulation of controlled substances and that accommodation to religious use of drugs
is not required. Final Order, infra pp. 1465-68.
The DEA also rejected Olsen's establishment clause-equal protection plea, stating
why, on the matter in controversy, it deemed the Ethiopian Zion Coptic Church not
similarly situated to the Native American Church. Id. p. 1467. First, Olsen's church
"advocates the continuous use of marijuana or 'ganja', while the Native American
Church's use of peyote is isolated to specific ceremonial occasions." Id. Second,
the DEA reasoned: "While peyote and marijuana are both Schedule I controlled
substances with a defined high potential for abuse, the actual abuse and availability
of marijuana in the United States is many times more pervasive . . . than that of
peyote." Id. p. 1467 (emphasis added). [**8] Third, the DEA
noted that Olsen was convicted in
Rush for importing twenty tons of marijuana, "an outrageous quantity
to supply [his church's] religious needs." Id. The DEA also rejected
Olsen's proposal to restrict usage, saying monitoring compliance would be "impractical."
Id. p. 1468.
The DEA's July 1988 Final Order is now before this court for review. [Footnote 2]
The DEA initially asserted in its July 1988 Final Order that Congress had given
[*1461] the agency no authority to grant the exemption Olsen sought.
Apart from permitting legitimate medical and scientific or research use, the DEA
maintained, Congress intended no exemption other than the one, supported in the
legislative history of the Controlled Substances Act, for the Native American Church.
Final Order, infra pp. 17-18. This argument did not figure in the [**9]
DEA's original denial of Olsen's petitions; the agency's April 1986 letter ruling,
we note, responded immediately and directly to the merits of Olsen's request.
The DEA's contention that Congress directed the Administrator automatically to turn
away all churches save one opens a grave constitutional question. A statutory exemption
authorized for one church alone, and for which no other church may qualify, presents
a "denominational preference" not easily reconciled with the establishment
clause. See Larson v. Valente, 456 U.S. 228, 245, 72 L. Ed. 2d 33, 102
S. Ct. 1673 (1982); cf. infra pp. 12-13. We resist an interpretation dissonant with
the "cardinal principle" that legislation should be construed, if "fairly
possible," to avoid a constitutional confrontation. See Ashwander v. TVA,
297 U.S. 288, 348, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J., concurring).
Furthermore, we recognize that even if the DEA were not empowered or obliged to
act, Olsen would be entitled to a judicial audience. Ultimately, the courts cannot
escape the obligation to address his plea that the exemption he seeks is mandated
by the first amendment's religion [**10] clauses. See Peyote Way
Church of God v. Smith, 742 F.2d 193 (5th Cir. 1984) (upholding church's
standing to seek a declaratory judgment that denying church access to peyote is
unconstitutional). We are aided in this task of judicial review by the consideration
given the matter, in the first instance, by the expert administrator.
In sum, for purposes of this case, we accept the position that Congress did not
strip the DEA of authority to rule on the merits of Olsen's petitions, [Footnote
3] and we turn to the questions whether the free exercise of religion clause or
the equal protection principle (coupled with the establishment clause) commands
the exemption Olsen seeks.
Olsen's free exercise claim has been raised, considered, and rejected in the context
of criminal proceedings. See Olsen v. Iowa, 808 F.2d at 653; Rush, 738 F.2d at 512-13;
690 F.2d at 824-26; State v. Olsen, 315 N.W.2d at 7-9; Town v. State ex
rel. Reno, 377 So.2d at 650-51. We agree, substantially, with those dispositions,
and therefore need not treat the issue expansively.
It is familiar doctrine that the free exercise clause "embraces two concepts,
-- freedom to believe and freedom to act. The first is absolute but, in the nature
of things, the second cannot be. Conduct remains subject to regulation for the protection
of society." Cantwell v. Connecticut, 310 U.S. 296, 303-04, 84 L.
Ed. 1213, 60 S. Ct. 900 (1940). As the Supreme Court recently restated:
The Court has rejected challenges under the Free Exercise Clause to governmental
regulation of certain overt acts prompted by religious beliefs or principles, for
"even when the action is in accord with one's religious convictions, [it] is
not totally free from legislative restrictions." Braunfeld v. Brown,
366 U.S. 599, 603, 6 L. Ed. 2d 563, 81 S. Ct. 1144 (1961). [**12]
The conduct or actions so regulated have invariably posed some substantial threat
to public safety, peace or order. See, e.g., Reynolds v. United States,
98 U.S. 145, 25 L. Ed. 244 (1879) [upholding ban on polygamy]; Jacobson v. Massachusetts,
197 U.S. 11, 49 L. Ed. 643, 25 S. Ct. 358 (1905) [compulsory vaccination law]; Prince
v. Massachusetts, [*1462] 321 U.S. 158, 88 L. Ed. 645,
64 S. Ct. 438 (1944) [child labor law]; Cleveland v. United States, 329
U.S. 14, 91 L. Ed. 12, 67 S. Ct. 13 (1946) [application of Mann Act to religiously
Employment Division v. Smith, 485 U.S. 660, 108 S. Ct. 1444, 1450 n. 13,
99 L. Ed. 2d 753 (1988) (quoting Sherbert v. Verner, 374 U.S. 398, 403,
10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963)).
In appraising laws alleged to constrain religious conduct, the Supreme Court has
instructed lower courts to consider: (a) whether the law interferes with the free
exercise of sincere religious belief; (b) whether the law is essential to accomplish
an overriding governmental objective; and (c) whether accommodating the [**13]
religious conduct would unduly interfere with fulfillment of the governmental interest.
See United States v. Lee, 455 U.S. 252, 256-59, 71 L. Ed. 2d 127, 102 S.
Ct. 1051 (1982);
Rush, 738 F.2d at 512. The first two factors stated in Lee
are not contested in this case. The DEA, "for purposes of this decision . .
. accepts that the Ethiopian Zion Coptic Church is a bona fide religion whose sacrament
is marijuana." Final Order, infra p. 1466. And "Olsen does not dispute
the government's compelling interest in controlling the distribution and drug-related
use of marijuana." Brief of Court-Appointed Amicus Curiae at 18. Indeed, "every
federal court that has considered the matter, so far as we are aware, has accepted
the congressional determination that marijuana in fact poses a real threat to individual
health and social welfare."
Rush, 738 F.2d at 512.
The pivotal issue, therefore, is whether marijuana usage by Olsen and other members
of his church can be accommodated without undue interference with the government's
interest in controlling the drug. Three circuits have so far considered pleas for
religious exemption from the [**14] marijuana laws; each has rejected
the argument that accommodation to sacramental use of the drug is feasible and therefore
738 F.2d at 513 (First Circuit); Olsen v. Iowa, 808 F.2d at 653 (Eighth
Middleton, 690 F.2d at 825 (Eleventh Circuit). We have no reason to
doubt that these courts have accurately gauged the Highest Court's pathmarks in
Olsen refers to his proposal for restrictive use, see supra pp. 4-5, and claims
that this case is now differently contoured than earlier ones. Even if the government
is not required to accommodate to the extent of allowing a broad religious exemption,
he argues, it can and must accommodate to the time- and place-specific use he has
proposed. Because the tenets of the Ethiopian Zion Coptic Church endorse marijuana
use every day throughout the day, however, Olsen's proposal for confined use would
not be self-enforcing. It is hardly unreasonable to forecast a large monitoring
burden in light of evidence that in years past, the church's "checks on distribution
of cannabis to nonbelievers in the faith [were] minimal," there was "easy
access to cannabis [**15] for a child who had absolutely no interest
in learning the religion," and "members [partook] of cannabis anywhere,
not just within the confines of a church facility." Town v. State ex rel. Reno,
377 So.2d at 649, 651.
Critically, Olsen's proposal would require the government to make supplies of marijuana
available to Olsen's church on a regular basis. See Reply Brief of Court-Appointed
Amicus Curiae at 7, 17. We are unaware of any "free exercise" precedent
for compelling government accommodation of religious practices when that accommodation
requires burdensome and constant official supervision and management. Cf. Wisconsin
v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (religious
exemption from compulsory school law at issue imposed no toll on the state); Sherbert
v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963) (payment
of unemployment compensation to person fired for refusing to work on Saturday Sabbath
required no administrative mechanism other than the one already in place); Leahy
v. District of Columbia, 266 U.S. App. D.C. 142, 833 F.2d 1046, 1049 n.
6 (D.C.Cir. 1987) [**16] (noting plaintiff Leahy's observation
that government could readily accommodate religious objection to use of [*1463]
social security number in driver's license application, "for the city already
had in place an alternate system of numbers, used for issuing diplomatic driver's
licenses"). [Footnote 4]
Amicus also cites the peyote exemption accorded the Native American Church as affording
"reason . . . to believe that a workable accommodation exists in this case."
Id. at 21. This argument is addressed infra in the context of Olsen's establishment
clause-equal protection claim.
[**17] In sum, we conclude that the DEA cannot accommodate Olsen's
religious use of marijuana without unduly burdening or disrupting enforcement of
the federal marijuana laws. We therefore hold that the free exercise clause does
not compel the DEA to grant Olsen an exemption immunizing his church from prosecution
for illegal use of marijuana.
In addition to the argument that the free exercise clause requires government accommodation
to sacramental use of marijuana by members of the Ethiopian Zion Coptic Church,
Olsen asserts an establishment clause-equal protection challenge. He maintains that
members of his church are entitled to a religious exemption from the marijuana laws
on the same terms as the peyote exemption granted the Native American Church. See
21 C.F.R. § 1307.31 ("The listing of peyote as a controlled substance in Schedule
I does not apply to the nondrug use of peyote in bona fide religious ceremonies
of the Native American Church, and members of the Native American Church so using
peyote are exempt from registration."). Olsen has urged before that members
of his church are similarly situated to the beneficiaries of the exemption prescribed
in 21 C.F.R. [**18] § 1307.31. See Olsen v. Iowa, 808
F.2d at 653;
Rush, 738 F.2d at 513. We join our sister courts in rejecting this
plea. Indeed, had the DEA timely objected, we might have held the issue precluded.
See RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1982). [Footnote 5]
We do not believe the label consequential. As court-appointed amicus recognized,
in cases of this character, establishment clause and equal protection analyses converge.
See Walz v. Tax Comm'n, 397 U.S. 664, 694, 696, 25 L. Ed. 2d 697, 90 S.
Ct. 1409 (1970) (Opinion of Harlan, J.) (establishment clause requirement of neutrality
"in its application requires an equal protection mode of analysis").
[**19] The DEA has cogently explained why a tightly-cabined exemption
for peyote use in a religious rite need not mean that religious use of marijuana
(or any other widely used controlled substance) must be accommodated:
The actual abuse and availability of marijuana in the United States is many times
more pervasive . . . than that of peyote. . . . The amount of peyote seized and
analyzed by the DEA between 1980 and 1987 was 19.4 pounds. The amount of marijuana
seized and analyzed by the DEA between 1980 and 1987 was 15,302,468.7 pounds. This
overwhelming difference explains why an accommodation can be made for a religious
organization which uses peyote in circumscribed ceremonies, and not for a religion
which espouses continual use of marijuana.
Final Order, infra p. 1467.
We agree that the vast difference in demand for marijuana on the one hand and
[*1464] peyote on the other warranted the DEA's response to Olsen's
petition. Were the DEA to consider a marijuana exemption, equal protection (and/or
the establishment clause, see supra note 5) would indeed appear to command that
it do so evenhandedly. See Larson v. Valente, 456 U.S. 228, 72 L. Ed. 2d
33, 102 S. Ct. 1673 (1982); [**20] cf. Kennedy v. Bureau of Narcotics
and Dangerous Drugs, 459 F.2d 415 (9th Cir. 1972) (petitioning church not
entitled to peyote-use exemption that leaves nonexempt other churches that use peyote
in bona fide religious ceremonies), cert. denied, 409 U.S. 1115, 34 L.
Ed. 2d 699, 93 S. Ct. 901 (1973). The DEA would have no warrant to contain the exemption
to a single church or religion. See, e.g., Randall v. Wyrick, 441 F. Supp.
312 (W.D.Mo. 1977) (Aquarian Brotherhood Church); Whyte v. United States,
471 A.2d 1018, 1020 (D.C. 1984) (Rastafarians); State v. Rocheleau, 142
Vt. 61, 451 A.2d 1144, 1148-49 (1982) (practitioners of Tantric Buddhism).
Even if we were to credit Olsen's equal protection argument or the dissent's portrayal
of it in terms of the establishment clause, the remedy Olsen requests hardly follows.
Faced with the choice between invalidation and extension of any controlled-substances
religious exemption, which would the political branches choose? It would take a
court bolder than this one to predict, as our dissenting colleague appears to suggest,
that extension, not invalidation, [**21] would be the probable
choice. Compare Califano v. Westcott, 443 U.S. 76, 89-93, 61 L. Ed. 2d
382, 99 S. Ct. 2655 (1979) (majority opinion) with id. at 94-96 (Powell,
J., dissenting). See generally Miller, Constitutional Remedies for Under-inclusive
Statutes: A Critical Appraisal of Heckler v. Mathews, 20 HARV. C.R.-C.L.
L.REV. 79 (1985); Ginsburg, Some Thoughts on Judicial Authority to Repair Unconstitutional
Legislation, 28 CLEVE.ST.L.REV. 301 (1979).
While we rest our decision on the immensity of the marijuana control problem in
the United States, we note some further distinctions. The peyote exemption was accorded
to the Native American Church for a traditional, precisely circumscribed ritual.
In that ritual, the peyote itself is an object of worship; for members of the Native
American Church, use of peyote outside the ritual is sacrilegious. See People v.
Woody, 61 Cal. 2d 716, 394 P.2d 813, 817, 40 Cal. Rptr. 69 (1964). Thus
the church, for all purposes other than the special, stylized ceremony, reinforced
the state's prohibition. In contrast, the Ethiopian Zion Coptic Church, as earlier
observed, [**22] teaches that marijuana is properly smoked "continually
all day," as Olsen himself stated, "through everything that we do."
State v. Olsen, 315 N.W.2d at 7; see also Town v. State ex rel. Reno,
377 So.2d at 649. True, for purposes of the exemption requested, Olsen narrowed
the permission he sought to track the one accorded the Native American Church. See
Memorandum of Court-Appointed Amicus Curiae in Support and on Behalf of Petitioner
Carl E. Olsen at 29-30 (submitted to DEA on remand). But "narrow" use,
concededly, is not his religion's tradition.
We mention too -- but express no opinion concerning -- the view of the First Circuit
that the peyote exemption is bound up with the federal policy of preserving Native
American culture, and thus can be comprehended properly only "in light of the
sui generis legal status of American Indians."
Rush, 738 F.2d at 513; accord Peyote Way Church of God v. Meese,
698 F. Supp. 1342, 1346-49 (N.D.Tex. 1988) (Native American Church is "the
only one of its own kind" and exemption afforded it since 1965 "cannot
be expanded to include non-Native American Church use of peyote"), [**23]
appeal filed, Dec. 22, 1988; United States v. Warner, 595 F. Supp. 595,
600-01 (D.N.D. 1984) (exemption for Native American Church is tied to fulfillment
of "government's unique obligation" to preserve Indian culture). Contra
Native American Church of New York v. United States, 468 F. Supp. 1247
(S.D.N.Y. 1979) (peyote exemption must be made available to another church if in
fact it similarly uses peyote for sacramental purposes), aff'd mem., 633
F.2d 205 (2d Cir. 1980).
In sum, assuming arguendo the legitimacy of an exemption for religious use of
[*1465] peyote, [Footnote 6] we are persuaded that the Executive was
not obliged by the Constitution to spread that exemption to church-users of marijuana.
For the reasons stated, in No. 86-1442 we deny Olsen's petition for review and affirm
on the merits the DEA's July 1988 Final Order; and in No. 86-5455 we declare Olsen's
petition for a writ of mandamus moot and properly dismissed on that basis.
It is so ordered.
UNITED STATES DEPARTMENT OF JUSTICE DRUG ENFORCEMENT ADMINISTRATION
In the Matter of
PETITION OF CARL E. OLSEN FOR THE ETHIOPIAN ZION COPTIC CHURCH FOR AN EXEMPTION
FROM THE CONTROLLED SUBSTANCES ACT
On Remand From the United States Court of Appeals for the District of Columbia Circuit
This order is issued pursuant to an Order from the United States Court of Appeals
for the District of Columbia Circuit which remanded the matter of a petition from
Carl Eric Olsen on behalf of the Ethiopian Zion Coptic Church to the Drug Enforcement
Administration (DEA) in order to construct a complete record for review.
On April 22, 1986, the Administrator of DEA denied Mr. Olsen's request for an exemption
from the Controlled Substances Act for use of marijuana for religious purposes by
the Ethiopian Zion Coptic Church. Mr. Olsen petitioned the United States Court of
Appeals [**25] for the District of Columbia Circuit for review
of the Administrator's denial. The Court remanded the matter to the DEA for further
findings and a more complete record for review. Pursuant to the Court's Order, agency
counsel requested Mr. Olsen and the law firm of Hogan & Hartson, appointed amicus
curiae by the Court, to present any documents, evidence or arguments which they
wished the Administrator to consider in rendering a final decision.
Hogan & Hartson submitted a Memorandum of Law with attachments. Counsel for
DEA has also provided the Administrator with a Memorandum of Law and attached documents.
The Administrator has considered the evidence before him, and hereby renders a final
In his petition for exemption to use of marijuana for religious purposes, Mr. Olsen
requests an exemption similar to that granted to the Native American Church for
use of peyote in bona fide religious ceremonies. This exemption is found in Title
21, Code of Federal Regulations, Section 1307.31. Mr. Olsen cites Constitutional
principles relating to the Free Exercise Clause of the First Amendment and Equal
Protection as the basis for his request. He also outlines [*1466]
the history [**26] of the Ethiopian Zion Coptic Church and its
use of marijuana as a sacrament. For the reasons that follow, Mr. Olsen's request
The Administrator finds that he does not have the authority to grant the exemption
requested by Mr. Olsen. The Administrator's authority to conduct rulemaking and
to make waivers to regulatory and statutory provisions of the Controlled Substances
Act is specifically circumscribed by that Act. The Controlled Substances Act contemplates
legitimate manufacturing, distribution and use of controlled substances for medical,
scientific and research purposes.
The Controlled Substances Act provides that all persons who desire to manufacture,
distribute or dispense controlled substances must obtain a registration to do so.
The Attorney General is authorized to waive the requirement of registration if he
finds that it is in the public interest. The terms manufacture, distribute and dispense
are defined in the Controlled Substances Act and contemplate activity involving
medical and scientific use of controlled substances. Neither manufacturing, distribution
or dispensing contemplates the possession of controlled substances for other than
legitimate medical [**27] or research purposes.
The Administrator does not have inherent authority to make exemptions to the statute.
In granting the exemption for the Native American Church, the Director of the Bureau
of Narcotics and Dangerous Drugs (BNDD) relied upon the intentions of Congress in
the legislative history of the Controlled Substances Act for his authority.
The courts have found that the Administrator has authority to schedule substances
under the Controlled Substances Act. This authority was granted to the Attorney
General by Congress with specific criteria and procedural requirements for scheduling.
The authority was subsequently delegated to the Administrator by the Attorney General
as provided by the Act. See: 21 U.S.C. § 871(a). The criminal sanctions of the Act
are dependent upon a substance being scheduled, and into which schedule it is placed.
The criteria for scheduling do not include provisions for religious use. There is
no mechanism for an exemption to scheduling for religious purposes. The courts have
closely reviewed the Administrator's scheduling of substances, and have recently
held that he did not have the authority to temporarily schedule a substance
[**28] without a specific delegation from the Attorney General. If
the courts refuse to expand the Administrator's authority under the Act to permit
temporary scheduling which imposes criminal sanctions, it is expected they would
refuse to expand the Administrator's authority to waive those same criminal sanctions
without specific authorization.
Because of the possibility that the United States Court of Appeals for the District
of Columbia may find that the Administrator does have the authority to grant a religious
exemption to the provisions of the Controlled Substances Act, the Administrator
will also address the issue of whether the Ethiopian Zion Coptic Church should be
granted an exemption for the use of marijuana for religious purposes.
In the Memorandum of Law filed on behalf of Mr. Olsen in this matter, Mr. Olsen
represents that he has been denied basic procedural due process because no hearing
has been held. Where there is no issue of fact to be decided, and no statutory requirement
for a hearing, a hearing is not necessary. For purposes of this decision, the Administrator
accepts that the Ethiopian Zion Coptic Church is a bona fide religion whose sacrament
is marijuana. The [**29] Administrator also accepts Mr. Olsen's
representations of the method and manner of use of marijuana by members of the church.
The acceptance of these facts means there are no facts in dispute, and, therefore,
no necessity for a hearing.
The Administrator finds that the federal courts that have interpreted the Free Exercise
Clause of the First Amendment to the Constitution have held that an individual's
religious practices may be curtailed by government statute or requirement if the
government can show that its action serves a compelling state interest. See: Bowen
v. [*1467] Roy, 476 U.S. 693, 90 L. Ed. 2d 735,
106 S. Ct. 2147 (1986); United States v. Lee, 455 U.S. 252, 71 L. Ed. 2d
127, 102 S. Ct. 1051 (1982). The government must make a reasonable effort to accommodate
the religious practice, but it is not always possible to make such accommodation,
nor is it Constitutionally required. The lower courts have found, in cases where
religious practices were raised as a defense to criminal drug charges, that the
government has a compelling state interest in the regulation of controlled substances
and that accommodation is not usually possible. [**30] The cases
addressing the religious use of marijuana are consistent in finding that the Free
Exercise Clause does not require the government to permit religious use of controlled
substances. Beginning with Leary v. United States, 383 F.2d 851 (5th Cir.
1967), rev'd on other grounds, 395 U.S. 6, 23 L. Ed. 2d 57, 89 S. Ct. 1532
(1969), the federal appellate courts have found that the government has a compelling
interest in controlling marijuana use. See: United States v. Spears, 443
F.2d 895 (5th Cir. 1971), cert. denied, 404 U.S. 1020, 92 S. Ct. 693, 30
L. Ed. 2d 669 (1972);
United States v. Middleton, 690 F.2d 820 (11th Cir. 1982), cert. denied,
460 U.S. 1051, 75 L. Ed. 2d 929, 103 S. Ct. 1497 (1983); United States v. Rush,
738 F.2d 497 (1st Cir. 1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d
269, 105 S. Ct. 2370 (1985) and Olsen v. State of Iowa, 808 F.2d 652 (8th
Cir. 1986). It should be noted that the Petitioner in this matter, Mr. Olsen, was
an appellant in both the
Rush and Olsen cases, in which he raised his [**31]
religious use of marijuana in defense of criminal charges involving possession and
trafficking in marijuana. The
Middleton case involved a defendant who was a member of the Ethiopian
Zion Coptic Church.
While Mr. Olsen maintains that these cases are not relevant to the Administrator's
decision because they involve the defense of a criminal charge, the Administrator
finds that they are indeed relevant in that the courts discuss the very Constitutional
issues which must be addressed in this matter. In addition to finding that the members
of these religions had no Free Exercise guarantee to use controlled substances for
religious purposes, the courts also found that as a matter of equal protection,
these individuals' religions were not entitled to the same exemption as that given
by DEA to the Native American Church for use of peyote for bona fide religious purposes.
In finding that members of the Ethiopian Zion Coptic Church are not entitled to
the same exemption as the Native American Church, the courts have made a distinction
between the practices of the Native American Church and other churches, and the
court in Rush
stated, "we think the Ethiopian Zion Coptic Church cannot [**32]
be deemed similarly situated to the Native American Church for equal protection
United States v. Rush, 738 F.2d 497, 513 (1st Cir. 1984), cert. denied,
471 U.S. 1120, 86 L. Ed. 2d 269, 105 S. Ct. 2370 (1985). The Administrator finds
that there is indeed a distinction between the practices of the Native American
Church and the Ethiopian Zion Coptic Church. Mr. Olsen has stated that the Ethiopian
Zion Coptic Church advocates the continuous use of marijuana or "ganja",
while the Native American Church's use of peyote is isolated to specific ceremonial
In addition, the Administrator finds that while peyote and marijuana are both Schedule
I controlled substances with a defined high potential for abuse, the actual abuse
and availability of marijuana in the United States is many times more pervasive
in American society than that of peyote. The statistics of DEA confirm this conclusion.
The amount of peyote seized and analyzed by the DEA between 1980 and 1987 was 19.4
pounds. The amount of marijuana seized and analyzed by the DEA between 1980 and
1987 was 15,302,468.7 pounds. This overwhelming difference explains why an accommodation
[**33] can be made for a religious organization which uses peyote
in circumscribed ceremonies, and not for a religion which espouses continual use
of marijuana. The Administrator also notes that Mr. Olsen's conviction in United States v.
Rush involved the illegal importation of 20 tons of marijuana. Mr.
Olsen and the other 19 defendants all claimed to be members of the Ethiopian Zion
Coptic Church and raised the religious use of marijuana as a defense to criminal
charges. If Mr. Olsen's assertions that the Ethiopian Zion Coptic Church in the
United States has [*1468] never had, "more than between 100
and 200 members in this country," (Petitioner's Memorandum at page 11), 20
tons of marijuana would be an outrageous quantity to supply their religious needs.
Mr. Olsen submits that his church will submit to a reasonable accommodation to their
use of marijuana, limiting its ingestion to specific days and specific time periods.
Given the large amounts of marijuana available in this country, and the difficulty
the DEA would have in trying to monitor compliance which [sic] such a requirement,
the Administrator finds that accommodation is impractical. The public interest dictates
that [**34] the exemption granted for religious use of peyote to
the Native American Church should not be expanded to include marijuana for the Ethiopian
Zion Coptic Church, or any other religion.
Based upon the record in this proceeding, the legal precedents, and for the reasons
outlined, the Petition by Carl Eric Olsen submitted on behalf of the Ethiopian Zion
Coptic Church for an exemption to the Controlled Substances Act to use marijuana
for religious purposes, is hereby denied.
/s/ John C. Lawn
JOHN C. LAWN
Dated: July 26, 1988
DISSENT BY: BUCKLEY
BUCKLEY, Circuit Judge, dissenting:
I dissent because the majority fails to address the Establishment Clause implications
of the Drug Enforcement Agency's rejection of Olsen's request for a limited religious
exemption. That denial creates a clear-cut denominational preference in favor of
the Native American Church, which has been granted such an exemption. As the agency
has not adequately explained why the Ethiopian Zion Coptic Church must not be accorded
comparable treatment, I would grant Olsen's petition for review on the Establishment
Clause claim and remand to the agency.
The majority treats Olsen's denominational [**35] preference claim
as an equal protection challenge rather than as one involving the Establishment
Clause. Majority Opinion ("Maj. op.") at 11-15. While the Supreme Court
has at times discussed the principle of neutrality among religions in terms of equal
protection rights, see, e.g., Fowler v. Rhode Island, 345 U.S. 67, 70,
97 L. Ed. 828, 73 S. Ct. 526 (1953) (Frankfurter, J., concurring), Olsen's choice
of an Establishment Clause battleground is consistent both with the facts of this
case and with the Supreme Court's more recent precedent that applies the Establishment
Clause to denominational preferences (see Larson v. Valente, 456 U.S. 228,
244 et seq., 72 L. Ed. 2d 33, 102 S. Ct. 1673 et seq. (1982)).
Although certain aspects of the Supreme Court's Establishment Clause jurisprudence
are complex, the doctrine applicable in this particular case is straightforward.
"The clearest command of the Establishment Clause is that one religious denomination
cannot be officially preferred over another." Id. at 244; see also
Everson v. Board of Educ., 330 U.S. 1, 15, 91 L. Ed. 711, 67 S. Ct. 504
(1947) [**36] ("The 'establishment of religion' clause . .
. means at least this: Neither a state nor the Federal Government can set up a church.
Neither can pass laws which aid one religion, aid all religions, or prefer one religion
over another."). When we are presented with government action "granting
a denominational preference, our precedents demand that we treat the law as suspect
and that we apply strict scrutiny in adjudging its constitutionality." Larson,
456 U.S. at 246.
In the instant case, the DEA has permitted the Native American Church to make sacramental
use of a drug listed as a Schedule I controlled substance under the Controlled Substances
Act, but denied the Ethiopian Zion Coptic Church a similar accommodation. This denominational
preference constitutes a violation of the Establishment Clause unless the DEA is
able to demonstrate that "it is justified by a compelling governmental interest
. . . and . . . [*1469] is closely fitted to further that interest."
Larson, 456 U.S. at 247.
The DEA asserts that it does not have the inherent authority to grant exemptions,
and that "in granting the exemption for the Native American Church, [**37]
the [DEA's predecessor] relied upon the intentions of Congress in the Controlled
Substances Act for its authority." [Footnote *] In the Matter of Petition of
Carl E. Olsen for the Ethiopian Zion Coptic Church, Final Order (July 26, 1988)
("Final Order"), supra at 1465. On appeal, the agency also implies, DEA
Brief at 24, that the Native American Church is to be distinguished not on the basis
of its religious character, but on "the sui generis legal status of American
United States v. Rush, 738 F.2d 497, 513 (1st Cir. 1984)).
111 Cong. Rec. 15,977-78 (1965). The House concurred in the Senate amendment immediately
thereafter. Id. at 15,778.
[**38] Neither explanation is relevant. Whatever the DEA's authority
to grant exemptions, it has in fact granted one to the Native American Church. Furthermore,
that Church's status as an indigenous faith does not affect its religious character.
As the Department of Justice's Office of Legal Counsel wrote when reviewing the
Native American Church's exemption:
The special treatment of Indians under our law does not stem from the unique features
of Indian religion or culture. With respect to these matters, Indians stand on no
different footing than do other minorities in our pluralistic society. Rather, the
special treatment of Indians is grounded in their unique status as political entities,
formerly sovereign nations preexisting the Constitution, which still retain a measure
of inherent sovereignty over their peoples unless divested by federal statute or
by necessary implication of their dependent status. See United States v. Wheeler,
435 U.S. 313, 55 L. Ed. 2d 303, 98 S. Ct. 1079 (1978).
An exemption for Indian religious use of peyote would not be grounded in the unique
political status of Indians. Instead, the exemption would be based on the special
culture [**39] and religion of the Indians. In this respect, Indian
religion cannot be treated differently than other religions similarly situated without
violation of the Establishment Clause.
Memorandum Opinion for the Chief Counsel, Drug Enforcement Administration, Peyote
Exemption for Native American Church 403, 419 (Dec. 22, 1981), reprinted as attachment
16 of Memorandum of Court-Appointed Amicus Curiae in Support and on Behalf of Petitioner
Carl E. Olsen (submitted to DEA on remand) ("Amicus Memorandum").
As the United States Government unquestionably has granted the Native American Church
an accommodation that it has declined to extend to the Ethiopian Zion Coptic Church,
it has the burden of demonstrating that its action was required by its paramount
responsibility for the control of drugs. I submit that the DEA's explanation in
its Final Order falls far short of meeting Larson's strict scrutiny standard.
In its discussion of the issues implicated by the Establishment Clause, the DEA
finds two points of distinction between the Native American Church and the Ethiopian
[*1470] Zion Coptic Church. The first turns on differences between
the practices of the two [**40] churches as they relate to the
use of peyote and marijuana; the second hinges on the differences in the law enforcement
problems posed by the two drugs.
The first distinction is addressed in a single sentence: "Mr. Olsen has stated
that the Ethiopian Zion Coptic Church advocates the continuous use of marijuana
or 'ganja', while the Native American Church's use of peyote is isolated to specific
ceremonial occasions." Final Order, supra at 1467. The problem with this statement
is that it wholly ignores the stringent restrictions on the members' sacramental
use of marijuana that would be imposed by the terms of the limited religious exemption
requested by Olsen. See Maj. op. at 4-5. The DEA later acknowledges that Olsen has
proposed limiting the use of marijuana "to specific days and specific time
periods," but dismisses the proposal because of "the large amounts of
marijuana available in this country, and the difficulty the DEA would have in trying
to monitor compliance" with the stipulated restrictions. Final Order, supra
at 1468. Without more, I find this explanation utterly unsatisfactory as any member
of the Church found in possession of the drug outside the limited [**41]
hours and place set aside for its ceremonial use would not be shielded by the exemption.
Moreover, the restrictions proposed by Olsen, which are similar to those imposed
by the Native American Church on the sacramental use of peyote, clearly distinguish
this case from those cited by the DEA (id. at 21-22) and the majority (Maj. op.
at 11) to show that other circuits have rejected comparable claims advanced on behalf
of the Ethiopian Zion Coptic Church. None of those cases involved the facts now
before us: the denial of a request for a limited, prospective exemption from the
Controlled Substances Act that the government had already granted another denomination.
The second distinction made by the DEA, and the one that the majority finds compelling,
is the dramatic disparity between our society's abuse of the two substances as illustrated
by the fact that 19.4 pounds of peyote were seized by the DEA between 1980 and 1987
in contrast to the 15,302,468.7 pounds of marijuana seized during the same period.
Final Order, supra at 1467. "This overwhelming difference," the DEA asserts,
"explains why an accommodation can be made for a religious organization which
uses peyote in circumscribed [**42] ceremonies, and not for a religion
which espouses continual use of marijuana." Id. With all respect to the DEA
and my colleagues, I must demur. The difference in pounds seized is indeed overwhelming
but, again, the explanation is not.
The government's interest in preventing abuse of a given drug is not proportional
to the drug's prevalence. By classifying both marijuana and peyote as Schedule I
controlled substances, Congress has determined that the federal government has a
compelling interest in preventing the illegal distribution and use of both drugs.
Moreover, this quantitative justification, standing alone, is difficult to reconcile
with Larson. In that case, the Supreme Court invalidated a provision of
a Minnesota statute exempting religious organizations that receive more than fifty
percent of their funds from members ("fifty percent rule") from certain
registration and reporting requirements imposed on charitable organizations engaged
in fund-raising. The practical consequence of this provision was to confer a preference
on well-established denominations. Applying strict scrutiny to the State's justification
of the preference, the Court conceded Minnesota's compelling [**43] interest
in protecting its citizens from abusive solicitation practices but concluded that
it had failed to demonstrate that the fifty percent rule was closely fitted to further
that interest. 456 U.S. at 251.
Minnesota justified the rule on the ground that it could be assumed that members
of religious organizations exercise control over both the internal solicitation
of contributions and the expenditure of the funds that they contribute. Id.
at 248. The State asserted that where these safeguards do not exist, public
[*1471] disclosure is necessary. Id. The Court rejected this
justification for three reasons. First, it determined that the State had failed
to provide any evidence demonstrating that members of religious organizations "will
effectively control the organization if they contribute more than half of its solicited
income," id. at 249 (emphasis original); second, the State had not
supported its assumption "that membership control is an adequate safeguard
against abusive solicitations of the public by the organization," id.
at 250; and third, the Court rejected a premise behind the fifty percent [**44]
rule -- that the need for public disclosure corresponds to the percentage of nonmember
contributions. Id. at 251.
The Supreme Court's detailed scrutiny of Minnesota's justification of the fifty
percent rule underscores the superficiality of the DEA's justification of its denominational
preference in this case. The DEA offers no reason why it could not have tailored
a closer fit than its out-of-hand denial of the requested exemption. The DEA finds
no difficulty in monitoring the compliance by the more than 250,000 members of the
Native American Church with the limited use of peyote permitted for ceremonial purposes,
and the majority offers good reasons why this should be so. Maj. op. at 13-14. Yet
the only reason the agency gives for concluding that monitoring compliance by the
estimated one to two hundred communicants of the Ethiopian Zion Coptic Church living
in the United States (Amicus Memorandum at 11) should be more difficult is that
our streets are awash in marijuana. Without further explanation, I find this reasoning
less than compelling. As in the case of the Native American Church, the exemption
would place no restriction on the agency's normal enforcement [**45]
activities beyond the parameters of the Church's place of worship during the limited
number of hours in which the sacramental use of marijuana would be permitted.
The majority notes a significant problem the DEA might face if it were to grant
Were the DEA to consider a marijuana exemption, equal protection (and/or the establishment
clause . . .) would indeed appear to command that it do so evenhandedly. The DEA
would have no warrant to contain the exemption to a single church or religion.
Maj. op. at 1464 (citations omitted). I find the majority's "opening the floodgate"
argument more persuasive than anything the DEA has offered. It is for the agency,
however, to make the argument and to explain why it would find itself unable to
cope with the flood of similar applications, not for us to speculate about them.
Finally, the majority supports the denial of the exemption to Olsen by arguing that
Even if we were to credit Olsen's equal protection argument or the dissent's portrayal
of it in terms of the establishment clause, the remedy Olsen requests hardly follows.
Faced with the choice between invalidation and extension of any controlled-substances
[**46] religious exemption, which would the political branches
choose? It would take a court bolder than this one to predict, as our dissenting
colleague appears to suggest, that extension, not invalidation, would be the probable
Maj. op. at 1464. I have two responses. First, the Supreme Court has consistently
recognized that conceptual problems regarding appropriate remedial actions do not
relieve us of our obligation to review government classifications that are impermissibly
underinclusive. See, e.g., Arkansas Writers' Project, Inc. v. Ragland,
481 U.S. 221, 95 L. Ed. 2d 209, 107 S. Ct. 1722 (1987) (finding Arkansas statute
unconstitutionally underinclusive). Second, we would not be called upon to make
the choice the majority describes if, as I believe appropriate, we were to remand
the case to the DEA for further consideration in light of its Establishment Clause
The DEA has chosen to accommodate one religion but not another. The Establishment
Clause compels the agency to justify its distinction and requires us to scrutinize
the agency's rationale strictly. Given this demanding standard of review, I must
[*1472] conclude [**47] that the agency has failed
to satisfy its burden. Accordingly, I would grant Olsen's petition for review and
remand to the agency for reconsideration without reaching Olsen's Free Exercise