PEYOTE WAY CHURCH OF GOD, INC., Plaintiff-Appellant, v. William F. SMITH, Attorney
General of the United States and Jim Mattox, Attorney General of the State of Texas,
Defendants-Appellees
No. 83-1587
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
742 F.2d 193
September 24, 1984
PRIOR HISTORY: Appeal from the United States District Court for
the Northern District of Texas.
COUNSEL: Richard A. Allen, Raymond E. White, Amer. Civil Liberties
Union, Dallas Chapter, Dallas, Texas, for Appellant.
Jim Mattox, Atty. Gen., Leslie A. Benitez, AAG; Charles A. Palmer, AAG, Austin,
Texas, for Appellee.
William F. Smith, Atty. Gen., John T. Bannon, Jr, U.S. Dept. of Justice, Crim. Div.,
Washington, District of Columbia, for Appellee.
Elizabeth Bernstein, D. of J., Window Rock, Arizona, for Appellee.
JUDGES: Brown, Gee, and Rubin, Circuit Judges.
OPINION BY: RUBIN
OPINION
[*194] ALVIN B. RUBIN, Circuit Judge:
Under both federal and Texas law, the possession or distribution of peyote is a
criminal act. The Peyote Way Church of God, Inc. ("the Church") seeks
a declaration that these statutes are unconstitutional because they deny it freedom
of religion, infringe the equal protection clause by denying to it the exemption
accorded to members of the Native American Church, and deny it due process by making
an arbitrary distinction between it and the Native American Church. By summary judgment,
the district court upheld the constitutionality of [*195] both
federal and state statutes. In the face of the Church's declaration that it considers
peyote divine, an embodiment of the deity, and the use of peyote a sacrament, the
record does not show a compelling state interest in denying its members the right
to use peyote in religious ceremonies or that the denial was narrowly drawn to attain
the important governmental purpose. Hence, we remand for further proceedings to
determine whether the statutory proscriptions deny to members of the Church the
right freely to exercise their religion.
I.
The district court rendered summary judgment in favor of the defendants. We may
sustain that ruling only if there is no "genuine issue as to any material fact."
[Footnote 1] In making this determination, any inferences to be drawn from the evidentiary
record must be viewed in the light most favorable to the Church. [Footnote 2] We
recite therefore the Church's version of the facts.
In 1948 Immanuel P. Trujillo, currently the President of the Church, became a member
of the Native American Church, a peyotist religion that admits only persons whose
ethnic descent is at least 25% derived from American Indian stock and their spouses
(whether Indian or not). Objecting to this racial exclusion, Trujillo joined others
in the 1960's in founding an "all-race group" within the Native American
Church. Later, he became dissatisfied with what he viewed as continuing discrimination
by the national governing body of the Native American Church against the non-Indian
members of the all-race group and with that church's failure to recognize the teachings
of Joseph Smith, and he became increasingly aware of the cultural and educational
differences between the all-race group and the main membership. With others, Indian
and non-Indian, [Footnote 3] he left the Native American Church about 1966 and established
a church that evolved into the Peyote Way Church.
The Church professes what it described as a Christian peyotist religion, basing
its theology on the Bible, the Book of Mormon, the doctrine and covenants of the
Church of Jesus Christ of the Latter-Day Saints, and its own bylaws and points of
order. Members of the Church ingest peyote as a sacrament, and worship it as the
embodiment of God, hence a deity. The single place of worship is located on a ranch
in the southern Arizona desert.
Peyote is a small spineless cactus that grows along the Rio Grande River. Its stems
have jointed tubercules or "buttons" that, when ingested, have a hallucinogenic
effect. Peyote can be found in quantities sufficient for the Church's practices
only in southern Texas. This drug, the Church asserts, enables its members to reach
an awareness of the presence of God within them and to examine their consciences.
They ingest it only in a sacramental tea on the first Sunday of every month or during
a religious ritual called a spirit walk, a trip into the wilderness to commune with
the Creator by either one member alone or two or three members together. A member
may participate in such a spirit walk once every two or three months.
Today the Church has five resident and about 150 non-resident members, of whom only
about 50 are active. Its doctrine emphasizes simplicity, sobriety, and hard work.
The Church is self-supporting, deriving most of its non-donated income from the
sale of pottery. Among other community activities, it operates a "rescue mission"
for runaways, alcoholics, and drug addicts.
The Church contends that it strives to maintain strict controls over the possession
[*196] and distribution of peyote. It states that it keeps records
of peyote receipts and distributions; limits the number of people who have control
over its peyote supply; imposes stringent membership requirements (including a 48-hour
fast period and actual presence at the Church); records memberships in the local
county clerk's office; and requires sincerity of belief for the receipt of peyote.
The Church has also expressed willingness to cooperate with federal and state agencies
in the control of peyote, to conform to any regulations restricting the use of peyote
to religious ceremonies, and to maintain such records of its possession and use
as the two governments may require.
The Church distributes and uses peyote only for religious purposes, and any other
use is considered sacrilegious. It forbids the use of controlled substances other
than peyote. It does not distribute peyote to any person under the age of eighteen
years. In view of the dispute concerning these facts, we disregard innuendo by the
government about the character of Trujillo and disputed factual assertions that
members of the Church distribute peyote to non-members. We do accept as proved,
because of testimony by Church members, the facts that the Church does distribute
small quantities of peyote to some non-members, to alcoholics in the course of treatment,
and to persons who are seeking membership in the course of determining their interest
in becoming Church members.
The Church seeks a judgment declaring that the federal statutes prohibiting the
possession, use, and distribution of controlled substances [Footnote 4] are unconstitutional
under the first and the substantive due process clause of the fifth amendment to
the United States Constitution as applied to the possession and use of peyote by
the Church's members; that the statutes of Texas [Footnote 5] when thus applied
are also unconstitutional under the first and fourteenth amendments to the United
States Constitution and the freedom of religion clause of the Texas Constitution;
[Footnote 6] that the federal regulation granting an exemption from the federal
peyote laws to the Native American Church, is unconstitutional on its face and as
applied to Church members; [Footnote 7] and that the Texas statutory exemption is
also unconstitutional. The Church also seeks preliminary and permanent injunctions
against enforcement of these federal and Texas laws and regulations.
The district court held an evidentiary hearing on the Church's motion for a preliminary
injunction, denied the injunction, then later granted the defendants' motions for
summary judgment, without assigning reasons. Although the Federal Rules of Civil
Procedure do not state that evidence adduced at a hearing may support a summary
judgment, we have affirmed judgments resting on such evidence when the testimony
is uncontradicted with the result that the factual basis for judgment admits no
genuine controversy about material matters. [Footnote 8] For purposes of the present
appeal, we must, however, assume the correctness of the Church's version of all
disputed facts. [Footnote 9] On the basis of this assumption, we discuss the legal
issues without the benefit of an opinion or legal conclusions from the trial court.
While the Federal Rules of Civil Procedure do not command a district court to set
forth its reasons for rendering summary judgment, we have repeatedly urged district
courts to do so, [Footnote 10] for appellate [*197] review should
not be based on speculation concerning the reason for a trial court's cryptic judgment
or exhaustion of all possible bases for it. For these reasons we have frequently
remanded cases to obtain the trial court's reasoning. We do not do so in this case
only because the issues have been fully briefed and argued, and we consider that
the parties and the district court should have guidance concerning applicable constitutional
principles.
II.
The Controlled Substances Act of 1970 prohibits the distribution, the possession
with intention to distribute, and the possession without a prescription of a number
of substances, including peyote. [Footnote 11] Peyote is classified as a Schedule
I controlled substance. [Footnote 12] The statute permits the Attorney General to
classify other substances in Schedule I if three findings are made: the substance
has a high potential for abuse; it has no currently accepted medical use in treatment
in the United States; and there is a "lack of accepted safety" for use
of the substance under medical supervision. [Footnote 13] Presumably the listing
of peyote in Schedule I implies a congressional finding that peyote meets all of
these criteria, including its dangerous qualities even when used under medical supervision
because of the "lack of accepted safety."
The major active ingredient in peyote is mescaline. Mescaline is a hallucinogen
whose effects are similar to those of lysergic acid diethylamide (LSD). It may produce
alteration of consciousness, evidenced by confused mental states and dreamlike revivals
of past traumatic events, alteration of sensory perception, evidenced by visual
illusions and distortion of space and perspective, alteration of mood, evidenced
by anxiety, euphoria, or ecstasy, alteration of ideation, evidenced by impairment
of concentration and intelligence, and alteration of personality, evidenced by impairment
of conscious and the breakdown of cultural and social inhibitions. [Footnote 14]
Peyote may cause such severe adverse reactions as psychosis and suicide. The potential
adverse effects of peyote are minimized, however, when it is used in a controlled
setting, the subject is prepared for its use, and the subject expects sensations
of calmness and euphoria.
The Federal Controlled Substances Act contains no exemption from its prohibitions.
However, the Attorney General has, with apparent congressional approval, [Footnote
15] [*198] adopted a regulation making the statute inapplicable
"to the nondrug use of peyote in bona fide religious ceremonies of the Native
American Church." [Footnote 16]
See also Remarks of Congressman Harris, 111 Cong. Rec. 15977 (1965) with reference
to the predecessor 1965 bill.
The Texas statute contains a similar exemption. [Footnote 17] The Native American
Church admits to membership only Indians and their spouses, whether Indian or not.
It has twenty-three chapters, and a membership variously estimated as 250,000 to
400,000 persons.
III.
Texas makes an argument not made by the United States, that the Church lacks standing
to assert a claim against it because there is, as to it, no present case or controversy,
and, in the absence of such a concrete dispute, we lack jurisdiction. [Footnote
18] Texas contends that the Church has failed to show the imminence of prosecution
of its members. The Church supports the existence of a genuine dispute with Texas
on the contention that it can obtain peyote sufficient for its needs only in Texas
and its members desire to travel to Texas to do so, free from fear of arrest. It
asserts that in 1980 three of its members were arrested in Richardson, Texas, for
possessing peyote, and that, although these charges were later dismissed, the constant
threat of arrest exists. The Church also contends in a pleading, unsupported by
any affidavit or deposition, that one of its nonresident members was arrested in
Webb County in 1983 for possession of peyote, as well as trespassing, and was released
on bond.
"Persons having no fears of state prosecution except those that are imaginary
or speculative . . . may not challenge a state criminal statute because, in the
absence of actual or imminent peril, they lack standing." [Footnote 19] A litigant
may not, therefore, assert the unconstitutionality of a state criminal statute "merely
because he desires to wipe it off the books or even because he may some day wish
to act in a fashion that violates it." [Footnote 20]
To establish standing for a challenge to the constitutionality of a state criminal
statute, a litigant "must demonstrate a realistic danger of sustaining a direct
injury as a result of the statute's operation or enforcement." [Footnote 21]
A person who desires to violate a criminal statute that he considers unconstitutional
need not, however, disobey the law and await his prosecution before challenging
its unconstitutionality. [Footnote 22]
Indeed, a person who wishes to invoke federal jurisdiction to challenge the constitutionality
of a state criminal statute may lose his right to do so if he waits until he has
been charged. Once the state has charged a person with a state offense, the accused
loses the right to a federal forum if the state permits him to raise the constitutional
issue in the state criminal proceeding. [*199] [Footnote 23] A
federal decision at that juncture would interfere with the state's criminal process.
Thus, the right to seek a federal forum for a challenge of a state statute as violative
of the federal constitution is constricted. The challenger may not sue before he
is truly injured; yet he may not wait until he is charged with a crime. He may invoke
federal jurisdiction only if he can move through the narrow door between premaurity
and exclusive state jurisdiction.
The Church offered evidence that its members have come to Texas for peyote and have
been arrested. It also offered evidence that its members desire to do so again.
The state does not assert that it will not enforce the statute. The parties' positions
are plainly adverse and harm to the members of the Church is imminent when evaluated
in the light of the state's position. The Church has a personal stake in the constitutionality
of the Texas statute because enforcement of that statute will directly affect the
freedom with which its members may fulfill their professed religious commitment.
"When the plaintiff has alleged an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by statute, and
there exists a credible threat of prosecution thereunder, he 'should not be required
to await and undergo a criminal prosecution as the sole means of seeking relief.'"
[Footnote 24]
The Church, therefore, presents a case or controversy in the constitutional sense.
"The conflicting contentions of the parties . . . present a real, substantial
controversy between parties having adverse legal interests, a dispute definite and
concrete, not hypothetical or abstract." [Footnote 25]
Texas also contends that we should abstain from deciding the issues and allow them
to be decided by a Texas court. [Footnote 26] But we abstain from decision in such
circumstances "only when the state court's determination 'will eliminate or
substantially modify a federal constitutional question.'" [Footnote 27] The
state argues a Texas court might conceivably construe the statute narrowly to avoid
the constitutional issue. If indeed "the state court would be likely to construe
the statute in a fashion that would avoid the need for a federal constitutional
ruling or otherwise significantly modify the federal claim, the argument for abstention
is strong." [Footnote 28] But when, as here, a state statute is clear on its
face and capable of one and only one reasonable interpretation, abstention is improper.
[Footnote 29]
The state also suggests that a Texas court might declare the statute unconstitutional
under state law. The theoretical possibility that Texas courts might read its constitution
to restrict state power more narrowly than the federal constitution does, however,
is unsupported by any citation [*200] of authority or reasoned
analysis, and is merely an invitation to avoid deciding an important federal constitutional
issue. We respond by facing the issue.
IV.
The free-exercise-of-religion clause of the first amendment to the United States
Constitution protects both freedom to believe and freedom to act. Freedom of belief
"is absolute [Footnote 30] but, in the nature of things [freedom to act] cannot
be." [Footnote 31] ". . . The freedom to act," therefore, "even
when the action is in accord with one's religious conviction, is not totally free
from legislative restrictions. " [Footnote 32] Conduct dictated by religious
belief may be regulated or forbidden if the limitation is essential to accomplish
a compelling governmental interest in the regulation of a subject within the state's
constitutional power [Footnote 33] and if the attendant burden on religious observance
does not exceed the least burdensome method of accomplishing that purpose without
infringing first amendment rights. [Footnote 34]
There is ample precedent applying this analysis to the question before the court.
We begin with Leary v. United States, [Footnote 35] in which this court
held that the federal drug control laws relating to marijuana serve a compelling
governmental purpose to avert a "substantial threat to public safety, peace
or order." In reaching this result, we distinguished the decision of the California
Supreme Court in People v. Woody, [Footnote 36] holding the use of peyote
by members of the Native American Church constitutionally protected, on the basis
that peyote played a central role in the ceremony and practice of that church. Leary
had testified that he used marijuana only as a means for practicing his religion,
rather than as a formal requisite of his faith. Its use was only one of many means
to practice that religion, and deprivation of it would not have prevented him from
achieving or practicing his religious beliefs. Leary, unlike the Church here, sought
unrestricted freedom to possess and use the controlled substance in any manner that
his religious beliefs permitted.
The Leary opinion distinguished the federal exemption for the use of peyote
by the Native American Church, stating:
The exemption accorded the use of peyote in the limited bona fide ceremonies of
the relatively small, unknown Native American Church is clearly distinguishable
from the private and personal use of marihuana by any person who claims he is using
it as a religious practice. [Footnote 37]
The federal government itself has drawn a similar distinction. In denying an exemption
to the Church of the Awakening, it asserted that the use of peyote by that church
was not essential or central to its religion, and distinguished the peyote sacrament
in the Native American Church. In doing so it stressed "the overriding factor
that peyote is essential and central to the religion is that without peyote their
religion [of the Native American Church] [*201] would not exist."
[Footnote 38] The same distinction may be drawn between the use of marijuana considered
in Leary and the use of peyote by the Peyote Way Church. Leary
does not, therefore, decide the issues presented here.
In addition to California, the courts of Oklahoma [Footnote 39] and Arizona [Footnote
40] have held that state laws forbidding the possession of peyote are unconstitutional
as applied to its possession by members of the Native American Church in religious
ceremonies. [Footnote 41] These state decisions were based on the thesis that "the
State did not present evidence which would sustain the finding of a state interest
in regulation compelling enough to prohibit the exercise of the religious practice
of peyotism by the Native American Church and its members." [Footnote 42] The
record in the present case is devoid of either such evidence or of evidence that
prosecution of the possession or distribution of peyote by the Church is necessary
to achieve the government's purpose.
The exemption granted both by federal and Texas law to the ritual use of peyote
by the Native American Church tends, as the Church suggests, to negate the existence
of a compelling state interest in denying the same use to it. [Footnote 43] In the
absence of evidence, we cannot simply assume that the psychedelic is so baneful
that its use must be prohibited to a group of less than 200 members but poses no
equal threat when used by more than 250,000 members of the Native American Church.
For these reasons, we do not consider summary judgment to be warranted. Expressing
no opinion on the ultimate merits, we remand for further proceedings consistent
with this opinion, with regard to the first amendment claim.
V.
The Church contends that to deny it an exemption accorded to the Native American
Church creates a distinction forbidden by the equal protection clause. The federal
regulation and the Texas statutory exemption plainly accord a benefit to the Native
American Church that is denied all others. The persons who are deprived of the benefit
are both non-Indians and those Indians who do not belong to the Native American
Church. No other circuit court has considered this argument, although the Second
Circuit avoided it by construing the federal exemption to apply to any bona fide
religion that uses peyote for sacramental purposes and regards it as a deity. [Footnote
44] The district court opinion in that case, Native American Church of New York
v. United [*202] States, contains a full exposition
of the exemption's legislative history. We express no opinion concerning our concurrence
or disagreement with those views. We also express no opinion concerning the government's
argument that the political relationship of the federal government to the Indian
tribes and to individual Indians supports a statutory classification that accords
to Indians and their Church a privilege denied to all others.
The record contains little evidence and no findings that would support a conclusion
concerning the equal protection and the due process [Footnote 45] issues raised
by the Church. Although we recognize the importance of these issues, a premature
ruling on them without an adequate record may adversely affect other parties than
those now before the court. If the first amendment claims of the Church are sustained,
it will be unnecessary for us to reach them. If the first amendment claims are rejected,
the district court should make such findings of fact as may be necessary to support
its decision on the other constitutional issues. For these reasons, we do not now
consider them.
REMANDED for further proceedings consistent with this opinion.