PEYOTE WAY CHURCH OF GOD, INC., Plaintiff, v. EDWIN MEESE III, Attorney General
of the United States, et al., Defendants
No. CA 3-82-0778-T
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION
698 F. Supp. 1342
October 28, 1988, Decided
October 31, 1988, Filed
COUNSEL: Raymond E. White, Mary L. O'Connor, Cooperating Attorneys,
Dallas, Texas, Attorneys for Plaintiff.
John T. Bannon, Jr., Washington, District of Columbia, Paula Mastropieri-Billingsley,
Assistant U.S. Attorney, Dallas, Texas, Attorneys for Defendant Edwin Meese III,
Attorney General of the United States.
JUDGES: Robert B. Maloney, United States District Judge.
OPINION BY: MALONEY
OPINION
[*1343] FINDINGS OF FACT AND CONCLUSIONS OF LAW
ROBERT B. MALONEY, UNITED STATES DISTRICT JUDGE
This case was originally before Judge William M. Taylor, Jr., who granted summary
judgment in favor of Defendants, upholding the constitutionality of both state and
federal statutes which prohibit the use of peyote as a controlled substance, and
make an exemption for the nondrug, religious use of peyote by members of the Native
American Church. On appeal to the United States Court of Appeals for the Fifth Circuit,
the case was remanded and assigned to this Court for a determination of whether
the statutes making possession or distribution of peyote a criminal act denied to
members of the Peyote Way Church of God the right to freely exercise their religion
under the First Amendment. Peyote Way Church of God v. William F. Smith, et al.,
742 F.2d 193 (5th Cir. 1984). This case was tried before the Court on June 16, 1987,
and concluded on October 1, 1987. Counsel for the parties were directed to submit
post-trial briefs on or before October 23, 1987. The Court, having considered the
testimony of all witnesses, the exhibits, briefing and arguments of counsel, makes
the following findings of fact and conclusions of law.
Findings of Fact
The Court finds that it has jurisdiction over the parties and the subject matter
of this lawsuit under 28 U.S.C. § 1331.
1. Plaintiff Peyote Way Church of God, Inc. ("Peyote Way") was incorporated
in 1979 in Arizona. [Footnote 1] The principals of Peyote Way are Immanuel P. Trujillo
("Trujillo"), Ann Zapf ("Zapf") and Matthew Kent ("Kent").
Zapf and Trujillo have each served as Peyote Way's president, and Kent is a minister
for Peyote Way. At the time of the trial of this cause, Trujillo, Zapf, and Kent
were the only resident members of Peyote Way. [Footnote 2]
The Church [Peyote Way] professes what it describes 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.
Today the Church has five resident and about 150 non-resident members, of whom only
about 50 are active.
The Church contends that it strives to maintain strict controls over the possession
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.
At 195-196.
2. Peyote Way seeks declaratory and injunctive relief on the following grounds:
[*1344] a. that 21 U.S.C. §§ 841 and 844 [Footnote 3], as applied
to Peyote Way members, violate the free exercise clause of the First Amendment;
b. that 21 C.F.R. § 1307.31 [Footnote 4] violates the equal protection clause of
the Fifth Amendment and the establishment clause of the First Amendment, and that
this section violates Peyote Way members' constitutional right to privacy;
c. that Tex. Rev. Civ. Stat. Ann. art. 4476-15, §§ 4.032, 4.042, and 4.053 [Footnote
5] are unconstitutional as applied to the Church under 42 U.S.C. § 1983, the First
and Fourteenth Amendments to the United States Constitution, and Article I, § 6
of the Texas Constitution; and,
d. that Tex. Rev. Civ. Stat. Ann. art. 4476-15, § 4.11(a) [Footnote 6] is unconstitutional
as applied to Peyote Way under 42 U.S.C. §§ 1981 and 1983, the First and Fourteenth
Amendments to the United States Constitution, and Article I, § 3 of the Texas Constitution.
3. Peyote Way has approximately 150 non-resident members.
4. Trujillo, Kent, and Zapf use peyote as a sacrament, and consider it to be a deity.
These three resident members use peyote in connection with their religion, and sincerely
believe that the use of peyote for other than religious purposes is sacrilegious.
5. Trujillo was once a member of the Native American Church, who later left to become
one of the founders of Peyote Way.
6. Peyote Way subscribes to many tenets similar to those of the Native American
Church.
7. The Native American Church, under both the Texas and federal statutory schemes,
enjoys an exemption for the nondrug, religious use of peyote from the laws which
prohibit the possession and distribution of peyote.
8. Peyote may be sold legally in Texas only by authorized dealers who are licensed
by the Texas Department of Public Safety ("DPS"). DPS records reflect
that all of the current supply of peyote is necessary to supply the needs of the
Native American Church.
[*1345] Conclusions of Law
Peyote Way urges the Court to find that it should be allowed to enjoy the same exemption
as that afforded the Native American Church for the religious use of peyote. Peyote
Way contends that to find otherwise would deprive its members of their rights to
free exercise of religion.
The Court is directed by
United States v. Rush, 738 F.2d 497, at 513 (1st Cir. 1984), cert.
denied, 470 U.S. 1004, 84 L. Ed. 2d 378, 105 S. Ct. 1355 (1985), where
the First Circuit held:
The peyote exemption is uniquely supported by the legislative history and congressional
findings underlying the American Indian Religious Freedom Act, which declares a
federal policy of 'protect[ing] and preserv[ing] for American Indians their inherent
right of freedom to believe, express and exercise the[ir] traditional religions
. . ., including but not limited to access to sites, use and possession of sacred
objects, and the freedom to worship through ceremonials and traditional rites.'
42 U.S.C. § 1996.
Congress saw fit, in its enactment of the Controlled Substances Act of 1970 to list
peyote as a controlled substance, possession and distribution of which is unlawful.
[Footnote 7] The exemption provided for nondrug, religious ceremonial use for the
Native American Church is not included in the statute, but is the subject of a regulation,
included in the Code of Federal Regulations. 21 C.F.R. § 1307.31.
The Court must determine whether Plaintiff's challenge of the federal and state
statutes regarding possession and distribution of peyote survive the government's
assertion that there is an overriding purpose for the proscription of peyote use,
and that a free exercise of religious beliefs challenge is not enough to circumvent
the exercise of legislative power to regulate behavior which may be harmful to individuals
or the public at large.
There are many cases which hold that the constitutional protection afforded freedom
of religious belief does not extend absolutely to religious conduct. United States v. Rush,
738 F.2d 497 (1st Cir. 1984); Cantwell v. Connecticut, 310 U.S. 296, 84
L. Ed. 1213, 60 S. Ct. 900 (1940).
In United States
v. Rush, the First Circuit held that when a law is challenged as interfering
with religious conduct, the constitutional inquiry must be based on three questions:
1. whether the challenged law interferes with free exercise of a religion;
2. whether the challenged law is essential to accomplish an overriding governmental
objective; and
3. whether accommodating the religious practice would unduly interfere - with fulfillment
of the governmental interest. [Footnote 8]
The Court finds the record to reflect that the first question may be affirmatively
answered. That is, the resident members of Peyote Way are sincere in their beliefs
and in their desire to practice a form of peyotism. They view the use of peyote
as an integral part of their religious doctrine and practice of their faith. They
believe that [*1346] without the use of peyote, their religion
would not have meaning. [Footnote 9]
The Court further finds that the second inquiry may also be answered affirmatively.
That is, the Controlled Substances Act of 1970 and the Texas statutes prohibiting
the possession and distribution of peyote are essential to accomplish the governmental
purpose of regulating the use of substances found to be harmful to the public at
large. These statutes were enacted by Congress and the Texas legislature in an effort
to regulate those items deemed to pose a threat to individual health and social
welfare.
The Court further finds that the third inquiry may also be answered affirmatively.
That is, accommodating Peyote Way's religious practices would unduly interfere with
the fulfillment of the federal and state governments' overriding concern for the
protection of the public welfare. The parties are not in dispute that peyote is
a psychotropic drug. Such drugs have long been the subject of legislative action.
Both federal and state legislative bodies have concluded that it is in the interest
of the public to control and regulate such drugs. This Court cannot invade the legislative
province to so act. This Court's inquiry must be limited to determining whether
the legislative acts prohibiting the possession and distribution of peyote are constitutional
as applied to Peyote Way.
The Native American Church Exemption
The Controlled Substances Act, 21 U.S.C. § 812, was enacted in 1970. The exemption
for the religious use of peyote by the Native American Church was created by regulation.
21 C.F.R. § 1307.31. When the Act was presented for amendment, there was discussion
held on whether any amendment would affect the exemption held by the Native American
Church. [Footnote 10] Congress, in amending the Act, did not see fit to alter the
exemption in any way.
The Court finds that the exemption for the religious use of peyote by the Native
American Church found in 21 C.F.R. § 1307.31 is in effect a grandfather clause.
[Footnote 11] The Court finds that Congress had before it all information necessary
to make the initial determination to "grandfather" the religious use of
peyote by the Native American Church as an exemption to the Controlled Substances
Act. In subsequent sessions which considered amendment of the Controlled Substances
Act, Congress saw fit to leave the exemption as written, without qualification as
to whether churches, other than the Native American Church, which regard the use
of peyote as integral to their religious practice are to be afforded the same exemption.
A provision in a new law or regulation exempting those already in or a part of the
existing system which is being regulated. An exception to a restriction that allows
all those already doing something to continue doing it even if they would be stopped
by the new restriction.
There is no doubt in the Court's mind that Congress intended to exempt the nondrug
use of peyote to the Native American Church, and that conclusion was reached on
the basis that the Native American Church was in existence long before Congress
determined that the regulation of psychotropic drugs was necessary to protect the
general welfare. People v. Woody, 61 Cal. 2d 716, 40 Cal. Rptr. 69, 394
P.2d 813 (1964); Kennedy v. Bureau of Narcotics and Dangerous Drugs, 459
F.2d 415 (9th Cir. 1972), cert. denied, 409 U.S. 1115, 34 L. Ed. 2d 699,
93 S. Ct. 901 (1973); Native American Church of New York v. U.S., 468 F.
Supp. 1247 (S.D.N.Y. 1979), aff'd, 633 F.2d 205 (2d Cir. 1980).
Congress has had ample opportunity to amend the Controlled Substances Act and the
regulation which provides the exemption for the Native American Church. The Court
finds that the clear intent of Congress was to exempt the nondrug religious use
of peyote by members of the Native [*1347] American Church, not
to exempt the use of peyote by other religious groups, no matter how sincere these
other religious - groups are in their beliefs.
The Court recognizes that People v. Woody and Native American Church of
New York v. U.S. both held that the religious use of peyote is guaranteed
by the First Amendment. People v. Woody involved a group affiliated with
the Native American Church, and the exemption in 21 C.F.R. § 1307.31 was therefore
held applicable to them. [Footnote 12]
This Court does not agree with this interpretation of this portion of the legislative
history. This Court finds that the interpretation of the Native American Church's
being sui generis should be viewed as a statement that the Native American Church
"is of its own kind or class, that is, the only one of its own kind."
[Footnote 13]
The Court is further directed by the findings made in
United States v. Warner, 595 F. Supp. 595 (D.N.D. 1984), where
the district court in North Dakota found:
The legislative history leading up to the promulgation of 21 C.F.R. § 1307.31 does
not support a finding that Congress was interested in a broad exemption for the
religious use of peyote by non-NAC [Native American Church] members or non-Indians.
Officials of the Bureau of Narcotics and Dangerous Drugs (BNDD) [now the Drug Enforcement
Administration] informed Congress of the fact that the administrative exemption
in effect at the time the Controlled Substances Act was passed applied only to the
NAC and that they were about to deny an exemption to a non-Indian church. The BNDD
[*1348] distinguished the non-Indian church from the NAC because
the unique history and tradition of the NAC was such that there was no question
that the NAC regarded peyote as a deity. [Citations omitted].
The legislative history of the Controlled Substances Act of 1970 discloses the general
ultimate objective to deal in a comprehensive fashion with the growing menace of
drug abuse in the United States. [Citations omitted]. Congress has strongly and
clearly expressed its intent to protect the public from the obvious danger of drugs
and drug traffic. See 21 U.S.C. § 801(2). Congress has determined that the illegal
distribution, possession, and improper use of controlled substances has a substantial
and detrimental effect on the health and general welfare of the American people.
Even though the government has a compelling interest in controlling the use of peyote,
it can be prohibited only if the restriction is the least restrictive means of achieving
the government's purpose, or if the governmental interests cannot be otherwise served.
This court holds that the compelling governmental interest is not otherwise served
by allowing unlimited exemptions for the bona fide religious use of peyote.
United States
v. Warner, at 598-599.
This Court further finds that the exemption afforded the Native American Church
has been in effect since 1965. 79 Stat. 226 § 3(a). The 1965 Drug Abuse Control
Amendments were superseded in 1970 when Congress passed a comprehensive revision
of the narcotics laws, the Controlled Substances Act of 1970. 21 U.S.C. § 801. The
regulation promulgated by DEA (formerly Bureau of Narcotics and Dangerous Drugs)
should be given special weight since the regulation was enacted close in time with
the statute, and since the regulation has been unchanged during a statutory rewriting
and reenactment. See National Muffler Dealers Ass'n., Inc. v. United States,
440 U.S. 472, 59 L. Ed. 2d 519, 99 S. Ct. 1304 (1979). [Footnote 14]
A regulation may have particular force if it is a substantially contemporaneous
construction of the statute by those presumed to have been aware of legislative
intent. Other relevant considerations are the length of time the regulation has
been in effect, the reliance placed on it, the consistency of the [agency's] interpretation,
and the degree of scrutiny Congress has devoted to the regulation during subsequent
re-enactments of the statute.
At 477.
See also NLRB v. Bell Aerospace Co., 416 U.S. 267, 40 L. Ed. 2d 134, 94
S. Ct. 1757 (1974), where the Supreme Court held:
In addition to the importance of legislative history, a court may accord great weight
to the longstanding interpretation placed on a statute by an agency charged with
its administration. This is especially so where Congress has re-enacted the statute
without pertinent change. In these circumstances, congressional failure to revise
or repeal the agency's interpretation is persuasive evidence that the interpretation
is the one intended by Congress.
At 275.
This Court further finds that the subsequent enactment of the American Indian Religious
Freedom Act in 1978 further supports the conclusion that the Controlled Substances
Act sought to exempt only the nondrug religious use of peyote by members of the
Native American Church. The Act reads in part:
On or before August 11, 1978, it shall be the policy of the United States to protect
and preserve for American Indians their inherent right of freedom to believe, express,
and exercise the traditional religions of the American Indian.
The Court is guided by NLRB v. Bell Aerospace Co., 416 U.S. 267, 40 L.
Ed. 2d 134, 94 S. Ct. 1757 (1974) where the Supreme Court held that "subsequent
legislation declaring the intent of an earlier statute is entitled to significant
weight." At 275. The Court therefore concludes that the exemption, in existence
more than ten years before the enactment of the American Indian Religious Freedom
Act, is supported by the policy and Congressional intent underlying the Act. See
United States
v. Rush, 738 F.2d 497 (1st Cir. 1984); Indian Inmates of Nebraska Penitentiary
v. Grammer, 649 F. Supp. 1374 (D.C. Neb. 1986). The Court therefore
[*1349] concludes that regardless of the sincerity of Peyote Way's
members' beliefs in peyotism, the exemption provided the Native American Church
cannot be expanded to include non-Native American Church use of peyote.
The Court further concludes that the overriding interest of Congress to control
the use of narcotics and psychotropic drugs outweighs the interest of expanding
an exemption that clearly was meant to be a grandfather clause, and not a full-scale
exemption of religious peyote use.
Finding that Congress' intent to exempt the Native American Church is not meant
to extend to other churches which use peyote, the Court finds that Peyote Way's
claims for violation of the free exercise clause and establishment clause of the
First Amendment must fail.
United States v. Warner, 595 F. Supp. 595 (D.N.D. 1984); United States v. Rush,
738 F.2d 497 (1st Cir. 1984); Morton v. Mancari, 417 U.S. 535, 41 L. Ed.
2d 290, 94 S. Ct. 2474 (1974).
The Court further finds that Peyote Way's right to privacy argument must also fail.
It is well settled that the right to privacy extends to place "limitations
on the State's powers to substantially regulate conduct" pertaining to "marriage,
procreation, contraception, family relationships, and child rearing and education."
Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). The
Court finds that there is no constitutional right to use a controlled substance.
See Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841
(1986).
The Court therefore finds for the federal defendant on the constitutional challenges
made to the Controlled Substances Act and the exemption provided for the Native
American Church.
Challenges to the Texas Statutes
Peyote Way has challenged the constitutionality of Tex. Rev. Civ. Stat. Ann. art.
4476-15, §§ 4.032, 4.042, 4.053 and 4.11(a) as applied to Peyote Way. These statutes
prohibit the possession and distribution of controlled substances, including peyote,
and provide an exemption to the Native American Church. Peyote Way makes the same
constitutional arguments regarding these state statutes as it does regarding the
federal Controlled Substances Act and the exemption of the Native American Church's
religious use of peyote.
The Court finds, using the same analysis as used in examining the federal law, that
the Texas statute has been enacted for the purpose of promoting the public safety,
peace, and order. The overriding interest of the State of Texas in controlling the
abuse of narcotics and psychotropic substances outweighs the interest of Peyote
Way in exercising its religious beliefs. See United States v. Merkt, 794
F.2d 950 (5th Cir. 1986), cert. denied, 480 U.S. 946, 107 S. Ct. 1603,
94 L. Ed. 2d 789 (1987).
The Court further finds that the state exemption allowing possession of peyote by
members of the Native American Church does not violate the Equal Protection clause.
The state exemption is the same as the federal exemption. Under the Supremacy Clause
of the Constitution, the State of Texas could not enact a law which would conflict
with federal law. The federal exemption is a political classification, not a racial
one, and therefore does not violate the Equal Protection clause. United States v. Warner,
595 F. Supp. 595 (D.N.D. 1984).
The Court therefore concludes that Peyote Way's claims regarding the Texas statutes
must also fail in light of the constitutional analysis made in this order regarding
the federal statute and exemption.
Signed this 28 day of October, 1988.
JUDGMENT
This action came on for trial before the Court, Honorable Robert B. Maloney, District
Judge, presiding, and the issues having been duly tried and a decision having been
duly rendered.
It is ORDERED and ADJUDGED that Plaintiff Peyote Way Church of God, Inc. take nothing,
and that the action against Defendants Edwin Meese III, Attorney General of the
United States and Jim Mattox, [*1350] Attorney General of the State
of Texas be dismissed on the merits.
Signed this 28th day of October, 1988.