PEYOTE WAY CHURCH OF GOD, INC., Plaintiff-Appellant, v. Richard THORNBURGH, Attorney
General of the United States, et al., Defendants-Appellees
No. 88-7039
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
922 F.2d 1210
February 6, 1991
SUBSEQUENT HISTORY: As Corrected.
PRIOR HISTORY: Appeal from the United States District Court for
the Northern District of Texas. No. CA3-82-0778-T; Robert B. Maloney, Judge.
COUNSEL: Mary L. O'Connor, Jeffrey C. Glass, James K. Witcher,
American Civil Liberties Union, Dallas Chapter, Dallas, Texas.
For Amicus - Kiowa and Comanche Chapters of the Native America Church: F. Browning
Pipestem, Norman, Oklahoma.
For Thornburgh: John T. Bannon, Jr., Dept. of Justice, Crim. Div., Washington, District
of Columbia.
For Mattox: Gray & Becker, Charles A. Palmer, AAG, Austin, Texas.
JUDGES: Clark, Chief Judge, Reavley and King, Circuit Judges. Clark,
Chief Judge, dissenting.
OPINION BY: REAVLEY
OPINION
[*1212] REAVLEY, Circuit Judge
The Peyote Way Church of God, Inc. (Peyote Way) sued for a declaratory judgment
that federal and Texas laws prohibiting peyote possession by all except members
of the Native American Church of North America (NAC) are unconstitutional. Peyote
Way also requested that the district court enjoin the defendants, the Attorneys
General of Texas and the United States, from enforcing the peyote prohibition laws
against it or its members. The district court upheld the constitutionality of the
federal and state laws challenged by Peyote Way. On appeal, Peyote Way challenges
the district court's legal conclusions and the sufficiency of the court's fact findings
to support those conclusions. We affirm the district court's dismissal of Peyote
Way's constitutional claims on their merits.
I. BACKGROUND
Peyote is a variety of cactus that grows in significant quantities only along the
part of the Rio Grande that separates South Texas from Mexico. Portions of the plant's
stem commonly called "buttons" contain mescaline which has a hallucinogenic
effect when ingested.
Both federal and Texas statutes criminalize the unprescribed distribution and possession
of peyote. 21 U.S.C. §§ 812, 841, 844; TEX. HEALTH & SAFETY CODE ANN. §§ 481.101-481.130
(Vernon 1991). But both federal and Texas law exempt bona fide religious use of
peyote by NAC members from such criminalization. 21 C.F.R. § 1307.31; TEX. HEALTH
& SAFETY CODE ANN. § 481.111 (Vernon 1991).
The NAC was established in Oklahoma in 1918 as the corporate form of a centuries-old
Native American peyotist religion without changing the ancient religion's practices
or beliefs. See Toledo v. Nobel-Sysco, Inc., 651 F. Supp. 483, 487 (D.N.M.1986);
see also People v. Woody, 61 Cal. 2d 716, 720-21, 40 Cal. Rptr. 69, 73,
394 P.2d 813, 817-18 (1964) (discussing history and theology of Native American
peyote use). The NAC currently has approximately 250,000 Native American members,
most of whom live on reservations in the western half of this country. NAC members
worship peyote as a deity and ingest the plant during traditional ritualized "road
meetings."
Immanuel P. Trujillo, who was an NAC member until 1966, incorporated Peyote Way
under Arizona law in 1979. Peyote Way's single place of worship is a ranch in southern
Arizona. Its principals and resident members are Trujillo, Ann Zapf, and Matthew
Kent. Zapf, Kent, and the majority of Peyote Way's approximately 150 non-resident
members are not of Native American descent. Peyote Way has promulgated detailed
bylaws concerning its members' access to peyote during its religious ceremonies
and maintains records as to time, [*1213] place, and amount of
peyote use by its members. Peyote Way subscribes to many tenets similar to those
of the NAC.
After a bench trial, the district court found that
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.
Peyote Way
Church of God, Inc. v. Meese, 698 F. Supp. 1342, 1344 (N.D.Tex.1988).
The court also found that
the clear intent of Congress was to exempt the nondrug religious use of peyote by
members of the Native 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.
Id.
at 1346-47. Still, the court held that there is no free exercise or implied privacy
right to use peyote under the United States Constitution. The court also rejected
Peyote Way's equal protection and establishment clause challenges to the NAC exemptions.
We review de novo the district court's conclusions of constitutional law. Shillingford
v. Holmes, 634 F.2d 263, 266 (5th Cir. 1981).
II. DISCUSSION
A. FREE EXERCISE CLAUSE
In an earlier appeal of this case, we followed the time-honored precedent of Sherbert
v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), in holding
that
conduct dictated by religious belief may be regulated or forbidden if the limitation
is essential to accomplish a compelling governmental interest . . . and if the attendant
burden on religious observance does not exceed the least burdensome method of accomplishing
that purpose.
Peyote Way
Church of God, Inc. v. Smith, 742 F.2d 193, 200 (5th Cir. 1984). Finding
insufficient evidence of a compelling state interest and least restrictive alternative
to warrant summary judgment, we remanded this case for further consideration of
Peyote Way's claim that federal and state laws prohibiting peyote possession infringe
its members' right to freely exercise their religion.
Id. at 202.
On remand, the district court concluded that the challenged peyote statutes are
the least restrictive way to serve compelling governmental interests. We need not
review the court's analysis because the Supreme Court's decision in Employment Div., Dept. of Human Resources
of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 1601, 108 L.
Ed. 2d 876 (1990) eviscerates judicial scrutiny of generally applicable criminal
statutes in response to free exercise challenges. The
Smith majority held that Oregon's statute criminalizing peyote
possession withstands challenge under the free exercise clause because it is "a
generally applicable [criminal prohibition] of socially harmful conduct," and
does not have as its purpose the proscription of religious conduct. Id. 110 S. Ct. at
1599, 1603. For the same reasons, we must hold that the federal and Texas statutes
prohibiting peyote possession do not offend the First Amendment's free exercise
clause. The Court foresaw cases where
Smith would "place at a relative disadvantage those religious
practices that are not widely engaged in."
Id. 110 S. Ct. at 1606. We affirm the district court's judgment
that application of 21 U.S.C. §§ 841, 844 and Texas Health and Safety Code §§ 481.114,
481.117, 481.122 [Footnote 1] to Peyote Way and its members does not offend the
First Amendment's free exercise clause.
B. EQUALITY WITH THE NATIVE AMERICAN CHURCH
Under the heading "Special Exempt Persons," a Drug Enforcement Administration
regulation provides:
§ 1307.31 Native American Church. The listing of peyote as a controlled substance
[*1214] [under federal law] does not apply to the nondrug use of
peyote in bona fide religious ceremonies of the Native American Church. . . .
21 C.F.R. § 1307.31 (1990) citing as authority 21 U.S.C. §§ 821, 822(d), 871(b).
The Commissioner of Food and Drugs first promulgated what is now section 1307.31
in March 1966 with apparent congressional approval. 31 Fed.Reg. 4679 (1966); compare
United States
v. Warner, 595 F. Supp. 595, 598 (D.N.D.1984) (Congress intended to
exempt religious use of peyote only by NAC members) with Native American Church
of New York v. United States, 468 F. Supp. 1247, 1249, 1251 (S.D.N.Y.1979)
(Congress meant to exempt all bona fide religious peyote use), aff'd without op.,
633 F.2d 205 (2d Cir. 1980). Texas law contains a similar exemption for the NAC:
the provisions of [the] chapter relating to the possession and distribution of peyote
do not apply to the use of peyote by a member of the Native American Church in bona
fide religious ceremonies of the church. . . . An exemption granted to a member
of the Native American Church under this section does not apply to a member with
less than 25 percent Indian blood.
TEX. HEALTH & SAFETY CODE ANN. § 481.111(a) (Vernon 1991).
These laws unambiguously exempt only NAC members from federal and Texas statutes
prohibiting peyote possession. Peyote Way argues that the Constitution requires
us to accord its members the same exemption. [Footnote 2]
1. The Federal NAC Exemption
a. Equal Protection
The equal protection principle, applicable to federal regulations through the due
process clause of the Constitution's Fifth Amendment, mandates similar treatment
under the law for those similarly situated. Bolling v. Sharpe, 347 U.S.
497, 498-99, 74 S. Ct. 693, 694, 98 L. Ed. 884 (1954). Section 1307.31 accords NAC
members different treatment than other members of our society. Thus, whether section
1307.31 violates the equal protection principle depends on whether NAC members are
similarly situated to other members of our society.
In Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974),
the Supreme Court rejected an equal protection challenge to a statutory employment
preference for Native Americans in the Bureau of Indian Affairs (BIA). The Court
based its decision on: (1) the historically unique guardian-ward trust relationship
of the federal government with quasi-sovereign Native American tribes; (2) Congress'
plenary power to "regulate Commerce . . . with the Indian Tribes" under
the Constitution's Article I, section 8; (3) the federal government's Article II,
section 2 treaty power; and (4) a line of cases in which the Court has upheld legislation
preferentially treating Native Americans who are tribal members or live on or near
a reservation. Id. 94 S. Ct. at 2483, 2485.
The Court applies strict scrutiny to any racial classification, requiring the government
to show that such a classification is the least restrictive means of achieving a
[*1215] compelling governmental objective. See, e.g., Hunter v.
Erickson, 393 U.S. 385, 391-92, 89 S. Ct. 557, 561, 21 L. Ed. 2d 616 (1969).
But the Morton Court characterized the BIA employment preference as a political
rather than racial classification because the BIA regulations implementing the preference
limit eligibility to members of federally recognized tribes who have at least 25%
Native American blood. 94 S. Ct. at 2484 n. 24. Thus, only the constituencies of
the quasi-sovereign nations over whom the federal government considers itself guardian
enjoy the preference. Id. And "as long as the special treatment can
be tied rationally to the fulfillment of Congress' unique obligation toward the
Indians, such legislative judgments will not be disturbed." 94 S. Ct. at 2485.
The district court in this case followed
Warner, 595 F. Supp. at 600 in holding that the federal NAC exemption
effects a political classification. Peyote Way contends that section 1307.31 effects
a racial classification.
On its face, section 1307.31 classifies people according to the single criterion
of whether they are NAC members. Similarly, the statute at issue in Morton,
25 U.S.C. § 472, accords its hiring preference to "Indians" without requiring
tribal affiliation. Only the BIA regulations under § 472 contain the 25% Native
American ancestry and tribal affiliation requisites relied on by the Court. Morton,
94 S. Ct. at 2484 n. 24. We must look to the evidence to determine whether NAC membership
presupposes tribal affiliation and Native American ancestry, and thus effects a
political classification under Morton. [Footnote 3]
During his tenure as NAC National Chairman, Emerson Jackson testified that the NAC
is made up of approximately 36 chapters, each separately incorporated by a different
tribe and that all NAC members are of 25% Native American ancestry. The record contains
articles of incorporation filed by the Native American Church of Navajoland, Inc.
and a "Certificate of Authorization" to transport peyote that requires
a tribal enrollment number, corroborating this testimony. See also Kennedy v. Bureau
of Narcotics and Dangerous Drugs, 459 F.2d 415, 416, 418 (9th Cir. 1972)
("the Native American Church is a religious organization of American Indians
drawn from a variety of western tribes;" "membership in the Native American
Church is limited to those of at least one-quarter Indian blood"), cert. denied,
409 U.S. 1115, 93 S. Ct. 901, 34 L. Ed. 2d 699 (1973). Jackson repeatedly testified
that tribal membership and 25% Native American ancestry are prerequisites to NAC
membership and although Peyote Way's counsel cross-examined him, Peyote Way offers
nothing to impeach his testimony.
In arguing that the NAC admits spouses of Native Americans regardless of ancestry,
Peyote Way cites the Articles of Incorporation of the Native American Church of
Navajoland:
Membership in this Corporation shall be limited to persons with at least twenty-five
percent Indian blood; provided, that any non-Indian spouse of a member is eligible
for membership. Other qualifications for membership may be set out in the Bylaws.
Art. VIII, § 2 (emphasis added). But Jackson testified that "in our bylaws,
we stipulate that they be 25 percent Indian." See also Warner, 595 F. Supp.
at 601-02 ("the government has filed the by-laws of the Native American Church
of North America, which require members to have at least one-quarter Native American
blood").
Peyote Way also cites Trujillo's testimony that he was an NAC member without ever
having a tribal enrollment number and that during his NAC membership he saw many
who are not Native Americans participate [*1216] in NAC rites and
vote for NAC leadership. But Trujillo left the NAC before or during 1966, and peyote
possession was not a federal offense until May 1966. See 79 Stat. 226 § 11; 31 Fed.Reg.
4679-80 (1966). Trujillo himself testified that in 1964 the NAC's leadership accepted
and almost immediately thereafter rejected an "All-Race Group" within
the NAC. Trujillo's testimony does not establish that the NAC has admitted members
who are not tribal Native Americans since the federal government outlawed peyote
possession and promulgated the NAC exemption.
We hold that the record conclusively demonstrates that NAC membership is limited
to Native American members of federally recognized tribes who have at least 25%
Native American ancestry, and therefore represents a political classification. Thus,
under Morton, we must now consider whether the preference given the NAC
"can be tied rationally to the fulfillment of Congress' unique obligation toward
the Indians." 94 S. Ct. at 2485. "As [the Supreme Court has] repeatedly
emphasized, Congress' authority over Indian matters is extraordinarily broad."
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72, 98 S. Ct. 1670, 1684,
56 L. Ed. 2d 106 (1978).
We hold that the federal NAC exemption allowing tribal Native Americans to continue
their centuries-old tradition of peyote use is rationally related to the legitimate
governmental objective of preserving Native American culture. [Footnote 4] Such
preservation is fundamental to the federal government's trust relationship with
tribal Native Americans. Under Morton, Peyote Way's members are not similarly
situated to those of the NAC for purposes of cultural preservation and thus, the
federal government may exempt NAC members from statutes prohibiting peyote possession
without extending the exemption to Peyote Way's membership.
b. Establishment Clause
Peyote Way also contends that the federal NAC exemption contravenes the First Amendment's
admonition that "Congress shall make no law respecting an establishment of
religion." The Supreme Court has "repeatedly emphasized [its] unwillingness
to be confined to any single test or criterion in [the] sensitive area" of
establishment clause jurisprudence. Lynch v. Donnelly, 465 U.S. 668, 679,
104 S. Ct. 1355, 1362, 79 L. Ed. 2d 604 (1984).
In Larson v. Valente, 456 U.S. 228, 244-51, 102 S. Ct. 1673, 1683-87, 72
L. Ed. 2d 33 (1982) the Court struck down a Minnesota statute imposing registration
and reporting requirements on religious organizations that solicit more than 50%
of their income from non-members because the statute represented a denominational
preference that was unnecessary to achieve a compelling state interest. Yet in Marsh
v. Chambers, 463 U.S. 783, 795, 103 S. Ct. 3330, 3338, 77 L. Ed. 2d 1019
(1983), the Court's majority did not mention Larson and did not apply strict
scrutiny in upholding against an establishment clause challenge Nebraska's practice
of paying a chaplain to open each legislative session with a prayer. The Court upheld
Nebraska's chaplaincy practice notwithstanding its recognition that the same Presbyterian
clergyman was selected as chaplain for 16 years and the chaplain prayed in the Judeo-Christian
tradition. Id. 103 S. Ct. at 3337. The Marsh majority reached
its decision based on the "unambiguous and unbroken history of more than 200
years . . . of opening legislative sessions with prayer" and the framers' participation
in this practice. Id. 103 S. Ct. at 3335-36. Still, Lynch cites
both Larson and Marsh with approval in consecutive sentences.
104 S. Ct. at 1362.
[*1217] The markedly different approaches the Court takes to answering
establishment clause questions remind us that
the course of constitutional neutrality in [First Amendment jurisprudence] cannot
be an absolutely straight line; rigidity could well defeat the basic purpose of
these provisions. . . . The general principle deducible from the First Amendment
and all that has been said by the Court is this: that we will not tolerate either
governmentally established religion or governmental interference with religion.
Short of those expressly proscribed governmental acts there is room for play in
the joints productive of a benevolent neutrality which will permit religious exercise
to exist without sponsorship and without interference.
Walz v. Tax Com. of City of New York, 397 U.S. 664, 669, 90 S. Ct. 1409,
1411-12, 25 L. Ed. 2d 697 (1970). While we recognize that the establishment clause
exists to ensure government neutrality toward religion, we agree with Justice Harlan
that "neutrality in its application requires an equal protection mode of analysis."
Id. 90 S. Ct. at 1425 (Harlan, J., concurring); accord Olsen v. Drug Enforcement Administration,
279 U.S. App. D.C. 1, 878 F.2d 1458, 1463 n. 5 (D.C.Cir. 1989), cert. denied,
495 U.S. 906, 110 S. Ct. 1926, 109 L. Ed. 2d 290 (1990). And in determining whether
the NAC is similarly situated to other religions, we will not ignore the fact that
"tribes remain quasi-sovereign nations which, by government structure, culture,
and source of sovereignty are in many ways foreign to the constitutional institutions
of the federal and state governments." Santa Clara Pueblo, 98 S. Ct.
at 1684 (emphasis added).
The unique guardian-ward relationship between the federal government and Native
American tribes precludes the degree of separation of church and state ordinarily
required by the First Amendment. The federal government cannot at once fulfill its
constitutional role as protector of tribal Native Americans and apply conventional
separatist understandings of the establishment clause to that same relationship.
Above, we relied on Supreme Court precedent to hold that the federal NAC exemption
represents a political classification as to Peyote Way. While the exemption facially
singles out one religion, we accept the government's explanation that this was done
because the NAC is the only tribal Native American organization of which the government
is aware that uses peyote in bona fide religious ceremonies. We know of no evidence
to the contrary. Thus, we hold that the federal NAC exemption represents the government's
protection of the culture of quasi-sovereign Native American tribes and as such,
does not represent an establishment of religion in contravention of the First Amendment.
2. The Texas NAC Exemption
Peyote Way also presents Fourteenth Amendment challenges to Texas' NAC exemption
[Footnote 5] under the equal protection clause and the incorporated establishment
clause, which amount to the same challenges levied at the federal NAC exemption.
The similarity of language, date of passage, and legislative history of Texas' NAC
exemption all indicate that the Texas legislature enacted the exemption to parallel
the federal NAC exemption. [Footnote 6]
The district court upheld Texas' NAC exemption under the Constitution's supremacy
clause, implicitly reasoning that the federal NAC exemption preempts Texas' peyote
prohibition statute.
Peyote Way Church of God, Inc. v. Meese, 698 F. Supp. at 1349.
The district court's reasoning cannot stand after the Supreme Court upheld Oregon's
statute prohibiting peyote possession [*1218] by NAC members. [Footnote
7] Smith,
110 S. Ct. at 1606. But
Smith's implied holding that states need not conform with the federal
NAC exemption does not bear on whether states may choose to so conform. We recognize
an issue in this case that has not yet been directly addressed by American courts,
namely whether states may enact laws beneficial to tribal Native Americans in exercise
of the federal government's trust power pursuant to implied Congressional authorization.
Peyote Way argues that because the Constitution and the seminal Native American
law cases only recognize a guardian-ward relationship between the federal government
and tribal Native Americans, we must subject Texas' NAC exemption to strict scrutiny
under the equal protection and establishment clauses. Indeed, the Supreme Court
holds that "states do not enjoy this same unique [trust] relationship with
Indians." Washington v. Confederated Bands and Tribes of Yakima Indian Nation,
439 U.S. 463, 501, 99 S. Ct. 740, 761, 58 L. Ed. 2d 740 (1979). Yet the Court upheld
Washington's statutory assumption of partial civil and criminal jurisdiction over
Yakima lands against an equal protection challenge because Washington's statute
"was enacted in response to a federal measure explicitly designed to readjust
the allocation of jurisdiction over the Indians." Id. Yakima
teaches that states may exercise the federal trust power pursuant to express Congressional
authorization.
Although Congress has not expressly authorized states to adopt the federal NAC exemption,
we think that it would be preposterous to attribute any other intent to Congress.
When the federal government entered the arena of drug control, it purposely left
intact the states' enforcement structures. See 21 U.S.C. § 903 (states may regulate
drugs concurrently with Congress unless there is a "positive conflict"
between federal and state law). If the states are to enforce their own laws controlling
peyote possession, they may, per
Smith, refuse all exemptions, exempt only NAC members, or exempt
all bona fide religious peyote use. If Congress wanted states to prohibit NAC peyote
use, there would be no reason for its members to tolerate the continued existence
of the 25-year-old federal exemption. Just before the federal NAC exemption was
first promulgated, Congress rejected the alternative now proposed by Peyote Way
-- that all bona fide religious peyote use be allowed. [Footnote 8] Thus, we conclude
that Congress would want states to exercise its trust power in [*1219]
exempting NAC members from their laws prohibiting peyote possession.
Peyote Way argues at length that the legislative history to the Drug Abuse Control
Amendments of 1965 supports a holding that Congress intended to permit all bona
fide religious peyote use. We find this position untenable because Congress revamped
federal controlled substance laws in 1970 fully aware of the NAC exemption without
changing it. See DRUG ABUSE CONTROL AMENDMENTS OF 1970, HEARING BEFORE THE SUBCOMMITTEE
ON PUBLIC HEALTH AND WELFARE OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,
91st Cong., 2d Sess., at 117-18 (1970); National Muffler Dealers Ass'n v. United
States, 440 U.S. 472, 477, 99 S. Ct. 1304, 1307, 59 L. Ed. 2d 519 (1979)
("A regulation may have particular force if it is a substantially contemporaneous
construction of the statute by those presumed to have been aware of congressional
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 reenactments of the statute").
We are not alone in finding under the circumstances an implied congressional will
that, pursuant to federal regulation, states exercise the federal trust power for
the benefit of tribal Native Americans. In Livingston v. Ewing, 601 F.2d
1110, 1116 (10th Cir.), cert. denied, 444 U.S. 870, 100 S. Ct. 147, 62
L. Ed. 2d 95 (1979), the Tenth Circuit upheld against an equal protection claim
a Santa Fe, New Mexico ordinance prohibiting sales by persons other than Native
Americans within 50 feet of any established business offering for sale handcrafted
jewelry. The court held that 42 U.S.C. § 2000e-2(i) "is fully applicable here
and is dispositive of this case." Id. at 1115. Section 2000e-2(i)
provides that
nothing contained in [the anti-discriminatory provisions of the Equal Employment
Opportunity Act] shall apply to any business or enterprise on or near an Indian
reservation with respect to any publicly announced employment practice of such business
or enterprise under which a preferential treatment is given to any individual because
he is an Indian living on or near a reservation.
The Livingston court found congressional support for its holding in Morton's
discussion of section 2000e-2(i):
these 1964 exemptions as to private employment indicate Congress' recognition of
the longstanding federal policy of providing a unique legal status to Indians in
matters concerning tribal or "on or near" reservation employment. The
exemptions reveal a clear congressional sentiment that an Indian preference in the
narrow context of tribal or reservation-related employment did not constitute racial
discrimination of the type otherwise proscribed.
Livingston, 601 F.2d at 1113-14, citing Morton, 417 U.S. at 548,
94 S. Ct. at 2481. The court concluded that the Livingstons' equal protection challenge
to the city ordinance favoring Native Americans living on or near a reservation
"fails because Congress was fully justified in extending to the Indians the
exemptions that are considered and favorably discussed in Morton."
Livingston, 601 F.2d at 1116. Without saying so, the Livingston
court necessarily inferred from section 2000e-2(i) a congressional delegation of
trust power allowing the city of Santa Fe to favor Native American enterprises under
Morton's equal protection analysis.
The court in St. Paul Intertribal Housing Bd. v. Reynolds, 564 F. Supp.
1408 (D.Minn.1983) relied on Livingston in holding that "state action
for the benefit of Indians can also fall under the trust doctrine and therefore
be protected from challenge under the equal protection clause or civil rights statutes."
Id. at 1412 (emphasis added). In a footnote, the court added that "Morton
v. Mancari referred to 'Congress' unique obligation, while the passage
above refers to a more general obligation of the government. Taken in context it
indicates that the trust relation extends to the states." Id. at 1412-13
n. 6 (emphasis added). While the Reynolds court may have overstated the
states' ability to exercise the federal trust power, its application of the principles
there set forth is consistent with our holding in this case. The Reynolds
court upheld against an equal protection challenge a Minnesota statute that authorizes
a state agency to distribute federal funds for urban Native American housing programs.
But before doing so, the court parsed legislative history to assure itself that
federal statutes expressed congressional intent to benefit Native Americans with
funds appropriated to the Department of Housing and Urban Development. Id.
at 1411-13.
In construing the federal NAC exemption to permit states to enact congruent exemptions
to their controlled substance laws, we are mindful of the settled principle of statutory
construction that "statutes passed for the benefit of dependent Indian tribes
. . . are to be liberally construed, doubtful expressions being resolved in favor
of the Indians." Bryan v. Itasca County, Minnesota, 426 U.S. 373,
392, 96 S. Ct. 2102, 2112, 48 L. Ed. 2d 710 (1976) (citations omitted). As a valid
exercise of the federal trust power, Texas' NAC [*1220] exemption
withstands Peyote Way's equal protection and establishment clause challenges under
the rationale that we articulated above for upholding the federal NAC exemption's
constitutionality.
C. PRIVACY RIGHT
Peyote Way argues that the federal and Texas NAC exemptions impermissibly burden
the child-rearing and marital choices of its members who wish to propagate their
peyotist faith. But there is no fundamental right under the Fifth Amendment's due
process clause to practice, or to raise a child who practices, a religion in contravention
of otherwise valid laws, and we will not infer one. See Bowers v. Hardwick,
478 U.S. 186, 194, 106 S. Ct. 2841, 2846, 92 L. Ed. 2d 140 (1986) (Court not "inclined
to take an expansive view of [its] authority to discover new fundamental rights
imbedded in the Due Process Clause"). Absent such a right, we agree with the
district court that the NAC exemptions do not burden Peyote Way's members' marital
and child-rearing choices.
III. CONCLUSION
Because we find that 21 U.S.C. §§ 841, 844, 21 C.F.R. § 1307.31, and Texas Health
and Safety Code §§ 481.111(a), 481.114, 481.117, 481.122 do not violate any constitutional
provision cited by Peyote Way, we AFFIRM the district court's judgment denying Peyote
Way declaratory and injunctive relief.
DISSENT BY: CLARK
DISSENT
CLARK, Chief Judge, dissenting.
I respectfully dissent from the majority's decision affirming the district court's
dismissal of the constitutional attack on a federal regulation and Texas law that
criminalize possession and use of peyote but exempt members of the Native American
Church from such possession and use in religious services. I would hold that the
exemptions violate the constitutional bar against making laws "respecting an
establishment of religion."
Employment Div.,
Dept. of Human Resources of Oregon v. Smith permitted Oregon's general
criminal prohibition on the use of peyote to be enforced against members of the
Native American Church who ingested peyote as a religious sacrament. The Court held
the criminal statute of general applicability did not constitute a law prohibiting
the free exercise of religion. The Court's decision necessarily upholds the underlying
regulatory and statutory bans imposed by the federal government and the State of
Texas that are involved here. The majority agrees with this interpretation of Smith.
Where we part company is over whether the exemption in the federal regulation and
the Texas statute constitute a law "respecting an establishment of religion."
The sole function of the exemption is to permit the Native American Church to worship
in a way that violates the constitutionally validated prohibition of peyote use
for any purposes. In my view, the fact that the impetus for the exemption arose
from the federal government's paternalistic interest in American Indians and the
"me too" view of Texas cannot convert this purely religious exemption
into a political one. This exemption is nothing more or less than a law respecting
an establishment of religion, barred by the plain words of the first phrase of the
first amendment.
Holding the exemption granted in the regulation and statute to be unconstitutional
eliminates the need to reach the majority's equal protection analysis. However,
I do not regard the issue here as one controlled by Morton v. Mancari.
Authentication of preferential hiring of Indians in the Bureau of Indian Affairs
is no authority to make a law respecting an establishment of religion. Because the
exemption has only a purely religious purpose, the equal protection analysis should
subject the exemption to the same level of equal protection scrutiny applied to
any other law creating a preference for only one sect's religious practice.
I do agree with the majority's affirmance of the district court's denial of injunctive
relief. Peyote Way wants the unconstitutional exemption, but not the constitutional
ban, extended to it. This, of course, cannot be. Holding the Native American Church
[*1221] exemption unconstitutional gives Peyote Way no right to
enjoin enforcement of the valid provisions of the regulation and law criminalizing
the use of peyote in religious practices. Whether the exemption is severable is
an unbriefed question for another day in another case.
Because I would reverse the district court's judgment holding the exemption constitutional,
I respectfully dissent.