THE PEOPLE, Plaintiff and Respondent, v. JACK WOODY et al., Defendants and Appellants
Crim. No. 7788
Supreme Court of California
61 Cal. 2d 716, 394 P.2d 813, 40 Cal. Rptr. 69
August 24, 1964
PRIOR HISTORY: APPEAL from a judgment of the Superior Court of
San Bernardino County. Carl B. Hilliard, Judge.
Prosecution for illegal possession of peyote.
HEADNOTES CALIFORNIA OFFICIAL REPORTS HEADNOTES
(1) Poisons--Offenses--Constitutionality of Statutes. --Although technically peyote
is an "hallucinogen" rather than a narcotic, the state, pursuant to the
police power, may proscribe its use.
(2) Constitutional Law--Fundamental Rights--Religious Freedom. --While the constitutional
prohibition against infringement of religious belief is absolute, the immunity afforded
religious practices is not so rigid, but a state may abridge religious practices
only on a demonstration that some compelling state interest outweighs defendant's
interest in religious freedom.
(3a) (3b) Poisons--Offenses--Illegal Possession of Narcotics. --A conviction of
unlawful possession of narcotics based on defendants' use of peyote in a religious
ceremony unconstitutionally infringed their right to religious freedom where it
appeared that peyote was not only a sacramental symbol but constituted in itself
an object of worship, so that the statutory prohibition of the use of peyote removed
the theological heart of defendants' religion, and where the prosecution failed
to show a compelling state interest that necessitated abridgement of defendants'
right to religious freedom.
(4) Id.--Offenses--Illegal Possession of Narcotics. --In a prosecution for unlawful
possession of narcotics, involving the use of peyote in a religious ceremony, although
judicial examination of religious beliefs is foreclosed by the First Amendment to
the federal Constitution, the courts must ask whether the claimant holds his belief
honestly and in good faith or whether he seeks to wear the mantle of religious belief
to cloak illegal activities, and this requirement imposes no undue burden on the
trier of fact.
COUNSEL: Rufus W. Johnson for Defendants and Appellants.
Mitchel J. Ezer, A. L. Wirin and Fred Okrand as Amici Curiae on behalf of Defendants
and Appellants.
Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and
Jack K. Weber, Deputy Attorney General, for Plaintiff and Respondent.
JUDGES: In Bank. Tobriner, J. Gibson, C. J., Traynor, J., Schauer,
J., Peters, J., and Peek, J., concurred. McComb, J., dissented.
OPINION BY: TOBRINER
OPINION
[*717] [**814] [***70] On April
28, 1962, a group of Navajos met in an Indian hogan in the desert near Needles,
California, to perform a religious ceremony which included the use of peyote. Police
officers, who had observed part of the ceremony, arrested defendants, who were among
the Indians present. Defendants were later convicted of violating section 11500
of the Health and Safety Code, which prohibits the unauthorized possession [**815]
[***71] of peyote. We have concluded that since the defendants
used the peyote in a bona fide pursuit of a religious faith, and since the practice
does not frustrate a compelling interest of the state, the application of the statute
improperly defeated the immunity of the First Amendment of the Constitution of the
United States.
When the police entered the hogan and charged the participants with the use of peyote,
one of the Indians handed the officers a gold-colored portrait frame containing
a photostatic copy of the articles of incorporation of the Native American Church
of the State of California. The articles declared: "That we as a people place
explicit faith and hope and belief in the Almighty God and declare full, competent,
and everlasting faith in our Church things which and by which we worship God. That
we further pledge ourselves to work for unity with the sacramental use of peyote
and its religious use."
The state stipulated at trial that at the time of the arrest defendants and the
other Indians were performing a religious ceremony which involved the use of peyote.
Defendants pleaded not guilty to the crime of illegal possession of narcotics, contending
that their possession of peyote was incident to the observance of their faith and
that the state could not constitutionally invoke the statute against them without
abridging their right to the free exercise of their religion. The trial proceeded
without a jury; the court held defendants guilty and imposed suspended sentences.
Defendants' defense, if any, must lie in their constitutional objection. (1) We
do not doubt that even though technically peyote is an "hallucinogen"
rather than a narcotic, the state, pursuant to the police power, may proscribe its
[*718] use. (Reetz v. Michigan (1903) 188 U.S. 505 [23
S.Ct. 390, 47 L.Ed. 563]; Sandelin v. Collins (1934) 1 Cal.2d 147 [33 P.2d
1009, 93 A.L.R. 956].) Only if the application of the proscription improperly infringes
upon the immunity of the First Amendment can defendants prevail; their case rests
upon that amendment, which is operative upon the states by means of the Fourteenth
Amendment (Cantwell v. Connecticut (1940) 310 U.S. 296 [60 S.Ct. 900, 84
L.Ed. 1213, 128 A.L.R. 1352]). The First Amendment reads "Congress shall make
no law respecting an establishment of religion, or prohibiting the free exercise
thereof. . . ." [Footnote 1]
(2) Although the prohibition against infringement of religious belief is absolute,
the immunity afforded religious practices by the First Amendment is not so rigid.
(Sherbert v. Verner (1963) 374 U.S. 398, 403 [83 S.Ct. 1790, 10 L.Ed.2d
965]; In re Jenison (1963) 375 U.S. 14 [84 S.Ct. 63, 11 L.Ed.2d 39]; West
Virginia State Board of Education v. Barnette (1942) 319 U.S. 624 [63 S.Ct.
1178, 87 L.Ed. 1628, 147 A.L.R. 674]; Braunfeld v. Brown (1960) 366 U.S.
599 [81 S.Ct. 1144, 6 L.Ed.2d 563]; Cantwell v. Connecticut, supra, 310
U.S. 296; Reynolds v. United States (1878) 98 U.S. 145 [25 L.Ed. 244].)
But the state may abridge religious practices only upon a demonstration that some
compelling state interest outweighs the defendants' interests in religious freedom.
(Sherbert v. Verner, supra, 374 U.S. 398, 406; In re Jenison,
supra, 375 U.S. 14; Braunfeld v. Brown, supra, 366 U.S. 599, 613-614; Cantwell
v. Connecticut, supra, 310 U.S. 296, 311; West Virginia [**816]
[***72] State Board of Education v. Barnette, supra, 319
U.S. 624, 643-644.)
The Supreme Court of the United States recently in Sherbert v. Verner,
supra, restated the rule. In Sherbert a South Carolina employer discharged
appellant, a Seventh-day Adventist, because she refused to work on Saturdays. Since
her "conscientious scruples" against Saturday work precluded her from
obtaining other employment, appellant applied for unemployment compensation benefits.
The South Carolina Employment Security Commission rejected appellant's claim
[*719] upon the ground that she had ". . . failed, without good
cause . . . to accept available suitable work. . . ." The South Carolina courts
affirmed the commission's ruling despite appellant's contention that application
of the disqualifying provision of the statute abridged her right to the free exercise
of her religion.
The United States Supreme Court reversed, finding, first, that the denial of compensation
benefits clearly constituted a burden upon the free exercise of appellant's religion.
The court then stated that it must ". . . consider whether some compelling
state interest enforced in the eligibility provisions of the South Carolina statute
justifies the substantial infringement of appellant's First Amendment right. It
is basic that no showing merely of a rational relationship to some colorable state
interest would suffice; in this highly sensitive constitutional area, '[only] the
gravest abuses, endangering paramount interests, give occasion for permissible limitation.
[Citation.]'" (P. 406.)
Despite the plea by South Carolina that fraudulent religious objections to Saturday
work would dilute the state compensation fund and interfere with employers' scheduling
of necessary Saturday work, the court held that "no such abuse or danger has
been advanced in the present case" which would justify the abridgement of appellant's
religious freedom.
The court in Sherbert thus utilized a twofold analysis which calls for
a determination of, first, whether the application of the statute imposes any burden
upon the free exercise of the defendant's religion, and second, if it does, whether
some compelling state interest justifies the infringement. [Footnote 2]
(3a) The first step requires an exploration into the particulars of this case to
determine whether section 11500 of [*720] the Health and Safety
Code imposes any burden upon the free exercise of defendants' religion. An examination
of the record as to the nature of peyote and its role in the religion practiced
by defendants as members of the Native American Church of California compels the
conclusion that the statutory prohibition most seriously infringes upon the observance
of the religion.
The plant Lophophora williamsii, a small, spineless cactus, found in the Rio Grande
Valley of Texas and northern Mexico, produces peyote, which grows in small buttons
on the top of the cactus. Peyote's principal constituent is mescaline. When taken
internally by chewing the buttons or drinking a derivative tea, peyote produces
several types of hallucinations, depending primarily upon the user. In most subjects
it causes [**817] [***73] extraordinary vision
marked by bright and kaleidoscopic colors, geometric patterns, or scenes involving
humans or animals. In others it engenders hallucinatory symptoms similar to those
produced in cases of schizophrenia, dementia praecox, or paranoia. Beyond its hallucinatory
effect, peyote renders for most users a heightened sense of comprehension; it fosters
a feeling of friendliness toward other persons.
Peyote, as we shall see, plays a central role in the ceremony and practice of the
Native American Church, a religious organization of Indians. Although the church
claims no official prerequisites to membership, no written membership rolls, and
no recorded theology, estimates of its membership range from 30,000 to 250,000,
the wide variance deriving from differing definitions of a "member." As
the anthropologists have ascertained through conversations with members, the theology
of the church combines certain Christian teachings with the belief that peyote embodies
the Holy Spirit and that those who partake of peyote enter into direct contact with
God.
Peyotism discloses a long history. A reference to the religious use of peyote in
Mexico appears in Spanish historical sources as early as 1560. Peyotism spread from
Mexico to the United States and Canada; American anthropologists describe it as
well established in this country during the latter part of the nineteenth century.
Today, Indians of many tribes practice Peyotism. Despite the absence of recorded
dogma, the several tribes follow surprisingly similar ritual and theology; the practices
of Navajo members in Arizona practically parallel those of adherents in California,
Montana, Oklahoma, Wisconsin, and Saskatchewan.
The "meeting," a ceremony marked by the sacramental use of peyote, composes
the cornerstone of the peyote religion. [*721] The meeting convenes
in an enclosure and continues from sundown Saturday to sunrise Sunday. To give thanks
for the past good fortune or find guidance for future conduct, a member will "sponsor"
a meeting and supply to those who attend both the peyote and the next morning's
breakfast. The "sponsor," usually but not always the "leader,"
takes charge of the meeting; he decides the order of events and the amount of peyote
to be consumed. Although the individual leader exercises an absolute control of
the meeting, anthropologists report a striking uniformity of its ritual.
A meeting connotes a solemn and special occasion. Whole families attend together,
although children and young women participate only by their presence. Adherents
don their finest clothing, usually suits for men and fancy dresses for the women,
but sometimes ceremonial Indian costumes. At the meeting the members pray, sing,
and make ritual use of drum, fan, eagle bone, whistle, rattle and prayer cigarette,
the symbolic emblems of their faith. The central event, of course, consists of the
use of peyote in quantities sufficient to produce an hallucinatory state.
At an early but fixed stage in the ritual the members pass around a ceremonial bag
of peyote buttons. Each adult may take four, the customary number, or take none.
The participants chew the buttons, usually with some difficulty because of extreme
bitterness; later, at a set time in the ceremony any member may ask for more peyote;
occasionally a member may take as many as four more buttons. At sunrise on Sunday
the ritual ends; after a brief outdoor prayer, the host and his family serve breakfast.
Then the members depart. By morning the effects of the peyote disappear; the users
suffer no aftereffects.
Although peyote serves as a sacramental symbol similar to bread and wine in certain
Christian churches, it is more than a sacrament. Peyote constitutes in itself an
object of worship; prayers are directed to it much as prayers are devoted to the
Holy Ghost. On the other hand, to use peyote for nonreligious purposes is sacrilegious.
Members of the church regard peyote also as a "teacher" because it induces
a feeling of brotherhood with other members; indeed, it enables the participant
to experience [**818] [***74] the Deity. Finally,
devotees treat peyote as a "protector." Much as a Catholic carries his
medallion, an Indian G.I. often wears around his neck a beautifully beaded pouch
containing one large peyote button. [Footnote 3]
[*722] The record thus establishes that the application of the
statutory prohibition of the use of peyote results in a virtual inhibition of the
practice of defendants' religion. To forbid the use of peyote is to remove the theological
heart of Peyotism. Having reached this conclusion, we must undertake the second
step in the analysis of the constitutional issue: a determination of whether the
state has demonstrated that "compelling state interest" which necessitates
an abridgement of defendants' First Amendment right. (Sherbert v. Verner,
supra, 374 U.S. 398, 406; see West Virginia State Board of Education v. Barnette,
supra, 319 U.S. 624, 643-644; National Assn. for Advancement of Colored People v.
Button, supra, 371 U.S. 415, 438; American Civil Liberties Union v. Board of
Education, supra, 55 Cal.2d 167, 178.)
The state asserts that the compelling reason for the prohibition of Peyotism lies
in its deleterious effects upon the Indian community, and even more basically, in
the infringement such practice would place upon the enforcement of the narcotic
laws because of the difficulty of detecting fraudulent claims of an asserted religious
use of peyote. The prosecution further claims that the cases support these positions.
We set forth the reasons why we believe the contentions to be unfounded.
The People urge that "the use of peyote by Indians in place of medical care,
the threat of indoctrination of small children," and the "possible correlation
between the use of this drug and the possible propensity to use some other more
harmful drug" justify the statutory prohibition. The record, however, does
not support the state's chronicle of harmful consequences of the use of peyote.
The evidence indicates that the Indians do not in fact employ peyote in place of
proper medical care; and, as the Attorney General with fair objectivity admits,
"there was no evidence to suggest that Indians who use peyote are more liable
to become addicted to other narcotics than non-peyote-using Indians." Nor does
the record substantiate the state's fear of the "indoctrination of small children";
it shows that Indian children never, and Indian teenagers rarely, use peyote. Finally,
as the Attorney General likewise admits, the opinion [*723] of
scientists and other experts is "that peyote . . . works no permanent deleterious
injury to the Indian. . . ." Indeed, as we have noted, these experts regard
the moral standards of members of the Native American Church as higher than those
of Indians outside the church.
The Attorney General also argues that since "peyote could be regarded as a
symbol, one that obstructs enlightenment and shackles the Indian to primitive conditions"
the responsibility rests with the state to eliminate its use. We know of no doctrine
that the state, in its asserted omniscience, should undertake to deny to defendants
the observance of their religion in order to free them from the suppositious "shackles"
of their "unenlightened" and "primitive condition."
Turning to the state's second contention, that the threat of fraudulent assertions
of [**819] [***75] religious immunity will render
impossible the effective enforcement of the narcotic laws, we note that South Carolina
in Sherbert v. Verner, supra, unsuccessfully urged to the United States
Supreme Court a substantially similar contention. It argued that "a possibility
that the filing of fraudulent claims by unscrupulous claimants feigning religious
objections to Saturday work might . . . dilute the unemployment compensation fund
. . . [and] hinder the scheduling by employers of necessary Saturday work."
(374 U.S. at p. 407.) The Supreme Court held among its alternate grounds for disposing
of this contention, that "there is no proof whatever to warrant such fears
of malingering or deceit as those which the respondents now advance." (Id.
at p. 407.) Further, the court pointed out that "even if the possibility of
spurious claims did threaten to dilute the fund and disrupt the scheduling of work,
it would plainly be incumbent upon the [state] to demonstrate that no alternative
forms of regulation would combat such abuses without infringing First Amendment
rights." (Id. at p. 407.) In the instant case, as in Sherbert,
the state produced no evidence that spurious claims of religious immunity would
in fact preclude effective administration of the law or that other "forms of
regulation" would not accomplish the state's objectives.
That other states have excepted from the narcotic laws the use of peyote, and have
not considered such exemption an impairment to enforcement, weakens the prosecution's
forebodings. New Mexico in 1959, and Montana in 1957, amended their narcotics laws
to provide that the prohibition against narcotics "shall not apply to the possession,
sale or gift of peyote for religious sacramental purposes by any bona fide [*724]
religious organization incorporated under the laws of the state." [Footnote
4] Arizona has reached a similar result by judicial decree. [Footnote 5]
That the state's showing of "compelling interest" cannot lie in untested
assertions that recognition of the religious immunity will interfere with the enforcement
of the state statute, finds illustrated in the Minnesota litigation culminating
in In re Jenison (1963) 267 Minn. 136 [125 N.W.2d 588]. In the original
Jenison case, the Minnesota Supreme Court, prior to the decision in Sherbert v.
Verner, affirmed the criminal contempt conviction of a woman who refused
to serve on a jury because of religious objections. (In re Jenison (1963)
265 Minn. 96 [120 N.W.2d 515].) The United States Supreme Court reversed per curiam
and remanded the case to the Minnesota Supreme Court "for further consideration
in light of Sherbert v. Verner. . . ." (In re Jenison (1963)
375 U.S. 14 [84 S.Ct. 63, 11 L.Ed.2d 39].) Upon remand the state court reversed
the conviction, stating that "there has been an inadequate showing that the
state's interest in obtaining competent jurors requires us to override relator's
right to the free exercise of her religion. Consequently we hold that until and
unless further experience indicates that the indiscriminate invoking of the First
Amendment poses a serious threat to the effective functioning of our jury system,
any person whose religious convictions prohibit compulsory jury duty shall henceforth
be exempt." (Id. at p. 589.)
We turn to the several cases cited by the Attorney General which uphold statutes
restricting religious practices. The People principally rely upon Reynolds v. United
States (1878) 98 U.S. 145 [25 L.Ed. 244], which ruled that Congress could
constitutionally apply to Mormons a prohibition against polygamy. The Mormon doctrine
of polygamy rested in alleged divine origin and imposed upon male members, circumstances
[**820] [***76] permitting, the observance of
the practice upon pain of eternal damnation.
The Supreme Court held that the history of the laws against polygamy showed that
the condemnation of the practice was a matter of the gravest social importance.
It found in polygamy [*725] the seed of destruction of a democratic
society. [Footnote 6] Viewing the practice as highly injurious to its female adherents,
the court classed polygamy with such religious rites as sacrifice of human beings
and funeral immolation of widows.
Reynolds v. United States must be distinguished from the instant case for
two fundamental reasons. The test of constitutionality calls for an examination
of the degree of abridgment of religious freedom involved in each case. Polygamy,
although a basic tenet in the theology of Mormonism, is not essential to the practice
of the religion; peyote, on the other hand, is the sine qua non of defendants' faith.
It is the sole means by which defendants are able to experience their religion;
without peyote defendants cannot practice their faith. Second, the degree of danger
to state interests in Reynolds far exceeded that in the instant case. The
court in Reynolds considered polygamy as a serious threat to democratic
institutions and injurious to the morals and well-being of its practitioners. As
we have heretofore indicated, no such compelling state interest supports the prohibition
of the use of peyote.
Similarly, Braunfeld v. Brown (1960) 366 U.S. 599 [81 S.Ct. 1144, 6 L.Ed.2d
563] cited by the People, upholding the Pennsylvania Sunday Law against a free exercise
objection by Sabbatarians, differs from the present case. Braunfeld represents
only an "incidental" [Footnote 7] infringement of religious freedom contrasted
with "a strong state interest in providing one uniform day of rest for all
workers. That secular objective could be achieved . . . only by declaring Sunday
to be that day of rest. Requiring exemptions for Sabbatarians, [*726]
while theoretically possible, appeared to present an administrative problem of such
magnitude . . . that such a requirement would have rendered the entire statutory
scheme unworkable." (Sherbert v. Verner (1963) 374 U.S. 398, 408,
409 [83 S.Ct. 1790, 10 L.Ed.2d 965].) [Footnote 8]
(4) Finally, we deal with the Attorney General's argument that our present conclusion
requires an inquiry in each case into the bona fides of a particular defendant's
beliefs, an inquiry which is both difficult and "repugnant to the spirit of
our law. . . ." Yet the trier of fact need inquire only into the question of
whether the defendant's [**821] [***77] belief
in Peyotism is honest and in good faith. As the court in United States v. Ballard
(1944) 322 U.S. 78 [64 S.Ct. 882, 88 L.Ed. 1148], held, although judicial examination
of the truth or validity of religious beliefs is foreclosed by the First Amendment,
the courts of necessity must ask whether the claimant holds his belief honestly
and in good faith or whether he seeks to wear the mantle of religious immunity merely
as a cloak for illegal activities.
In so doing, we impose no undue burden upon the trier of fact. We do not doubt the
capacity of judge and jury to distinguish between those who would feign faith in
an esoteric religion and those who would honestly follow it. "Suffice it to
say that trial courts will have to determine in each instance, with whatever evidence
is at hand, whether or not the assertion of a belief which is protected by the First
Amendment is in fact a spurious claim." (In re Jenison, supra, 125
N.W.2d 588, 590; italics added.) Thus the court makes a factual examination of the
bona fides of the belief and does not intrude into the religious issue at all; it
does not determine the nature of the belief but the nature of defendants' adherence
to it.
Courts reach such factual determinations in a host of related circumstances. Thus
the Universal Military Training and Service Act (1948) 50 U.S.C.App., section 456(j),
exempts from combat training and service any person "who, by reason of religious
training and belief, is conscientiously opposed to participation in war in any form."
(See, e.g., Rempel v. United States (10th Cir. 1955) 220 F.2d 949, 951;
[*727] United States v. Hagaman (3rd Cir. 1954) 213 F.2d
86, 89; In re Jost (1953) 117 Cal.App.2d. 379, 387 [256 P.2d 71], revd.
347 U.S. 901 [74 S.Ct. 427, 98 L.Ed. 1061] [applying conscientious objector provision
in Internal Security Act of 1950, 8 U.S.C.Supp. IV, § 735].) Significantly, title
II, section 3, of the National Prohibition Act (1919) 41 Stat. 308-309, exempted
from prohibition the use of wine for sacramental purposes.
In the instant case, of course, we encounter no problem as to the bona fide nature
of defendants' assertion of the free exercise clause. The state agrees, and the
evidence amply demonstrates, that defendants' use of peyote was for a religious
purpose. [Footnote 9]
(3b) We have weighed the competing values represented in this case on the symbolic
scale of constitutionality. On the one side we have placed the weight of freedom
of religion as protected by the First Amendment; on the other, the weight of the
state's "compelling interest." Since the use of peyote incorporates the
essence of the religious expression, the first weight is heavy. Yet the use of peyote
presents only slight danger to the state and to the enforcement of its laws; the
second weight is relatively light. The scale tips in favor of the constitutional
protection.
We know that some will urge that it is more important to subserve the rigorous enforcement
of the narcotic laws than to carve out of them an exception for a few believers
in a strange faith. They will say that the exception may produce problems of enforcement
and that the dictate of the state must overcome the beliefs of a minority of Indians.
But the problems of enforcement here do not inherently differ from those of other
situations which call for the detection of fraud. On the other hand, the right to
free religious expression embodies a precious heritage of our history. In a mass
society, which presses at every point toward conformity, the protection of a self-expression,
however unique, of the individual and the group becomes ever more important. The
varying currents of the subcultures that flow into the mainstream of our national
life give it depth and beauty. We [**822] [***78]
preserve a greater value than an ancient tradition when we protect the rights of
the Indians who honestly practiced an old religion [*728] in using
peyote one night at a meeting in a desert hogan near Needles, California.
The judgment is reversed.