For the past 36 years, since I became a member of the Ethiopian Zion Coptic Church
in 1970, I have been denied the right to use marijuana as my sacrament. During
that time, and previous to it, the courts have consistently relied on the findings
of Congress supporting the prohibition of marijuana in the Controlled Substance
Act of 1970 as sufficient proof that Congress intended to prohibit the sacramental
use of marijuana (something which Congress did not contemplate at the time it passed
the Controlled Substances Act in 1970).
In Town v. State ex rel. Reno, 377 So. 2d 648 (Fla. 1979),
at page 649, the Florida Supreme Court wrote:
the trial court expressly found that: (1) the Ethiopian Zion Coptic Church represents
a religion within the first amendment to the Constitution of the United States;
(2) the "use of cannabis is an essential portion of the religious practice”
Further, the Ethiopian Zion Coptic Church is not a new church or religion but the
record reflects it is centuries old and has regularly used cannabis as its sacrament
I was living with Jacquelyn Town and her husband Clifton Middleton, United
States v. Middleton, 690 F.2d 820, 825 (11th Cir. 1982), cert. denied, 460
U.S. 1051 (1983) (Middleton hereafter), at the time that ruling
was made.
There has now been a notable change in United States law to the protection of religious
freedom in the ruling by the United States Supreme Court in Gonzales v.
O Centro Espirita Beneficente Uniao do Vegetal, 163 L. Ed. 2d
1017; 2006 U.S. LEXIS 1815; 74 U.S.L.W. 4119 (February 21, 2006) (UDV hereafter),
which reverses the United States Supreme Court’s prior ruling in Employment
Div., Dep’t of Human Services of Oregon v. Smith, 494 U.S. 872 (1990)
(Smith hereafter) (that religious believers may not obtain
exemptions to religion-neutral laws of general applicability that infringe on their
religious practices).
In Smith, the United States Supreme Court considered the
sacramental use of peyote by members of the Native American Church and concluded
it would not apply the “compelling interest” test it had previous established
in Sherbert v. Verner, 374 U.S. 398 (1963) and
Wisconsin v. Yoder, 406 U.S. 205 (1972).
In Smith, Justice Scalia wrote:
If the "compelling interest" test is to be applied at all, then, it must
be applied across the board, to all actions thought to be religiously commanded.
Moreover, if “compelling interest" really means what it says (and watering
it down here would subvert its rigor in the other fields where it is applied), many
laws will not meet the test. Any society adopting such a system would be courting
anarchy, but that danger increases in direct proportion to the society's diversity
of religious beliefs, and its determination to coerce or suppress none of them.
Precisely because "we are a cosmopolitan nation made up of people of almost
every conceivable religious preference," Braunfeld v. Brown, 366 U.S.,
at 606, and precisely because we value and protect that religious divergence, we
cannot afford the luxury of deeming presumptively invalid, as applied to the religious
objector, every regulation of conduct that does not protect an interest of the highest
order.
The rule respondents favor would open the prospect of constitutionally required
religious exemptions from civic obligations of almost every conceivable kind –
[… other citations omitted …] drug laws, see, e. g.,
Olsen v. Drug Enforcement Administration, 279 U. S. App. D. C. 1, 878 F.
2d 1458 (1989) [… other citations omitted …].
The First Amendment's protection of religious liberty does not require this.
During the same week that Smith was decided, the United
States Supreme Court denied certiorari to Carl Eric Olsen, an Ethiopian Zion Coptic
priest appealing the denial of a DEA exemption for the sacramental use of marijuana;
Olsen v. Drug Enforcement Admin., 495 U.S. 906; 110
S. Ct. 1926; 109 L. Ed. 2d 290 (1990) (Olsen hereafter).
In response to the ruling in Smith Congress enacted the
Religious Freedom Restoration Act of 1993 (“RFRA”). 42 U.S.C. §
2000(b)(b)(2004). This law provides that government action that substantially
burdens religious exercise is invalid unless it is justified by a compelling government
interest and is the least restrictive way to achieve that interest. In City
of Boerne v. Flores, 521 U.S. 507 (1997), the United States Supreme
Court struck down RFRA as applied to the states on the grounds that it exceeded
Congress’ power over states. RFRA continues to apply to actions by the federal
government.
Congress has also enacted the Religious Land Use and Institutionalized Persons
Act of 2000 (“RLUIPA”), 114 Stat. 804, which imposes, among
other things, a requirement on states that in most circumstances burdens on religion
through land use regulation and burdens on the religious exercise of prisoners must,
as with RFRA, be justified by a compelling government interest and through the least
restrictive means.
The Supreme Court upheld a constitutional challenge to the prisoner-rights portion
of RLUIPA in Cutter v. Wilkinson, 125 S. Ct. 2113 (2005),
finding that the law’s protection of inmate religious rights did not violate
the Establishment Clause. In Cutter, the Court emphasized
that there is a long tradition in the United States of accommodating religious practice
through laws such as RLUIPA, and the fact that a law may provide exceptions to general
rules for religious reasons but not other reasons does not render it invalid.
In Olsen at pages 1463, 1464, and 1465 (D.C. Cir. 1989)
Justice Ginsburg wrote:
In sum, we conclude that the DEA cannot accommodate Olsen's religious use of marijuana
without unduly burdening or disrupting enforcement of the federal marijuana laws.
We therefore hold that the free exercise clause does not compel the DEA to grant
Olsen an exemption immunizing his church from prosecution for illegal use of marijuana.
We agree that the vast difference in demand for marijuana on the one hand and peyote
on the other warranted the DEA's response to Olsen's petition. Were the DEA
to consider a marijuana exemption, equal protection (and/or the establishment clause,
see supra note 5) would indeed appear to command that it do so evenhandedly.
While we rest our decision on the immensity of the marijuana control problem in
the United States, we note some further distinctions. The peyote exemption
was accorded to the Native American Church for a traditional, precisely circumscribed
ritual. In that ritual, the peyote itself is an object of worship; for members
of the Native American Church, use of peyote outside the ritual is sacrilegious.
True, for purposes of the exemption requested, Olsen narrowed the permission he
sought to track the one accorded the Native American Church. See Memorandum
of Court-Appointed Amicus Curiae in Support and on Behalf of Petitioner Carl E.
Olsen at 29-30 (submitted to DEA on remand). But "narrow" use, concededly,
is not his religion's tradition.
Since Smith, I have not practiced my religion because:
(1) I have been repeatedly arrested and convicted of violating state and federal
laws because I used marijuana as my sacrament; (2) courts have repeatedly refused
to allow any defendant to show the fact finder any factual evidence about the lack
of toxicity or physical impairment caused by marijuana; and (3) under UDV,
RFRA and RLUIPA, the sacramental use of marijuana is now protected to the extent
that the courts are compelled to allow that factual evidence, testimony and argument
to the fact finder at trial.
Justice Ginsburg’s ruling in Olsen made it clear
that there were no circumstances under which she would find the sacramental use
of marijuana protected by law. Justice Ginsburg predicated her ruling on the
assumption that I would limit the practice of my religion in any way, and left me
with only two choices: (1) practice my religion and subject myself to arrest and
imprisonment for doing so; or (2) stop practicing my religion.
In OlsenJustice Ginsburg wrote:
Because the tenets of the Ethiopian Zion Coptic Church endorse marijuana use every
day throughout the day, however, Olsen's proposal for confined use would not be
self-enforcing.
The all or nothing approach used by the court in Olsendoes
not satisfy the requirements of the Religious Freedom Restoration Act of 1993 (“RFRA”).
42 U.S.C. § 2000(b)(b)(2004) that government action that substantially burdens
religious exercise is invalid unless it is justified by a compelling government
interest and is the least restrictive way to achieve that interest.
Another problem with Olsenwas whether I was effectively
represented by the law firm of Hogan and Hartson appointed by the court to represent
me. After reading my pro se appeal brief, the U.S. Court of Appeals hired
the law firm of Hogan and Hartson to represent me on appeal.
Approximately 9 months prior to the ruling in Olsen v. Drug Enforcement Administration,
878 F.2d 1458 (D.C. Cir. 1989), the DEA’s chief administrative law judge,
Francis L. Young, In the Matter of Marijuana Rescheduling Petition, DEA
Docket No. 86-22, Sept. 6, 1988, pages 58-59, ruled that:
Marijuana, in its natural form, is one of the safest therapeutically active substances
known to man
I was one of the petitioners in the Marijuana Rescheduling Petition, DEA Docket
No. 86-22, Sept. 6, 1988. My attorney's were aware that I was a plaintiff
in that action and that the ruling had been issued at the time it was. The ruling
was issued prior to the last deadline for briefing in Olsen.
Judge Young’s ruling should have been presented by the law firm of Hogan and
Hartson as grounds for forcing the government to re-evaluate the prohibition of
marijuana and prove it had a compelling interest in prohibiting my sacramental use
of marijuana.
Under the federal drug statutes as written, the DEA Administrative Law Judge is
the specific person in Government tasked with accumulating the scientifically derived
evidence about a drug’s toxicity and medical utility.
The DEA Administrative Law Judge holds the hearings where the evidence is accumulated
and examined; and a recommended ruling is written. The Administrative. Law
ruling is then sent to the DEA Director for final decision on the recommended scheduling.
But, whatever the final decision on rescheduling, the fact of toxicity
is determined finally, under law, by that DEA Administrative Law Judge.
The first phase of the test for Compelling Interest is the examination of the evidence
of the toxicity or threat to life caused by the substance or activity under examination.
For instance, ethyl alcohol is a specific chemical which has a known physical toxicity
per unit of body weight in a human being. By looking at that specific toxicity
and how it manifests in human behavior, we learn about drunk driving. Drunk
driving is an example of a specific toxic behavioral effect of the drug alcohol.
The government is specifically empowered under RFRA and RLUIPA
to regulate religious exercise that threatens public health and safety.
There is no doubt that reenacting the ritual of Jesus making 180 gallons of the
finest wine the steward ever drank for the marriage feast at Cana could cause drunk
driving.
There is no doubt that the government can prove the fact of the threat of drunk
driving in a specific manner and propose regulations in a least restrictive manner
to control the threat to public health and safety caused by drunk driving.
However, the government cannot bootstrap total prohibition of religious use of wine
onto the threat to the public caused by drunk driving. The government doesn’t
even try to shut down bars anymore just because drunk drivers come out of them every
day and kill us on the roads - and that is protection of just commerce, not protection
of first amendment religious establishment and exercise.
Compelling Interest is the test under RFRA/RLUIP. Compelling Interest is
the test under Sherbert and Yoder.
Compelling Interest is the test I never got and the test I am entitled to under
the statutory retroactive provisions of RFRA and RLUIPA.
And, even then, if the government could have shown a compelling interest in prohibiting
my religious use, the government then must be subject to the least restrictive means
of regulation prong of RFRA/RLUIPA. So Justice Ginsberg's words above are
now directly contradicted by RFRA/RLUIPA as interpreted in UDV.
Even if the government could have shown a compelling interest in prohibiting marijuana,
it would still have to show a compelling interest in prohibiting me from practicing
my religion (a much higher standard of proof).
The court wrote in Olsen:
And "Olsen does not dispute the government's compelling interest in controlling
the distribution and drug-related use of marijuana," Brief of Court-Appointed
Amicus Curiae at 18. Indeed, "[e]very federal court that has considered
the matter, so far as we are aware, has accepted the congressional determination
that marijuana in fact poses a real threat to individual health and social welfare."
Rush, 738 F.2d at 512.
I was one of the defendants in United States v. Rush, 738 F.2d 497
(1st Cir. 1984), in which the court decided it did not have to re-examine
the government’s compelling interest in prohibiting marijuana because Congress
had already made that decision in enacting the Controlled Substances Act. In
Rush, at pages511-513, the court wrote:
The question whether the government has an overriding interest in controlling the
use and distribution of marijuana by private citizens is a topic of continuing political
controversy. Much evidence has been adduced from which it might rationally
be inferred that marijuana constitutes a health hazard and a threat to social welfare;
on the other hand, proponents of free marijuana use have attempted to demonstrate
that it is quite harmless. See Randall v. Wyrick,
441 F. Supp. 312, 315-16 (W.D. Mo. 1977); United States v. Kuch,
288 F. Supp. 439, 446 & 448 (D.D.C. 1968). In enacting substantial
criminal penalties for possession with intent to distribute, Congress has weighed
the evidence and reached a conclusion which it is not this court's task to review
de novo. Every federal court that has considered the matter, so far as we
are aware, has accepted the congressional determination that marijuana in fact poses
a real threat to individual health and social welfare, and has upheld the criminal
sanctions for possession and distribution of marijuana even where such sanctions
infringe on the free exercise of religion. United States v. Middleton,
690 F.2d 820, 825 (11th Cir. 1982), cert. denied, 460 U.S. 1051 (1983); United States
v. Spears, 443 F.2d 895 (5th Cir. 1971), cert. denied, 404 U.S. 1020 (1972);
Leary v. United States, 383 F.2d 851, 859-61 (5th Cir. 1967), rev'd on
other grounds 395 U.S. 6 (1969); Randall, 441 F. Supp. at 316 & n.
2; Kuch, 288 F. Supp. at 448. Only last year, the Eleventh
Circuit rejected identical claims raised by some of the very appellants before us
in this case, see Middleton, 690 F.2d 820,
and the United States Supreme Court denied review. We decline to second-guess
the unanimous precedent establishing an overriding governmental interest in regulating
marijuana.
Finally, it has been recognized since Leary that accommodation
of religious freedom is practically impossible with respect to the marijuana laws:
Congress has demonstrated beyond doubt that it believes marihuana is an evil in
American society and a serious threat to its people. It would be difficult
to imagine the harm which would result if the criminal sanctions against marihuana
were nullified as to those who claim the right to possess and traffic in this drug
for religious purposes. For all practical purposes the anti-marihuana laws
would be meaningless, and enforcement impossible.
Leary, 383 F.2d at 861, quoted in
Middleton, 690 F.2d at 825; see also
Kuch, 288 F. Supp. at 447. Although
a narrow administrative exception has been carved out from the Schedule I classification
of peyote for the benefit of the Native American Church, see 21 C.F.R. § 1307.31,
we think this exemption is properly viewed as a government "effort toward accommodation"
for a "readily identifiable, narrow catagory" which has minimal impact
on the enforcement of the laws in question. Lee, 455 U.S. at
260 n. 11 & 261. No broad religious exemption from the marijuana
laws is constitutionally required. We therefore affirm the district court's
ruling rejecting appellants' first amendment defense as a matter of law.
As Chief Justice Roberts wrote in UDV:
[T]he Government has not carried the burden expressly placed on it by Congress in
the Religious Freedom Restoration Act
RFRA requires the Government to demonstrate that the compelling interest test is
satisfied through application of the challenged law "to the person" --
the particular claimant whose sincere exercise of religion is being substantially
burdened. 42 U.S.C. § 2000bb-1(b).
Under the more focused inquiry required by RFRA and the compelling interest test,
the Government's mere invocation of the general characteristics of Schedule I substances,
as set forth in the Controlled Substances Act, cannot carry the day.
The fact that the Act itself contemplates that exempting certain people from its
requirements would be "consistent with the public health and safety" indicates
that congressional findings with respect to Schedule I substances should not carry
the determinative weight, for RFRA purposes, that the Government would ascribe to
them.
We do not doubt that there may be instances in which a need for uniformity precludes
the recognition of exceptions to generally applicable laws under RFRA. But it would
have been surprising to find that this was such a case, given the longstanding exemption
from the Controlled Substances Act for religious use of peyote, and the fact that
the very reason Congress enacted RFRA was to respond to a decision denying a claimed
right to sacramental use of a controlled substance. See 42 U.S.C. § 2000bb(a)(4).
The Government repeatedly invokes Congress' findings and purposes underlying the
Controlled Substances Act, but Congress had a reason for enacting RFRA, too.
Congress recognized that "laws 'neutral' toward religion may burden religious
exercise as surely as laws intended to interfere with religious exercise,"
and legislated "the compelling interest test" as the means for the courts
to "strike sensible balances between religious liberty and competing prior
governmental interests." 42 U.S.C. §§ 2000bb(a)(2), (5).
The government’s current ban on my religious practice is not the least restrictive
means of carrying out its responsibilities under the Controlled Substances Act and
the Religious Freedom Restoration Act.
UDV has now made it clear that Congress did not consider
the sacramental use of marijuana when it passed the Controlled Substances Act in
1970. UDV has now made it equally clear that a court
is not prevented from its responsibility of considering my sacramental use of marijuana
in the separate context of religious freedom.