MARIJUANA AS A HOLY SACRAMENT:
IS THE USE OF PEYOTE CONSTITUTIONALLY DISTINGUISHABLE FROM THAT
OF MARIJUANA IN BONA FIDE RELIGIOUS CEREMONIES?
Written By Cynthia S. Mazur*
NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY
Volume 5, Issue No. 3, 1991 pages 693-727
* L.L.M. Candidate, Appellate Advocacy, Georgetown
University Law Center. J.D., Syracuse University
College of Law, M.Div, Princeton Theological
Seminary, B.A. Hartwick College.
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TABLE OF CONTENTS
Page
I. THE NATIVE AMERICAN CHURCH ENJOYS A DEA EXEMPTION FROM
THE FEDERAL DRUG LAWS PROHIBITING INGESTION OF PEYOTE.......2
A. The Native American Church.............................2
B. Peyote.................................................4
C. The Controlled Substances Act..........................5
D. The Native American Church Exemption...................7
II. THE ETHIOPIAN ZION COPTIC CHURCH IS A BONA FIDE
RELIGION AND MARIJUANA IS CENTRAL TO ITS WORSHIP............11
III. THE ETHIOPIAN ZION COPTIC CHURCH REPEATEDLY
PETITIONS BUT IS DENIED A SACRAMENTAL DRUG
EXEMPTION SIMILAR TO THAT ACCORDED TO THE NATIVE
AMERICAN CHURCH.............................................15
A. Olsen Proceeds Pro Se..................................15
B. Amicus is Appointed to Represent Olsen.................22
C. Remand to the DEA......................................23
D. The DEA Denies the Exemption...........................28
E. The Court of Appeals Denies the Exemption..............30
1. The Majority......................................30
2. Judge Buckley's Dissent...........................32
IV. THE COURT OF APPEALS DECISION VIOLATES
THE CONSTITUTION............................................36
A. Comparing The Two Exemptions...........................37
B. Comparing the Law Enforcement Problems.................39
C. Comparing the Churches' Rituals........................42
D. Comparison of the Drugs................................46
E. Comparison of Attitudes Towards the Two Churches.......48
V. CONCLUSION..................................................50
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MARIJUANA AS A HOLY SACRAMENT:
IS THE USE OF PEYOTE CONSTITUTIONALLY DISTINGUISHABLE FROM THAT
OF MARIJUANA IN BONA FIDE RELIGIOUS CEREMONIES?
"And God said, Behold, I have given you every herb bearing seed."
Genesis 1:29 (King James).
This past April, within one week, the Supreme Court: 1) denied
certiorari to Carl Eric Olsen, an Ethiopian Zion Coptic priest appealing
the denial of a DEA exemption for the sacramental use of marijuana;
[footnote 1] and 2) held that the State of Oregon could deny unemployment
compensation to two Native Americans who had been fired for the
sacramental use of peyote. [footnote 2] Similarities between the two
cases end there. The Supreme Court's latter holding does not change the
fact that Congress and the Drug Enforcement Administration ("DEA"), have
decided to accommodate the religious practices of the Native American
Church ("NAC"), and accord it a preferential position by establishing,
pursuant to regulation, its right to religious drug use over against all
other churches. {footnote 3] Part I of this article will set forth the
favorable treatment which the federal government extends to the NAC
regarding its unlimited exemption to use peyote in religious ceremonies.
[footnote 4] Part II of this article will
____________________
[footnote 1] Olsen v. Drug Enforcement Admin., 110 S. Ct. 1926
(1990).
[footnote 2] Employment Div., Dep't of Human Resources v. Smith,
110 S. Ct. 1595 (1990). The Court determined that the U.S. Constitution
does not mandate a free exercise right to the sacramental use of peyote.
Id.
[footnote 3] See infra notes 36-39 and accompanying text.
[footnote 4] See infra notes 8-39 and accompanying text.
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examine the basic tenets of the Ethiopian Zion Coptic Church ("EZCC") ,
related to the sacramental use of marijuana. [footnote 5] Part III of
this article will detail the responses of the DEA and the courts to the
EZCC's requests for an exemption similar to that held by the NAC.
[footnote 6] Finally, Part IV of this article will analyze the
constitutionality of the differing treatment of the two religions.
[footnote 7]
I. THE NATIVE AMERICAN CHURCH ENJOYS A DEA EXEMPTION FROM THE
FEDERAL DRUG LAWS PROHIBITING INGESTION OF PEYOTE
A. The Native American Church
When one tries to solidify a definition of the NAC, it must be
remembered that America has 307 Native American tribes living within its
borders. [footnote 8] There is no majority control of the NAC and as a
result, the only statement "that is safe to make is that there is, in
many places and in many ways, a concept of a Native American Church."
[footnote 9] How the NAC conducts its rituals and celebrates its
sacrament is subject to myriad differences." [footnote 10]
____________________
[footnote 5] See infra notes 40-60 and accompanying text.
[footnote 6] See infra notes 61-140 and accompanying text.
[footnote 7] See infra notes 141-201 and accompanying text.
[footnote 8] This number includes in its definition federally
recognized bands, villages, groups, and pueblos but does not include
tribes located in Alaska. The World Almanac & Book of Facts 1991 394
(1990).
[footnote 9] A. Marriott & C. Rachlin, Peyote at 105, 107-08
(1971). Marriott and Rachlin cite the two, prior definitive studies in
this area as Weston La Barre's The Peyote Cult, and J.S. Slotkin's The
Peyote Religion: A Study in Indian-White Relations. A. Marriott, supra,
at ix.
[footnote 10] See id. at 105-08.
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While the NAC has no recorded theology, members combine certain
Christian teachings with the belief that peyote embodies the Holy Spirit.
[footnote 11] It is believed that those who partake of peyote enter into
direct contact with God and experience a heightened sense of
comprehension which includes a deep feeling of compassion for others.
[footnote 12]
Worship in the NAC centers around the "peyote meeting" which begins
at sundown and continues at least until day break. [footnote 13]
Normally, the ceremony is conducted to give thanks or to receive
guidance. [footnote 14] Participants sit in a circle around a fire,
[footnote 15] consume peyote during the ceremony, and may pray, sing, or
use a drum. [footnote 16] Other accouterments can include a fan, eagle
bone or feather, whistle, rattle, and/or a prayer cigarette. [footnote
17] While the membership of the NAC is estimated to consist of between
250,000 and 400,000 people, [footnote 18] there are no official
prerequisites to
____________________
[footnote 11] People v. Woody, 61 Cal. 2d 716, 720, 40 Cal. Rptr.
69, 73, 394 P.2d 813, 817 (1964).
[footnote 12] See id.
[footnote 13] Id. at 720-21, 40 Cal. Rptr. at 73, 394 P.2d at 817.
[footnote 14] Id. at 721, 40 Cal. Rptr. at 73, 394 P.2d at 817.
[footnote 15] A. Marriott, supra note 9, at 121.
[footnote 16] Woody, 61 Cal. 2d at 721, 40 Cal. Rptr. at 73, 394
P.2d at 817.
[footnote 17] Id.
[footnote 18] Peyote Way Church of God v. Smith, 742 F.2d 193, 198
(5th Cir. 1984).
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membership and no written membership rolls. [footnote 19] In fact, there
are wide differences of opinion within the NAC regarding what constitutes
a member. [footnote 20]
B. Peyote
Peyote, an hallucinogenic cactus, [footnote 21] has effects similar
to lysergic acid diethylamide ("LSD"). [footnote 22] "The major active
ingredient in peyote is mescaline." [footnote 23] The precursor of the
DEA, the Bureau of Narcotics and Dangerous Drugs ("BNDD"), [footnote 24]
has
____________________
[footnote 19] Woody, 61 Cal. 2d at 720, 40 Cal. Rptr. at 73, 394
P.2d at 817.
[footnote 20] id.
[footnote 21] Peyote, which is native to the region of the Rio
Grande Valley and southward, is a plant classified botanically as
Lophorphora Williamsii Lemaire. It is a small, spineless, low growing
cactus and is carrot or turnip-like in shape and size. Only the fleshy,
rounded top grows above ground. After the pincushion top is sliced off
and dried, it becomes a hard and brittle disk-like button, which is used
ceremoniously to produce "profound sensory and psychic phenomena." 35
Fed. Reg. 14789-90 (1970).
[footnote 22] Id. LSD is a "Psychedelic" which refers to a class
of drugs including mescaline and marijuana, among others, whose primary
effect is to expand consciousness, heighten intellectual activity, and
increase sensory awareness. Leary v. United States, 383 F.2d 851, 858,
860 (5th Cir. 1967), rev'd on other grounds, 395 U.S. 6 (1969).
Researchers have found that religious reactions in those partaking of
psychedelic drugs are present in varying degrees from about 25% to 90% of
all users. United States v. Kuch, 288 F. Supp. 439, 444 (D.D.C. 1968).
A "religious reaction" is defined as a sharpening of the senses and a
mixed feeling of awe and fear. There may be a sense of mystery, peace,
and a sharpening of impressions as to all natural objects, perhaps
something like the vision Moses had of the burning bush. Id.
[footnote 23] Peyote Way Church of God v. Smith, 742 F.2d 193, 197
(5th Cir. 1984).
[footnote 24] For a discussion of the dissolve of the BNDD and the
creation of the DEA, see the notes to 21 U.S.C. § 881 (1988).
4
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reported that mescaline may produce an altered consciousness marked by:
1) confused mental states and dreamlike revivals of past traumatic
events; 2) alteration of sensory perception evidenced by visual illusions
and distortion of space and perspective; 3) alteration of mood with
anxiety, euphoria, or ecstacy; 4) alteration of ideation with impairment
of concentration and intelligence; and 5) alteration of personality with
impairment of conscious functioning and the deterioration of inhibitions.
[footnote 25] Indeed, ingestion of peyote may result in such severe
reactions as psychosis and suicide. [footnote 26] The federal drug laws
which prohibit peyote use, however, do not apply to participants who
ingest peyote as part of the NAC religious ritual. [footnote 27]
C. The Controlled Substances Act
The Controlled Substances Act of 1970 ("CSA"), provides a
comprehensive system of federal drug control laws in the United States.
[footnote 28] The CSA establishes five schedules of controlled
____________________
[footnote 25] See 35 Fed. Reg. 14,791 (1970) (in addition,
ingestion of peyote may result in fetal abnormalities, incurable
psychosis, and personality disintegration); 742 F.2d at 197.
[footnote 26] See id. On the other hand, some report that through
the use of peyote: 1) euphoria and good feelings are heightened; 2)
colors and music are more vivid and more pleasing; 3) prayers take on an
intense philosophical and ethical quality; and 4) a state of inner peace
takes place where the individual may experience visions or sensations of
the supernatural. A. Marriott, supra note 9, at 70. Peyote is not
thought to be addictive. Amicus Memorandum Before DEA, July 1988, App.
16, at 415 n.27.
[footnote 27] 21 U.S.C. § 812 (1988); 21 C.F.R. S 1307.31 (1990).
[footnote 28] See 21 U.S.C. §§ 801-971 (1988).
5
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substances, with Schedule I containing those substances subject to the
most restrictive control. [footnote 29] Schedule I substances are
defined as those which meet the following three criteria:
1) "a high potential for abuse";
2) "no currently accepted medical use in treatment in
the United States"; and
3) "a lack of accepted safety for use ... under
medical supervision." [footnote 30]
Peyote is classified as a Schedule I controlled substance [footnote 31]
of the CSA which prohibits its distribution, its possession with intent
to distribute, and its possession without a prescription. [footnote 32]
Section 1307.03 of the Code of Federal Regulations allows a
petitioner to apply for an exception to "any provision" of the
____________________
[footnote 29] 21 U.S.C. § 812 (1988).
[footnote 30] 21 U.S.C. § 812(b)(1) (1988).
[footnote 31] Other Schedule I substances include marijuana, LSD,
and heroin. 21 U.S.C. § 812(c) (1988).
[footnote 32] 21 U.S.C. §§ 812(c)(c)(12), 841, 844 (1988). The
manufacture and distribution of peyote were first prohibited by federal
law in the Drug Abuse Control Amendments of 1965, which were superseded
by the CSA. 21 U.S.C. § 812(c), Schedule I(c)(12) cited in Native Am.
Church of N.Y. v. United States, 468 F. Supp. 1247, 1249 (S.D.N.Y. 1979)
(also citing 79 Stat. 226 § 3(a)).
"Peyote was classified as a 'narcotic' in the Narcotic Farm Act
of 1929, 45 Stat. 1085, to enable peyote 'addicts' to seek treatment at
federal facilities. The Food, Drug and Cosmetic Act of 1938 also
classified peyote as a narcotic or hypnotic substance, 52 Stat. 1050, and
imposed certain labeling requirements. Neither statute prohibited the
manufacture or distribution of peyote." Amicus Memorandum before DEA,
July 1988, App. 16, at 404 n.3 (Memorandum Opinion for the Chief Counsel,
DEA, Dec. 22, 1981).
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drug prohibitions. [footnote 33] Indeed, evidence may be presented to
the Attorney General by any interested party in order to determine
whether a particular drug should be reclassified, added, or removed from
the schedules. [footnote 34] The CSA also authorizes the Attorney
General to establish registration procedures to permit persons to
manufacture, distribute, or dispense controlled substances and confers
broad authority to grant and waive registration requirements. [footnote
35]
D. The Native American Church Exemption
The language of the CSA contains no exemptions from its
prohibitions; nonetheless, in 1965, Congress passed the Drug
____________________
[footnote 33] 21 C.F.R. § 1307.03 (1990). The regulations
implementing the CSA's provisions concerning the scheduling of controlled
substances, registration of manufacturers, labeling of substances,
issuance of prescriptions, record-keeping and reporting requirements, and
similar matters are codified at 21 C.F.R. §§ 1300-1316 (1990).
[footnote 34] See 21 U.S.C. § 811(a) (1988); see also National Org.
for the Reform of Marijuana Laws v. DEA, 559 F.2d 735, 737-38 (D.C. Cir.
1977) ("Recognizing that the results of continuing research might cast
doubts on the wisdom of initial classification assignments, Congress
created a procedure by which changes in scheduling could be effected.").
Citing marijuana as an example, Congress noted the need for flexibility
when it enacted the CSA:
The extent to which marihuana should be controlled is a
subject upon which opinions diverge widely. There are
some who not only advocate its legalization but would
encourage its use; at the other extreme there are some
States which have established the death penalty for
distribution of marihuana to minors.
H.R. Rep. No. 91-1444, 91st Cong., 2d Sess. 12, reprinted in 1970 U.S.
Code Cong. and Ad. News 4566, 4577.
[footnote 35] 21 U.S.C. §§ 821-23 (1988). Section 823(b), which is
entitled "Registration requirements," sets forth the bases for granting
registration to distribute a controlled substance under Schedule I.
Public health and safety comprise one relevant factor. Id.
7
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Abuse Control Amendments with the understanding that bona fide religious
use of peyote was exempt from regulation. [footnote 36] The
____________________
[footnote 36] After the Drug Abuse Control Amendments of 1965, 79
Stat. 226 § 3(a) ("H.R. 2"), passed the Senate and were being debated in
the House, Congressman Harris stated the following:
Mr. Harris: The last amendment of substance made
by the Senate deletes the provisions of the House bill
which provided that the term "depressant or stimulant
drug" does not include peyote used in connection with
ceremonies of a bona fide religious organization.
Some concern has been expressed by many of the
religious groups affected, and by certain civil
liberties organizations concerning the possible impact
of this amendment on religious practices protected by
the first amendment to the Constitution.
Two court decisions have been rendered in this
area in recent years. One, a decision by Judge Yale
McFate in the case of Arizona v. Attakai, No. 4098, in
the superior court of Maricopa County, Phoenix,
Arizona, July 26, 1960; and a California decision,
People against Woody, decided August 24, 1964, in the
Supreme Court of California. Both these cases held
that prosecutions for the use of peyote in connection
with religious ceremonies was a violation of the first
amendment to the Constitution.
In view of all this, I requested the views of the
Food and Drug Administration and have been assured that
the bill, even with [sic without] the peyote exemption
appearing in the House-passed bill, cannot forbid bona
fide religious use of peyote.
Mr. Speaker, I ask for unanimous consent to
include the letter from the Food and Drug
Administration at this point in my remarks.
Dear Mr. chairman: In response to your
request we are stating the position the Food
and Drug Administration expects to take if
H.R. 2 becomes law as it passed the Senate
with respect to the use of peyote in
religious ceremonies.
We have been advised by a representative of
the North [sic Native] American Church that
this church is a bona fide religious
organization and that peyote has bona fide
use in the sacrament of the church. The
representative has agreed to document both of
these statements.
If the church is a bona fide religious
organization that makes sacramental use of
peyote, then it would be our view that H.R.
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Attorney General in 1966, adopted a regulation effectuating Congress'
intent. [footnote 37] In 1970, when Congress passed the CSA, the BNDD
assured Congress that a peyote use exemption would be carried forward by
regulation. [footnote 38] After the passage of the CSA,
____________________
2, even without the peyote exemption which
appeared in the House-passed version, could
not forbid bona fide religious use of peyote.
We believe that the constitutional guarantee
of religious freedom fully safeguards the
rights of the organization and its
communicants.
Sincerely yours,
George P. Larrick,
Commissioner of Food and Drugs
Mr. Speaker, in view of the foregoing, I recommend that
the House agree to the Senate amendments to H.R. 2.
111 Cong. Rec. 15,977-78 (1965). Shortly after these remarks were
concluded, the House concurred in the Senate amendments. Amicus
Memorandum before DEA, July 1988, App. 16 at 405-407 (Memorandum Opinion
for the Chief Counsel, DEA, December 22, 1981) (footnote omitted).
Responsibility for enforcing the 1965 Amendments was transferred from
HEW, of which FDA is a part, to the BNDD, pursuant to Reorganization Plan
No. 1 of 1968. Government Brief, Jan. 4, 1989, at 4 n.4.
[footnote 37] 31 Fed. Reg. 565, 4679 (1966). Congress' delegation
of this authority to the Attorney General is a lawful delegation of
legislative power. Government Brief, Jan. 4, 1989, at 11 n.9 (citing
United States v. Gordon, 580 F.2d 827, 837-40 (5th Cir. 1978), and United
States v. Pastor, 557 F.2d 930, 939-41 (2d Cir. 1981)). The Attorney
General has delegated responsibility under the CSA to the DEA
Administrator pursuant to 28 C.F.R. § 0.100 (1990).
[footnote 38] The CSA hearings contain the following:
Mr. [Congressman] Satterfield. I have one other
question. I recall when we were discussing dangerous
drugs a few years ago, the question came up about the
Native American Church involving Indians in the west
who use and have for centuries used peyote in
connection with religious services. It is my
understanding that they enjoy an exemption under the
current law.
My question is whether in any of the bills we have
before us, if passed, would in any way affect this
present exemption?
Mr. Sonnenreich. [Deputy Chief Counsel of BNDD].
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the BNDD promulgated the current regulation which provides:
SPECIAL EXEMPT PERSONS
§ 1307.31 Native American Church.
The listing of peyote as a controlled
substance in Schedule I does not apply to the
nondrug use of peyote in bona fide religious
ceremonies of the Native American Church, and
members of the Native American Church so
using peyote are exempt from registration.
Any person who manufactures peyote for or
distributes peyote to the Native American
Church, however, is required to obtain
registration annually and to comply with all
other requirements of law. [footnote 39]
____________________
In the first instance, Mr. Satterfield, the Native
American Church did ask us by letter as to whether or
not the regulation, exempting them by regulation, would
be continued and we assured them that it would because
of the history of the church. We presently are
involved in another hearing regarding another church
that is a non-Indian church that is seeking the
exemption and the order is going to be published, I
believe, either today or tomorrow denying them the same
exemption as the Native American Church.
We consider the Native American Church to be sui generis.
The history and tradition of the church is such that there
is no question but that they regard peyote as a deity as it
were, and we'll continue the exemption.
Mr. Satterfield. You do not see anything in the Senate
bill that would make this impossible?
Mr. Sonnenreich. No. Under the existing law
originally the Congress was going to write in a
specific exemption but it was then decided that it
would be handled by regulation and we intend to do it
the same way under this law.
Mr. Satterfield. Thank you. I have no other
questions.
Drug Abuse Control Amendments of 1970 Hearings before the Subcommittee on
Public Health & Welfare of the House of Representatives, 91st Cong. 2d
Sess. 117-18 (1970).
[footnote 39] 21 C.F.R. § 1307.31 (1990). For further discussion
of the legislative history of the peyote exemption, see Toledo v. Nobel-
Sysco, Inc., 651 F. Supp. 483, 490 (D.N.M. 1986), and Native Am. Church
of New York v. United States, 468 F. Supp. 1247, 1249-51 (S.D.N.Y. 1979).
In addition to the federal regulation, several states exempt
the non-drug use of peyote from criminal prohibition. See Whitehorn v.
State, 561 P.2d 539 (Okla. 1977); State v.
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II. THE ETHIOPIAN ZION COPTIC CHURCH IS A BONA FIDE RELIGION
AND MARIJUANA IS CENTRAL TO ITS WORSHIP
The EZCC, which traces its origins back 6,000 years, is
headquartered in Jamaica. [footnote 40] By the end of the Sixties, the
Church had received a number of visitors from the U.S. and began allowing
Caucasians to join the Church. [fotnote 41] As a result, priests and
members of the Church began to travel back and forth between the U.S. and
Jamaica, and a number of U.S. citizens became members and priests in the
Church. [footnote 42] The Church was incorporated in 1976 and purchased
a 1,000 acre farm in White Horse, St Thomas parish, Jamaica. [footnote
43] In addition, the Church purchased a residence for its members at
Star Island in Miami, Florida. [footnote 44]
Church members consider themselves the historical and spiritual
descendants of the Israelites of the Old Testament. [footnote 45]
____________________
Whittingham, 19 Ariz. App. 27, 504 P.2d 950 (1973), cert. denied, 417
U.S. 946 (1974); Peoiple v. Woody, 61 Cal. 2d 716, 40 Cal. Rptr. 69, 394
P.2d 813 (1964); Colo. Rev. Stat. Ann. § 12-22-317 (West 1990); Iowa Code
Ann. § 204.204(8) (West 1987); Kan. Stat. Ann. § 65-4116(8) (Supp. 1989);
Minn. Stat. § 152.02 (West 1989); Nev. Rev. Stat. Ann. § 453.541 (Michie
1986); N.M. Stat. Ann. 30-31-6(D) (Michie 1989); S.D. Codified Laws § 34-
20B-14(17) (Michie Supp. 1990); Tex. Rev. Civ. Stat. Ann. art. 4476-15
(Vernon Supp. 1991); Wis. Stat. Ann. § 161.115 (West 1989); Wyo. Stat.
Ann. § 35-7-1044 (1988).
[footnote 40] Amicus Memorandum Before DEA, July 1988, at 6-7.
[footnote 41] Id. at 11.
[footnote 42] Id.
[footnote 43] Id. at 10.
[footnote 44] Id.
[footnote 45] Id. at 7. The EZCC distinguishes itself from the
Rastafarian sect because the EZCC does not revere the late Emperor of
Ethiopia, Haile Selassie, as a deity. Id. at 10.
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Because of the constraints of slavery, however, the Church's written
history did not evolve and does not compare with the organizational
identity enjoyed by some Caucasian religions. [footnote 46] Nonetheless,
the Church is understood to be a Christian religion with Jesus as its
primary prophet. [footnote 47] The Church reveres the Bible as its holy
book, and members adhere to traditions set forth in the Old Testament
regarding diet, dress, grooming, sexual conduct, and so forth. [footnote
48]
"The Church historically has been extremely restrictive in its
membership practices, limiting membership to those men and women who
demonstrate an acceptance and adherence to the Church's tenets over a
significant period of time." [footnote 49] If members fail to follow the
Church's rules of conduct, they are subject to harsh
____________________
[footnote 46] Id. at 8.
[footnote 47] Id. at 7-8. Marcus Garvey is considered one of the
Church's great prophets. Id. His work in the 1920s and 30s advocating
spirituality and black empowerment related to the general movement called
"Ethiopianism ... is premised on a belief that all blacks share a common
ancestry and are destined to return to a common homeland or Zion,
symbolically identified as Ethiopia." Id. at 9. The goal of the Church
in this regard is the "liberation of the black race and the spiritual
renewal of black and white believers." Id. at 7.
[footnote 48] Id. at 7.
[footnote 49] Id. at 11. Membership involves a ritual called
confession. Id. First, the confessor renounces the sins of the flesh
and the material world. Id. at 12. Next, when the elders think that the
individual has fully learned the tenets of the Church, the individual
makes a public confession before the members. After this, the members
demonstrate their acceptance of the new member through the celebration of
communion with marijuana. Id. at 11-13.
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sanctions and sometimes expulsion. [footnote 50]
The EZCC traces its use of marijuana [footnote 51] to the Bible,
citing passages regarding herbs, smoke, and clouds, [footnote 52] and
stating that
"marijuana is the [e)ucharistic spiritual body and
blood of Christ," and "[o]nly through the sacramental
use of marijuana--combined with prayer and spiritual
reasoning among the brethren--can members of the Church
come to know God within themselves and within
others." [footnote 53]
The non-drug use of marijuana is allowed at any point during the day, but
is most commonly ingested during the three daily prayer
____________________
[footnote 50] Id.
[footnote 51] The EZCC's longstanding religious tradition of
marijuana ingestion may have a history that dates back further than the
Native American use of peyote. Some authors postulate that many Indian
religions did not incorporate the peyote ritual into their religious
practices until the 1920s and 30s. See A. Marriott, supra note 9, at 78-
79; see also Amicus Memorandum Before DEA, July 1988, at 34 (citing W. La
Barre, The Peyote Cult 110-23 (4th ed. 1975)).
[footnote 52] Id. at 14. The EZCC has compiled works of
scholarship and ancient references which substantiate and detail the
religious use of marijuana from time immemorial. See Amicus Memorandum
Before DEA, July 1988, App. 6. For instance, The Book of Grass 11-12 (G.
Andrews & S. Vinkenoog ed. 1967), is cited for a passage on ancient
Scythia and Iran by Mircea Eliade:
only one document appears to indicate the existence of
a Getic shamanism: It is Strabols account of the
Mysian KAPNOBATAI, a name that has been translated, by
analogy with Aristophanes' AEROBATES, as 'those who
walk in clouds', but which should be translated as
'those who walk in smoke'. Presumably the smoke is
hemp smoke, a rudimentary means of ecstasy known to
both the Thracians and the Scythians...."
Amicus Memorandum Before DEA, July 1988, App. 6 at 6-7. The EZCC
believes that the marriage of Cana involved cannabis not wine; "[c]ana is
a linguistic derivation of the present day cannabis." Id. App. 6, at
21.
[footnote 53] Id. at 14-15.
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sessions. [footnote 54] Members do not try to maximize the amount of
smoke taken in or hold smoke in their lungs for long periods of time.
[footnote 55] Church members state that their ingestion of marijuana
during worship does not result in any side-effects [footnote 56] or
intoxication, nor is that a desirable goal.
The Church not only does not encourage but in fact
absolutely forbids the recreational use of marijuana
for the purpose of achieving intoxification. The
Church believes that such intentional misuse of
marijuana, by members or nonmembers, constitutes
sacrilegious behavior. Church members are strictly
prohibited from using any intoxication or addictive
substance--legal or illegal-- for recreational
____________________
[footnote 54] Id. at 15.
[footnote 55] Id.
[footnote 56] Id. These claims have been substantiated by several
medical and psychiatric research studies done to determine the effects of
marijuana on church members. See Research Report by Brian L. Weiss,
M.D., P.A. of Florida (1980) (EZCC members, some of whom have smoked
marijuana in high doses for sixteen hours a day for up to fifty years,
suffer no apparent psychological or physical harm; tolerance appears to
have developed with no acute or chronic side effects); Research Report by
Kenneth C. Fischer, M.D. of Florida (1980) (after doing a "complete
intensive neurological examination on 31 members" of the EZCC, the "most
impressive thing ... is the true paucity of neurological abnormalities I
was able to discern"); American Association for the Advancement of
Science, Cognition and Long-Term Use of Gania, 213 SCIENCE 465-66 (1981)
(prolonged and heavy use of ganja have not resulted in any systematic
decrements in mental abilities suggestive of impairment of brain or
cerebral function; cognition I.Q. scores were high, and individuals
appear to be healthy and highly functional); Neuropsychological
Evaluation by Jeffrey Schaeffer, Ph.D. of California (1981) (despite
measurable amounts of cannabinoid metabolites in his body and a history
of very long-term use of cannabis, Carl Eric Olsen demonstrated no
impairment of his cognitive, cerebral, intellectual, or new learning
abilities, nor was there any suggestion of damage to the central nervous
system or long and short-term memory ability; moreover, his ability to
adapt to change remains at a very high level). Amicus Memorandum Before
DEA, July 1988, App. 7, 8, 9.
14
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purposes. [footnote 57]
There has never been more than between 100 and 200 EZCC members in
the U.S., and, presently, it is estimated that 60 members live in this
country. [footnote 58] Membership has been greatly diminished and
dispersed due to numerous arrests and prosecutions. [footnote 59] Some
have left the Church, others have left the country, and others, like
Olsen, have been paroled from prison on the condition that they will not
associate with other members. [footnote 60]
III. THE ETHIOPIAN ZION COPTIC CHURCH REPEATEDLY PETITIONS BUT IS
DENIED A SACRAMENTAL DRUG EXEMPTION SIMILAR TO THAT
ACCORDED TO THE NATIVE AMERICAN CHURCH
A. Olsen Proceeds Pro Se
From 1983 to 1985, Carl Eric Olsen, a member and priest of the EZCC,
had repeated unilateral communications with the DEA attempting to procure
for his Church a drug law exemption for the sacramental ingestion of
marijuana. [footnote 61] It was not until the
____________________
[footnote 57] Id. at 15.
[footnote 58] Id. at 18. Roughly, 30 members live in Florida, and
the remaining members live throughout Iowa, Tennessee, Massachusetts, and
several East Coast cities. Id.
[footnote 59] Id. at 17.
[footnote 60] Id. at 17-18.
[footnote 61] Olsen's Brief, Aug. 18, 1986, App. 13-20, 28-29, 31-
35. Olsen proposed the following statutory language:
SPECIAL EXEMPT CHURCH. Ethiopian Zion Coptic Church.
The listing of marijuana as a controlled substance in
Schedule I does not apply to the non-drug use of
marijuana in bona fide religious ceremonies of the
Ethiopian Zion Coptic Church and members of the
Ethiopian Zion Coptic Church so using marijuana are
exempt from registration. Any person who manufactures
marijuana for or distributes marijuana to the Ethiopian
Zion Coptic Church, however, is required to obtain
15
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District of Columbia federal district court issued a show cause order to
the DEA in response to Olsen's writ of mandamus filed in 1986, that the
DEA finally responded. [footnote 62] John C. Lawn, the DEA
Administrator, answered Olsen's requests in the form of a three paragraph
letter which stated in part:
In 1984, an estimated 7,800 to 9,200 metric tons
of marijuana were illegally consumed in the United
States. It has been estimated that over 20 million
people in the United States use marijuana on a regular
basis. Marijuana abuse is a major public health
problem in this country. Accordingly, the
investigation and prosecution of marijuana traffickers,
the interdiction of marijuana smuggling and the
eradication of the drug at its source continue to be
major concerns of drug law enforcement both
domestically and internationally.
In view of the immensity of the marijuana abuse
problem in the United States and the magnitude of the
criminal activity surrounding the production and
trafficking in this substance, the Administrator of the
Drug Enforcement Administration concludes that the
interest of the Ethiopian Zion Coptic Church in the
ceremonial use of marijuana is outweighed by the
compelling governmental interest in controlling the use
and illegal distribution of marijuana in the United
States. [footnote 63]
The district court dismissed Olsen's mandamus petition as moot;
appealing the dismissal, Olsen stated, "The DEA gave no reasons at all
for denying the exemption, the DEA only gave
_______________
registration annually and to comply with all other
requirements of law.
Id. App. 13, 16, 18.
[footnote 62] Id. App. 2-4. Olsen also had filed a mandamus
petition in the Eleventh Circuit. Olsen v. DEA, 776 F.2d 267 (llth Cir.
1985) (affirming district court's denial of olsen's request for a
mandamus to compel DEA to respond to petitions for marijuana exemption
because the statute authorizing exemptions does not provide for a
religious exemption).
[footnote 63] Olsen's Brief, Aug. 18, 1986, App. 11-12.
16
--------------------------------------------------------------------------------
reasons for denying marijuana use to the general public. [footnote 64]
Olsen also appealed the DEA's denial, admitting that the DEA had a
compelling interest in the overall enforcement of the CSA, but arguing
that the exemption granted to the NAC had not undermined that interest
nor would a limited exemption for the EZCC. [footnote 65] Olsen pointed
out that the DEA previously denied a peyote exemption to the Church of
the Awakening ("CotA"), after finding that the CotA was not similar to
the NAC because "peyote is essential and central to the [NAC] religion in
that without peyote their religion would not and could not exist."
[footnote 66] The DEA made no such findings regarding the EZCC denial.
[footnote 67]
In its response, the government set forth the three-part test from
United States v. Lee, [footnote 68] for establishing a free exercise
claim [footnote 69] and cited various free exercise cases. [footnote 70]
____________________
[footnote 64] Id. at 5.
[footnote 65] Olsen Brief, Sept. 3, 1986, at 2-4, 11. The cases
were consolidated on appeal.
[footnote 66] 35 Fed. Reg. 14790 (1970). The CotA appealed this
decision to the Ninth Circuit. Kennedy v. BNDD, 459 F.2d 415 (9th Cir.
1972) (ruling that statute granting the peyote exemption only to NAC was
unconstitutional but nonetheless holding that extending the exemption to
the CotA would not cure the defect, thus, the exemption for the CotA was
denied), cert. denied, 409 U.S. 1115 (1973).
[footnote 67] Olsen's Brief, Sept. 3, 1986, at 8.
[footnote 68] 455 U.S. 252 (1982).
[footnote 69] Government Brief, Oct. 6, 1986, at 7. The Lee test
inquires: 1) whether the challenged law interferes with the free exercise
of 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. 455
17
--------------------------------------------------------------------------------
____________________
U.S. at 256-59.
[footnote 70] Government Brief at 8-9. The following cases involve
EZCC members. Olsen v. Iowa, 808 F.2d 652 (8th Cir. 1986) (summarily
rejecting Olsen's free exercise and equal protection claims on habeas
because of the state's compelling interest in controlling marijuana);
United States v. Rush, 738 F.2d 497 (lst Cir. 1984) (applying Lee
standard, court affirmed convictions of 15 members of the EZCC including
Olsen involving twenty tons of marijuana upon finding that marijuana
constitutes a health hazard and a threat to social welfare; moreover, NAC
exemption is different because it is a narrow, readily identifiable
category with minimal impact on law enforcement), cert. denied, 471 U.S.
1120 (1985); United States v. Middleton, 690 F.2d 820 (llth Cir. 1982)
(rejecting free exercise defense of an EZCC member charged with
importation and possession of marijuana because of government's clearly
articulated and compelling interest in regulating marijuana), cert.
denied, 460 U.S. 1051 (1983); Commonwealth v. Nissenbaum, 404 Mass. 575,
536 NE.2d 592 (1989) (priest and member of EZCC convicted for possession
of hashish and marijuana could not succeed on free exercise claim because
state had overriding interest in controlling drug abuse); State v. Olsen,
315 N.W.2d 1 (Iowa 1982) (state demonstrated compelling interest in
controlling marijuana sufficient to override olsen's free exercise
argument); Town v. State ex rel. Reno, 377 So.2d 648 (Fla. 1980) (state
had compelling interest in restricting use of cannabis as religious
practice of EZCC).
The following cases involve members of other religions seeking a
marijuana exemption. United States v. Greene, 892 F.2d 453 (6th Cir.
1989) (Native American failed to convince court that possession and
distribution of marijuana was constitutionally required), cert. denied,
110 S. Ct. 2179 (1990); United States v. Spears, 443 F.2d 895 (5th Cir.
1971) (summarily rejecting Black Muslim's first amendment defense to
conviction for heroin, marijuana, and peyote smuggling because there is
no constitutional privilege to use drugs), cert. denied, 404 U.S. 1020
(1972); Randall v. Wyrick, 441 F. Supp. 312 (W.D. Mo 1977) (affirming
conviction for marijuana and LSD possession of Aquarian Brotherhood
Church leader because state had compelling interest in regulation of
narcotic drug trafficking); United States v. Kuch, 288 F. Supp. 439, 445-
46 (D.D.C. 1968) (affirming conviction for drug offenses of ordained
minister of Neo-American Church, which embraces principle that marijuana
and LSD are the true Host, because church did not appear to be a bona
fide religion and "under any common sense view of undisputed facts" the
public interest is paramount); Hawaii v. Blake, 695 P.2d 336 (Haw. app.
1985) (no free exercise defense for member of religion, Hindu Tantrism,
convicted of possessing marijuana because members can freely practice
their religion without marijuana); Whyte v. United States, 471 A.2d 1018
(D.C. 1984)
18
--------------------------------------------------------------------------------
____________________
(upholding conviction for marijuana possession of Rastafarian of the
Twelve Tribes of Israel where there were serious and compelling concerns
of government regarding drug-related problems); State v. Rocheleau, 451
A.2d 1144 (Vt. 1982) (no first amendment defense for Tantric Buddhist
convicted for possession of marijuana); New Mexico v. Brashear, 92 N.M.
622, 595 P.2d 63 (1979) (defendant's belief in the religious use of
marijuana was derived from defendant's personal views of the Bible, and
he failed to show that his belief was religious); Lewellyn v. State, 592
P.2d 538 (Okla. 1979) (priest in Holy American Church could not raise
religious defense to sale of marijuana to undercover officer who was not
member of professed religion); People v. Mullins, 50 Cal. 3d 61, 123 Cal.
Rptr. 201 (1975) (pastor of Universal Life Church of Christ Light failed
to prove that marijuana was indispensable to his religion and that
prohibition of marijuana use resulted in virtual inhibition of practice
of his religion); People v. Crawford, 328 N.Y.S. 747, 748, 755 (1972)
(member and minister of Church of Missionaries of the New Truth who used
marijuana and LSD to achieve religious experience denied exemption
because there was no evidence that defendant used drugs as part of
religious ceremony, used drugs with other members of his Church, drugs
were an intrinsic part of Church's dogma, or that his exercise of
religion would inhibited without the use of drugs); People v. Werber,
App. 3d 598, 97 Cal. Rptr. 150 (1971) (defendant's use marijuana did not
constitute religious practice within constitutional concept of religion
where it was not an object of worship essential to exclusively religious
ritual); People v. Collins, 273 Cal. App. 2d 486, 78 Cal. Rptr. 151
(1969) (defendant did not worship marijuana but used it as an "auxiliary
to a desired capacity for communication"); People v. Mitchell, 244 Cal.
App. 2d 176, 52 Cal. Rptr. 884 (1966) (defendant did not offer any
evidence that use of marijuana was a religious practice, instead he was
expressing his own personal philosophy and way of life).
The following cases involve churches seeking a peyote exemption.
Peyote Way Church of God v. Smith, 742 F.2d 193 (5th Cir. 1984)
(reversing summary judgment which had been entered for government and
remanding for weighing of interests involved because Texas and federal
exemptions for NAC tended to negate compelling state interest in denying
such exemption to Peyote Way Church); United States v. Warner, 595 F.
Supp. 595 (D.N.D. 1984) (non-Indians who alleged that their use of peyote
was part of their ceremonies in NAC were not entitled to exemption
accorded to Indians); Native American Church of New York v. United
States, 468 F. Supp. 1247 (S.D.N.Y. 1979) (interest of minister of Native
American Church of New York seeking declaratory judgment in using drugs
other than peyote must be subordinated to the important governmental
purposes served by the CSA; as to peyote, group, while admittedly having
no ties to NAC, must show it was a bona
19
--------------------------------------------------------------------------------
Admittedly, the federal and state peyote exemptions tend to negate the
existence of a compelling government interest in prohibiting its non-drug
use in bona fide religious worship. [footnote 71] Thus, the government
tried to distinguish the NAC, stating that Congressional testimony
presented by the director of the BNDD during the CSA hearings indicated
that the NAC was considered
sui generis. The history and tradition of the church
is such that there is no question but that they regard
peyote as a deity. [footnote 72]
By contrast, the EZCC "does not have such a Congressional recognition of
its status." [footnote 73]
Olsen replied with a discussion of the key case regarding the
sacramental use of marijuana, Leary v. United States. [footnote 74]
Timothy Leary and his daughter were found in possession of marijuana upon
their re-entry into this country by car from Mexico. [footnote 75]
Raising a free exercise defense, Leary argued that he was part of the
Hindu sect of Brahmakrishna and that "the experience [I find) through the
use of marihuana is the essence
____________________
fide religion), aff'd mem., 633 F.2d 205 (2d Cir. 1980); Birnbaum v.
United States, 80 Civ. 1534 (RLC) (S.D.N.Y. Apr. 11, 1983) (would extend
exemption to peyotist religions in general if group could establish that
it was a bona fide religion) (unpublished).
[footnote 71] Government Brief at 9.
[footnote 72] Id. at 9. For the full quote, see note 38.
[footnote 73] Id.; see also Government Memorandum Before DEA, July
22, 1988, at 13-16.
[footnote 74] 383 F.2d 851 (5th Cir. 1967), rev'd on other grounds,
395 U.S. 6 (1969) cited in Olsen's Reply Brief, Oct. 10, 1986, at 3, 6-7.
[footnote 75] 383 F.2d at 855-56.
20
--------------------------------------------------------------------------------
of [my] religion." [footnote 76] A Hindu monk testifying for Leary
stated that he was partially able to achieve and practice his religious
beliefs in the religious sect without the use of marijuana. [footnote 77]
Leary admitted that if he could not use marijuana, it would not affect
his religious beliefs. [footnote 78] The court held that the laws
regulating marijuana serve a compelling governmental interest in avoiding
a "substantial threat to public safety, peace or order." [footnote 79]
Examining the NAC exemption, the court reviewed two California
cases. [footnote 80] In People v. Woody, the state court found a free
exercise right to use peyote for NAC members who had been arrested during
a ceremony, [footnote 81] and in In re Grady, the state court held that a
peyote preacher could offer a first amendment defense to prosecution for
possession of peyote. [footnote 81] The Leary court found that unlike
Leary's use of marijuana, peyote "played 'a central role in the ceremony
and practice of the Native American Church, [and that the] ceremony
marked by sacramental use of peyote,
____________________
[footnote 76] Id. at 857, 860.
[footnote 77] Id. at 857-58.
[footnote 78] Id. at 857. The court found that Leary drew no
distinction between his religious beliefs and his scientific
experimentation. Id.
[footnote 79] Id. at 860.
[footnote 80] Id. at 861.
[footnote 81] 61 Cal. 2d 716, 40 Cal. Rptr. 69, 394 P.2d 813
(1964).
[footnote 82] 61 Cal. 2d 887, 39 Cal. Rptr. 912, 394 P.2d 728
(1964).
21
composes the cornerstone of the peyote religion.'" [footnote 83] The
Leary court continued:
The exemption accorded the use of peyote in the limited
bona fide religious ceremonies of the relatively small,
unknown Native American Church is clearly
distinguishable from the private and personal use of
marijuana by any person who claims he is using it as a
religious practice. [footnote 84]
B. Amicus is Appointed to Represent Olsen
The Court of Appeals appointed amicus curiae for Olsen. [footnote
85] Amicus filed a brief discussing other marijuana exemptions extended
by the federal government. [footnote 86] Since the late 1960s, the
government has been involved in growing, processing, and distributing
marijuana to registered persons and entities. [footnote 87] That program
is administered by the National institute on Drug Abuse ("NIDA"), which
has contracted with the University of Mississippi to grow marijuana; NIDA
processes the marijuana and
____________________
[footnote 83] Leary, 383 F.2d at 861. Seventeen years later, the
Fifth Circuit again distinguished Leary from other religious drug use
cases. Deciding that the Peyote Way Church of God would be entitled to
the peyote exemption if it could establish that it was a bona fide
religion, the court stated that Leary had not established that marijuana
played a central role in the ceremony and practice of the church, and
Leary sought unrestricted freedom to possess and use marijuana in any
manner. Peyote Way Church of God v. Smith, 742 F.2d 193, 200 (5th Cir.
1984) (emphasis added).
[footnote 84] Id. at 861 n.11 (emphasis added).
[footnote 85] Judges Wald, Mikva, and Edwards issued an order
appointing William Bradford and Steven Routh of the D.C. law firm, Hogan
and Hartson. Olsen v. DEA, No. 86-1442, Court Order, Feb. 11 1988.
[footnote 86] Amicus Brief, Mar. 24, 1988, at 7-9, 21.
[footnote 87] Id. at 7-9.
22
--------------------------------------------------------------------------------
provides it to researchers and medical treatment programs. [footnote 88]
A number of marijuana exemptions have been issued to state governments
which supervise local distribution of NIDA marijuana primarily for use in
programs to lessen the negative side-effects of chemotherapy and to treat
glaucoma. [footnote 89] In the years between 1978 and 1987, NIDA has
authorized and overseen the distribution of 477,507 cigarettes for human
consumption. [footnote 90] "(Clearly,] some limited level of marijuana
use is not inconsistent with the government's" goals. [footnote 91]
C. Remand to the DEA
The government petitioned the court of appeals to remand the case to
the DEA so that it could "explain more fully the basis for its
dDecision." [footnote 92] The court denied the motion; then, changing
its mind six days later, the court issued an order remanding the case to
the DEA. [footnote 93]
Amicus submitted a memorandum with supporting documents to
____________________
[footnote 88] Id. at 7-8.
[footnote 89] Id. at 8.
[footnote 90] Id. at 9.
[footnote 91] Id. at 21. Distinguishing the free exercise cases
relied upon by the government, Amicus argued that granting broad after
the fact exemptions once a defendant has been arrested for drug abuse is
quite different from working to find a measured response to a prospective
request for authorization. Id. at 23.
[footnote 92] Respondent's Motion For Remand To The Agency, Apr. 7,
1988, at 2.
[footnote 93] The panel consisted of Judges Edwards, Starr, and
Weigel; Judge Stanley A. Weigel is a senior U.S. district judge for the
Northern District of California. Olsen v. DEA, No. 86-1442, Court
Orders, Apr. 15, 1988, and Apr. 21, 1988.
23
--------------------------------------------------------------------------------
the DEA wherein Olsen withdrew the language of his prior exemption
[footnote 94] and proposed the following exemption:
1. [EZCC] members would be restricted to using
marijuana during their Saturday evening prayer
ceremony, which lasts from 8:00 p.m. until 11:00 p.m.;
2. During that ceremony, and for the eight hours
following that ceremony, Church members would not leave
the place where the ceremony is conducted; they would
not drive automobiles or otherwise go out in public;
3. Ingestion of marijuana would be limited to Church
members who had reached the age of majority, according
to the laws of the state in which the ceremony takes
place; and
4. Ingestion of marijuana would be limited to full
Church members who had undergone the confession
ritual [footnote 95] for entering the Church's
community. [footnote 96]
Turning to the substantive arguments, Amicus stated that contrary to
the position espoused by the government, the legislative history of the
American Indian Religious Freedom Act of 1978 ("AIRFA"), [footnote 97]
did not support the argument that Congress
____________________
[footnote 94] See supra note 61.
[footnote 95] See supra notes 49-50 and accompanying text.
[footnote 96] Amicus Memo Before DEA, July 1988, at 29-30. Olsen
stated that he was willing to work out any details or arrangements with
the DEA that would facilitate mutual agreement on the exemption and its
logistics. Id.
[footnote 97] AIRFA provides in pertinent part:
Whereas the traditional American Indian religions, as
an integral part of Indian life, are indispensable and
irreplaceable:
be it
Resolved by the Senate and House of Representatives of
the United States of America in Congress assembled,
That henceforth 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
24
--------------------------------------------------------------------------------
specifically intended to limit the peyote exemption to the NAC; instead,
Congress recognized that preferential treatment of the NAC would run
afoul of the establishment clause. [footnote 98] Indeed, an attorney for
the Justice Department advised the Senate Select Committee on Indian
Affairs that granting preferential treatment to Native American religions
would be unconstitutional. [footnote 99] In
____________________
Indian, Eskimo, Aleut, and Native Hawaiians, including
but not limited to access to sites, use and possession
of sacred objects, and the freedom to worship through
ceremonials and traditional rites.
American Indian Religious Freedom Act of 1978, Pub. L. No. 95-341, 92
Stat. 469 (1978).
[footnote 98] Amicus Memo Before DEA, at 21-23. In the Senate
Select Committee on Indian Affairs Hearing on AIRFA the following
statements were reported:
The clear intent of this section is to insure for
traditional native religions the same rights of free
exercise enjoyed by more powerful religions. However,
it is in no way intended to provide Indian religions
with a more favorable status than other religions, only
to insure that the U.S. Government treats them equally.
Id. App. 11, at 6 (Sen. Rep. No. 95-709, 95th Cong., 2d Sess. 6 (1978)).
Other pertinent statements include:
[D]irect Federal interference in the religious
ceremonies imposes upon one religion, by Government
action, the values of another. Such action is a direct
threat to the foundation of religious freedom in
America. It comes far too close to an informal state
religion.
* * * *
There is room for and great value in cultural and
religious diversity.
* * * *
[B]ecause Indian religious practices are different
...they somehow do not have the same status as a 'real'
religion.
Id. App. 11, at 4-5 (Sen. Rep. No. 95-709, 95th Cong., 2d Sess. 4-5
(1978)).
[footnote 99] The legislative history of AIRFA indicates that the
original Senate resolution contained language giving preferential
treatment to Native American religions. Id. at 23-24 & App. 11, at 10.
The Department of Justice attorney gave the same advice regarding the
establishment clause violation to Counsel to the
25
--------------------------------------------------------------------------------
response, the Senate redrafted its resolution to make "absolutely clear
that AIRFA directed government agencies simply to ensure that Indian
religions enjoyed the same guarantee of 'freedom of religion for all
people' that is required by the First Amendment." [footnote 100] When
the Department of Justice informed the administration that it did not
object to the President's signing of AIRFA, it made specific mention of
the fact that Congress had incorporated the Department of Justice's
position that a preference for Native American religions could not be
extended without violating the establishment clause. [footnote 101]
Furthermore, DEA attorneys concurred in the remarks made by the Justice
Department, writing, in a memo commenting on the Justice Department's
position, that "no line can be drawn between religions claiming a bona
fide use of drugs." [footnote 102] In 1981, the office of Legal Counsel
("OLC"), published a memorandum opinion for the Chief Counsel of the DEA,
stating that "Indian religion cannot be treated differently than other
religions similarly situated without violation of the Establishment
Clause." [footnote 97]
____________________
President. Id. at 24 & App. 12 (Memorandum for Hon. R.J. Lipshutz, Mar.
10, 1978, at 3).
[footnote 100] Id. at 24 (quoting Pub. L. No. 95-341 1978).
[footnote 101] Id. at 24 & App. 13 (Pat Wald, Assist. Atty. Gen.,
Office of Legal Affairs, Letter to Honorable McIntyre).
[footnote 102] Id. at 24 & App. 14, at 5 (Harry L. Myers, DEA
Memorandum on the OLC's Comment on the Peyote Exemption, Feb. 28, 1979).
[footnote 103] Id. at 25. The Assistant Attorney General for the
OLC stated in full:
[T]he special treatment of Indians under our law does
26
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Finally, Amicus seriously questioned whether a first amendment claim
could be denied on the basis of health concerns. [footnote 104] The
"agency's sanctioning of marijuana use by hundreds of persons involved in
registered medical and research programs strongly suggests that marijuana
use is not in all instances detrimental to an individuals health and
psychological well-being." [footnote 105] Nor has the NIDA program or
the peyote exemption undermined public respect for the CSA. [footnote
106]
____________________
not stem from the unique features of Indian religion or
culture. With respect to these matters, Indians stand
on no different footing than do other minorities in our
pluralistic society. Rather, the special treatment of
Indians is grounded in their unique status as political
entities, formerly sovereign nations preexisting the
Constitution, which still retain a measure of inherent
sovereignty over their peoples unless divested by
federal statute or by necessary implication of their
dependent status.
An exemption for Indian religious use of peyote would
not be grounded in the unique political status of
Indians. Instead, the exemption would be based on the
special culture and religion of the Indians. In this
respect, Indian religion cannot be treated differently
than other religions similarly situated without
violation of the Establishment Clause.
Memorandum Opinion for the Chief Counsel, DEA, Dec. 22, 1981, at 403, 420
(citation and footnote omitted), appended to Amicus Memo Before DEA, App.
16.
[footnote 104] Amicus Memo Before DEA at 32-33. Amicus quoted
Lawrence Tribe as stating that the government is in effect:
telling the individual that it knows what is best for
his body and mind. Surely the individual may respond,
"I know what is best for my soul." To allow the
government thus to impose the World of the Flesh upon
the World of the Spirit seems an overwhelming
abridgement of religious freedom.
Id. at 32. (quoting L. Tribe, American Constitutional Law 1269-70 (2d
ed. 1988)).
[footnote 105] Id. at 32.
[footnote 106] Id. at 32-33.
27
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The government responded to Olsen's proposed EZCC exemption
by stating that:
such restrictions could not be monitored or enforced
without significant intrusion by the Government into
the religious practices of the Church. The monitoring
of such restrictions would be extremely burdensome on
an agency which is charged with enforcement of a very
comprehensive drug law. [footnote 107]
D. The DEA Denies the Exemption
In a nine page decision, John Lawn denied the EZCC an exemption for
the religious use of marijuana. [footnote 108] Citing Leary, [footnote
109] in addition to other cases, [footnote 110] the Administrator
asserted that the EZCC had no free exercise right to use marijuana;
moreover, it did not enjoy an "equal protection" right to an exemption
because the EZCC "advocates the continuous use of marijuana or 'ganja',
while the Native American Church's use of
____________________
[footnote 107] Government Memorandum Before DEA, at 17. Indeed,
the government asserted that if the EZCC were granted its exemption, many
of today's buyers and sellers would "find religion." Government Brief
Before CTA, Jan. 4, 1989, at 22. Additionally, there would be no way to
enforce the Saturday night exemption proposed by Olsen short of constant
surveillance, requiring "Herculean efforts." Id. Amicus responded that
it would be highly unlikely that large numbers of illegal drug users
would come forward and identify themselves to the DEA hoping to obtain a
religious drug exemption. Amicus Reply Brief, Jan. 23, 1989, at 16.
[footnote 108] DEA's Final Order, July 26, 1988, at 2.
[footnote 109] 383 F.2d 851 (5th Cir. 1971), rev'd on other
grounds, 395 U.S. 6 (1969).
[footnote 110] United States v. Spears, 443 F.2d 895 (5th Cir.
1971), cert. denied, 404 U.S. 1020 (1972); United States v. Middleton,
690 F.2d 820 (llth Cir. 1982), cert. denied, 460 U.S. 1051 (1983); United
States v. Rush, 738 F.2d 497 (lst Cir. 1984), cert. denied, 471 U.S. 1120
(1985); Olsen v. Iowa, 808 F.2d 652 (8th Cir. 1986).
28
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peyote is isolated to specific ceremonial occasions." [footnote 111] The
Administrator further distinguished marijuana from peyote stating that
"the actual abuse and availability of marijuana in the United States is
many times more pervasive in American society than that of peyote."
[footnote 112] Substantiating this claim, the Administrator stated that
between 1980 and 1987, the DEA seized 19.4 pounds of peyote as compared
to 15,302,468.7 pounds of marijuana. [footnote 113]
This overwhelming difference explains why an
accommodation can be made for a religious organization
which uses peyote in circumscribed ceremonies, and not
for a religion which espouses continual use of
marijuana. The Administrator also notes that Mr.
Olsen's conviction in United States v. Rush involved
the illegal importation of 20 tons of marijuana.... If
Mr. Olsen's assertions that the Ethiopian Zion Coptic
Church in the United States has never had, "more than
between 100 and 200 members in this country," 20 tons
of marijuana would be an outrageous quantity to supply
their religious needs. [footnote 114]
Specifically addressing olsen's proposed exemption, the
Administrator determined that the large quantity of marijuana in this
country would make monitoring compliance very difficult and would make
accommodation impractical. [footnote 115] Olsen challenged the
____________________
[footnote 111] DEA's Final Order, July 26, 1988, at 6-7.
[footnote 112] Id. at 7-8.
[footnote 113] Id. at 8.
[footnote 114] Id. (citation omitted).
[footnote 115] Id. at 8-9.
29
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DEA's final order, requesting review by the court of appeals. [footnote
116]
E. The Court of Appeals Denies the Exemption
1. The Majority
In June of 1989, the court of appeals, over a strongly worded
dissent by Judge Buckley, denied Olsen both a free exercise right and an
"equal protection-establishment clause" right to a religious-use
exemption. [footnote 117] Regarding Olsen's proposal, the majority found
that because EZCC members were allowed to use marijuana "every day
throughout the day," the proposal would not be "self-enforcing" and would
require "burdensome and constant official supervision and management."
[footnote 118] Concerned with the EZCC's lack of stringent control over
the sacramental use of marijuana in the past, the court noted that the
"church's '[c]hecks on distribution of cannabis to
____________________
[footnote 116] Olsen v. DEA, No. 86-1442, Motion To Establish
Schedule For Briefing And Argument, Aug. 10, 1988. Relying for the most
part on its prior filings, Amicus argued that complete rejection of a
marijuana exemption would violate both the establishment clause and the
free exercise clause. See Amicus Supplemental Brief, Dec. 1, 1988;
Amicus Reply Brief, Jan 23, 1989.
[footnote 117] Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989). The
case was argued before Circuit Judges Bader Ginsburg, Silberman, and
Buckley. Amicus was asked if he knew of any decisions where courts had
held that the free exercise clause required government accommodation of
religiously motivated conduct despite the government's position that
accommodation posed a significant health risk. In a subsequent letter to
the court, counsel cited cases wherein people had been allowed to refuse
medical treatment for religious reasons despite the state interest in
preserving the health of or even the life of the individual. Amicus
Letter to Court, Feb. 13, 1989, at 1-2. In addition, Amicus cited the
line of cases where state courts had found that a free exercise exemption
for peyote was mandated despite the undisputed health risks. Id. at 2.
[footnote 118] 878 F.2d at 1462.
30
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nonbelievers in the faith [were] minimal,' there was 'easy access to
cannabis for a child who had absolutely no interest in learning the
religion,' and '[m)embers [partook] of cannabis anywhere, not just within
the confines of a church facility." [footnote 119] Reviewing the
"establishment clause-equal protection challenge," the court accorded
great deference to the DEA and found that the EZCC is not similarly
situated to the NAC, [footnote 120] because of the vast differences
between peyote and marijuana regarding their demand, abuse, and
availability. [footnote 121] Resting its decision upon the "immensity of
the marijuana control problem in the United States," the court refused to
find an establishment clause violation and pointed out additional
distinctions between the two religions:
1) The peyote ritual is a traditional, precisely
circumscribed ritual;
2) Peyote is itself an object of worship;
3) Use of peyote outside of the ritual is sacrilegious
for the NAC; and
4) The NAC, for all practical purposes other than the
special stylized ceremony, reinforces the state's
____________________
[footnote 119] Id. at 1462 (quoting Town v. State ex rel. Reno, 377
So.2d 648, 649, 651 (Fla. 1979)).
[footnote 120] The court stated that had the government raised
collateral estoppel in a timely fashion, it may have considered the equal
protection-establishment clause issue precluded. Id. at 1463 (citing
Olsen v. Iowa, 808 F.2d 652, 653 (Sth Cir. 1986) (controlled and isolated
NAC ceremony is different from EZCC's allowance of continuous and public
use of sacrament regardless of age or occupation of member), and United
States v. Rush, 738 F.2d 497, 513 (lst Cir. 1984) (NAC exemption is based
on federal policy meant to confer a benefit on NAC which is sui
generis)).
[footnote 121] Id. at 1463-64.
31
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prohibition. [footnote 122]
The sharp contrast between the NAC and the EZCC was further evidenced by
Olsen's statement that marijuana is smoked continually "through
everything that we do." [footnote 123] Again reviewing Olsen's proposed
exemption, the court cryptically concluded that "'narrow' use,
concededly, is not his religion's tradition." [footnote 124]
2. Judge Buckley's Dissent
Judge Buckley dissented "because the majority fail[ed] to address
the Establishment Clause implications of the Drug Enforcement Agency's
rejection of Olsen's request for a limited religious exemption."
[footnote 125] The DEA's denial "creates a clear-cut denominational
preference in favor of the Native American Church." [footnote 126]
Application of strict scrutiny requires the DEA to show a compelling
interest served by the denominational preference and to show that the
different treatment was closely fitted to further that interest.
[footnote 127] Judge Buckley found that the
____________________
[footnote 122] Id.
[footnote 123] Id. (quoting State v. Olsen, 315 N.W.2d 1, 7 (Iowa
1982)).
[footnote 124] Id.
[footnote 125] Id. at 1468. Judge Buckley found it irrelevant that
the NAC could be distinguished on the basis of the sui generis legal
status of American Indians, stating, "[T]hat Church's status as an
indigenous faith does not affect its religious character." Id. at 1469.
[footnote 126] Id. (quoting Larson v. Valente, 456 U.S. 228, 244
(1982), and Everson v. Board of Educ., 330 U.S. 1, 15 (1947)).
[footnote 127] Id. at 1468-69 (quoting Larson, 456 U.S. at 246-
47)). Instead of using the Larson establishment clause analysis as urged
by Judge Buckley which would have required strict scrutiny
32
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DEA's explanation fell "far short" of meeting the strict scrutiny
standard. [footnote 128]
In fact, Judge Buckley found the DEA's reasoning to be extremely
superficial in light of the Supreme Court decision of Larson v. Valente.
[footnote 129] In Larson, religious denominations in Minnesota receiving
more than fifty percent of their funds from members and affiliated
organizations were not required to comply with registration and reporting
laws regarding their fund raising activities. [footnote 130] This
statute had the effect of granting a denominational preference to well-
established churches, and the Court applied strict scrutiny to
Minnesota's well reasoned
____________________
in view of the denominational preference, the majority relied on an equal
protection analysis. Id. at 1463-64 & n.5. The majority cited Walz v.
Tax Comm'n, 397 U.S. 664, 694, 696 (1970), for this proposition and Judge
Buckley acknowledged that this analysis had been mentioned in a
concurring opinion by Justice Frankfurter in Fowler v. Rhode Island, 345
U.S. 67, 70 (1953). 878 F.2d at 1463 n.5, 1468. However, both of these
cases involved laws which applied equally to all religions. The Walz
Court examined the New York tax exemption law for religious, educational,
or charitable uses, 397 U.S. at 666-67, while the Court in Fowler
reviewed the constitutionality of a law that prohibited all religious
meetings in any public park in Rhode Island. 345 U.S. at 67. The Larson
Court found this distinction critical, stating that the Lemon test
applied to "laws affording a uniform benefit to all religions," while a
law that discriminates among religions must "be invalidated unless it is
justified by a compelling governmental interest and unless it is closely
fitted to further that interest." Larson, 456 U.S. at 246-47, 252
(citations omitted). Indeed, the Court in Gillette v. United States, 401
U.S. 437 (1971), specifically stated that in the establishment clause
cases, equal protection is not an independent argument. Id. at 449 n.14.
[footnote 128] 878 F.2d at 1469.
[footnote 129] 456 U.S. 228 (1982).
[footnote 130] Id. at 230.
33
--------------------------------------------------------------------------------
explanations as to how its registration and reporting exemption was
closely fitted to furthering a compelling state interest. [footnote 131]
While the Supreme Court agreed that Minnesota had a compelling state
interest in protecting its citizens from abusive solicitation practices,
it found that Minnesota had not demonstrated that the exemption was
necessary to further that interest nor that the exemption was closely
fitted to furthering the interest. [footnote 132] Finding that the
statutory exemption failed to pass a strict scrutiny analysis, the
Supreme Court extended it to the Unification Church of Sun Myung Moon,
holding that any bona fide religion would qualify for the exemption.
[footnote 133]
Addressing the DEA's argument that the two religions warranted
different treatment because of: 1) their differing sacramental drug use
rituals; and 2) the different law enforcement problems vis a vis the two
drugs, Judge Buckley asserted that Olsen's proposed exemption effectively
eliminated the first distinction. [footnote 134] Additionally, Judge
Buckley challenged the DEA's argument that the abuse and availability of
marijuana justified the disparate treatment:
____________________
[footnote 131] Id. at 248-51.
[footnote 132] Id.
[footnote 133] See id. at 255. The majority in Olsen had asserted
that even if it were to find an establishment clause violation, it was
not certain that extension rather than invalidation of the exemption was
proper. 878 F.2d at 1464. Judge Buckley retorted that such indecision
could not excuse the court from properly reviewing an underinclusive
statute. Id. at 1471.
[footnote 134] Id. at 1469-70.
34
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The government's interest in preventing abuse of a
given drug is not proportional to the drug's
prevalence. By classifying both marijuana and peyote
as Schedule I controlled substances, Congress has
determined that the federal government has a compelling
interest in preventing the illegal distribution and use
of both drugs. [footnote 135]
Noting that the DEA had no difficulty monitoring compliance of more
than 250,000 members of the NAC, Judge Buckley questioned the DEA's lack
of solid reasoning why monitoring compliance of one-hundred to two-
hundred EZCC members would be so impossible. [footnote 136] Indeed, the
exemption would place no restrictions on the DEA's normal enforcement
operations other than at the church for a limited number of hours once a
week. [footnote 137] Judge Buckley stated that he would remand the case
to the DEA so that it could more adequately review and address Olsen's
establishment claim. [footnote 138]
The court of appeals denied Olsen's Petition for Rehearing and
Suggestion For Rehearing En Banc. [footnote 139] The Supreme Court
denied Olsen's Certiorari Petition. [footnote 140]
____________________
[footnote 135] Id.
[footnote 136] Id. at 1471.
[footnote 137] Id.
[footnote 138] Id. at 1468.
[footnote 139] Chief Judge Wald and Judge Buckley voted to grant
the Suggestion. Olsen v. DEA, No. 86-1442, Court Order, Sept. 15, 1989.
Judge Buckley voted to grant the Petition For Rehearing as well. Olsen
v. DEA, No. 86-1442, Court Order, Sept. 15, 1989.
[footnote 140] Olsen v. DEA, 110 S. Ct. 1926 (1990). In the
Petition For Writ Of Certiorari, Amicus argued that the D.C. Court of
Appeals decision conflicted with the Supreme Court precedent which
requires that strict scrutiny be applied whenever a
35
IV. THE COURT OF APPEALS DECISION VIOLATES THE CONSTITUTION
The establishment clause prohibits both the state and federal
government from passing laws which prefer one religion over another.
[footnote 141] Whether one adheres to the "broad" interpretation of the
establishment clause or the "narrower" interpretation, all scholars agree
that the establishment clause was meant by the framers to prevent the
government from bestowing a preference on one religion; [footnote 142]
and, as such, to protect the "small, new, or unpopular denominations"
[footnote 143] from "subtle departures from neutrality, 'religious
gerrymanders,' as well as
____________________
"denominational preference" is conferred by governmental action. Amicus
Certiorari Petition, Dec. 13, 1989, at 9-14 (citing Larson v. Valente,
456 U.S. 228 (1982)). Moreover, Amicus argued that confusion surrounding
the definition of "denominational preference" was arising, and courts
needed guidance on when strict scrutiny should be applied. Id. at 15-22.
In response, the government asserted that no free exercise,
establishment, or equal protection rights had been violated because
"DEA's exemption for religious peyote use in 21 C.F.R. § 1307.31 applies
equally to all bona fide religious groups." Respondent's Opposition To
Petition For Writ Of Certiorari, Feb. 1990, at 9. As a result, no
denominational preference was created and the Lemon test as opposed to
strict scrutiny was applicable. Id. at 10. Moreover, the government
argued that the DEA's "considered professional judgment" concerning the
burden of monitoring the exemption should not be questioned. Id. at 12.
[footnote 141] Everson v Board of Educ., 330 U.S. 1, 15 (1946).
Before the fourteenth amendment was passed, some states persisted in
discriminating against particular religions. Id. at 13-14 & n.17. In
North Carolina, test provisions required that officeholders believe in
the Protestant religion, and Maryland permitted taxation for the support
of Christian religion and limited civil office to Christians. Id. at 14
& n.17.
[footnote 142] Thomas J. Curry, The First Freedoms 204-09 (1986).
The church/state scholars differ as to how much government accommodation
of religion was intended by the framers and early interpreters of the
Constitution. Id.
[footnote 143] Larson, 456 U.S. at 244-45.
36
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obvious abuses. [footnote 144] The EZCC is small, new to this country,
and unpopular. [footnote 145] As a result, the EZCC has been denied even
the narrowest exemption for its sacrament while the NAC enjoys an
unlimited exemption for peyote.
A. Comparing The Two Exemptions
The majority stated that Olsen had proposed an exemption identical
to the one accorded to the NAC. [footnote 146] This is not true.
Olsen's proposed exemption is very narrow, restricting the sacramental
use of marijuana to three hours, one day per week. [footnote 147] The
exemption states that once the three hour worship service has finished,
members may not leave the place where the ceremony was conducted for
eight additional hours. The exemption specifically prohibits members
from driving or going out in public during that post-worship period.
Only EZCC members who are of the age of majority may participate in the
service and "membership" is
____________________
[footnote 144] Gillette v. United States, 401 U.S. 437, 452 (1971)
(citations omitted).
[footnote 145] The total denial of an exemption to the EZCC has had
tragic results for the members. The EZCC has publicly stated:
Through ... the police force, the church has been
severely harassed, victimized and discriminated
against. Our members have passed through several acts
of police brutality, our legal properties maliciously
destroyed, members falsely imprisoned, divine services
broken up, and all these atrocities performed upon the
Church, under the name of political laws and their
justice.
1 The Coptic World, Dec. 19, 1987, at 8. As the Court in Larson
explained, the free exercise clause and the establishment clause work in
close conjunction, the guarantees of one reinforcing the guarantees of
the other. Larson, 456 U.S. at 244-45.
[footnote 146] 878 F.2d at 1464.
[footnote 147] See supra notes 94-96 and accompanying text.
37
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strictly construed. [footnote 148]
While the majority described the NAC exemption as "tightly-cabined,"
[footnote 149] nothing could be further from the truth. The NAC
exemption is unlimited; it states that "Schedule I does not apply to the
nondrug use of peyote in bona fide religious ceremonies of the Native
American Church." [footnote 150] The only benefit strictly limited to
"members" is a waiver of the registration requirement if the member
manufactures or distributes peyote to the NAC. [footnote 151] Other than
that, the exemption does not limit participation in the peyote ceremony
to church members or people of majority, nor does it restrict driving or
even suggest a detoxification period. Given the lack of any consensus on
the meaning of "Native American Church," either among Native Americans or
by those outside of the Church, and the widely diverging views on how the
religious ceremony is to be conducted, [footnote 152] the peyote
exemption is very broad, indeed.
The majority was quite concerned with how rigidly membership was
enforced in the EZCC and whether membership was required before one was
allowed to participate in the sacrament. [footnote 153] But the majority
failed to note that the NAC exemption is not limited
____________________
[footnote 148] See supra notes 49-50, 94-96 and accompanying text.
[footnote 149] 878 F.2d at 1463.
[footnote 150] See supra note 39 and accompanying text.
[footnote 151] Id.
[footnote 152] See supra notes 8-10 and accompanying text.
[footnote 153] 878 F.2d at 1462.
38
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to members; moreover, membership in the NAC has no prerequisites nor is
there any consensus within the NAC as to what even constitutes a member.
[footnote 154]
B. Comparing the Law Enforcement Problems
The majority stated that it based its "decision on the immensity of
the marijuana control problem." [footnote 155] But under a strict
scrutiny analysis, this statement becomes less persuasive. [footnote 156]
Thirty-three states have enacted some type of legislation which
recognizes that marijuana has valid medicinal uses. [footnote 157] These
states have not found that an immense "marijuana control problem"
presents any barrier to creating limited marijuana exemptions. In light
of the fact that the federal
____________________
[footnote 154] See supra notes 18-20 and accompanying text. As
noted above, the NAC has no written membership rolls. Id. Marriott has
stated that a list of NAC members would be almost impossible to gather.
A. Marriott, supra note 9, at 105-09.
[footnote 155] 878 F.2d at 1464.
[footnote 156] Since Larson, there can be no doubt that the Supreme
court requires the application of strict scrutiny when the government
grants a denominational preference. See County of Allegheny v. ACLU, 109
S. Ct. 3086, 3090, 3109 (1989) (strict scrutiny is required for practices
suggesting denominational preference); Hernandez v. Commissioner of
Internal Revenue, 109 S. Ct. 2136, 2139, 2142, 2146 (1989) (claim of
denominational preference, which would require strict scrutiny,
necessitates an initial inquiry of whether the law facially
differentiates among religions); Lynch v. Donnelly, 465 U.S. 668, 697,
699 (1984) (law granting a denominational preference must be reviewed
under a strict scrutiny analysis).
[footnote 150] ACT, "Cannabis & Medicine," at 4. These states
include: Alabama, Arizona, Arkansas, California, Colorado, Connecticut,
Florida, Georgia, Illinois, Iowa, Louisiana, Maine, Michigan, Minnesota,
Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina,
Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, and
Wisconsin. Id.
39
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government dispenses marijuana for medical uses, [footnote 158] and that
five people in America have federal permission to use marijuana to help
with chronic ailments, [footnote 159] the arguments that marijuana poses
serious health risks and has no acceptable safety use are highly suspect.
[footnote 160] Moreover, the majority accepted without question the DEA
data about abuse, availability, and demand instead of examining marijuana
in terms of current trends.
The DEA set forth statistics regarding the amounts of marijuana
seized between 1980-1987. [footnote 161] Yet a breakdown of these
statistics year by year establishes that the use of marijuana has been
steadily decreasing since 1979. Many people assert that both production
and consumption of marijuana in the country is on the decrease, [footnote
163] and that any threat posed by marijuana is
____________________
[footnote 158] See supra notes 86-91, 104-06 and accompanying text.
Administrative Law Judge Francis Young concluded after two years of
hearings that marijuana has an accepted medical use in the treatment of
chemotherapy and in the treatment of multiple sclerosis, spasticity, and
hyperparathyroidism. In re marijuana Rescheduling Petition, No. 86-22,
at 34, 54-55 (Sept. 6, 1988).
[footnote 159] Of the five Americans who have federal permission to
smoke marijuana in the U.S., three of them do so for the treatment of
glaucoma. UPI, Apr. 13, 1990. In one such case, Elvy Musikka was
arrested for growing marijuana in her home; a judge acquitted her, ruling
that marijuana would save her eyesight. She now receives pot from a
federal farm in Mississippi. Id.
[footnote 160] See supra notes 29-30 and accompanying text.
[footnote 161] 878 F.2d at 1463.
[footnote 162] U.S. Dep't of Health & Human Serv., Press Release
No. RP0729, at 3 & marijuana graph showing annual usage from 1972-
1990 (Dec. 19, 1990).
[footnote 163] Los Angeles Times, Sept. 16, 1990, at 6, col. 3.
40
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waning. [footnote 164] Indeed, when casual possession of marijuana was
decriminalized in California in 1976 (those caught with an ounce or less
paid fines similar to that of a traffic ticket), marijuana "fell out of
fashion.... Polls taken over the last 10 years show marijuana use down
as much as 50 percent." [footnote 165] The fact that Alaska, the only
state where marijuana possession was legal, recently voted to re-
criminalize it and other similar trends, [footnote 166] calls into
question the continued vitality of marijuana's allure. Whether marijuana
is decriminalized or recriminalized, the population appears less and less
interested in pursuing its use. These types of changes in attitudes
about marijuana make "the job of law enforcement so much easier,"
[footnote 167] and cast some doubt not only on the DEA's complaints
concerning marijuana control problems in general but more specifically
the
____________________
[footnote 164] Police and communities want to designate police
resources to more serious crimes. USA Today, Sept. 4, 1990, at 9A
(regarding rally where pot was smoked openly, police stated that justice
system has more important crimes to worry about). In July, residents of
Berkeley ignored a signature drive to repeal a 1979 marijuana ordinance
which, "in effect, orders Berkeley's police force to make marijuana
enforcement its lowest priority item." PR Newswire, July 13, 1990.
[footnote 165] Washington Times, Sept. 11, 1990, at A3.
Californians believe that the interest in pot would have decreased
regardless of the decriminalization. Id.
[footnote 166] Washington Post, Nov. 8, 1990, at A45. Young people
all over the country have lost interest in decriminalizing marijuana; in
a survey of college freshmen in 1977, 53% favored legalization; in 1990,
17% favored legalization. PR Newswire, Oct. 31, 1990. The ABA's House
of Delegates voted to nullify the 1973 policy advocating
decriminalization of marijuana. 76 A.B.A. J. 105 (1990).
[footnote 167] Washington Times, Sept. 11, 1990, at A3.
41
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monitoring burden the DEA states would accompany the EZCC exemption. In
addition, it simply defies logic that a church with a membership of
250,000 to 300,000 people would be easier to monitor than a church with a
membership of one-hundred to two-hundred people. Olsen agreed to provide
a list of member names and places of worship. Under the NAC exemption,
however, the DEA has no idea where or when ceremonies will take place or
who will be participating. This would appear to make monitoring
exponentially more difficult. Nonetheless, monitoring the NAC exemption,
apparently, has not imposed a burden on the DEA. Nor does it seem likely
that monitoring the limited EZCC exemption would be significant.
C. Comparing the Churches' Rituals
The NAC ritual which involves an all night service perhaps once a
week, [footnote 168] is more acceptable in the court's view than the EZCC
ritual which traditionally is a daily observance. The majority's concern
about the EZCC's regular use of its sacrament seems to state a clear
preference for religions that engage sparingly in the use of their
sacrament. [footnote 169] The Catholic Church offers the holy sacrament
for ingestion at every worship service (mass), and members are free to
engage in worship on a daily
____________________
[footnote 168] Participants gather at sunset and ingest peyote all
through the night. A. Marriott, supra note 9, at 76.
[footnote 169] 878 F.2d at 1464.
42
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basis, if not more. [footnote 170] On the other hand, many Protestant
denominations offer the holy sacrament once a month, or less. [footnote
171] Speaking in terms of one's religious tradition, how often one
partakes of holy communion should not be a basis upon which one church
receives an exemption and another church does not. The EZCC ritual is
more akin to the lifestyle of a religious order living in community where
communion might be celebrated at various times throughout the day. The
majority found it significant that EZCC members were allowed to ingest
their sacrament outside of the confines of the church facility.
[footnote 172] This concern again seems to be placing an unfair premium
on certain types of rituals. The Protestant and Catholic Churches of
America celebrate and distribute their sacrament in shopping malls,
[footnote 173] parking lots, [footnote 174] buses, [footnote 175]
hospitals, [footnote 176] parks, [footnote 177] homes; [footnote 178] in
fact there is no place where
____________________
[footnote 170] See The New Encyclopaedia Britannica 588 (1987); M.
B. Pennington, The Eucharist Yesterday & Today xi (1984); J. Emminghaus,
The Eucharist: Essence, Form, Celebration xx, 95, 101 (1978).
[footnote 171] See James F. White, Protestant Worship: Traditions
in Transition 14, 56, 67, 87, 90, 110, 131, 155, 175, 186, 187, 200, 211-
12 (1989).
[footnote 172] 878 F.2d at 1462.
[footnote 173] See Los Angeles Times, Mar. 16, 1986, at 1, col. 1.
[footnote 174] See Los Angeles Times, Jan. 20, 1990, at 14, col. 1;
Los Angeles Times, Mar. 27, 1989, at 1, col. 2; Los Angeles Times, Mar.
25, 1985, at 1, col. 5.
[footnote 175] See Los Angeles Times, Aug. 19, 1989, at 7, col 3.
[footnote 176] See J. White, supra note 171, at 261-68.
43
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the sacrament cannot be celebrated. Furthermore, finding it significant
that ingestion of the sacrament be limited to the confines of a "church
facility" appears suspect when it is not at all clear that the NAC even
has the functional equivalent of a "church facility." [footnote 179]
The majority dispensed with Olsen's proposed exemption by stating
that "'narrow' use, concededly, is not his religion's tradition."
[footnote 180] The court cannot in good faith use the tradition of the
EZCC as a basis for suggesting that the exemption will not be adhered to.
Whether an exemption tracks a religious tradition or not is irrelevant,
has never been the law, and should not be used to circumvent a religious
group's proposal to compromise. Accepting the EZCC's offer to modify its
traditions rather than resorting to total ban on the religion's sacrament
would seem to serve the government's best interest. Given the choice
between an unlimited drug exemption for a church which is loosely knit
together with few checks on behavior [footnote 181] and a narrowly drawn
exemption which incorporates many checks on behavior for a church that
nonetheless has not traditionally restricted its sacrament, the latter
seems preferable.
____________________
[footnote 177] See O'Hair v. Andrus, 613 F.2d 931 (D.C. Cir. 1979).
[footnote 178] See J. White, supra note 171, at 88.
[footnote 179] See Woody, 61 Cal. 2d at 721, 40 Cal. Rptr. at 73,
394 P.2d at 817 (meeting convenes in enclosure); A. Marriott, supra note
9, at 39-47, 69.
[footnote 180] 878 F.2d at 1464.
[footnote 180] See A. Marriott, supra note 9, at 81, 105-09.
44
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The majority noted "further distinctions" between the rituals of the
two religions:
1) the peyote exemption was accorded for a traditional,
precisely circumscribed ritual;
2) peyote is an object of worship;
3) for the NAC, use of peyote outside of the ritual is
sacrilegious; and
4) the NAC, for all practical purposes, "reinforces"
the state's prohibition. [footnote 182]
First, marijuana is a traditional ritual for the EZCC. [footnote 183]
Moreover, the NAC's "precisely circumscribed ritual" lasts at least
twelve hours, while the EZCC proposal would limit the service to three
hours. [footnote 184] The peyote ceremony has myriad manifestations, and
there is no prohibition on how often one might participate in a NAC
ceremony--while Olsen has limited participation in the EZCC sacrament to
one night per week, and it is always the same night. [footnote 185]
Second, the DEA has conceded in its briefs that marijuana for the EZCC is
an object of worship. [footnote 186] Third, for the EZCC, use of
marijuana outside of the ritual is sacrilegious: "The
____________________
[footnote 182] 878 F.2d at 1464.
[footnote 183] See supra notes 51-53 and accompanying text.
[footnote 184] See supra notes 13, 94-96 and accompanying text.
[footnote 185] See supra notes 8-10, 39, 94-96 and accompanying
text.
[footnote 186] 878 F.2d at 1460; see also Government Brief, Oct. 6,
1986, at 7 (citing Town v. State ex rel. Reno, 377 So.2d 648, 650 (Fla.
1979) (EZCC represents a centuries old religion within the first
amendment and the use of cannabis is an essential portion of the
religious practice), app. dismissed and cert. denied, 449 U.S. 803
(1980)).
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Church believes that [recreational use] of marijuana, by members or
nonmembers, constitutes sacrilegious behavior." [footnote 187] Even
during the ceremony, those ingesting marijuana do not inhale the smoke
into their lungs; they avoid its intoxicating effects by taking it into
their mouths and exhaling it from their noses." [footnote 188] Finally,
the EZCC religion, for all practical purposes, reinforces the state's
prohibitions. The members of the EZCC do not approve of drug abuse in
any form, and alcohol is strictly forbidden." [footnote 189] Indeed, all
aspects of conduct are strictly regulated by a literal interpretation of
the Old Testament. [footnote 190] Thus, the differences noted by the
majority are instead distinct similarities between the two churches.
D. Comparison of the Drugs
Both peyote and marijuana are Schedule I drugs which means that they
both: 1) have a high potential for abuse; 2) have no currently accepted
medical use in treatment; and 3) lack of accepted safety for use under
medical supervision. [footnote 191] The only argument that can be made
that these drugs are not similarly situated in terms of the government's
definition regarding dangerous drugs, is that marijuana does not even
meet the second
____________________
[footnote 187] See supra notes 55-57 and accompanying text.
[footnote 188] Commonwealth v. Nissenbaum, 404 Mass. 575, 589, 536
NE.2d 592, 599 (1989); supra notes 55-57 and accompanying text.
[footnote 189] See supra notes 56-57 and accompanying text.
[footnote 190] See supra notes 48-50 and accompanying text.
[footnote 191] § 812(b)(1).
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and third criteria whereas peyote meets all three. Marijuana has several
currently accepted medical uses in treatment, [footnote 192] and has an
accepted level of safety for use under medical supervision. [footnote
193] Many people are not only openly stating that marijuana poses no
health risks, [footnote 194] but are claiming that legalization would be
downright beneficial. [footnote 195] More and more public officials are
____________________
[footnote 192] See supra note 158 and accompanying text.
[footnote 193] See supra note 159 and accompanying text; see also
supra note 157 and accompanying text.
[footnote 194] Some of the following people hotly dispute that
marijuana is harmful. "But in terms of a direct physical threat to the
body, 'it's probably true that [marijuana's] greatest danger is if a bale
of it falls on you,' said David Friedman, deputy director of the National
Institute on Drug Abuse's preclinical research division and the official
in charge of overseeing that agency's marijuana research." Washington
Post, Sept. 19, 1990, at A19. Administrative Law Judge, Francis L.
Young, found that "[m]arijuana, in its natural form, is one of the safest
therapeutically active substances known to man." In re Marijuana
Rescheduling Petition, No. 86-22 at 58-59 (Sept. 6, 1988) ("In strict
medical terms marijuana is far safer than many foods we commonly
consume."). The Judge stated further that "[a] smoker would
theoretically have to consume nearly 1,500 pounds of marijuana within
about fifteen minutes to induce a lethal response." Id. at 57-58. Based
on his findings, after two years of testimony, Judge Young recommended
that marijuana be transferred from Schedule I to Schedule II. Id. at 67-
68. It is interesting to note that Olsen was a party to this suit. Id.
at 4, 6.
[footnote 195] Some people assert that a severe crackdown on the
safer drug of marijuana leads directly to the sharp increase in crack
use. Washington Times, Sept. 11, 1990, at A3. Others claim that
decriminalizing marijuana in California "has freed up police resources
for those more dangerous drugs ... [saving the state] 'easily over $1
billion' since 1976 in police, court and penal costs by not prosecuting
casual pot smokers." Id. In addition, the Washington-based Drug Policy
Foundation compares crime statistics from Amsterdam, where marijuana and
hashish are legally available in youth clubs, to those of D.C. "Although
Amsterdam has more people than Washington, it reported only 11 drug-
related homicides in 1989, compared with 262 in the U.S. capital."
Chicago Tribune, May 24, 1990, at 2.
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speaking out in support of the legalization of marijuana. [footnote 196]
E. Comparison of Attitudes Towards the Two Churches
The Native American religion has been singled out to receive special
protections by the Congress, the DEA, federal courts, state legislators,
and state courts. [footnote 197] Preservation of the
____________________
In an all together different vein, Jack Herer of HEMP (Help
Eliminate Marijuana Prohibition), said that "restoring the crop [of
marijuana] would enable America to produce clothing fibers softer and
more durable than cotton, paper fibers five or 10 times longer lasting
than wood pulp and seeds providing one of earth's most complete vegetable
proteins." Los Angeles Times, June 11, 1990, at 3, col. 1. Indeed, HEMP
states that an acre of marijuana as a crop, which needs no herbicides or
pesticides, will yield as much paper as four acres of trees and as much
energy as twenty-five barrels of oil. UPI, Aug. 27, 1990.
[footnote 196] A California state advisory commission, which was
created by the Legislature in 1969 and appointed by state agencies and
the governor, recently recommended that California legalize marijuana.
Los Angeles Times, August 18, 1990, at 35, col. 1. The Los Angeles Times
reported on the pro-marijuana candidates running for election: 1)
Kentucky gubernatorial candidate Gatewood Galbraith; 2) New Hampshire GOP
congressional primary candidate, Michael Weddle; 3) Kansas Democratic
congressional candidate, Mark Creamer; 4) incumbent U.S. Rep. George
Crockett, Jr. (D. Mich.); 5) incumbent Democratic State Rep. Elbert
Walton of Missouri; 6) incumbent Democratic State Sen. Joe Galiber in New
York; and 7) incumbent Bill Mathesius, a Republican county executive in
Mercer County, New Jersey. Los Angeles Times, July 29, 1990, at 24, col.
1. In addition, Dr. Fred Oerther, Oregon's Libertarian Party nominee for
governor, is calling for the legalization of marijuana for personal use
by adults. UPI, May 20, 1990.
Other supporters of legalization include: economist Milton Friedman,
Columnist William Buckley, Jr., former Attorney General Ramsey Clark,
Baltimore Mayor Kurt Schmoke, and U.S. District Judge Robert Sweet of New
York. Los Angeles Times, July 29, 1990, at 24, col. 1. Even former
Secretary of State, George Shultz has said that legalization should be
considered. Id. The Americans for Democratic Action have recently
approved a drug platform calling for the legalization of marijuana while
rejecting the wholesale legalization of other drugs. 22 National
Journal, July 7, 1990, at 1639.
[footnote 197] See supra notes 36-39, 70, 81-82, 97 and
accompanying text.
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Native American culture, including the native religion, is federal
policy. [footnote 198] That the American people show a sympathy and
romantic affinity for the Native Americans is clear and is explicitly
understood to be part of Congress' agenda:
[T]he country is now sympathetic to the cultural needs
of Indians. The American Indian Religious Freedom Act
of 1978 ... is evidence of this concern. If we took
steps to revoke the [NAC] Exemption, Congress, the
Indians and the public would be "on our backs."
[footnote 199]
It is not inappropriate to suggest that a church originating in Africa,
coming to America via Jamaica would meet with much less sympathy.
Indeed, the EZCC denial may stem from racial animus where the general
perception equates blacks with drugs and crime. [footnote 200] Moreover,
the specter of xenophobia cannot be dismissed. If Native Americans have
a much higher level of political and popular support, this is exactly the
type of case that should trigger the protections of the establishment
____________________
[footnote 198] See supra notes 97-99, 103.
[footnote 199] Harry L. Myers, DEA Memorandum on OLC's Comment on
the Peyote Exemption, Feb. 28, 1979, appended to Amicus Brief Before DEA,
App. 14.
[footnote 200] See USA Today, Nov. 29, 1990, at 10A (drug research
director calls for commission to research "how drugs have preferentially
blighted blacks"); Los Angeles Times, Sept. 28, 1990, at 6, col. 1
(discussion of origin of "disenfranchised blacks' problems of drugs,
crime, gang violence, murder, AIDS, poverty, homelessness and poor
education"); Los Angeles Times, Sept. 16, 1987, at 5, col. 1 (black
community scarred from "centuries of cultural racism," show in studies
presented at American Psychological Association meeting that black
children generally prefer white dolls over black dolls--understood to be
the result of the poor quality of African-American images in the country
and rejection by the broader society).
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clause. [footnote 201]
V. CONCLUSION
Congress and the DEA have accorded a sacramental drug exemption to
Native Americans regarding peyote. [footnote 202] The EZCC has tried for
years to obtain a similar exemption regarding marijuana. [footnote 203]
This past June, the Supreme Court denied certiorari to the District of
Columbia Court of Appeals decision denying the EZCC a sacramental drug
exemption similar to that held by the NAC. [footnote 204]
The court of appeals decision to deny an exemption to the EZCC
violates the establishment clause of the U.S. Constitution. [footnote
205] The court's reliance on the DEA's statement that it has greater law
enforcement control problems with marijuana will not satisfy an
application of strict scrutiny. The DEA must explain why a very narrow
exemption extended to one-hundred to two-hundred people would undermine
its interest in preventing drug abuse when an unlimited exemption for
peyote extended to 300,000 to 400,000 people does not. [footnote 206]
Additionally, there must be a forthright analysis of the current trends
regarding the public's abuse of marijuana and the growing body of
____________________
[footnote 201] See supra notes 141-44 and accompanying text.
[footnote 202] See supra notes 36-39 and accompanying text.
[footnote 203] See supra notes 61-62 and accompanying text.
[footnote 204] See supra note 1 and accompanying text.
[footnote 205] See supra notes 141-201 and accompanying text.
[footnote 206] See supra notes 155-67 and accompanying text.
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information concerning marijuana's use for medicinal purposes. [footnote
207]
The court set forth various aspects of the NAC which made it
particularly well suited for an exemption, and then failed to recognize
that the EZCC has demonstrated significant similarity to the NAC
regarding these aspects. [footnote 208] For example, the EZCC views the
recreational use of its sacrament as sacrilegious, has much stricter
controls on its membership, and regards marijuana as a deity as does the
NAC concerning peyote. [footnote 209] Additionally, as a result of its
proposed exemption, the EZCC would exercise much greater control over its
ceremony than the NAC. [footnote 210]
The EZCC is being denied a benefit accorded to another church
because of its ritual, its traditions, because it is not indigenous, and
because of the abuse of its sacrament by others. The EZCC has proposed
to modify its tradition and ritual, to adhere to practices which are much
more restrictive than those of the NAC, and to help with monitoring
problems, to no avail. [footnote 211] The reasons for the denial appear
to flow from the fact that the EZCC is a relatively new religion to this
country, of black origins, small, and unpopular. [footnote 212] The
establishment clause was specifically written to protect these very types
of religions
____________________
[footnote 207] See supra notes 155-67, 191-96 and accompanying
text.
[footnote 208] See supra notes 122-23 and accompanying text.
[footnote 209] See supra notes 183-90 and accompanying text.
[footnote 210] See supra notes 146-54 and accompanying text.
[footnote 211] See supra notes 1, 94-96, 117 and accompanying text.
[footnote 212] See supra notes 40-60, 145 and accompanying text.
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from being denied benefits extended to more politically popular
religious groups. [footnote 213]
____________________
[footnote 213] See supra notes 141-44 and accompanying text.
52