United States v. Middleton, 690 F.2d 820, 824-826 (11th Cir. 1982)


  Middleton also asserts that the federal statutes prohibiting the 
importation and possession of marijuana, as applied in this case, violate 
the free exercise clause of the first amendment of the United States 
Constitution.  In support of this assertion, Middleton argues that he is a 
dedicated member of the Ethiopian Zion Coptic Church, that this church is a 
religion within the meaning of the first amendment, and that the use of 
marijuana is an essential part of his religious practice.  In order to 
succeed, the defendant must prove both that the Ethiopian Zion Coptic 
Church is a religion within the meaning of the first amendment and that the 
statutes in question do not serve a compelling governmental interest.

  The defendant argues that the strict daily regimen of the Coptic 
community in Jamaica and its focus on prayer services in which marijuana is 
an essential element conclusively demonstrate that the Ethiopian Zion 
Coptic Church is a religion within the protections of the first amendment.  
Assuming without deciding that the Ethiopian Zion Coptic Church is a 
religion within the amendment's protections, [Footnote 2.  Although we 
express no view as to whether the Ethiopian Zion Coptic Church is a 
religion for purposes of first amendment analysis, we note that other 
courts have held that any belief that is "arguably religious" is generally 
accorded protection, provided that the adherent is sincere in his belief 
and acts upon this belief in good faith.  Compare International Soc'y for 
Krishna Consciousness, Inc. v. Barber, 650 F.2d 430 (2d Cir. 1981) with 
United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968).] we hold that any 
interest of the defendant protected by the free exercise clause is 
outweighed by the compelling governmental interest in regulating and 
controlling the use of marijuana and its distribution in the United States.  
The free exercise clause "embraces two concepts, - freedom to believe and 
freedom to act.  The first is absolute but, in the nature of things, the 
second cannot be.  Conduct remains subject to regulation for the protection 
of society."  Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940).  The 
Supreme Court has emphasized on numerous occasions that actions and 
practices are not absolutely protected from governmental regulation merely 
because the actor classifies these actions as "religious."  See, e.g., 
United States v. Lee, 455 U.S. 252 (1982) (social security taxes may be 
constitutionally imposed on persons who object on religious grounds to the 
payment of taxes to support public insurance funds); Davis v. Beason, 133 
U.S. 333 (1890); Reynolds v. United States, 98 U.S. 145 (1878).

  In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Supreme Court reversed 
the conviction of an Amish farmer who had been convicted of violating 
Wisconsin's compulsory school attendance law.  The Court recognized the 
interest of the state regarding basic education, but held that the state 
interest is "not totally free from a balancing process when it impinges on 
fundamental rights and interests, such as those specifically protected by 
the free exercise clause of the first amendment ...."  Id. at 214.  "The 
essence of all that has been said and written on the subject is that only 
those interests of the highest order and those not otherwise served can 
overbalance legitimate claims to the free exercise of religion."  Id. at 
215.  The Court examined the Amish's interest in maintaining its community 
structure and the state's interests in preparing citizens for effective and 
intelligent participation in society.  The Court then concluded that the 
state interests would not be sufficiently advanced by requiring Amish 
school children, who were enrolled until the completion of a basic 
education, to attend school for an additional two years.  Id. at 222. 
[Footnote 3.  [T]he value of all education must be assessed in terms of its 
capacity to prepare the child for life.  It is one thing to say that 
compulsory education for a year or two beyond the eighth grade may be 
necessary when its goal is the preparation of the child for life in modern 
society as the majority live, but it is quite another if the goal of 
education be viewed as the preparation of the child for life in the 
separated agrarian community that is the keystone of the Amish faith.  Id.] 
Middleton urges that the court analogize between the structure of the Amish 
and Coptic communities and that Yoder therefore should control our 
disposition of the case at bar.  However, even if we assume that such an 
analogy is proper (a contention upon which the court expresses no opinion), 
we find a difference in the nature of the governmental interests involved 
in the two cases.  Unlike the state interest advanced in Yoder, the 
interest advanced by the government in the case at bar is compelling and 
would be substantially harmed by a decision allowing members of the 
Ethiopian Zion Coptic Church to possess marijuana freely.  Congress has 
strongly and clearly expressed its intent to protect the public from the 
obvious danger of drugs and drug traffic.  See 21 U.S.C.  801(2) (1976).  
Unquestionably, Congress can constitutionally control the use of drugs that 
it determines to be dangerous, even if those drugs are to be used for 
religious purposes.  United States v. Hudson, 431 F.2d 468, 469 (5th Cir. 
1970), cert. denied, 400 U.S. 1011 (1971) ("the use of drugs as part of 
religious practice is not constitutionally privileged"); Native American 
Church of New York v. United States, 468 F. Supp. 1247 (S.D.N.Y. 1979), 
aff'd, 633 F.2d 205 (2d Cir. 1980); Randall v. Wyrick, 441 F. Supp. 312 
{W.D. Mo. 1977); United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968).

  Extended to its logical conclusion, appellant's argument would protect 
all drugs, not just marijuana, if any religious group chose to use them as 
a religious sacrament.  As this court noted in Leary v. United States, 383 
F.2d 851 (5th Cir. 1967), rev'd on other grounds, 395 U.S. 6 (1969), both 
the fact of legislation and the severity of the penalties provided in 
statutes such as the one in question, clearly evidence "the grave concern 
of Congress" in controlling the use of drugs.  Id. at 859.  Moreover, the 
harm of the particular drug in question is not relevant in determining the 
degree of protection afforded by the free exercise clause to the 
defendant's actions.

  Congress had demonstrated beyond doubt that it believes that marihuana is
  an evil in American society and a serious threat to its people.  It would
  be difficult to imagine the harm which would result if the criminal
  statutes against marihuana were nullified as to those who claim the right
  to possess and traffic in this drug for religious purposes.  For all
  practical purposes the anti-marihuana laws would be meaningless, and
  enforcement impossible.  The danger is too great, especially to the youth
  of the nation ... for this court to yield to the argument that the use of
  marihuana for so-called religious purposes should be permitted under the
  Free Exercise Clause.  We will not, therefore, subscribe to the dangerous
  doctrine that the free exercise of religion accords an unlimited freedom
  to violate the laws of the land relative to marihuana.

Id. at 860-61.  We cannot agree that the free exercise clause embodies the 
type of protection urged by the defendant in view of the clearly 
articulated and compelling governmental interests in regulating the 
possession and distribution of drugs.

  In support of his argument, Middleton analogizes to various state court 
decisions which have held that the use of peyote by the Native American 
Church is constitutionally protected.  This Court, however, remains bound 
by the Leary precedent and is not bound by these state court decisions.

  In view of all of these factors, this court cannot agree with the 
defendant's argument that his possession of marijuana is constitutionally 
protected under the first amendment.

United States v. Middleton, 690 F.2d 820, 824-826 (11th Cir. 1982).