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
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
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.
1
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.
2
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).
3
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
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
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).
6
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
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.
8
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].
9
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.
10