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. 


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 
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. 


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. 


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. 


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. 


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 


     [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. 


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. 


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. 


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. 


     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 

     [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 


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). 


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. 


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. 


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). 


clause. [footnote 201] 


     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. 


information concerning marijuana's use for medicinal purposes. [footnote 


     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 

     [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. 


from being denied benefits extended to more politically popular 

religious groups. [footnote 213] 

     [footnote 213]  See supra notes 141-44 and accompanying text.