1458
878 FEDERAL REPORTER, 2d SERIES
Carl Eric OLSEN, Petitioner,
v.
DRUG ENFORCEMENT
ADMINISTRATION,
Respondent.
Carl Eric OLSEN, Appellant,
v.
John LAWN, Administrator, Drug
Enforcement Administration.
Nos. 86-1442, 86-5455.
United Stites Court of Appeals,
District of Columbia Circuit.
Argued Feb. 7, 1989.
Decided June 20, 1989.
Appea1 was taken from order of the, United States District Court for
the District of Columbia, Norma Holloway Johnson, J., which upheld denial
of religious-use exemption from federal laws proscribing marijuana. The
Court of Appeals, Ruth Bader Ginsburg, Circuit Judge, held that: (1) free
exercise clause did not entitle church members to use marijuana, and (2)
fact that use of peyote by members of the Native American Church had been
exempted from proscriptions against use of that drug did not violate
establishment clause.
Affirmed.
Buckley, Circuit Judge, dissented and filed an opinion.
1. Constitutional Law 84(l)
Free exercise clause embraces concepts of freedom to believe and
freedom to act; the first is absolute but, in the nature of things, the
second cannot be. U.S.C.A. Const.Amend. 1.
2. Constitutional Law 84(l)
In appraising law alleged to constrain religious conduct, court must
consider whether law interferes with free exercise of sincere religious
belief, whether law is essential to accomplish an overriding governmental
objective, and whether accommodating religious conduct would unduly
interfere with fulfillment of governmental interest. U.S.C.A. Const.Amend.
1.
3. Constitutional Law 84.5(l)
Accommodation to sacramental use of marijuana by Ethiopian Zion Coptic
Church is not feasible and thus not required by the First Amendment, in
view of church teachings that marijuana is to be smoked continually all
day. U.S.C.A. Const.Amend. 1.
4. Constitutional Law 84.5(19)
Drugs and Narcotics 42
Drug Enforcement Agency exemption from use of peyote for religious
services of the Native American Church did not violate establishment
clause, even in view of denial of exemption for religious use of marijuana
by Ethiopian Zion Coptic Church, in view of the vast difference in demand
for marijuana under the teachings of that church and demand for peyote by
members of the Native American Church. U.S.C.A. Const.Amend. 1.
5. Constitutional Law 84.5(l)
Even if it were determined that it was a violation of establishiment
clause to allow peyote in religious services for one church but not
marijuana in religious services for another, remedy would not necessarily
be to allow the use of marijuana.
Appeal from the United States District Court for the District of
Columbia (D.C. Civil Action No. 86-00236).
Steven J. Routh (appointed by the court) and William A. Bradford, Jr.,
Washington, D.C., (appointed by the court) were on the amicus curiae brief,
on behalf of petitioner/appellant, urging remand. Carl Eric Olsen entered
an appearance pro se.
Curtis E. Hall, Asst. U.S. Attorney, with whom Jay B. Stephens, U.S.
Atty., John D. Bates, and R. Craig Lawrence, Asst. U.S. Attys., were on the
brief, for respondent/appellee. Mark E. Nagle, Asst. U.S. Atty.,
Washington, D.C., also entered an appearance for respondent/appellee.
1459
OLSEN v. DRUG ENFORCEMENT ADMIN.
Cite as 878 F.2d 1458 (D.C. Cir. 1989)
Before RUTH BADER GINSBURG, SILBERMAN, and BUCKLEY, Circuit Judges.
Opinion for the court filed by Circuit Judge RUTH BADER GINSBURG.
Dissenting opinion filed by Circuit Judge BUCKLEY.
RUTH BADER GINSBURG, Circuit Judge:
Petitioner in this case seeks a religious-use exemption from federal
laws proscribing marijuana. We hold that the first amendment's free
exercise of religion guarantee does not require the requested exemption,
and that petitioner was not denied equal protection-establishment clause
rights by the government's refusal to accommodate his church's sacramental
use of marijuana.
I.
Petitioner Olsen is a member and priest of the Ethiopian Zion Coptic
Church. While the church is alleged to have several thousand members in
Jamaica, it has never had more than between 100 and 200 members in the
United States. Olsen assets, and the government concedes for purposes of
this case, that the church's sacrament is marijuana; under church
teachings, marijuana is combined with tobacco and smoked "continually all
day, through church services, through everything we do." State v. Olsen,
315 N.W.2d 1, 7 (Iowa 1982) (quoting Olsen's testimony). Olsen and his
fellows have been convicted several times in federal and state courts of
various marijuana offenses, including importation of twenty tons of the
drug, and first amendment challenges to these convictions have been
uniformly rejected. See Olsen v. Iowa, 808 F.2d 652 (8th Cir.1986); United
States v. Rush, 738 F.2d 497 (1st Cir.1984), cert. denied, 470 U.S. 1004,
105 S.Ct. 1355, 84 L.Ed.2d 378 (1985); United States v. Middleton, 690
F.2d 820 (llth Cir.1982), cert. denied, 460 U.S. 1051, 103 S.Ct. 1497, 75
L.Ed.2d 929 (1983); State v. Olsen, 315 N.W.2d 1 (Iowa 1982); Town v.
State ex rel. Reno, 377 So.2d 648 (Fla.1979), cert. denied, 449 U.S. 803,
101 S.Ct. 48, 66 L.Ed. 2d 7 (1980).
The federal convictions were based on the Controlled Substarces Act,
21 U.S.C. §§ 801-904 (1982), which lists marijuana as a "Schedule I"
controlled substance with a "high potential for abuse." Id. § 812(b)(1)(A)
& (c). Between 1983 and 1985, Olsen several times petitioned the Drug
Enforcement Administration (DEA), which administers the Act, for an
exemption permitting his church's sacramental use of marijuana. Olsen
maintained that such an exemption is required by the first amendment's
guarantee of the free exercise of religion. He further urged, under an
establishment clause-equal protection rubric, that his church is entitled
to an exemption similar to that granted by federal regulation to the Native
American Church for its sacramental'use of peyote. See 21 C.F.R. § 1307.31
(1987).
In an effort to prompt a response from the DEA, Olsen unsuccessfully
sued in the Eleventh Circuit to compel agency action. Olsen v. DEA, 776
F.2d 267 (llth Cir.1985) (affirming district court's dismissal of 01sen's
complaint), cert. denied, 475 U.S. 1030, 106 S.Ct. 1236, 89 L.Ed.2d 344
(1986). Thereafter, in January 1986, Olsen petitioned the U.S. District
Court for the District of Columbia for a writ of mandamus, and that court,
in March 1986, directed the DEA to show cause why the writ should not
issue. In April 1986, in a three-paragraph letter ruling, the DEA denied
01sen's petitions; the letter reported the DEA's conclusion that "the
immensity of the marijuana abuse problem," and the correspondingly
"compelling governmental interest" in controlling trafficking in and use of
the substance, "outweighed" the church's interest in access to marijuana.
Letter from John C. Lawn, DEA Administrator, to Carl Eric Olsen (Apr. 22,
1986). The district court then dismissed Olsen's mandamus petition as
moot.
Olsen, acting pro se, both petitioned this court for review of the
DEA's decision, and appealed from the district court's dismissal of his
mandamus petition. In February
1460
878 FEDERAL REPORTER, 2d SERIES
1988, this court, on its own motion, directed appointment of members of the
law firm of Hogan and Hartson to serve as amicus curiae "to address those
issues raised by [Olsen] and any other issues appropriate for the court's
consideration in this case." [footnote 1] After amicus filed a brief, the
DEA moved to remand the matter for renewed agency consideration. In April
1988, we authorized further agency proceedings and instructed the DEA to
supplement the record and return it with a final order by July 29, 1988.
On remand, amicus presented 01sen's proposal for a "restrictive religious
exemption" that would include the following limitations:
--Church 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.;
--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 oth-
erwise go out in public;
--Ingestion of marijuana would be limit-
ed to Church members who had reached
the age of majority, according to the
laws of the state in which the ceremony
takes place;
--Ingestion of marijuana would be limit-
ed to full Church members who had un-
dergone the confession ritual for enter-
ing the Church's community....
Memorandum of Court-Appointed Amicus Curiae in Support and on Behalf of
Petitioner Carl E. Olsen at 29-30 (submitted to DEA on remand).
On July 29, 1988, the DEA issued its Final Order, reaffirming its
denial of 01sen's exemption requests. That order, which we set out in full
as an Appendix to this opinion, first disclaimed statutory authority to
grant the exemption. According to the DEA, Congress intended no religious-
use exemption from Controlled Substances Act proscriptions other than the
peyote-use permission granted the Native American Church. Next, the DEA as
sumed, in order to rule completely, that it had authority to consider
Olsen's exemption petition. It further accepted, for purposes of its
decision, that the Ethiopian Zion Coptic Church is a bona fide religion
with marijuana as its sacrament. The agency then rejected Olsen's free
exercise claim, concluding that the government has a compelling interest in
the regulation of controlled substances and that accommodation to religious
use of drugs is not required. Final Order, infra pp. 1466-1467.
The DEA also rejected Olsen's establishment clause-equal protection
plea, stating why, on the matter in controversy, it deemed the Ethiopian
Zion Coptic Church not similarly situated to the Native American Church.
Id. p. 1467. First, Olsen's church "advocates the continuous use of
marijuana or 'ganja', while the Native American Church's use of peyote is
isolated to specific ceremonial occasions." Id. Second, the DEA reasoned:
"[W]hile peyote and marijuana are both Schedule I controlled substances
with a defined high potential for abuse, the actual abuse and availability
of marijuana in the United States is many times more pervasive ... than
that of peyote." Id. p. 1467 (emphasis added). Third, the DEA noted that
Olsen was convicted in Rush for importing twenty tons of marijuana, "an
outrageous quantity to supply [his church's] religious needs." Id. The
DEA also rejected 01sen's proposal to restrict usage, saying monitoring
compliance would be "impractical." Id. p. 1468.
The DEA's July 1988 Final Order is now before this court for review.
[footnote 2]
II.
The DEA initially asserted in its July 1988 Final Order that Congress
had given
____________________
[footnote 1]
William A. Bradford, Jr. and Steven J. Routh
were appointed and filed briefs in support of
Olsen's position, with the assistance of Emily E.
Moskowitz. Mr. Routh appeared on Olsen's be-
half at oral argument. The court commends
appointed counsel for work of excellent quality
and service in the best tradition of the bar.
[footnote 2]
Because the DEA completely responded to 01-
sen's exemption petition in its Final Order, we
hold that 01sen's petition for mandamus to
compel a response is now moot.
1461
OLSEN v. DRUG ENFORCEMENT ADMIN.
Cite as 878 F.2d 1458 (D.C. Cir. 1989)
the agency no authority to grant the exemption Olsen sought. Apart from
permitting legitimate medical and scientific or research use, the DEA
maintained, Congress intended no exemption other than the one, supported in
the legislative history of the Controlled Substances Act, for the Native
American Church. Final Order, infra p. 1466. This argument did not figure
in the DEA's original denial of Olsen's petitions; the agency's April 1986
letter ruling, we note, responded immediately and directly to the merits of
Olsen's request.
The DEA's contention that Congress directed the Administrator
automatically to turn away all churches save one opens a grave
constitutional question. A statutory exemption authorized for one church
alone, and for which no other church may qualify, presents a
"denominational preference" not easily reconciled with the establishment
clause. See Larson v. Valente, 456 U.S. 228, 245, 102 S.Ct. 1673, 1683-84,
72 L.Ed.2d 33 (1982); cf. infra pp. 1463-1464. We resist an interpretation
dissonant with the "cardinal principle" that legislation should be
construed, if "fairly possible," to avoid a constitutional confrontation.
See Ashwander v. TVA, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688
(1936) (Brandeis, J., concurring).
Furthermore, we recognize that even if the DEA were not empowered or
obliged to act, Olsen would be entitled to a judicial audience.
Ultimately, the Courts cannot escape the obligation to address his plea
that the exemption he seeks is mandated by the first amendment's religion
clauses. See Peyote Way Church of God v. Smith, 742 F.2d 193 (5th
Cir.1984) (upholding church's standing to seek a declaratory judgment that
denying church access to peyote is unconstitutional). We are aided in this
task of judicial review by the consideration given the matter, in the first
instance, by the expert administrator.
In sum, for purposes of this case, we accept the position that
Congress did not strip the DEA of authority to rule on the merits of
Olsen's petitions, [footnote 3] and we turn to the questions whether the
free exercise of religion clause or the equal protection principle (coupled
with the establishment clause) commands the exemption Olsen seeks.
III.
Olsen's free exercise claim has been raised, considered, and rejected
in the context of criminal proceedings. See Olsen v. Iowa, 808 F.2d at
653; Rush, 738 F.2d at 512-13; Middleton, 690 F.2d at 824-26; State v.
Olsen, 315 N.W.2d at 7-9; Town v. State ex rel. Reno, 377 So.2d at 650-51.
We agree, substantially, with those dispositions, and therefore need not
treat the issue expansively.
[1] It is familiar doctrine that 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, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).
As the Supreme Court recently restated:
[T]he Court has rejected challenges un-
der the Free Exercise Clause to govern-
mental regulation of certain overt acts
prompted by religious beliefs or princi-
ples, for "even when the action is in
accord with one's religious convictions,
[it] is not totally free from legislative
restrictions." Braunfeld v. Brown, 366
U.S. 599, 603, 81 S.Ct. 1144, 1146, 6 L.Ed.
2d 563 (1961). The conduct or actions so
regulated have invariably posed some
substantial threat to public safety, peace
or order. See, e.g., Reynolds v. United
States, 98 U.S. 145, 25 L.Ed. 244 (1879)
[upholding ban on polygamy]; Jacobson
v. Massachusetts, 197 U.S. 11, 25 S.Ct.
358, 49 L.Ed. 643 (1905) [compulsory vac-
cination law]; Pnnce v. Massachusetts,
____________________
[footnote 3]
But see Olsen v. DEA, 776 F.2d 267 (11th
Cir.1985), cert. denied, 475 U.S. 1030, 106 S.Ct.
1236, 89 L.Ed.2d 344 (1986) (while the DEA is
obliged to respond to all exemption petitions,
religious exemption for marijuana use falls out-
side the scope of 21 U.S.C. § 811). Subsequent
to this Eleventh Circuit decision, 01sen broad-
ened beyond 21 U.S.C. § 811 the bases of his
exemption claim. See Reply Brief of Court-Ap-
pointed Amicus Curiae at 7 n. 5.
1462
878 FEDERAL REPORTER, 2d SERIES
321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645
(1944) [child labor law]; Cleveland v.
United States, 329 U.S. 14, 67 S.Ct. 13,
91 L.Ed. 12 (1946) [application of Mann
Act to religiously motivated polygamy].
Employment Division v. Smith, 485 U.S. 660, 108 S.Ct. 1444, 1450 n. 13, 99
L.Ed.2d 753 (1988) (quoting Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct.
1790, 10 L.Ed.2d 965 (1963)).
[2] In appraising laws alleged to constrain religious conduct, the
Supreme Court has instructed lower courts to consider: (a) whether the law
interferes with the free exercise of sincere religious belief; (b) whether
the law is essential to accomplish an overriding governmental objective;
and (c) whether accommodating the religious conduct would unduly interfere
with fulfillment of the governmental interest. See United States v. Lee,
455 U.S. 252, 256-59, 102 S.Ct. 1051, 1054-56, 71 L.Ed.2d 127 (1982); Rush,
738 F.2d at 512. The first two factors stated in Lee are not contested in
this case. The DEA, "[f]or purposes of this decision ... accepts that the
Ethiopian Zion Coptic Church is a bona fide religion whose sacrament is
marijuana." Final Order, infra p. 1466. And "Olsen does not dispute the
government's compelling interest in controlling the distribution and drug-
related use of marijuana," Brief of Court-Appointed Amicus Curiae at 18.
Indeed, "[e]very federal court that has considered the matter, so far as we
are aware, has accepted the congressional determination that marijuana in
fact poses a real threat to individual health and social welfare." Rush,
738 F.2d at 512.
[3] The pivotal issue, therefore, is whether marijuana usage by Olsen
and other members of his church can be accommodated without undue
interference with the government's interest in controlling the drug. Three
circuits have so far considered pleas for religious exemption from the
marijuana laws; each has rejected the argument that accommodation to
sacramental use of the drug is feasible and therefore required. Rush, 738
F.2d at 513 (First Circuit); Olsen v. Iowa, 808 F.2d at 653 (Eighth
Circuit); Middleton, 690 F.2d at 825 (Eleventh Circuit). We have no reason
to doubt that these courts have accurately gauged the Highest Court's
pathmarks in this area.
Olsen refers to his proposal for restrictive use, see supra p. 1460,
and claims that this case is now differently contoured than earlier ones.
Even if the government is not required to accommodate to the extent of
allowing a broad religious exemption, he argues, it can and must
accommodate to the time- and place-specific use he has proposed. Because
the tenets of the Ethiopian Zion Coptic Church endorse marijuana use every
day throughout the day, however, Olsen's proposal for confined use would
not be self-enforcing. It is hardly unreasonable to forecast a large
monitoring burden in light of evidence that in years past, the church's
"[c]hecks on distribution of cannabis to 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." Town v.
State ex rel. Reno, 377 So.2d at 649, 651.
Critically, Olsen's proposal would require the government to make
supplies of marijuana available to Olsen's church on a regular basis. See
Reply Brief of Court-Appointed Amicus Curiae at 7, 17. We are unaware of
any "free exercise" precedent for compelling government accommodation of
religious practices when that accommodation requires burdensome and
constant official supervision and management. Cf. Wissconsin v. Yoder, 406
U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (religious exemption from
compulsory school law at issue imposed no toll on the state); Sherbert v.
Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (payment of
unemployment compensation to person fired for refusing to work on Saturday
Sabbath required no administrative mechanism other than the one already in
place); Leahy v. District of Columbia, 833 F.2d 1046, 1049 n. 6
(D.C.Cir.1987) (noting plaintiff Leahy's observation that government could
readily accommodate religious objection to use of
1463
OLSEN v. DRUG ENFORCEMENT ADMIN.
Cite as 878 F.2d 1458 (D.C. Cir. 1989)
social security number in driver's license application, "for the city
already had in place an alternate system of numbers, used for issuing
diplomatic driver's licenses"). [footnote 4]
In sum, we conclude that the DEA cannot accommodate Olsen's religious
use of marijuana without unduly burdening or disrupting enforcement of the
federal marijuana laws. We therefore hold that the free exercise clause
does not compel the DEA to grant Olsen an exemption immunizing his church
from prosecution for illegal use of marijuana.
IV.
[4] In addition to the argument that the free exercise clause
requires government accommodation to sacramental use of marijuana by
members of the Ethiopian Zion Coptic Church, Olsen asserts an establishment
clause-equal protection challenge. He maintains that members of his church
are entitled to a religious exemption from the marijuana laws on the same
terms as the peyote exemption granted the Native American Church. See 21
C.F.R. § 1307.31 ("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.").
Olsen has urged before that members of his church are similarly situated to
the beneficiaries of the exemption prescribed in 21 C.F.R. § 1307.31. See
Olsen v. Iowa, 808 F.2d at 653; Rush, 738 F.2d at 513. We join our sister
courts in rejecting this plea. Indeed, had the DEA timely objected, we
might have held the issue precluded. See RESTATEMENT (SECOND) OF JUDGMENTS
§ 27 (1982). [footnote 5]
The DEA has cogently explained why a tightly-cabined exemption for
peyote use in a religious rite need not mean that religious use of
marijuana (or any other widely used controlled substance) must be
accommodated:
[T]he actual abuse and availability of
marijuana in the United States is many
times more pervasive ... than that of
peyote.... The amount of peyote seized
and analyzed by the DEA between 1980
and 1987 was 19.4 pounds. The amount
of marijuana seized and analyzed by the
DEA between 1980 and 1987 was 15,302,-
468.7 pounds. This overwhelming differ-
ence explains why an accommodation can
be made for a religious organization
which uses peyote in circumscribed cere-
monies, and not for a religion which es-
pouses continual use of marijuana.
Final Order, infra p. 1467.
We agree that the vast difference in demand for marijuana on the one
hand and
____________________
[footnote 4]
Amicus cites the permission for medical and
scientific research use of marijuana ae evidence
that a religious accommodation can be arranged
without undue burden to the government. See
Brief of Court-Appointed Amicus Curiae at 7-9,
21. We think the tightly-drawn, closed system
for access to controlled substances by, or on the
order of, medical doctors and researchers can-
not tenably be compared to the permission
sought here. Government may a1low use of
marijuana in programs to lessen the negative
side-effects of chemotherapy and to treat glau-
coma, for example, without thereby opening the
way to licenses for the use of marijuana by the
healthy.
Amicus also cites the peyote exemption ac-
corded the Native American Church as afford-
ing "reason ... to believe that a workable ac-
commodation exists in this case." Id. at 21.
This argument is addressed infra in the context
of Olsen's establishment clause-equa1 protection
claim.
[footnote 5]
The dissent describes Olsen as choosing "an
Establishment Clase battleground" in prefer-
ence to an equal protection one. Dissent at
1468. 01sen's own petitions to the DEA, how-
ever, featured equal protection. See Brief of
Court-Appointed Amicus Curiae at App. 7, 19 ("I
would like you to respond to the issue of equal
protection.... Why are you discriminating
against my religion by denying the same bene-
fits which are given to the sacramenta1 uses of
peyote and wine?"). Court-appointed amicus
curiae, it is true, did put the comparison with
the Native American Church uder an etablish-
ment clause heading, drawing strength from
the Supreme Court's characterization in Larson
v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72
L.Ed.2d 33 (1982).
We do not believe the label consequential. As
court-appointed amicus recognized, in cases of
this character, establishment clause and equal
protection analysis converge. See Walz v. Tax
Comm'n, 397 U.S. 664, 694, 696, 90 S.Ct. 1409,
1425, 25 L.Ed.2d 697 (1970) (Opinion of Harlan,
J.) (estblishment clause requirement of neu-
trality "in its application requires equal pro-
tection mode of analysis").
1464
878 FEDERAL REPORTER, 2d SERIES
peyote on the other warranted the DEA's response to Olsen's petition. Were
the DEA to consider a marijuana exemption, equal protection (and/or the
establishment clause, see supra note 5) would indeed appear to command that
it do so evenhandedly. See Larson v. Valente, 456 U.S. 228, 102 S.Ct.
1673, 72 L.Ed.2d 33 (1982); cf. Kennedy v. Bureau of Narcotics and
Dangerous Drugs, 459 F.2d 415 (9th Cir. 1972) (petitioning church not
entitled to peyote-use exemption that leaves nonexempt other churches that
use peyote in bona fide religious ceremonies), cert. denied, 409 U.S. 1115,
93 S.Ct. 901, 34 L.Ed. 2d 699 (1973). The DEA would have no warrant to
contain the exemption to a single church or religion. See, e.g., Randall
v. Wyrick, 441 F.Supp. 312 (W.D.Mo.1977) (Aquarian Brotherhood Church);
Whyte v. United States, 471 A.2d 1018, 1020 (D.C.1984) (Rastafarians);
State v. Rocheleau, 142 Vt. 61, 451 A.2d 1144, 1148-49 (1982)
(practitioners of Tantric Buddhism).
[5] Even if we were to credit Olsen's equal protection argument or
the dissent's portrayal of it in terms of the establishment clause, the
remedy Olsen requests hardly follows. Faced with the choice between
invalidation and extension of any controlled-substances religious
exemption, which would the political branches choose? It would take a
court bolder than this one to predict, as our dissenting colleague appears
to suggest, that extension, not invalidation, would be the probable choice.
Compare Califano v. Westcott, 443 U.S. 76, 89-93, 99 S.Ct. 2655, 2663-65,
61 L.Ed. 2d 382 (1979) (majority opinion) with id. at 94-96 (Powell, J.,
dissenting). See generally Miller, Constitutional Remedies for Under-
inclusive Statutes: A Critical Appraisal of Heckler v. Mathews, 20 HARV.
C.R.-C.L. L.REV. 79 (1985); Ginsburg, Some Thoughts on Judicial Authority
to Repair Unconstitutional Legislation, 28 CLEVE.ST.L.REV. 301 (1979).
While we rest our decision on the immensity of the marijuana control
problem in the United States, we note some further distinctions. The
peyote exemption was accorded to the Native American Church for a
traditional, precisely circumscribed ritual. In that ritual, the peyote
itself is an object of worship; for members of the Native American Church,
use of peyote outside the ritual is sacrilegious. See People v. Woody, 61
Cal.2d 716, 40 Cal Rptr. 69, 73, 394 P.2d 813, 817 (1964). Thus the
church, for all purposes other than the special, stylized ceremony,
reinforced the state's prohibition. In contrast, the Ethiopian Zion Coptic
Church, as earlier observed, teaches that marijuana is properly smoked
"continually all day," as Olsen himself stated, "through everything that we
do." State v. Olsen, 315 N.W.2d at 7; see also Town v. State ex rel. Reno,
377 So.2d at 649. True, for purposes of the exemption requested, Olsen
narrowed the permission he sought to track the one accorded the Native
American Church. See Memorandum of Court-Appointed Amicus Curiae in
Support and on Behalf of Petitioner Carl E. Olsen at 29-30 (submitted to
DEA on remand). But "narrow" use, concededly, is not his religion's
tradition.
We mention too--but express no opinion concerning--the view of the
First Circuit that the peyote exemption is bound up with the federal policy
of preserving Native American culture, and thus can be comprehended
properly only "[i]n light of the sui generis legal status of American
Indians." Rush, 738 F.2d at 513; accord Peyote Way Church of God v. Meese,
698 F.Supp. 1342, 1346-49 (N.D.Tex.1988) (Native American Church is "the
only one of its own kind" and exemption afforded it since 1965 "cannot be
expanded to include non-Native American Church use of peyote"), appeal
filed, Dec. 22, 1988; United States v. Warner, 595 F.Supp. 595, 600-01
(D.N.D.1984) (exemption for Native American Church is tied to fulfillment
of "government's unique obligation" to preserve Indian culture). Contra
Native American Church of New York v. United States, 468 F.Supp. 1247
(S.D.N.Y.1979) (peyote exemption must be made available to another church
if in fact it similarly uses peyote for sacramental purposes), aff'd mem.,
633 F.2d 205 (2d Cir.1980).
In sum, assuming arguendo the legitimacy of an exemption for religious
use of
1465
OLSEN v. DRUG ENFORCEMENT ADMIN.
Cite as 878 F.2d 1458 (D.C. Cir. 1989)
peyote, [footnote 6] we are persuaded that the Executive was not obliged by
the Constitution to spread that exemption to church-users of marijuana.
CONCLUSION
For the reasons stated, in No. 86-1442 we deny Olsen's petition for
review and affirm on the merits the DEA's July 1988 Final Order; and in No.
86-5455 we declare Olsen's petition for a writ of mandamus moot and
properly dismissed on that basis.
It is so ordered.
APPENDIX
UNITED STATES DEPARTMENT OF
JUSTICE DRUG ENFORCEMENT
ADMINISTRATION
In the Matter of
PETITION OF CARL E. OLSEN FOR THE ETHIOPIAN ZION COPTIC CHURCH FOR AN
EXEMPTION FROM THE CONTROLLED SUBSTANCES ACT
On Remand From the United States
Court of Appeals for the District
of Columbia Circuit
No. 86-1442
FINAL ORDER
This order is issued pursuant to an Order from the United States Court
of Appeals for the District of Columbia Circuit which remanded the matter
of a petition from Carl Eric Olsen on behalf of the Ethiopian Zion Coptic
Church to the Drug Enforcement Administration (DEA) in order to construct a
complete record for review.
On April 22, 1986, the Administrator of DEA denied Mr. Olsen's request
for an exemption from the Controlled Substances Act for use of marijuana
for religious purposes by the, Ethiopian Zion Coptic Church. Mr. Olsen
petitioned the United States Court of Appeals for the District of Columbia
Circuit for review of the Administrator's denial. The Court remanded the
matter to the DEA for further findings and a more complete record for
review. Pursuant to the Court's Order, agency counsel requested Mr. Olsen
and the law firm of Hogan & Hartson, appointed amicus curiae by the Court,
to present any documents, evidence or arguments which they wished the
Administrator to consider in rendering a final decision.
Hogan & Hartson submitted a Memorandum of Law with attachments.
Counsel for DEA has also provided the Administrator with a Memorandum of
Law and attached documents. The Administrator has considered the evidence
before him, and hereby renders a final decision.
In his petition for exemption to use of marijuana for religious
purposes, Mr. Olsen requests an exemption similar to that granted to the
Native Arnerlcan Church for use of peyote in bona fide religious
ceremonies. This exemption is found in Title 21, Code of Federal
Regulations, Section 1307.31. Mr. Olsen cites Constitutional principles
relating to the Free Exercise Clause of the First Amendment and Equal
Protection as the basis for his request. He also out-
____________________
[footnote 6]
Several state courts have held that the free
exercise clause compels the government to ex-
empt from criminal sanctions the use of peyote
by members of the Native American Church.
See Smith v. Employment Division, 307 Or. 68, 763
P.2d 146, 148 (1988), cert. granted, --- U.S. ---,
109 S.Ct. 1526, 103 L.Ed.2d 832 (1989); White-
horn v. State, 561 P.2d 539 (Okla.Crim.App.
1977); State v. Wittingham, 19 Ariz.App. 27, 504
P.2d 950 (Ct.App.1973), cert. denied, 417 U.S.
946, 94 S.Ct. 3071, 41 L.Ed.2d 667 (1974); People
v. Woody, 61 Cal.2d 889, 40 Cal.Rptr. 69, 394
P.2d 813 (1964). But see State v. Bu11ard, 267
N.C. 599, 148 S.E.2d 565 (1966) (rejecting peyote
user's free exercise claim), cert. denied, 386 U.S.
917, 87 S.Ct. 876, 17 L.Ed.2d 789 (1967); State v.
Big Sheep, 75 Mont. 219, 243 P. 1067 (1926)
(1926). The issue is sub judice before the Su-
preme Court in Smith. Federal courts of ap-
peals have not yet reled definitively on the ques-
tion. See Warner v. Graham, 845 F.2d 179, 183
(8th Cir.1988) (member of Native American
Church was discharged from state employment
because of her use of peyote; court upheld
defendants' qualified immunity plea to constitu-
tional tort claim because it could not say dis-
charge violated a "clearly established" first
amendment right); Peyote Way Church of God
v. Smith, 742 F.2d 193, 201 (5th Cir.1984) (re-
manding for further fact finding claim for pey-
ote exemption made by church unaffiliated with
Native American Church), on remand sub nom.
Peyote Way Church of God v. Meese, 698 F.Supp.
1342 (N.D.Tex.1988) (dismissing claim on the
merits), appeal filed, Dec. 22, 1988.
1466
878 FEDERAL REPORTER, 2d SERIES
APPENDIX--Continued
lines the history of the Ethiopian Zion Coptic Church and its use of
marijuana as a sacrament. For the reasons that follow, Mr. Olsen's request
is denied.
The Administrator finds that he does not have the authority to grant
the exemption requested by Mr. Olsen. The Administrator's authority to
conduct rulemaking and to make waivers to regulatory and statutory
provisions of the Controlled Substances Act is specifically circumscribed
by that Act. The Controlled Substances Act contemplates legitimate
manufacturing, distribution and use of controlled substances for medical,
scientific and research purposes.
The Controlled Substances Act provides that all persons who desire to
manufacture, distribute or dispense controlled substances must obtain a
registration to do so. The Attornev General is authorized to waive the
requirement of registration if he finds that it is in the public interest.
The terms manufacture, distribute and dispense are defined in the
Controlled Substances Act and contemplate activity involving medical and
scientific use of controlled substances. Neither manufacturing,
distribution or dispensing contemplates the possession of controlled
substances for other than legitimate medical or research purposes.
The Administrator does not have inherent authority to make exemptions
to the statute. In granting the exemption for the Native American Church,
the Director of the Bureau of Narcotics and Dangerous Drugs (BNDD) relied
upon the intentions of Congress in the legislative history of the
Controlled Substances Act for his ailthority.
The courts have found that the Administrator has authority to schedule
substances under the Controlled Substances Act. This authority was granted
to the Attorney General by Congress with specific criteria and procedural
requirements for scheduling. The authority was subsequently delegated to
the Administrator by the Attorney General as provided by the Act. See: 21
U.S.C. § 871(a). The criminal sanctions of the Act are dependent upon a
substance being scheduled, and into which schedule it is placed. The
criteria for scheduling do not include provisions for religious use. There
is no mechanism for an exemption to scheduling for religious purposes. The
courts have closely reviewed the Administrator's scheduling of substances,
and have recently held that he did not have the authority to temporarily
schedule a substance without a specific delegation from the Attorney
General. If the courts refuse to expand the Administrator's authority
under the Act to permit temporary scheduling which imposes criminal
sanctions, it is expected they would refuse to expand the Administrators
authority to waive those same criminal sanctions without specific
authorization.
Because of the possibility that the United States Court of Appeals for
the District of Columbia may find that the Administrator does have the
authority to grant a religious exemption to the provisions of the
Controlled Substances Act, the Administrator will also address the issue of
whether the Ethiopian Zion Coptic Church should be granted an exemption for
the use of marijuana for religious purposes.
In the Memorandum of Law filed on behalf of Mr. Olsen in this matter,
Mr. Olsen represents that he has been denied basic procedural due process
because no hearing has been held. Where there is no issue of fact to be
decided, and no statutory requirement for a hearing, a hearing is not
necessary. For purposes of this decision, the Administrator accepts that
the Ethiopian Zion Coptic Church is a bona fide religion whose sacrament is
marijuana. The Administrator also accepts Mr. Olsen's representations of
the method and manner of use of marijuana by members of the church. The
acceptance of these facts means there are no facts in dispute, and,
therefore, no necessity for a hearing.
The Administrator finds that the federal courts that have interpreted
the Free Exercise Clause of the First Amendment to the Constitution have
held that an individual's religious practices may be curtailed by
government statute or requirement if the government can show that its
action serves a compelling state interest. See: Bowen v.
1467
OLSEN v. DRUG ENFORCEMENT ADMIN.
Cite as 878 F.2d 1458 (D.C. Cir. 1989)
APPENDIX--Continued
Roy, 476 U.S. 693 (1986); Unlited States v. Lee, 455 U.S. 252 (1982). The
government must make a reasonable effort to accommodate the religious
practice, but it is not always possible to make such accommodation, nor is
it Constitutionally required. The lower courts have found, in cases where
religious practices were raised as a defense to criminal drug charges, that
the government has a compelling state interest in the regulation of
controlled substances and that accommodation is not usually possible. The
cases addressing the religious use of marijuana are consistent in finding
that the Free Exercise Clause does not require the government to permit
religious use of controlled substances. Beginning with Leary v. United
States, 383 F.2d 851 (5th Cir.1967), rev'd on other grounds, 395 U.S. 6
(1969), the federal appellate courts have found that the government has a
compelling interest in controlling marijuana use. See: 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 (1st Cir.1984), cert.
denied, 471 U.S. 1120 (1985) and Olsen v. State of Iowa, 808 F.2d 652 (8th
Cir.1986). It should be noted that the Petitioner in this matter, Mr.
Olsen, was an appellant in both the Rush and Olsen cases, in which he
raised his religious use of marijuana in defense of criminal charges
involving possession and trafficking in marijuana. The Middleton case
involved a defendant who was a member of the Ethiopian Zion Coptic
Church.
While Mr. Olsen maintains that these cases are not relevant to the
Administrator's decision because they involve the defense of a criminal
charge, the Administrator finds that they are indeed relevant in that the
courts discuss the very Constitutional issues which must be addressed in
this matter. In addition to finding that the members of these religions
had no Free Exercise guarantee to use controlled substances for religious
purposes, the courts also found that as a matter of equal protection, these
individuals' religions were not entitled to the same exemption as that
given by DEA to the Native American Church for use of peyote for bona fide
religious purposes. In finding that members of the Ethiopian Zion Coptic
Church are not entitled to the same exemption as the Native American
Church, the courts have made a distinction between the practices of the
Native American Church and other churches, and the court in Rush stated,
"we think the Ethiopian Zion Coptic Church cannot be deemed similarly
situated to the Native American Church for equal protection purposes."
United States v. Rush, 738 F.2d 497, 513 (1st Cir.1984), cert. denied, 471
U.S. 1120 (1985). The Administrator finds that there is indeed a
distinction between the practices of the Native American Church and the
Ethiopian Zion Coptic Church. Mr. Olsen has stated that the Ethiopian Zion
Coptic Church advocates the continuous use of marijuana or "ganja", while
the Native American Church's use of peyote is isolated to specific
ceremonial occasions.
In addition, the Administrator finds that while peyote and marijuana
are both Schedule I controlled substances with a defined high potential for
abuse, the actual abuse and availability of marijuana in the United States
is many times more pervasive in American society than that of peyote. The
statistics of DEA confirm this conclusion. The amount of peyote seized and
analyzed by the DEA between 1980 and 1987 was 19.4 pounds. The amount of
marijuana seized and analyzed by the DEA between 1980 and 1987 was
15,302,468.7 pounds. 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. Mr. Olsen and the other 19 defendants all claimed to be members
of the Ethiopian Zion Coptic Church and raised the religious use of
marijuana as a defense to criminal charges. If Mr. Olsen's assertions that
the Ethiopian Zion Coptic Church in the United States has
1468
878 FEDERAL REPORTER, 2d SERIES
APPENDIX--Continued
never had, "more than between 100 and 200 members in this country,"
(Petitioner's Memorandum at page 11), 20 tons of marijuana would be an
outrageous quantity to supply their religious needs.
Mr. Olsen submits that his church will submit to a reasonable
accommodation to their use of marijuana, limiting its ingestion to specific
days and specific time periods, Given the large amounts of marijuana
available in this country, and the difficulty the DEA would have in trying
to monitor compliance which [sic] such a requirement, the Administrator
finds that accommodation is impractical. The public interest dictates that
the exemption granted for religious use of peyote to the Native American
Church should not be expanded to include marijuana for the Ethiopian Zion
Coptic Church, or any other religion.
Based upon the record in this proceeding, the legal precedents, and
for the reasons outlined, the Petition by Carl Eric Olsen submitted on
behalf of the Ethiopian Zion Coptic Church for an exemption to the
Controlled Substances Act to use marijuana for religious purposes, is
hereby denied.
/s/ John C. Lawn
JOHN C. LAWN
Administrator
Dated: July 26, 1988
BUCKLEY, Circuit Judge, dissenting:
I dissent because the majority fails to address the Establishment
Clause implications of the Drug Enforcement Agency's rejection of Olsen's
request for a limited religious exemption. That denial creates a clear-cut
denominational preference in favor of the Native American Church, which has
been granted such an exemption. As the agency has not adequately explained
why the Ethiopian Zion Coptic Church must not be accorded comparable
treatment, I would grant Olsen's petition for review on the Establishment
Clause claim and remand to the agency.
I.
The majority treats Olsen's denominational preference claim as an
equal protection challenge rather than as one involving the Establishment
Clause. Majority Opinion ("Maj. op.") at 1463-65. While the Supreme
Court has at times discussed the principle of neutrality among religions in
terms of equal protection rights, see, e.g., Fowler v. Rhode Island, 345
U.S. 67, 70, 73 S.Ct. 526, 527, 97 L.Ed. 828 (1953) (Frankfurter, J.,
concurring), Olsen's choice of an Establishment Clause battleground is
consistent both with the facts of this case and with the Supreme Court's
more recent precedent that applies the Establishment Clause to
denominational preferences (see Larson v. Valente, 456 U.S. 228, 244 et
seq., 102 S.Ct. 1673, 1683 et. seq., 72 L.Ed. 2d 33 (1982)).
II.
Although certain aspects of the Supreme Court's Establishment Clause
jurisprudence are complex, the doctrine applicable in this particular case
is straightforward. "The clearest command of the Establishment Clause is
that one religious denomination cannot be officially preferred over
another." Id. at 244, 102 S.Ct. at 1683; see also Everson v. Board of
Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947) ("The
'establishment of religion' clause ... means at least this: Neither a state
nor the Federal Government can set up a church. Neither can pass laws
which aid one religion, aid all religions, or prefer one religion over
another."). When we are presented with government action "granting a
denominational preference, our precedents demand that we treat the law as
suspect and that we apply strict scrutiny in adjudging its
constitutionality." Larson, 456 U.S. at 246, 102 S.Ct. at 1684.
In the instant case, the DEA has permitted the Native American Church
to make sacramental use of a drug listed as a Schedule I controlled
substance under the Controlled Substances Act, but denied the Ethiopian
Zion Coptic Church a similar accommodation. This denominational preference
constitutes a violation of the Establishment Clause unless the DEA is able
to demonstrate that "it is justified by a compelling governmental interest
... and ...
1469
0LSEN v. DRUG ENFORCEMENT ADMIN.
Cite as 878 F.Zd 1458 (D.C. Cir. 1989)
is closely fitted to further that interest." Larson, 456 U.S. at 247, 102
S.Ct. at 1685.
The DEA asserts that it does not have the inherent authority to grant
exemptions, and that "[i]n granting the exemption for the Native American
Church, the [DEA's predecessor] relied upon the intentions of Congress in
the Controlled Substances Act for its authority." [footnote *] In the
Matter of Petition of Carl E. Olsen for the Ethiopian Zion Coptic Church,
Final Order (July 26, 1988) ("Final Order"), supra at 1466. On appeal, the
agency also implies, DEA Brief at 24, that the Native American Church is to
be distinguished not on the basis of its religious character, but on "the
sui generis legal status of American Indians" (quoting United States v.
Rush, 738 F.2d 497, 513 (lst Cir.1984)).
Neither explanation is relevant. Whatever the DEA's authority to
grant exemptions, it has in fact granted one to the Native American
Church. Furthermore, that Church's status as an indigenous faith does not
affect its religious character. As the Department of Justice's Office of
Legal Counsel wrote when reviewing the Native American Church's exemption:
[T]he special treatment of Indians under
our law does 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 na-
tions preexisting the Constitution, which
still retain a measure of inherent sover-
eignty over their peoples unless divested
by federal statute or by necessary impli-
cation of their dependent status. See
United States v. Wheeler, 435 U.S. 313,
98 S.Ct. 1079, 55 L.Ed.2d 303 (1978).
An exemption for Indian religious use
of peyote would not be grounded in the
unique political status of Indians. In-
stead, 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 viola-
tion of the Establishment Clause.
Memorandum Opinion for the Chief Counsel, Drug Enforcement Administration,
Peyote Exemption for Native American Church 403, 419 (Dec. 22, 1981),
reprinted as attachment 16 of Memorandum of Court-Appointed Amicus Curiae
in Support and on Behalf of Petitioner Carl E. Olsen (submitted to DEA on
remand) ("Amicus Memorandum").
As the United States Government unquestionably has granted the Native
American Church an accommodation that it has declined to extend to the
Ethiopian Zion Coptic Church, it has the burden of demonstrating that its
action was required by its paramount responsibility for the control of
drugs. I submit that the DEA's' explanation in its Final Order falls far
short of meeting Larson's strict scrutiny standard.
In its discussion of the issues implicated by the Establishment
Clause, the DEA finds two points of distinction between the Native American
Church and the Ethiopian
____________________
[footnote *]
It is by no means certain that the present exemp-
tion has its origin in a congressional mandate
rather than in an agency determination that it
was constitutionally required. As the DEA
notes in its brief, DEA Brief at 4-5 n. 4, the first
regulation exempting the Native American
Church's use of peyote was issued following the
enactment of the Drug Abuse Contro1 Amend-
ments of 1965. Shortly before final House ac-
tion on the bill, the Chairman of the House
Committee on Interstate and Foreign Com-
merce, Congressman Harris, introduced a letter
from the Food and Drug Administration (the
agency then concerned with drug enforcement)
in support of his recommendation that his col-
leagues accept a Senate amendment striking a
House provision exempting the sacramental use
of peyote. The letter contains the following
statement:
If the church is a bona fide religious organiza-
tion that makes sacramental use of peyote,
then it would be our view that H.R. 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.
111 Cong.Rec. 15,977-78 (1965). The House
concurred in the Senate amendment immediate-
ly thereafter. Id. at 15,778.
1470
878 FEDERAL REPORTER, 2d SERIES
Zion Coptic Church. The first turns on differences between the practices
of the two churches as they relate to the use of peyote and marijuana; the
second hinges on the differences in the law enforcement problems posed by
the two drugs.
The first distinction is addressed in a single sentence: "Mr. Olsen
has stated that the Ethiopian Zion Coptic Church advocates the continuous
use of marijuana or 'ganja', while the Native American Church's use of
peyote is isolated to specific ceremonial occasions." Final Order, supra
at 1467. The problem with this statement is that it wholly ignores the
stringent restrictions on the members' sacramental use of marijuana that
would be imposed by the terms of the limited religious exemption requested
by Olsen. See Maj. op. at 1460. The DEA later acknowledges that Olsen has
proposed limiting the use of marijuana "to specific days and specific time
periods," but dismisses the proposal because of "the large amounts of
marijuana available in this Country, and the difficulty the DEA would have
in trying to monitor compliance" with the stipulated restrictions. Final
Order, supra at 1468. Without more, I find this explanation utterly
unsatisfactory as any member of the Church found in possession of the drug
outside the limited hours and place set aside for its ceremonial use would
not be shielded by the exemption.
Moreover, the restrictions proposed by Olsen, which are similar to
those imposed by the Native American Church on the sacramental use of
peyote, clearly distinguish this case from those cited by the DEA (id. at
1467-68) and the majority (Maj. op. at 1463) to show that other circuits
have rejected comparable claims advanced on behalf of the Ethiopian Zion
Coptic Church. None of those cases involved the facts now before us: the
denial of a request for a limited, prospective exemption from the
Controlled Substances Act that the government had already granted another
denomination.
The second distinction made by the DEA, and the one that the majority
finds compelling, is the dramatic disparity between our society's abuse of
the two substances as illustrated by the fact that 19.4 pounds of peyote
were seized by the DEA between 1980---and 1987 in contrast to the
15,302,468.7 pounds of marijuana seized during the same period. Final
Order, supra at 1467. "This overwhelming difference," the DEA asserts,
"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." Id. With all respect to the DEA and
my colleagues, I must demur. The difference in pounds seized is indeed
overwhelming but, again, the explanation is not.
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. Moreover, this quantitative
justification, standing alone, is difficult to reconcile with Larson. In
that case, the Supreme Court invalidated a provision of a Minnesota statute
exempting religious organizations that receive more than fifty percent of
their funds from members ("fifty percent rule") from certain registration
and reporting requirements imposed on charitable organizations engaged in
fundraising. The practical consequence of this provision was to confer a
preference on well-established denominations. Applying strict scrutiny to
the State's justification of the preference, the Court conceded Minnesota's
compelling interest in protecting it's citizens from abusive solicitation
practices but concluded that it had failed to demonstrate that the fifty
percent rule was closely fitted to further that interest. 456 U.S. at 251,
102 S.Ct. at 1686-87.
Minnesota justified the rule on the ground that it could be assumed
that members of religious organizations exercise control over both the
internal solicitation of contributions and the expenditure of the funds
that they contribute. Id. at 248, 102 S.Ct. at 1685. The State asserted
that where these safeguards do not exist, public
1471
OLSEN v. DRUG ENFORCEMENT ADMIN.
Cite as 878 F.2d 1458 (D.C. Cir. 1989)
disclosure is necessary. Id. The Court rejected this justification for
three reasons. First, it determined that the State had failed to provide
any evidence demonstrating that members of religious organizations "will
effectively control the organization if they contribute more than half of
its solicited income," id. at 249, 102 S.Ct. at 1686 (emphasis original);
second, the State had not suppported its assumption "that membership
control is an adequate safeguard against abusive solicitations of the
public by the organization," id. at 250, 102 S.Ct. at 1686; and third, the
Court rejected a premise behind the fifty percent rule that the need for
public disclosure corresponds to the percentage of nonmember contributions.
Id. at 251, 102 S.Ct. at 1686-87.
The Supreme Court's detailed scrutiny of Minnesota's justification of
the fifty percent rule underscores the superficiality of the DEA's
Justification of its denominational preference in this case. The DEA
offers no reason why it could not have tailored a closer fit than its out-
of-hand denial of the requested exemption. The DEA finds no difficulty in
monitoring the compliance by the more than 250,000 members of the Native
American Church with the limited use of peyote permitted for ceremonial
purposes, and the majority offers good reasons why this should be so. Maj.
op. at 1464. Yet the only reason the agency gives for concluding that
monitoring compliance by the estimated one to two hundred communicants of
the Ethiopian Zion Coptic Church living in the United States (Amicus
Memorandum at 11) should be more difficult is that our streets are awash in
marijuana. Without further explanation, I find this reasoning less than
compelling. As in the case of the Native American Church, the exemption
would place no restriction on the ageney's normal enforcement activities
beyond the parameters of the Church's place of worship during the limited
number of hours in which the sacramental use of marijuana would be
permitted.
The majority notes a significant problem the DEA might face if it were
to grant Olsen's request:
Were the DEA to consider a marijuana
exemption, equal protection (and/or the
establishment clause ...) would indeed
appear to command that it do so even-
handedly. The DEA would have no war-
rant to contain the exemption to a single
church or religion.
Maj. op. at 1464 (citations omitted). I find the majority's "opening the
floodgate" argument more persuasive than anything the DEA has offered. It
is for the agency, however, to make the argument and to explain why it
would find itself unable to cope with the flood of similar applications,
not for us to speculate about them.
Finally, the majority supports the denial of the exemption to Olsen by
arguing that
Even if we were to credit Olsen's equal
protection argument or the dissent's por-
trayal of it in terms of the establishment
clause, the remedy Olsen requests hardly
follows. Faced with the choice between
invalidation and extension of any con-
trolled-substances religious exemption,
which would the political branches
choose? It would take a court bolder
than this one to predict, as our dissenting
colleague appears to suggest, that exten-
sion, not invalidation, would be the prob-
able choice.
Maj. op. at 1464. I have two responses. First, the Supreme Court has
consistently recognized that conceptual problems regarding appropriate
remedial actions do not relieve us of our obligation to review government
classifications that are impermissibly underinclusive. See, e.g., Arkansas
Writer's Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d
209 (1987) (finding Arkansas statute unconstitutionally underinclusive).
Second, we would not be called upon to make the choice the majority
describes if, as I believe appropriate, we were to remand the case to the
DEA for further consideration in light of its Establishment Clause
implications.
IV.
The DEA has chosen to accommodate one religion but not another. The
Establishment Clause compels the agency to justify its distinction and
requires us to scrutinize the agency's rationale strictly. Given this
demanding standard of review, I must
1472
878 FEDERAL REPORTER, 2d SERIES
conclude that the agency has failed to satisfy its burden. Accordingly, I
would grant Olsen's petition for review and remand to the agency for
reconsideration without reaching Olsen's Free Exercise challenge.