IV. THE COURT OF APPEALS DECISION VIOLATES THE CONSTITUTION
The establishment clause prohibits both the state and federal
government from passing laws which prefer one religion over another.
[footnote 141] Whether one adheres to the "broad" interpretation of the
establishment clause or the "narrower" interpretation, all scholars agree
that the establishment clause was meant by the framers to prevent the
government from bestowing a preference on one religion; [footnote 142]
and, as such, to protect the "small, new, or unpopular denominations"
[footnote 143] from "subtle departures from neutrality, 'religious
gerrymanders,' as well as
____________________
"denominational preference" is conferred by governmental action. Amicus
Certiorari Petition, Dec. 13, 1989, at 9-14 (citing Larson v. Valente,
456 U.S. 228 (1982)). Moreover, Amicus argued that confusion surrounding
the definition of "denominational preference" was arising, and courts
needed guidance on when strict scrutiny should be applied. Id. at 15-22.
In response, the government asserted that no free exercise,
establishment, or equal protection rights had been violated because
"DEA's exemption for religious peyote use in 21 C.F.R. § 1307.31 applies
equally to all bona fide religious groups." Respondent's Opposition To
Petition For Writ Of Certiorari, Feb. 1990, at 9. As a result, no
denominational preference was created and the Lemon test as opposed to
strict scrutiny was applicable. Id. at 10. Moreover, the government
argued that the DEA's "considered professional judgment" concerning the
burden of monitoring the exemption should not be questioned. Id. at 12.
[footnote 141] Everson v Board of Educ., 330 U.S. 1, 15 (1946).
Before the fourteenth amendment was passed, some states persisted in
discriminating against particular religions. Id. at 13-14 & n.17. In
North Carolina, test provisions required that officeholders believe in
the Protestant religion, and Maryland permitted taxation for the support
of Christian religion and limited civil office to Christians. Id. at 14
& n.17.
[footnote 142] Thomas J. Curry, The First Freedoms 204-09 (1986).
The church/state scholars differ as to how much government accommodation
of religion was intended by the framers and early interpreters of the
Constitution. Id.
[footnote 143] Larson, 456 U.S. at 244-45.
36
obvious abuses. [footnote 144] The EZCC is small, new to this country,
and unpopular. [footnote 145] As a result, the EZCC has been denied even
the narrowest exemption for its sacrament while the NAC enjoys an
unlimited exemption for peyote.
A. Comparing The Two Exemptions
The majority stated that Olsen had proposed an exemption identical
to the one accorded to the NAC. [footnote 146] This is not true.
Olsen's proposed exemption is very narrow, restricting the sacramental
use of marijuana to three hours, one day per week. [footnote 147] The
exemption states that once the three hour worship service has finished,
members may not leave the place where the ceremony was conducted for
eight additional hours. The exemption specifically prohibits members
from driving or going out in public during that post-worship period.
Only EZCC members who are of the age of majority may participate in the
service and "membership" is
____________________
[footnote 144] Gillette v. United States, 401 U.S. 437, 452 (1971)
(citations omitted).
[footnote 145] The total denial of an exemption to the EZCC has had
tragic results for the members. The EZCC has publicly stated:
Through ... the police force, the church has been
severely harassed, victimized and discriminated
against. Our members have passed through several acts
of police brutality, our legal properties maliciously
destroyed, members falsely imprisoned, divine services
broken up, and all these atrocities performed upon the
Church, under the name of political laws and their
justice.
1 The Coptic World, Dec. 19, 1987, at 8. As the Court in Larson
explained, the free exercise clause and the establishment clause work in
close conjunction, the guarantees of one reinforcing the guarantees of
the other. Larson, 456 U.S. at 244-45.
[footnote 146] 878 F.2d at 1464.
[footnote 147] See supra notes 94-96 and accompanying text.
37
strictly construed. [footnote 148]
While the majority described the NAC exemption as "tightly-cabined,"
[footnote 149] nothing could be further from the truth. The NAC
exemption is unlimited; it states that "Schedule I does not apply to the
nondrug use of peyote in bona fide religious ceremonies of the Native
American Church." [footnote 150] The only benefit strictly limited to
"members" is a waiver of the registration requirement if the member
manufactures or distributes peyote to the NAC. [footnote 151] Other than
that, the exemption does not limit participation in the peyote ceremony
to church members or people of majority, nor does it restrict driving or
even suggest a detoxification period. Given the lack of any consensus on
the meaning of "Native American Church," either among Native Americans or
by those outside of the Church, and the widely diverging views on how the
religious ceremony is to be conducted, [footnote 152] the peyote
exemption is very broad, indeed.
The majority was quite concerned with how rigidly membership was
enforced in the EZCC and whether membership was required before one was
allowed to participate in the sacrament. [footnote 153] But the majority
failed to note that the NAC exemption is not limited
____________________
[footnote 148] See supra notes 49-50, 94-96 and accompanying text.
[footnote 149] 878 F.2d at 1463.
[footnote 150] See supra note 39 and accompanying text.
[footnote 151] Id.
[footnote 152] See supra notes 8-10 and accompanying text.
[footnote 153] 878 F.2d at 1462.
38
to members; moreover, membership in the NAC has no prerequisites nor is
there any consensus within the NAC as to what even constitutes a member.
[footnote 154]
B. Comparing the Law Enforcement Problems
The majority stated that it based its "decision on the immensity of
the marijuana control problem." [footnote 155] But under a strict
scrutiny analysis, this statement becomes less persuasive. [footnote 156]
Thirty-three states have enacted some type of legislation which
recognizes that marijuana has valid medicinal uses. [footnote 157] These
states have not found that an immense "marijuana control problem"
presents any barrier to creating limited marijuana exemptions. In light
of the fact that the federal
____________________
[footnote 154] See supra notes 18-20 and accompanying text. As
noted above, the NAC has no written membership rolls. Id. Marriott has
stated that a list of NAC members would be almost impossible to gather.
A. Marriott, supra note 9, at 105-09.
[footnote 155] 878 F.2d at 1464.
[footnote 156] Since Larson, there can be no doubt that the Supreme
court requires the application of strict scrutiny when the government
grants a denominational preference. See County of Allegheny v. ACLU, 109
S. Ct. 3086, 3090, 3109 (1989) (strict scrutiny is required for practices
suggesting denominational preference); Hernandez v. Commissioner of
Internal Revenue, 109 S. Ct. 2136, 2139, 2142, 2146 (1989) (claim of
denominational preference, which would require strict scrutiny,
necessitates an initial inquiry of whether the law facially
differentiates among religions); Lynch v. Donnelly, 465 U.S. 668, 697,
699 (1984) (law granting a denominational preference must be reviewed
under a strict scrutiny analysis).
[footnote 150] ACT, "Cannabis & Medicine," at 4. These states
include: Alabama, Arizona, Arkansas, California, Colorado, Connecticut,
Florida, Georgia, Illinois, Iowa, Louisiana, Maine, Michigan, Minnesota,
Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina,
Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, and
Wisconsin. Id.
39
government dispenses marijuana for medical uses, [footnote 158] and that
five people in America have federal permission to use marijuana to help
with chronic ailments, [footnote 159] the arguments that marijuana poses
serious health risks and has no acceptable safety use are highly suspect.
[footnote 160] Moreover, the majority accepted without question the DEA
data about abuse, availability, and demand instead of examining marijuana
in terms of current trends.
The DEA set forth statistics regarding the amounts of marijuana
seized between 1980-1987. [footnote 161] Yet a breakdown of these
statistics year by year establishes that the use of marijuana has been
steadily decreasing since 1979. Many people assert that both production
and consumption of marijuana in the country is on the decrease, [footnote
163] and that any threat posed by marijuana is
____________________
[footnote 158] See supra notes 86-91, 104-06 and accompanying text.
Administrative Law Judge Francis Young concluded after two years of
hearings that marijuana has an accepted medical use in the treatment of
chemotherapy and in the treatment of multiple sclerosis, spasticity, and
hyperparathyroidism. In re marijuana Rescheduling Petition, No. 86-22,
at 34, 54-55 (Sept. 6, 1988).
[footnote 159] Of the five Americans who have federal permission to
smoke marijuana in the U.S., three of them do so for the treatment of
glaucoma. UPI, Apr. 13, 1990. In one such case, Elvy Musikka was
arrested for growing marijuana in her home; a judge acquitted her, ruling
that marijuana would save her eyesight. She now receives pot from a
federal farm in Mississippi. Id.
[footnote 160] See supra notes 29-30 and accompanying text.
[footnote 161] 878 F.2d at 1463.
[footnote 162] U.S. Dep't of Health & Human Serv., Press Release
No. RP0729, at 3 & marijuana graph showing annual usage from 1972-
1990 (Dec. 19, 1990).
[footnote 163] Los Angeles Times, Sept. 16, 1990, at 6, col. 3.
40
waning. [footnote 164] Indeed, when casual possession of marijuana was
decriminalized in California in 1976 (those caught with an ounce or less
paid fines similar to that of a traffic ticket), marijuana "fell out of
fashion.... Polls taken over the last 10 years show marijuana use down
as much as 50 percent." [footnote 165] The fact that Alaska, the only
state where marijuana possession was legal, recently voted to re-
criminalize it and other similar trends, [footnote 166] calls into
question the continued vitality of marijuana's allure. Whether marijuana
is decriminalized or recriminalized, the population appears less and less
interested in pursuing its use. These types of changes in attitudes
about marijuana make "the job of law enforcement so much easier,"
[footnote 167] and cast some doubt not only on the DEA's complaints
concerning marijuana control problems in general but more specifically
the
____________________
[footnote 164] Police and communities want to designate police
resources to more serious crimes. USA Today, Sept. 4, 1990, at 9A
(regarding rally where pot was smoked openly, police stated that justice
system has more important crimes to worry about). In July, residents of
Berkeley ignored a signature drive to repeal a 1979 marijuana ordinance
which, "in effect, orders Berkeley's police force to make marijuana
enforcement its lowest priority item." PR Newswire, July 13, 1990.
[footnote 165] Washington Times, Sept. 11, 1990, at A3.
Californians believe that the interest in pot would have decreased
regardless of the decriminalization. Id.
[footnote 166] Washington Post, Nov. 8, 1990, at A45. Young people
all over the country have lost interest in decriminalizing marijuana; in
a survey of college freshmen in 1977, 53% favored legalization; in 1990,
17% favored legalization. PR Newswire, Oct. 31, 1990. The ABA's House
of Delegates voted to nullify the 1973 policy advocating
decriminalization of marijuana. 76 A.B.A. J. 105 (1990).
[footnote 167] Washington Times, Sept. 11, 1990, at A3.
41
monitoring burden the DEA states would accompany the EZCC exemption. In
addition, it simply defies logic that a church with a membership of
250,000 to 300,000 people would be easier to monitor than a church with a
membership of one-hundred to two-hundred people. Olsen agreed to provide
a list of member names and places of worship. Under the NAC exemption,
however, the DEA has no idea where or when ceremonies will take place or
who will be participating. This would appear to make monitoring
exponentially more difficult. Nonetheless, monitoring the NAC exemption,
apparently, has not imposed a burden on the DEA. Nor does it seem likely
that monitoring the limited EZCC exemption would be significant.
C. Comparing the Churches' Rituals
The NAC ritual which involves an all night service perhaps once a
week, [footnote 168] is more acceptable in the court's view than the EZCC
ritual which traditionally is a daily observance. The majority's concern
about the EZCC's regular use of its sacrament seems to state a clear
preference for religions that engage sparingly in the use of their
sacrament. [footnote 169] The Catholic Church offers the holy sacrament
for ingestion at every worship service (mass), and members are free to
engage in worship on a daily
____________________
[footnote 168] Participants gather at sunset and ingest peyote all
through the night. A. Marriott, supra note 9, at 76.
[footnote 169] 878 F.2d at 1464.
42
basis, if not more. [footnote 170] On the other hand, many Protestant
denominations offer the holy sacrament once a month, or less. [footnote
171] Speaking in terms of one's religious tradition, how often one
partakes of holy communion should not be a basis upon which one church
receives an exemption and another church does not. The EZCC ritual is
more akin to the lifestyle of a religious order living in community where
communion might be celebrated at various times throughout the day. The
majority found it significant that EZCC members were allowed to ingest
their sacrament outside of the confines of the church facility.
[footnote 172] This concern again seems to be placing an unfair premium
on certain types of rituals. The Protestant and Catholic Churches of
America celebrate and distribute their sacrament in shopping malls,
[footnote 173] parking lots, [footnote 174] buses, [footnote 175]
hospitals, [footnote 176] parks, [footnote 177] homes; [footnote 178] in
fact there is no place where
____________________
[footnote 170] See The New Encyclopaedia Britannica 588 (1987); M.
B. Pennington, The Eucharist Yesterday & Today xi (1984); J. Emminghaus,
The Eucharist: Essence, Form, Celebration xx, 95, 101 (1978).
[footnote 171] See James F. White, Protestant Worship: Traditions
in Transition 14, 56, 67, 87, 90, 110, 131, 155, 175, 186, 187, 200, 211-
12 (1989).
[footnote 172] 878 F.2d at 1462.
[footnote 173] See Los Angeles Times, Mar. 16, 1986, at 1, col. 1.
[footnote 174] See Los Angeles Times, Jan. 20, 1990, at 14, col. 1;
Los Angeles Times, Mar. 27, 1989, at 1, col. 2; Los Angeles Times, Mar.
25, 1985, at 1, col. 5.
[footnote 175] See Los Angeles Times, Aug. 19, 1989, at 7, col 3.
[footnote 176] See J. White, supra note 171, at 261-68.
43
the sacrament cannot be celebrated. Furthermore, finding it significant
that ingestion of the sacrament be limited to the confines of a "church
facility" appears suspect when it is not at all clear that the NAC even
has the functional equivalent of a "church facility." [footnote 179]
The majority dispensed with Olsen's proposed exemption by stating
that "'narrow' use, concededly, is not his religion's tradition."
[footnote 180] The court cannot in good faith use the tradition of the
EZCC as a basis for suggesting that the exemption will not be adhered to.
Whether an exemption tracks a religious tradition or not is irrelevant,
has never been the law, and should not be used to circumvent a religious
group's proposal to compromise. Accepting the EZCC's offer to modify its
traditions rather than resorting to total ban on the religion's sacrament
would seem to serve the government's best interest. Given the choice
between an unlimited drug exemption for a church which is loosely knit
together with few checks on behavior [footnote 181] and a narrowly drawn
exemption which incorporates many checks on behavior for a church that
nonetheless has not traditionally restricted its sacrament, the latter
seems preferable.
____________________
[footnote 177] See O'Hair v. Andrus, 613 F.2d 931 (D.C. Cir. 1979).
[footnote 178] See J. White, supra note 171, at 88.
[footnote 179] See Woody, 61 Cal. 2d at 721, 40 Cal. Rptr. at 73,
394 P.2d at 817 (meeting convenes in enclosure); A. Marriott, supra note
9, at 39-47, 69.
[footnote 180] 878 F.2d at 1464.
[footnote 180] See A. Marriott, supra note 9, at 81, 105-09.
44
The majority noted "further distinctions" between the rituals of the
two religions:
1) the peyote exemption was accorded for a traditional,
precisely circumscribed ritual;
2) peyote is an object of worship;
3) for the NAC, use of peyote outside of the ritual is
sacrilegious; and
4) the NAC, for all practical purposes, "reinforces"
the state's prohibition. [footnote 182]
First, marijuana is a traditional ritual for the EZCC. [footnote 183]
Moreover, the NAC's "precisely circumscribed ritual" lasts at least
twelve hours, while the EZCC proposal would limit the service to three
hours. [footnote 184] The peyote ceremony has myriad manifestations, and
there is no prohibition on how often one might participate in a NAC
ceremony--while Olsen has limited participation in the EZCC sacrament to
one night per week, and it is always the same night. [footnote 185]
Second, the DEA has conceded in its briefs that marijuana for the EZCC is
an object of worship. [footnote 186] Third, for the EZCC, use of
marijuana outside of the ritual is sacrilegious: "The
____________________
[footnote 182] 878 F.2d at 1464.
[footnote 183] See supra notes 51-53 and accompanying text.
[footnote 184] See supra notes 13, 94-96 and accompanying text.
[footnote 185] See supra notes 8-10, 39, 94-96 and accompanying
text.
[footnote 186] 878 F.2d at 1460; see also Government Brief, Oct. 6,
1986, at 7 (citing Town v. State ex rel. Reno, 377 So.2d 648, 650 (Fla.
1979) (EZCC represents a centuries old religion within the first
amendment and the use of cannabis is an essential portion of the
religious practice), app. dismissed and cert. denied, 449 U.S. 803
(1980)).
45
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).
46
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.
47
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.
48
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).
49
clause. [footnote 201]
V. CONCLUSION
Congress and the DEA have accorded a sacramental drug exemption to
Native Americans regarding peyote. [footnote 202] The EZCC has tried for
years to obtain a similar exemption regarding marijuana. [footnote 203]
This past June, the Supreme Court denied certiorari to the District of
Columbia Court of Appeals decision denying the EZCC a sacramental drug
exemption similar to that held by the NAC. [footnote 204]
The court of appeals decision to deny an exemption to the EZCC
violates the establishment clause of the U.S. Constitution. [footnote
205] The court's reliance on the DEA's statement that it has greater law
enforcement control problems with marijuana will not satisfy an
application of strict scrutiny. The DEA must explain why a very narrow
exemption extended to one-hundred to two-hundred people would undermine
its interest in preventing drug abuse when an unlimited exemption for
peyote extended to 300,000 to 400,000 people does not. [footnote 206]
Additionally, there must be a forthright analysis of the current trends
regarding the public's abuse of marijuana and the growing body of
____________________
[footnote 201] See supra notes 141-44 and accompanying text.
[footnote 202] See supra notes 36-39 and accompanying text.
[footnote 203] See supra notes 61-62 and accompanying text.
[footnote 204] See supra note 1 and accompanying text.
[footnote 205] See supra notes 141-201 and accompanying text.
[footnote 206] See supra notes 155-67 and accompanying text.
50
information concerning marijuana's use for medicinal purposes. [footnote
207]
The court set forth various aspects of the NAC which made it
particularly well suited for an exemption, and then failed to recognize
that the EZCC has demonstrated significant similarity to the NAC
regarding these aspects. [footnote 208] For example, the EZCC views the
recreational use of its sacrament as sacrilegious, has much stricter
controls on its membership, and regards marijuana as a deity as does the
NAC concerning peyote. [footnote 209] Additionally, as a result of its
proposed exemption, the EZCC would exercise much greater control over its
ceremony than the NAC. [footnote 210]
The EZCC is being denied a benefit accorded to another church
because of its ritual, its traditions, because it is not indigenous, and
because of the abuse of its sacrament by others. The EZCC has proposed
to modify its tradition and ritual, to adhere to practices which are much
more restrictive than those of the NAC, and to help with monitoring
problems, to no avail. [footnote 211] The reasons for the denial appear
to flow from the fact that the EZCC is a relatively new religion to this
country, of black origins, small, and unpopular. [footnote 212] The
establishment clause was specifically written to protect these very types
of religions
____________________
[footnote 207] See supra notes 155-67, 191-96 and accompanying
text.
[footnote 208] See supra notes 122-23 and accompanying text.
[footnote 209] See supra notes 183-90 and accompanying text.
[footnote 210] See supra notes 146-54 and accompanying text.
[footnote 211] See supra notes 1, 94-96, 117 and accompanying text.
[footnote 212] See supra notes 40-60, 145 and accompanying text.
51
from being denied benefits extended to more politically popular
religious groups. [footnote 213]
____________________
[footnote 213] See supra notes 141-44 and accompanying text.
52