composes the cornerstone of the peyote religion.'" [footnote 83]  The 

Leary court continued: 

     The exemption accorded the use of peyote in the limited 
     bona fide religious ceremonies of the relatively small, 
     unknown Native American Church is clearly 
     distinguishable from the private and personal use of 
     marijuana by any person who claims he is using it as a 
     religious practice. [footnote 84] 

     B.  Amicus is Appointed to Represent Olsen 

     The Court of Appeals appointed amicus curiae for Olsen. [footnote 

85]  Amicus filed a brief discussing other marijuana exemptions extended 

by the federal government. [footnote 86]  Since the late 1960s, the 

government has been involved in growing, processing, and distributing 

marijuana to registered persons and entities. [footnote 87]  That program 

is administered by the National institute on Drug Abuse ("NIDA"), which 

has contracted with the University of Mississippi to grow marijuana; NIDA 

processes the marijuana and 

     [footnote 83]  Leary, 383 F.2d at 861.  Seventeen years later, the 
Fifth Circuit again distinguished Leary from other religious drug use 
cases.  Deciding that the Peyote Way Church of God would be entitled to 
the peyote exemption if it could establish that it was a bona fide 
religion, the court stated that Leary had not established that marijuana 
played a central role in the ceremony and practice of the church, and 
Leary sought unrestricted freedom to possess and use marijuana in any 
manner.  Peyote Way Church of God v. Smith, 742 F.2d 193, 200 (5th Cir. 
1984) (emphasis added). 

     [footnote 84]  Id. at 861 n.11 (emphasis added). 

     [footnote 85]  Judges Wald, Mikva, and Edwards issued an order 
appointing William Bradford and Steven Routh of the D.C. law firm, Hogan 
and Hartson.  Olsen v. DEA, No. 86-1442, Court Order, Feb. 11 1988. 

     [footnote 86]  Amicus Brief, Mar. 24, 1988, at 7-9, 21. 

     [footnote 87]  Id. at 7-9. 


provides it to researchers and medical treatment programs. [footnote 88] 

A number of marijuana exemptions have been issued to state governments 

which supervise local distribution of NIDA marijuana primarily for use in 

programs to lessen the negative side-effects of chemotherapy and to treat 

glaucoma. [footnote 89]  In the years between 1978 and 1987, NIDA has 

authorized and overseen the distribution of 477,507 cigarettes for human 

consumption. [footnote 90]  "(Clearly,] some limited level of marijuana 

use is not inconsistent with the government's" goals. [footnote 91] 

     C.  Remand to the DEA 

     The government petitioned the court of appeals to remand the case to 

the DEA so that it could "explain more fully the basis for its 

dDecision." [footnote 92]  The court denied the motion; then, changing 

its mind six days later, the court issued an order remanding the case to 

the DEA. [footnote 93] 

     Amicus submitted a memorandum with supporting documents to 

     [footnote 88]  Id. at 7-8. 

     [footnote 89]  Id. at 8. 

     [footnote 90]  Id. at 9. 

     [footnote 91]  Id. at 21.  Distinguishing the free exercise cases 
relied upon by the government, Amicus argued that granting broad after 
the fact exemptions once a defendant has been arrested for drug abuse is 
quite different from working to find a measured response to a prospective 
request for authorization.  Id. at 23. 

     [footnote 92]  Respondent's Motion For Remand To The Agency, Apr. 7, 
1988, at 2. 

     [footnote 93]  The panel consisted of Judges Edwards, Starr, and 
Weigel; Judge Stanley A. Weigel is a senior U.S. district judge for the 
Northern District of California.  Olsen v. DEA, No. 86-1442, Court 
Orders, Apr. 15, 1988, and Apr. 21, 1988. 


the DEA wherein Olsen withdrew the language of his prior exemption 

[footnote 94] and proposed the following exemption: 

     1.  [EZCC] 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.; 

     2.  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 otherwise go out in public; 

     3.  Ingestion of marijuana would be limited to Church 
     members who had reached the age of majority, according 
     to the laws of the state in which the ceremony takes 
     place; and 

     4.  Ingestion of marijuana would be limited to full 
     Church members who had undergone the confession 
     ritual [footnote 95] for entering the Church's 
     community. [footnote 96] 

     Turning to the substantive arguments, Amicus stated that contrary to 

the position espoused by the government, the legislative history of the 

American Indian Religious Freedom Act of 1978 ("AIRFA"), [footnote 97] 

did not support the argument that Congress 

     [footnote 94]  See supra note 61. 

     [footnote 95]  See supra notes 49-50 and accompanying text. 

     [footnote 96]  Amicus Memo Before DEA, July 1988, at 29-30.  Olsen 
stated that he was willing to work out any details or arrangements with 
the DEA that would facilitate mutual agreement on the exemption and its 
logistics.  Id. 

     [footnote 97]  AIRFA provides in pertinent part: 
     Whereas the traditional American Indian religions, as 
     an integral part of Indian life, are indispensable and 

     be it 
     Resolved by the Senate and House of Representatives of 
     the United States of America in Congress assembled, 
     That henceforth it shall be the policy of the United 
     States to protect and preserve for American Indians 
     their inherent right of freedom to believe, express, 
     and exercise the traditional religions of the American 


specifically intended to limit the peyote exemption to the NAC; instead, 

Congress recognized that preferential treatment of the NAC would run 

afoul of the establishment clause. [footnote 98]  Indeed, an attorney for 

the Justice Department advised the Senate Select Committee on Indian 

Affairs that granting preferential treatment to Native American religions 

would be unconstitutional. [footnote 99]  In 

     Indian, Eskimo, Aleut, and Native Hawaiians, including 
     but not limited to access to sites, use and possession 
     of sacred objects, and the freedom to worship through 
     ceremonials and traditional rites. 
American Indian Religious Freedom Act of 1978, Pub. L. No. 95-341, 92 
Stat. 469 (1978). 

     [footnote 98]  Amicus Memo Before DEA, at 21-23.  In the Senate 
Select Committee on Indian Affairs Hearing on AIRFA the following 
statements were reported: 
     The clear intent of this section is to insure for 
     traditional native religions the same rights of free 
     exercise enjoyed by more powerful religions.  However, 
     it is in no way intended to provide Indian religions 
     with a more favorable status than other religions, only 
     to insure that the U.S. Government treats them equally. 
Id. App. 11, at 6 (Sen. Rep. No. 95-709, 95th Cong., 2d Sess. 6 (1978)).  
Other pertinent statements include: 
     [D]irect Federal interference in the religious 
     ceremonies imposes upon one religion, by Government 
     action, the values of another.  Such action is a direct 
     threat to the foundation of religious freedom in 
     America.  It comes far too close to an informal state 
                        * * * * 
     There is room for and great value in cultural and 
     religious diversity. 
                        * * * * 
     [B]ecause Indian religious practices are different 
     ...they somehow do not have the same status as a 'real' 
Id. App. 11, at 4-5 (Sen. Rep. No. 95-709, 95th Cong., 2d Sess. 4-5 

     [footnote 99]  The legislative history of AIRFA indicates that the 
original Senate resolution contained language giving preferential 
treatment to Native American religions.  Id. at 23-24 & App. 11, at 10.  
The Department of Justice attorney gave the same advice regarding the 
establishment clause violation to Counsel to the 


response, the Senate redrafted its resolution to make "absolutely clear 

that AIRFA directed government agencies simply to ensure that Indian 

religions enjoyed the same guarantee of 'freedom of religion for all 

people' that is required by the First Amendment." [footnote 100]  When 

the Department of Justice informed the administration that it did not 

object to the President's signing of AIRFA, it made specific mention of 

the fact that Congress had incorporated the Department of Justice's 

position that a preference for Native American religions could not be 

extended without violating the establishment clause. [footnote 101] 

Furthermore, DEA attorneys concurred in the remarks made by the Justice 

Department, writing, in a memo commenting on the Justice Department's 

position, that "no line can be drawn between religions claiming a bona 

fide use of drugs." [footnote 102]  In 1981, the office of Legal Counsel 

("OLC"), published a memorandum opinion for the Chief Counsel of the DEA, 

stating that "Indian religion cannot be treated differently than other 

religions similarly situated without violation of the Establishment 

Clause." [footnote 97] 

President.  Id. at 24 & App. 12 (Memorandum for Hon. R.J. Lipshutz, Mar. 
10, 1978, at 3). 

     [footnote 100]  Id. at 24 (quoting Pub. L. No. 95-341 1978). 

     [footnote 101]  Id. at 24 & App. 13 (Pat Wald, Assist. Atty. Gen., 
Office of Legal Affairs, Letter to Honorable McIntyre). 

     [footnote 102]  Id. at 24 & App. 14, at 5 (Harry L. Myers, DEA  
Memorandum on the OLC's Comment on the Peyote Exemption, Feb. 28, 1979). 

     [footnote 103]  Id. at 25.  The Assistant Attorney General for the 
OLC stated in full: 
     [T]he special treatment of Indians under our law does 


     Finally, Amicus seriously questioned whether a first amendment claim 

could be denied on the basis of health concerns. [footnote 104]  The 

"agency's sanctioning of marijuana use by hundreds of persons involved in 

registered medical and research programs strongly suggests that marijuana 

use is not in all instances detrimental to an individuals health and 

psychological well-being." [footnote 105]  Nor has the NIDA program or 

the peyote exemption undermined public respect for the CSA. [footnote 


     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 nations preexisting the 
     Constitution, which still retain a measure of inherent 
     sovereignty over their peoples unless divested by 
     federal statute or by necessary implication of their 
     dependent status. 
     An exemption for Indian religious use of peyote would 
     not be grounded in the unique political status of 
     Indians.  Instead, 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 
     violation of the Establishment Clause. 
Memorandum Opinion for the Chief Counsel, DEA, Dec. 22, 1981, at 403, 420 
(citation and footnote omitted), appended to Amicus Memo Before DEA, App. 

     [footnote 104]  Amicus Memo Before DEA at 32-33.  Amicus quoted 
Lawrence Tribe as stating that the government is in effect: 
     telling the individual that it knows what is best for 
     his body and mind.  Surely the individual may respond, 
     "I know what is best for my soul."  To allow the 
     government thus to impose the World of the Flesh upon 
     the World of the Spirit seems an overwhelming 
     abridgement of religious freedom. 
Id. at 32.  (quoting L. Tribe, American Constitutional Law 1269-70 (2d 
ed. 1988)). 

     [footnote 105]  Id. at 32. 

     [footnote 106]  Id. at 32-33. 


     The government responded to Olsen's proposed EZCC exemption 

by stating that: 

     such restrictions could not be monitored or enforced 
     without significant intrusion by the Government into 
     the religious practices of the Church.  The monitoring 
     of such restrictions would be extremely burdensome on 
     an agency which is charged with enforcement of a very 
     comprehensive drug law. [footnote 107] 

     D.  The DEA Denies the Exemption 

     In a nine page decision, John Lawn denied the EZCC an exemption for 

the religious use of marijuana. [footnote 108]  Citing Leary, [footnote 

109] in addition to other cases, [footnote 110] the Administrator 

asserted that the EZCC had no free exercise right to use marijuana; 

moreover, it did not enjoy an "equal protection" right to an exemption 

because the EZCC "advocates the continuous use of marijuana or 'ganja', 

while the Native American Church's use of 

     [footnote 107]  Government Memorandum Before DEA, at 17.  Indeed, 
the government asserted that if the EZCC were granted its exemption, many 
of today's buyers and sellers would "find religion."  Government Brief 
Before CTA, Jan. 4, 1989, at 22.  Additionally, there would be no way to 
enforce the Saturday night exemption proposed by Olsen short of constant 
surveillance, requiring "Herculean efforts."  Id.  Amicus responded that 
it would be highly unlikely that large numbers of illegal drug users 
would come forward and identify themselves to the DEA hoping to obtain a 
religious drug exemption.  Amicus Reply Brief, Jan. 23, 1989, at 16. 

     [footnote 108]  DEA's Final Order, July 26, 1988, at 2. 

     [footnote 109]  383 F.2d 851 (5th Cir. 1971), rev'd on other 
grounds, 395 U.S. 6 (1969). 

     [footnote 110]  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 (lst Cir. 1984), cert. denied, 471 U.S. 1120 
(1985); Olsen v. Iowa, 808 F.2d 652 (8th Cir. 1986). 


peyote is isolated to specific ceremonial occasions." [footnote 111]  The 

Administrator further distinguished marijuana from peyote stating that 

"the actual abuse and availability of marijuana in the United States is 

many times more pervasive in American society than that of peyote." 

[footnote 112]  Substantiating this claim, the Administrator stated that 

between 1980 and 1987, the DEA seized 19.4 pounds of peyote as compared 

to 15,302,468.7 pounds of marijuana. [footnote 113] 

     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....  If 
     Mr. Olsen's assertions that the Ethiopian Zion Coptic 
     Church in the United States has never had, "more than 
     between 100 and 200 members in this country," 20 tons 
     of marijuana would be an outrageous quantity to supply 
     their religious needs. [footnote 114] 

     Specifically addressing olsen's proposed exemption, the 

Administrator determined that the large quantity of marijuana in this 

country would make monitoring compliance very difficult and would make 

accommodation impractical. [footnote 115]  Olsen challenged the 

     [footnote 111]  DEA's Final Order, July 26, 1988, at 6-7. 

     [footnote 112]  Id. at 7-8. 

     [footnote 113]  Id. at 8. 

     [footnote 114]  Id. (citation omitted). 

     [footnote 115]  Id. at 8-9. 


DEA's final order, requesting review by the court of appeals. [footnote 


     E.  The Court of Appeals Denies the Exemption 

     1.  The Majority 

     In June of 1989, the court of appeals, over a strongly worded 

dissent by Judge Buckley, denied Olsen both a free exercise right and an 

"equal protection-establishment clause" right to a religious-use 

exemption. [footnote 117]  Regarding Olsen's proposal, the majority found 

that because EZCC members were allowed to use marijuana "every day 

throughout the day," the proposal would not be "self-enforcing" and would 

require "burdensome and constant official supervision and management." 

[footnote 118]  Concerned with the EZCC's lack of stringent control over 

the sacramental use of marijuana in the past, the court noted that the 

"church's '[c]hecks on distribution of cannabis to 

     [footnote 116]  Olsen v. DEA, No. 86-1442, Motion To Establish 
Schedule For Briefing And Argument, Aug. 10, 1988.  Relying for the most 
part on its prior filings, Amicus argued that complete rejection of a 
marijuana exemption would violate both the establishment clause and the 
free exercise clause.  See Amicus Supplemental Brief, Dec. 1, 1988; 
Amicus Reply Brief, Jan 23, 1989. 

     [footnote 117]  Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989).  The 
case was argued before Circuit Judges Bader Ginsburg, Silberman, and 
Buckley.  Amicus was asked if he knew of any decisions where courts had 
held that the free exercise clause required government accommodation of 
religiously motivated conduct despite the government's position that 
accommodation posed a significant health risk.  In a subsequent letter to 
the court, counsel cited cases wherein people had been allowed to refuse 
medical treatment for religious reasons despite the state interest in 
preserving the health of	or even the life of the individual.  Amicus 
Letter to Court, Feb. 13, 1989, at 1-2.  In addition, Amicus cited the 
line of cases where state courts had found that a free exercise exemption 
for peyote was mandated despite the undisputed health risks.  Id. at 2. 

     [footnote 118]  878 F.2d at 1462. 


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." [footnote 119]  Reviewing the 

"establishment clause-equal protection challenge," the court accorded 

great deference to the DEA and found that the EZCC is not similarly 

situated to the NAC, [footnote 120] because of the vast differences 

between peyote and marijuana regarding their demand, abuse, and 

availability. [footnote 121]  Resting its decision upon the "immensity of 

the marijuana control problem in the United States," the court refused to 

find an establishment clause violation and pointed out additional 

distinctions between the two religions: 

     1)  The peyote ritual is a traditional, precisely 
         circumscribed ritual; 

     2)  Peyote is itself an object of worship; 

     3)  Use of peyote outside of the ritual is sacrilegious 
         for the NAC; and 

     4)  The NAC, for all practical purposes other than the 
         special stylized ceremony, reinforces the state's 

     [footnote 119]  Id. at 1462 (quoting Town v. State ex rel. Reno, 377 
So.2d 648, 649, 651 (Fla. 1979)). 

     [footnote 120]  The court stated that had the government raised 
collateral estoppel in a timely fashion, it may have considered the equal 
protection-establishment clause issue precluded.  Id. at 1463 (citing 
Olsen v. Iowa, 808 F.2d 652, 653 (Sth Cir. 1986) (controlled and isolated 
NAC ceremony is different from EZCC's allowance of continuous and public 
use of sacrament regardless of age or occupation of member), and United 
States v. Rush, 738 F.2d 497, 513 (lst Cir. 1984) (NAC exemption is based 
on federal policy meant to confer a benefit on NAC which is sui 

     [footnote 121]  Id. at 1463-64. 


         prohibition. [footnote 122] 

The sharp contrast between the NAC and the EZCC was further evidenced by 

Olsen's statement that marijuana is smoked continually "through 

everything that we do." [footnote 123]  Again reviewing Olsen's proposed 

exemption, the court cryptically concluded that "'narrow' use, 

concededly, is not his religion's tradition." [footnote 124] 

     2.  Judge Buckley's Dissent 

     Judge Buckley dissented "because the majority fail[ed] to address 

the Establishment Clause implications of the Drug Enforcement Agency's 

rejection of Olsen's request for a limited religious exemption." 

[footnote 125]  The DEA's denial "creates a clear-cut denominational 

preference in favor of the Native American Church." [footnote 126] 

Application of strict scrutiny requires the DEA to show a compelling 

interest served by the denominational preference and to show that the 

different treatment was closely fitted to further that interest. 

[footnote 127]  Judge Buckley found that the 

     [footnote 122]  Id. 

     [footnote 123]  Id. (quoting State v. Olsen, 315 N.W.2d 1, 7 (Iowa 

     [footnote 124]  Id. 

     [footnote 125]  Id. at 1468.  Judge Buckley found it irrelevant that 
the NAC could be distinguished on the basis of the sui generis legal 
status of American Indians, stating, "[T]hat Church's status as an 
indigenous faith does not affect its religious character."  Id. at 1469. 

     [footnote 126]  Id. (quoting Larson v. Valente, 456 U.S. 228, 244 
(1982), and Everson v. Board of Educ., 330 U.S. 1, 15 (1947)). 

     [footnote 127]  Id. at 1468-69 (quoting Larson, 456 U.S. at 246-
47)).  Instead of using the Larson establishment clause analysis as urged 
by Judge Buckley which would have required strict scrutiny 


DEA's explanation fell "far short" of meeting the strict scrutiny 

standard. [footnote 128] 

     In fact, Judge Buckley found the DEA's reasoning to be extremely 

superficial in light of the Supreme Court decision of Larson v. Valente. 

[footnote 129]  In Larson, religious denominations in Minnesota receiving 

more than fifty percent of their funds from members and affiliated 

organizations were not required to comply with registration and reporting 

laws regarding their fund raising activities. [footnote 130]  This 

statute had the effect of granting a denominational preference to well-

established churches, and the Court applied strict scrutiny to 

Minnesota's well reasoned 

in view of the denominational preference, the majority relied on an equal 
protection analysis.  Id. at 1463-64 & n.5.  The majority cited Walz v. 
Tax Comm'n, 397 U.S. 664, 694, 696 (1970), for this proposition and Judge 
Buckley acknowledged that this analysis had been mentioned in a 
concurring opinion by Justice Frankfurter in Fowler v. Rhode Island, 345 
U.S. 67, 70 (1953).  878 F.2d at 1463 n.5, 1468.  However, both of these 
cases involved laws which applied equally to all religions.  The Walz 
Court examined the New York tax exemption law for religious, educational, 
or charitable uses, 397 U.S. at 666-67, while the Court in Fowler 
reviewed the constitutionality of a law that prohibited all religious 
meetings in any public park in Rhode Island.  345 U.S. at 67.  The Larson 
Court found this distinction critical, stating that the Lemon test 
applied to "laws affording a uniform benefit to all religions," while a 
law that discriminates among religions must "be invalidated unless it is 
justified by a compelling governmental interest and unless it is closely 
fitted to further that interest."  Larson, 456 U.S. at 246-47, 252 
(citations omitted).  Indeed, the Court in Gillette v. United States, 401 
U.S. 437 (1971), specifically stated that in the establishment clause 
cases, equal protection is not an independent argument.  Id. at 449 n.14. 

     [footnote 128]  878 F.2d at 1469. 

     [footnote 129]  456 U.S. 228 (1982). 

     [footnote 130]  Id. at 230. 


explanations as to how its registration and reporting exemption was 

closely fitted to furthering a compelling state interest. [footnote 131] 

While the Supreme Court agreed that Minnesota had a compelling state 

interest in protecting its citizens from abusive solicitation practices, 

it found that Minnesota had not demonstrated that the exemption was 

necessary to further that interest nor that the exemption was closely 

fitted to furthering the interest. [footnote 132]  Finding that the 

statutory exemption failed to pass a strict scrutiny analysis, the 

Supreme Court extended it to the Unification Church of Sun Myung Moon, 

holding that any bona fide religion would qualify for the exemption. 

[footnote 133] 

     Addressing the DEA's argument that the two religions warranted 

different treatment because of: 1) their differing sacramental drug use 

rituals; and 2) the different law enforcement problems vis a vis the two 

drugs, Judge Buckley asserted that Olsen's proposed exemption effectively 

eliminated the first distinction. [footnote 134]  Additionally, Judge 

Buckley challenged the DEA's argument that the abuse and availability of 

marijuana justified the disparate treatment: 

     [footnote 131]  Id. at 248-51. 

     [footnote 132]  Id. 

     [footnote 133]  See id. at 255.  The majority in Olsen had asserted 
that even if it were to find an establishment clause violation, it was 
not certain that extension rather than invalidation of the exemption was 
proper.  878 F.2d at 1464.  Judge Buckley retorted that such indecision 
could not excuse the court from properly reviewing an underinclusive 
statute.  Id. at 1471. 

     [footnote 134]  Id. at 1469-70. 


     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. [footnote 135] 

     Noting that the DEA had no difficulty monitoring compliance of more 

than 250,000 members of the NAC, Judge Buckley questioned the DEA's lack 

of solid reasoning why monitoring compliance of one-hundred to two-

hundred EZCC members would be so impossible. [footnote 136]  Indeed, the 

exemption would place no restrictions on the DEA's normal enforcement 

operations other than at the church for a limited number of hours once a 

week. [footnote 137]  Judge Buckley stated that he would remand the case 

to the DEA so that it could more adequately review and address Olsen's 

establishment claim. [footnote 138] 

     The court of appeals denied Olsen's Petition for Rehearing and 

Suggestion For Rehearing En Banc. [footnote 139]  The Supreme Court 

denied Olsen's Certiorari Petition. [footnote 140] 

     [footnote 135]  Id. 

     [footnote 136]  Id. at 1471. 

     [footnote 137]  Id. 

     [footnote 138]  Id. at 1468. 

     [footnote 139]  Chief Judge Wald and Judge Buckley voted to grant 
the Suggestion.  Olsen v. DEA, No. 86-1442, Court Order, Sept. 15, 1989.  
Judge Buckley voted to grant the Petition For Rehearing as well.  Olsen 
v. DEA, No. 86-1442, Court Order, Sept. 15, 1989. 

     [footnote 140]  Olsen v. DEA, 110 S. Ct. 1926 (1990).  In the 
Petition For Writ Of Certiorari, Amicus argued that the D.C. Court of 
Appeals decision conflicted with the Supreme Court precedent which 
requires that strict scrutiny be applied whenever a