II. THE ETHIOPIAN ZION COPTIC CHURCH IS A BONA FIDE RELIGION
AND MARIJUANA IS CENTRAL TO ITS WORSHIP
The EZCC, which traces its origins back 6,000 years, is
headquartered in Jamaica. [footnote 40] By the end of the Sixties, the
Church had received a number of visitors from the U.S. and began allowing
Caucasians to join the Church. [fotnote 41] As a result, priests and
members of the Church began to travel back and forth between the U.S. and
Jamaica, and a number of U.S. citizens became members and priests in the
Church. [footnote 42] The Church was incorporated in 1976 and purchased
a 1,000 acre farm in White Horse, St Thomas parish, Jamaica. [footnote
43] In addition, the Church purchased a residence for its members at
Star Island in Miami, Florida. [footnote 44]
Church members consider themselves the historical and spiritual
descendants of the Israelites of the Old Testament. [footnote 45]
____________________
Whittingham, 19 Ariz. App. 27, 504 P.2d 950 (1973), cert. denied, 417
U.S. 946 (1974); Peoiple v. Woody, 61 Cal. 2d 716, 40 Cal. Rptr. 69, 394
P.2d 813 (1964); Colo. Rev. Stat. Ann. § 12-22-317 (West 1990); Iowa Code
Ann. § 204.204(8) (West 1987); Kan. Stat. Ann. § 65-4116(8) (Supp. 1989);
Minn. Stat. § 152.02 (West 1989); Nev. Rev. Stat. Ann. § 453.541 (Michie
1986); N.M. Stat. Ann. 30-31-6(D) (Michie 1989); S.D. Codified Laws § 34-
20B-14(17) (Michie Supp. 1990); Tex. Rev. Civ. Stat. Ann. art. 4476-15
(Vernon Supp. 1991); Wis. Stat. Ann. § 161.115 (West 1989); Wyo. Stat.
Ann. § 35-7-1044 (1988).
[footnote 40] Amicus Memorandum Before DEA, July 1988, at 6-7.
[footnote 41] Id. at 11.
[footnote 42] Id.
[footnote 43] Id. at 10.
[footnote 44] Id.
[footnote 45] Id. at 7. The EZCC distinguishes itself from the
Rastafarian sect because the EZCC does not revere the late Emperor of
Ethiopia, Haile Selassie, as a deity. Id. at 10.
11
Because of the constraints of slavery, however, the Church's written
history did not evolve and does not compare with the organizational
identity enjoyed by some Caucasian religions. [footnote 46] Nonetheless,
the Church is understood to be a Christian religion with Jesus as its
primary prophet. [footnote 47] The Church reveres the Bible as its holy
book, and members adhere to traditions set forth in the Old Testament
regarding diet, dress, grooming, sexual conduct, and so forth. [footnote
48]
"The Church historically has been extremely restrictive in its
membership practices, limiting membership to those men and women who
demonstrate an acceptance and adherence to the Church's tenets over a
significant period of time." [footnote 49] If members fail to follow the
Church's rules of conduct, they are subject to harsh
____________________
[footnote 46] Id. at 8.
[footnote 47] Id. at 7-8. Marcus Garvey is considered one of the
Church's great prophets. Id. His work in the 1920s and 30s advocating
spirituality and black empowerment related to the general movement called
"Ethiopianism ... is premised on a belief that all blacks share a common
ancestry and are destined to return to a common homeland or Zion,
symbolically identified as Ethiopia." Id. at 9. The goal of the Church
in this regard is the "liberation of the black race and the spiritual
renewal of black and white believers." Id. at 7.
[footnote 48] Id. at 7.
[footnote 49] Id. at 11. Membership involves a ritual called
confession. Id. First, the confessor renounces the sins of the flesh
and the material world. Id. at 12. Next, when the elders think that the
individual has fully learned the tenets of the Church, the individual
makes a public confession before the members. After this, the members
demonstrate their acceptance of the new member through the celebration of
communion with marijuana. Id. at 11-13.
12
sanctions and sometimes expulsion. [footnote 50]
The EZCC traces its use of marijuana [footnote 51] to the Bible,
citing passages regarding herbs, smoke, and clouds, [footnote 52] and
stating that
"marijuana is the [e)ucharistic spiritual body and
blood of Christ," and "[o]nly through the sacramental
use of marijuana--combined with prayer and spiritual
reasoning among the brethren--can members of the Church
come to know God within themselves and within
others." [footnote 53]
The non-drug use of marijuana is allowed at any point during the day, but
is most commonly ingested during the three daily prayer
____________________
[footnote 50] Id.
[footnote 51] The EZCC's longstanding religious tradition of
marijuana ingestion may have a history that dates back further than the
Native American use of peyote. Some authors postulate that many Indian
religions did not incorporate the peyote ritual into their religious
practices until the 1920s and 30s. See A. Marriott, supra note 9, at 78-
79; see also Amicus Memorandum Before DEA, July 1988, at 34 (citing W. La
Barre, The Peyote Cult 110-23 (4th ed. 1975)).
[footnote 52] Id. at 14. The EZCC has compiled works of
scholarship and ancient references which substantiate and detail the
religious use of marijuana from time immemorial. See Amicus Memorandum
Before DEA, July 1988, App. 6. For instance, The Book of Grass 11-12 (G.
Andrews & S. Vinkenoog ed. 1967), is cited for a passage on ancient
Scythia and Iran by Mircea Eliade:
only one document appears to indicate the existence of
a Getic shamanism: It is Strabols account of the
Mysian KAPNOBATAI, a name that has been translated, by
analogy with Aristophanes' AEROBATES, as 'those who
walk in clouds', but which should be translated as
'those who walk in smoke'. Presumably the smoke is
hemp smoke, a rudimentary means of ecstasy known to
both the Thracians and the Scythians...."
Amicus Memorandum Before DEA, July 1988, App. 6 at 6-7. The EZCC
believes that the marriage of Cana involved cannabis not wine; "[c]ana is
a linguistic derivation of the present day cannabis." Id. App. 6, at
21.
[footnote 53] Id. at 14-15.
13
sessions. [footnote 54] Members do not try to maximize the amount of
smoke taken in or hold smoke in their lungs for long periods of time.
[footnote 55] Church members state that their ingestion of marijuana
during worship does not result in any side-effects [footnote 56] or
intoxication, nor is that a desirable goal.
The Church not only does not encourage but in fact
absolutely forbids the recreational use of marijuana
for the purpose of achieving intoxification. The
Church believes that such intentional misuse of
marijuana, by members or nonmembers, constitutes
sacrilegious behavior. Church members are strictly
prohibited from using any intoxication or addictive
substance--legal or illegal-- for recreational
____________________
[footnote 54] Id. at 15.
[footnote 55] Id.
[footnote 56] Id. These claims have been substantiated by several
medical and psychiatric research studies done to determine the effects of
marijuana on church members. See Research Report by Brian L. Weiss,
M.D., P.A. of Florida (1980) (EZCC members, some of whom have smoked
marijuana in high doses for sixteen hours a day for up to fifty years,
suffer no apparent psychological or physical harm; tolerance appears to
have developed with no acute or chronic side effects); Research Report by
Kenneth C. Fischer, M.D. of Florida (1980) (after doing a "complete
intensive neurological examination on 31 members" of the EZCC, the "most
impressive thing ... is the true paucity of neurological abnormalities I
was able to discern"); American Association for the Advancement of
Science, Cognition and Long-Term Use of Gania, 213 SCIENCE 465-66 (1981)
(prolonged and heavy use of ganja have not resulted in any systematic
decrements in mental abilities suggestive of impairment of brain or
cerebral function; cognition I.Q. scores were high, and individuals
appear to be healthy and highly functional); Neuropsychological
Evaluation by Jeffrey Schaeffer, Ph.D. of California (1981) (despite
measurable amounts of cannabinoid metabolites in his body and a history
of very long-term use of cannabis, Carl Eric Olsen demonstrated no
impairment of his cognitive, cerebral, intellectual, or new learning
abilities, nor was there any suggestion of damage to the central nervous
system or long and short-term memory ability; moreover, his ability to
adapt to change remains at a very high level). Amicus Memorandum Before
DEA, July 1988, App. 7, 8, 9.
14
purposes. [footnote 57]
There has never been more than between 100 and 200 EZCC members in
the U.S., and, presently, it is estimated that 60 members live in this
country. [footnote 58] Membership has been greatly diminished and
dispersed due to numerous arrests and prosecutions. [footnote 59] Some
have left the Church, others have left the country, and others, like
Olsen, have been paroled from prison on the condition that they will not
associate with other members. [footnote 60]
III. THE ETHIOPIAN ZION COPTIC CHURCH REPEATEDLY PETITIONS BUT IS
DENIED A SACRAMENTAL DRUG EXEMPTION SIMILAR TO THAT
ACCORDED TO THE NATIVE AMERICAN CHURCH
A. Olsen Proceeds Pro Se
From 1983 to 1985, Carl Eric Olsen, a member and priest of the EZCC,
had repeated unilateral communications with the DEA attempting to procure
for his Church a drug law exemption for the sacramental ingestion of
marijuana. [footnote 61] It was not until the
____________________
[footnote 57] Id. at 15.
[footnote 58] Id. at 18. Roughly, 30 members live in Florida, and
the remaining members live throughout Iowa, Tennessee, Massachusetts, and
several East Coast cities. Id.
[footnote 59] Id. at 17.
[footnote 60] Id. at 17-18.
[footnote 61] Olsen's Brief, Aug. 18, 1986, App. 13-20, 28-29, 31-
35. Olsen proposed the following statutory language:
SPECIAL EXEMPT CHURCH. Ethiopian Zion Coptic Church.
The listing of marijuana as a controlled substance in
Schedule I does not apply to the non-drug use of
marijuana in bona fide religious ceremonies of the
Ethiopian Zion Coptic Church and members of the
Ethiopian Zion Coptic Church so using marijuana are
exempt from registration. Any person who manufactures
marijuana for or distributes marijuana to the Ethiopian
Zion Coptic Church, however, is required to obtain
15
District of Columbia federal district court issued a show cause order to
the DEA in response to Olsen's writ of mandamus filed in 1986, that the
DEA finally responded. [footnote 62] John C. Lawn, the DEA
Administrator, answered Olsen's requests in the form of a three paragraph
letter which stated in part:
In 1984, an estimated 7,800 to 9,200 metric tons
of marijuana were illegally consumed in the United
States. It has been estimated that over 20 million
people in the United States use marijuana on a regular
basis. Marijuana abuse is a major public health
problem in this country. Accordingly, the
investigation and prosecution of marijuana traffickers,
the interdiction of marijuana smuggling and the
eradication of the drug at its source continue to be
major concerns of drug law enforcement both
domestically and internationally.
In view of the immensity of the marijuana abuse
problem in the United States and the magnitude of the
criminal activity surrounding the production and
trafficking in this substance, the Administrator of the
Drug Enforcement Administration concludes that the
interest of the Ethiopian Zion Coptic Church in the
ceremonial use of marijuana is outweighed by the
compelling governmental interest in controlling the use
and illegal distribution of marijuana in the United
States. [footnote 63]
The district court dismissed Olsen's mandamus petition as moot;
appealing the dismissal, Olsen stated, "The DEA gave no reasons at all
for denying the exemption, the DEA only gave
_______________
registration annually and to comply with all other
requirements of law.
Id. App. 13, 16, 18.
[footnote 62] Id. App. 2-4. Olsen also had filed a mandamus
petition in the Eleventh Circuit. Olsen v. DEA, 776 F.2d 267 (llth Cir.
1985) (affirming district court's denial of olsen's request for a
mandamus to compel DEA to respond to petitions for marijuana exemption
because the statute authorizing exemptions does not provide for a
religious exemption).
[footnote 63] Olsen's Brief, Aug. 18, 1986, App. 11-12.
16
reasons for denying marijuana use to the general public. [footnote 64]
Olsen also appealed the DEA's denial, admitting that the DEA had a
compelling interest in the overall enforcement of the CSA, but arguing
that the exemption granted to the NAC had not undermined that interest
nor would a limited exemption for the EZCC. [footnote 65] Olsen pointed
out that the DEA previously denied a peyote exemption to the Church of
the Awakening ("CotA"), after finding that the CotA was not similar to
the NAC because "peyote is essential and central to the [NAC] religion in
that without peyote their religion would not and could not exist."
[footnote 66] The DEA made no such findings regarding the EZCC denial.
[footnote 67]
In its response, the government set forth the three-part test from
United States v. Lee, [footnote 68] for establishing a free exercise
claim [footnote 69] and cited various free exercise cases. [footnote 70]
____________________
[footnote 64] Id. at 5.
[footnote 65] Olsen Brief, Sept. 3, 1986, at 2-4, 11. The cases
were consolidated on appeal.
[footnote 66] 35 Fed. Reg. 14790 (1970). The CotA appealed this
decision to the Ninth Circuit. Kennedy v. BNDD, 459 F.2d 415 (9th Cir.
1972) (ruling that statute granting the peyote exemption only to NAC was
unconstitutional but nonetheless holding that extending the exemption to
the CotA would not cure the defect, thus, the exemption for the CotA was
denied), cert. denied, 409 U.S. 1115 (1973).
[footnote 67] Olsen's Brief, Sept. 3, 1986, at 8.
[footnote 68] 455 U.S. 252 (1982).
[footnote 69] Government Brief, Oct. 6, 1986, at 7. The Lee test
inquires: 1) whether the challenged law interferes with the free exercise
of religion; 2) whether the challenged law is essential to accomplish an
overriding governmental objective; and 3) whether accommodating the
religious practice would unduly interfere with fulfillment of the
governmental interest. 455
17
____________________
U.S. at 256-59.
[footnote 70] Government Brief at 8-9. The following cases involve
EZCC members. Olsen v. Iowa, 808 F.2d 652 (8th Cir. 1986) (summarily
rejecting Olsen's free exercise and equal protection claims on habeas
because of the state's compelling interest in controlling marijuana);
United States v. Rush, 738 F.2d 497 (lst Cir. 1984) (applying Lee
standard, court affirmed convictions of 15 members of the EZCC including
Olsen involving twenty tons of marijuana upon finding that marijuana
constitutes a health hazard and a threat to social welfare; moreover, NAC
exemption is different because it is a narrow, readily identifiable
category with minimal impact on law enforcement), cert. denied, 471 U.S.
1120 (1985); United States v. Middleton, 690 F.2d 820 (llth Cir. 1982)
(rejecting free exercise defense of an EZCC member charged with
importation and possession of marijuana because of government's clearly
articulated and compelling interest in regulating marijuana), cert.
denied, 460 U.S. 1051 (1983); Commonwealth v. Nissenbaum, 404 Mass. 575,
536 NE.2d 592 (1989) (priest and member of EZCC convicted for possession
of hashish and marijuana could not succeed on free exercise claim because
state had overriding interest in controlling drug abuse); State v. Olsen,
315 N.W.2d 1 (Iowa 1982) (state demonstrated compelling interest in
controlling marijuana sufficient to override olsen's free exercise
argument); Town v. State ex rel. Reno, 377 So.2d 648 (Fla. 1980) (state
had compelling interest in restricting use of cannabis as religious
practice of EZCC).
The following cases involve members of other religions seeking a
marijuana exemption. United States v. Greene, 892 F.2d 453 (6th Cir.
1989) (Native American failed to convince court that possession and
distribution of marijuana was constitutionally required), cert. denied,
110 S. Ct. 2179 (1990); United States v. Spears, 443 F.2d 895 (5th Cir.
1971) (summarily rejecting Black Muslim's first amendment defense to
conviction for heroin, marijuana, and peyote smuggling because there is
no constitutional privilege to use drugs), cert. denied, 404 U.S. 1020
(1972); Randall v. Wyrick, 441 F. Supp. 312 (W.D. Mo 1977) (affirming
conviction for marijuana and LSD possession of Aquarian Brotherhood
Church leader because state had compelling interest in regulation of
narcotic drug trafficking); United States v. Kuch, 288 F. Supp. 439, 445-
46 (D.D.C. 1968) (affirming conviction for drug offenses of ordained
minister of Neo-American Church, which embraces principle that marijuana
and LSD are the true Host, because church did not appear to be a bona
fide religion and "under any common sense view of undisputed facts" the
public interest is paramount); Hawaii v. Blake, 695 P.2d 336 (Haw. app.
1985) (no free exercise defense for member of religion, Hindu Tantrism,
convicted of possessing marijuana because members can freely practice
their religion without marijuana); Whyte v. United States, 471 A.2d 1018
(D.C. 1984)
18
____________________
(upholding conviction for marijuana possession of Rastafarian of the
Twelve Tribes of Israel where there were serious and compelling concerns
of government regarding drug-related problems); State v. Rocheleau, 451
A.2d 1144 (Vt. 1982) (no first amendment defense for Tantric Buddhist
convicted for possession of marijuana); New Mexico v. Brashear, 92 N.M.
622, 595 P.2d 63 (1979) (defendant's belief in the religious use of
marijuana was derived from defendant's personal views of the Bible, and
he failed to show that his belief was religious); Lewellyn v. State, 592
P.2d 538 (Okla. 1979) (priest in Holy American Church could not raise
religious defense to sale of marijuana to undercover officer who was not
member of professed religion); People v. Mullins, 50 Cal. 3d 61, 123 Cal.
Rptr. 201 (1975) (pastor of Universal Life Church of Christ Light failed
to prove that marijuana was indispensable to his religion and that
prohibition of marijuana use resulted in virtual inhibition of practice
of his religion); People v. Crawford, 328 N.Y.S. 747, 748, 755 (1972)
(member and minister of Church of Missionaries of the New Truth who used
marijuana and LSD to achieve religious experience denied exemption
because there was no evidence that defendant used drugs as part of
religious ceremony, used drugs with other members of his Church, drugs
were an intrinsic part of Church's dogma, or that his exercise of
religion would inhibited without the use of drugs); People v. Werber,
App. 3d 598, 97 Cal. Rptr. 150 (1971) (defendant's use marijuana did not
constitute religious practice within constitutional concept of religion
where it was not an object of worship essential to exclusively religious
ritual); People v. Collins, 273 Cal. App. 2d 486, 78 Cal. Rptr. 151
(1969) (defendant did not worship marijuana but used it as an "auxiliary
to a desired capacity for communication"); People v. Mitchell, 244 Cal.
App. 2d 176, 52 Cal. Rptr. 884 (1966) (defendant did not offer any
evidence that use of marijuana was a religious practice, instead he was
expressing his own personal philosophy and way of life).
The following cases involve churches seeking a peyote exemption.
Peyote Way Church of God v. Smith, 742 F.2d 193 (5th Cir. 1984)
(reversing summary judgment which had been entered for government and
remanding for weighing of interests involved because Texas and federal
exemptions for NAC tended to negate compelling state interest in denying
such exemption to Peyote Way Church); United States v. Warner, 595 F.
Supp. 595 (D.N.D. 1984) (non-Indians who alleged that their use of peyote
was part of their ceremonies in NAC were not entitled to exemption
accorded to Indians); Native American Church of New York v. United
States, 468 F. Supp. 1247 (S.D.N.Y. 1979) (interest of minister of Native
American Church of New York seeking declaratory judgment in using drugs
other than peyote must be subordinated to the important governmental
purposes served by the CSA; as to peyote, group, while admittedly having
no ties to NAC, must show it was a bona
19
Admittedly, the federal and state peyote exemptions tend to negate the
existence of a compelling government interest in prohibiting its non-drug
use in bona fide religious worship. [footnote 71] Thus, the government
tried to distinguish the NAC, stating that Congressional testimony
presented by the director of the BNDD during the CSA hearings indicated
that the NAC was considered
sui generis. The history and tradition of the church
is such that there is no question but that they regard
peyote as a deity. [footnote 72]
By contrast, the EZCC "does not have such a Congressional recognition of
its status." [footnote 73]
Olsen replied with a discussion of the key case regarding the
sacramental use of marijuana, Leary v. United States. [footnote 74]
Timothy Leary and his daughter were found in possession of marijuana upon
their re-entry into this country by car from Mexico. [footnote 75]
Raising a free exercise defense, Leary argued that he was part of the
Hindu sect of Brahmakrishna and that "the experience [I find) through the
use of marihuana is the essence
____________________
fide religion), aff'd mem., 633 F.2d 205 (2d Cir. 1980); Birnbaum v.
United States, 80 Civ. 1534 (RLC) (S.D.N.Y. Apr. 11, 1983) (would extend
exemption to peyotist religions in general if group could establish that
it was a bona fide religion) (unpublished).
[footnote 71] Government Brief at 9.
[footnote 72] Id. at 9. For the full quote, see note 38.
[footnote 73] Id.; see also Government Memorandum Before DEA, July
22, 1988, at 13-16.
[footnote 74] 383 F.2d 851 (5th Cir. 1967), rev'd on other grounds,
395 U.S. 6 (1969) cited in Olsen's Reply Brief, Oct. 10, 1986, at 3, 6-7.
[footnote 75] 383 F.2d at 855-56.
20
of [my] religion." [footnote 76] A Hindu monk testifying for Leary
stated that he was partially able to achieve and practice his religious
beliefs in the religious sect without the use of marijuana. [footnote 77]
Leary admitted that if he could not use marijuana, it would not affect
his religious beliefs. [footnote 78] The court held that the laws
regulating marijuana serve a compelling governmental interest in avoiding
a "substantial threat to public safety, peace or order." [footnote 79]
Examining the NAC exemption, the court reviewed two California
cases. [footnote 80] In People v. Woody, the state court found a free
exercise right to use peyote for NAC members who had been arrested during
a ceremony, [footnote 81] and in In re Grady, the state court held that a
peyote preacher could offer a first amendment defense to prosecution for
possession of peyote. [footnote 81] The Leary court found that unlike
Leary's use of marijuana, peyote "played 'a central role in the ceremony
and practice of the Native American Church, [and that the] ceremony
marked by sacramental use of peyote,
____________________
[footnote 76] Id. at 857, 860.
[footnote 77] Id. at 857-58.
[footnote 78] Id. at 857. The court found that Leary drew no
distinction between his religious beliefs and his scientific
experimentation. Id.
[footnote 79] Id. at 860.
[footnote 80] Id. at 861.
[footnote 81] 61 Cal. 2d 716, 40 Cal. Rptr. 69, 394 P.2d 813
(1964).
[footnote 82] 61 Cal. 2d 887, 39 Cal. Rptr. 912, 394 P.2d 728
(1964).
21