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.
22
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.
23
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
irreplaceable:
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
24
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
religion.
* * * *
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'
religion.
Id. App. 11, at 4-5 (Sen. Rep. No. 95-709, 95th Cong., 2d Sess. 4-5
(1978)).
[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
25
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
26
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
106]
____________________
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.
16.
[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.
27
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).
28
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.
29
DEA's final order, requesting review by the court of appeals. [footnote
116]
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.
30
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
generis)).
[footnote 121] Id. at 1463-64.
31
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
1982)).
[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
32
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.
33
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.
34
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
35