UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Enforcement Administration 1989.CDC.207
Petition for Review of an Order of the Drug Enforcement Administration. Appeal from the United States District Court for the District of Columbia, D.C. Civil Action No. 86-00236.
Ruth B. Ginsburg, Silberman, and Buckley, Circuit Judges. Dissenting opinion filed by Circuit Judge Buckley.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GINSBURG
Petitioner in this case seeks a religious-use exemption from federal laws proscribing marijuana. We hold that the first amendment's free exercise of religion guarantee does not require the requested exemption, and that petitioner was not denied equal protection-establishment clause rights by the government's refusal to accommodate his church's sacramental use of marijuana. I.
Petitioner Olsen is a member and priest of the Ethiopian Zion Coptic Church. While the church is alleged to have several thousand members in Jamaica, it has never had more than between 100 and 200 members in the United States. Olsen asserts, and the government concedes for purposes of this case, that the church's sacrament is marijuana; under church teachings, marijuana is combined with tobacco and smoked "continually all day, through church services, through everything we do." State v. Olsen, 315 N.W.2d 1, 7 (Iowa 1982) (quoting Olsen's testimony). Olsen and his fellows have been convicted several times in federal and state courts of various marijuana offenses, including importation of twenty tons of the drug, and first amendment challenges to these convictions have been uniformly rejected. See Olsen v. Iowa, 808 F.2d 652 (8th Cir. 1986); United States v. Rush, 738 F.2d 497 (1st Cir. 1984), cert. denied, 470 U.S. 1004, 84 L. Ed. 2d 378, 105 S. Ct. 1355 (1985); United States v. Middleton, 690 F.2d 820 (11th Cir. 1982), cert. denied, 460 U.S. 1051, 75 L. Ed. 2d 929, 103 S. Ct. 1497 (1983); State v. Olsen, 315 N.W.2d 1 (Iowa 1982); Town v. State ex rel. Reno, 377 So. 2d 648 (Fla. 1979), cert. denied, 449 U.S. 803, 66 L. Ed. 2d 7, 101 S. Ct. 48 (1980).
The federal convictions were based on the Controlled Substances Act, 21 U.S.C. §§ 801-904 (1982), which lists marijuana as a "Schedule I" controlled substance with a "high potential for abuse." Id. 812(b)(1)& (c). Between 1983 and 1985, Olsen several times petitioned the Drug Enforcement Administration , which administers the Act, for an exemption permitting his church's sacramental use of marijuana. Olsen maintained that such an exemption is required by the first amendment's guarantee of the free exercise of religion. He further urged, under an establishment clause-equal protection rubric, that his church is entitled to an exemption similar to that granted by federal regulation to the Native American Church for its sacramental use of peyote. See 21 C.F.R. § 1307.31 (1987).
In an effort to prompt a response from the DEA, Olsen unsuccessfully sued in the Eleventh Circuit to compel agency action. Olsen v. DEA, 776 F.2d 267 (11th Cir. 1985) (affirming district court's dismissal of Olsen's complaint), cert. denied, 475 U.S. 1030, 106 S. Ct. 1236, 89 L. Ed. 2d 344 (1986). Thereafter, in January 1986, Olsen petitioned the U.S. District Court for the District of Columbia for a writ of mandamus, and that court, in March 1986, directed the DEA to show cause why the writ should not issue. In April 1986, in a three-paragraph letter ruling, the DEA denied Olsen's petitions; the letter reported the DEA's conclusion that "the immensity of the marijuana abuse problem," and the correspondingly "compelling governmental interest" in controlling trafficking in and use of the substance, "outweighed" the church's interest in access to marijuana. Letter from John C. Lawn, DEA Administrator, to Carl Eric Olsen (Apr. 22, 1986). The district court then dismissed Olsen's mandamus petition as moot.
Olsen, acting pro se, both petitioned this court for review of the DEA's decision, and appealed from the district court's dismissal of his mandamus petition. In February 1988, this court, on its own motion, directed appointment of members of the law firm of Hogan and Hartson to serve as amicus curiae "to address those issues raised by [Olsen] and any other issues appropriate for the court's consideration in this case." *fn1 After amicus filed a brief, the DEA moved to remand the matter for renewed agency consideration. In April 1988, we authorized further agency proceedings and instructed the DEA to supplement the record and return it with a final order by July 29, 1988. On remand, amicus presented Olsen's proposal for a "restrictive religious exemption" that would include the following limitations:
-- Church members would be restricted to using marijuana during their Saturday evening prayer ceremony, which lasts from 8:00 p.m. until 11:00 p.m.;
-- During that ceremony, and for the eight hours following that ceremony, Church members would not leave the place where the ceremony is conducted; they would not drive automobiles or otherwise go out in public;
-- 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;
-- Ingestion of marijuana would be limited to full Church members who had undergone the confession ritual for entering the Church's community. . . .
Memorandum of Court-Appointed Amicus Curiae in Support and on Behalf of Petitioner Carl E. Olsen at 29-30 (submitted to DEA on remand).
On July 29, 1988, the DEA issued its Final Order, reaffirming its denial of Olsen's exemption requests. That order, which we set out in full as an Appendix to this opinion, first disclaimed statutory authority to grant the exemption. According to the DEA, Congress intended no religious-use exemption from Controlled Substances Act proscriptions other than the peyote-use permission granted the Native American Church. Next, the DEA assumed, in order to rule completely, that it had authority to consider Olsen's exemption petition. It further accepted, for purposes of its decision, that the Ethiopian Zion Coptic Church is a bona fide religion with marijuana as its sacrament. The agency then rejected Olsen's free exercise claim, concluding that the government has a compelling interest in the regulation of controlled substances and that accommodation to religious use of drugs is not required. Final Order, infra pp. 1465-68.
The DEA also rejected Olsen's establishment clause-equal protection plea, stating why, on the matter in controversy, it deemed the Ethiopian Zion Coptic Church not similarly situated to the Native American Church. Id. p. 1467. First, Olsen's church "advocates the continuous use of marijuana or 'ganja', while the Native American Church's use of peyote is isolated to specific ceremonial occasions." Id. Second, the DEA reasoned: "While peyote and marijuana are both Schedule I controlled substances with a defined high potential for abuse, the actual abuse and availability of marijuana in the United States is many times more pervasive . . . than that of peyote." Id. p. 1467 (emphasis added). Third, the DEA noted that Olsen was convicted in Rush for importing twenty tons of marijuana, "an outrageous quantity to supply [his church's] religious needs." Id. The DEA also rejected Olsen's proposal to restrict usage, saying monitoring compliance would be "impractical." Id. p. 1468.
The DEA's July 1988 Final Order is now before this court for review. *fn2 II.
The DEA initially asserted in its July 1988 Final Order that Congress had given the agency no authority to grant the exemption Olsen sought. Apart from permitting legitimate medical and scientific or research use, the DEA maintained, Congress intended no exemption other than the one, supported in the legislative history of the Controlled Substances Act, for the Native American Church. Final Order, infra pp. 17-18. This argument did not figure in the DEA's original denial of Olsen's petitions; the agency's April 1986 letter ruling, we note, responded immediately and directly to the merits of Olsen's request.
The DEA's contention that Congress directed the Administrator automatically to turn away all churches save one opens a grave constitutional question. A statutory exemption authorized for one church alone, and for which no other church may qualify, presents a "denominational preference" not easily reconciled with the establishment clause. See Larson v. Valente, 456 U.S. 228, 245, 72 L. Ed. 2d 33, 102 S. Ct. 1673 (1982); cf. infra pp. 12-13. We resist an interpretation dissonant with the "cardinal principle" that legislation should be construed, if "fairly possible," to avoid a constitutional confrontation. See Ashwander v. TVA, 297 U.S. 288, 348, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J., concurring).
Furthermore, we recognize that even if the DEA were not empowered or obliged to act, Olsen would be entitled to a judicial audience. Ultimately, the courts cannot escape the obligation to address his plea that the exemption he seeks is mandated by the first amendment's religion clauses. See Peyote Way Church of God v. Smith, 742 F.2d 193 (5th Cir. 1984) (upholding church's standing to seek a declaratory judgment that denying church access to peyote is unconstitutional). We are aided in this task of judicial review by the consideration given the matter, in the first instance, by the expert administrator.
In sum, for purposes of this case, we accept the position that Congress did not strip the DEA of authority to rule on the merits of Olsen's petitions, *fn3 and we turn to the questions whether the free exercise of religion clause or the equal protection principle (coupled with the establishment clause) commands the exemption Olsen seeks. III.
Olsen's free exercise claim has been raised, considered, and rejected in the context of criminal proceedings. See Olsen v. Iowa, 808 F.2d at 653; Rush, 738 F.2d at 512-13; Middleton, 690 F.2d at 824-26; State v. Olsen, 315 N.W.2d at 7-9; Town v. State ex rel. Reno, 377 So.2d at 650-51. We agree, substantially, with those dispositions, and therefore need not treat the issue expansively.
It is familiar doctrine that the free exercise clause "embraces two concepts, -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." Cantwell v. Connecticut, 310 U.S. 296, 303-04, 84 L. Ed. 1213, 60 S. Ct. 900 (1940). As the Supreme Court recently restated:
The Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for "even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions." Braunfeld v. Brown, 366 U.S. 599, 603, 6 L. Ed. 2d 563, 81 S. Ct. 1144 (1961). The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e.g., Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1879) [upholding ban on polygamy]; Jacobson v. Massachusetts, 197 U.S. 11, 49 L. Ed. 643, 25 S. Ct. 358 (1905) [compulsory vaccination law]; Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944) [child labor law]; Cleveland v. United States, 329 U.S. 14, 91 L. Ed. 12, 67 S. Ct. 13 (1946) [application of Mann Act to religiously motivated polygamy].
Employment Division v. Smith, 485 U.S. 660, 108 S. Ct. 1444, 1450 n. 13, 99 L. Ed. 2d 753 (1988) (quoting Sherbert v. Verner, 374 U.S. 398, 403, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963)).
In appraising laws alleged to constrain religious conduct, the Supreme Court has instructed lower courts to consider: (a) whether the law interferes with the free exercise of sincere religious belief; (b) whether the law is essential to accomplish an overriding governmental objective; and (c) whether accommodating the religious conduct would unduly interfere with fulfillment of the governmental interest. See United States v. Lee, 455 U.S. 252, 256-59, 71 L. Ed. 2d 127, 102 S. Ct. 1051 (1982); Rush, 738 F.2d at 512. The first two factors stated in Lee are not contested in this case. The DEA, "for purposes of this decision . . . accepts that the Ethiopian Zion Coptic Church is a bona fide religion whose sacrament is marijuana." Final Order, infra p. 1466. And "Olsen does not dispute the government's compelling interest in controlling the distribution and drug-related use of marijuana." Brief of Court-Appointed Amicus Curiae at 18. Indeed, "every federal court that has considered the matter, so far as we are aware, has accepted the congressional determination that marijuana in fact poses a real threat to individual health and social welfare." Rush, 738 F.2d at 512.
The pivotal issue, therefore, is whether marijuana usage by Olsen and other members of his church can be accommodated without undue interference with the government's interest in controlling the drug. Three circuits have so far considered pleas for religious exemption from the marijuana laws; each has rejected the argument that accommodation to sacramental use of the drug is feasible and therefore required. Rush, 738 F.2d at 513 (First Circuit); Olsen v. Iowa, 808 F.2d at 653 (Eighth Circuit); Middleton, 690 F.2d at ...