1458
878 FEDERAL REPORTER, 2d SERIES

 
                         Carl Eric OLSEN, Petitioner, 
                                     v. 
                             DRUG ENFORCEMENT 
                              ADMINISTRATION, 
                                Respondent. 

 
                         Carl Eric OLSEN, Appellant, 
                                     v. 
                       John LAWN, Administrator, Drug 
                         Enforcement Administration. 
                           Nos. 86-1442, 86-5455. 

 
                      United Stites Court of Appeals, 
                       District of Columbia Circuit. 

 
                           Argued Feb. 7, 1989. 
                          Decided June 20, 1989. 

 
     Appea1 was taken from order of the, United States District Court for  
the District of Columbia, Norma Holloway Johnson, J., which upheld denial  
of religious-use exemption from federal laws proscribing marijuana.  The  
Court of Appeals, Ruth Bader Ginsburg, Circuit Judge, held that: (1) free  
exercise clause did not entitle church members to use marijuana, and (2)  
fact that use of peyote by members of the Native American Church had been  
exempted from proscriptions against use of that drug did not violate  
establishment clause. 

 
     Affirmed. 

 
     Buckley, Circuit Judge, dissented and filed an opinion. 

 
1. Constitutional Law 84(l) 
     Free exercise clause embraces concepts of freedom to believe and  
freedom to act; the first is absolute but, in the nature of things, the  
second cannot be.  U.S.C.A. Const.Amend. 1. 

 
2. Constitutional Law 84(l) 
     In appraising law alleged to constrain religious conduct, court must  
consider whether law interferes with free exercise of sincere religious  
belief, whether law is essential to accomplish an overriding governmental  
objective, and whether accommodating religious conduct would unduly  
interfere with fulfillment of governmental interest.  U.S.C.A. Const.Amend.  
1. 

 
3. Constitutional Law 84.5(l) 
     Accommodation to sacramental use of marijuana by Ethiopian Zion Coptic  
Church is not feasible and thus not required by the First Amendment, in  
view of church teachings that marijuana is to be smoked continually all  
day.  U.S.C.A. Const.Amend. 1. 

 
4. Constitutional Law 84.5(19) 
   Drugs and Narcotics 42 
     Drug Enforcement Agency exemption from use of peyote for religious  
services of the Native American Church did not violate establishment  
clause, even in view of denial of exemption for religious use of marijuana  
by Ethiopian Zion Coptic Church, in view of the vast difference in demand  
for marijuana under the teachings of that church and demand for peyote by  
members of the Native American Church.  U.S.C.A. Const.Amend. 1. 

 
5. Constitutional Law 84.5(l) 
     Even if it were determined that it was a violation of establishiment  
clause to allow peyote in religious services for one church but not  
marijuana in religious services for another, remedy would not necessarily  
be to allow the use of marijuana. 

 
     Appeal from the United States District Court for the District of  
Columbia (D.C. Civil Action No. 86-00236). 

 
     Steven J. Routh (appointed by the court) and William A. Bradford, Jr.,  
Washington, D.C., (appointed by the court) were on the amicus curiae brief,  
on behalf of petitioner/appellant, urging remand.  Carl Eric Olsen entered  
an appearance pro se. 

 
     Curtis E. Hall, Asst. U.S. Attorney, with whom Jay B. Stephens, U.S.  
Atty., John D. Bates, and R. Craig Lawrence, Asst. U.S. Attys., were on the  
brief, for respondent/appellee.  Mark E. Nagle, Asst. U.S. Atty.,  
Washington, D.C., also entered an appearance for respondent/appellee. 


1459
OLSEN v. DRUG ENFORCEMENT ADMIN.
Cite as 878 F.2d 1458 (D.C. Cir. 1989)

 
     Before RUTH BADER GINSBURG, SILBERMAN, and BUCKLEY, Circuit Judges. 

 
     Opinion for the court filed by Circuit Judge RUTH BADER GINSBURG. 

 
     Dissenting opinion filed by Circuit Judge BUCKLEY. 

 
     RUTH BADER GINSBURG, Circuit Judge: 

 
     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 assets, 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,  
105 S.Ct. 1355, 84 L.Ed.2d  378 (1985); United States v. Middleton, 690  
F.2d 820 (llth Cir.1982), cert. denied, 460 U.S. 1051, 103 S.Ct. 1497, 75  
L.Ed.2d 929 (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,  
101 S.Ct. 48, 66 L.Ed. 2d 7 (1980). 

 
     The federal convictions were based on the Controlled Substarces 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)(A)  
& (c).  Between 1983 and 1985, Olsen several times petitioned the Drug  
Enforcement Administration (DEA), 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 (llth Cir.1985) (affirming district court's dismissal of 01sen'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  
01sen'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 


1460
878 FEDERAL REPORTER, 2d SERIES

 
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." [footnote 1]  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 01sen'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 oth- 
   erwise go out in public; 

 
   --Ingestion of marijuana would be limit- 
   ed 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 limit- 
   ed to full Church members who had un- 
   dergone the confession ritual for enter- 
   ing 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 01sen'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 as  
sumed, 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. 1466-1467. 

 
     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:  
"[W]hile 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 01sen'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.  
[footnote 2] 

 
                                    II. 

 
     The DEA initially asserted in its July 1988 Final Order that Congress  
had given 

 
____________________ 

 
[footnote 1]
   William A. Bradford, Jr. and Steven J. Routh 
   were appointed and filed briefs in support of 
   Olsen's position, with the assistance of Emily E. 
   Moskowitz.  Mr. Routh appeared on Olsen's be- 
   half at oral argument.  The court commends 
   appointed counsel for work of excellent quality 
   and service in the best tradition of the bar. 

 
[footnote 2]
   Because the DEA completely responded to 01- 
   sen's exemption petition in its Final Order, we 
   hold that 01sen's petition for mandamus to 
   compel a response is now moot. 


1461
OLSEN v. DRUG ENFORCEMENT ADMIN.
Cite as 878 F.2d 1458 (D.C. Cir. 1989)

 
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 p. 1466.  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, 102 S.Ct. 1673, 1683-84,  
72 L.Ed.2d 33 (1982); cf. infra pp. 1463-1464.  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, 56 S.Ct. 466, 483, 80 L.Ed. 688  
(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, [footnote 3] 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. 

 
     [1]  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, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).   
As the Supreme Court recently restated: 

 
   [T]he Court has rejected challenges un- 
   der the Free Exercise Clause to govern- 
   mental regulation of certain overt acts 
   prompted by religious beliefs or princi- 
   ples, 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, 81 S.Ct. 1144, 1146, 6 L.Ed. 
   2d 563 (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, 25 S.Ct. 
   358, 49 L.Ed. 643 (1905) [compulsory vac- 
   cination law]; Pnnce v. Massachusetts, 

 
____________________ 

 
[footnote 3]
   But see Olsen v. DEA, 776 F.2d 267 (11th 
   Cir.1985), cert. denied, 475 U.S. 1030, 106 S.Ct. 
   1236, 89 L.Ed.2d 344 (1986) (while the DEA is 
   obliged to respond to all exemption petitions, 
   religious exemption for marijuana use falls out- 
   side the scope of 21 U.S.C.  811).  Subsequent 
   to this Eleventh Circuit decision, 01sen broad- 
   ened beyond 21 U.S.C.  811 the bases of his 
   exemption claim.  See Reply Brief of Court-Ap- 
   pointed Amicus Curiae at 7 n. 5. 


1462
878 FEDERAL REPORTER, 2d SERIES

 
   321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 
   (1944) [child labor law]; Cleveland v. 
   United States, 329 U.S. 14, 67 S.Ct. 13, 
   91 L.Ed. 12 (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, 83 S.Ct.  
1790, 10 L.Ed.2d 965 (1963)). 

 
     [2]  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, 102 S.Ct. 1051, 1054-56, 71 L.Ed.2d 127 (1982); Rush,  
738 F.2d at 512.  The first two factors stated in Lee are not contested in  
this case.  The DEA, "[f]or 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, "[e]very 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. 

 
     [3]  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 825 (Eleventh Circuit).  We have no reason  
to doubt that these courts have accurately gauged the Highest Court's  
pathmarks in this area. 

 
     Olsen refers to his proposal for restrictive use, see supra p. 1460,  
and claims that this case is now differently contoured than earlier ones.   
Even if the government is not required to accommodate to the extent of  
allowing a broad religious exemption, he argues, it can and must  
accommodate to the time- and place-specific use he has proposed.  Because  
the tenets of the Ethiopian Zion Coptic Church endorse marijuana use every  
day throughout the day, however, Olsen's proposal for confined use would  
not be self-enforcing.  It is hardly unreasonable to forecast a large  
monitoring burden in light of evidence that in years past, the church's  
"[c]hecks on distribution of cannabis to 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."  Town v.  
State ex rel. Reno, 377 So.2d at 649, 651. 

 
     Critically, Olsen's proposal would require the government to make  
supplies of marijuana available to Olsen's church on a regular basis.  See  
Reply Brief of Court-Appointed Amicus Curiae at 7, 17.  We are unaware of  
any "free exercise" precedent for compelling government accommodation of  
religious practices when that accommodation requires burdensome and  
constant official supervision and management.  Cf. Wissconsin v. Yoder, 406  
U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (religious exemption from  
compulsory school law at issue imposed no toll on the state); Sherbert v.  
Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (payment of  
unemployment compensation to person fired for refusing to work on Saturday  
Sabbath required no administrative mechanism other than the one already in  
place); Leahy v. District of Columbia, 833 F.2d 1046, 1049 n. 6  
(D.C.Cir.1987) (noting plaintiff Leahy's observation that government could  
readily accommodate religious objection to use of 


1463
OLSEN v. DRUG ENFORCEMENT ADMIN.
Cite as 878 F.2d 1458 (D.C. Cir. 1989)

 
social security number in driver's license application, "for the city  
already had in place an alternate system of numbers, used for issuing  
diplomatic driver's licenses"). [footnote 4] 

 
     In sum, we conclude that the DEA cannot accommodate Olsen's religious  
use of marijuana without unduly burdening or disrupting enforcement of the  
federal marijuana laws.  We therefore hold that the free exercise clause  
does not compel the DEA to grant Olsen an exemption immunizing his church  
from prosecution for illegal use of marijuana. 

 
                                    IV. 

 
     [4]  In addition to the argument that the free exercise clause  
requires government accommodation to sacramental use of marijuana by  
members of the Ethiopian Zion Coptic Church, Olsen asserts an establishment  
clause-equal protection challenge.  He maintains that members of his church  
are entitled to a religious exemption from the marijuana laws on the same  
terms as the peyote exemption granted the Native American Church.  See 21  
C.F.R.  1307.31 ("The listing of peyote as a controlled substance in  
Schedule I does not apply to the nondrug use of peyote in bona fide  
religious ceremonies of the Native American Church, and members of the  
Native American Church so using peyote are exempt from registration.").   
Olsen has urged before that members of his church are similarly situated to  
the beneficiaries of the exemption prescribed in 21 C.F.R.  1307.31.  See  
Olsen v. Iowa, 808 F.2d at 653; Rush, 738 F.2d at 513.  We join our sister  
courts in rejecting this plea.  Indeed, had the DEA timely objected, we  
might have held the issue precluded.  See RESTATEMENT (SECOND) OF JUDGMENTS  
 27 (1982). [footnote 5] 

 
     The DEA has cogently explained why a tightly-cabined exemption for  
peyote use in a religious rite need not mean that religious use of  
marijuana (or any other widely used controlled substance) must be  
accommodated: 

 
   [T]he actual abuse and availability of 
   marijuana in the United States is many 
   times more pervasive ... than that of 
   peyote....  The amount of peyote seized 
   and analyzed by the DEA between 1980 
   and 1987 was 19.4 pounds.  The amount 
   of marijuana seized and analyzed by the 
   DEA between 1980 and 1987 was 15,302,- 
   468.7 pounds.  This overwhelming differ- 
   ence explains why an accommodation can 
   be made for a religious organization 
   which uses peyote in circumscribed cere- 
   monies, and not for a religion which es- 
   pouses continual use of marijuana. 

 
Final Order, infra p. 1467. 

 
     We agree that the vast difference in demand for marijuana on the one  
hand and 

 
____________________ 

  
[footnote 4]
   Amicus cites the permission for medical and 
   scientific research use of marijuana ae evidence 
   that a religious accommodation can be arranged 
   without undue burden to the government.  See 
   Brief of Court-Appointed Amicus Curiae at 7-9, 
   21.  We think the tightly-drawn, closed system 
   for access to controlled substances by, or on the 
   order of, medical doctors and researchers can- 
   not tenably be compared to the permission 
   sought here.  Government may a1low use of 
   marijuana in programs to lessen the negative 
   side-effects of chemotherapy and to treat glau- 
   coma, for example, without thereby opening the 
   way to licenses for the use of marijuana by the 
   healthy. 

  
     Amicus also cites the peyote exemption ac- 
   corded the Native American Church as afford- 
   ing "reason ... to believe that a workable ac- 
   commodation exists in this case."  Id. at 21. 
   This argument is addressed infra in the context 
   of Olsen's establishment clause-equa1 protection 
   claim. 

  
[footnote 5]
   The dissent describes Olsen as choosing "an 
   Establishment Clase battleground" in prefer- 
   ence to an equal protection one.  Dissent at 
   1468.  01sen's own petitions to the DEA, how- 
   ever, featured equal protection.  See Brief of 
   Court-Appointed Amicus Curiae at App. 7, 19 ("I 
   would like you to respond to the issue of equal 
   protection....  Why are you discriminating 
   against my religion by denying the same bene- 
   fits which are given to the sacramenta1 uses of 
   peyote and wine?").  Court-appointed amicus 
   curiae, it is true, did put the comparison with 
   the Native American Church uder an etablish- 
   ment clause heading, drawing strength from 
   the Supreme Court's characterization in Larson 
   v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 
   L.Ed.2d 33 (1982). 

  
     We do not believe the label consequential.  As 
   court-appointed amicus recognized, in cases of 
   this character, establishment clause and equal 
   protection analysis converge.  See Walz v. Tax 
   Comm'n, 397 U.S. 664, 694, 696, 90 S.Ct. 1409, 
   1425, 25 L.Ed.2d 697 (1970) (Opinion of Harlan, 
   J.) (estblishment clause requirement of neu- 
   trality "in its application requires equal pro- 
   tection mode of analysis"). 


1464
878 FEDERAL REPORTER, 2d SERIES

 
peyote on the other warranted the DEA's response to Olsen's petition.  Were  
the DEA to consider a marijuana exemption, equal protection (and/or the  
establishment clause, see supra note 5) would indeed appear to command that  
it do so evenhandedly.  See Larson v. Valente, 456 U.S. 228, 102 S.Ct.  
1673, 72 L.Ed.2d 33 (1982); cf. Kennedy v. Bureau of Narcotics and  
Dangerous Drugs, 459 F.2d 415 (9th Cir. 1972) (petitioning church not  
entitled to peyote-use exemption that leaves nonexempt other churches that  
use peyote in bona fide religious ceremonies), cert. denied, 409 U.S. 1115,  
93 S.Ct. 901, 34 L.Ed. 2d 699 (1973).  The DEA would have no warrant to  
contain the exemption to a single church or religion.  See, e.g., Randall  
v. Wyrick, 441 F.Supp. 312 (W.D.Mo.1977) (Aquarian Brotherhood Church);  
Whyte v. United States, 471 A.2d 1018, 1020 (D.C.1984) (Rastafarians);   
State v. Rocheleau, 142 Vt. 61, 451 A.2d 1144, 1148-49 (1982)  
(practitioners of Tantric Buddhism). 

  
     [5]  Even if we were to credit Olsen's equal protection argument or  
the dissent's portrayal of it in terms of the establishment clause, the  
remedy Olsen requests hardly follows.  Faced with the choice between  
invalidation and extension of any controlled-substances religious  
exemption, which would the political branches choose?  It would take a  
court bolder than this one to predict, as our dissenting colleague appears  
to suggest, that extension, not invalidation, would be the probable choice.   
Compare Califano v. Westcott, 443 U.S. 76, 89-93, 99 S.Ct. 2655, 2663-65,  
61 L.Ed. 2d 382 (1979) (majority opinion) with id. at 94-96 (Powell, J.,  
dissenting).  See generally Miller, Constitutional Remedies for Under- 
inclusive Statutes: A Critical Appraisal of Heckler v. Mathews, 20 HARV.  
C.R.-C.L. L.REV. 79 (1985); Ginsburg, Some Thoughts on Judicial Authority  
to Repair Unconstitutional Legislation, 28 CLEVE.ST.L.REV. 301 (1979). 

  
     While we rest our decision on the immensity of the marijuana control  
problem in the United States, we note some further distinctions.  The  
peyote exemption was accorded to the Native American Church for a  
traditional, precisely circumscribed ritual.  In that ritual, the peyote  
itself is an object of worship; for members of the Native American Church,  
use of peyote outside the ritual is sacrilegious.  See People v. Woody, 61  
Cal.2d 716, 40 Cal Rptr. 69, 73, 394 P.2d 813, 817 (1964).  Thus the  
church, for all purposes other than the special, stylized ceremony,  
reinforced the state's prohibition.  In contrast, the Ethiopian Zion Coptic  
Church, as earlier observed, teaches that marijuana is properly smoked  
"continually all day," as Olsen himself stated, "through everything that we  
do."  State v. Olsen, 315 N.W.2d at 7; see also Town v. State ex rel. Reno,  
377 So.2d at 649.  True, for purposes of the exemption requested, Olsen  
narrowed the permission he sought to track the one accorded the Native  
American Church.  See Memorandum of Court-Appointed Amicus Curiae in  
Support and on Behalf of Petitioner Carl E. Olsen at 29-30 (submitted to  
DEA on remand).  But "narrow" use, concededly, is not his religion's  
tradition. 

  
     We mention too--but express no opinion concerning--the view of the  
First Circuit that the peyote exemption is bound up with the federal policy  
of preserving Native American culture, and thus can be comprehended  
properly only "[i]n light of the sui generis legal status of American  
Indians."  Rush, 738 F.2d at 513; accord Peyote Way Church of God v. Meese,  
698 F.Supp. 1342, 1346-49 (N.D.Tex.1988) (Native American Church is "the  
only one of its own kind" and exemption afforded it since 1965 "cannot be  
expanded to include non-Native American Church use of peyote"), appeal  
filed, Dec. 22, 1988; United States v. Warner, 595 F.Supp. 595, 600-01  
(D.N.D.1984) (exemption for Native American Church is tied to fulfillment  
of "government's unique obligation" to preserve Indian culture).  Contra  
Native American Church of New York v. United States, 468 F.Supp. 1247  
(S.D.N.Y.1979) (peyote exemption must be made available to another church  
if in fact it similarly uses peyote for sacramental purposes), aff'd mem.,  
633 F.2d 205 (2d Cir.1980). 

  
   In sum, assuming arguendo the legitimacy of an exemption for religious  
use of 


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Cite as 878 F.2d 1458 (D.C. Cir. 1989)

 
peyote, [footnote 6] we are persuaded that the Executive was not obliged by  
the Constitution to spread that exemption to church-users of marijuana. 

  
                                 CONCLUSION 

  
     For the reasons stated, in No. 86-1442 we deny Olsen's petition for  
review and affirm on the merits the DEA's July 1988 Final Order; and in No.  
86-5455 we declare Olsen's petition for a writ of mandamus moot and  
properly dismissed on that basis. 

  
     It is so ordered. 

  
                                  APPENDIX 

  
                         UNITED STATES DEPARTMENT OF 
                          JUSTICE DRUG ENFORCEMENT 
                               ADMINISTRATION 

  
In the Matter of 

  
PETITION OF CARL E. OLSEN FOR THE ETHIOPIAN ZION COPTIC CHURCH FOR AN  
EXEMPTION FROM THE CONTROLLED SUBSTANCES ACT 

  
                      On Remand From the United States 
                      Court of Appeals for the District 
                            of Columbia Circuit 

  
                                No. 86-1442 

  
                                FINAL ORDER 

  
     This order is issued pursuant to an Order from the United States Court  
of Appeals for the District of Columbia Circuit which remanded the matter  
of a petition from Carl Eric Olsen on behalf of the Ethiopian Zion Coptic  
Church to the Drug Enforcement Administration (DEA) in order to construct a  
complete record for review. 

  
     On April 22, 1986, the Administrator of DEA denied Mr. Olsen's request  
for an exemption from the Controlled Substances Act for use of marijuana  
for religious purposes by the, Ethiopian Zion Coptic Church.  Mr. Olsen  
petitioned the United States Court of Appeals for the District of Columbia  
Circuit for review of the Administrator's denial.  The Court remanded the  
matter to the DEA for further findings and a more complete record for  
review.  Pursuant to the Court's Order, agency counsel requested Mr. Olsen  
and the law firm of Hogan & Hartson, appointed amicus curiae by the Court,  
to present any documents, evidence or arguments which they wished the  
Administrator to consider in rendering a final decision. 

  
     Hogan & Hartson submitted a Memorandum of Law with attachments.   
Counsel for DEA has also provided the Administrator with a Memorandum of  
Law and attached documents.  The Administrator has considered the evidence  
before him, and hereby renders a final decision. 

  
     In his petition for exemption to use of marijuana for religious  
purposes, Mr. Olsen requests an exemption similar to that granted to the  
Native Arnerlcan Church for use of peyote in bona fide religious  
ceremonies.  This exemption is found in Title 21, Code of Federal  
Regulations, Section 1307.31.  Mr. Olsen cites Constitutional principles  
relating to the Free Exercise Clause of the First Amendment and Equal  
Protection as the basis for his request.  He also out- 

  
____________________ 

  
[footnote 6]
   Several state courts have held that the free 
   exercise clause compels the government to ex- 
   empt from criminal sanctions the use of peyote 
   by members of the Native American Church. 
   See Smith v. Employment Division, 307 Or. 68, 763 
   P.2d 146, 148 (1988), cert. granted, --- U.S. ---, 
   109 S.Ct. 1526, 103 L.Ed.2d 832 (1989); White- 
   horn v. State, 561 P.2d 539 (Okla.Crim.App. 
   1977); State v. Wittingham, 19 Ariz.App. 27, 504 
   P.2d 950 (Ct.App.1973), cert. denied, 417 U.S. 
   946, 94 S.Ct. 3071, 41 L.Ed.2d 667 (1974); People 
   v. Woody, 61 Cal.2d 889, 40 Cal.Rptr. 69, 394 
   P.2d 813 (1964).  But see State v. Bu11ard, 267 
   N.C. 599, 148 S.E.2d 565 (1966) (rejecting peyote 
   user's free exercise claim), cert. denied, 386 U.S. 
   917, 87 S.Ct. 876, 17 L.Ed.2d 789 (1967); State v. 
   Big Sheep, 75 Mont. 219, 243 P. 1067 (1926) 
   (1926).  The issue is sub judice before the Su- 
   preme Court in Smith.  Federal courts of ap- 
   peals have not yet reled definitively on the ques- 
   tion.  See Warner v. Graham, 845 F.2d 179, 183 
   (8th Cir.1988) (member of Native American 
   Church was discharged from state employment 
   because of her use of peyote; court upheld 
   defendants' qualified immunity plea to constitu- 
   tional tort claim because it could not say dis- 
   charge violated a "clearly established" first 
   amendment right); Peyote Way Church of God 
   v. Smith, 742 F.2d 193, 201 (5th Cir.1984) (re- 
   manding for further fact finding claim for pey- 
   ote exemption made by church unaffiliated with 
   Native American Church), on remand sub nom. 
   Peyote Way Church of God v. Meese, 698 F.Supp. 
   1342 (N.D.Tex.1988) (dismissing claim on the 
   merits), appeal filed, Dec. 22, 1988. 


1466
878 FEDERAL REPORTER, 2d SERIES

 
                             APPENDIX--Continued 

  
lines the history of the Ethiopian Zion Coptic Church and its use of  
marijuana as a sacrament.  For the reasons that follow, Mr. Olsen's request  
is denied. 

  
     The Administrator finds that he does not have the authority to grant  
the exemption requested by Mr. Olsen.  The Administrator's authority to  
conduct rulemaking and to make waivers to regulatory and statutory  
provisions of the Controlled Substances Act is specifically circumscribed  
by that Act.  The Controlled Substances Act contemplates legitimate  
manufacturing, distribution and use of controlled substances for medical,  
scientific and research purposes. 

  
     The Controlled Substances Act provides that all persons who desire to  
manufacture, distribute or dispense controlled substances must obtain a  
registration to do so.  The Attornev General is authorized to waive the  
requirement of registration if he finds that it is in the public interest.   
The terms manufacture, distribute and dispense are defined in the  
Controlled Substances Act and contemplate activity involving medical and  
scientific use of controlled substances.  Neither manufacturing,  
distribution or dispensing contemplates the possession of controlled  
substances for other than legitimate medical or research purposes. 

  
     The Administrator does not have inherent authority to make exemptions  
to the statute.  In granting the exemption for the Native American Church,  
the Director of the Bureau of Narcotics and Dangerous Drugs (BNDD) relied  
upon the intentions of Congress in the legislative history of the  
Controlled Substances Act for his ailthority. 

  
     The courts have found that the Administrator has authority to schedule  
substances under the Controlled Substances Act.  This authority was granted  
to the Attorney General by Congress with specific criteria and procedural  
requirements for scheduling.  The authority was subsequently delegated to  
the Administrator by the Attorney General as provided by the Act.  See: 21  
U.S.C.  871(a).  The criminal sanctions of the Act are dependent upon a  
substance being scheduled, and into which schedule it is placed.  The  
criteria for scheduling do not include provisions for religious use.  There  
is no mechanism for an exemption to scheduling for religious purposes.  The  
courts have closely reviewed the Administrator's scheduling of substances,  
and have recently held that he did not have the authority to temporarily  
schedule a substance without a specific delegation from the Attorney  
General.  If the courts refuse to expand the Administrator's authority  
under the Act to permit temporary scheduling which imposes criminal  
sanctions, it is expected they would refuse to expand the Administrators  
authority to waive those same criminal sanctions without specific 
authorization. 

  
     Because of the possibility that the United States Court of Appeals for  
the District of Columbia may find that the Administrator does have the  
authority to grant a religious exemption to the provisions of the  
Controlled Substances Act, the Administrator will also address the issue of  
whether the Ethiopian Zion Coptic Church should be granted an exemption for  
the use of marijuana for religious purposes. 

  
     In the Memorandum of Law filed on behalf of Mr. Olsen in this matter,  
Mr. Olsen represents that he has been denied basic procedural due process  
because no hearing has been held.  Where there is no issue of fact to be  
decided, and no statutory requirement for a hearing, a hearing is not  
necessary.  For purposes of this decision, the Administrator accepts that  
the Ethiopian Zion Coptic Church is a bona fide religion whose sacrament is  
marijuana.  The Administrator also accepts Mr. Olsen's representations of  
the method and manner of use of marijuana by members of the church.  The  
acceptance of these facts means there are no facts in dispute, and,  
therefore, no necessity for a hearing. 

  
     The Administrator finds that the federal courts that have interpreted  
the Free Exercise Clause of the First Amendment to the Constitution have  
held that an individual's religious practices may be curtailed by  
government statute or requirement if the government can show that its  
action serves a compelling state interest.  See: Bowen v. 


1467
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Cite as 878 F.2d 1458 (D.C. Cir. 1989)

 
                             APPENDIX--Continued 

  
Roy, 476 U.S. 693 (1986); Unlited States v. Lee, 455 U.S. 252 (1982).  The  
government must make a reasonable effort to accommodate the religious  
practice, but it is not always possible to make such accommodation, nor is  
it Constitutionally required.  The lower courts have found, in cases where  
religious practices were raised as a defense to criminal drug charges, that  
the government has a compelling state interest in the regulation of  
controlled substances and that accommodation is not usually possible.  The  
cases addressing the religious use of marijuana are consistent in finding  
that the Free Exercise Clause does not require the government to permit  
religious use of controlled substances.  Beginning with Leary v. United  
States, 383 F.2d 851 (5th Cir.1967), rev'd on other grounds, 395 U.S. 6  
(1969), the federal appellate courts have found that the government has a  
compelling interest in controlling marijuana use.  See: 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 (1st Cir.1984), cert.  
denied, 471 U.S. 1120 (1985) and Olsen v. State of Iowa, 808 F.2d 652 (8th  
Cir.1986).  It should be noted that the Petitioner in this matter, Mr.  
Olsen, was an appellant in both the Rush and Olsen cases, in which he  
raised his religious use of marijuana in defense of criminal charges  
involving possession and trafficking in marijuana.  The Middleton case  
involved a defendant who was a member of the Ethiopian Zion Coptic 
Church. 

  
     While Mr. Olsen maintains that these cases are not relevant to the  
Administrator's decision because they involve the defense of a criminal  
charge, the Administrator finds that they are indeed relevant in that the  
courts discuss the very Constitutional issues which must be addressed in  
this matter.  In addition to finding that the members of these religions  
had no Free Exercise guarantee to use controlled substances for religious  
purposes, the courts also found that as a matter of equal protection, these  
individuals' religions were not entitled to the same exemption as that  
given by DEA to the Native American Church for use of peyote for bona fide  
religious purposes.  In finding that members of the Ethiopian Zion Coptic  
Church are not entitled to the same exemption as the Native American  
Church, the courts have made a distinction between the practices of the  
Native American Church and other churches, and the court in Rush stated,  
"we think the Ethiopian Zion Coptic Church cannot be deemed similarly  
situated to the Native American Church for equal protection purposes."   
United States v. Rush, 738 F.2d 497, 513 (1st Cir.1984), cert. denied, 471  
U.S. 1120 (1985).  The Administrator finds that there is indeed a  
distinction between the practices of the Native American Church and the  
Ethiopian Zion Coptic Church.  Mr. Olsen has stated that the Ethiopian Zion  
Coptic Church advocates the continuous use of marijuana or "ganja", while  
the Native American Church's use of peyote is isolated to specific  
ceremonial occasions. 

  
     In addition, the Administrator finds that 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 in American society than that of peyote.  The  
statistics of DEA confirm this conclusion.  The amount of peyote seized and  
analyzed by the DEA between 1980 and 1987 was 19.4 pounds.  The amount of  
marijuana seized and analyzed by the DEA between 1980 and 1987 was  
15,302,468.7 pounds.  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.  Mr. Olsen and the other 19 defendants all claimed to be members  
of the Ethiopian Zion Coptic Church and raised the religious use of  
marijuana as a defense to criminal charges.  If Mr. Olsen's assertions that  
the Ethiopian Zion Coptic Church in the United States has 


1468
878 FEDERAL REPORTER, 2d SERIES

 
                             APPENDIX--Continued 

 
never had, "more than between 100 and 200 members in this country,"  
(Petitioner's Memorandum at page 11), 20 tons of marijuana would be an  
outrageous quantity to supply their religious needs. 

  
     Mr. Olsen submits that his church will submit to a reasonable  
accommodation to their use of marijuana, limiting its ingestion to specific  
days and specific time periods, Given the large amounts of marijuana  
available in this country, and the difficulty the DEA would have in trying  
to monitor compliance which [sic] such a requirement, the Administrator  
finds that accommodation is impractical.  The public interest dictates that  
the exemption granted for religious use of peyote to the Native American  
Church should not be expanded to include marijuana for the Ethiopian Zion  
Coptic Church, or any other religion. 

  
     Based upon the record in this proceeding, the legal precedents, and  
for the reasons outlined, the Petition by Carl Eric Olsen submitted on  
behalf of the Ethiopian Zion Coptic Church for an exemption to the  
Controlled Substances Act to use marijuana for religious purposes, is  
hereby denied. 

  
                                     /s/ John C. Lawn 
                                     JOHN C. LAWN 
                                     Administrator 

  
Dated: July 26, 1988 

  
     BUCKLEY, Circuit Judge, dissenting: 

  
     I dissent because the majority fails to address the Establishment  
Clause implications of the Drug Enforcement Agency's rejection of Olsen's  
request for a limited religious exemption.  That denial creates a clear-cut  
denominational preference in favor of the Native American Church, which has  
been granted such an exemption.  As the agency has not adequately explained  
why the Ethiopian Zion Coptic Church must not be accorded comparable  
treatment, I would grant Olsen's petition for review on the Establishment  
Clause claim and remand to the agency. 

  
                                     I. 

  
     The majority treats Olsen's denominational preference claim as an  
equal protection challenge rather than as one involving the Establishment  
Clause.  Majority Opinion ("Maj. op.") at 1463-65.  While the Supreme    
Court has at times discussed the principle of neutrality among religions in  
terms of equal protection rights, see, e.g., Fowler v. Rhode Island, 345  
U.S. 67, 70, 73 S.Ct. 526, 527, 97 L.Ed. 828 (1953) (Frankfurter, J.,  
concurring), Olsen's choice of an Establishment Clause battleground is  
consistent both with the facts of this case and with the Supreme Court's  
more recent precedent that applies the Establishment Clause to  
denominational preferences (see Larson v. Valente, 456 U.S. 228, 244 et  
seq., 102 S.Ct. 1673, 1683 et. seq., 72 L.Ed. 2d 33 (1982)). 

  
                                    II. 

  
     Although certain aspects of the Supreme Court's Establishment Clause  
jurisprudence are complex, the doctrine applicable in this particular case  
is straightforward.  "The clearest command of the Establishment Clause is  
that one religious denomination cannot be officially preferred over  
another."  Id. at 244, 102 S.Ct. at 1683; see also Everson v. Board of  
Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947) ("The  
'establishment of religion' clause ... means at least this: Neither a state  
nor the Federal Government can set up a church.  Neither can pass laws  
which aid one religion, aid all religions, or prefer one religion over  
another.").  When we are presented with government action "granting a  
denominational preference, our precedents demand that we treat the law as  
suspect and that we apply strict scrutiny in adjudging its   
constitutionality."  Larson, 456 U.S. at 246, 102 S.Ct. at 1684. 

  
     In the instant case, the DEA has permitted the Native American Church  
to make sacramental use of a drug listed as a Schedule I controlled  
substance under the Controlled Substances Act, but denied the Ethiopian  
Zion Coptic Church a similar accommodation.  This denominational preference  
constitutes a violation of the Establishment Clause unless the DEA is able  
to demonstrate that "it is justified by a compelling governmental interest  
... and ...  


1469
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Cite as 878 F.Zd 1458 (D.C. Cir. 1989)

 
is closely fitted to further that interest."  Larson, 456 U.S. at 247, 102 
S.Ct. at 1685. 

  
     The DEA asserts that it does not have the inherent authority to grant 
exemptions, and that "[i]n granting the exemption for the Native American 
Church, the [DEA's predecessor] relied upon the intentions of Congress in 
the Controlled Substances Act for its authority." [footnote *]  In the 
Matter of Petition of Carl E. Olsen for the Ethiopian Zion Coptic Church, 
Final Order (July 26, 1988) ("Final Order"), supra at 1466.  On appeal, the 
agency also implies, DEA Brief at 24, that the Native American Church is to 
be distinguished not on the basis of its religious character, but on "the 
sui generis legal status of American Indians" (quoting United States v. 
Rush, 738 F.2d 497, 513 (lst Cir.1984)). 

  
     Neither explanation is relevant.  Whatever the DEA's authority to 
grant exemptions,  it has in fact granted one to the Native American 
Church.  Furthermore, that Church's status as an indigenous faith does not 
affect its religious character.  As the Department of Justice's Office of 
Legal Counsel wrote when reviewing the Native American Church's exemption: 

  
   [T]he special treatment of Indians under 
   our law does 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 na- 
   tions preexisting the Constitution, which 
   still retain a measure of inherent sover- 
   eignty over their peoples unless divested 
   by federal statute or by necessary impli- 
   cation of their dependent status.  See 
   United States v. Wheeler, 435 U.S. 313, 
   98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). 

  
      An exemption for Indian religious use 
   of peyote would not be grounded in the 
   unique political status of Indians.  In- 
   stead, 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 viola- 
   tion of the Establishment Clause. 

  
Memorandum Opinion for the Chief Counsel, Drug Enforcement Administration, 
Peyote Exemption for Native American Church 403, 419 (Dec. 22, 1981), 
reprinted as attachment 16 of Memorandum of Court-Appointed Amicus Curiae 
in Support and on Behalf of Petitioner Carl E. Olsen (submitted to DEA on 
remand) ("Amicus Memorandum"). 

  
     As the United States Government unquestionably has granted the Native 
American Church an accommodation that it has declined to extend to the 
Ethiopian Zion Coptic Church, it has the burden of demonstrating that its 
action was required by its paramount responsibility for the control of 
drugs.   I submit that the DEA's' explanation in its Final Order falls far 
short of meeting Larson's strict scrutiny standard. 

  
     In its discussion of the issues implicated by the Establishment 
Clause, the DEA finds two points of distinction between the Native American 
Church and the Ethiopian 

  
____________________

  
[footnote *]  
   It is by no means certain that the present exemp- 
   tion has its origin in a congressional mandate 
   rather than in an agency determination that it 
   was constitutionally required.  As the DEA 
   notes in its brief, DEA Brief at 4-5 n. 4, the first 
   regulation exempting the Native American 
   Church's use of peyote was issued following the 
   enactment of the Drug Abuse Contro1 Amend- 
   ments of 1965.  Shortly before final House ac- 
   tion on the bill, the Chairman of the House 
   Committee on Interstate and Foreign Com- 
   merce, Congressman Harris, introduced a letter 
   from the Food and Drug Administration (the 
   agency then concerned with drug enforcement) 
   in support of his recommendation that his col- 
   leagues accept a Senate amendment striking a 
   House provision exempting the sacramental use 
   of peyote.  The letter contains the following 
   statement: 

  
     If the church is a bona fide religious organiza- 
     tion that makes sacramental use of peyote, 
     then it would be our view that H.R. 2, even 
     without the peyote exemption which appeared 
     in the House-passed version, could not forbid 
     bona fide religious use of peyote.  We believe 
     that the constitutional guarantee of religious 
     freedom fully safeguards the rights of the 
     organization and its communicants. 

  
   111 Cong.Rec. 15,977-78 (1965).  The House 
   concurred in the Senate amendment immediate- 
   ly thereafter.  Id. at 15,778. 


1470
878 FEDERAL REPORTER, 2d SERIES

 
Zion Coptic Church.  The first turns on differences between the practices 
of the two churches as they relate to the use of peyote and marijuana; the 
second hinges on the differences in the law enforcement problems posed by 
the two drugs. 

  
     The first distinction is addressed in a single sentence: "Mr. Olsen 
has stated that the Ethiopian Zion Coptic Church advocates the continuous 
use of marijuana or 'ganja', while the Native American Church's use of 
peyote is isolated to specific ceremonial occasions."  Final Order, supra 
at 1467.  The problem with this statement is that it wholly ignores the 
stringent restrictions on the members' sacramental use of marijuana that 
would be imposed by the terms of the limited religious exemption requested 
by Olsen.  See Maj. op. at 1460.  The DEA later acknowledges that Olsen has 
proposed limiting the use of marijuana "to specific days and specific time 
periods," but dismisses the proposal because of "the large amounts of 
marijuana available in this Country, and the difficulty the DEA would have 
in trying to monitor compliance" with the stipulated restrictions.  Final 
Order, supra at 1468.  Without more, I find this explanation utterly 
unsatisfactory as any member of the Church found in possession of the drug 
outside the limited hours and place set aside for its ceremonial use would 
not be shielded by the exemption. 

  
     Moreover, the restrictions proposed by Olsen, which are similar to 
those imposed by the Native American Church on the sacramental use of 
peyote, clearly distinguish this case from those cited by the DEA (id. at 
1467-68) and the majority (Maj. op. at 1463) to show that other circuits 
have rejected comparable claims advanced on behalf of the Ethiopian Zion 
Coptic Church.  None of those cases involved the facts now before us: the 
denial of a request for a limited, prospective exemption from the 
Controlled Substances Act that the government had already granted another 
denomination. 

  
     The second distinction made by the DEA, and the one that the majority 
finds compelling, is the dramatic disparity between our society's abuse of 
the two substances as illustrated by the fact that 19.4 pounds of peyote 
were seized by the DEA between 1980---and 1987 in contrast to the 
15,302,468.7 pounds of marijuana seized during the same period.  Final 
Order, supra at 1467.  "This overwhelming difference," the DEA asserts, 
"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."  Id.  With all respect to the DEA and 
my colleagues, I must demur.  The difference in pounds seized is indeed 
overwhelming but, again, the explanation is not. 

  
     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.  Moreover, this quantitative 
justification, standing alone, is difficult to reconcile with Larson.  In 
that case, the Supreme Court invalidated a provision of a Minnesota statute 
exempting religious organizations that receive more than fifty percent of 
their funds from members ("fifty percent rule") from certain registration 
and reporting requirements imposed on charitable organizations engaged in 
fundraising.  The practical consequence of this provision was to confer a 
preference on well-established denominations.  Applying strict scrutiny to 
the State's justification of the preference, the Court conceded Minnesota's 
compelling interest in protecting it's citizens from abusive solicitation 
practices but concluded that it had failed to demonstrate that the fifty 
percent rule was closely fitted to further that interest.  456 U.S. at 251, 
102 S.Ct. at 1686-87. 

  
     Minnesota justified the rule on the ground that it could be assumed 
that members of religious organizations exercise control over both the 
internal solicitation of contributions and the expenditure of the funds 
that they contribute.  Id. at 248, 102 S.Ct. at 1685.   The State asserted 
that where these safeguards do not exist, public 


1471
OLSEN v. DRUG ENFORCEMENT ADMIN.
Cite as 878 F.2d 1458 (D.C. Cir. 1989)

 
disclosure is necessary.  Id.  The Court rejected this justification for 
three reasons.  First, it determined that the State had failed to provide 
any evidence demonstrating that members of religious organizations "will 
effectively control the organization if they contribute more than half of 
its solicited income," id. at 249, 102 S.Ct. at 1686 (emphasis original); 
second, the State had not suppported its assumption "that membership 
control is an adequate safeguard against abusive solicitations of the 
public by the organization," id. at 250, 102 S.Ct. at 1686; and third, the 
Court rejected a premise behind the fifty percent rule that the need for 
public disclosure corresponds to the percentage of nonmember contributions.   
Id. at 251, 102 S.Ct. at 1686-87. 

  
     The Supreme Court's detailed scrutiny of Minnesota's justification of 
the fifty percent rule underscores the superficiality of the DEA's 
Justification of its denominational preference in this case.  The DEA 
offers no reason why it could not have tailored a closer fit than its out-
of-hand denial of the requested exemption.  The DEA finds no difficulty in 
monitoring the compliance by the more than 250,000 members of the Native 
American Church with the limited use of peyote permitted for ceremonial 
purposes, and the majority offers good reasons why this should be so.  Maj. 
op. at 1464.  Yet the only reason the agency gives for concluding that 
monitoring compliance by the estimated one to two hundred communicants of 
the Ethiopian Zion Coptic Church living in the United States (Amicus 
Memorandum at 11) should be more difficult is that our streets are awash in 
marijuana.  Without further explanation, I find this reasoning less than 
compelling.  As in the case of the Native American Church, the exemption 
would place no restriction on the ageney's normal enforcement activities 
beyond the parameters of the Church's place of worship during the limited 
number of hours in which the sacramental use of marijuana would be 
permitted. 

  
     The majority notes a significant problem the DEA might face if it were 
to grant Olsen's request: 

  
   Were the DEA to consider a marijuana 
   exemption, equal protection (and/or the 
   establishment clause ...) would indeed 
   appear to command that it do so even- 
   handedly.  The DEA would have no war- 
   rant to contain the exemption to a single 
   church or religion. 

  
Maj. op. at 1464 (citations omitted).  I find the majority's "opening the 
floodgate" argument more persuasive than anything the DEA has offered.  It 
is for the agency, however, to make the argument and to explain why it 
would find itself unable to cope with the flood of similar applications, 
not for us to speculate about them. 

  
     Finally, the majority supports the denial of the exemption to Olsen by 
arguing that 

  
      Even if we were to credit Olsen's equal 
   protection argument or the dissent's por- 
   trayal of it in terms of the establishment 
   clause, the remedy Olsen requests hardly 
   follows.  Faced with the choice between 
   invalidation and extension of any con- 
   trolled-substances religious exemption, 
   which would the political branches 
   choose?  It would take a court bolder 
   than this one to predict, as our dissenting 
   colleague appears to suggest, that exten- 
   sion, not invalidation, would be the prob- 
   able choice. 

  
Maj. op. at 1464.  I have two responses.  First, the Supreme Court has 
consistently recognized that conceptual problems regarding appropriate 
remedial actions do not relieve us of our obligation to review government 
classifications that are impermissibly underinclusive.  See, e.g., Arkansas 
Writer's Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 
209 (1987) (finding Arkansas statute unconstitutionally underinclusive).  
Second, we would not be called upon to make the choice the majority 
describes if, as I believe appropriate, we were to remand the case to the 
DEA for further consideration in light of its Establishment Clause 
implications. 

  
                                    IV. 

  
     The DEA has chosen to accommodate one religion but not another.  The 
Establishment Clause compels the agency to justify its distinction and 
requires us to scrutinize the agency's rationale strictly.  Given this 
demanding standard of review, I must 


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878 FEDERAL REPORTER, 2d SERIES

 
conclude that the agency has failed to satisfy its burden.  Accordingly, I 
would grant Olsen's petition for review and remand to the agency for 
reconsideration without reaching Olsen's Free Exercise challenge.