United States v. Rush, 738 F.2d 497, 511-513 (1st Cir. 1984)


  Appellants claim that they were denied the opportunity to assert a valid, 
legally sufficient defense based on the free exercise clause of the first 
amendment. [Footnote 29.  "Congress shall make no law ... prohibiting the 
free exercise [of religion) ...."  U.S. Const. amend. I.]  For purposes of 
this case the government stipulated to the following facts, which we 
assume, without deciding, are true:

  1) that the Ethiopian Zion Coptic Church is a religion embracing beliefs
  which are protected by the First Amendment; 2) that the use of marijuana
  is an integral part of the religious practice of the Church; and 3) that
  [all of the defendants] are members of the Church and sincerely embrace
  the beliefs of the Church.

On November 23, 1982, the district court ruled as a matter of law that the 
first amendment did not protect the possession of marijuana with intent to 
distribute by the defendants, and further ordered that the defendants be 
precluded from introducing at trial any evidence concerning the Ethiopian 
Zion Coptic Church and the use of marijuana by its members, insofar as such 
evidence related to their alleged first amendment defense. [Footnote 30.  
The ruling was carefully tailored to exclude evidence only in relation to 
the first amendment defense; at trial, two defense witnesses were permitted 
to testify as to the quantity and methods of marijuana consumption by 
Church members in support of the Swiderski defense discussed in part IV.]

  It is well established that the absolute constitutional protection 
afforded freedom of religious belief does not extend without qualification 
to religious conduct.  Braunfield v. Brown, 366 U.S. 599, 603 (1961); 
Cantwell v. Connecticut, 310 U.S. 296 (1940).  When a law is challenged as 
interfering with religious conduct, the constitutional inquiry involves 
three questions: (a) whether the challenged law interferes with free 
exercise of a religion; (b) whether the challenged law is essential to 
accomplish an overriding governmental objective; and (c) whether 
accommodating the religious practice would unduly interfere with 
fulfillment of the governmental interest.  See United States v. Lee, 455 
U.S. 252, 256-59 (1982).

  In light of the government's stipulations, the first limb of the Lee 
standard is clearly met; there is no question that marijuana use is an 
integral part of the religious doctrine and practice of the Ethiopian Zion 
Coptic Church, and that appellants are sincere practicing members of that 
Church.  The conflict with the criminal sanctions against possession of 
marijuana with intent to distribute is self-evident.

  The question whether the government has an overriding interest in 
controlling the use and distribution of marijuana by private citizens is a 
topic of continuing political controversy.  Much evidence has been adduced 
from which it might rationally be inferred that marijuana constitutes a 
health hazard and a threat to social welfare; on the other hand, proponents 
of free marijuana use have attempted to demonstrate that it is quite 
harmless.  See Randall v. Wyrick, 441 F. Supp. 312, 315-16 (W.D. Mo. 1977); 
United States v. Kuch, 288 F. Supp. 439, 446 & 448 (D.D.C. 1968).  In 
enacting substantial criminal penalties for possession with intent to 
distribute, Congress has weighed the evidence and reached a conclusion 
which it is not this court's task to review de novo.  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, and has upheld the criminal sanctions 
for possession and distribution of marijuana even where such sanctions 
infringe on the free exercise of religion.   United States v. Middleton, 690 
F.2d 820, 825 (11th Cir. 1982), cert. denied, 460 U.S. 1051 (1983); United 
States v. Spears, 443 F.2d 895 (5th Cir. 1971), cert. denied, 404 U.S. 1020 
(1972); Leary v. United States, 383 F.2d 851, 859-61 (5th Cir. 1967), rev'd 
on other grounds 395 U.S. 6 (1969); Randall, 441 F. Supp. at 316 & n. 2; 
Kuch, 288 F. Supp. at 448.  Only last year, the Eleventh Circuit rejected 
identical claims raised by some of the very appellants before us in this 
case, see Middleton, 690 F.2d 820, and the United States Supreme Court 
denied review.  We decline to second-guess the unanimous precedent 
establishing an overriding governmental interest in regulating marijuana.

  Finally, it has been recognized since Leary that accomodation of 
religious freedom is practically impossible with respect to the marijuana 

    Congress has demonstrated beyond doubt that it believes marihuana is an
  evil in American society and a serious threat to its people.  It would be
  difficult to imagine the harm which would result if the criminal
  sanctions against marihuana were nullified as to those who claim the
  right to possess and traffic in this drug for religious purposes.  For
  all practical purposes the anti-marihuana laws would be meaningless, and
  enforcement impossible.

Leary,383 F.2d at 861, quoted in Middleton, 690 F.2d at 825; see also Kuch, 
288 F. Supp. at 447.  Although a narrow administrative exception has been 
carved out from the Schedule I classification of peyote for the benefit of 
the Native American Church, see 21 C.F.R.  1307.31, we think this 
exemption is properly viewed as a government "effort toward accommodation" 
for a "readily identifiable, narrow catagory" which has minimal impact on 
the enforcement of the laws in question.  Lee, 455 U.S. at 260 n. 11 & 261.  
No broad religious exemption from the marijuana laws is constitutionally 
required.  We therefore affirm the district court's ruling rejecting 
appellants' first amendment defense as a matter of law.

  We reject as well appellants' claim that members of the Ethiopian Zion 
Coptic Church are entitled as a matter of equal protection to a religious 
exemption from the marijuana laws on the same terms as the peyote exemption 
granted the Native American Church.  Marijuana is not covered by the peyote 
exemption; this in itself distinguishes this case from Kennedy v. Bureau of 
Narcotics and Dangerous Drugs, 459 F.2d 415 (9th Cir, 1972), cert. denied, 
409 U.S. 1115 (1973).  Moreover, the peyote exemption is uniquely supported 
by the legislative history and congressional findings underlying the 
American Indian Religious Freedom Act, which declares a federal policy of 
"protecting] and preserv[ing] for American Indians their inherent right of 
freedom to believe, express and exercise the[ir] traditional religions 
including but not limited to access to sites, use and possession of sacred 
objects, and the freedom to worship through ceremonials and traditional 
rites."  42 U.S.C.  1996.  The legislative history of the Act "is clear in 
finding that religion is an integral part of Indian culture and that the 
use of such items as peyote are necessary to the survival of Indian 
religion and culture."  Peyote Way Church of God, Inc. v. Smith, 556 F. 
Supp. 632, 637 (N.D. Tex. 1983).  In light of the sui generis legal status 
of American Indians, see Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 
16-17 (1831) (Marshall, C.J.), and the express policy of the American 
Indian Religious Freedom Act (which was passed after Kennedy was decided), 
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, 511-513 (1st Cir. 1984).