CARL ERIC OLSEN, PETITIONER V. DRUG ENFORCEMENT ADMINISTRATION No. 89-6274 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Brief For The Respondent In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-30a) is reported at 878 F.2d 1458. The Final Order of the Drug Enforcement Administration (DEA) is reprinted at Pet. App. 16a-22a. JURISDICTION The judgment of the court of appeals was entered on June 20, 1989. A petition for rehearing was denied on September 15, 1989. The petition for a writ of certiorari was filed on December 13, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Free Exercise Clause, the Establishment Clause, or the Equal Protection Clause requires the federal government to exempt petitioner's proposed religious use of marijuana from the Controlled Substances Act, 21 U.S.C. 801, et seq. STATEMENT 1. The Controlled Substances Act, 21 U.S.C. 801, et seq., makes it unlawful for any person knowingly or intentionally "to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. 841(a)(1). The Act also makes it unlawful for any person "knowingly or intentionally to possess a controlled substance," subject only to narrow limitations. 21 U.S.C. 844. In enacting the Act, Congress determined that the "possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people." 21 U.S.C. 801(2). Both peyote and marijuana are listed as "Schedule I" controlled substances under the Act. 21 U.S.C. 812(c). Federal law first prohibited the manufacture or distribution of peyote in the Drug Abuse Control Act Amendments of 1965, Section 3(a), Pub. L. No. 89-74, 79 Stat. 227. Shortly after Congress passed the 1965 Amendments, the Food and Drug Administration, which was responsible for administering the Amendments at that time, issued the following regulation exempting bona fide religious use of peyote under certain circumstances: The listing of peyote in this subparagraph does not appy to the nondrug use in bona fide religious ceremonies of the Native American Church; however, persons supplying the product to the Church are required to register and maintain appropriate records of receipts and disbursements of the article. 21 C.F.R. 166.3 (1967). Although this exemption, now codified at 21 C.F.R. 1307.31 (1989), mentions only the Native American Church, the Department of Justice's Office of Legal Counsel has concluded that it "exempts the religious use of peyote by the (Native American Church) and by other bona fide peyote-using religions in which the actual use of peyote is central to established religious beliefs, practices, dogmas, or rituals." Memorandum Opinion for the Chief Counsel, Drug Enforcement Administration. Office of Legal Counsel, Department of Justice 403, 409 (December 22, 1981) (Pet. App. 195a, 201a). This conclusion is binding on the DEA, a Department of Justice component, which has succeeded to the responsibility for enforcing the Controlled Substances Act. Id. at 408 n.13 (Pet. App. 200a n.13). 2. Petitioner is a member and priest of the Ethiopian Zion Coptic Church (the Church), which has several thousand members in Jamaica but which has never had more than 200 members in the United States. Pet. App. 2a. For purposes of this case, the DEA has stipulated that the Church is a bona fide religion, and that its sacrament is marijuana. Pet. App. 19a (DEA Final Order). According to the teachings of the Church, marijuana is combined with tobacco and smoked "continually all day, through church services, through everything we do." Pet. App. 2a (quoting State v. Olsen, 315 N.W.2d 1, 7 (Iowa 1982) (quoting petitioner's testimony)); Pet. App. 19a. /1/ During the 1980's, petitioner and other members of his Church were convicted on several occasions in federal and state courts for various marijuana offenses. 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 (1985); United States v. Middleton, 690 F.2d 820 (11th Cir. 1982), cert. denied, 460 U.S. 1051 (1983); State v. Olsen, 315 N.W.2d 1 (Iowa 1982); see also Town v. State ex rel. Reno, 377 So.2d 648 (Fla. 1979) (enjoining marijuana use), cert. denied, 449 U.S. 803 (1980). On one such occasion, petitioner was convicted of possessing approximately 20 tons of marijuana with intent to distribute, in violation of the Controlled Substances Act, 21 U.S.C. 841(a)(1) & (b)(6). See Rush, 738 F.2d at 501-502. 3. At several times between 1983 and 1985, petitioner requested the DEA to grant an exemption permitting his Church's sacramental use of marijuana. In January 1986, he petitioned the United States District Court for the District of Columbia for a writ of mandamus to compel the DEA to respond to his petitions. After the district court directed the DEA to show cause why the writ should not issue, the DEA denied petitioner's petitions by letter of April 1986, concluding that "the immensity of the marijuana abuse problem" and the "compelling governmental interest" in controlling trafficking in and use of marijuana outweighed the Church's interest in access to the substance. Pet. App. 3a-4a. The District Court then dismissed petitioner's mandamus petition as moot. Ibid. Petitioner then petitioned the United States Court of Appeals for the District of Columbia Circuit for review of the DEA's decision, and appealed from the District Court's dismissal of his mandamus petition. After the Court of Appeals remanded the matter for renewed agency consideration, petitioner, through a court-appointed amicus curiae, presented a new proposal that included the following limitations on his Church's proposed sacramental marijuana use: 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. Pet. App. 4a-5a. The DEA then issued a Final order reaffirming its denial of petitioner's proposal, both in its original form and with the suggested modifications. The DEA rejected his Free Exercise Claim on the ground that the government has a compelling interest in the regulation of controlled substances. It rejected his Establishment and Equal Protection Clause claims on the ground that his Church's religious use of marijuana materially differs from the Native American Church's (NAC's) religious use of peyote. Pet. App. 19a-21a. /2/ In explaining the differences between petitioner's claim and peyote-use exemption found in 21 C.F.R. 1307.31, the DEA began by noting that petitioner's Church "advocates the continuous use of marijuana or 'ganga', while the Native American Church's use of peyote is isolated to specific ceremonial occasions." Pet. App. 21a. The DEA then pointed out 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." Ibid. The DEA further noted that petitioner's conviction in United States v. Rush, supra, involved the illegal importation of 20 tons of marijuana, which "would be an outrageous quantity to supply (the Church's) religious needs" given its membership. Ibid. Finally, the DEA concluded that accommodation of the Church's religious use of marijuana would be "impractical" even under the limitations suggested by amicus on petitioner's behalf because of the "large amounts of marijuana available in this country, and the difficulty the DEA would have in trying to monitor compliance (with) such a requirement." Pet. App. 22a. 4. A divided panel of the United States Court of Appeals for the District of Columbia Circuit denied petitioner's mandamus petition and affirmed the DEA's Final Order. /3/ Pet. App. 1a-15a. At the outset, the court dismissed the possibility that the DEA may not have authority under the statute to make exemptions for any church save the NAC. The court ruled that interpreting the statute in such a way would unnecessarily raise constitutional questions because it would create a "denominational preference" under Larson v. Valente, 456 U.S. 228 (1982). Pet. App. 6a-7a. The majority next rejected petitioner's Free Exercise claim, concluding that even the limited use of marijuana petitioner proposed on remand could not reasonably be accommodated without undue interference with the government's compelling interest in controlling the drug. The majority was particularly concerned about the Church's tradition of failing to provide adequate checks against the distribution of marijuana to non-members of the faith, of allowing children to have easy access to marijuana, and of using marijuana anywhere, not just within the confines of a church facility. Pet. App. 9a-10a. /4/ It also noted the burden the government would have to carry in supervising the marijuana supply to petitioner's Church. Pet. App. 10a. The majority then rejected petitioner's challenge under the Establishment and Equal Protection Clauses, holding that his requested exemption was dissimilar to the exemption in 21 C.F.R. 1307.31 because of the differences in demand and availability between marijuana and peyote and because of his Church's tradition of expansive and relatively uncontrolled use of marijuana. Pet. App. 12a-14a. /5/ Judge Buckley dissented because he believed that the DEA's dismissal of petitioner's exemption request revealed a denominational preference as defined in Larson, supra, in favor of the NAC since that church was granted a peyote-use exemption. Judge Buckley would have ordered the DEA to grant the requested exemption. In his view, the DEA failed to advance any sufficient explanation for its claim that it would be too burdensome for the government to monitor compliance with the limitations petitioner proposed and had failed to substantiate its representation that the prevalence of marijuana as compared to peyote made the government's monitoring role in petitioner's case different from that in the case of the NAC. Pet. App. 23a-29a. ARGUMENT The court of appeals' holding that the Constitution does not protect petitioner's asserted right to use marijuana during his religious services is faithful to this Court's Free Exercise, Establishment, and Equal Protection Clause decisions and does not conflict with the decision of any other court of appeals. The DEA's exemption for religious peyote use in 21 C.F.R. 1307.31 applies equally to all bona fide religious groups, and the DEA's decision not to extend that limited exemption for peyote use to marijuana use is supported by valid secular purposes. The DEA's reasons for distinguishing marijuana use from peyote use also differentiate the claims in this case from the Free Exercise Claim in Oregon Employment Division v. Smith, No. 88-1213, cert. granted, 109 S. Ct. 1526 (1989). Thus, this Court need not hold this case pending the resolution of Smith. 1. Petitioner's principal contention is that the DEA has created an unlawful "denominational preference" in favor of the Native American Church by exempting that church's religious peyote use from the Controlled Substances Act, while denying a similar exemption for his Church's religious marijuana use. In petitioner's view, the DEA regulation in question, 21 C.F.R. 1307.31, cannot survive the strict scrutiny that must be applied under the Establishment Clause to denominational preferences. Pet. 7-22. However, the DEA regulation at issue does not establish any preference for one denomination over others. Although 21 C.F.R. 1307.31 expressly mentions only the Native American Church, the regulation has been authoritatively interpreted by the Department of Justice's Office of Legal Counsel as applying equally to all "bona fide peyote-using religions in which the actual use of peyote is central to established religious beliefs, practices, dogmas, or rituals." Pet. App. 201a. Thus, contrary to petitioner's contention (Pet. 11), the court of appeals correctly rejected petitioner's "denominational preference" claim. See Pet. App. 6a-7a. Because the DEA regulation does not establish a denominational preference, this Court's decisions in Hernandez v. Commissioner, 109 S. Ct. 2136, 2146 (1989), Larson v. Valente, supra, and Gillette v. United States, 401 U.S. 437 (1971), indicate that the applicable test for determining whether that regulation violates the Establishment Clause is that set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). The DEA regulation easily passes that three-part test. Petitioner does not claim that the DEA regulation has the primary effect of advancing religion or that it would create any excessive entanglement between church and state. It is equally evident that the regulation serves a valid secular purpose -- to accommodate the sincere religious needs of bona fide peyote-using churches. See, e.g., Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334-335 (1987) (accommodation of religion is valid secular purpose). The DEA's refusal to extend the regulation to petitioner's proposed religious use of marijuana also passes the Lemon test without any difficulty because the DEA's decision, which does not increase church and state entanglement at all, is neutral in purpose and primary effect. The DEA has chosen strictly to limit the availability of religious-use exemptions from federal drug laws. A religious marijuana-use exemption falls outside that limit because "the actual abuse and availability of marijuana in the United States is many times more pervasive in American society than that of peyote." Pet. App. 21a. To extend the DEA's exemption of religious peyote use to include religious marijuana use would transform what is now a very limited exemption for a "'readily identifiable'" and "'narrow category'" of religious drug use that has "minimal impact on the enforcement of the (federal narcotics) laws" (Rush, 738 F.2d at 512), into a broad license that would render the narcotics laws virtually meaningless and unenforceable (Leary v. United States, 383 F.2d 851, 861 (5th Cir. 1967), rev'd in part on other grounds, 395 U.S. 6 (1969)). /6/ As the majority noted below, if the DEA granted an exemption here, the Establishment Clause would require it to extend the exemption to any and all religious groups and individuals whose religious beliefs the DEA could not prove are insincere. Pet. App. 12a-13a. Given the vast public demand for marijuana and its widespread availability, the result would be to create a powerful incentive to feign religious claims, and thus substantially to impair the DEA's enforcement of the narcotics laws. See Gillette, 401 U.S. at 457 (noting that "'sincerity' is a concept that can bear only so much adjudicative weight"). Similarly, there is no reason to question the good faith or the reasonableness of the DEA's considered professional judgment that the burden of monitoring the limited use of marijuana under petitioner's proposed exemption would be vastly greater than the burden of monitoring the limited use of peyote allowed under 21 C.F.R. 1307.31. Pet. App. 21a-22a. It was reasonable for the DEA to conclude that the public awareness of marijuana and demand for that drug greatly exceeds the public awareness and demand for peyote, and that marijuana is much more readily available than peyote. It was equally reasonable for the DEA to conclude that compliance with the marijuana-use exemption would be more difficult to monitor than compliance with the peyote-use exemption because of the Church's tradition of continuous, relatively uncontrolled use of marijuana and because of petitioner's own conviction for possessing 20 tons of marijuana, an amount that far exceeds the amount needed to supply his Church. Ibid. Thus, the DEA's denial of his petitions was fully consistent with both the Establishment Clause and the Equal Protection Clause. See Gillette, 401 U.S. at 449 n.14 (same neutral, secular reasons that justify limitation on military service exemption under Establishment Clause also satisfy equal protection concerns). Even if this Court were to conclude that 21 C.F.R. 1307.31 does establish a denominational preference, the DEA's reasons for refusing to extend that regulation to petitioner's claim would withstand strict scrutiny. The government is entitled to anticipate future harms if they are reasonably likely to occur and if they relate to a compelling government interest. For example, in United States v. Lee, 455 U.S. 252 (1982), this Court held that the Free Exercise Clause did not require an exemption from Social Security taxes for individuals who were religiously opposed to paying such taxes. The Court accepted the argument that "(t)he tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief." 455 U.S. at 260. It is equally self-evident that federal narcotics laws "could not function" if individuals such as petitioner and his fellow Church members could evade the drug laws merely by alleging that their religion requires them to use illegal drugs. Finally, there is no merit to petitioner's argument (Pet. 15-22) that certiorari is warranted so this Court can "clarify()" what constitutes a "denominational preference." There is, in fact, no indication that the term needs clarification: this Court's decision in Hernandez (which postdates all of the lower court decisions cited by petitioner (Pet. 19-21 & nn. 13, 14)) reviewed this Court's jurisprudence on denominational preferences. 109 S. Ct. at 2146-2147. In any case, as noted above, the DEA's denial of an exemption from the drug laws for marijuana use does not raise a question of denominational preferences, and is valid under Lemon: it was taken for strictly secular reasons, subjects all citizens equally to the same prohibition on marijuana use, and minimizes entanglement between church and state. And even if it could be said that the regulation does embody a denominational preference, the DEA's action would withstand strict scrutiny. Thus, this case is not an appropriate vehicle to explore the meaning of a "denominational preference" since the outcome would not be affected by the answer to that question. 2. Petitioner also argues that this Court should grant certiorari to consider this case in light of, or together with, Oregon Employment Division v. Smith, No. 88-1213, cert. granted, 109 S. Ct. 1526 (1989). The issue presented in Smith is whether the Free Exercise Clause affords members of the Native American Church protection from state criminal laws barring the use of peyote for religious use during a church ceremony. The same reasons, however, that distinguish petitioner's proposed marijuana-use exemption from the peyote-use exemption in 21 C.F.R. 1307.31 also distinguish petitioner's Free Exercise claim from the Free Exercise claim in Smith. As the court of appeals recognized (Pet. App. 9a-10a), the Church's tradition of liberal use and distribution of marijuana would necessitate careful federal supervision of any marijuana-use exemption, imposing a "large monitoring burden" on the government. Likewise, it would be difficult for the government to supervise and regulate the marijuana supply to petitioner's Church. Petitioner contends (Pet. 24-25) that his request for an exemption stands on firmer ground than the Free Exercise claim in Smith because he presented himself to the DEA in advance of prosecution and seeks a "prospective" exemption, whereas the petitioners in Smith are seeking immunity for past use of peyote. This distinction is without significance. If the DEA were to grant petitioner's request, it could reasonably expect to be faced with an avalanche of applications for such "prospective" exemptions -- an outcome that would present a massive enforcement problem in its own right. Nor is there any merit to petitioner's argument (Pet. 24 n.17) that if the DEA cannot accommodate his religious use of marijuana along the lines he has proposed, the DEA should fashion some more limited exception for him. There is no Free Exercise principle or precedent that requires the government to propose religious accommodations; that function would require the government to interpret and weigh the significance of different elements of a church's religious doctrine, and would thus raise the danger of entanglement. See Thomas v. Review Board, 450 U.S. 707, 716 (1981) ("Courts are not arbiters of scriptural interpretation."); Presbyterian Church v. Hull Church, 393 U.S. 440, 450 (1969) (civil courts not authorized to interpret and decide meaning of religious doctrines). In short, the court of appeals correctly upheld the DEA: that agency clearly could not accept petitioner's proposal without "unduly burdening or disrupting enforcement of the federal marijuana laws." Pet. App. 11a. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General /7/ STUART M. GERSON Assistant Attorney General ANTHONY J. STEINMEYER LOWELL V. STURGILL, JR. Attorneys FEBRUARY 1990 /1/ Petitioner also alleges that his sacramental use of marijuana "does not pose significant physical or psychological health risks" and does not result in "the types of intense intoxicating effects ordinarily associated with drug-related marijuana use." Pet. 2 n.2. Although the DEA's stipulation of facts includes the "method and manner of use of marijuana by members of the church" (Pet. App. 19a), the DEA has not stipulated that these allegations are correct. Petitioner's assertions about the diminished health and safety risks of his proposed marijuana use are not material, in any case, because the DEA did not rely upon them in denying petitioner's petitions. /2/ As an independent basis for its decision, the DEA also concluded that it lacked statutory authority to grant petitioner's requested exemption because the Controlled Substances Act does not authorize the DEA to create religious-use exemptions other than the peyote-use exemption found in 21 C.F.R. 1307.31. Pet. App. 18a. /3/ The panel declared petitioner's mandamus petition "moot and properly dismissed on that basis" (Pet. App. 15a), because the DEA "completely responded to (petitioner's) exemption petitions in its Final Order" (Pet. App. 6a n.2). /4/ The majority also rejected petitioner's attempt to compare religious use of peyote with the medical use of that substance allowed under the Controlled Substances Act, reasoning that "the tightly-drawn, closed system for access to controlled substances by, or on the order of, medical doctors and researchers cannot tenably be compared to the permission sought here." Pet. App. 10a n.4. /5/ In addressing petitioner's establishment and equal protection claims comparing peyote and marijuana use, the majority noted that it was employing an "equal protection mode of analysis." Pet. App. 11a-12a n.5 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 694, 696 (1970) (Opinion of Harlan, J.)). The majority chose to employ that "mode of analysis" because petitioner principally relied on the Equal Protection Clause in his petitions before the DEA and because, as petitioner's court-appointed amicus acknowledged at oral argument, "in cases of this character, establishment clause and equal protection analyses converge." Ibid. (citing Walz, 397 U.S. at 694, 696 (Opinion of Harlan, J.)). /6/ In United States v. Lee, 455 U.S. 252 (1982), this Court rejected an analogous claim of a free exercise exemption from Social Security taxation for persons with religious objections to paying any Social Security taxes even though self-employed individuals within certain religious communities enjoy a similar exemption by statute. This Court noted that such self-employed individuals comprise a "narrow category" that is "readily identifiable" and "distinguishable from the generality of wage earners employed by others" so that an exemption for those individuals would not threaten the integrity of Social Security system. Id. at 261. /7/ The Solicitor General is disqualified in this case.