Peyote Way Church of God, Inc. v. Thornburgh, 88-7039

• Decision Date: 06 February 1991
• Docket Number: No. 88-7039,88-7039
• Parties: PEYOTE WAY CHURCH OF GOD, INC., Plaintiff-Appellant, v. Richard THORNBURGH, Attorney General of the United States, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1210

922 F.2d 1210

59 USLW 2503

PEYOTE WAY CHURCH OF GOD, INC., Plaintiff-Appellant,

v.

Richard THORNBURGH, Attorney General of the United States,

et al., Defendants-Appellees.

No. 88-7039.

United States Court of Appeals, Fifth Circuit.

Feb. 6, 1991.

Mary L. O'Connor, Jeffrey C. Glass, James K. Witcher, American Civil Liberties Union, Dallas, Tex., for plaintiff-appellant.

F. Browning Pipestem, Norman, Okl., for amicus--Kiowa and Comanche Chapters of the Native American Church.

John T. Bannon, Jr., Dept. of Justice, Crim. Div., Washington, D.C., for Thornburgh.

Charles A. Palmer, Asst. Atty. Gen., Gray & Becker, Austin, Tex., for Mattox.

Appeal from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, REAVLEY and KING, Circuit Judges.

REAVLEY, Circuit Judge:

The Peyote Way Church of God, Inc. (Peyote Way) sued for a declaratory judgment that federal and Texas laws prohibiting peyote possession by all except members of the Native American Church of North America (NAC) are unconstitutional. Peyote Way also requested that the district court enjoin the defendants, the Attorneys General of Texas and the United States, from enforcing the peyote prohibition laws against it or its members. The district court upheld the constitutionality of the federal and state laws challenged by Peyote Way. On appeal, Peyote Way challenges the district court's legal conclusions and the sufficiency of the court's fact findings to support those conclusions. We affirm the district court's dismissal of Peyote Way's constitutional claims on their merits.

I. BACKGROUND

Peyote is a variety of cactus that grows in significant quantities only along the part of the Rio Grande that separates South Texas from Mexico. Portions of the plant's stem commonly called "buttons" contain mescaline which has a hallucinogenic effect when ingested.

Both federal and Texas statutes criminalize the unprescribed distribution and possession of peyote. 21 U.S.C. Secs. 812, 841, 844; TEX. HEALTH & SAFETY CODE ANN. Secs. 481.101-481.130 (Vernon 1991). But both federal and Texas law exempt bona fide religious use of peyote by NAC members from such criminalization. 21 C.F.R. Sec. 1307.31; TEX. HEALTH & SAFETY CODE ANN. Sec. 481.111 (Vernon 1991).

The NAC was established in Oklahoma in 1918 as the corporate form of a centuries-old Native American peyotist religion without changing the ancient religion's practices or beliefs. See Toledo v. Nobel-Sysco, Inc., 651 F.Supp. 483, 487 (D.N.M.1986); see also People v. Woody, 61 Cal.2d 716, 720-21, 40 Cal.Rptr. 69, 73, 394 P.2d 813, 817-18 (1964) (discussing history and theology of Native American peyote use). The NAC currently has approximately 250,000 Native American members, most of whom live on reservations in the western half of this country. NAC members worship peyote as a deity and ingest the plant during traditional ritualized "road meetings."

Immanuel P. Trujillo, who was an NAC member until 1966, incorporated Peyote Way under Arizona law in 1979. Peyote Way's single place of worship is a ranch in southern Arizona. Its principals and resident members are Trujillo, Ann Zapf, and Matthew Kent. Zapf, Kent, and the majority of Peyote Way's approximately 150 non-resident members are not of Native American descent. Peyote Way has promulgated detailed bylaws concerning its members' access to peyote during its religious ceremonies and maintains records as to time place, and amount of peyote use by its members. Peyote Way subscribes to many tenets similar to those of the NAC.

After a bench trial, the district court found that

Trujillo, Kent, and Zapf use peyote as a sacrament, and consider it to be a deity. These three resident members use peyote in connection with their religion, and sincerely believe that the use of peyote for other than religious purposes is sacrilegious.

Peyote Way Church of God, Inc. v. Meese, 698 F.Supp. 1342, 1344 (N.D.Tex.1988). The court also found that

the clear intent of Congress was to exempt the nondrug religious use of peyote by members of the Native American Church, not to exempt the use of peyote by other religious groups, no matter how sincere these other religious groups are in their beliefs.

Id. at 1346-47. Still, the court held that there is no free exercise or implied privacy right to use peyote under the United States Constitution. The court also rejected Peyote Way's equal protection and establishment clause challenges to the NAC exemptions. We review de novo the district court's conclusions of constitutional law. Shillingford v. Holmes, 634 F.2d 263, 266 (5th Cir.1981).

II. DISCUSSION

A. FREE EXERCISE CLAUSE

In an earlier appeal of this case, we followed the time-honored precedent of Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), in holding that

[c]onduct dictated by religious belief may be regulated or forbidden if the limitation is essential to accomplish a compelling governmental interest ... and if the attendant burden on religious observance does not exceed the least burdensome method of accomplishing that purpose.

Peyote Way Church of God, Inc. v. Smith, 742 F.2d 193, 200 (5th Cir.1984). Finding insufficient evidence of a compelling state interest and least restrictive alternative to warrant summary judgment, we remanded this case for further consideration of Peyote Way's claim that federal and state laws prohibiting peyote possession infringe its members' right to freely exercise their religion. Id. at 202.

On remand, the district court concluded that the challenged peyote statutes are the least restrictive way to serve compelling governmental interests. We need not review the court's analysis because the Supreme Court's decision in Employment Div., Dept. of Human Resources of Oregon v. Smith, --- U.S. ----, 110 S.Ct. 1595, 1601, 108 L.Ed.2d 876 (1990) eviscerates judicial scrutiny of generally applicable criminal statutes in response to free exercise challenges. The Smith majority held that Oregon's statute criminalizing peyote possession withstands challenge under the free exercise clause because it is "a generally applicable [criminal prohibition] of socially harmful conduct," and does not have as its purpose the proscription of religious conduct. Id. 110 S.Ct. at 1599, 1603. For the same reasons, we must hold that the federal and Texas statutes prohibiting peyote possession do not offend the First Amendment's free exercise clause. The Court foresaw cases where Smith would "place at a relative disadvantage those religious practices that are not widely engaged in." Id. 110 S.Ct. at 1606. We affirm the district court's judgment that application of 21 U.S.C. Secs. 841, 844 and Texas Health and Safety Code Secs. 481.114, 481.117, 481.122 ¹ to Peyote Way and its members does not offend the First Amendment's free exercise clause.

B. EQUALITY WITH THE NATIVE AMERICAN CHURCH

Under the heading "Special Exempt Persons," a Drug Enforcement Administration regulation provides:

Sec. 1307.31 Native American Church. The listing of peyote as a controlled substance [under federal law] does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church....

21 C.F.R. Sec. 1307.31 (1990) citing as authority 21 U.S.C. Secs. 821, 822(d), 871(b). The Commissioner of Food and Drugs first promulgated what is now section 1307.31 in March 1966 with apparent congressional approval. 31 Fed.Reg. 4679 (1966); compare United States v. Warner, 595 F.Supp. 595, 598 (D.N.D.1984) (Congress intended to exempt religious use of peyote only by NAC members) with Native American Church of New York v. United States, 468 F.Supp. 1247, 1249, 1251 (S.D.N.Y.1979) (Congress meant to exempt all bona fide religious peyote use), aff'd without op., 633 F.2d 205 (2d Cir.1980). Texas law contains a similar exemption for the NAC:

[t]he provisions of [the] chapter relating to the possession and distribution of peyote do not apply to the use of peyote by a member of the Native American Church in bona fide religious ceremonies of the church.... An exemption granted to a member of the Native American Church under this section does not apply to a member with less than 25 percent Indian blood.

TEX. HEALTH & SAFETY CODE ANN. Sec. 481.111(a) (Vernon 1991).

These laws unambiguously exempt only NAC members from federal and Texas statutes prohibiting peyote possession. Peyote Way argues that the Constitution requires us to accord its members the same exemption. ²

1. The Federal NAC Exemption

a. Equal Protection

The equal protection principle, applicable to federal regulations through the due process clause of the Constitution's Fifth Amendment, mandates similar treatment under the law for those similarly situated. Bolling v. Sharpe, 347 U.S. 497, 498-99, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). Section 1307.31 accords NAC members different treatment than other members of our society. Thus, whether section 1307.31 violates the equal protection principle depends on whether NAC members are similarly situated to other members of our society.

In Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), the Supreme Court rejected an equal protection challenge to a statutory employment preference for Native Americans in the Bureau of Indian Affairs (BIA). The Court based its decision on: (1) the historically unique guardian-ward trust relationship of the federal government with quasi-sovereign Native American tribes; (2) Congress' plenary power to "regulate Commerce ... with the Indian Tribes" under the Constitution's Article I, section 8; (3) the federal government's Article II, section 2 treaty power; and (4) a line of cases in which the Court has upheld legislation preferentially treating Native Americans who are tribal members or live on or near a reservation. Id. 94 S.Ct. at 2483, 2485.

The Court applies strict scrutiny to any racial classification, requiring the government to show...