Native American Church of New York v. US, 78 Civ. 1217(MP).

• Decision Date: 17 April 1979
• Docket Number: No. 78 Civ. 1217(MP).,78 Civ. 1217(MP).
• Citation: 468 F. Supp. 1247
• Parties: NATIVE AMERICAN CHURCH OF NEW YORK, Alan Birnbaum, Minister and Custodian, Plaintiffs, v. UNITED STATES of America, Griffin Bell, Attorney General, Defendants.
• Court: U.S. District Court — Southern District of New York

468 F. Supp. 1247

NATIVE AMERICAN CHURCH OF NEW YORK, Alan Birnbaum, Minister and Custodian, Plaintiffs, v. UNITED STATES of America, Griffin Bell, Attorney General, Defendants.

No. 78 Civ. 1217(MP).

United States District Court, S. D. New York.

April 17, 1979.

Alan Birnbaum pro se.

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., by Marjorie A. Silver, Sp. Asst. U. S. Atty., New York City, for defendants.

OPINION

POLLACK, District Judge.

Cross-motions for summary judgment are before the Court in pursuance of Federal Rule of Civil Procedure 56. For the reasons appearing hereafter, the motion of the plaintiffs will be denied and the motion of the defendants will be granted in part and denied in part. The only issue which survives for trial is the question of whether the Native American Church of New York is a bona fide religious organization intending to use peyote, a psychedelic drug, for sacramental purposes and therefore entitled to the exemption of such organizations from the provisions of Controlled Substances Act of 1970 (hereafter referred to as the "Act") 21 U.S.C. § 812(c), Schedule I (c)(12), which apply to and control the use of peyote.

I.

For many years there has existed, primarily in the Western States, a religious organization of American Indians known as the Native American Church. This Church believes that peyote is a deity. Members of the Church partake of peyote during religious ceremonies. The sacramental use of peyote in bona fide religious ceremonies by the Native American Church and its members is expressly exempted from the controls of the Act by regulation of the Drug Enforcement Administration ("DEA" hereafter). "The listing of peyote as a controlled substance in Schedule I of the Controlled Substances Act, 21 U.S.C. § 812(c) 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. Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law." (21 C.F.R. § 1307.31).

In 1976, Alan Birnbaum founded the Native American Church of New York and is now its minister and custodian. It is not affiliated with the Native American Church described above, and only a few of its roughly one thousand members are American Indians. The Native American Church of New York allegedly believes that all psychedelic drugs, including peyote, are deities.

Birnbaum petitioned the DEA to amend 21 C.F.R. § 1307.31 to exempt the use of all psychedelic drugs in religious ceremonies of all churches that believe that psychedelic drugs are deities. In Birnbaum's amended version, 21 C.F.R. § 1307.31 would have provided:

The listing of Psychedelics as controlled substances in schedule I shall not apply to the nondrug use of these substances in bona fide religious ceremonies of Churches where these substances have been shown to be central to the existence of that Church, in that they are objects of worship and considered deities in themselves. Members of Churches so using Psychedelics shall be exempt from registration. Any person who manufactures Psychedelics for or distributes Psychedelics to these Churches, however, is required to obtain registration annually and to comply with all other requirements of law.

It shall be understood that these substances include the following: LSD, DMT, DET, marijuana, peyote, psilocybin, psilocin, mescaline, and their salts, isomers, esters, and analogues.

The DEA denied Birnbaum's petition.

Birnbaum and the Native American Church of New York now sue for a declaration that: "(1) Plaintiff has the First Amendment right to possess and commune with his God; (2) Any Church or person establishing honest belief in a substance and honest worship of a substance as God has the First Amendment right to possess and worship that substance; and (3) Any Church or person so establishing honest belief and worship of a substance as God has the right to be licensed by the Drug Enforcement Administration as a distributor or manufacturer of said substance to said individuals or churches."

If this pro se complaint is read liberally, three claims for relief can be inferred from it: (1) it violates the free exercise clause to prohibit any church from manufacturing, distributing or using in religious ceremonies any psychedelic drug that that church believes is a deity; (2) the Controlled Substances Act does not prohibit the use of peyote in religious ceremonies of any church that believes that peyote is a deity; and (3) if the Controlled Substances Act does not prohibit the use of peyote in religious ceremonies of the Native American Church, but does prohibit the use of peyote in religious ceremonies of other churches that believe that peyote is a deity, then the Act and regulation thereunder violate the due process clause.

II.

Insofar as the complaint asserts a right to manufacture, distribute or use proscribed drugs other than peyote, it must be dismissed. Congress can constitutionally control the use, even for religious purposes, of drugs that it determines to be dangerous. Leary v. United States, 383 F.2d 851 (5th Cir. 1967), cert. denied on this issue, 392 U.S. 903, 88 S.Ct. 2058, 20 L.Ed.2d 1362 (1968), rev'd on other grounds, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); see also United States v. Kuch, 288 F.Supp. 439 (D.D.C.1968).

Congress has determined that the use of controlled substances has "a substantial and detrimental effect on the health and general welfare of the American people," 21 U.S.C. § 801(2). The particular drugs that the plaintiffs seek to use all are listed on Schedule I of the Controlled Substances Act, 21 U.S.C. § 812(c), and as such have "a high potential for abuse," "no currently accepted medical use," and "a lack of accepted safety for use" even under supervision. 21 U.S.C. § 812(b)(1). Severe penalties are prescribed for the possession of such substances. See, e. g., 21 U.S.C. § 841(a). These conclusions leave no room for a Court to substitute its judgment for that of Congress.

The plaintiffs contend also that the defendant in Leary, supra, used marijuana only as a sacrament or aid to worship, whereas the plaintiffs here believe that psychedelics are deities in themselves. Even assuming, however, that the plaintiffs' interest in using psychedelics is weightier than the defendant's interest in Leary, their interest still must be subordinated to the important purposes served by the Controlled Substances Act.

Consequently, the defendants are entitled to summary judgment dismissing allegations and a claim for relief as to drugs other than peyote.

III.

In the Drug Abuse Control Amendments of 1965, Congress for the first time controlled the possession, consumption and sale of peyote. 79 Stat. 226 § 3(a). The 1965 Amendments were later superseded by the Act, which carried forward the controls on peyote, 21 U.S.C. § 812(c), Schedule I (c)(12). The DEA concluded that Congress did not intend in the 1965 Amendments or the 1970 Act to prohibit the use of peyote in religious ceremonies of the Native American Church. In consequence, the DEA promulgated the regulatory exemption quoted above.

The defendants contend that the exemption of the sacramental use of peyote was intended by Congress to be limited to such use by the Native American Church only, and not to include use thereof by other religious groups. On the other hand, the plaintiffs contend that nothing in the Act or the DEA regulation establishes an intent so to restrict use of peyote and that any bona fide religious organization that believes peyote is a deity is free to make religious use of this drug and to manufacture it for such use. There is no warrant in the legislation or the DEA regulation for the notion that churches may engage in manufacture of the drug, but there is force to the claim that the use of peyote for sacramental purposes where peyote is regarded as a deity is not to be restricted solely to the Native American Church.

As noted above, Congress first proscribed peyote in the Drug Abuse Control Amendments of 1965, which was introduced in the House as H.R. 2. As initially passed by the House, H.R. 2 exempted from control "peyote (mescaline) but only insofar as its use is in connection with the ceremonies of a bona fide religious organization." 111 Cong.Rec. 14608 (1965). H.R. 2 was referred to the Senate Committee on Labor and Public Welfare, which recommended that the exemption for peyote be deleted. The Committee stated:

The committee determined that it would not be desirable to specify drugs other than barbiturates and amphetamines as subject to the controls of the bill, but determined that the other classes of drugs are to be brought under control of the bill on a case-by-case basis by the Secretary of Health, Education, and Welfare under the standards prescribed in the legislation. In accordance with this determination, the committee omitted specific reference to peyote as a substance subject to the provisions of the legislation. It is expected that peyote will be subject to the same consideration as all other drugs in determining whether or not it should be included under the

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