Peyote Exemption for Native American Church, 81-63

• Decision Date: 22 December 1981
• Docket Number: 81-63
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: Peyote Exemption for Native American Church.

5 Op. O.L.C. 403

Peyote Exemption for Native American Church.

No. 81-63

United States Department of Justice

December 22, 1981

Theodore B. Olson Assistant Attorney General Office of Legal Counsel.

Peyote Exemption for Native American Church

Regulation of the Drug Enforcement Administration (DEA) exempting peyote use in connection with the religious ceremonies of the Native American Church (NAC) from the controls and sanctions of the Controlled Substances Act of 1970 (CSA), accurately reflects Congress' intent to exempt the religious use of peyote by the NAC and other bona fide religions in which the use of peyote is central to established religious beliefs practices, dogmas, or rituals.

An exemption for peyote use by the NAC would not violate the Establishment Clause of the First Amendment if the NAC had a constitutional right under the Free Exercise Clause to use peyote for religious purposes.

The NAC is an established religion, in whose history the sacramental use of peyote is firmly grounded, and in whose doctrine and ritual the use of peyote is central. Nonetheless, it is likely that Congress could, consistently with the Free Exercise Clause, constitutionally restrict or prohibit the continued religious use of peyote if this" were the least restrictive means of achieving a compelling governmental purpose.

The exemption for the religious use of peyote contained in the CSA does not offend the Establishment Clause even if it is not required by the Free Exercise Clause. Under relevant Supreme Court precedent, the government may take actions necessary to avoid substantial interference with religious practices or beliefs, even if such actions are not required by the Free Exercise Clause, provided that the actions do not impose hardship on others or amount to government sponsorship or support of religion.

A statutory exemption limited to the NAC, to the exclusion of other religions whose use of peyote is central to established religious beliefs or practices, would be unconstitutional under the Establishment Clause if it discriminated among otherwise equally situated religions. No different conclusion would be required because the "preferred" religion is composed of American Indians, since the special treatment of Indians under our law is grounded in their unique status as political entities, not in their religion or culture. On the other hand, since no group other than the NAC is likely to be able to establish its entitlement to the exemption, the DEA would be justified in adopting procedures designed to minimize the administrative burdens of extending the exemption to other groups.

MEMORANDUM OPINION FOR THE CHIEF COUNSEL, DRUG ENFORCEMENT ADMINISTRATION

Peyote a hallucinogenic cactus, is listed as a Schedule I controlled substance in the Controlled Substances Act of 1970 (CSA), 21 U.S.C. §§ 801-966, and is subject to rigorous controls and sanctions with respect to manufacture, transfer, and possession. Your agency has interpreted the CSA to exempt peyote use in the religious ceremonies of the Native American Church (NAC), an American Indian religion. You have requested that this Office examine three issues arising in connection [ 404] with the foregoing exemption: (1) what is the scope of the statutory exemption; (2) is the exemption constitutional; and (3) would it be constitutional to exempt only American Indian peyotists to the exclusion of other religious users of the drug.

We conclude, first, that Congress intended to exempt peyote use by the NAC and other bona fide peyote-using religions in which the actual use of peyote is central to established religious beliefs, practices, dogmas, or rituals. In administering this exemption, your agency could consistently with the congressional intent, regard the absence of a significant history of such use as a meaningful or even presumptive factor in determining the availability of the exemption. As a practical matter, we believe that no religions other than the NAC would qualify for the exemption. Second, we conclude that the exemption as we have interpreted it does not offend the Establishment Clause of the First Amendment. Third, we conclude that it might well offend the Establishment Clause to limit the exemption to American Indian peyotists.

I. Scope of the Statutory Exemption

The CSA's listing of peyote as a Schedule I controlled substance does not contain any express exemptions.^[1] The exemption for the NAC is found in a regulation of your agency, 21 C.F.R. § 1307.31, which provides:^[2]

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. 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.

This regulation is strictly an interpretative rule which construes the CSA in light of its legislative history; your agency does not assert authority to create nonstatutory exemptions from the listing of a substance in Schedule I.

The manufacture or distribution of peyote was first prohibited by federal law in the Drug Abuse Control Act Amendments of 1965 (1965 Amendments).^[3] This statute's origin was in S. 2628, a bill which passed [ 405] the Senate during the Second Session of the 88th Congress. S. 2628 would have imposed controls on "psychotoxic drug[s], " which, as defined, included peyote.^[4] There was no exemption for Indian religious use of the substance.^[5] The Senate passed S. 2628 prior to the ruling of the California Supreme Court, in People v. Woody, 61 Cal. 2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964), that the Free Exercise Clause of the First Amendment prohibited the state from prosecuting a member of the NAC for using peyote in religious practices. The 88th Congress expired before the House had an opportunity to vote on S. 2628. H.R. 2, introduced and passed in the House the following year, was similar in most essential respects to S. 2628. However, H.R. 2 explicitly provided that the term "depressant or stimulant drug" did not include "peyote (mescaline) but only insofar as its use is in connection with the ceremonies of a bona fide religious organization." See H.R. Rep. No. 130, 89th Cong., 1st Sess. 35 (1965). The purpose for the peyote exemption in H.R. 2 does not appear in the legislative history.^[6]

H.R. 2 was introduced in the Senate and referred to the Committee on Labor and Public Welfare, which recommended passage of the bill but proposed to drop the special peyote exemption.^[7] The Senate report explained this recommendation as follow:

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 provisions of the legislation.

S. Rep. No. 337, 89th Cong., 1st Sess. 3 (1965). The measure passed the Senate without further discussion of the peyote exemption.

When the Senate version of the bill, without the peyote exemption, was brought up for debate in the House, Congressman Harris, the Chairman of the Committee on Interstate and Foreign Commerce, [ 406] which had jurisidiction over the bill, gave the following explanation of the Senate amendment:

Mr. Harris. The last amendment of substance made by the Senate deletes the provisions of the House bill which provided that the term "depressant or stimulant drug" does not include peyote used in connection with ceremonies of a bona fide religious organization.

Some concern has been expressed by many of the religious groups affected, ^[8] and by certain civil liberties organizations concerning the possible impact of this amendment on religious practices protected by the first amendment to the Constitution.

Two court decisions have been rendered in this area in recent years. One, a decision by Judge Yale McFate in the case of Arizona v. Attakai, No. 4098, in the superior court of Maricopa County, Phoenix, Arizona, July 26, 1960; and a California decision, People against Woody, decided August 24, 1964, in the Supreme Court of California. Both these cases held that prosecutions for the use of peyote in connection with religious ceremonies was a violation of the first amendment to the Constitution.

In view of all this, I requested the views of the Food and Drug Administration and have been assured that the bill, even with [sic without] the peyote exemption appearing in the House-passed bill, cannot forbid bona fide religious use of peyote.

Mr. Speaker, I ask unanimous consent to include the letter from the Food and Drug Administration at this point in my remarks.

Dear Mr. Chairman: In response to your request we are stating the position the Food and Drug Administration expects to take if H.R. 2 becomes law as it passed the Senate with respect to the use of peyote in religious ceremonies. We have been advised by a representative of the North [sic Native] American Church that this church is a bona Tide religious organization and that peyote has bona fide use in the sacrament of the church. The representative has agreed to document both of these statements.

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