United States v. Warner

• Decision Date: 27 September 1984
• Docket Number: Cr. No. C2-84-51.
• Citation: 595 F. Supp. 595
• Parties: UNITED STATES of America, Plaintiff, v. John D. WARNER and Frances Warner, Defendants.
• Court: U.S. District Court — District of South Dakota

595 F. Supp. 595

UNITED STATES of America, Plaintiff, v. John D. WARNER and Frances Warner, Defendants.

Cr. No. C2-84-51.

United States District Court, D. North Dakota, Northeastern Division.

September 27, 1984.

COPYRIGHT MATERIAL OMITTED

Rodney S. Webb, U.S. Atty., Fargo, N.D., for plaintiff.

David C. Thompson, Fargo, N.D., Amy M. Silberberg, Judd Golden, American Civil Liberties Union, Denver, Colo., for defendants.

MEMORANDUM AND ORDER

BENSON, Chief Judge.

Defendants John and Frances Warner have moved to dismiss the indictment against them in the above-entitled case. Defendants have also filed a motion to compel discovery.

I. MOTIONS TO DISMISS

The indictment charges Defendants with distribution and possession with intent to distribute peyote, a Schedule I, nonnarcotic controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Defendants, neither of whom are of American Indian blood, contend they are members of the Native American Church (NAC), and as such, they are exempt from prosecution, under 21 C.F.R. § 1307.31, for the acts charged in the indictment. The government contends Defendants are not members of the NAC, and thus, the exemption in 21 C.F.R. § 1307.31 does not apply.

The exemption in 21 C.F.R. § 1307.31 provides:

SECTION 1307.31. NATIVE AMERICAN CHURCH. 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.

21 C.F.R. § 1307.31.

Defendants contend the indictment must be dismissed because the government's prosecution of them violates the free exercise and establishment clauses of the first amendment and the due process and equal protection clauses of the fifth amendment.

A. Free Exercise Claim

Defendants contend their possession and use of peyote in conjunction with bona fide religious ceremonies of the NAC is an activity protected under the free exercise clause of the first amendment. The freedom to act upon religious beliefs is not absolute in nature, but "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972). The state may justify an inroad on religious liberty by showing it is the least restrictive means of achieving some compelling state interest. Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1980).

The Sixth Circuit has established a two-step analysis for free exercise claims. Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159, 1163 (6th Cir.1980), cert. denied, 449 U.S. 953, 101 S.Ct. 357, 66 L.Ed.2d 216. First, the court must determine whether the government action does in fact create a burden on the exercise of the defendants' religion. If a burden is found, it must be balanced against the governmental interest, with the government being required to show an overriding or compelling reason for its action. Sequoyah, 620 F.2d at 1163, citing Sherbert v. Verner, 374 U.S. 398, 402-03, 83 S.Ct. 1790, 1792-93, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. at 214-15, 92 S.Ct. at 1532-33.

In considering the first step of the analysis, the government concedes that the NAC is an established religion with a significant history of sacramental peyote use. In addition, the government concedes that the use of peyote is central to, and the cornerstone of, the religious practices of the NAC. Therefore, prosecution for the use of peyote in the bona fide religious practices of the NAC would create a burden on the free exercise of the religion of NAC members. The court notes, however, that there is an issue of fact in this case as to whether Defendants used peyote in bona fide religious ceremonies and whether they were members of the NAC.

Assuming for purposes of Defendants' free exercise claim that the present prosecution burdens the free exercise of Defendants' religion, the burden must be balanced against the governmental interest, with the government being required to show it has used the least restrictive means of achieving some compelling interest. 450 U.S. at 718. The conduct or actions in accord with religious convictions that have been regulated have invariably posed some substantial threat to public safety, peace, or order. Sherbert, 374 U.S. at 402-03, 83 S.Ct. at 1792-93.

The governmental interests served by the prosecution of the Warners under 21 U.S.C. § 841(a)(1) must be examined. The government asserts three specific "possible interests" served by controlling the use of peyote, which include: (1) the interest in preventing abuse of peyote by nonreligious persons who falsely claim to be religious; (2) the interest in preventing harm to the NAC member resulting from peyote use in religious ceremonies; and (3) the interest in encouraging compliance with the law by persons who do not claim an exemption based on religion, but who might doubt the public health justification if certain groups were exempted.

The legislative history leading up to the promulgation of 21 C.F.R. § 1307.31 does not support a finding that Congress was interested in a broad exemption for the religious use of peyote by non-NAC members or non-Indians. Officials of the Bureau of Narcotics and Dangerous Drugs (BNDD) informed Congress of the fact that the administrative exemption in effect at the time the Controlled Substances Act was passed applied only to the NAC and that they were about to deny an exemption to a non-Indian church. The BNDD distinguished the non-Indian church from the NAC because the unique history and tradition of the NAC was such that there was no question that the NAC regarded peyote as a diety. Hearings on H.R. 11701 and H.R. 13743 before the Subcomm. on Interstate and Foreign Commerce 117-18 (1970).

The legislative history of the Controlled Substances Act of 1970 discloses the general ultimate objective to deal in a comprehensive fashion with the growing menace of drug abuse in the United States. See H.R.Rep. No. 91-1444, 91st Cong., 2d Sess., reprinted in 1970 U.S. Code Cong. & Admin. News 4566, 4567. Congress has strongly and clearly expressed its intent to protect the public from the obvious danger of drugs and drug traffic. See 21 U.S.C. § 801(2). Congress has determined that the illegal distribution, possession, and improper use of controlled substances has a substantial and detrimental effect on the health and general welfare of the American people. Id. Peyote is a Schedule I drug, and as such, Congress has found it has a high potential for abuse, it has no currently accepted medical use, and there is a lack of accepted safety for use of the drug under medical supervision. 21 U.S.C. § 841(a). Therefore, governmental interests in prohibiting the possession and distribution of peyote are of the highest order, in that peyote use poses a substantial threat to public health, safety, and welfare.

Courts have recognized that Congress has a compelling interest in controlling the use of drugs that it determines to be dangerous, such as peyote, and that Congress can constitutionally control the use of such drugs even if those drugs are to be used for religious purposes. United States v. Middleton, 690 F.2d 820, 825 (11th Cir. 1982), cert. denied, 460 U.S. 1051, 103 S.Ct. 1497, 75 L.Ed.2d 929 (1983), citing United States v. Hudson, 431 F.2d 468, 469 (5th Cir.1970), cert. denied, 400 U.S. 1011, 91 S.Ct. 577, 27 L.Ed.2d 577 (1971) (the use of drugs as part of religious practice is not constitutionally privileged).

Even though the government has a compelling interest in controlling the use of peyote, it can be prohibited only if the restriction is the least restrictive means of achieving the government's purpose, or if the governmental interests cannot be otherwise served. This court holds that the compelling governmental interest is not otherwise served by allowing unlimited exemptions for the bona fide religious use of peyote. Furthermore, the regulatory exemption given the NAC is not required by the free exercise clause of the first amendment.

Based on the foregoing, the government's interest in prohibiting the use of peyote is compelling and overrides Defendants' first amendment rights to the free exercise of religion.

B. Establishment Clause Claim

Defendants contend the determination by the United States that they may not take advantage of the exemption in 21 C.F.R. § 1307.31 constitutes governmental preference of some members of the NAC over other members, in violation of the establishment clause of the first amendment. By placing the constructive condition upon 21 C.F.R. § 1307.31 to the effect that members of the NAC need to be of American Indian blood to come within its purview, Defendants contend the United States is impermissibly interjecting itself into internal matters of a religious group, favoring some NAC members and disadvantaging others by subjecting them to criminal prosecution. The government contends that its basis for instituting the present prosecution is that neither John nor Frances Warner is an American Indian and neither John nor Frances Warner is a member of the NAC.

Under the establishment clause government aid or preference to religion passes constitutional muster only if it satisfies each part of a three-prong test, which includes: (1) the governmental preference must have a secular purpose; (2) its primary effect must be one that neither advances nor inhibits religion; and (3) its application must not result in excessive entanglement of government with religion. Stone v. Graham, 449...