Peyote Exemption for Native American Church ( 1981 )

Peyote Exemption for Native American Church
Regulation of the D rug Enforcement Administration (D EA ) 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 o f 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 o f 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 o f
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 o f peyote is
firmly grounded, and in whose doctrine and ritual the use o f 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 o r 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 o f 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 unconstitu­
tional 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 o r
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 D EA would be justified in adopting
procedures designed to minimize the administrative burdens o f extending the exemption
to other groups.
December 22, 1981
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 re­
spect to manufacture, transfer, and possession. Your agency has inter­
preted 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 connec­
403
tion with the foregoing exemption: (1) what is the scope of the statu­
tory exemption; (2) is the exemption constitutional; and (3) would it be
constitutional to exempt only American Indian peyotists to the exclu­
sion of other religious users of the drug.
We conclude, first, that Congress intended to exempt peyote use by
the NAC and other bona fid e 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 Estab­
lishment Clause to limit the exemption to American Indian peyotists.
I. Scope o f 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 o f 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 require­
ments 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 sub­
stance 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
1 21 U.S.C. § 812(c) Schedule I(c)(12). Schedule I substances are those which have a high potential
for abuse, have no currently accepted medical use in treatment in the United States, and lack accepted
safety for use under medical supervision. Id. § 812(b)(1). The CSA subjects Schedule I substances to
stringent registration, labelling, and recordkeeping requirements, and imposes criminal penalties for
their unauthorized manufacture, possession, or transfer.
2 See also 21 C.F.R. §320 3 (similar regulation o f Department of Health and Human Services).
8 Peyote was classified as a “narcotic” m the Narcotic Farm A ct of 1929, 45 Stat. 1085, to enable
peyote “addicts” to seek treatment at federal facilities. The Food, D rug and Cosmetic Act of 1938 also
Continued
404
the Senate during the Second Session of the 88th Congress. S. 2628
would have imposed controls on “psychotoxic drug[s],” which, as de­
fined, 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 exemp­
tion 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 pre­
scribed in the legislation. In accordance with this determi­
nation, 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,
classifed peyote as a narcotic or hypnotic substance, 52 Stat. 1050, and imposed certain labelling
requirements. Neither statute prohibited the manufacture or distribution of peyote.
4 See 110 Cong Rec. 19,780(1964).
5 The Senate committee hearings on S. 2628 contain no reference to the religious use of peyote. See
Hearings on S. 2628 before the Subcomm. on Health o f the Senate Comm, on Labor and Public Welfare,
88th Cong., 2d Sess. (1964).
6 See H.R Rep. No. 130, 89th Cong., 1st Sess. (1965); Hearings on H.R. 2 Before the House Comm,
on Interstate & Foreign Commerce, 89th Cong., 1st Sess. (1965).
7 T he Senate committee did not hold hearings on the measure.
405
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 ceremo­
nies of a bona fide religious organization.
Some concern has been expressed by many of the reli­
gious groups affected,[8] and by certain civil liberties or­
ganizations concerning the possible impact of this amend­
ment on religious practices protected by the first amend­
ment 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, de­
cided August 24, 1964, in the Supreme Court of Califor­
nia. 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 [s/c without] the peyote exemption appear­
ing in the House-passed bill, cannot forbid bona fide reli­
gious 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.
D ear Mr. Chairman: In response to your request w e are stating the position the
Food and D rug 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 [s/c Native] American
Church that this church is a bona fide religious organization and that peyote has
bona fide use in the sacrament of the church. The representative has agreed to
docum ent both o f these statements.
If the church is a bona fide religious organization that makes sacramental use of
peyote, then it would be o u r view that H.R. 2, even without the peyote exemption
which appeared in the House-passed version, could not forbid bona fide religious use
o f peyote. W e believe that the constitutional guarantee of religious freedom fully
safeguards the rights of the organization and its communicants.
Sincerely yours,
George P. Larrick,
Commissioner o f Food and Drugs
Mr. Speaker, in view of the foregoing, I recommend
that the House agree to the Senate amendments to H.R. 2.
8 T he legislative history does not explain which particular “religious groups” Congressman Harris
was referring to.
406
I ll Cong. Rec. 15,977-78 (1965). Shortly after the conclusion of these
remarks, the House concurred in the Senate amendments.
In 1965, the Department of Health, Education and Welfare promul­
gated a regulation controlling peyote under the 1965 Amendments, but
exempting the religious use of peyote by the NAC.9 The exemption
appears to have been based on the legislative history recited above.
Congress returned to the subject of drug abuse control in 1970 when
it passed the CSA. That statute lists peyote as a controlled substance
and, as noted above, does not provide for an exemption for the NAC or
any other religion. However, officials of the Bureau of Narcotics and
Dangerous Drugs 10 testified as to the effect of the proposed statute in
hearings before the House Committee: 11
Mr. Satterfield. I have one other question. I recall when
we were discussing dangerous drugs a few years ago, the
question came up about the Native American Church
involving Indians in the west who use and have for cen­
turies used peyote in connection with religious services. It
is my understanding that they enjoy an exemption under
the current law.
My question is whether any of the bills we have before
us, if passed, would in any way affect this present exemp­
tion?
Mr. Ingersoll. Mr. Sonnenreich [Deputy Chief Counsel
of BNDD] has just conducted a hearing on that subject
and if you will permit him, I would like him to respond to
that.
Mr. Satterfield. Yes.
Mr. Sonnenreich. In the first instance, Mr. Satterfield,
the Native American Church did ask us by letter as to
whether or not the regulation, exempting them by regula­
tion, would be continued and we assured them that it
would because of the history of the church. We presently
are involved in another hearing regarding another church
that is a non-Indian church that is seeking the exemption
and the order is going to be published, I believe, either
9 That exemption read as follows:
T he listing o f peyote in this subparagraph does not apply to the nondrug use m bona
fide religious ceremonies o f the Native American Church; however, persons supplying
the product to the Church are required to register and maintain appropriate records of
receipts and disbursements o f the article.
21 C.F.R. § 166.3., now codified at 21 C.F.R. § 320.3.
10 Responsibility for enforcing the 1965 Amendments was transferred to the Bureau o f Narcotics
and Dangerous Drugs by Reorganization Plan No. 1 of 1968.
11 Hearings on H.R. 11701 and H.R. 13743 Before the Subcomm. on Public Health and Welfare o f the
House Comm, on Interstate and Foreign Commerce 117-18 (1970).
407
today or tomorrow denying them the same exemption as
the Native American Church.12
We consider the Native American Church to be sui
generis. The history and tradition of the church is such
that there is no question but that they regard peyote as a
deity as it were, and we will continue the exemption.
Mr. Satterfield. You do not see anything in the Senate
bill that would make this impossible?
Mr. Sonnenreich. No. Under the existing law originally
the Congress was going to write in a specific exemption
but it was then decided that it would be handled by
regulation and we intend to do it the same way under this
law.
After the passage of the CSA the Bureau of Narcotics and Dangerous
Drugs promulgated the current regulation contained in 21 C.F.R.
§ 1307.31.13The legislative history supports your agency’s existing exemption for
the use of peyote in the religious ceremonies of the NAC. In the case
of the 1965 Amendments, the House proposed to exempt the bona fide
religious use of peyote; the Senate dropped the exemption, not because
it opposed the religious use of peyote but because it believed that
specific reference to peyote would unnecessarily interfere with the
discretion which Congress intended to vest in the administrative agency
to determine which substances were to be brought under control of the
bill. The House accepted the Senate’s version only after receiving
assurances from the agency which was to administer the statute that the
religious use of peyote by the NAC would not be prohibited. Similarly,
the CSA was passed against the backdrop of an administrative exemp­
tion granted to the NAC under the 1965 Amendments. There was no
indication in the legislative history that Congress intended to eliminate
the exemption. On the contrary, the House received assurances from
the Bureau of Narcotics and Dangerous Drugs that the exemption
would be contained under the new statute.
The legislative history could be interpreted to support an exemption
only for the NAC, and not for other religious groups. Although the
House version of H.R. 2 would have exempted the ceremonial use of
peyote by all bona fide religious organizations, the House ultimately
accepted the Senate version of the 1965 Amendments after receiving
12 T he non-Indian church referred to by Mr. Sonnenreich styled itself the “Church of the Awaken­
ing ” T he agency’s opinion denying a peyote exemption is published at 35 Fed. Reg. 14789 (1970). The
Church of the Awakening challenged this determination in the Ninth Circuit. In Kennedy v. Bureau o f
Narcotics Dangerous Drugs, 459 F.2d 415 (9th Cir. 1972), cert, denied, 409 U.S. 1115 (1973), the court
accepted the argument that an exemption limited to the NAC was unconstitutional, but declined to
extend the exemption to the Church o f the Awakening because that group had sought an exemption
only for itself and not for all religious users o f peyote.
13 Your agency has succeeded to the responsibility for enforcing the CSA previously exercised by
the Bureau of N arcotics and Dangerous Drugs.
408
assurances which had specific reference only to the NAC. Similarly,
the administrative exemption in effect at the time the CSA was passed
applied only to the NAC. Officials of the Bureau of Narcotics and
Dangerous Drugs informed the Congress of this fact, of the fact that
they were about to deny an exemption to a non-Indian church, and of
their opinion that the NAC was “sui generis.” These officials strongly
emphasized what they believed to be the unique history and tradition of
the NAC as a peyote-using religion. Thus, it would be reasonable to
interpret the legislative history as reflecting a congressional intent to
“grandfather” the NAC, because of its special historical status, but not
to create any broader exemption.
The two federal courts which have interpreted the exemption, how­
ever, have arrived at a broader interpretation. In Native American
Church o f New York v. United States, 468 F. Supp. 1247 (S.D.N.Y.
1979) a ffd mem. 633 F. 2d 205 (2d Cir. 1980), a primarily non-Indian
organization 14 sought a declaration that it had a right to use a variety
of “psychedelic” substances, including peyote, for religious ceremonies.
After examining the legislative history recounted above, the court held
that the statutory exemption was available to bona fid e religious organi­
zations other than the NAC which use peyote for sacramental purposes
and which regard the substance as a deity.15 This holding was accepted
and endorsed in a subsequent district court decision, Lamantia v. Civi-
letti, No. 80 Civ. 1534 (RLC) (S.D.N.Y. 1981).16 In addition to these
cases, the Ninth Circuit has held, as we discuss in greater detail below,
that an exemption limited to the NAC which excluded other bona fid e
religious organizations would be unconstitutional. Kennedy v. Bureau o f
Narcotics & Dangerous Drugs, 459 F. 2d 415 (9th Cir. 1972), cert, denied,
409 U.S. 1115 (1973).
On balance, and in light of these cases, we are persuaded that the
statutory exemption cannot be restricted in scope to the NAC. On the
other hand, the legislative history does not support any broad exemp­
tion for the non-Indian use of peyote. In our view, the CSA exempts
the religious use of peyote by the NAC and by other bona fid e peyote-
using religions in which the actual use of peyote is central to estab­
lished religious beliefs, practices, dogmas, or rituals. As a practical
matter, no group of which we are aware other than the NAC would
meet this demanding standard.
14 The Native American Church o f New York was not affiliated with the NAC notwithstanding
the similarity of its name.
15 A t trial, however, the court concluded that the Native American Church of New York was not
a bona fide religion and dismissed the case.
16 The Lamantia case is currently awaiting trial in the Southern District of New York [Note: A fter
trial in this case, the court found that the statutory exemption was not available to the plaintiffs
because they were not part o f a bona fide religious organization. Birnbaum v. United States, 80 Civ.
1534 (RLC) (S.D.N.Y. April 11, 1983) (unreported opinion) (Carter, J.) Ed.]
409
HI. ComstitatiomaMty
The First Amendment to the Constitution provides that “Congress
shall make no law respecting an establishment of religion, or prohibit­
ing the free exercise thereof. . . .” The Establishment Clause generally
prohibits the government from granting certain preferences to religions
or religious adherents which are not available to secular organizations
or nonreligious individuals. E.g., Everson v. Board o f Education, 330
U.S. 1 (1947). Because the exemption for the bona fid e religious use of
peyote is arguably a preference granted to religion, the question arises
whether the exemption violates the Establishment Clause. There could
be no Establishment Clause violation if the NAC has a constitutional
right under the Free Exercise Clause to use peyote for ceremonial
purposes, notwithstanding the fact that nonreligious groups or individ­
uals are prohibited from using the substance. Wisconsin v. Yoder, 406
U.S. 205, 234-35 n.22 (1972); Sherbert v. Verner, 374 U.S. 398, 409-10
(1963). Thus, we first consider whether the NAC has a constitutional
right to use peyote for religious purposes. Second, we examine whether
the exemption might be constitutional even if a right to the religious
use of peyote is not guaranteed by the Free Exercise Clause.
A. Free Exercise Clause
The Supreme Court has recognized repeatedly that the Free Exercise
Clause sometimes requires government to make special accommoda­
tions to the needs of religious individuals which are not made for the
public at large.
Sherbert v. Verner, 374 U.S. 398 (1963), the leading case, involved a
Seventh-day Adventist who was discharged from her employment for
refusing to work on Saturday, her Sabbath. She was denied state
unemployment benefits on the ground that her refusal to work on
Saturdays rendered her ineligible. The Supreme Court observed that
the State’s action in effect penalized the exercise of her religion:
The ruling forces her to choose between following the
precepts of her religion and forfeiting benefits, on the one
hand, and abandoning one of the precepts of her religion
in order to accept work, on the other hand. Governmen­
tal imposition of such a choice puts the same kind of
burden upon the free exercise of religion as would a fine
imposed against appellant for her Saturday worship.
Id. at 404. Because this burden on free exercise values was not justified
by a compelling state interest, the Court held that the appellant had
been unconstitutionally denied the unemployment compensation.
In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court held that a state
could not constitutionally impose criminal punishment on Amish par­
ents who removed their children from school after the eighth grade.
410
Application of the state’s compulsory school attendance law was found
to burden the exercise of the Amish religion by exposing children to
worldly influences and interfering with their integration into a way of
life that was inseparably intertwined with the Amish faith.
Finally, in Thomas v. Review Board, 450 U.S. 707 (1981), the Supreme
Court struck down a state’s action in denying unemployment benefits to
a Jehovah’s Witness who, believing that his religion prohibited partici­
pation in the making of armaments, quit his job after being transferred
to a department manufacturing military equipment. The Court’s analysis
reaffirmed the reasoning in Sherbert v. Verner, supra. 17
Attempts to invoke the principle of these cases as a defense against
drug charges have generally been unsuccessful.18 The federal courts
have never addressed the question of whether the Sherbert principle
requires that the NAC be exempted from the general prohibition on
peyote use.19 The early case of State v. Big Sheep, 75 Mont. 219, 243 P.
17 The Supreme Court addressed a related question in Heffron v. International Society fo r Krishna
Consciousness, Inc., 452 U S. 640 (1981). In that case, a religious organization challenged the constitu­
tionality o f a state requirement that it distribute and sell religious literature and solicit donations at a
state fair only at an assigned location within the fairgrounds. The Court held that the challenged
regulation was a reasonable time, place, and manner restriction o f speech. The organization apparently
did not argue before the Supreme Court that its peripatetic solicitation—known as the “sankirtan”—
was itself a religious practice protected by the Free Exercise Clause. T he Supreme Court did not
determine whether an otherwise reasonable time, place, and manner restriction could survive scrutiny
under the Free Exercise Clause if a religious organization could establish that access to the forum in
ways prohibited by the state regulation was central to its religious doctrine and practice. Compare
International Society fo r Krishna Consciousness, Inc. v. Barber, 650 F. 2d 430. (2d Cir. 1981) (prohibition
o f peripatetic solicitation at state fair invalidated as unconstitutional burden on free exercise right to
practice sankirtan; case was decided prior to Heffron.)
The Court may provide more guidance on the extent o f accommodation required by the Free
Exercise Clause this Term when it decides United States v. Lee, prob. jurisdiction noted, 450 U.S. 993(1981). T he district court in that case held that the Free Exercise Clause prohibited the government
from requiring a member o f the Old Order Amish religion to pay certain social security and
unemployment insurance taxes, since the Amish religion considers it a sin to pay for or accept any
form of social insurance outside of the self-sufficient Amish community. 497 F. Supp. 180 (W.D. Pa.
1980). The United States has taken a direct appeal to the Supreme Court. [N o t e : The Supreme Court
reversed the district court, holding that the broad public interest in maintaining a sound tax system
outweighed the Amish employer’s conscientious objection to paying the tax: “When followers o f a
particular sect enter into commercial activity as a matter of choice, the limits they accept on their own
conduct as a matter o f conscience and faith are not to be superimposed on the statutory schemes
which are binding on others in that activity.” United States v. Lee, 455 U.S. 252, 261 (1982). Ed.]
See, e.g.. United States v Spears, 443 F.2d 895 (5th Cir. 1971) (marijuana, heroin, and peyote), cert,
denied. 404 U.S. 1020 (1972); United States v. Hudson, 431 F.2d 468 (5th Cir 1970) (heroin and
marijuana), cert denied, 400 U.S. 1011 (1971); Leary v. United States, 383 F.2d 851 (5th Cir. 1967)
(marijuana), rev’d on other grounds, 395 U.S. 6 (1969); Randall v. Wyrick, 441 F. Supp. 312 (W D. Mo.
1977) (marijuana and LSD); United States v Kuch, 288 F. Supp. 439 (D.D.C 1968) (LSD); People v.
Mullins, 50 Cal. App. 3d 61, 123 Cal. Rptr. 201 (1975) (marijuana); Town v. State ex rel. Reno. 377
So 2d 648 (Fla. 1979) (marijuana), app, dismissed and cert. denied, 449 U.S. 803 (1980); State v.
Brashear, 593 P.2d 63, 92 N.M. 622 (1979) (marijuana); Lewellyn v. State, 489 P.2d 511 (Okl. Cr. 1971)
(marijuana); Gaskin v. State, 490 S.W.2d 521 (Tenn.) (marijuana), app. dismissed, 414 U.S. 886 (1973);
Annot., Free Exercise o f Religion as Defense to Prosecution fo r Narcotic or Psychedelic Drug Offense, 35
A.L.R. 3d 939 (1971).
19B ut cf. Leary v. United States, supra (leaving question open); Golden Eagle v. Johnson, 493 F.2d
1179 (9th Cir. 1974) (holding that special procedural safeguards were not required before peyote could
be seized from NAC member), cert denied, 419 U.S. 1105 (1975); Oliver v. Udall, 306 F.2d 819 (D.C.
Cir 1962) (refusing to invalidate tribal ordinance prohibiting peyote use), cert, denied, 372 U.S 908
(1963); Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959) (same); Native
American Church o f Navajoland, Inc. v. Arizona Corp. Comm 'n, 329 F. Supp. 907 (D. Anz. 1971)
(upholding refusal to grant incorporation to peyote-using church), affd, 405 U.S. 901 (1972).
411
1067 (1926), upheld the conviction of an NAC member under state law.
But in People v. Woody, supra, the California Supreme Court held that
the state could not, consistently with the First and Fourteenth Amend­
ments, convict an NAC member for using peyote in religious observ­
ances. The court found that the state’s interest in enforcing the statute
against church members did not outweigh the “virtual inhibition of the
practice of defendant’s religion” which would have resulted from en­
forcement. Woody has been followed by two other state courts.
Whitehorn v. State, 561 P.2d 539 (Qkl. CR. 1977); Arizona v.
Whittingham, 19 Ariz. App. 27, 504 P.2d 950 (1973), cert, denied, 417
U.S. 946 (1974). Contra, State v. Soto, 21 Or. App. 794, 537 P.2d 142(Or. App. 1975), cert, denied, 424 U.S. 955 (1976). At least two states
have enacted statutes exempting NAC peyote use from state prohibi­
tions. Montana Stat. 94-35-123; New Mexico Stat. 54-5-16. Montana’s
statute, which legislatively overruled State v. Big Sheep, supra, was
upheld in State ex rel. Offerdahl v. District Court, 156 Mont. 432, 481
P.2d 338 (1971).20
These cases and statutes raise a possibility that the sacramental use of
peyote by NAC members is protected by the Free Exercise Clause
against the prohibitions of the CSA. Since there are no federal cases on
point, however, we examine whether Congress could constitutionally
prohibit sacramental peyote use by NAC members.
1. Is the NAC a “religion”?
The NAC is unquestionably a “religion” for First Amendment Free
Exercise Clause purposes.21 Although the NAC has no written scrip­
tures or officially promulgated doctrine, its adherents share beliefs in
powers, spirits (including God, the “great spirit”), and material incarna­
tions.22 Members of the N AC follow an ethical code, known as the
“Peyote Road,” which teaches brotherly love, care of the family, self-
reliance, and avoidance of alcohol. NAC members attend all-night
rituals known as “peyote meetings,” which are solemn events governed
20See generally Whitehorn v. State: Peyote and Religious Freedom in Oklahoma, 5 Am.I. L. Rev 229
(1977); Note, Native Americans and the Free Exercise Clause, 28 Hastings L.J. 1509 (1977).
21 C ourts may not inquire into the tru th or falsity o f religious beliefs, United States v, Ballard, 322
U.S. 78 (1944), and are generally reluctant to decide a case on the ground that a given system of belief
and action is not a “ religion.” But see Yoder, 406 U.S. at 215-16 (“ [a]lthough a determination o f what
is a ‘religious* belief or practice entitled to constitutional protection may present a most delicate
question, the very concept o f ordered liberty precludes allowing every person to make his own
standards on matters o f conduct in w hich society as a whole has important interests”); International
Society fo r Krishna Consciousness, Inc. v. Barber, 650 F.2d 430; (worship of Krishna is religion); Childs
v. Duckworth, 509 F. Supp. 1254 (N .D . Ind. 1981) (“Church o f Satan, Fraternity of the Goat"
probably not a religion); Theriault v. Silber, 453 F. Supp. 254 (W .D. Tex. 1978), app. dismissed, 579
F.2d 302 (5th Cir. 1978), cert, denied, 440 U.S. 917 (1979) (“Church of the New Song” not a religion);
United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968) (“ Neo-American Church” not a religion).
22F o r detailed descriptions of the N A C and its rituals, see, e.g., D. Aberle, T he Peyote Religion
A m ong the Navajo (1966); W. La Barre, The Peyote Cult (1969); A. M arriott & C. Rachlin, Peyote
(1971); V. Petm llo, T he Diabolic Root (1934); J. Slotkin, T he Peyote Religion (1956).
412
by elaborate customs regarding the placement and purification of sacred
objects, the order of ceremonial activities, and the like.
Given these well-known characteristics, it appears that the beliefs of
NAC members satisfy a functional definition of religion: these beliefs
occupy a place in the lives of NAC members parallel to that filled in
the lives of others by more familiar religions.23 Indeed, the NAC would
qualify as a religion even under a more traditional definition. The NAC
displays “a belief in a Supreme Being, a religious discipline, a ritual
[and] tenets to guide one’s daily existence.” Kuch, 288 F. Supp. at 444.
We conclude, therefore, that the NAC is a “religion” for purposes of
the Free Exercise Clause.
2. Is peyote use grounded in the history of the NAC?
Courts have accorded great weight to the fact that a given system of
belief and action is “not merely a personal preference but . . . has an
institutional quality about it.” 24 The institutional nature of belief encom­
passes the notions that a belief is shared with others and that the
institution itself has endured for an appreciable period of time.25 The
NAC is an institutional religion in this sense. Its beliefs are shared by
large numbers of Indians, including members of many different tribes.
A reference to the religious use of peyote in Mexico appears in Spanish
historical sources as early as 1560. People v. Woody, supra. Its doctrine
and ritual developed among the Plains Indians sometime between 1870
and 1885; the essential elements of the ritual were well established
when first observed by white men in 1897. The NAC was incorporated
in Oklahoma in 1921 and is now an international organization with
affiliated branches in other states and Canada. The fact that the NAC is
an established religion with a significant history of sacramental peyote
use is highly relevant to a determination whether the use of peyote by
NAC members is protected by the Free Exercise Clause.
23 See International Society fo r Krishna Consciousness, Inc. v. Barber, 650 F.2d. at 440 (matter of
ultimate concern to the individual, such that he would categorically disregard his self-interest in
preference to transgressing these beliefs, is his religion); L. Tribe, American Constitutional Law, ch. 14
(1978); Note, Toward a Constitutional Definition o f Religion, 91 H arv L. Rev. 1056 (1978). C f United
States v. Seeger, 380 U.S. 163, 166 (1965) (interpreting statutory draft exemption); Welsh v. United
States, 398 U.S. 33 (1970) (same); Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979) (Transcendental
Meditation is a religion for Establishment Clause purposes).
24Brown v. Dade Christian School Inc., 556 F.2d 310 (5th Cir. 1977), cert, dented, 434 U S . 1063
(1978). Accord, Yoder, 406 U.S. at 216 (Thoreau’s decision to move to Walden Pond was based on
beliefs which were “philosophical and personal rather than religious, and such belief does not rise to
the demands of the religion clauses.”)
2*See, e.g., Yoder, 406 U.S. at 235 (“history of three centuries as a religious sect and a long history
as a successful and self-sufficient segment of American society'’)-
413
3. Is peyote use central to the NAC?
Courts tend to require convincing governmental interests to justify
burdening practices that are central to a given religion.26 It seems
indisputable that the use of peyote is central to the NAC in this sense.
Peyote lies at the “theological heart” of the NAC. People v. Woody,
supra, 61 Cal. 2d at 722, 40 Cal. Rptr. at 74, 394 P.2d at 818. Some
NAC members believe in a divine “Peyote Spirit.” All NAC members
apparently believe that peyote is the material incarnation of spiritual
power. Moreover, taking of peyote is the very cornerstone of the
peyote meeting. It is not an exaggeration to say that use of peyote is
the sine qua non of the NAC. See, generally, id.; sources cited in n.22,
supra.
4. Is prohibiting religious peyote use the least restrictive means of
accomplishing a compelling governmental purpose?
Because peyote use is firmly grounded in the NAC’s history and
central to its doctrine and ritual, it can be prohibited only if such a
restriction is the least restrictive means of achieving a compelling gov­
ernmental purpose. We can imagine three possible interests that the
federal government might assert: (1) the interest in preventing harm to
the NAC member resulting from peyote use in religious ceremonies; (2)
the interest in preventing abuse of peyote by nonreligious persons who
falsely claim to be religious; and (3) the interest in encouraging compli­
ance with the law by other persons who do not claim the religious
exemption, but who might doubt the public health justification if cer­
tain groups were exempted for whatever reason. We think it likely that
these interests would be considered compelling in the context of bona
fid e sacramental use of peyote, and that a prohibition backed by civil
and criminal sanctions is the least restrictive means of achieving the
objective. As noted in note 18 supra, the majority of cases have recog­
nized that the government has a compelling interest in prohibiting drug
usage even by persons who take drugs for religious purposes. However,
we lack sufficient facts to make a conclusive judgment in this regard.
Peyote is harmful to those who ingest it. This conclusion is implicit
in the decision of Congress to list peyote as a Schedule I controlled
substance in the CSA. Peyote is known to contain toxic alkaloids that
can be lethal if taken in sufficient quantity, although there is no known
lethal dosage of peyote itself. Mescaline, the major active ingredient in
26See Yoder, 406 U.S. at 210, 216, 218, 221, 235 (objection to formal education beyond eighth grade
was “ firmly grounded in . . . central religious concepts”, separation from worldly community was
“fundamental,” “basic,” and ‘‘vital’* to the faith); Frank v. Alaska, 604 P.2d 1068 (Alaska 1979)
(reversing poaching conviction of Athabascan Indian who killed a moose for funeral feast; feast was
“the most im portant institution in Athabascan life*’ and “ food is the cornerstone of the ritual**); L.
Tribe, supra, at §§ 14-11, pp. 859-65. Compare Sequoyah v. TVA 620 F.2d 1159 (6th Cir.), cert, denied,
449 U.S. 953 (1980) (refusing to enjoin construction o f Tellico Dam at request o f Cherokee Indians
w ho alleged that impoundment would flood sacred tribal sites; not central to tribal religion).
414
peyote, has been linked to harmful somatic or mutagenic effects. Use of
peyote can cause permanent psychological damage in the form of
personality disintegration, loss of concentration, memory failure, para­
noia, passivity, and depression.27 However, the government has consist­
ently exempted peyote use by the NAC from the CSA. Its own action
in creating and abiding by this exemption may point to the conclusion
that its interest in prohibiting religious peyote use is not compelling. Cf.
Metromedia, Inc. v. City o f San Diego, 453 U.S. 490 (1981) (plurality
opinion) (fact city exempted on-site commercial billboards from general
prohibition on billboards undercut city’s argument that off-site noncom­
mercial billboards could be prohibited).
The government has a compelling interest in enforcing the general
prohibition on nonreligious peyote use. Thus, Congress could determine
that an exemption for the NAC would create an intolerable risk that
persons would use the cover of false adherence to religion in order to
abuse the substance. Congress could also determine that an exemption
would encourage disrespect for the law by seemingly undercutting the
public health rationale for the prohibition of use by non-NAC members.
Again, however, the strength of this argument would possibly be un­
dercut by the government’s longstanding exemption for the NAC. We
are aware of no evidence that enforcement efforts have been signifi­
cantly handicapped by the exemption.
In summary, we think it likely that Congress could, consistently with
the Free Exercise Clause, prohibit even the religious use of peyote if it
chose to do so, but we are unable to answer this question with assur­
ance because we lack sufficient facts on which to make that judgment.
For example, it would be useful to know whether peyote has the same
type of harmful effects when used in religious ceremonies as when
taken in clinical tests, and how NAC members compare with other
Indians with respect to their overall physical and emotional health.
Evidence of whether the peyote exemption has hampered enforcement
efforts could also be relevant.
B. Establishment Clause
Because we are unable to conclude with confidence that the NAC
has a free exercise right to use peyote for religious purposes, we now
consider whether the exemption for the religious use of peyote con­
tained in the CSA would offend the Establishment Clause if it is not
required by the Free Exercise Clause. Under the Establishment Clause,
government aid or preference to religion is constitutional only if it
satisfies each part of a three-prong test: (1) it must have a secular
purpose; (2) it must have a primary effect which neither aids nor
” See, generally, 35 Fed. Reg. 14790-91 (1970). However, to our knowledge peyote has never been
shown to be addictive.
415
inhibits religion; and (3) its application must not result in excessive
entanglement of government with religion. Stone v. Graham, 449 U.S.
39 (1980) (per curiam)-, Wolman v. Walter, 433 U.S. 229, 236 (1977);
M eek v. Pittenger, 421 U.S. 349, 358 (1975); Committee fo r Public Educa­
tion & Religious Liberty v. Nyquist, 413 U.S. 756, 773 (1973).
The Supreme Court has on several occasions upheld against Estab­
lishment Clause challenges state actions which provided a special ac­
commodation for religion. In Zorach v. Clawson, 343 U.S. 306 (1952),
the Court upheld a program in which children were allowed to leave
the public schools at a designated time in order to receive religious
instruction elsewhere. The Court held that this accommodation to reli­
gious needs by secular authorities was not an unwarranted departure
from the neutrality required by the Establishment Clause:
When the state encourages religious instruction or cooper­
ates with religious authorities by adjusting the schedule of
public events to sectarian needs, it follows the best of our
traditions. For it then respects the religious nature of our
people and accommodates the public service to their spir­
itual needs.
Id. at 313-14.
In Walz v. Tax Commission o f New York, 397 U.S. 664 (1970), the
Court upheld a state tax exemption for properties held by charitable,
educational, and religious organizations, including properties used
solely for religious worship. The Court observed that “for the men
who wrote the Religion Clauses of the First Amendment the ‘establish­
ment’ of a religion connoted sponsorship, financial support, and active
involvement of the sovereign in religious activity.” 397 U.S. at 668.
Although the state’s obligation was one of neutrality, strict neutrality
was not possible:
The general principle deducible from the First Amend­
ment and all that has been said by the Court is this: that
we will not tolerate either govemmentally established re­
ligion or governmental interference with religion. Short
o f these expressly proscribed governmental acts there is
room for play in the joints productive of a benevolent
neutrality which will permit religious exercise to exist
without sponsorship and without interference . . . . The
limits of permissible state accommodation to religion are
by no means co-extensive with the noninterference man­
dated by the Free Exercise Clause.
397 U.S. at 669, 673. Stressing that the exemption applied to charitable
and educational institutions as well as religious ones, the Court found
that it was not enacted with a religious purpose. Moreover, enforcing a
tax against religious property would involve the state in greater entan­
416
glement with religion than would granting an exemption. Finally, the
Court stressed the long and uninterrupted history of property tax ex­
emptions for churches in this country. As the Court stated with respect
to this historical practice:
It is obviously correct that no one acquires a vested or
protected right in violation of the Constitution by long
use, even when that span of time covers our entire na­
tional existence and indeed predates it. Yet an unbroken
practice of according the exemption to churches, openly
and by affirmative state action, not covertly or by state
inaction, is not something lightly to be cast aside.
397 U.S. at 678.28
Because they did not address whether the exemptions in question
were required by the Free Exercise Clause, these cases do not expressly
hold that the government may constitutionally accommodate religion
by granting it special benefits not mandated by the Constitution. The
failure of the Court to decide the cases on Free Exercise Clause
grounds, however, may indicate that the released time program in
Zorach or the tax exemption in Walz were not constitutionally required.
Certainly, the Court’s language quoted above from Walz implies that
such an accommodation could be constitutional at least in some cases.29
26 See also Sherbert, 374 U.S. at 422, (Harlan, J., dissenting, joined by White, J.)* These Justices
dissented from the Court's conclusion that an exemption for Seventh-day Adventists was required by
the Free Exercise Clause, but nevertheless contended that the state of its own volition could provide
such an exemption w ithout violating the Establishment Clause:
[A]t least under the circumstances of this case it would be a permissible accommoda­
tion of religion for the State, if it chose to do so, to create an exception to its eligibility
requirements for persons like the appellant. The constitutional obligation of “ neutral­
ity" . . is not so narrow a channel that the slightest deviation from an absolutely
straight course leads to condemnation.
Compare Widmar v. Vincent, 454 U.S. 263, 273 n.13 (1981) (Court declined to “reach the questions that
would arise if State accommodation of Free Exercise and Free Speech rights should, in a particular
case, conflict with the prohibitions of the Establishment Clause"); id. at 282 (White, J., dissenting):
I have long argued that Establishment Clause limits on state action which incidentally
aids religion are not as strict as the Court has held. T he step from the permissible to
the necessary, however, is a long one. In my view, just as there is room under the
Religion Clauses for state policies that may have some beneficial effect on religion,
there is also room for state policies that may incidentally burden religion. In other
words, I believe the States to be a good deal freer to formulate policies that affect
religion in divergent ways than does the majority.
29The lower federal courts have addressed a closely analogous problem in the context o f challenges
to §701(j) of Title V II of the Civil Rights Act o f 1964, 42 U.S.C. § 2000e(j), which requires employers
reasonably to accommodate the religious beliefs and practices of their employees. T he courts have
split on whether the reasonable accommodation provision violates the Establishment Clause. Courts in
the Fourth, Sixth, Seventh, and Ninth Circuits have upheld §701(j). Jordan v North Carolina N at'l
Bank, 399 F. Supp. 172 (W.D N.C. 1975), rev'd on other grounds, 565 F.2d 72 (4th Cir. 1977); Cummins
v. Parker Seal Co., 516 F.2d 544 (6th Cir. 1975), a ffd by an equally divided Court, 429 U.S. 65 (1976);
Nottelson v. Smith Steel Workers D.A.L. V. 19806, 643 F 2d 445 (7th Cir.), cert, denied, 454 U.S. 1046(1981); Tooley v. Martin-Marietta Corp. 648 F.2d 1239 (9th Cir. 1981). Courts in the T hird and Fifth
Circuits have struck it down Gavin v. People Natural Gas Co., 464 F. Supp 622 (W .D. Pa. 1979);
Isaac v. Butler's Shoe Corp., 511 F. Supp. 108 (N.D. Ga. 1980). Commentators are likewise divided:
e.g., Wheeler, Establishment Clause Neutrality and the Reasonable Accommodation Requirement, 4
Hastings L.Q. 901 (1977) (valid); Note, Can the Government Require Accommodation o f Religion at the
Private Job-Site?, 62 Va. L. Rev. 237 (1976) (invalid). The Supreme Court has failed to resolve the
Continued
417
While the lack of a clear holding in these cases cautions against any
firm statement of the legal principles in this area, it is our opinion that
the government may, consistently with the Establishment Clause, take
actions necessary to avoid substantial interference with religious prac­
tices 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.
Such a rule would comport with the practical necessities of govern­
ment. The Framers of the Constitution could not have intended that
there be precisely one and only one correct course of action between
committing a Free Exercise Clause violation, on the one hand, and an
Establishment Clause violation, on the other. The government must
enjoy a zone of permissible accommodation if it is to function at all. See
Walz, 397 U.S. at 673. Cf. Linde, Due Process o f Lawmaking, 55 Neb. L.
Rev. 197 (1976).
Applying this principle to the problem at hand, we conclude that the
CSA’s exemption for the bona fide religious use of peyote passes muster
under the Establishment Clause. As noted above, this exemption might
be required by the Free Exercise Clause, although we believe it more
likely that the exemption is not constitutionally mandated. Even if not
required by the Free Exercise Clause, such an exemption appears neces­
sary to avoid substantial interference with the religious practices and
beliefs of the NAC. The exemption would not impose affirmative bur­
dens on any person, believer or nonbeliever, nor would it amount to
government sponsorship or support of religion.
The exemption should not be viewed as having a religious purpose:
your agency’s goal is not specifically to further the interests of the
NAC or any other religion, but, rather, to meet its possible obligations
under the Free Exercise Clause and, more generally, to further free
exercise values by removing affirmative barriers to religious practices.
Nor does the exemption have a primarily religious effect: encouraging
freedom of religious belief and practice evinces only a “benevolent
neutrality” in matters of religion. Walz, 397 U.S. at 669. In exempting
sacramental peyote use based on the importance and history of such
use, the government does not lend its imprimatur to any particular
religion or religion in general, nor does it encourage belief in the tenets
of any religion. There is no “sponsorship, financial support, [or] active
involvement of the sovereign in religious activity.” Id. at 668. Finally,
issue, although it has evinced interest in it. In Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir.
1970), the circuit court considered E E O C regulations which w ere the predecessor of §701(j); the
Supreme C ourt affirmed by an equally divided vote, 402 U.S. 689 (1971). T he Supreme C ourt also
affirmed Cumm ins v. Parker Seal Co., supra, by an equally divided vote, 429 U.S 65 (1976) (Stevens,
J., not participating) In TWA v. Hardison, 432 U S 63 (1977), the Court did not reach the issue since
it held that no accommodation was reasonably possible
See also Jaggard v. Commissioner, 582 F.2d 1189 (8th Cir. 1978), cert, denied, 440 U.S. 913 (1979)
(upholding social security tax exemption for persons w ith religious scruples against accepting benefits
o f insurance schemes).
418
an exemption for the sacramental use of peyote would probably not be
invalidated as entailing an impermissible government entanglement in
religious matters. Reliance on history as an important probative factor
should reduce the entanglement that might otherwise accompany a
governmental investigation of whether a system of belief and action is a
religion, whether the adherent is sincere, and whether peyote use is
central to the religion.
We conclude, therefore, that the Establishment Clause is not violated
by the statutory exemption for the religious use of peyote 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.
III. Availability of Exemption
Finally, you have inquired as to the constitutionality of exempting
American Indian peyotists to the exclusion of other religious users of
peyote. Such an exemption would require statutory amendment, since,
as we concluded in Part I, the current statutory exemption applies to
the NAC and to other religions whose use of peyote is central to
established religious beliefs, practices, dogmas, or rituals. We conclude
that an exemption limited to American Indians might well be unconsti­
tutional.
It is well accepted that the Establishment Clause prohibits a govern­
ment from “preferring] one religion over another.” Everson, 330 U.S.
at 15. See Cruz v. Beto, 405 U.S. 319 (1972) (prison must provide
reasonable opportunity for Buddhist to pursue faith comparable to that
provided prisoners of other religions); Fowler v. Rhode Island, 345 U.S.
67 (1953) (Jehovah’s Witness meeting may not be barred in public park
open to other religious services).30 Under accepted principles, therefore,
an exemption which discriminates among otherwise equally situated
religions violates the Establishment Clause.
We do not believe that any different conclusion is required when, as
here, the “preferred” religion is comprised of American Indians. It is
true that Indians are treated differently for some purposes under our
law. Special rules of construction govern judicial interpretation of stat­
utes and treaties involving Indians. Indians may be given preference on
the basis of tribal membership without triggering heightened equal
protection scrutiny. Morton v. Mancarci, 417 U.S. 535 (1974). Indian
tribes may establish a religion on the reservation without contravening
constitutional or statutory prohibitions. See Talton v. Mayes, 163 U.S.
376 (1896); Indian Civil Rights Act, 25 U.S.C. § 1302. Congress has
90See also Valente v. Larson. 637 F 2 d 562 (8th Cir. 1981) (exemption from solicitation ordinance
which applied unequally to different religious organizations held to violate Establishment Clause), cert,
granted, 49 U.S.L.W. 3890 (1981) [ajfd 456 U.S. 228 (1982)].
419
shown special concern for Indian religion by enacting the Indian Reli­
gious Freedom Act of 1978, Pub. L. No. 95-341.
However, the special treatment of Indians under our law does not
stem from the unique features of Indian religion or culture. With
respect to these matters, Indians stand on no different footing than do
other minorities in our pluralistic society. Rather, the special treatment
of Indians is grounded in their unique status as political entities, for­
merly sovereign nations preexisting the Constitution, which still retain a
measure of inherent sovereignty over their peoples unless divested by
federal statute or by necessary implication of their dependent status. See
United States v. Wheeler, 435 U.S. 313 (1978).
An exemption for Indian religious use of peyote would not be
grounded in the unique political status of Indians. Instead, the exemp­
tion would be based on the special culture and religion of the Indians.
In this respect, Indian religion cannot be treated differently than other
religions similarly situated without violation of the Establishment
Clause.31
Our conclusion in this respect is consistent with the relevant court
decisions. In re Grady, 61 Cal. 2d 887, 394 P.2d 728, 39 Cal. Rptr. 912(1964), was a habeas corpus petition brought by a self-styled “peyote
preacher” who had been convicted of illegal possession of peyote. The
California Supreme Court granted the writ and remanded for a hearing
on the authority of People v. Woody, supra. The court apparently be­
lieved it irrelevant whether the petitioner was an Indian or a member
of the NAC. Kennedy v. Bureau o f Narcotics and Dangerous Drugs,
supra, 459 F.2d 415, was a petition for review of a refusal by the
predecessor of your agency to amend the peyote exemption to include
a group styling itself as the “Church of the Awakening.” The court
held that an exemption restricted to members of the NAC “creates an
arbitrary classification that cannot withstand substantive due process
attack.” Id. at 417.32
IV. Conclusion
The possible necessity of extending the exemption to other non-
Indian groups may entail some additional administrative burdens for
your agency. As a practical matter, however, we believe that no other
groups of which we are aware could establish their entitlement to the
exemption. We believe that your agency would be fully justified in
31T h e D epartm ent of Justice has expressed similar views in another context. See generally Statement
o f L arry L. Simms on S.J. Res. 102 before the Senate Select Committee on Indian Affairs, February
27, 1978 (noting that congressional preference for Indian over non-Indian religions could raise Estab­
lishment Clause problems).
32 However, the court declined to grant relief: since the Church of the Awakening had sought to
include only itself within the exemption while leaving other bona fide religions nonexempt, the
requested exemption was subject to th e same constitutional infirmity as was an exemption limited to
the NAC.
420
adopting procedures or standards designed to minimize those burdens
wherever possible. Such procedures or standards would probably be
supported by one or more of three compelling governmental interests:
(1) the interest in avoiding excessive administrative burdens; (2) the
interest in preventing abuse of peyote by persons falsely claiming a
religious exemption; and (3) the interest in avoiding unnecessary entan­
glement with religion.
Your agency could require that any group wishing to qualify for the
exemption bring a petition for inclusion. If such a petition is brought,
your agency could: (1) require that the petitioner be a member of a
bona fide peyote-using religion in which the actual use of peytoe is
central to established religious beliefs, practices, dogmais, or rituals; and
(2) apply a rebuttable presumption that the exemption is not available,
under the foregoing standard, unless the petitioner can allege and estab­
lish a significant history of religious use of peyote. Such a presumption
is justifiable as an objective means of determining that the petitioner’s
beliefs are bona fide and religious. While a purely personal and idiosyn­
cratic religion may be theoretically possible, c f United States v. Seeger,
380 U.S. 163 (1965), the Supreme Court has stressed the importance of
a recognized and established organization, with a significant history of
the religious practice in question, to a determination that given beliefs
and practices are religious. A requirement that the petitioner be a
member of an established organization with a significant history of
peyote use would serve to relieve the administrative burden on your
agency. Moreover, it would deter false petitions by individuals who
wish to abuse peyote for nonreligious purposes. Finally, this type of
requirement may be necessary to prevent undue entanglement by your
agency in religious matters.
Our research has identified no religious organizations, other than the
NAC, which would qualify for the exemption under these or similar
procedural and substantive requirements. It seems unlikely, therefore,
that in practice the peyote exemption need be expanded beyond an
exemption for the NAC. If, however, a group does appear which can
establish that it is a bona fide religion in which the actual use of peyote
is central to established religious beliefs, practices, dogmas, or rituals,
your agency is obligated to accord it the exemption under the current
statutory scheme.
T heodore B. O l s o n
Assistant Attorney General
Office o f Legal Counsel
421