b'Peyote Exemption for Native American Church\nRegulation of the D rug Enforcement Administration (D EA ) exempting peyote use in\nconnection with the religious ceremonies of the Native American Church (NAC) from\nthe controls and sanctions of the Controlled Substances Act o f 1970 (CSA), accurately\nreflects Congress\xe2\x80\x99 intent to exempt the religious use of peyote by the NAC and other\nbona fide religions in which the use o f peyote is central to established religious beliefs,\npractices, dogmas, or rituals.\nAn exemption for peyote use by the NAC would not violate the Establishment Clause o f\nthe First Amendment if the NAC had a constitutional right under the Free Exercise\nClause to use peyote for religious purposes.\nThe NAC is an established religion, in whose history the sacramental use o f peyote is\nfirmly grounded, and in whose doctrine and ritual the use o f peyote is central.\nNonetheless, it is likely that Congress could, consistently with the Free Exercise\nClause, constitutionally restrict or prohibit the continued religious use of peyote if this\nwere the least restrictive means of achieving a compelling governmental purpose.\nThe exemption for the religious use of peyote contained in the CSA does not offend the\nEstablishment Clause even if it is not required by the Free Exercise Clause. Under\nrelevant Supreme Court precedent, the government may take actions necessary to\navoid substantial interference with religious practices o r beliefs, even if such actions are\nnot required by the Free Exercise Clause, provided that the actions do not impose\nhardship on others or amount to government sponsorship or support o f religion.\nA statutory exemption limited to the NAC, to the exclusion of other religions whose use\nof peyote is central to established religious beliefs or practices, would be unconstitu\xc2\xad\ntional under the Establishment Clause if it discriminated among otherwise equally\nsituated religions. No different conclusion would be required because the \xe2\x80\x9cpreferred\xe2\x80\x9d\nreligion is composed of American Indians, since the special treatment of Indians under\nour law is grounded in their unique status as political entities, not in their religion o r\nculture. On the other hand, since no group other than the NAC is likely to be able to\nestablish its entitlement to the exemption, the D EA would be justified in adopting\nprocedures designed to minimize the administrative burdens o f extending the exemption\nto other groups.\n\nDecember 22, 1981\nMEMORANDUM OPINION FOR THE CHIEF COUNSEL, DRUG\nENFORCEMENT ADMINISTRATION\nPeyote, a hallucinogenic cactus, is listed as a Schedule I controlled\nsubstance in the Controlled Substances Act of 1970 (CSA), 21 U.S.C.\n\xc2\xa7\xc2\xa7 801-966, and is subject to rigorous controls and sanctions with re\xc2\xad\nspect to manufacture, transfer, and possession. Your agency has inter\xc2\xad\npreted the CSA to exempt peyote use in the religious ceremonies of the\nNative American Church (NAC), an American Indian religion. You\nhave requested that this Office examine three issues arising in connec\xc2\xad\n403\n\n\x0ction with the foregoing exemption: (1) what is the scope of the statu\xc2\xad\ntory exemption; (2) is the exemption constitutional; and (3) would it be\nconstitutional to exempt only American Indian peyotists to the exclu\xc2\xad\nsion of other religious users of the drug.\nWe conclude, first, that Congress intended to exempt peyote use by\nthe NAC and other bona fid e peyote-using religions in which the actual\nuse of peyote is central to established religious beliefs, practices,\ndogmas, or rituals. In administering this exemption, your agency could,\nconsistently with the congressional intent, regard the absence of a\nsignificant history of such use as a meaningful or even presumptive\nfactor in determining the availability of the exemption. As a practical\nmatter, we believe that no religions other than the NAC would qualify\nfor the exemption. Second, we conclude that the exemption as we have\ninterpreted it does not offend the Establishment Clause of the First\nAmendment. Third, we conclude that it might well offend the Estab\xc2\xad\nlishment Clause to limit the exemption to American Indian peyotists.\nI. Scope o f the Statutory Exemption\n\nThe CSA\xe2\x80\x99s listing of peyote as a Schedule I controlled substance\ndoes not contain any express exemptions.1 The exemption for the NAC\nis found in a regulation o f your agency, 21 C.F.R. \xc2\xa7 1307.31, which\nprovides: 2\nThe listing of peyote as a controlled substance in\nSchedule I does not apply to the nondrug use of peyote in\nbona fide religious ceremonies of the Native American\nChurch, and members of the Native American Church so\nusing peyote are exempt from registration. Any person\nwho manufactures peyote for or distributes peyote to the\nNative American Church, however, is required to obtain\nregistration annually and to comply with all other require\xc2\xad\nments of law.\nThis regulation is strictly an interpretative rule which construes the\nCSA in light of its legislative history; your agency does not assert\nauthority to create nonstatutory exemptions from the listing of a sub\xc2\xad\nstance in Schedule I.\nThe manufacture or distribution of peyote was first prohibited by\nfederal law in the Drug Abuse Control Act Amendments of 1965 (1965\nAmendments).3 This statute\xe2\x80\x99s origin was in S. 2628, a bill which passed\n1 21 U.S.C. \xc2\xa7 812(c) Schedule I(c)(12). Schedule I substances are those which have a high potential\nfor abuse, have no currently accepted medical use in treatment in the United States, and lack accepted\nsafety for use under medical supervision. Id. \xc2\xa7 812(b)(1). The CSA subjects Schedule I substances to\nstringent registration, labelling, and recordkeeping requirements, and imposes criminal penalties for\ntheir unauthorized manufacture, possession, or transfer.\n2 See also 21 C.F.R. \xc2\xa7320 3 (similar regulation o f Department of Health and Human Services).\n8 Peyote was classified as a \xe2\x80\x9cnarcotic\xe2\x80\x9d m the Narcotic Farm A ct of 1929, 45 Stat. 1085, to enable\npeyote \xe2\x80\x9caddicts\xe2\x80\x9d to seek treatment at federal facilities. The Food, D rug and Cosmetic Act of 1938 also\nContinued\n\n404\n\n\x0cthe Senate during the Second Session of the 88th Congress. S. 2628\nwould have imposed controls on \xe2\x80\x9cpsychotoxic drug[s],\xe2\x80\x9d which, as de\xc2\xad\nfined, included peyote.4 There was no exemption for Indian religious\nuse of the substance.5 The Senate passed S. 2628 prior to the ruling of\nthe California Supreme Court, in People v. Woody, 61 Cal. 2d 716, 40\nCal. Rptr. 69, 394 P.2d 813 (1964), that the Free Exercise Clause of the\nFirst Amendment prohibited the state from prosecuting a member of\nthe NAC for using peyote in religious practices. The 88th Congress\nexpired before the House had an opportunity to vote on S. 2628.\nH.R. 2, introduced and passed in the House the following year, was\nsimilar in most essential respects to S. 2628. However, H.R. 2 explicitly\nprovided that the term \xe2\x80\x9cdepressant or stimulant drug\xe2\x80\x9d did not include\n\xe2\x80\x9cpeyote (mescaline) but only insofar as its use is in connection with the\nceremonies of a bona fide religious organization.\xe2\x80\x9d See H.R. Rep. No.\n130, 89th Cong., 1st Sess. 35 (1965). The purpose for the peyote exemp\xc2\xad\ntion in H.R. 2 does not appear in the legislative history.6\nH.R. 2 was introduced in the Senate and referred to the Committee\non Labor and Public Welfare, which recommended passage of the bill\nbut proposed to drop the special peyote exemption.7 The Senate report\nexplained this recommendation as follow:\nThe Committee determined that it would not be desirable\nto specify drugs other than barbiturates and amphetamines\nas subject to the controls of the bill, but determined that\nthe other classes of drugs are to be brought under control\nof the bill on a case-by-case basis by the Secretary of\nHealth, Education and Welfare under the standards pre\xc2\xad\nscribed in the legislation. In accordance with this determi\xc2\xad\nnation, the committee omitted specific reference to peyote\nas a substance subject to the provisions of the legislation.\nIt is expected that peyote will be subject to the same\nconsideration as all other drugs in determining whether or\nnot it should be included under the provisions of the\nlegislation.\nS. Rep. No. 337, 89th Cong., 1st Sess. 3 (1965). The measure passed the\nSenate without further discussion of the peyote exemption.\nWhen the Senate version of the bill, without the peyote exemption,\nwas brought up for debate in the House, Congressman Harris, the\nChairman of the Committee on Interstate and Foreign Commerce,\nclassifed peyote as a narcotic or hypnotic substance, 52 Stat. 1050, and imposed certain labelling\nrequirements. Neither statute prohibited the manufacture or distribution of peyote.\n4 See 110 Cong Rec. 19,780(1964).\n5 The Senate committee hearings on S. 2628 contain no reference to the religious use of peyote. See\nHearings on S. 2628 before the Subcomm. on Health o f the Senate Comm, on Labor and Public Welfare,\n88th Cong., 2d Sess. (1964).\n6 See H.R Rep. No. 130, 89th Cong., 1st Sess. (1965); Hearings on H.R. 2 Before the House Comm,\non Interstate & Foreign Commerce, 89th Cong., 1st Sess. (1965).\n7 T he Senate committee did not hold hearings on the measure.\n\n405\n\n\x0cwhich had jurisidiction over the bill, gave the following explanation of\nthe Senate amendment:\nMr. Harris. The last amendment of substance made by\nthe Senate deletes the provisions of the House bill which\nprovided that the term \xe2\x80\x9cdepressant or stimulant drug\xe2\x80\x9d\ndoes not include peyote used in connection with ceremo\xc2\xad\nnies of a bona fide religious organization.\nSome concern has been expressed by many of the reli\xc2\xad\ngious groups affected,[8] and by certain civil liberties or\xc2\xad\nganizations concerning the possible impact of this amend\xc2\xad\nment on religious practices protected by the first amend\xc2\xad\nment to the Constitution.\nTwo court decisions have been rendered in this area in\nrecent years. One, a decision by Judge Yale McFate in\nthe case of Arizona v. Attakai, No. 4098, in the superior\ncourt of Maricopa County, Phoenix, Arizona, July 26,\n1960; and a California decision, People against Woody, de\xc2\xad\ncided August 24, 1964, in the Supreme Court of Califor\xc2\xad\nnia. Both these cases held that prosecutions for the use of\npeyote in connection with religious ceremonies was a\nviolation of the first amendment to the Constitution.\nIn view of all this, I requested the views of the Food\nand Drug Administration and have been assured that the\nbill, even with [s/c without] the peyote exemption appear\xc2\xad\ning in the House-passed bill, cannot forbid bona fide reli\xc2\xad\ngious use of peyote.\nMr. Speaker, I ask unanimous consent to include the\nletter from the Food and Drug Administration at this\npoint in my remarks.\nD ear Mr. Chairman: In response to your request w e are stating the position the\nFood and D rug Administration expects to take if H.R. 2 becomes law as it passed\nthe Senate with respect to the use of peyote in religious ceremonies.\nWe have been advised by a representative of the North [s/c Native] American\nChurch that this church is a bona fide religious organization and that peyote has\nbona fide use in the sacrament of the church. The representative has agreed to\ndocum ent both o f these statements.\nIf the church is a bona fide religious organization that makes sacramental use of\npeyote, then it would be o u r view that H.R. 2, even without the peyote exemption\nwhich appeared in the House-passed version, could not forbid bona fide religious use\no f peyote. W e believe that the constitutional guarantee of religious freedom fully\nsafeguards the rights of the organization and its communicants.\n\nSincerely yours,\n\nGeorge P. Larrick,\nCommissioner o f Food and Drugs\n\nMr. Speaker, in view of the foregoing, I recommend\nthat the House agree to the Senate amendments to H.R. 2.\n8 T he legislative history does not explain which particular \xe2\x80\x9creligious groups\xe2\x80\x9d Congressman Harris\nwas referring to.\n\n406\n\n\x0cI ll Cong. Rec. 15,977-78 (1965). Shortly after the conclusion of these\nremarks, the House concurred in the Senate amendments.\nIn 1965, the Department of Health, Education and Welfare promul\xc2\xad\ngated a regulation controlling peyote under the 1965 Amendments, but\nexempting the religious use of peyote by the NAC.9 The exemption\nappears to have been based on the legislative history recited above.\nCongress returned to the subject of drug abuse control in 1970 when\nit passed the CSA. That statute lists peyote as a controlled substance\nand, as noted above, does not provide for an exemption for the NAC or\nany other religion. However, officials of the Bureau of Narcotics and\nDangerous Drugs 10 testified as to the effect of the proposed statute in\nhearings before the House Committee: 11\nMr. Satterfield. I have one other question. I recall when\nwe were discussing dangerous drugs a few years ago, the\nquestion came up about the Native American Church\ninvolving Indians in the west who use and have for cen\xc2\xad\nturies used peyote in connection with religious services. It\nis my understanding that they enjoy an exemption under\nthe current law.\nMy question is whether any of the bills we have before\nus, if passed, would in any way affect this present exemp\xc2\xad\ntion?\nMr. Ingersoll. Mr. Sonnenreich [Deputy Chief Counsel\nof BNDD] has just conducted a hearing on that subject\nand if you will permit him, I would like him to respond to\nthat.\nMr. Satterfield. Yes.\nMr. Sonnenreich. In the first instance, Mr. Satterfield,\nthe Native American Church did ask us by letter as to\nwhether or not the regulation, exempting them by regula\xc2\xad\ntion, would be continued and we assured them that it\nwould because of the history of the church. We presently\nare involved in another hearing regarding another church\nthat is a non-Indian church that is seeking the exemption\nand the order is going to be published, I believe, either\n9 That exemption read as follows:\nT he listing o f peyote in this subparagraph does not apply to the nondrug use m bona\nfide religious ceremonies o f the Native American Church; however, persons supplying\nthe product to the Church are required to register and maintain appropriate records of\nreceipts and disbursements o f the article.\n21 C.F.R. \xc2\xa7 166.3., now codified at 21 C.F.R. \xc2\xa7 320.3.\n10 Responsibility for enforcing the 1965 Amendments was transferred to the Bureau o f Narcotics\nand Dangerous Drugs by Reorganization Plan No. 1 of 1968.\n11 Hearings on H.R. 11701 and H.R. 13743 Before the Subcomm. on Public Health and Welfare o f the\nHouse Comm, on Interstate and Foreign Commerce 117-18 (1970).\n\n407\n\n\x0ctoday or tomorrow denying them the same exemption as\nthe Native American Church.12\nWe consider the Native American Church to be sui\ngeneris. The history and tradition of the church is such\nthat there is no question but that they regard peyote as a\ndeity as it were, and we will continue the exemption.\nMr. Satterfield. You do not see anything in the Senate\nbill that would make this impossible?\nMr. Sonnenreich. No. Under the existing law originally\nthe Congress was going to write in a specific exemption\nbut it was then decided that it would be handled by\nregulation and we intend to do it the same way under this\nlaw.\nAfter the passage of the CSA the Bureau of Narcotics and Dangerous\nDrugs promulgated the current regulation contained in 21 C.F.R.\n\xc2\xa7 1307.31.13\nThe legislative history supports your agency\xe2\x80\x99s existing exemption for\nthe use of peyote in the religious ceremonies of the NAC. In the case\nof the 1965 Amendments, the House proposed to exempt the bona fide\nreligious use of peyote; the Senate dropped the exemption, not because\nit opposed the religious use of peyote but because it believed that\nspecific reference to peyote would unnecessarily interfere with the\ndiscretion which Congress intended to vest in the administrative agency\nto determine which substances were to be brought under control of the\nbill. The House accepted the Senate\xe2\x80\x99s version only after receiving\nassurances from the agency which was to administer the statute that the\nreligious use of peyote by the NAC would not be prohibited. Similarly,\nthe CSA was passed against the backdrop of an administrative exemp\xc2\xad\ntion granted to the NAC under the 1965 Amendments. There was no\nindication in the legislative history that Congress intended to eliminate\nthe exemption. On the contrary, the House received assurances from\nthe Bureau of Narcotics and Dangerous Drugs that the exemption\nwould be contained under the new statute.\nThe legislative history could be interpreted to support an exemption\nonly for the NAC, and not for other religious groups. Although the\nHouse version of H.R. 2 would have exempted the ceremonial use of\npeyote by all bona fide religious organizations, the House ultimately\naccepted the Senate version of the 1965 Amendments after receiving\n12 T he non-Indian church referred to by Mr. Sonnenreich styled itself the \xe2\x80\x9cChurch of the Awaken\xc2\xad\ning \xe2\x80\x9d T he agency\xe2\x80\x99s opinion denying a peyote exemption is published at 35 Fed. Reg. 14789 (1970). The\nChurch of the Awakening challenged this determination in the Ninth Circuit. In Kennedy v. Bureau o f\nNarcotics\nDangerous Drugs, 459 F.2d 415 (9th Cir. 1972), cert, denied, 409 U.S. 1115 (1973), the court\naccepted the argument that an exemption limited to the NAC was unconstitutional, but declined to\nextend the exemption to the Church o f the Awakening because that group had sought an exemption\nonly for itself and not for all religious users o f peyote.\n13 Your agency has succeeded to the responsibility for enforcing the CSA previously exercised by\nthe Bureau of N arcotics and Dangerous Drugs.\n\n408\n\n\x0cassurances which had specific reference only to the NAC. Similarly,\nthe administrative exemption in effect at the time the CSA was passed\napplied only to the NAC. Officials of the Bureau of Narcotics and\nDangerous Drugs informed the Congress of this fact, of the fact that\nthey were about to deny an exemption to a non-Indian church, and of\ntheir opinion that the NAC was \xe2\x80\x9csui generis.\xe2\x80\x9d These officials strongly\nemphasized what they believed to be the unique history and tradition of\nthe NAC as a peyote-using religion. Thus, it would be reasonable to\ninterpret the legislative history as reflecting a congressional intent to\n\xe2\x80\x9cgrandfather\xe2\x80\x9d the NAC, because of its special historical status, but not\nto create any broader exemption.\nThe two federal courts which have interpreted the exemption, how\xc2\xad\never, have arrived at a broader interpretation. In Native American\nChurch o f New York v. United States, 468 F. Supp. 1247 (S.D.N.Y.\n1979) a ffd mem. 633 F. 2d 205 (2d Cir. 1980), a primarily non-Indian\norganization 14 sought a declaration that it had a right to use a variety\nof \xe2\x80\x9cpsychedelic\xe2\x80\x9d substances, including peyote, for religious ceremonies.\nAfter examining the legislative history recounted above, the court held\nthat the statutory exemption was available to bona fid e religious organi\xc2\xad\nzations other than the NAC which use peyote for sacramental purposes\nand which regard the substance as a deity.15 This holding was accepted\nand endorsed in a subsequent district court decision, Lamantia v. Civiletti, No. 80 Civ. 1534 (RLC) (S.D.N.Y. 1981).16 In addition to these\ncases, the Ninth Circuit has held, as we discuss in greater detail below,\nthat an exemption limited to the NAC which excluded other bona fid e\nreligious organizations would be unconstitutional. Kennedy v. Bureau o f\nNarcotics & Dangerous Drugs, 459 F. 2d 415 (9th Cir. 1972), cert, denied,\n409 U.S. 1115 (1973).\nOn balance, and in light of these cases, we are persuaded that the\nstatutory exemption cannot be restricted in scope to the NAC. On the\nother hand, the legislative history does not support any broad exemp\xc2\xad\ntion for the non-Indian use of peyote. In our view, the CSA exempts\nthe religious use of peyote by the NAC and by other bona fid e peyoteusing religions in which the actual use of peyote is central to estab\xc2\xad\nlished religious beliefs, practices, dogmas, or rituals. As a practical\nmatter, no group of which we are aware other than the NAC would\nmeet this demanding standard.\n14 The Native American Church o f New York was not affiliated with the NAC notwithstanding\nthe similarity of its name.\n15 A t trial, however, the court concluded that the Native American Church of New York was not\na bona fide religion and dismissed the case.\n16 The Lamantia case is currently awaiting trial in the Southern District of New York [Note: A fter\ntrial in this case, the court found that the statutory exemption was not available to the plaintiffs\nbecause they were not part o f a bona fide religious organization. Birnbaum v. United States, 80 Civ.\n1534 (RLC) (S.D.N.Y. April 11, 1983) (unreported opinion) (Carter, J.) Ed.]\n\n409\n\n\x0cHI. ComstitatiomaMty\n\nThe First Amendment to the Constitution provides that \xe2\x80\x9cCongress\nshall make no law respecting an establishment of religion, or prohibit\xc2\xad\ning the free exercise thereof. . . .\xe2\x80\x9d The Establishment Clause generally\nprohibits the government from granting certain preferences to religions\nor religious adherents which are not available to secular organizations\nor nonreligious individuals. E.g., Everson v. Board o f Education, 330\nU.S. 1 (1947). Because the exemption for the bona fid e religious use of\npeyote is arguably a preference granted to religion, the question arises\nwhether the exemption violates the Establishment Clause. There could\nbe no Establishment Clause violation if the NAC has a constitutional\nright under the Free Exercise Clause to use peyote for ceremonial\npurposes, notwithstanding the fact that nonreligious groups or individ\xc2\xad\nuals are prohibited from using the substance. Wisconsin v. Yoder, 406\nU.S. 205, 234-35 n.22 (1972); Sherbert v. Verner, 374 U.S. 398, 409-10\n(1963). Thus, we first consider whether the NAC has a constitutional\nright to use peyote for religious purposes. Second, we examine whether\nthe exemption might be constitutional even if a right to the religious\nuse of peyote is not guaranteed by the Free Exercise Clause.\nA. Free Exercise Clause\n\nThe Supreme Court has recognized repeatedly that the Free Exercise\nClause sometimes requires government to make special accommoda\xc2\xad\ntions to the needs of religious individuals which are not made for the\npublic at large.\nSherbert v. Verner, 374 U.S. 398 (1963), the leading case, involved a\nSeventh-day Adventist who was discharged from her employment for\nrefusing to work on Saturday, her Sabbath. She was denied state\nunemployment benefits on the ground that her refusal to work on\nSaturdays rendered her ineligible. The Supreme Court observed that\nthe State\xe2\x80\x99s action in effect penalized the exercise of her religion:\nThe ruling forces her to choose between following the\nprecepts of her religion and forfeiting benefits, on the one\nhand, and abandoning one of the precepts of her religion\nin order to accept work, on the other hand. Governmen\xc2\xad\ntal imposition of such a choice puts the same kind of\nburden upon the free exercise of religion as would a fine\nimposed against appellant for her Saturday worship.\nId. at 404. Because this burden on free exercise values was not justified\n\nby a compelling state interest, the Court held that the appellant had\nbeen unconstitutionally denied the unemployment compensation.\nIn Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court held that a state\ncould not constitutionally impose criminal punishment on Amish par\xc2\xad\nents who removed their children from school after the eighth grade.\n410\n\n\x0cApplication of the state\xe2\x80\x99s compulsory school attendance law was found\nto burden the exercise of the Amish religion by exposing children to\nworldly influences and interfering with their integration into a way of\nlife that was inseparably intertwined with the Amish faith.\nFinally, in Thomas v. Review Board, 450 U.S. 707 (1981), the Supreme\nCourt struck down a state\xe2\x80\x99s action in denying unemployment benefits to\na Jehovah\xe2\x80\x99s Witness who, believing that his religion prohibited partici\xc2\xad\npation in the making of armaments, quit his job after being transferred\nto a department manufacturing military equipment. The Court\xe2\x80\x99s analysis\nreaffirmed the reasoning in Sherbert v. Verner, supra. 17\nAttempts to invoke the principle of these cases as a defense against\ndrug charges have generally been unsuccessful.18 The federal courts\nhave never addressed the question of whether the Sherbert principle\nrequires that the NAC be exempted from the general prohibition on\npeyote use.19 The early case of State v. Big Sheep, 75 Mont. 219, 243 P.\n17 The Supreme Court addressed a related question in Heffron v. International Society fo r Krishna\nConsciousness, Inc., 452 U S. 640 (1981). In that case, a religious organization challenged the constitu\xc2\xad\ntionality o f a state requirement that it distribute and sell religious literature and solicit donations at a\nstate fair only at an assigned location within the fairgrounds. The Court held that the challenged\nregulation was a reasonable time, place, and manner restriction o f speech. The organization apparently\ndid not argue before the Supreme Court that its peripatetic solicitation\xe2\x80\x94known as the \xe2\x80\x9csankirtan\xe2\x80\x9d\xe2\x80\x94\nwas itself a religious practice protected by the Free Exercise Clause. T he Supreme Court did not\ndetermine whether an otherwise reasonable time, place, and manner restriction could survive scrutiny\nunder the Free Exercise Clause if a religious organization could establish that access to the forum in\nways prohibited by the state regulation was central to its religious doctrine and practice. Compare\nInternational Society fo r Krishna Consciousness, Inc. v. Barber, 650 F. 2d 430. (2d Cir. 1981) (prohibition\no f peripatetic solicitation at state fair invalidated as unconstitutional burden on free exercise right to\npractice sankirtan; case was decided prior to Heffron.)\nThe Court may provide more guidance on the extent o f accommodation required by the Free\nExercise Clause this Term when it decides United States v. Lee, prob. jurisdiction noted, 450 U.S. 993\n(1981). T he district court in that case held that the Free Exercise Clause prohibited the government\nfrom requiring a member o f the Old Order Amish religion to pay certain social security and\nunemployment insurance taxes, since the Amish religion considers it a sin to pay for or accept any\nform of social insurance outside of the self-sufficient Amish community. 497 F. Supp. 180 (W.D. Pa.\n1980). The United States has taken a direct appeal to the Supreme Court. [N o t e : The Supreme Court\nreversed the district court, holding that the broad public interest in maintaining a sound tax system\noutweighed the Amish employer\xe2\x80\x99s conscientious objection to paying the tax: \xe2\x80\x9cWhen followers o f a\nparticular sect enter into commercial activity as a matter of choice, the limits they accept on their own\nconduct as a matter o f conscience and faith are not to be superimposed on the statutory schemes\nwhich are binding on others in that activity.\xe2\x80\x9d United States v. Lee, 455 U.S. 252, 261 (1982). Ed.]\nSee, e.g.. United States v Spears, 443 F.2d 895 (5th Cir. 1971) (marijuana, heroin, and peyote), cert,\ndenied. 404 U.S. 1020 (1972); United States v. Hudson, 431 F.2d 468 (5th Cir 1970) (heroin and\nmarijuana), cert denied, 400 U.S. 1011 (1971); Leary v. United States, 383 F.2d 851 (5th Cir. 1967)\n(marijuana), rev\xe2\x80\x99d on other grounds, 395 U.S. 6 (1969); Randall v. Wyrick, 441 F. Supp. 312 (W D. Mo.\n1977) (marijuana and LSD); United States v Kuch, 288 F. Supp. 439 (D.D.C 1968) (LSD); People v.\nMullins, 50 Cal. App. 3d 61, 123 Cal. Rptr. 201 (1975) (marijuana); Town v. State ex rel. Reno. 377\nSo 2d 648 (Fla. 1979) (marijuana), app, dismissed and cert. denied, 449 U.S. 803 (1980); State v.\nBrashear, 593 P.2d 63, 92 N.M. 622 (1979) (marijuana); Lewellyn v. State, 489 P.2d 511 (Okl. Cr. 1971)\n(marijuana); Gaskin v. State, 490 S.W.2d 521 (Tenn.) (marijuana), app. dismissed, 414 U.S. 886 (1973);\nAnnot., Free Exercise o f Religion as Defense to Prosecution fo r Narcotic or Psychedelic Drug Offense, 35\nA.L.R. 3d 939 (1971).\n19B ut cf. Leary v. United States, supra (leaving question open); Golden Eagle v. Johnson, 493 F.2d\n1179 (9th Cir. 1974) (holding that special procedural safeguards were not required before peyote could\nbe seized from NAC member), cert denied, 419 U.S. 1105 (1975); Oliver v. Udall, 306 F.2d 819 (D.C.\nCir 1962) (refusing to invalidate tribal ordinance prohibiting peyote use), cert, denied, 372 U.S 908\n(1963); Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959) (same); Native\nAmerican Church o f Navajoland, Inc. v. Arizona Corp. Comm \'n, 329 F. Supp. 907 (D. Anz. 1971)\n(upholding refusal to grant incorporation to peyote-using church), affd, 405 U.S. 901 (1972).\n\n411\n\n\x0c1067 (1926), upheld the conviction of an NAC member under state law.\nBut in People v. Woody, supra, the California Supreme Court held that\nthe state could not, consistently with the First and Fourteenth Amend\xc2\xad\nments, convict an NAC member for using peyote in religious observ\xc2\xad\nances. The court found that the state\xe2\x80\x99s interest in enforcing the statute\nagainst church members did not outweigh the \xe2\x80\x9cvirtual inhibition of the\npractice of defendant\xe2\x80\x99s religion\xe2\x80\x9d which would have resulted from en\xc2\xad\nforcement. Woody has been followed by two other state courts.\nWhitehorn v. State, 561 P.2d 539 (Qkl. CR. 1977); Arizona v.\nWhittingham, 19 Ariz. App. 27, 504 P.2d 950 (1973), cert, denied, 417\nU.S. 946 (1974). Contra, State v. Soto, 21 Or. App. 794, 537 P.2d 142\n(Or. App. 1975), cert, denied, 424 U.S. 955 (1976). At least two states\nhave enacted statutes exempting NAC peyote use from state prohibi\xc2\xad\ntions. Montana Stat. 94-35-123; New Mexico Stat. 54-5-16. Montana\xe2\x80\x99s\nstatute, which legislatively overruled State v. Big Sheep, supra, was\nupheld in State ex rel. Offerdahl v. District Court, 156 Mont. 432, 481\nP.2d 338 (1971).20\nThese cases and statutes raise a possibility that the sacramental use of\npeyote by NAC members is protected by the Free Exercise Clause\nagainst the prohibitions of the CSA. Since there are no federal cases on\npoint, however, we examine whether Congress could constitutionally\nprohibit sacramental peyote use by NAC members.\n1. Is the NAC a \xe2\x80\x9creligion\xe2\x80\x9d?\nThe NAC is unquestionably a \xe2\x80\x9creligion\xe2\x80\x9d for First Amendment Free\nExercise Clause purposes.21 Although the NAC has no written scrip\xc2\xad\ntures or officially promulgated doctrine, its adherents share beliefs in\npowers, spirits (including God, the \xe2\x80\x9cgreat spirit\xe2\x80\x9d), and material incarna\xc2\xad\ntions.22 Members of the N AC follow an ethical code, known as the\n\xe2\x80\x9cPeyote Road,\xe2\x80\x9d which teaches brotherly love, care of the family, selfreliance, and avoidance of alcohol. NAC members attend all-night\nrituals known as \xe2\x80\x9cpeyote meetings,\xe2\x80\x9d which are solemn events governed\n20See generally Whitehorn v. State: Peyote and Religious Freedom in Oklahoma, 5 Am.I. L. Rev 229\n(1977); Note, Native Americans and the Free Exercise Clause, 28 Hastings L.J. 1509 (1977).\n21 C ourts may not inquire into the tru th or falsity o f religious beliefs, United States v, Ballard, 322\nU.S. 78 (1944), and are generally reluctant to decide a case on the ground that a given system of belief\nand action is not a \xe2\x80\x9c religion.\xe2\x80\x9d But see Yoder, 406 U.S. at 215-16 (\xe2\x80\x9c [a]lthough a determination o f what\nis a \xe2\x80\x98religious* belief or practice entitled to constitutional protection may present a most delicate\nquestion, the very concept o f ordered liberty precludes allowing every person to make his own\nstandards on matters o f conduct in w hich society as a whole has important interests\xe2\x80\x9d); International\nSociety fo r Krishna Consciousness, Inc. v. Barber, 650 F.2d 430; (worship of Krishna is religion); Childs\nv. Duckworth, 509 F. Supp. 1254 (N .D . Ind. 1981) (\xe2\x80\x9cChurch o f Satan, Fraternity of the Goat"\nprobably not a religion); Theriault v. Silber, 453 F. Supp. 254 (W .D. Tex. 1978), app. dismissed, 579\nF.2d 302 (5th Cir. 1978), cert, denied, 440 U.S. 917 (1979) (\xe2\x80\x9cChurch of the New Song\xe2\x80\x9d not a religion);\nUnited States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968) (\xe2\x80\x9c Neo-American Church\xe2\x80\x9d not a religion).\n22F o r detailed descriptions of the N A C and its rituals, see, e.g., D. Aberle, T he Peyote Religion\nA m ong the Navajo (1966); W. La Barre, The Peyote Cult (1969); A. M arriott & C. Rachlin, Peyote\n(1971); V. Petm llo, T he Diabolic Root (1934); J. Slotkin, T he Peyote Religion (1956).\n\n412\n\n\x0cby elaborate customs regarding the placement and purification of sacred\nobjects, the order of ceremonial activities, and the like.\nGiven these well-known characteristics, it appears that the beliefs of\nNAC members satisfy a functional definition of religion: these beliefs\noccupy a place in the lives of NAC members parallel to that filled in\nthe lives of others by more familiar religions.23 Indeed, the NAC would\nqualify as a religion even under a more traditional definition. The NAC\ndisplays \xe2\x80\x9ca belief in a Supreme Being, a religious discipline, a ritual\n[and] tenets to guide one\xe2\x80\x99s daily existence.\xe2\x80\x9d Kuch, 288 F. Supp. at 444.\nWe conclude, therefore, that the NAC is a \xe2\x80\x9creligion\xe2\x80\x9d for purposes of\nthe Free Exercise Clause.\n2. Is peyote use grounded in the history of the NAC?\nCourts have accorded great weight to the fact that a given system of\nbelief and action is \xe2\x80\x9cnot merely a personal preference but . . . has an\ninstitutional quality about it.\xe2\x80\x9d 24 The institutional nature of belief encom\xc2\xad\npasses the notions that a belief is shared with others and that the\ninstitution itself has endured for an appreciable period of time.25 The\nNAC is an institutional religion in this sense. Its beliefs are shared by\nlarge numbers of Indians, including members of many different tribes.\nA reference to the religious use of peyote in Mexico appears in Spanish\nhistorical sources as early as 1560. People v. Woody, supra. Its doctrine\nand ritual developed among the Plains Indians sometime between 1870\nand 1885; the essential elements of the ritual were well established\nwhen first observed by white men in 1897. The NAC was incorporated\nin Oklahoma in 1921 and is now an international organization with\naffiliated branches in other states and Canada. The fact that the NAC is\nan established religion with a significant history of sacramental peyote\nuse is highly relevant to a determination whether the use of peyote by\nNAC members is protected by the Free Exercise Clause.\n\n23 See International Society fo r Krishna Consciousness, Inc. v. Barber, 650 F.2d. at 440 (matter of\nultimate concern to the individual, such that he would categorically disregard his self-interest in\npreference to transgressing these beliefs, is his religion); L. Tribe, American Constitutional Law, ch. 14\n(1978); Note, Toward a Constitutional Definition o f Religion, 91 H arv L. Rev. 1056 (1978). C f United\nStates v. Seeger, 380 U.S. 163, 166 (1965) (interpreting statutory draft exemption); Welsh v. United\nStates, 398 U.S. 33 (1970) (same); Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979) (Transcendental\nMeditation is a religion for Establishment Clause purposes).\n24Brown v. Dade Christian School Inc., 556 F.2d 310 (5th Cir. 1977), cert, dented, 434 U S . 1063\n(1978). Accord, Yoder, 406 U.S. at 216 (Thoreau\xe2\x80\x99s decision to move to Walden Pond was based on\nbeliefs which were \xe2\x80\x9cphilosophical and personal rather than religious, and such belief does not rise to\nthe demands of the religion clauses.\xe2\x80\x9d)\n2*See, e.g., Yoder, 406 U.S. at 235 (\xe2\x80\x9chistory of three centuries as a religious sect and a long history\nas a successful and self-sufficient segment of American society\'\xe2\x80\x99)-\n\n413\n\n\x0c3. Is peyote use central to the NAC?\nCourts tend to require convincing governmental interests to justify\nburdening practices that are central to a given religion.26 It seems\nindisputable that the use of peyote is central to the NAC in this sense.\nPeyote lies at the \xe2\x80\x9ctheological heart\xe2\x80\x9d of the NAC. People v. Woody,\nsupra, 61 Cal. 2d at 722, 40 Cal. Rptr. at 74, 394 P.2d at 818. Some\nNAC members believe in a divine \xe2\x80\x9cPeyote Spirit.\xe2\x80\x9d All NAC members\napparently believe that peyote is the material incarnation of spiritual\npower. Moreover, taking of peyote is the very cornerstone of the\npeyote meeting. It is not an exaggeration to say that use of peyote is\nthe sine qua non of the NAC. See, generally, id.; sources cited in n.22,\nsupra.\n\n4. Is prohibiting religious peyote use the least restrictive means of\naccomplishing a compelling governmental purpose?\nBecause peyote use is firmly grounded in the NAC\xe2\x80\x99s history and\ncentral to its doctrine and ritual, it can be prohibited only if such a\nrestriction is the least restrictive means of achieving a compelling gov\xc2\xad\nernmental purpose. We can imagine three possible interests that the\nfederal government might assert: (1) the interest in preventing harm to\nthe NAC member resulting from peyote use in religious ceremonies; (2)\nthe interest in preventing abuse of peyote by nonreligious persons who\nfalsely claim to be religious; and (3) the interest in encouraging compli\xc2\xad\nance with the law by other persons who do not claim the religious\nexemption, but who might doubt the public health justification if cer\xc2\xad\ntain groups were exempted for whatever reason. We think it likely that\nthese interests would be considered compelling in the context of bona\nfid e sacramental use of peyote, and that a prohibition backed by civil\nand criminal sanctions is the least restrictive means of achieving the\nobjective. As noted in note 18 supra, the majority of cases have recog\xc2\xad\nnized that the government has a compelling interest in prohibiting drug\nusage even by persons who take drugs for religious purposes. However,\nwe lack sufficient facts to make a conclusive judgment in this regard.\nPeyote is harmful to those who ingest it. This conclusion is implicit\nin the decision of Congress to list peyote as a Schedule I controlled\nsubstance in the CSA. Peyote is known to contain toxic alkaloids that\ncan be lethal if taken in sufficient quantity, although there is no known\nlethal dosage of peyote itself. Mescaline, the major active ingredient in\n26See Yoder, 406 U.S. at 210, 216, 218, 221, 235 (objection to formal education beyond eighth grade\nwas \xe2\x80\x9c firmly grounded in . . . central religious concepts\xe2\x80\x9d, separation from worldly community was\n\xe2\x80\x9cfundamental,\xe2\x80\x9d \xe2\x80\x9cbasic,\xe2\x80\x9d and \xe2\x80\x98\xe2\x80\x98vital\xe2\x80\x99* to the faith); Frank v. Alaska, 604 P.2d 1068 (Alaska 1979)\n(reversing poaching conviction of Athabascan Indian who killed a moose for funeral feast; feast was\n\xe2\x80\x9cthe most im portant institution in Athabascan life*\xe2\x80\x99 and \xe2\x80\x9c food is the cornerstone of the ritual**); L.\nTribe, supra, at \xc2\xa7\xc2\xa7 14-11, pp. 859-65. Compare Sequoyah v. TVA 620 F.2d 1159 (6th Cir.), cert, denied,\n449 U.S. 953 (1980) (refusing to enjoin construction o f Tellico Dam at request o f Cherokee Indians\nw ho alleged that impoundment would flood sacred tribal sites; not central to tribal religion).\n\n414\n\n\x0cpeyote, has been linked to harmful somatic or mutagenic effects. Use of\npeyote can cause permanent psychological damage in the form of\npersonality disintegration, loss of concentration, memory failure, para\xc2\xad\nnoia, passivity, and depression.27 However, the government has consist\xc2\xad\nently exempted peyote use by the NAC from the CSA. Its own action\nin creating and abiding by this exemption may point to the conclusion\nthat its interest in prohibiting religious peyote use is not compelling. Cf.\nMetromedia, Inc. v. City o f San Diego, 453 U.S. 490 (1981) (plurality\nopinion) (fact city exempted on-site commercial billboards from general\nprohibition on billboards undercut city\xe2\x80\x99s argument that off-site noncom\xc2\xad\nmercial billboards could be prohibited).\nThe government has a compelling interest in enforcing the general\nprohibition on nonreligious peyote use. Thus, Congress could determine\nthat an exemption for the NAC would create an intolerable risk that\npersons would use the cover of false adherence to religion in order to\nabuse the substance. Congress could also determine that an exemption\nwould encourage disrespect for the law by seemingly undercutting the\npublic health rationale for the prohibition of use by non-NAC members.\nAgain, however, the strength of this argument would possibly be un\xc2\xad\ndercut by the government\xe2\x80\x99s longstanding exemption for the NAC. We\nare aware of no evidence that enforcement efforts have been signifi\xc2\xad\ncantly handicapped by the exemption.\nIn summary, we think it likely that Congress could, consistently with\nthe Free Exercise Clause, prohibit even the religious use of peyote if it\nchose to do so, but we are unable to answer this question with assur\xc2\xad\nance because we lack sufficient facts on which to make that judgment.\nFor example, it would be useful to know whether peyote has the same\ntype of harmful effects when used in religious ceremonies as when\ntaken in clinical tests, and how NAC members compare with other\nIndians with respect to their overall physical and emotional health.\nEvidence of whether the peyote exemption has hampered enforcement\nefforts could also be relevant.\nB. Establishment Clause\n\nBecause we are unable to conclude with confidence that the NAC\nhas a free exercise right to use peyote for religious purposes, we now\nconsider whether the exemption for the religious use of peyote con\xc2\xad\ntained in the CSA would offend the Establishment Clause if it is not\nrequired by the Free Exercise Clause. Under the Establishment Clause,\ngovernment aid or preference to religion is constitutional only if it\nsatisfies each part of a three-prong test: (1) it must have a secular\npurpose; (2) it must have a primary effect which neither aids nor\n\xe2\x80\x9d See, generally, 35 Fed. Reg. 14790-91 (1970). However, to our knowledge peyote has never been\nshown to be addictive.\n\n415\n\n\x0cinhibits religion; and (3) its application must not result in excessive\nentanglement of government with religion. Stone v. Graham, 449 U.S.\n39 (1980) (per curiam)-, Wolman v. Walter, 433 U.S. 229, 236 (1977);\nM eek v. Pittenger, 421 U.S. 349, 358 (1975); Committee fo r Public Educa\xc2\xad\ntion & Religious Liberty v. Nyquist, 413 U.S. 756, 773 (1973).\nThe Supreme Court has on several occasions upheld against Estab\xc2\xad\nlishment Clause challenges state actions which provided a special ac\xc2\xad\ncommodation for religion. In Zorach v. Clawson, 343 U.S. 306 (1952),\nthe Court upheld a program in which children were allowed to leave\nthe public schools at a designated time in order to receive religious\ninstruction elsewhere. The Court held that this accommodation to reli\xc2\xad\ngious needs by secular authorities was not an unwarranted departure\nfrom the neutrality required by the Establishment Clause:\nWhen the state encourages religious instruction or cooper\xc2\xad\nates with religious authorities by adjusting the schedule of\npublic events to sectarian needs, it follows the best of our\ntraditions. For it then respects the religious nature of our\npeople and accommodates the public service to their spir\xc2\xad\nitual needs.\nId. at 313-14.\nIn Walz v. Tax Commission o f New York, 397 U.S. 664 (1970), the\n\nCourt upheld a state tax exemption for properties held by charitable,\neducational, and religious organizations, including properties used\nsolely for religious worship. The Court observed that \xe2\x80\x9cfor the men\nwho wrote the Religion Clauses of the First Amendment the \xe2\x80\x98establish\xc2\xad\nment\xe2\x80\x99 of a religion connoted sponsorship, financial support, and active\ninvolvement of the sovereign in religious activity.\xe2\x80\x9d 397 U.S. at 668.\nAlthough the state\xe2\x80\x99s obligation was one of neutrality, strict neutrality\nwas not possible:\nThe general principle deducible from the First Amend\xc2\xad\nment and all that has been said by the Court is this: that\nwe will not tolerate either govemmentally established re\xc2\xad\nligion or governmental interference with religion. Short\no f these expressly proscribed governmental acts there is\nroom for play in the joints productive of a benevolent\nneutrality which will permit religious exercise to exist\nwithout sponsorship and without interference . . . . The\nlimits of permissible state accommodation to religion are\nby no means co-extensive with the noninterference man\xc2\xad\ndated by the Free Exercise Clause.\n397 U.S. at 669, 673. Stressing that the exemption applied to charitable\nand educational institutions as well as religious ones, the Court found\nthat it was not enacted with a religious purpose. Moreover, enforcing a\ntax against religious property would involve the state in greater entan\xc2\xad\n416\n\n\x0cglement with religion than would granting an exemption. Finally, the\nCourt stressed the long and uninterrupted history of property tax ex\xc2\xad\nemptions for churches in this country. As the Court stated with respect\nto this historical practice:\nIt is obviously correct that no one acquires a vested or\nprotected right in violation of the Constitution by long\nuse, even when that span of time covers our entire na\xc2\xad\ntional existence and indeed predates it. Yet an unbroken\npractice of according the exemption to churches, openly\nand by affirmative state action, not covertly or by state\ninaction, is not something lightly to be cast aside.\n397 U.S. at 678.28\nBecause they did not address whether the exemptions in question\nwere required by the Free Exercise Clause, these cases do not expressly\nhold that the government may constitutionally accommodate religion\nby granting it special benefits not mandated by the Constitution. The\nfailure of the Court to decide the cases on Free Exercise Clause\ngrounds, however, may indicate that the released time program in\nZorach or the tax exemption in Walz were not constitutionally required.\nCertainly, the Court\xe2\x80\x99s language quoted above from Walz implies that\nsuch an accommodation could be constitutional at least in some cases.29\n26 See also Sherbert, 374 U.S. at 422, (Harlan, J., dissenting, joined by White, J.)* These Justices\ndissented from the Court\'s conclusion that an exemption for Seventh-day Adventists was required by\nthe Free Exercise Clause, but nevertheless contended that the state of its own volition could provide\nsuch an exemption w ithout violating the Establishment Clause:\n[A]t least under the circumstances of this case it would be a permissible accommoda\xc2\xad\ntion of religion for the State, if it chose to do so, to create an exception to its eligibility\nrequirements for persons like the appellant. The constitutional obligation of \xe2\x80\x9c neutral\xc2\xad\nity" . . is not so narrow a channel that the slightest deviation from an absolutely\nstraight course leads to condemnation.\nCompare Widmar v. Vincent, 454 U.S. 263, 273 n.13 (1981) (Court declined to \xe2\x80\x9creach the questions that\nwould arise if State accommodation of Free Exercise and Free Speech rights should, in a particular\ncase, conflict with the prohibitions of the Establishment Clause"); id. at 282 (White, J., dissenting):\nI have long argued that Establishment Clause limits on state action which incidentally\naids religion are not as strict as the Court has held. T he step from the permissible to\nthe necessary, however, is a long one. In my view, just as there is room under the\nReligion Clauses for state policies that may have some beneficial effect on religion,\nthere is also room for state policies that may incidentally burden religion. In other\nwords, I believe the States to be a good deal freer to formulate policies that affect\nreligion in divergent ways than does the majority.\n29The lower federal courts have addressed a closely analogous problem in the context o f challenges\nto \xc2\xa7701(j) of Title V II of the Civil Rights Act o f 1964, 42 U.S.C. \xc2\xa7 2000e(j), which requires employers\nreasonably to accommodate the religious beliefs and practices of their employees. T he courts have\nsplit on whether the reasonable accommodation provision violates the Establishment Clause. Courts in\nthe Fourth, Sixth, Seventh, and Ninth Circuits have upheld \xc2\xa7701(j). Jordan v North Carolina N at\'l\nBank, 399 F. Supp. 172 (W.D N.C. 1975), rev\'d on other grounds, 565 F.2d 72 (4th Cir. 1977); Cummins\nv. Parker Seal Co., 516 F.2d 544 (6th Cir. 1975), a ffd by an equally divided Court, 429 U.S. 65 (1976);\nNottelson v. Smith Steel Workers D.A.L. V. 19806, 643 F 2d 445 (7th Cir.), cert, denied, 454 U.S. 1046\n(1981); Tooley v. Martin-Marietta Corp. 648 F.2d 1239 (9th Cir. 1981). Courts in the T hird and Fifth\nCircuits have struck it down Gavin v. People Natural Gas Co., 464 F. Supp 622 (W .D. Pa. 1979);\nIsaac v. Butler\'s Shoe Corp., 511 F. Supp. 108 (N.D. Ga. 1980). Commentators are likewise divided:\ne.g., Wheeler, Establishment Clause Neutrality and the Reasonable Accommodation Requirement, 4\nHastings L.Q. 901 (1977) (valid); Note, Can the Government Require Accommodation o f Religion at the\nPrivate Job-Site?, 62 Va. L. Rev. 237 (1976) (invalid). The Supreme Court has failed to resolve the\nContinued\n\n417\n\n\x0cWhile the lack of a clear holding in these cases cautions against any\nfirm statement of the legal principles in this area, it is our opinion that\nthe government may, consistently with the Establishment Clause, take\nactions necessary to avoid substantial interference with religious prac\xc2\xad\ntices or beliefs, even if such actions are not required by the Free\nExercise Clause, provided that the actions do not impose hardship on\nothers or amount to government sponsorship or support of religion.\nSuch a rule would comport with the practical necessities of govern\xc2\xad\nment. The Framers of the Constitution could not have intended that\nthere be precisely one and only one correct course of action between\ncommitting a Free Exercise Clause violation, on the one hand, and an\nEstablishment Clause violation, on the other. The government must\nenjoy a zone of permissible accommodation if it is to function at all. See\nWalz, 397 U.S. at 673. Cf. Linde, Due Process o f Lawmaking, 55 Neb. L.\nRev. 197 (1976).\nApplying this principle to the problem at hand, we conclude that the\nCSA\xe2\x80\x99s exemption for the bona fide religious use of peyote passes muster\nunder the Establishment Clause. As noted above, this exemption might\nbe required by the Free Exercise Clause, although we believe it more\nlikely that the exemption is not constitutionally mandated. Even if not\nrequired by the Free Exercise Clause, such an exemption appears neces\xc2\xad\nsary to avoid substantial interference with the religious practices and\nbeliefs of the NAC. The exemption would not impose affirmative bur\xc2\xad\ndens on any person, believer or nonbeliever, nor would it amount to\ngovernment sponsorship or support of religion.\nThe exemption should not be viewed as having a religious purpose:\nyour agency\xe2\x80\x99s goal is not specifically to further the interests of the\nNAC or any other religion, but, rather, to meet its possible obligations\nunder the Free Exercise Clause and, more generally, to further free\nexercise values by removing affirmative barriers to religious practices.\nNor does the exemption have a primarily religious effect: encouraging\nfreedom of religious belief and practice evinces only a \xe2\x80\x9cbenevolent\nneutrality\xe2\x80\x9d in matters of religion. Walz, 397 U.S. at 669. In exempting\nsacramental peyote use based on the importance and history of such\nuse, the government does not lend its imprimatur to any particular\nreligion or religion in general, nor does it encourage belief in the tenets\nof any religion. There is no \xe2\x80\x9csponsorship, financial support, [or] active\ninvolvement of the sovereign in religious activity.\xe2\x80\x9d Id. at 668. Finally,\nissue, although it has evinced interest in it. In Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir.\n1970), the circuit court considered E E O C regulations which w ere the predecessor of \xc2\xa7701(j); the\nSupreme C ourt affirmed by an equally divided vote, 402 U.S. 689 (1971). T he Supreme C ourt also\naffirmed Cumm ins v. Parker Seal Co., supra, by an equally divided vote, 429 U.S 65 (1976) (Stevens,\nJ., not participating) In TWA v. Hardison, 432 U S 63 (1977), the Court did not reach the issue since\nit held that no accommodation was reasonably possible\nSee also Jaggard v. Commissioner, 582 F.2d 1189 (8th Cir. 1978), cert, denied, 440 U.S. 913 (1979)\n(upholding social security tax exemption for persons w ith religious scruples against accepting benefits\no f insurance schemes).\n\n418\n\n\x0can exemption for the sacramental use of peyote would probably not be\ninvalidated as entailing an impermissible government entanglement in\nreligious matters. Reliance on history as an important probative factor\nshould reduce the entanglement that might otherwise accompany a\ngovernmental investigation of whether a system of belief and action is a\nreligion, whether the adherent is sincere, and whether peyote use is\ncentral to the religion.\nWe conclude, therefore, that the Establishment Clause is not violated\nby the statutory exemption for the religious use of peyote by the NAC\nand other bona fide peyote-using religions in which the actual use of\npeyote is central to established religious beliefs, practices, dogmas, or\nrituals.\nIII. Availability of Exemption\n\nFinally, you have inquired as to the constitutionality of exempting\nAmerican Indian peyotists to the exclusion of other religious users of\npeyote. Such an exemption would require statutory amendment, since,\nas we concluded in Part I, the current statutory exemption applies to\nthe NAC and to other religions whose use of peyote is central to\nestablished religious beliefs, practices, dogmas, or rituals. We conclude\nthat an exemption limited to American Indians might well be unconsti\xc2\xad\ntutional.\nIt is well accepted that the Establishment Clause prohibits a govern\xc2\xad\nment from \xe2\x80\x9cpreferring] one religion over another.\xe2\x80\x9d Everson, 330 U.S.\nat 15. See Cruz v. Beto, 405 U.S. 319 (1972) (prison must provide\nreasonable opportunity for Buddhist to pursue faith comparable to that\nprovided prisoners of other religions); Fowler v. Rhode Island, 345 U.S.\n67 (1953) (Jehovah\xe2\x80\x99s Witness meeting may not be barred in public park\nopen to other religious services).30 Under accepted principles, therefore,\nan exemption which discriminates among otherwise equally situated\nreligions violates the Establishment Clause.\nWe do not believe that any different conclusion is required when, as\nhere, the \xe2\x80\x9cpreferred\xe2\x80\x9d religion is comprised of American Indians. It is\ntrue that Indians are treated differently for some purposes under our\nlaw. Special rules of construction govern judicial interpretation of stat\xc2\xad\nutes and treaties involving Indians. Indians may be given preference on\nthe basis of tribal membership without triggering heightened equal\nprotection scrutiny. Morton v. Mancarci, 417 U.S. 535 (1974). Indian\ntribes may establish a religion on the reservation without contravening\nconstitutional or statutory prohibitions. See Talton v. Mayes, 163 U.S.\n376 (1896); Indian Civil Rights Act, 25 U.S.C. \xc2\xa7 1302. Congress has\n90See also Valente v. Larson. 637 F 2 d 562 (8th Cir. 1981) (exemption from solicitation ordinance\nwhich applied unequally to different religious organizations held to violate Establishment Clause), cert,\ngranted, 49 U.S.L.W. 3890 (1981) [ajfd 456 U.S. 228 (1982)].\n\n419\n\n\x0cshown special concern for Indian religion by enacting the Indian Reli\xc2\xad\ngious Freedom Act of 1978, Pub. L. No. 95-341.\nHowever, the special treatment of Indians under our law does not\nstem from the unique features of Indian religion or culture. With\nrespect to these matters, Indians stand on no different footing than do\nother minorities in our pluralistic society. Rather, the special treatment\nof Indians is grounded in their unique status as political entities, for\xc2\xad\nmerly sovereign nations preexisting the Constitution, which still retain a\nmeasure of inherent sovereignty over their peoples unless divested by\nfederal statute or by necessary implication of their dependent status. See\nUnited States v. Wheeler, 435 U.S. 313 (1978).\nAn exemption for Indian religious use of peyote would not be\ngrounded in the unique political status of Indians. Instead, the exemp\xc2\xad\ntion would be based on the special culture and religion of the Indians.\nIn this respect, Indian religion cannot be treated differently than other\nreligions similarly situated without violation of the Establishment\nClause.31\nOur conclusion in this respect is consistent with the relevant court\ndecisions. In re Grady, 61 Cal. 2d 887, 394 P.2d 728, 39 Cal. Rptr. 912\n(1964), was a habeas corpus petition brought by a self-styled \xe2\x80\x9cpeyote\npreacher\xe2\x80\x9d who had been convicted of illegal possession of peyote. The\nCalifornia Supreme Court granted the writ and remanded for a hearing\non the authority of People v. Woody, supra. The court apparently be\xc2\xad\nlieved it irrelevant whether the petitioner was an Indian or a member\nof the NAC. Kennedy v. Bureau o f Narcotics and Dangerous Drugs,\nsupra, 459 F.2d 415, was a petition for review of a refusal by the\npredecessor of your agency to amend the peyote exemption to include\na group styling itself as the \xe2\x80\x9cChurch of the Awakening.\xe2\x80\x9d The court\nheld that an exemption restricted to members of the NAC \xe2\x80\x9ccreates an\narbitrary classification that cannot withstand substantive due process\nattack.\xe2\x80\x9d Id. at 417.32\nIV. Conclusion\n\nThe possible necessity of extending the exemption to other nonIndian groups may entail some additional administrative burdens for\nyour agency. As a practical matter, however, we believe that no other\ngroups of which we are aware could establish their entitlement to the\nexemption. We believe that your agency would be fully justified in\n31T h e D epartm ent of Justice has expressed similar views in another context. See generally Statement\no f L arry L. Simms on S.J. Res. 102 before the Senate Select Committee on Indian Affairs, February\n27, 1978 (noting that congressional preference for Indian over non-Indian religions could raise Estab\xc2\xad\nlishment Clause problems).\n32 However, the court declined to grant relief: since the Church of the Awakening had sought to\ninclude only itself within the exemption while leaving other bona fide religions nonexempt, the\nrequested exemption was subject to th e same constitutional infirmity as was an exemption limited to\nthe NAC.\n\n420\n\n\x0cadopting procedures or standards designed to minimize those burdens\nwherever possible. Such procedures or standards would probably be\nsupported by one or more of three compelling governmental interests:\n(1) the interest in avoiding excessive administrative burdens; (2) the\ninterest in preventing abuse of peyote by persons falsely claiming a\nreligious exemption; and (3) the interest in avoiding unnecessary entan\xc2\xad\nglement with religion.\nYour agency could require that any group wishing to qualify for the\nexemption bring a petition for inclusion. If such a petition is brought,\nyour agency could: (1) require that the petitioner be a member of a\nbona fide peyote-using religion in which the actual use of peytoe is\ncentral to established religious beliefs, practices, dogmais, or rituals; and\n(2) apply a rebuttable presumption that the exemption is not available,\nunder the foregoing standard, unless the petitioner can allege and estab\xc2\xad\nlish a significant history of religious use of peyote. Such a presumption\nis justifiable as an objective means of determining that the petitioner\xe2\x80\x99s\nbeliefs are bona fide and religious. While a purely personal and idiosyn\xc2\xad\ncratic religion may be theoretically possible, c f United States v. Seeger,\n380 U.S. 163 (1965), the Supreme Court has stressed the importance of\na recognized and established organization, with a significant history of\nthe religious practice in question, to a determination that given beliefs\nand practices are religious. A requirement that the petitioner be a\nmember of an established organization with a significant history of\npeyote use would serve to relieve the administrative burden on your\nagency. Moreover, it would deter false petitions by individuals who\nwish to abuse peyote for nonreligious purposes. Finally, this type of\nrequirement may be necessary to prevent undue entanglement by your\nagency in religious matters.\nOur research has identified no religious organizations, other than the\nNAC, which would qualify for the exemption under these or similar\nprocedural and substantive requirements. It seems unlikely, therefore,\nthat in practice the peyote exemption need be expanded beyond an\nexemption for the NAC. If, however, a group does appear which can\nestablish that it is a bona fide religion in which the actual use of peyote\nis central to established religious beliefs, practices, dogmas, or rituals,\nyour agency is obligated to accord it the exemption under the current\nstatutory scheme.\nT\n\nheodore\n\nB. O l s o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n421\n\n\x0c'


b"Delegation of Authority to Approve Suspension\nof Securities leading on a National Market\nT h e P resident is authorized by the general delegation authority in 3 U .S .C . \xc2\xa7 301 to delegate to the\nS ecretary o f the Treasury his authority to approve the suspension of securities trading by the\nS ecurities and E xchange Com m ission under \xc2\xa7 12(k) o f the Securities Act of 1934, since nothing in\nthat section affirm atively prohibits delegation or specifically designates another officer to receive\ndeleg atio n o f the function.\nN o thing in the legislative history of \xc2\xa7 12 (k ) suggests that C ongress expected the President to exercise\nhis approval authority personally. Indeed, Congress m ay have felt it necessary to make explicit the\n\xc2\xa7 12(k) approval authority at all only because of the independence otherw ise given the SEC . Thus\nthe co ngressional intent could have b e e n sim ply to give the President the option, which he m ight\nnot o therw ise have enjoyed, to supervise the agency\xe2\x80\x99s decisions in this im portant area.\n\nJune 23, 1982\nMEMORANDUM OPINION FOR THE DEPUTY COUNSEL\nTO THE PRESIDENT\nYou have requested the views o f this Office regarding the President\xe2\x80\x99s power to\ndelegate to the Secretary of the Treasury his responsibility, under \xc2\xa7 12(k) of the\nSecurities Exchange Act of 1934, 15 U.S.C. \xc2\xa7 78/(k) (1982) (the Act), to\napprove the agency\xe2\x80\x99s summary suspension of securities trading on a national\nmarket for periods of up to 90 days.' For the reasons set forth below, we conclude\nthat the President may delegate his \xc2\xa7 12(k) approval authority to the Secretary of\nthe Treasury.2\nThe President is generally authorized under 3 U.S.C. \xc2\xa7 301 to delegate\nfunctions to \xe2\x80\x9c the head of any department or agency in the executive branch,\xe2\x80\x9d 3\n1 Section 12(k) provides in pertinent part as follows\nIf in its opinion the public interest and the protection of investors so require, the Commission is\nauthonzed summarily to suspend trading in any security (other than an exempted security) for a\nperiod not exceeding ten days, or with the approval c f the President, summarily to suspend all\ntrading on any national securities exchange or otherwise, in securities other than exempted\nsecurities, fo r a period not exceeding ninety days. (Emphasis added )\n2 We have not considered the legal issues raised by delegation to other government officials.\n3 Section 301 provides in full*\nThe President of the United States is authonzed to designate and empower the head of any\ndepartment or agency in the executive b ranch, or any official thereof who is required to be appointed\nby and with the advice and consent of the Senate, to perform without approval, ratification, or other\naction by the President (1) any function which is vested in the President by law, or (2) any function\nwhich such officer is required or authorized by law to perform only with or subject to the approval,\nratification, or other action of the President: Provided, That nothing contained herein shall relieve the\nPresident o f his responsibility in office for the acts of any such head o r other official designated by\nhim to perform such functions Such designation and authorization shall be in writing, shall be\npublished in the Federal Register, shall be subject to such terms, conditions, and limitations as the\nPresident may deem advisable, and shall be revocable at any time by the President in whole or in\npart.\n\n428\n\n\x0cincluding, of course, the Secretary of the Treasury. This general authorization,\nhowever, is qualified in 3 U.S.C. \xc2\xa7 302, which provides that:\nThe authority conferred by this chapter shall apply to any\nfunction vested in the President by law if such law d o es not\naffirm atively proh ibit delegation c f the perform ance c f such fu n c\xc2\xad\ntion a s herein provid ed for, o r specifically designate the officer or\ncfficers to whom it m ay be delegated. This chapter shall not be\n\ndeemed to limit or derogate from any existing or inherent right of\nthe President to delegate the performance of functions vested in\nhim by law, and nothing herein shall be deemed to require express\nauthorization in any case in which such an official would be\npresumed in law to have acted by authority or direction of the\nPresident. (Emphasis added.)\nThe issue, therefore, is whether \xc2\xa7 12(k), the law investing the approval\nauthority in the President, either \xe2\x80\x9c affirmatively prohibits] delegation\xe2\x80\x9d or \xe2\x80\x9c spe\xc2\xad\ncifically designated] the officer or officers to whom [the function] may be\ndelegated.\xe2\x80\x9d Nothing in \xc2\xa7 12(k) specifically designates a subordinate officer to\nreceive delegation of the function. Nor, we believe, does \xc2\xa7 12(k) affirmatively\nprohibit delegation.\nThe category of statutes which affirmatively prohibit delegation is very nar\xc2\xad\nrow. Statutes may prohibit delegation either by their terms or by express state\xc2\xad\nments in the legislative history. In addition, in extremely limited circumstances,\nthe function involved might be of such fundamental gravity as to render inescapa\xc2\xad\nble the conclusion that Congress would not have created the function but for the\nassumption that the President would exercise it personally. Although the con\xc2\xad\ngressional purpose underlying \xc2\xa7 301 was primarily to relieve the President of\nroutine paperwork, the Congress rejected a proposal to limit the delegable\nfunctions to administrative duties4 and chose instead generally to permit delega\xc2\xad\ntion of even sensitive and discretionary matters.5 The bill\xe2\x80\x99s sponsor stated that\ndelegation would be permitted except when a function or responsibility was\n\xe2\x80\x9c especially imposed by law\xe2\x80\x9d upon the President.6\nThe power to suspend trading on a national market is of course a grave\nresponsibility with important economic, political, and diplomatic consequences.\nThe Supreme Court has characterized as \xe2\x80\x9c awesome\xe2\x80\x9d the narrower authority\nunder \xc2\xa7 12(k) summarily to suspend trading in a single security for up to 10 days.\nSEC v. Sloan, 436 U.S. 103, 112 (1978). The authority to suspend trading on an\nentire market for up to 90 days is obviously of far greater magnitude.\nNevertheless, \xc2\xa7 12(k) does not on its face preclude delegation. Nor have we\nfound any indication in the legislative history that Congress would not have\nprovided for a market suspension power but for the assumption that the President\n4 95 Cong. Rec. 11396 (1949)\n5 See 3 U.S C \xc2\xa7 303, defining delegable functions to include \xe2\x80\x9c any duty, power, responsibility, authority or\ndiscretion vested in the President or other officer concerned.\xe2\x80\x9d\n6 95 Cong. Rec. 11395-96 (1949) (remarks of Rep McCormack). See also id. (\xe2\x80\x9cthe President\xe2\x80\x99s express duty\xe2\x80\x9d );\nid. at 11396 (\xe2\x80\x9cexpressly delegated to the President\xe2\x80\x9d )\n\n429\n\n\x0cwould personally exercise his approval authority.7 It is significant in this regard\nthat Congress established the agency to be relatively free of executive oversight\nor supervision. Congress could well have believed that, without the explicit\n\xc2\xa7 12(k) approval authority, the President would have had no power to disapprove\nthe agency\xe2\x80\x99s decision to suspend market trading. The congressional intent could\nhave been simply to give the Executive the option, which he might not otherwise\nhave enjoyed, to supervise the agency\xe2\x80\x99s decisions in this important area. Such an\nintent would not be frustrated by the President\xe2\x80\x99s determination not to exercise the\napproval power personally but to delegate it elsewhere within the Executive\nBranch, especially to an officer intimately involved with monetary and financial\nmatters. Because \xc2\xa7 12(k) is silent regarding the President\xe2\x80\x99s authority to delegate\nhis approval authority, and because a plausible explanation for a congressional\ndecision to vest approval authority in the President exists apart from the pos\xc2\xad\nsibility that Congress would not have created the suspension power but for the\nassumption that the President would exercise it personally, we conclude that\n\xc2\xa7 12(k) is not a statute that affirmatively prohibits delegation. The President is\ntherefore empowered to delegate that authority to the Secretary of the Treasury\nunder \xc2\xa7 301.\nT h e o d o r e B . O lso n\n\nA ssistan t A ttorney G en eral\nOffice c f L egal Counsel\n\n7 Section 12(k) was originally enacted as \xc2\xa7\xc2\xa7 15(c)(5) and 19(a)(4) of the Act and was recodified, with\ninsubstantial changes, by the Securities Acts Amendments of 1975. 89 Stat. 118\n\n\x0c"