LAWRENCE J.S. WHYTE, APPELLANT, v. UNITED STATES, APPELLEE
No. 83-63
District of Columbia Court of Appeals
471 A.2d 1018
November 29, 1983, Argued
February 6, 1984, Decided
PRIOR HISTORY: Appeal from the Superior Court of the District of
Columbia (Hon. George W. Mitchell, Hearing Judge)
COUNSEL: J. E. McNeil for appellant. Richard Manning Ricks, appointed
by the court, was on the brief for appellant.
Linda D. Turner, Assistant United States Attorney, with whom Stanley S. Harris,
United States Attorney at the time the brief was filed, and Michael W. Farrell,
Assistant United States Attorney, were on the brief, for appellee.
JUDGES: Nebeker and Mack, Associate Judges, and Reilly, Associate
Judge, Retired.
OPINION BY: MACK
OPINION
[*1019] Appellant raises an issue of first impression before this
court. He argues that, because of his religious tenets, he cannot be prosecuted
under the District of Columbia's drug laws for criminal possession and distribution
of marijuana because to do so would violate his rights under the free exercise clause
of the first amendment. [Footnote 1] We hold under the facts of this case that the
District of Columbia's interest to protect society by the enforcement of its drug
laws constitutes a compelling governmental interest which outweighs any interest
of appellant protected under the free exercise clause.
On October 12, 1982, a search warrant was executed for appellant's home in Northwest,
Washington. An envelope containing marijuana and a jar with marijuana seeds were
seized. Appellant was subsequently charged with criminal possession and distribution
of a controlled substance, marijuana, in violation of D.C. Code § 33-541 (1983 Supp.).
On January 3, 1983, appellant moved to dismiss the charges against him as violative
of the free exercise clause. In support of his motion, appellant testified that
he was a member of the Twelve Tribes of Israel -- more commonly known as the Rastafarians
-- and that "it is ordained for [him] to indulge in marijuana." [Footnote
2] The trial court denied the motion to dismiss. It found that the government's
interest in regulating marijuana and curtailing its accessibility in the community
outweighed appellant's interest in using marijuana as part of his religious practices.
Thereupon appellant pled guilty to the charge of possession, and the government
entered a nolle prosequi on the charge of distribution. [Footnote 3] The trial court
sentenced appellant to sixty days in jail, then suspended the sentence and imposed
a one year term of probation. This appeal followed.
You use the word "command." That is a harsh term, but, as a Rastafarian,
let me liken it to another religion. Like the Catholics. They drink wine and eat
bread in Holy Communion. It is the same thing with us and marijuana. Marijuana brings
us into a holier communion with our concept of the just God, and Judah is inside
of us and is the one that brings us nearer to communion.
I
Fundamental to our understanding of first amendment jurisprudence [Footnote 4] has
been the recognition that the amendment encompasses the "freedom to believe
and freedom to act. The first is absolute but, in the nature of things, the second
cannot be." Cantwell v. Connecticut, 310 U.S. 296, 303-04, 84 L. Ed.
1213, 60 S. Ct. 900 (1940). Thus, despite the amendment's proscription that no law
is to deny the free exercise of religion, "not all burdens on religion are
unconstitutional." United States v. Lee, 455 U.S. 252, 257, 71 L.
Ed. 2d 127, 102 S. Ct. 1051 (1982) (citing Prince v. Massachusetts, 321
U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944); Reynolds v. United States,
98 U.S. 145, 25 L. Ed. 244 (1879)). In order to justify a limitation by the government
on religious liberty under the free exercise clause, the government must show it
has an interest which overrides interests [*1020] protected under
the free exercise clause. Lee, supra, 455 U.S. at 256-58; Wisconsin v.
Yoder, 406 U.S. 205, 214, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972). Essentially
then, "only those interests of the highest order and those not otherwise served
can overbalance legitimate claims to the free exercise of religion." Yoder,
supra, 406 U.S. at 215. Such paramount interests are present in the case herein.
We assume, for purposes of our inquiry, that the Twelve Tribes of Israel is a bona
fide religion within the meaning of the first amendment and that appellant fully
subscribes to its doctrines. And, it is not disputed that the pertinent drug laws
of the District of Columbia criminalize appellant's possession of marijuana irrespective
of whether it is used as a religious sacrament.
In weighing the particular interests of the government and appellant, we are persuaded
by the reasoning of the decision in
United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968), where Judge
Gessell rejected defendant's argument that the free exercise clause protects the
religious practices of the Neo-American Church involving the use, possession, and
sale of both marijuana and LSD. In so ruling, the trial court stated that Congress'
interest in regulating the use and distribution of drugs, together with the public's
interest in the full enforcement of its drug laws, was of sufficient magnitude to
outweigh defendant's interest in the free exercise of his religious practices. Id.
at 445-46. Significantly, other jurisdictions confronting the issue have relied
upon Kuch
to reach similar conclusions. Thus, for example, the eleventh circuit in United States v. Middleton,
690 F.2d 820, 825 (11th Cir. 1982), cert. denied, 460 U.S. 1051, 103 S.
Ct. 1497, 75 L. Ed. 2d 929 (1983) held that the free exercise clause of the first
amendment does not protect the possession of marijuana by a member of the Ethiopian
Zion Coptic Church in light of the government's compelling interest in controlling
the use of drugs. Accord United States v. Hudson, 431 F.2d 468, 469 (5th
Cir. 1970), cert. denied, 400 U.S. 1011, 27 L. Ed. 2d 624, 91 S. Ct. 575
(1971) ("the use of drugs as part of religious practice is not constitutionally
privileged"); Randall v. Wyrick, 441 F. Supp. 312, 315-16 (W.D.Mo.
1977) (interest of a member of the Aquarian Brotherhood Church in using marijuana
and LSD as sacraments is outweighed by Missouri's interest in protecting the public
from drug-related problems); State v. Rocheleau, 142 Vt. 61, 64, 451 A.2d
1144, 1148 (1982) (state's interest in regulating the use of marijuana prevails
over appellant's interest to use the drug in the practice of Tantric Buddhism).
Relying upon the reasoning of these cases, we find that identical governmental interests
operate with respect to the District of Columbia drug laws.
Turning specifically to those laws, we note that in 1981, the Council of the District
of Columbia prepared legislation to revamp the then existing District laws governing
the use of controlled substances. The new legislation, D.C. Law No. 4-29, referred
to as the District of Columbia Uniform Controlled Substances Act of 1981 (hereinafter
CSA), became effective August 5, 1981. D.C. Code §§ 33-501-567 (1983 Supp.). The
report of the District of Columbia Council states that one primary purpose of the
proposed bill was to allow for more efficient control over the problems of drug
abuse and drug dependence, and to provide law enforcement with more efficient tools
to combat these problems. Council of the District of Columbia, Report on Bill 4-123,
April 8, 1981, at 1-5. It has become tragically obvious that the symptoms of drug
abuse permeate all aspects of our society. We believe that this comprehensive legislation
with wide-ranging goals, evidences the serious and compelling concern of the Council
to redress drug-related problems.
Marijuana is defined in the CSA, D.C. Code § 33-501 (3)(A), and is listed as a controlled
substance. D.C. Code § 33-522. It is true that of the five different schedules created
by the CSA for classifying [*1021] controlled substances based
upon their potential dangerousness, marijuana is in Schedule V -- the schedule reserved
for substances with the lowest potential for abuse. D.C. Code § 33-521. Nevertheless,
we choose not to accept appellant's suggestions that in balancing competing interests,
we take into account evidence minimizing dangers from marijuana abuse. This court
will not substitute its judgment for that of the legislature where, as here, the
challenged legislation has seen fit to control a substance on a rational basis.
[Footnote 5] Cf. United States v. Carolene Products Co., 304 U.S. 144,
153, 82 L. Ed. 1234, 58 S. Ct. 778 (1938). Moreover, we are in agreement with the
eleventh circuit in
Middleton, supra, that "the harm of the particular drug in
question is not relevant in determining the degree of protection afforded by the
free exercise clause to the defendant's actions." 690 F.2d at 825.
We do not think the Supreme Court's opinion in Wisconsin v. Yoder, supra,
requires a different result. In Yoder, the Court held that convictions
of members of the Old Order Amish religion for violating Wisconsin's compulsory
school attendance law were invalid under the free exercise clause. The Court found,
after balancing competing interests, that the state's interest in compulsory school
attendance was not sufficiently compelling to warrant an intrusion upon religious
practices which had been in existence for almost 300 years. 406 U.S. at 218-19,
227. In Yoder, however, the Court noted that the case before it was "not
one in which any harm . . . to the public safety, peace, order, or welfare has been
demonstrated or may be properly inferred." Id. at 230 (footnote omitted).
This language provides unassailable support for the result we reach, for plainly
enforcement of the CSA directly operates to protect the public from the dangers
of drug abuse and its repercussions. See
Middleton, supra, 690 F.2d at 824-25.
Finally, appellant urges that the cases holding that the free exercise clause protects
the use of "peyote" by members of the Native American Church in their
religious practices, should control this case. E.g., Whitehorn v. State,
561 P.2d 539 (Okla. 1977); State v. Whittingham, 19 Ariz. App. 27, 504
P.2d 950 (1973), cert. denied, 417 U.S. 946, 94 S. Ct. 3071, 41 L. Ed.
2d 667 (1974);
People v. Woody, 61 Cal.2d 889, 394 P.2d 813, 40 Cal. Rptr. 69 (1964).
Since we are not bound by any of the cases relied upon by appellant, we intimate
no view as to how we would rule if confronted with an identical situation. We note,
nevertheless, that there are fundamental reasons for distinguishing the unique treatment
afforded the use of peyote by members of the Native American Church from that of
the treatment afforded the use of marijuana by members of different religions. See,
e.g., United
States v. Middleton, supra, 690 F.2d at 826;
Native American Church of New York v. United States, 468 F.
Supp. 1247, 1249-51 (S.D.N.Y. 1979), aff'd, 633 F.2d 205 (2d Cir. 1980);
United States
v. Kuch, supra, 288 F. Supp. at 448-50. Moreover, it is significant that
federal regulation exempts from prosecution the use of peyote in religious ceremonies
of the Native American Church. 21 C.F.R. § 1307.31 (1983). [Footnote 6]
In conclusion, after balancing appellant's interests under the free exercise clause
of the first amendment against the District's interest in the enforcement of the
CSA, we find that the governmental interest is compelling and paramount to appellant's
interest.
Affirmed.