From: Dennis Shields <[k--ag--d] at [ilhawaii.net]> Newsgroups: alt.hemp,alt.drugs.pot.,sdnet.hemp,rec.drugs.cannabis,alt.hemp.politics Subject: 9TH CIRCUIT COURT OF APPEALS RULING Date: Wed, 07 Feb 1996 01:47:05 -1000 9TH CIRCUIT COURT OF APPEALS RULING RECOGNIZING THE RELIGIOUS USE OF CANNABIS AND ITS PROTECTION BY THE RELIGIOUS FREEDOM RESTORATION ACT OF 1993 Cite as 96 C.D.O.S. 756 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LEXI MICHELLE BAUER, Defendant-Appellant. No. 94-30073 [other defendants removed for brevity] United States Court of Appeals for the Ninth Circuit D.C. No. CR-92-76-17-JDS Appeals from the United States District Court for the District of Montana, Hon. Jack D. Shanstrom, District Judge, Presiding Argued and Submitted July 19, 1995[FOOTNOTE *]--Seattle, Washington Before: Jerome Farris, John T. Noonan, Jr., and Michael Daly Hawkins, Circuit Judges. Opinion by Judge Farris for Sections I and III-XV Opinion by Judge Noonan for Section II Dissent by Judge Noonan from Section I Filed February 2, 1996 We affirm in part and vacate and remand in part. [sections on the facts of the case the various council for defendants section 1, 3 to 15 have been omitted as non germane to the issue of the religious use of Cannabis as protected by RFRA the entire document can be obtained from the following web page; http://www.law.vill.edu/Fed-Ct/Circuit/9th/opinions/9430073.htm] II. RELIGIOUS USE DEFENSE UNDER THE RELIGIOUS FREEDOM RESTORATION ACT Calvin Treiber, Dawn Meeks, and Lexi Bauer have presented themselves as Rastafarians. We focus here on an issue of first impression: the interaction of the Religious Freedom Restoration Act of 1993 with the claim of use by Rastafarians of marijuana for religious purposes. Treiber, Meeks, and Bauer asserted that they are Rastafarians and were Rastafarian at the time of the charged offenses, and that Rastafarianism is a recognized religion. It is a religion which first took root in Jamaica in the nineteenth century and has since gained adherents in the United States. See Mircea Eliade, Encyclopedia of Religion 96-97 (1989). It is among the 1,558 religious groups sufficiently stable and distinctive to be identified as one of the existing religions in this country. See J. Gordon Melton, Encyclopedia of American Religions 870-71 (1991). Standard descriptions of the religion emphasize the use of marijuana in cultic ceremonies designed to bring the believer closer to the divinity and to enhance unity among believers. Functionally, marijuana -- known as Ganga in the language of the religion-- operates as a sacrament with the power to raise the partakers above the mundane and to enhance their spiritual unity. A. Proceedings The religious issue was first raised in June 1993 by Meeks who sought funds under 18 U.S.C. section 3006A(e)(1), which provides that counsel for a person financially unable to obtain expert services necessary for adequate representation may request the funds in an ex parte application. Counsel for Meeks sought money to pay for a physician to testify as an expert on her medical needs and a theologian to testify as an expert on her use of marijuana for both religious and medicinal reasons. The motion was denied by the district court. On September 24, 1993, the district court granted the government's motion in limine to preclude the appellants from presenting testimony or evidence on their possession or use of marijuana for religious purposes as a legal defense. The district court granted the motion "upon review of the pleadings." The district court relied on Employment Division v. Smith, 494 U.S. 872 (1990). On September 27, 1993, the district court granted Lexi Bauer's motion to adopt all pretrial motions by her codefendants and Dawn Meeks's motion "to join all other motions." (ER 175, 188). Subsequently, the district court granted Lexi Bauer's motion to join all other defense motions. The trial began on October 3, 1993. Meanwhile the Religious Freedom Restoration Act was proceeding through Congress. It had been introduced with one hundred twenty cosponsors and was passed by the House on May 11, 1993. It was passed by the Senate with amendments on October 27, 1993. On November 3, 1993, the House and Senate agreed to amendments, and the bill was sent to President Clinton, who signed it into law on November 16, 1993. On November 17, 1993, the defendants drew the district court's attention to the report of the President's signing of the bill and, while professing not to know whether it was retroactive, renewed their objection to the court's in limine ruling. Counsel for Treiber moved to reverse the court's order "with regard to the First Amendment defense." Counsel for Meeks joined in Treiber's motion. Bauer was already recognized as joining all relevant defense motions. The court did not change its position. Meeks also requested the district court to instruct the jury to use the balancing test of Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), in accordance with the Religious Freedom Restoration Act. The district court refused to grant the request. After the trial, Treiber moved for acquittal under Rule 29 of the Federal Rules of Criminal Procedure because of the court's exclusion of evidence of the religious purposes of the defendants possessing or using marijuana. Defendants filed motions to join, but on January 27,1994, the Government filed a notice that it would not respond further to the motions to join, apparently relying on the court's prior order that all defendants were deemed to have joined in motions by their codefendants. In ruling on the Rule 29 motion, the district court analyzed and applied the Religious Freedom Restoration Act. The district court first found that the challenged law substantially burdened the free exercise of the Rastafarian religion. Relying on several earlier appellate cases, the district court held, however, "that the government has an overriding interest in regulating marijuana." The district court quoted Leary v. United States, 383 F.2d 851, 861 (5th Cir. 1967), rev'd on other grounds, 395 U.S. 6 (1969), as follows: "'It would be difficult to imagine the harm which would result if the criminal statutes against marihuana were nullified as to those who claim the right to possess and traffic in this drug for religious purposes. For all practical purposes the anti-marihuana laws would be meaningless, and enforcement impossible.'" The district court concluded that the government's in limine motion would have been granted even if the Religious Freedom Restoration Act had been the law of the land at the time. Bauer, Meeks and Treiber appeal the district court's rulings as to the religious use of marijuana. B. The Statute The statute is new and so far has not been construed by any appellate court in a case involving the religious use of marijuana. We have applied the new law in a case where a school district's "no knives" policy and Cal. Penal Code section 626.10(a) led the school district to prohibit Sikh "children" from wearing seven-inch kirpans (small swords) to school, as their faith required. Reversing the district court which had "misapprehended the law", we directed the court to protect the safety of the students and accommodate the religious requirements of the Cheema children. See Cheema v. Thompson, No. 94-16868, 1995 WL 608536, at *5 (9th Cir. Oct. 12, 1995) (Wiggins, J., dissenting) (quoting unpublished disposition). The ordinary canons of legislative interpretation require us to give attention to each of the provisions of the new statute in the context of federal criminal law on marijuana. To begin with, Congress found that "the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution"; that laws which are neutral toward religion "may burden religious exercise as surely as laws intended to interfere with religious exercise"; that "governments should not substantially burden religious exercise without compelling justification"; and that in Employment Division v. Smith, 484 U.S. 872 (1990), "the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion." 42 U.S.C. section 2000bb(a). Congress then declared that the purposes of the Act were: (1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1987)and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government. section 2000bb(b). In the light of these findings and purposes, Congress provided as follows: section 2000bb-1. Free exercise of religion protected (a) In general Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) Exception Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-- (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. (c) Judicial relief A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution. Congress also provided definitions, which read as follows: (1) the term "government" includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State; (2) the term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States; (3) the term "demonstrates" means meets the burdens of going forward with the evidence and of persuasion; and (4) the term "exercise of religion" means the exercise of religion under the First Amendment to the Constitution. section 2000bb-2. We note the following specific features of the legislation: First. While implicitly criticizing Smith the statute does not present itself as an interpretation of the Constitution overruling Smith; rather it consists of a command that must be followed as a matter of federal law. The command results in setting aside a common rationale for applying a statute to burden religious exercise, the rationale that the statute has "general applicability" and was not intended to discriminate against, or otherwise inhibit, a religious practice. Second. The statute goes beyond the constitutional language that forbids the "prohibiting" of the free exercise of religion and uses the broader verb "burden": a government may burden religion only on the terms set out by the new statute. Third. There is an unusual statutory incorporation of two decisions of the Supreme Court, to which Congress refers as guides to the purposes of the statute. Fourth. There is one explicit reference to the Constitution in that what is meant by the exercise of religion is to be determined in terms of the First Amendment to the Constitution. Fifth. If there is a substantial burdening of a person's exercise of religion, the government must meet two tests. The government must "demonstrate" that the application of the burden to this particular person furthers "a compelling governmental interest." The government must "demonstrate" that this application "is the least restrictive means of furthering that compelling governmental interest." Sixth. What is meant by "demonstrate" is explicitly defined in terms of the government's burdens "of going forward with the evidence and of persuasion." Seventh. The statute explicitly includes the United States and its officers among those who must meet the two burdens imposed. The effects of the Religious Freedom Restoration Act are widespread. The Act "legislatively overturned a number of recent Supreme Court decisions . . . by defining a statutory (if not a constitutional) right to the free exercise of religion." Werner v. McCotter, 49 F.3d 1476, 1479(10th Cir. 1995) (holding that the standards set by Turner v. Safley, 482 U.S. 78 (1987), and O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), no longer apply in determining a state prisoner's right to the free exercise of his religion in prison); see also Bryant v. Gomez, 46 F.3d 948 (9th Cir.1995) (applying the Act but finding no substantial burden on the prisoner's exercise of his religion). The power of Congress to provide federal protection in addition to that accorded by the great guarantees of the Bill of Rights has been exerted in other contexts. E.g., the Privacy Protection Act of 1980, 42 U.S.C. sections 2000aa-2000aa-12 (restricting government investigators seeking documents from the media and limiting the effect of Zurcher v. Stanford Daily, 436 U.S. 547 (1978)); the Church Audit Procedure Act of 1984, 26 U.S.C. section 7611 (strictly regulating "church tax inquiry" and "church tax examination" by the Internal Revenue Service); and the Exemption Act of 1988, 26 U.S.C. section 3127 (providing a special Social Security tax exemption for employers and their employees who are members of "a recognized religious sect" whose "established tenets" oppose participation in the Social Security Act program). The last exemption freed the Old Order Amish from the impact of United States v. Lee, 455 U.S. 252 (1982), which declined to recognize the Amish free exercise of religion claim on the ground that national compulsory uniformity was essential in the collection of the tax. C. The application of the statute in this case. The district court treated the existence of the marijuana laws as dispositive of the question whether the government had chosen the least restrictive means of preventing the sale and distribution of marijuana. The district court relied on a drug case decided before the enactment of the Religious Freedom Restoration Act. We do not exclude the possibility that the government may show that the least restrictive means of preventing the sale and distribution of marijuana is the universal enforcement of the marijuana laws. Under RFRA, however, the government had the obligation, first, to show that the application of the marijuana laws to the defendants was in furtherance of a compelling governmental interest and, second, to show that the application of these laws to these defendants was the least restrictive means of furthering that compelling governmental interest. The denial of the Rule 29 motion was in error as to the counts of simple possession. As to the counts relating to conspiracy to distribute, possession with intent to distribute, and money laundering, the religious freedom of the defendants was not invaded. Nothing before us suggests that Rastafarianism would require this conduct. These counts stand. As to the three counts on which the appellants were convicted of simple possession, the exclusion of the religious defense was in error. Treiber, Meeks and Bauer may be retried on the possession counts. The government should be free to cross-examine them on whether they, in fact, are Rastafarians and to introduce evidence negating their asserted claims. It is not enough in order to enjoy the protections of the Religious Freedom Restoration Act to claim the name of a religion as a protective cloak. Neither the government nor the court has to accept the defendants' mere say-so.