The opinion of the court was delivered by: POLLACK
Cross-motions for summary judgment are before the Court in pursuance of Federal Rule of Civil Procedure 56. For the reasons appearing hereafter, the motion of the plaintiffs will be denied and the motion of the defendants will be granted in part and denied in part. The only issue which survives for trial is the question of whether the Native American Church of New York is a bona fide religious organization intending to use peyote, a psychedelic drug, for sacramental purposes and therefore entitled to the exemption of such organizations from the provisions of Controlled Substances Act of 1970 (hereafter referred to as the "Act") 21 U.S.C. § 812(c), Schedule I (c)(12), which apply to and control the use of peyote.
For many years there has existed, primarily in the Western States, a religious organization of American Indians known as the Native American Church. This Church believes that peyote is a deity. Members of the Church partake of peyote during religious ceremonies. The sacramental use of peyote in bona fide religious ceremonies by the Native American Church and its members is expressly exempted from the controls of the Act by regulation of the Drug Enforcement Administration ("DEA" hereafter). "The listing of peyote as a controlled substance in Schedule I (of the Controlled Substances Act, 21 U.S.C. § 812(c)) does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration. Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law." (21 C.F.R. § 1307.31).
In 1976, Alan Birnbaum founded the Native American Church of New York and is now its minister and custodian. It is not affiliated with the Native American Church described above, and only a few of its roughly one thousand members are American Indians. The Native American Church of New York allegedly believes that all psychedelic drugs, including peyote, are deities.
Birnbaum petitioned the DEA to amend 21 C.F.R. § 1307.31 to exempt the use of all psychedelic drugs in religious ceremonies of all churches that believe that psychedelic drugs are deities. In Birnbaum's amended version, 21 C.F.R. § 1307.31 would have provided:
The listing of Psychedelics as controlled substances in schedule I shall not apply to the nondrug use of these substances in bona fide religious ceremonies of Churches where these substances have been shown to be central to the existence of that Church, in that they are objects of worship and considered deities in themselves. Members of Churches so using Psychedelics shall be exempt from registration. Any person who manufactures Psychedelics for or distributes Psychedelics to these Churches, however, is required to obtain registration annually and to comply with all other requirements of law.
It shall be understood that these substances include the following: LSD, DMT, DET, marijuana, peyote, psilocybin, psilocin, mescaline, and their salts, isomers, esters, and analogues.
The DEA denied Birnbaum's petition.
Birnbaum and the Native American Church of New York now sue for a declaration that: "(1) Plaintiff has the First Amendment right to possess and commune with his God; (2) Any Church or person establishing honest belief in a substance and honest worship of a substance as God has the First Amendment right to possess and worship that substance; and (3) Any Church or person so establishing honest belief and worship of a substance as God has the right to be licensed by the Drug Enforcement Administration as a distributor or manufacturer of said substance to said individuals or churches."
If this Pro se complaint is read liberally, three claims for relief can be inferred from it: (1) it violates the free exercise clause to prohibit any church from manufacturing, distributing or using in religious ceremonies any psychedelic drug that that church believes is a deity; (2) the Controlled Substances Act does not prohibit the use of peyote in religious ceremonies of any church that believes that peyote is a deity; and (3) if the Controlled Substances Act does not prohibit the use of peyote in religious ceremonies of the Native American Church, but does prohibit the use of peyote in religious ceremonies of other churches that believe that peyote is a deity, then the Act and regulation thereunder violate the due process clause.
Insofar as the complaint asserts a right to manufacture, distribute or use proscribed drugs other than peyote, it must be dismissed. Congress can constitutionally control the use, even for religious purposes, of drugs that it determines to be dangerous. Leary v. United States, 383 F.2d 851 (5th Cir. 1967), Cert. denied on this issue, 392 U.S. 903, 88 S. Ct. 2058, 20 L. Ed. 2d 1362 (1968), Rev'd on other grounds, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969); See also United States v. Kuch, 288 F. Supp. 439 (D.D.C.1968).
Congress has determined that the use of controlled substances has "a substantial and detrimental effect on the health and general welfare of the American people," 21 U.S.C. § 801(2). The particular drugs that the plaintiffs seek to use all are listed on Schedule I of the Controlled Substances Act, 21 U.S.C. § 812(c), and as such have "a high potential for abuse," "no currently accepted medical use," and "a lack of accepted safety for use" even under supervision. 21 U.S.C. § 812(b)(1). Severe penalties are prescribed for the possession of such substances. See, e.g., 21 U.S.C. § 841(a). These conclusions leave no room for a Court to substitute its judgment for that of Congress.
The plaintiffs contend also that the defendant in Leary, supra, used marijuana only as a sacrament or aid to worship, whereas the plaintiffs here believe that psychedelics are deities in themselves. Even assuming, however, that the plaintiffs' interest in using psychedelics is weightier than the defendant's interest in Leary, their interest still ...