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.