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July 1, 1968

Judith H. KUCH

The opinion of the court was delivered by: GESELL

 Judith H. Kuch, who avers she is an "ordained minister of the Neo-American Church", stands indicted in a seven-count indictment for unlawfully obtaining and transferring marihuana and for the unlawful sale, delivery and possession of LSD. She moves to dismiss on several grounds.

 Counts 1, 2 and 7 of the indictment are brought under sections of the Marihuana Tax Act of 1937, 50 Stat. 551, as amended, Int.Rev.Code of 1954, 26 U.S.C. §§ 4741-4776. The Act provides for a licensing system, occupational and transfer taxes, and receipting requirements for transfers, and is modeled largely on the Harrison Narcotic Drug Act, Ch. 1, 38 Stat. 785 (1914), 26 U.S.C. §§ 4701-4736, which began the federal regulation of narcotics.

 In United States v. Sanchez, 340 U.S. 42, 71 S. Ct. 108, 95 L. Ed. 47 (1950), the Supreme Court held that the Marihuana Tax Act was a constitutional exercise of the taxing power. The Court noted that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. This principle applies, the Court said, even though the revenue purpose of the tax may be secondary. The Court concluded in Sanchez that:

"The tax in question is a legitimate exercise of the taxing power despite its collateral regulatory purpose and effect." 340 U.S. at 45, 71 S. Ct. at 110.

 Counts 3 through 6, the remaining counts of the indictment, are brought under the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040 et seq., as amended, 21 U.S.C. §§ 301-392. This Act, an appropriate exercise of the commerce power, was intended to protect consumers from misleading claims made in connection with the sale of certain products and from the hazards of adulteration, mislabeling, and misbranding. *fn1" It was amended by the Drug Abuse Control Amendments of 1965. In these amendments Congress declared that it had found:

"that there is a widespread illicit traffic in depressant and stimulant drugs moving in or otherwise affecting interstate commerce; that the use of such drugs, when not under the supervision of a licensed practitioner, often endangers safety on the highways * * * and otherwise has become a threat to the public health and safety * * *." Pub.L. No. 89-74, § 2, 79 Stat. 226; 1965 U.S.Code Cong. and Adm. News, p. 241.

 Marihuana is specifically exempted from regulation contemplated under the amendments for other depressant or stimulant drugs, *fn2" but LSD, on the other hand, is specifically listed as a depressant or stimulant drug *fn3" and by virtue of such listing, LSD is subject to the Act, notably, 21 U.S.C. §§ 360(a), 360a(c), 331(q)(2), (3) and 333.

 Defendant by her motions to dismiss contends that the criminal penalties provided for violation of these Acts may not be applied as to her for several reasons relating in various ways to her basic contention that the laws impinge on her constitutional right in the free exercise of her alleged religion. A hearing was held and testimony and exhibits received in support of Kuch's religious claims. She presented no subjective evidence as to her individual beliefs but chose to rely on her office in the Church and proof as to the requirements and attitudes of the Church as constituted. The Court has concluded that the facts and authorities discussed below do not support her contentions for several separate and independent reasons.

 The Neo-American Church was incorporated in California in 1965 as a nonprofit corporation. It claims a nationwide membership of about 20,000. At its head is a Chief Boo Hoo. Defendant Kuch is the primate of the Potomac, a position analogized to bishop. She supervises the Boo Hoos in her area. There are some 300 Boo Hoos throughout the country. In order to join the church a member must subscribe to the following principles:

"(1) Everyone has the right to expand his consciousness and stimulate visionary experience by whatever means he considers desirable and proper without interference from anyone;
"(2) The psychedelic substances, such as LSD, are the true Host of the Church, not drugs. They are sacramental foods, manifestations of the Grace of God, of the infinite imagination of the Self, and therefore belong to everyone;
"(3) We do not encourage the ingestion of psychedelics by those who are unprepared."

 Building on the central thesis of the group that psychedelic substances, particularly marihuana and LSD, are the true Host, the Church specifies that "it is the Religious duty of all members to partake of the sacraments on regular occasions."

 A Boo Hoo is "ordained" without any formal training. He guides members on psychedelic trips, acts as a counselor for individuals having a "spiritual crisis," administers drugs and interprets the Church to those interested. The Boo Hoo of the Georgetown area of Washington, D.C., testified that the Church was pantheistic and lacked a formal theology. Indeed, the church officially states in its so-called "Catechism and Handbook" that "it has never been our objective to add one more institutional substitute for individual virtue to the already crowded lists." In the same vein, this literature asserts "we have the right to practice our religion, even if we are a bunch of filthy, drunken bums." The members are instructed that anyone should be taken as a member "no matter what you suspect his motives to be."

 The dividing line between what is, and what is not, a religion is difficult to draw. The Supreme Court has given little guidance. Indeed, the Court appears to have avoided the problem with studied frequency in recent years. *fn4" Obviously this question is a matter of delicacy and courts must be ever careful not to permit their own moral and ethical standards to determine the religious implications of beliefs and practices of others. Religions now accepted were persecuted, unpopular and condemned at their inception.

 Subtle and difficult though the inquiry may be, it should not be avoided for reasons of convenience. There is need to develop a sharper line of demarkation between religious activities and personal codes of conduct that lack spiritual import. Those who seek the constitutional protections for their participation in an establishment of religion and freedom to practice its beliefs must not be permitted the special freedoms this sanctuary may provide merely by adopting religious nomenclature and cynically using it as a shield to protect them when participating in antisocial conduct that otherwise stands condemned. In a complex society where the requirements of public safety, health and order must be recognized, those who seek immunity from these requirements on religious grounds must at the very least demonstrate adherence to ethical standards and a spiritual discipline.

 The defendant has sought to have the Church designated a religion primarily by emphasizing that ingestion of psychedelic drugs brings about a religious awareness and sharpens religious instincts. There was proof offered that the use of psychedelic drugs may, among other things, have religious implications. Various writings on the subject were received in evidence and testimony was taken from two professors, not members of the Church but having theological interest in the subject, who had themselves taken drugs experimentally and had studied religious manifestations of psychedelic drug ingestion.

 Just as sacred mushrooms have for 2,000 years or more triggered religious experiences among members of Mexican faiths that use this vegetable, so there is reliable evidence that some but not all persons using LSD or marihuana under controlled conditions may have what some users report to be religious or mystical experiences. Experiments at Harvard and at a mental institution appear to support this view and there are specific case histories available, including the accounts of the professors who testified as to their personal experience under the influence of psychedelic drugs. Researchers have found that religious reactions are present in varying degrees in the case of from 25 percent to 90 percent of those partaking. A religious reaction appears most frequently among users already religiously oriented by training and faith. While experiences under the influence have no single pattern, a religious reaction includes the following effects. Sometimes senses are sharpened and apparently a mixed feeling of awe and fear results. There may be mystery, peace, and a sharpening of impressions as to all natural objects, perhaps even something akin to the vision Moses had of a burning bush as described in Exodus. That there may be wholly different effects upon given individuals is equally clear. Psychotic episodes may be initiated, leading to panic, delusions, hospitalization, self-destruction and various forms of antisocial and criminal behavior, as will be later indicated in more detail.

 While there may well be and probably are some members of the Neo-American Church who have had mystical and even religious experiences from the use of psychedelic drugs, there is little evidence in this record to support the view that the Church and its members as a body are motivated by or associated because of any common religious concern. The fact that the use of drugs is found in some ancient and some modern recognized religions is an obvious point that misses the mark. What is lacking in the proofs received as to the Neo-American Church is any solid evidence of a belief in a supreme being, a religious discipline, a ritual, or tenets to guide one's daily existence. *fn5" It is clear that the desire to use drugs and to enjoy drugs for their own sake, regardless of religious experience, is the coagulant of this organization and the reason for its existence.

 Reading the so-called "Catechism and Handbook" of the Church containing the pronouncements of the Chief Boo Hoo, one gains the inescapable impression that the membership is mocking established institutions, playing with words and totally irreverent in any sense of the term. Each member carries a "martyrdom record" to reflect his arrests. The Church symbol is a three-eyed toad. Its bulletin is the "Divine Toad Sweat." The Church key is, of course, the bottle opener. The official songs are "Puff, the Magic Dragon" and "Row, Row, Row Your Boat." In short, the "Catechism and Handbook" is full of goofy nonsense, contradictions, and irreverent expressions. There is a conscious effort to assert in passing the attributes of religion but obviously only for tactical purposes. Constitutional principles ...

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