traffic in the drug. It emphasized the need for strict control, noting that marihuana is known to distort perception of time and space, modify mood and impair judgment, which may result in unpredictable behavior, violence and adverse effects on health, and that it may be associated with the abuse of other drugs such as LSD, stimulants and heroin. To except the members of the Neo-American Church from the regulation of this drug, as Kuch requests, would not amount to some slight exception that would in no way interfere with the purposes of the Marihuana Tax Act. On the contrary, it would permit anyone to violate the law by paying the Church membership fee. The number of marihuana cases in this Court suggests that there are many who would quickly take out membership and the Act would soon be a nullity.
Defendant Kuch advances two specific claims in support of her general thesis. These relate primarily to counts 1, 2 and 7, which involve marihuana. First, relying on such cases as United States v. Carolene Products Co., 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938), she asks that the Marihuana Tax Act enacted in 1937 be declared null and void as to her religious practices because it no longer has any rational basis and is not supported by a present necessary state interest given present knowledge and information as to this drug and its effects. Second, she invokes the equal protection clause of the Constitution and demands that the statute not be enforced as to her religious use and transfer of marihuana because the Food and Drug Administration and the California State Supreme Court have authorized the Native American Church to use a wholly comparable if not more powerful drug, peyote, in the long-established ritual of that church, most of whose members are American Indians.
The Court was asked to take testimony on these issues but after careful consideration has determined that hearings would serve no useful purpose. Preliminary to any hearing the Court requested the parties to furnish materials bearing on the issues which could be judicially noticed. Voluminous writings were so furnished.
For reasons hereafter set forth they suffice for purposes of the motion and will be judicially noticed to the extent indicated in the text.
United States v. Carolene Products Co., 304 U.S. 144, 153, 58 S. Ct. 778, 784, 82 L. Ed. 1234 (1938) states that "the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist." If such facts are beyond the sphere of judicial notice they may be made the subject of judicial inquiry. Apparently this decision permits a re-examination in the face of the presumption favoring constitutionality and the regularity of the legislative process - at least where economic legislation is concerned. Here we are concerned with a criminal statute carrying heavy felony penalties. Whether the rule of Carolene Products applies in non-economic matters has apparently not been determined by the United States Supreme Court. There would, however, appear to be no reason for making any distinction one way or the other. Accordingly, the Court has tested the premises underlying congressional action as to marihuana.
The Marihuana Tax Act was not conceived or enacted in any atmosphere of religious prejudice. Indeed, the Neo-American Church was not then even in existence. The statutes developed out of congressional concern with drug problems and supporting testimony from responsible individuals was given at the congressional hearings.
The problem before the Court at this stage is not to substitute its judgment for that of Congress or to inquire into the bona fides of the congressional witnesses. Unless there has been a dramatic and fundamental change in scientific knowledge and law enforcement attitudes concerning the uses and effects of marihuana the legislation will not be questioned.
The Court is not required nor would it be proper to substitute its judgment for that of the Congress. It is only necessary to examine the facts to determine whether in view of the restriction which the Marihuana Tax Act places on the acts of members of the Neo-American Church, Congress had a rational basis for the enactment and whether there continues to be a substantial basis for its continued enforcement. This is something quite different from what Kuch seeks for she would have the Court determine that those who feel marihuana is practically harmless and even socially beneficial have the better of the argument over those who feel the drug is harmful and socially most undesirable. The Court is not the legislature and the legislature has spoken. It is sufficient to determine and the Court so finds that Congress had a rational basis for passing the Act and that there is a substantial body of informed expert opinion which continues to support and indeed to underline and emphasize the very reasons that led Congress to enact the law in the first instance. The Marihuana Tax Act is still based on reason, it is directed against a continuing social and health problem and the purposes of the statute cannot be accomplished without continued full enforcement. There is also a clear and compelling interest in the regulation of the transfer and possession of LSD.
The drug is more harmful than marihuana and defendant's religious interest in its ingestion does not outweigh the threat to the public health and safety which LSD presents. The free exercise clause of the First Amendment does not prohibit the prosecution of this defendant under either Act. The practice of her beliefs - if beliefs they be - must give way to the public good.
The Supreme Court has stated that "a sufficiently important governmental interest" can justify limitations on First Amendment freedoms. In United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672. (1968), the Court found that:
"To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if * * * it furthers an important or substantial governmental interest. * * *" 391 U.S. at 376, 88 S. Ct. at 1679.
As part of her motion to dismiss the indictment on religious grounds, defendant has also made what may be broadly described as the "peyote" argument. The claim is that she is denied equal protection in the constitutional sense because members of another religion are permitted under the narcotic laws to use peyote, a similar and at least as harmful an hallucinatory drug.
In People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964), the California Supreme Court broadly applied the tests of Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), and held that a state statute prohibiting the unauthorized use of peyote
could not constitutionally be applied to a member of the Native American Church. The Native American Church, made up of from 30,000 to 250,000 American Indians, had a "long history" of the use of peyote. The court found that:
"Although peyote serves as a sacramental symbol similar to bread and wine in certain Christian churches, it is more than a sacrament. Peyote constitutes in itself an object of worship; prayers are directed to it much as prayers are devoted to the Holy Ghost. On the other hand, to use peyote for nonreligious purposes is sacrilegious. * * *" 61 Cal. 2d 716, 40 Cal. Rptr. 69 at 73, 394 P.2d 813 at 817.
Against the "virtual inhibition of the practice of defendants' religion" imposed by the state statute, the California court balanced the state's interest in enforcing the statute in order to determine whether that interest was so "compelling" as to necessitate "an abridgement of defendants' First Amendment right." The court found that the record did not support "the state's chronicle of harmful consequences of the use of peyote" and held in favor of an exemption for the defendant members of the Native American Church.
Defendant asserts that marihuana is less harmful, or no more harmful, than peyote and that under the reasoning in Woody, she is entitled to an exemption from the Marihuana Tax Act. This Court, however, is not bound by decisions of the California Supreme Court. While it may appear incongruous that the court found, on the one hand, that the state had not shown that peyote had harmful consequences and yet found, on the other hand, that peyote "engenders hallucinatory symptoms similar to those produced in cases of schizophrenia, dementia praecox, or paranoia" - that problem is not before the Court. The concern here is to analyze the scheme and effects of the federal statutes under which Kuch has been indicted.
The Commissioner of Food and Drugs has exempted peyote, when used by the Native American Church, from regulation under the Drug Abuse Control Amendments to the Federal Food, Drug and Cosmetic Act. 21 U.S.C. § 360a(f)(1) of the Act reads as follows:
"The Secretary may by regulation exempt any depressant or stimulant drug from the application of all or part of this section when he finds that regulation of its manufacture, compounding, processing, possession, and disposition, as provided in this section or in such part thereof, is not necessary for the protection of the public health."