Patricia Lou Kennedy v. Bureau of Narcotics and Dangerous Drugs

(concurring).

I concur with the majority that the petition of the Church of the Awakening for exemption for use of Peyote in religious services was properly rejected by the Director of the Bureau of Narcotics and Dangerous Drugs.

21 C.F.R. § 320.3 (c) (3) was enacted under the “Police Power” to protect the health, safety and welfare of the citizenry. The Director found, and the majority assumes, that peyote is a dangerous hallucinogenic substance.

It has been strongly propounded that this “police power” will prevail over an individual’s right to freely practice his religious beliefs where the practice involves criminal conduct, [see, Leary v. U. S., 383 F.2d 851 (5th Cir. 1967), reversed on other grounds, 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 ; U. S. v. Kuch, 288 Fed.Supp. 439 (D.C.Dist.Col. 1968); Annot. 35 A.L.R.3d 939 ].

The court in the Leary case set out the applicable test in stating at 383 F.2d p. 859:

The Director concluded from the evidence that the governmental interest *418 sufficiently outweighed the First Amendment rights of the petitioners. The record substantiates this finding.

In support of their contentions, petitioners cite People v. Woody, 61 Cal.2d…

The Church of the Awakening, its president, and four church members seek review of an order of the Director of the Bureau of Narcotics and Dangerous Drugs rejecting their petition to amend 21 C.F.R. § 320.3 (c) (3) to in- *416 elude the Church of the Awakening within the exemption accorded the Native American Church for the use of peyote in religious services.

Petitioners sought to amend the regulation by adding the words “and of the Church of the Awakening” after the words “Native American Church.”

Peyote grows in small buttons on a species of cacti found in parts of Texas and northern Mexico. When the buttons are chewed or brewed into a tea and ingested, the user experiences hallucinations. That effect is produced from the mescaline content of the buttons.

The Native American Church is a religious organization of American Indians drawn from a variety of western tribes. Membership in the church is roughly estimated to be 300,000. Peyote use is central to the religion of the church.

The substance of petitioners’ primary contention is that section 320.3(c) (3) violates the due process clause of the Fifth Amendment because the regulation creates an arbitrary classification…

459 F.2d 415 Patricia Lou KENNEDY et al., Petitioners, v. BUREAU OF NARCOTICS AND DANGEROUS DRUGS et al., Respondents. No. 71-1157. United States Court of Appeals, Ninth Circuit. April 5, 1972. Rehearing Denied June 21, 1972. Robert J. Burdett (argued), Robert J. Burdett, Jr., Chicago, Ill., Dale B. Dilts, Albuquerque, N. M., Bruce M. Gleason, Panorama City, Cal., for petitioners. Harold James Pickerstein (argued), William E. Ryan, Will Wilson, Asst. Atty. Gen., Donald E. Miller, Gen. Counsel, for respondents. Before MERRILL and HUFSTEDLER, Circuit Judges, and CROCKER, * District Judge. HUFSTEDLER, Circuit Judge: 1 The Church of the Awakening, its president, and four church members seek review of an order of the Director of the Bureau of Narcotics and Dangerous Drugs rejecting their petition to amend 21 C.F.R. Sec. 320.3(c) (3) to include the Church of the Awakening within the exemption accorded the Native American Church for the use of peyote in religious services. 1 The challenged regulation provides: 2 "The listing of peyote in this subparagraph 2 does not apply to nondrug use in bona fide religious ceremonies of the Native American Church; however, persons supplying the…