IN THE CIRCUIT COURT OF BALDWIN COUNTY, ALABAMA

STATE OF ALABAMA,                   

Plaintiff,                                                     

v.                                   CASE NO: CC2006-2398

BRENDA WILLIAMS,

Defendant.

COMES NOW the State of Alabama, by and through Assistant District Attorney Christopher H. Murray, and files this Response to Defendant’s Motion and Brief to Dismiss for Violation of Religious Freedom Restoration Act and Alabama Religious Freedom Amendment and Religious Land Use and Institutionalized Persons Act in the above-styled case. In support of said response, it is shown unto this Honorable Court as follows:

1. The Religious Freedom Restoration Act enacted by Congress was held by the Supreme Court to be inapplicable to state and local governments by its ruling in City of Boerne v. Flores, 521 U. S. 507 (1997). Therefore Defendant’s reliance on this piece of legislation is misplaced in this context. In the above-styled case the Defendant is only charged with violating state laws which are not subject to the requirements of the Religious Freedom Restoration Act.

2. The Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc(a)(1), applies to governments applying land use restrictions that impose a substantial burden on the exercise of religion. The State would concede that were §13A-12-231 (1) (Trafficking) a restriction on land usage that the State would have the task of proving that the law was not a substantial burden on the use of land as it applied to religious activity. However, the statute in question deals with the sale, manufacture, delivery, bringing into the state, or actual or constructive possession of any part of the plant of the genus Cannabis whether growing or not. Therefore, while a portion of the law does indirectly serve as a regulation on the use of land, this is a negligible aspect of the statute. The statute deals with any relationship to the Cannabis plant whether it is connected to land or not. Accordingly, the State asserts that the Religious Land Use and Institutionalized Persons Act has no application in the instant case.

3. Defendant’s final ground for relief, involves the Alabama Religious Freedom Amendment. Ala. Const. (1901) Art. I §3.01. The Alabama Religious Freedom Amendment does apply in this circumstance assuming that Defendant’s religion is a bona fide religion. The State does not concede that Defendant’s claimed religion is in fact bona fide, however the State asserts this determination is not necessary in the current context.

The Alabama Religious Freedom Amendment in its pertinent part requires:

“SECTION V. (a) Government shall not burden a person’s freedom of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

(b) Government may burden a person’s freedom 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 govermnental interest.”

Ala. Const. Art. I §3.01.

Based on the Amendment the burden on the State appears to begin by showing that the law is one of general applicability. The statutes under which the Defendant is charged in this case all include in their verbage the terms “a person” or “any person”. The statutes are all intended to and do apply to every member of the public. See Ala. Code §13A-12-231(Trafficking). See also Ala. Code §13A-12-214 (Possession of Marijuana degree). See also Ala. Code §13A-12-260(c) (Possession of Drug Paraphernalia). Based on the usual reading and normal understanding of the words in these statutes, the laws appear to have the effect of being laws of general applicability. Nothing in the statutes applies to religious organizations, religious practices or in any other way attempts to influence religion. The laws are of general applicability and apply to all members of society.

Since the laws are of general applicability, the burden on the State becomes two fold. First, the State must show that the law to be enforced is of a compelling governmental interest. Second, the State must show that the method of enforcement is the least restrictive means of furthering that compelling governmental interest.

A. Compelling Governmental Interest

The State of Alabama has a compelling governmental interest in the regulation of controlled substances. Controlled substances are the cause of countless social ills ranging from adverse health effects, to the increase in other crimes when controlled substances are abused, including the increased risk of intoxicated drivers operating on the roadways of the State. Clearly the State has an interest in promoting public safety and well-being. Justice O’Connor in her opinion concurring in the holding, but not the opinion, in Employment Div., Dept. of Human Resources of Oregon v. Smith, stated “ is no dispute that Oregon has a significant interest in enforcing laws that control the possession of controlled substances by its citizens. . . As we recently noted, drug abuse is one of the greatest problems affecting the health and welfare of our population and thus one of the most serious problems confronting our society today.” 494 U.S. 872 at 904 (1990) (Internal citations and quotations omitted).

Because of the State’s interest in the regulation of drugs that can cause harm when not administered by trained medical professionals, the state has instituted broad safeguards and regulations through the Alabama Uniform Controlled Substances Act. These regulations include the substances in marijuana. The State clearly has an interest in protecting the health, welfare and safety of its people. In fact no interest is more important or compelling for any government. Therefore, it is the position of the State that a compelling governmental interest exists in these statutes and in their application to this case.

To further illustrate the State’s position, one must look no further than U.S. Supreme Court opinions. In Employment Div., the Supreme Court invalidated the prior two-prong test that was used for determining if a law was constitutional or not as it applied to religion. See Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972). However, the two-prong test that was utilized under the case law prior to Employment Div. is precisely the test that the Alabama Religious Freedom Amendment requires. Therefore, the dissenting opinion of Justice Blackmun in Employment Div. is particularly helpful in understanding this situation and making a determination as to whether the State has a compelling interest.

“The State’s apprehension of a flood of other religious claims is purely speculative. Almost half the States, and the Federal Government, have maintained an exemption for religious peyote use for many years, and apparently have not found themselves overwhelmed by claims to other religious exemptions. FN8 Allowing an exemption for religious peyote use would not necessarily oblige the State to grant a similar exemption to other religious groups. The unusual circumstances that make the religious use of peyote compatible with the State’s interests in health and safety and in preventing drug trafficking would not apply to other religious claims. Some religions, for example, might not restrict drug use to a limited ceremonial context, as does the Native American Church. See, e.g., Olsen, 279 U.S.App.D.C., at 7, 878 F.2d, at 1464 (“Ethiopian Zion Coptic Church ... teaches that marijuana is properly smoked ‘continually all day’“). Some religious claims, see n. 8, supra, involve drugs such as marijuana and heroin, in which there is significant illegal traffic, with its attendant greed and violence, so that it would be difficult to grant a religious exemption without seriously compromising law enforcement efforts.’ That the State might grant an exemption for religious peyote use, but deny other religious claims arising in different circumstances, would not violate the Establishment Clause. Though the State must treat all religions equally, and not favor one over another, this obligation is fulfilled by the uniform application of the “compelling interest” test to all free exercise claims, not by reaching uniform results as to all claims.”

Employment Div., Dept. of Human Resources of Oregon v. Smith 494

U.S. 872, *917..918, 110 S.Ct. 1595,**1620 - 1621 (U.S.Or.,1990)

(Emphasis added.)

Furthermore, in footnote 8 as referenced above, Justice Blackmun lists a multitude of cases where the courts have held that use of illegal drugs is not protected as a proper exercise of religious freedoms:

FN8. Over the years, various sects have raised free exercise claims regarding drug use. In no reported case, except those involving claims of religious peyote use, has the claimant prevailed. See, e.g., Olsen v. Iowa,

808 F.2d 652 (CA8 1986) (marijuana use by Ethiopian Zion Coptic

Church); United States v. Rush, 738 F.2d 497 (CAl 1984) (same), cert.

denied, 470 U.S. 1004, 105 S.Ct. 1355, 84 L.Ed.2d 378 (1985); United

States v. Middleton, 690 F.2d 820 (CAll 1982) (same), cert. denied, 460

U.S. 1051, 103 S.Ct. 1497,75 L.Ed.2d 929 (1983) (same); United States v. Hudson, 431 F.2d 468 (CA5 1970) (marijuana and heroin use by

Moslems), cert. denied, 400 U.S. 1011,91 S.Ct. 575, 577,27 L.Ed.2d 624

(1971); Leary v. United States, F.2d 851 (CA5 1967) (marijuana use

by Hindu), rev’d on other grounds, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Commonwealth v. Nissenbaum, 404 Mass. 575, 536 N.E.2d 592 (1989) (marijuana use by Ethiopian Zion Coptic Church); State v. Blake, 5 Haw.App. 411, 695 P.2d 336 (1985) (marijuana use in practice of Hindu Tantrism); Whyte v. United States, 471 A.2d 1018 (D.C.App. 1984) (marijuana use by Rastafarian); State v. Rocheleau, 142 Vt. 61, 451 A.2d 1144 (1982) (marijuana use by Tantric Buddhist); State v. Brashear, 92 N.M. 622, 593 P.2d 63 (1979) (marijuana use by nondenominational Christian); State v. Randall, 540 S.W.2d 156 (Mo.App.1976) (marijuana, LSD, and hashish use by Aquarian Brotherhood Church). See generally Annotation, Free Exercise of Religion as Defense to Prosecution for Narcotic or Psychedelic Drug Offense, 35 A.L.R.3d 939 (1971 and Supp. 1989). Employment Div., Dept. of Human Resources of Oregon v. Smith 494 U.S. 872, *919, 110 5.Ct. 1595, **1621 (U.5.Or.,1990)

Notably, many of the cases that the Justice cites, involve the use of marijuana for religious purposes. Based on the foregoing, it is the State’s position that a compelling governmental interest does exist with regard to the regulation of drugs such as marijuana.

B. Least Restrictive Means of Enforcement

In her brief, the Defendant cites two limited exemptions to drug control laws that have been recognized by courts previously. The first of those applies to an exemption that has been granted by Congress to the Native American Church for the use of peyote. Peyote is a hallucinogenic drug that is categorized as a controlled substance. The Native American Church utilizes the drug in its religious ceremonies and the usage is strictly controlled. Additionally, there is virtually no traffic in peyote due to the strict regulation in Texas, where it is most plentiful and naturally occurring, and the regulations put in place by the Native American Church. This lies in stark contrast to the extensive trafficking that exists in marijuana. Additionally, there has been no indication that the use of marijuana by the defendant is in a strictly controlled religious ceremony.

The Defendant also cites Gonzales v. 0 Centro Espirita Beneficente Uniao Do Vegetal etal., 546 U.S. 418 (2006). In 0 Centro, the Court held that the use by a small sect of approximately 130 people of hoasca was protected under the First Amendment. In the Court’s opinion, Justice Roberts, while holding that the use of hoasca was an acceptable religious accommodation, opined that not all religious accommodations would fair similarly. “. . . [ Government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program.” 546 U.S. 418, 421.

If the defendant was given an exemption to the State’s laws as it relates to the use of marijuana, it would be impossible for the State to enforce marijuana prohibition laws. The State would have no way to ascertain who was a true religious user of the drug and who was using the religion as a sham method of illegally using marijuana. Based on this, it seems that the State’s least restrictive means of enforcing its interests is met by a complete ban on the use of marijuana, both by this individual and society as a whole

WHEREFORE, the above premises considered, the State of Alabama respectfully requests that this Honorable Court deny the Defendant’s Motion in the above-styled case.

This the 11th day of December, 2007

Respectfully Submitted,

Christopher H. Murray

Assistant District Attorney

Our Reply to State's Response