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IN THE CIRCUIT COURT OF BALDWIN COUNTY

ALABAMA STATE OF ALABAMA  
Plaintiff,                                       
v.                                                   CASE NO: CC 2006 002398.00
BRENDA WILLIAMS,
a.k.a. Reverend Brenda Shoop
Defendant  

REPLY TO STATE’S 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 

COMES NOW Brenda Sue Williams, a.k.a. Reverend Brenda Shoop, pro se, and files this Reply to Assistant District Attorney Christopher H. Murray’s 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 Person Act in the above-styled case.  

In support of said reply, it is shown unto this Honorable Court as follows: 

1.         Since my paid counsel was allowed to withdraw from my case and court-appointed counsel has been denied to me, I would ask for a liberal interpretation of my pleadings.

The Federal Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, The First Amendment, Equal Protection of the Law and Due Process under the Fifth and Fourteenth Amendments, Hybrid Rights and a Federal Right to Privacy all apply in this case.

I would ask that the Court proceed with the compelling interest test as set forth in the Alabama Religious Freedom Amendment and allow a continuance for the additional claims pending the outcome of an evidentiary hearing for the compelling interest test under the Alabama Religious Freedom Amendment.

The decision in Employment Division v. Smith, 494 U.S. 872 (1990), changed the analysis applicable to Free Exercise claims. Smith holds that where a criminal prohibition is "neutral and generally applicable," it need not be supported by a compelling interest in order to be applied in a way that burdens the religious exercise of individuals.

However, if a law is not "neutral and generally applicable," the government must demonstrate that an application which infringes upon the religious liberty of an individual is supported by a compelling governmental interest and that the law is narrowly tailored to serve that interest. Tenafly Eruv Assn. v. Borough of Tenafly, 309 F.3d 144, 165 (3d Cir. 2002) (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 542 (1993)).

Additionally, Smith recognized two other circumstances in which a law burdening religious exercise is subject to strict scrutiny. First, the Court left open the viability of Free Exercise Clause attacks on laws that violate the First Amendment in conjunction with other constitutional protections. In these "hybrid rights" situations, heightened scrutiny is required. Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 472-73 (8th Cir. 1991) (citing Smith, 494 U.S. at 881-82).

Second, "in circumstances in which individualized exemptions from a general requirement are available, the government 'may not refuse to extend that system to cases of 'religious hardship' without compelling reason.'" Church of the Lukumi Babalu Aye, 508 U.S. at 537 (quoting Smith, 494 U.S. at 884).

The Controlled Substances Acts do not apply across-the-board, either as to Schedule I substances generally or as to marijuana in particular. Instead, both the federal government and the State of Alabama have exceptions in law for the use of Schedule I substances and marijuana under particular circumstances, including as a religious sacrament.

"The Free Exercise Clause 'protect[s] religious observers against unequal treatment,' Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 148 (1987) (Stevens, J., concurring in judgment), and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation." Church of the Lukumi Babalu Aye, 508 U.S. at 542-543.

The Constitution also is offended when the government prefers certain religious denominations. See Larson v. Valente, 456 U.S. 228, 245 (1982) (striking down denominational preference).

The grant of exemptions from the Controlled Substances Acts for certain religious and non-religious reasons while denying similar treatment to persons such as the Defendant seeking to exercise sincerely-held religious beliefs prevents these laws from being considered "generally applicable."

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal 546 U.S. (2006) makes clear that under both RFRA and the Free Exercise Clause, the government must show a compelling interest for applying the law to the Defendant, not simply that there is generally a compelling interest for the Controlled Substances Acts' prohibitions. In elucidating the RFRA "compelling interest" inquiry in O Centro, the Court noted that RFRA adopts the test set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), cases that were decided under the Free Exercise Clause. O Centro, 546 U.S. at 430-31.

Therefore, the "more focused" compelling interest inquiry, and not the categorical approach used in the previous cases involving cannabis claims cited by the State, must be applied. Because a different compelling interest test applies, the previous decisions do not apply to Free Exercise claims within the framework of the Supreme Court decision in Smith or the Supreme Court decisions that have come down since. 

Defendants claims based upon the Fifth and Fourteenth Amendments' guarantees to equal protection apply because the Defendant is similarly situated to Native American Church members in their sacramental use of a substance considered a Schedule I controlled substance under the Federal and Alabama version of the CSA. Nevertheless, Plaintiffs have refused to accord the same deference to the Defendant.

The Defendant is similarly situated to UDV Church members in their sacramental use of a substance considered a Schedule I controlled substance under the Federal and Alabama versions of the CSA. Nevertheless, Plaintiffs have refused to accord the same deference to the Defendant.

Consequently, the Plaintiffs' decision to allow the members of the Native American Church to use peyote and members of the UDV church to use DMT for religious purposes, while denying the same protection to the Defendant, violates the Establishment Clause of the First Amendment and the Equal Protection rights of the Defendant guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution.  

2.         Since the State has conceded that the Alabama Religious Freedom Amendment does indeed apply to the substantial burdening of this defendant’s sincere religious practice, with its compelling interest test, strict scrutiny is required in reviewing the religious exemption that this defendant claims. 

It is not sufficient for the State to claim a general compelling interest in the enforcement of a criminal statute.  Callahan v. Woods, 736 F.2d 1269, 1272-1273 (9th Cir. 1984):

The government must shoulder a heavy burden to defend a regulation affecting religious actions. It is usually said that the challenged regulation must be the least restrictive means of furthering a compelling state interest. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963). 

Commentators have observed that, because of its broad and indefinite nature, this test is often inadvertently reduced to an inquiry which stops after the discovery of a compelling state interest. See, e.g., Tribe, American Constitutional Law 855 (1978).

The purpose of almost any law, however, can be traced to a fundamental concern of government. Balancing an individual's religious interest against such a concern will inevitably make the former look unimportant. It is therefore the "least restrictive means" inquiry which is the critical aspect of the free exercise analysis. This prong forces us to measure the importance of a regulation by ascertaining the marginal benefit of applying it to all individuals, rather than to all individuals except those holding a conflicting religious conviction. See Clark, Guidelines for the Free Exercise Clause, 83 Harv.L.Rev. 327, 331 (1969).

If the compelling state goal can be accomplished despite the exemption of a particular individual, then a regulation which denies an exemption is not the least restrictive means of furthering the state interest. A synthesis of the two prongs is therefore the question whether the government has a compelling interest in not exempting a religious individual from a particular regulation. See, e.g., Sherwood v. Brown, 619 F.2d 47, 48 (9th Cir. 1980) (compelling state interest in not exempting Sikh from Navy helmet requirement because absence of single helmet would endanger entire crew). Such a formulation prevents the government from relying on its generally great interest in maintaining the underlying rule or program for unexceptional cases. 

The Alabama Religious Freedom Amendment in its pertinent part requires:

SECTION V. (b) Government may burden a person’s freedom of religion only if it demonstrates that application of the burden to the person… Ala. Const. Art I §3.01. (Emphasis added) 

Under the Government's view, there is no need to assess the particulars of the UDV's use or weigh the impact of an exemption for that specific use, because the Controlled Substances Act serves a compelling purpose and simply admits of no exceptions. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430 (2006).

 RFRA, and the strict scrutiny test it adopted, contemplate an inquiry more focused than the Government's categorical approach. RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law "to the person" -- the particular claimant whose sincere exercise of religion is being substantially burdened. 42 U.S.C. § 2000bb-1(b). RFRA expressly adopted the compelling interest test "as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)." 42 U.S.C. § 2000bb(b)(1).

In each of those cases, this Court looked beyond broadly formulated interests justifying the general applicability of government mandates and scrutinized the asserted harm of granting specific exemptions to particular religious claimants. Gonzales v. O Centro, 546 U.S. 418, 430-431 (2006).  

[S]trict scrutiny ‘at least requires a case-by-case determination of the question, sensitive to the facts of each particular claim’.  Gonzales v. O Centro, 546 U.S. 418 (2006) (Emphasis added) 

[S]trict scrutiny does take 'relevant differences' into account -- indeed, that is its fundamental purpose” Gonzales v. O Centro, 546 U.S. 418 (2006) (Emphasis added) 

We reaffirmed just last Term the feasibility of case-by-case consideration of religious exemptions to generally applicable rules.  Gonzales v. O Centro, 546 U.S. 418 (2006). (Emphasis added)

Not one case cited in the prosecution’s response involved the defendant in this case, nor the facts of this case.  An independent finding of compelling interest to interfere with the defendant’s religion is required. 

3.         The State has not provided evidence of a clear and compelling interest of the highest order to interfere with the defendant’s religion. 

The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests "of the highest order.” Wisconsin v. Yoder, 406 U.S. 205 supra, at 215 (1972). (Emphasis added) 

The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.  Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) 

Only an especially important governmental interest pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment freedoms as the price for an equal share of the rights, benefits, and privileges enjoyed by other citizens. Bowen v. Roy, 476 U.S. 693 supra, at 728 (1986). (Emphasis added)

The state attempts to argue from the UDV decision quoting "[T]he 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." Gonzales v. O Centro, 546 U.S. 418, 421 (2006). (Emphasis added) 

Citing to United States v. Lee, 455 U.S. 252 (1982),

In Lee, 455 U.S. at 258, the Supreme Court held that the Free Exercise Clause did not require a religious exemption from payment of Social Security taxes because mandatory participation in the system was indispensable. In connection with considering this accommodation inquiry the state brief similarly argues that the accommodation analysis employed in Lee was approved as a method of analysis under RFRA. 

In truth, in O Centro the Supreme Court specifically rejected the analysis used in Lee, as a proper test for determining RFRA claims where the burden on religious exercise arises from the Controlled Substances Act.  The O Centro decision cited Lee as an example of a case involving a government law requiring uniformity and that would be wholly undermined if religious accommodations were allowed.   O Centro, 546 U.S. at 435. 

However, the Court went on to hold that the Controlled Substances Act is not a law in which there is a compelling interest in uniformity:

We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA.   But it would have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance. Id. at 436-37.   

The Court pointed out that the existence of the well-established peyote exemption undermines the contention that there is a compelling governmental interest in not applying the individualized inquiry to RFRA claims based upon burdens imposed by the Controlled Substances Act.   Id. at 432. 

Thus, the O Centro decision specifically held that the "accommodation" analysis employed in Lee does not apply under RFRA when the burden on religion results from the enforcement of the Controlled Substances Act.  The Controlled Substances Act is not a law that demands uniformity of operation such that there is a compelling interest in recognizing no exceptions.  

Instead, the Controlled Substances Act is a law, which under RFRA, can be applied to burden religious exercise only if it is shown that there is a compelling interest in applying the law to the RFRA claimant.   The states reliance on Lee as grounds for denying a religious claim is inconsistent with the holding in O Centro.

The state does not deny that strict scrutiny applies in this case but insists rather, that the previous decisions involving First amendment cannabis claims cited in Employment Div., Dept. of Human Resources of Oregon v. Smith 494 U.S. 872., used the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 1972.

This argument is fatally flawed in and of itself because the cases denying cannabis Free Exercise claims cited by the state rely on 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, 23L.Ed.2d 57 (1969)

Leary was decided before Wisconsin v. Yoder, 406 U.S. 205 1972 and in regards to Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963) in 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, 23L.Ed.2d 57 (1969) at page 860 the Court wrote: 

Appellant's reliance on Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), for authority that the constitutionally guaranteed right of free religious exercise imposes on the Government the burden of showing a compelling interest in its abridgement, is misplaced and inapposite on the facts.  

And from page 860 to 861 the Court wrote: 

Congress has made it a crime to traffic in marihuana and it was not incumbent upon the Government to produce evidence to controvert the testimony of witnesses on the controversial question whether use of the drug is relatively harmless.  

The Ninth Circuit Court of appeals has recognized this. United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996) ("Bauer " hereafter), was the first court to recognize that United States v. Leary is no longer good law under the RFRA:

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, 23 L. Ed. 2d 57, 89 S. Ct. 1532 (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 governments in limine motion would have been granted even if the Religious Freedom Restoration Act had been the law of the land at the time.

United States v. Bauer, 84 F.3d at 1557:.
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.

In addition to this The Defendant is not Dr. Timothy Leary and the facts of that case are not the facts of this case.

More recently in Raich v. Gonzales, No. 03-15481 (9th Cir. March 14, 2007) footnote 8 at pages 39-40, the Court wrote:

As stated above, Justice Anthony Kennedy told us that "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress." Lawrence, 539 U.S. at 579.

For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering. n16

n16 Because we find no fundamental right here, we do not address whether any law that limits that right is narrowly drawn to serve a compelling state interest. See Flores, 507 U.S. at 301-02. We note, however, that, a recent Supreme Court case suggests that the Controlled Substances Act is not narrowly drawn when fundamental rights are concerned. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S. Ct. 1211, 1221-23, 163 L. Ed. 2d 1017 (Feb. 21, 2006) (observing that "mere invocation of the general characteristics of Schedule I substances, as set forth in the Controlled Substances Act, cannot carry the day," and that the government had presented no evidence that narrow exceptions to the Schedule I prohibitions would undercut the government's ability to effectively enforce the Controlled Substances Act).

And in Multi Denominational Ministry of Cannabis and Rastafari, Inc. v. Gonzales, No. 3:06-cv-4264 (N.D. Cal. February 2, 2007) (MDMCR hereafter). At pages 10-11, Judge Vaughn Walker wrote:

For reasons discussed infra, the Supreme Court's decision in Gonzales v O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S Ct 1211, 1217, 163 L. Ed. 2d 1017 (2006), shifted the legal terrain surrounding plaintiffs' suit, thereby warranting reexamination of the grounds for relief raised in plaintiffs' previous petition.

And at page 16:

Due to the case-by-case inquiry mandated by the O Centro decision, the RFRA forces courts into the awkward position of assessing the sincerity of a group's religious beliefs and then carving out exceptions to federal statutes in order to accommodate these beliefs. See O Centro , 126 S Ct at 1222 (concluding that the RFRA contemplates "judicially crafted exceptions" to federal laws). Moreover, the stringent standard provided by the RFRA suggests that in delegating to the judicial branch the job of ensuring that federal law accommodates religion, Congress underestimated both the diversity of America's religious practices and the resourcefulness of its practitioners (and their attorneys). The present case thus serves as a prelude to the litigation to come.

Judge Walker dismissed all the claims against the Federal Defendants with prejudice except for the claims under the RFRA and invited the individual plaintiffs to re-file their claims under the RFRA.

According to City of Indianapolis, et al.  v. James Edmond, et al. 531 U.S. 32 (2000), the Supreme Court ruled that drug laws are general criminal statutes which in and of themselves are not compelling interest sufficient to override Fourth Amendment rights.  

There is not presently a uniform application of the Controlled Substance laws in general, or the marijuana laws in particular, because there are exceptions written into the Controlled Substance Act itself and judicially crafted exceptions to the laws have been created.  

Alabama’s drug laws are not neutral toward religion because Alabama has not challenged Congress’ exemption of peyote from Alabama’s drug laws.

42 U.S.C. § 1996a: 

(b) Use, possession, or transportation of peyote.

(1) Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State.

Code of Ala. § 20-2-51 (2007): 

(d) The certifying boards may waive by rule the requirement for registration of certain manufacturers, distributors or dispensers if they find it consistent with the public health and safety.

 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 432-433 (2006): The Act contains a provision authorizing the Attorney General to "waive the requirement for registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety." 21 U.S.C. §822(d).

The fact that the Act itself contemplates that exempting certain people from its requirements would be "consistent with the public health and safety" indicates that congressional findings with respect to Schedule I substances should not carry the determinative weight, for RFRA purposes, that the Government would ascribe to them. 

Among these exceptions to the uniform application of the Controlled Substances laws: 

• The Federal distribution of 300 Medical Marijuana cigarettes a month to certain patients under the Investigational New Drug Program (IND). Kuromiya v. United States, 37 F. Supp. 2d 717 (E.D. Pa. 1999); Kuromiya v. United States,  78 F. Supp. 2d 367 (E.D. Pa. 1999).
  
• The Alabama Controlled Substances Therapeutic Research Act. See Acts 1979, No. 79-472, p.870 (codified at Ala. Code §20-2-110 et seq.) (See below),
  
• A district court’s determination that; "The Court will allow Mr. Valrey's personal use and possession of marijuana exclusively in connection with his practice of his religion."  In United States v. Valrey, No. CR96-549Z (W.D. Wash., February 22, 2000), applying the compelling interest tests of Sherbert v. Verner and Wisconsin v. Yoder, concluded under the federal RFRA,  
  
• The exceptions created for Peyote, tobacco and alcohol (See Below)
  
• The exception created in Gonzales v. O Centro  for DMT  

4.   Concerning the Judicially Crafted Exemption for DMT

Based on the facts presented in preliminary hearing, showing that the Schedule I drug DMT in Hoasca tea, and the Schedule I drug Mescaline in peyote, cause no threat to public health and safety when used in carefully monitored ceremonies, it was obvious to the Court that no Compelling Interest lay to prohibit the UDV church from receiving the proper licenses to import and distribute the Hoasca Tea. This Court should take note that the UDV Church never sought a license from the DEA in its filings. The district court sought to enable the DEA to effectively monitor what had been a non-event from 1993 through 1999 when the UDV church suffered its rape at the hands of DEA agents - that non-event being the illegal and illicit import and distribution of Hoasca by the church.

It is the biochemical nature and effect of Hoasca that determined the lack of threat to public health and safety not the issuance of a license. After all, the UDV church had been operating since 1993 in the United States, importing and distributing, recruiting members and otherwise establishing the church and its ceremonial use of Hoasca.

The UDV district court never got to the question of a least restrictive means of regulation where it found that there was no threat to public health and safety demonstrated by the Government (see page 58 of Docket Number 88). 

5.         The State in this case has not provided any real, substantial evidence that prosecuting this defendant serves a compelling governmental interest. There has been no evidentiary hearing regarding the facts in this particular case.

The prosecution states in its response brief, “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.”

Because the prosecutor is not alleging that I hurt anyone, this case must be dismissed. 

(A) “Controlled substances are the cause of countless social ills…”

The fact that the drug laws contain exceptions for tobacco and alcohol show this argument is merit less when faced with a religious claim under RFRA, because they demonstrate the drug laws are not generally applicable. The State cannot deny a religious claim in the face of such broad secular exceptions – See Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), cited in Gonzales v. O Centro, 546 U.S. 418, 433 (2006): "It is established in our strict scrutiny jurisprudence that 'a law cannot be regarded as protecting an interest 'of the highest order' . . . when it leaves appreciable damage to that supposedly vital interest unprohibited'" (citations omitted). 

(B) “ranging from adverse health effects…”  

Since 1937, when it adopted the “Marihuana Tax Act,” the government has justified the criminalization of marijuana use on the grounds that it is a dangerous drug. But this claim looks more and more ludicrous with each passing year. EVERY independent commission appointed to look into this claim has found that cannabis is relatively benign.

 The Controlled Substances Act of 1970 gives the Attorney General the power to reschedule a controlled substance if that substance does not meet the criteria for the schedule to which it has been assigned. 21 U.S.C. § 811(a). The Attorney General has delegated this authority to the Administrator of the Drug Enforcement Administration (hereinafter DEA). See 28 C.F.R. § 0.100(b).

 According to the federal drug law, it is the DEA Administrative Law Judge who determines the actual danger caused by medical use of a drug The DEA ruling on threat to public health and safety reached by the DEA Administrative Law Judge on the question of threat to public health and safety is authoritative as to the religious acts of growing and using marijuana. The findings of the federal DEA Administrative Law Judge on the matter of Rescheduling Marijuana for medical use is legally controlling. From page 56 thru 70 the ALJ reports that marijuana is the safest therapeutic substance known to mankind; that there has never been a recorded injury or death caused by marijuana in 5000 years of recorded history and that the toxic dose of marijuana would be about 1500 lbs consumed within 15 minutes.   
                    
The lack of toxicity caused by ingestion of marijuana is the single greatest reason the Government cannot produce any proof of harms caused by the defendant growing and otherwise using marijuana. If a substance is non-toxic, then it can't cause harm to the user. If a substance cannot cause harm to a user, then it is very difficult if not impossible to prove that the user will cause harm to others by using that substance.

10 Raw Potatoes Equals 1500lbs of Marijuana as Poison

The ALJ compares marijuana in toxic dose to other common foods, over the counter pharmaceutical drugs, and things like potatoes. The toxicity of 1500 lbs of marijuana compares favorably with the toxicity of ten pounds of raw potatoes or a bottle of aspirin. Neither of these are characterized as threats to public health and safety - although thousands of Americans die every year from overuse of Aspirin. In contrast, there has never been a single scientifically verified injury or death caused by consumption of marijuana.

Under the strict scrutiny required by UDV and the compelling interest test, the Court must consider the findings of fact made by the Chief Administrative Law Judge for the DEA, established by the Federal CSA as the person of authority to review the classification of marijuana. Judge Young found as a fact that "Marijuana, in its natural form, is one of the safest therapeutically active substances known to man." This is a finding of fact under the very statute the State of Alabama is claiming supports their compelling interest in assaulting the Defendant. The consideration of this fact is now mandatory under strict scrutiny of the compelling interest test. In The Matter of Marijuana Rescheduling, DEA Docket No. 86-22, September 6, 1988.

The First Report of the National Commission on Marihuana and Drug Abuse, at page 150 states, "marihuana use is not such a grave problem that individuals who smoke marihuana, and possess it for that purpose, should be subject to criminal procedures." See Public Law 91-513 - Oct. 27, 1970 [84 Stat. 1280-1281] Part F - Advisory Commission - Establishment of Commission on Marihuana and Drug Abuse - SEC. 601.  And see, H.R. Rep. No. 91-1444, October 10, 1970, 1970 USCCAN 4566, at pages 4578-1580 (explaining the uncertainty of Congress in placing marihuana in Schedule I of the CSA and the temporary nature of this placement while the Commission worked on its report). At page 56-57, the Commission wrote:

A large amount of research has been performed in man and animals regarding the immediate effect of marijuana on bodily processes. No conclusive evidence exist of any physical damage, disturbances of bodily processes or proven human fatalities attributable solely to even very high doses of marijuana. Recently, animal studies demonstrated a relatively large margin of safety between the psychoactive dose and the physical and behavioral toxic and lethal dose. Such studies seem to indicate that safe human study could be undertaken over a wide range of doses.


In 1972 the U.S. National Commission on Marijuana and Drug Abuse recommended that the possession of marijuana for personal use no longer be an offense. It also recommended that casual distribution of small amounts for no remuneration or insignificant remuneration not involving profit would no longer be an offense. The recommendation was endorsed by the American Medical Association, the American Bar Association, the American Association for Public Health, the National Education Association, and the National Counsel of Churches. The consideration of these facts is mandatory under the strict scrutiny of the compelling interest test.

Under the strict scrutiny required by UDV and the compelling interest test, the Court must consider the fact that the principle psychoactive ingredient in marijuana has been rescheduled twice because of its safety in medical use. In 1986, the DEA transferred the pharmaceutically pure psychoactive ingredient in marijuana in sesame oil encapsulated in soft gelatin capsules from Schedule I to Schedule II of the Federal Controlled Substances Act. 51 FR 17476, May 13, 1986 and in 1999, the DEA transferred the pharmaceutically pure psychoactive ingredient in marijuana in sesame oil encapsulated in soft gelatin capsules from Schedule II to Schedule III of the Federal Controlled Substances Act. 64 FR 35928, July 2, 1999  The consideration of this fact is now mandatory under the strict scrutiny of the compelling interest test.

Under the strict scrutiny required by UDV and the compelling interest test the Court must consider the fact that the Federal Government is currently supplying medical patients with marijuana under the federal "Compassionate Use Program" in the form of 300 rolled marijuana cigarettes per month. These are facts that must now be considered under the mandatory strict scrutiny of the compelling interest test.

In 2006 the Supreme Court ruled that states have the authority to set the standard for medical practice as defined by federal drug statutes. Gonzales v. Oregon, 126 S. Ct. 904; 163 L. Ed. 2d 748 (2006).

Eleven states have determined that marijuana has medical use. Patients are currently receiving marijuana from the federal government. All of these facts which come from the Government themselves, prove that the Defendant cannot injure anyone by using Marijuana as her Sacrament, because these facts prove that no one has ever been injured from using Marijuana and all of these facts must now be considered under the strict scrutiny of the compelling interest test. 

For example, President Nixon’s National Commission on Marihuana and Drug Abuse, authorized by the Controlled Substances Act itself, concluded in 1972 that, “There is little proven danger of physical or psychological harm from the experimental or intermittent use of natural preparations of cannabis,” and recommended that cannabis for personal use be decriminalized. Marihuana: A Signal of Misunderstanding Commissioned by President Richard M. Nixon, March 1972 (Emphasis added)  

[I]n order to induce death a marijuana smoker would have to consume 20,000 to 40,000 times as much marijuana as is contained in one marijuana cigarette. National Institute on Drug Abuse-supplied marijuana cigarettes weigh approximately .9 grams.  A smoker would theoretically have to consume nearly 1,500 pounds of marijuana within about fifteen minutes to induce a lethal response.  In The Matter of Marijuana Rescheduling Petition, DEA Docket 86-22, Sept. 6, 1988.

In 1999, the National Academy of Sciences issued its finding that, “Over the past forty years, marijuana has been accused of causing an array of anti-social effects including…provoking crime and violence…leading to heroin addiction…and destroying the American work ethic in young people. [These] beliefs have not been substantiated by scientific evidence.”  Marijuana and Medicine: Assessing the Science Base National Academy of Science, Institute of Medicine (IOM) (Emphasis added)    

(C) “to the increase in other crimes when controlled substances are abused…”

There is a large difference between using and abusing. The absolute truth is that alcohol, which is legal for purchase and consumption in the state of Alabama, is a major factor in most domestic disturbances, motor vehicle accidents, fights, murders, and other VIOLENT crimes. There is no proof whatsoever that religious use of alcohol causes an increase in crime and there is no proof whatsoever that cannabis use by this defendant would cause an increase in crime.  

(D) “including the increased risk of intoxicated drivers operating on the roadways of the State.”

In the matter of alcohol there is no question that even relatively small amounts can be fatal and or induce severe impairment of motor skills. This study examined drug presence in blood specimens from nearly 2,000 drivers killed in motor vehicle crashes. Alcohol was found in slightly more than half of the specimens, other drugs in about 18% of the specimens. In about two-thirds of the drug cases, alcohol (usually at high levels), was also present. Analysis of crash responsibility suggested that drugs other than alcohol are most likely to present a hazard when combined with alcohol or other drugs. The Incidence and Role of Drugs in Fatally Injured Drivers 1992, DOT HS 808 065  

[W]here volunteer subjects participated in several sessions in which they were dosed on alcohol, marijuana, or a placebo, then drove motor vehicles in various controlled on-road traffic situations (e.g., closed interstate highway). Dual-controlled vehicles were used, and a researcher was always along to take control if warranted. Marijuana was found to have a performance impairment effect equivalent to an alcohol blood alcohol concentration (BAC) level between .04 and .08 only in lane maintenance performance measures.  Marijuana and Actual Driving Performance 1993, DOT HS 808 078 

It is factual, then, for the prosecution to state with certainty: “Alcohol is the cause of countless social ills ranging from adverse health effects to the increase in other crimes when alcohol is abused including the increased risk of intoxicated drivers operating on the roadways of the State.”  

In addition to not being able to prove that cannabis use by anyone for any reason should be prohibited, the State has not been able to prove its allegation that religious cannabis use by this defendant causes these “countless social ills.”  

6.         The State again errs in stating that there are no exemptions to the prohibition of cannabis in Alabama law. The Alabama legislature, in fact, has recognized the potential therapeutic action of cannabis and the fact that exemptions would be required.

(d) The certifying boards may waive by rule the requirement for registration of certain manufacturers, distributors or dispensers if they find it consistent with the public health and safety. Ala. Code § 20-2-51

In 1979, the Alabama Legislature enacted the Controlled Substances Therapeutic Research Act. See Acts 1979, No. 79-472, p.870 (codified at Ala. Code §20-2-110 et seq.).  That Act established within the state Board of Medical Examiners a research program, pursuant to which an authorized practitioner could certify a chemotherapy or glaucoma patient for strictly supervised cannabis-based treatment…persons are exempt from prosecution in this state for possession, production, manufacture or delivery of cannabis” Ala. Code §20-2-114 (Emphasis added) 

Gonzales v. O Centro (2006), page eleven slip opinion: