--- Begin Message ---To All Our Relations.Greetings in the name of the most high, Jah Rastafari, ever faithful, ever sure, Jah Rastafari.One Love Brethren.Dear Randy and other readers.We have been subjected to an act of sabatage. The author of the TELR has proven himself to be an agent of disinformation. He seeks to disuade us from claiming our religous exercise and establishment rights. I first contacted this agent in 1994. Since then he has recieved several of my court filings. Those filings focused on the compelling governmental interest issue and the least restrictive means of regulation issue. This agent continues to publish disinformation regarding these issues despite my pleas that he not do so. I offer a summary of the issues below. I will break the article from TELR with solid lines to offer my comments. BEWARE of this agent of disinformation.One Loverevtombrown___________________________________________________"Entheogens and the Free Exercise Clause
From the Entheogen Law ReporterThis article originally appeared in The Entheogen Law Reporter (Issue No. 4, Fall 1994), and is reproduced here with permission. (See last page of this document for rules on reproducing this document.)
Disclaimer
The Entheogen Law Reporter and the Council on Spiritual Practices are not engaged in rendering legal or other professional advice and assume no responsibility for the statements advanced in the following document. The information in the document is subject to change without notice and is not intended to be, nor should it be considered, a substitute for individualized legal advice rendered by a competent attorney. The Entheogen Law Reporter (POB 73481, Davis, CA 95617) should be consulted for the latest information relevant to this document."
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Notice that the agent makes the disclaimer above. This gives him a way out of legal responsability for the published opinions.
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"For more information about The Entheogen Law Reporter, please see the last page of this document.
Entheogens & the Free Exercise Clause:
Practical Legal Aspects for Individuals
Copyright 1994 The Entheogen Law Reporter
"The government's war on drugs has become a wildfire that threatens to consume those fundamental rights of the individual deliberately enshrined in our Constitution. Ironically, as we celebrate the 200th anniversary of the Bill of Rights, the tattered Fourth Amendment right to be free from unreasonable searches and seizures and now the frail Fifth Amendment right against self-incrimination or deprivation of liberty without due process have fallen as casualties in this war on drugs. It was naive of this Court to hope that this erosion of constitutional protections would stop at the Fourth and Fifth Amendments. But today, the war targets one of the most deeply held fundamental rights � the First Amendment right to freely exercise one's religion."
- Chief Judge Burciaga, United States v. Boyll (D. N.M. 1991) 774 F.Supp. 1333, 1334.
The free exercise clause of the First Amendment of the United States Constitution mandates "Congress shall make no law...prohibiting the free exercise" of religion. This article will survey the factors which have guided courts in determining whether or not anti-drug laws have violated a person's right to freely exercise his religious beliefs. By presenting the factors that courts have deemed important, it is hoped that persons seeking First Amendment protection for their religious use of entheogens will be better able to tailor their practices to increase the chances that protection will be granted by a court in the event that such person is ever arrested for unauthorized possession of a controlled substance.
Before beginning such a survey, it cannot go unnoted that free-exercise jurisprudence in general is a jumbled mess of changing standards, faulty reasoning, and, perhaps most frustrating as of late, a propensity to completely abandon the role of judge and entirely defer to the legislature. When entheogens are the subject of a case, jurisprudential dissonance amplifies to often excruciating levels. While there is much to criticize in the judicial decisions involving the religious use of entheogens, the leveling of such criticism will not be focus of this article. Instead, this article will present a distillation of the various factors that the courts have deemed relevant when deciding whether or not to grant First Amendment protection to a religious user of entheogens.
Just as a tax lawyer would review with clients the various factors relevant to a judicial determination of legal versus illegal tax deductions for the purpose of assisting his or her client in arranging business purchases and ultimately reducing or eliminating tax liability, this article will examine the factors relevant to a judicial determination of whether or not a particular entheogen based religious practice is or is not protected free exercise of religion.
The survey must begin with an overview of the recent bifurcation in free-exercise jurisprudence. Prior to April 17, 1990, when the United States Supreme Court decided Employment Div., Dept. Of Human Resources v. Smith (1990) 494 U.S. 872 [108 L.Ed.2d 876, 110 S.Ct. 1595] (Smith), free exercise issues were resolved by application of the legal standard known as "strict scrutiny," and specifically analyzed by employing the "compelling state interest" (CSI) test. In a nutshell, the CSI test is an ends-oriented balancing test weighing: (A) a law's burden on an individual's religious practices; against (B) the state's interest in enacting and enforcing the law without exception. A law which substantially burdens a person's sincere religious practices, would be declared unconstitutional if the court determined that laws burden on religion was not justified by a compelling state interest. In slightly more detail, the CSI analysis is divided into three component stages: (1) Does the challenged law substantially burden the person's free exercise of religion? (2) Is the law necessary to accomplish a compelling state interest? (3) Will accommodating the person's religious practice unduly interfere with accomplishing the compelling state interest? (U.S. v Lee (1982) 455 U.S. 252, 256-259.)
In the Smith decision the Court made a sudden and radical departure from the CSI test, holding that Oregon's across-the-board prohibition against possession of peyote did not violate the free exercise rights of two members of the Native American Church because the Oregon law proscribing the possession of peyote was not specifically aimed at burdening religious practice. In other words, the Court announced a new test entirely at odds with the historically employed ends-oriented strict scrutiny analysis; a neutral and generally applicable criminal law does not implicate the First Amendment's free exercise clause. (Smith, 101 S.Ct at p. 1603.) In other words, under Smith, all anti-drug laws pass free exercise muster because they are not specifically aimed at prohibiting or infringing on religious practices. Therefore, under the neutrality test enunciated in Smith, an anti-drug law's incidental burden on a person's religious practice does not raise a viable free exercise issue.
The Supreme Court endorsed the neutrality test again in 1993, when Justice Kennedy, writing for the majority, reiterated : "a law that is neutral and of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice." (Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) ___U.S.___[113 S.Ct 2217, 2226, 124 L.Ed.2d 472, on remand 2 F.3d 369 (11th Cir. 1993.) [striking down Hialeah, Florida's ordinance prohibiting animal sacrifice after finding that the ordinance was not neutral but rather was enacted for the specific purpose of discouraging the Santeria religion from establishing itself in Hialeah, Florida.] In contrast to the ends-oriented CSI test, the neutrality test, is intent oriented, and looks at the legislature's purpose in enacting the law, rather than the legislation's actual impact on religious practice. With the enunciation of the neutrality test in Smith, any hope that an entheogen based religious practice would find protection under the free exercise clause was completely squelched.
Fortunately, just as things seemed to reach their darkest moment, President Clinton, on November 16, 1993, signed into law the Religious Freedom Restoration Act of 1993 (RFRA). (42 U.S.C. 2000bb, PL 103-141, 107 Stat.1488.) The express purpose of the RFRA was to restore the compelling state interest test, after "the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion." (42 U.S.C. 2000bb, subd. (a)(4).)
The RFRA explicitly states:
(a) In General
Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception
Government may substantially burden a person's exercise 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 governmental interest.
(42 U.S.C. sec. 2000bb - 1)
The legal effect of the RFRA is unclear. Some scholars argue that the legislation does not supersede a Supreme Court decision, which can only be reversed or overruled by a constitutional amendment or a subsequent decision by the Supreme Court explicitly overruling its earlier decision.1 If Smith remains good law, it is practically impossible for entheogen users to obtain relief from the anti-drug laws on free exercise grounds.2 On the other hand, if the RFRA truly restores the viability of the compelling state interest test, at least some hope remains for religiously motivated entheogen users. Since this discussion is otherwise moot, this article will assume the RFRA is constitutional and that the CSI test has been restored as the standard for determining whether a law violates a person's free exercise rights."
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Notice that the agent has changed the term from compelling governmental interest to compelling state interest. By changing the terms, he has changed the definitions. Check a law dictionary to see the difference between "state" and "governmental" for youself. These agents always begin the propaganda by changing the terms in order to set up a result that is not intended by the lawmaker.
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"Because the CSI test was in force for over 30 years prior to the Smith decision, a considerable amount of information can be extracted from the previously published cases examining the free exercise claims of entheogen users. In fact, there are well over seventy published decisions in which courts have directly addressed the free exercise rights of religious users of controlled substances, employing the CSI test to reach their decisions.3 In the overwhelming majority of these cases, the courts have upheld the constitutionality of the anti-drug law and/or refused to grant the religious user an exemption, after finding that the complete prohibition of drug use was necessary to further the government's compelling interest in preventing drug abuse and maintaining the social welfare. (See for example, Leary v. United States, 383 F.2d 851, 860-861 (5th Cir. 1967) rehearing denied, 392 F.2d 220, reversed on other grounds, 89 S.Ct. 1532, 392 U.S. 6, 23 L.Ed.2d 57 (1968) ["It would be difficult to imagine the harm which would result if the criminal statutes against marijuana 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-marijuana laws would be meaningless, and enforcement impossible."]; United States v. Kuch, 288 F.Supp. 439, 455 (1968) ["If individual religious conviction permits one to act contrary to civic duty, public health and the criminal laws of the land, then the right to be let alone in one's belief with all the spiritual peace it guarantees would be destroyed in the resulting breakdown of society."]; Randall v. Wyrick, 441 F.Supp. 312, 316 (1977) ["Missouri's marijuana laws are still based on reason. [Footnote omitted.] They are directed against a continuing social and health problem and the purposes of the statute cannot be accomplished without continued full enforcement."]; State v. Bullard, 148 S.E.2d 565, 568-569 (1966) ["It is true that [the first] amendment permits a citizen complete freedom of religion. He may belong to any church or to no church and may believe whatever he will, however fantastic, illogical or unreasonable, but nowhere does it authorize him in the exercise of his religion to commit acts which constitute threats to the public safety, morals, peace and order."].)"
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The agent correctly refers to Dr. Tim Learys case as the first religous drug use case to go to the Supreme Court. However the agent deliberately misstates the courts decision making process and how that relates to past and current religous exercise case precedents and the Religous Freedom Restoration Act of 1993 (42 U.S.C. sec. 2000bb et al).
Prior to RFRA, since 1879 in the Reynolds case, the courts had required the government to justify any restriction on religous exercise by proving that the religous exercise is a threat to public health and safety in fact. The courts usually sided with the governments arguments that the exercise was in fact a threat to public health and safety. But, in doing so, the court established that the government must submit facts of the threat to public health and safety and that a fact finder at trial would determine the question of fact. Usually that fact finder is the jury.
In Leary, the fifth circuit ruled that Leary cannot rely on that fact based test for the threat to public health and safety. Instead the court ruled that the will of the legislature (in this case that was Congress) would not be questioned on the critical issue of "the contraversal question" of the relative threat to public health and safety posed by Leary's religous use of marajuana. The court admitted that there was a question of fact - "the contraversal question" - and then the court ruled that the fact based test for an answer to "the contraversal question" would not be submitted to the fact finder (the jury) at trial.
In Leary, the court refused to allow the jury to hear any evidence about the physical reactions of a person using marajuana. This is critical because a threat to public health and safety sufficient to justify a compelling governmental interest can only be proven by first showing that the individual who is in religous exercise is somehow impaired or poisened by the religous exercise. Once having proven that fact, the government must then show that the impaired or poisened individual then goes on to somehow impair or poisen or threaten members of the public who are not willing and knowing participants in the religous exercise.
For example, the Catholic Church distributes wine on Sundays to minors without their parents permission in dry countys with a liscense. In doing so, the priest has violated many state and federal laws. In order to stop this, the government must first show that distributing a controlled substance like wine threatens public health and safety. The first step at trial will be to introduce a Doctor or chemist to testify that the alcohol in the wine is a poisen that impairs and endangers the person who uses the wine. The second step will be to introduce a cop who would testify that the impaired child could go to the parking lot, take a car and drive drunk. Now we have both a factual proof of the impairment caused by the religous exercise and a factual proof of the threat that the impaired individual poses to public health and safety. The government has now offered proof to the jury of the facts necessary for them to find that there is a compelling governmental interest (cgi - hereafter) in prohibiting the Catholic Church from distributing wine to children. We can also assume that the prosecutor would introduce evidence about all the child molestation that priests have committed and would show that the impairment of the alter boy who uses wine would make them more suscepptable to such sexual abuse.
Having offered proof of the cgi, the defendent priest is then given the opportunity to show facts to the jury to rebut and contradict the governments offer of proof. It is the jury that would decide if the thimble of wine given at Mass is sufficient to cause impairment of a degree to justify a finding of cgi.
Obviously the Leary court could not allow the jury to decide the fact question of the threat to public health and safety caused by Leary using marajuana. The government could not even begin that fact proof with evidence of marajuana's toxicity. Even as early as 1967 in Leary's case, the overwelming evidence was that marajuana is non-toxic. That evidence is as old as the evidence of chemists and doctors of the 1800's who prescribed marajuana extract and the fact that the U.S. Government's on Pharmakopia stated that marajuana is non-toxic. Without the fact proof that marajuana is toxic to the individual that uses it, the government cannot then prove that the intoxicated individual will cause harm to a member of the general public. So the court chose to overturn the published precedents made since 1879 in Reynolds, and denied Leary the opportunity to make the fact based test to the jury on his marajuana use.
Since the Leary case, all subsequent court rulings (like those cited by the agent) have followed the Leary decision as controlling case law and have refused to allow the fact based analysis of any religous use of a drug for cgi.
In addition, once the government has offered a factual proof of the threat to public health and safety posed by the religous exercise, the government must then make the factual proof that there is no less restrictive means (lrm hereafter) of regulating the religous exercise then the law under which the religous exerciser is being prosecuted. Again, to take the example of the Catholic priest, the government must prove that the actual use of the wine will cause a threat to public health and safety and that there is no less restrictive way to regulate that threat then to prohibit the chruch from distributing wine to anyone - total prohibition. Obviously, if someone got caught drunk driving and plead religous exercise as justification, the court would rule that religous exercise is not sufficient to justify drunk driving. The court would not then be able to prohibit the church from distributing wine because it is less restrictive to not allow a religous defense to drunk driving then to take the wine away from the church.
But, the court in Leary specifically refuses to factually determine whether there is any lrm. The court says that it is difficult to imagine the harm that would be caused by allowing Leary a religous exemption. It is not for the court to imagine, it is for the court to take evidence and reach findings of fact. This agent knows better then I that the Leary court refused to engage in either the cgi or lrm tests as defined in 1967 and since in every single published case. But if the agent admits that, then the Bar Association looses billions every year.
So, this agent has deliberately misidentified the terms of RFRA. This agent has then deliberately and knowingly misreported the case precedents that apply to RFRA and what their effect will be on them. The proof of my argument here is that in U.S. v Bauer, 75 F.3d., 1366 (9th Cir. 1996) the court made exactly the ruling I have described above - to wit that the government must make the factual proof of cgi and lrm. The government has refused to appeal Bauer to the Supreme Court because they will lose and set a nationwide precedent. This year Ras Makhana from Guam made the same argument to the 9th circuit in his case on November 5, 2001. The Guamian district and supreme courts ruled that Bauer is valid and they followed Bauer in regards to the cgi and lrm tests. The government has refused to attempt the factual proofs under RFRA in either Ras Makhana's or the Bauer case. We are now awaiting the 9th circuit ruling in the Ras's case and hoping that the government will appeal an unfavorable decision to the Supreme Court for a definitive ruling that applies to the whole country.
For our purposes here, we have definate proof that this agent at TELR has been knowingly lying about RFRA and the religous exercise case precedents because the Bauer decision in 1996 completely blew away his propaganda then and he has not changed his position since.
Please be aware that this agent is a member of the Bar Association. As such he is a member of a union which reaps billions every year from marajuana prosecutions alone. In 2000 here in Arkansas we had 8,000 prosecutions for marajuana. At $5,000 appiece to their defense attorneys alone that represents a $40,000,000 payroll. Would you change the laws and eliminate a $40,000,000 million payroll every year for the other members of your union? And if you would do that, would any other member of the union - judges and prosecutors all - ever again deal with you responsable manner? Hell no!!! If you were that attorney you would never win another case, you would be shot down by bullshit rulings from the judge that you would have to appeal and then hope that other judges (members of the same union) would tell the truth about your arguments where there is no penalty for them to lie and bury your client in prison for whatever.
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"Cases such as those just cited make clear that courts have an overwhelming fear that granting a religious exemption to the anti-drug laws will effectively result in the complete undoing of the anti-drug laws. Therefore, the courts traditionally have viewed wholesale drug prohibition as the only effective way of supporting the compelling state interest of maintaining public health and welfare. Awareness of this fear, and taking all possible steps to alleviate it, is essential when formulating a plan for religious use of entheogens.
With a background now in place, we will turn to specifically examining the CSI test as it relates to persons seeking legal protection for the religiously motivated use of entheogens. The first two prongs of the CSI analysis are rather straight forward in both theory and application. Under the first prong, a court will examine whether or not the anti-drug law substantially burdens an entheogen user's right to freely exercise his or her religion. Obviously, to the extent that the state and federal anti-drug laws outlaw possession of entheogenic substances that are sincerely used as sacraments or to facilitate communion with the Divine Absolute, the anti-drug laws directly burden entheogen based religions. For all practical purposes, the anti-drug laws make all shamanic religions illegal by declaring possession of the essential tools/sacraments a crime.
A survey of the case-law reveals that two sub-issues come into play when courts analyze the first prong of the CSI test. In addition to the fundamental question of whether or not the anti-drug law burdens the person's religion, courts have examined: (a) whether or not the person is sincere in claiming he or she uses entheogens for religious purposes; and (b) whether or not use of the entheogen is indispensable or central to the person's religion. The burden of proving both sub-issues falls on the person claiming the religious protection.
With respect to the sincerity sub-issue, the courts have expressed a concern with the prospect of large numbers of people attempting to side-step the anti-drug laws by bogus assertions that their use of an illegal substance was religiously motivated. In the "experimental law" category, sincere religious users of entheogens should consider drafting personal declarations articulating the religious motivation underlying their ingestion of controlled substances. (See example Declaration at end of this article.) Such a document should be executed as soon as possible so that in the event the declarant is subsequently arrested some evidence will exist showing that his or her religious claim is sincere rather than a post hoc justification or legal maneuver later concocted to avoid conviction for illegal drug possession. This document should be kept in a secure location such as a safe deposit box and only disclosed to one's defense attorney in the event of arrest and if one is determined to raise a religious defense as opposed to a defense of reasonable doubt.
With respect to the centrality sub-issue, some courts distinguish integral use of an entheogen from "auxiliary" use. For example in one marijuana sacrament case, a California court refused to find First Amendment protection for a defendant's use of marijuana not as a sacrament, but rather as an auxiliary method for achieving religious insight. (People v. Collins (1969) 273 Cal.App.3d 486 ["Defendant testified that he used marijuana in order to extend and intensify his ability to engage in meditative communication with the Supreme Being, to attain spiritual peace through union with God the Father and to search out the ultimate meaning of life and nature.... [T]he law [proscribing possession of marijuana] does not bar him from practices indispensable to the pursuit of his faith."].)
The centrality factor has taken on less importance in recent years, but it is still tacitly examined by courts reviewing a law's burden on religious practice. Recalling that the CSI test is a balancing test, a person seeking protection for his or her entheogen-based religious practice would do well to concentrate on maximizing those factors that evidence the anti-drug law's burden on his or her religious practice. Therefore, a person seeking First Amendment protection for religious entheogen use, should consider making clear in their personal declaration that entheogen use is the "theological heart" of their religion; that entheogen use is a central and necessary component to his or her sincerely held religious beliefs. (See People v. Mullins (1975) 50 Cal.App.3d 61, 123 Cal.Rptr. 201.)
Once a person has satisfied the first prong of the CSI analysis, the burden of proof shifts to the government to establish the second prong; namely, to show that the burden on religion is justified by a compelling state interest. As touched on earlier, the government will predictably argue that the anti-drug laws are necessary to maintain the health and well-being of individuals and of society in general. It is fruitless for a religiously motivated entheogen user to attack the government's general point. Rather, all attention should be focused on the third prong of the analysis � showing that accommodating the person's religious use of entheogens will not unduly interfere with the government's compelling interest in maintaining individual and social health and well being.
Simply put, entheogen users seeking religious protection should strive to position their religious practices such that the state's anti-drug laws are shown to be unnecessarily broad; that complete and absolute prohibition is not the least restrictive means of accomplishing the state's objective. Under the CSI test, a law that burdens religion must be carefully tailored to the interest which the state asserts motivates the law. In other words, the religious practitioner will want to show that his or her religious use of entheogens does not interfere with the government's interest in prohibiting drug use in general or with the government's ability to enforce the general laws.
Here the courts have examined several factors. Courts, will look at the particular substance claimed by the practitioner as his sacrament or vehicle for the Divine Absolute. For example, in Olsen v. Drug Enforcement Administration (D.C. Cir. 1989) 878 F.2d 1458,5 Carl Olsen, a priest in the Ethiopian Zion Coptic Church, petitioned the DEA for an exemption to the federal Controlled Substances Act to the extent that it prohibited possession of the Church's principal sacrament, marijuana. The DEA refused to grant the requested exemption, and the United States Court of Appeals for the District of Colombia Circuit upheld the DEA's refusal. The court distinguished the sacramental use of marijuana from the Native American Church's sacramental use of peyote by calling attention to what it perceived as "the immensity of the marijuana control problem in the United States." In other words, the court justified the peyote exemption for the NAC but the denial of a similar exemption for religious marijuana users, by pointing to the vastly different magnitudes of illegal marijuana use versus illegal peyote use. The court was troubled by the fact that over fifteen million pounds of marijuana were seized by the DEA from 1980 - 1987, whereas only about 19 pounds of peyote were seized over that same time period. (Olsen, at p. 1467.) This distinction is clearly of use to religious users of relatively arcane entheogens such as ayahuasca and even psilocybin containing mushrooms, since relatively few governmental seizures of these substances occur each year.
As a practical matter, a court will be more inclined to grant religious protection to a person utilizing a single entheogen rather than a multitude of entheogens. In fact, every case finding in favor of religious use of entheogens has involved a person or church employing a single entheogenic sacrament � namely, peyote.
Some courts have refused to grant religious protection for fear that the entheogen might make its way outside the confines of the religious ceremony. To address this fear, entheogen users should strongly consider devising a method for strictly controlling the acquisition, storage and access to their entheogen. The aim is to prevent the entheogen's use by someone other than the practitioner outside the context of a religious ceremony. To complement the strict control program, the declaration should include a statement that the declarant considers it sacrilegious to use of the entheogen outside the confines of a religious ceremony. This documents the person's recognition of the state's interest in generally prohibiting such substances and reinforces the person's statement that use of the entheogen occurs only during a religious ceremony. (See generally, Olsen, at p. 1462.)
Finally, it goes without saying that preparation of a personal declaration is only the first step in attempting to set the foundation for a religious defense in the event of a future criminal prosecution. Assuming the declaration is admitted into evidence,6 rest assured that the court and jury will carefully scrutinize whether or not the person's actual conduct conformed to the statements contained in the declaration. Actions speak louder than words."_________________________________________
Again my Brethren, this agent mixes truth with lies to confuse us. I have not disembelled all the lies he tells above, just the cgi/lrm lies. Check out the case precedent for yourself. The Bauer decision completely blows this guy out of the water. We have been placing our lives in the hands of corruption up to now. It is time to stand like human beings and end this EVIL in our lives.
Hate the sin, Love the man.
I leave you in,
One Love revtombrown, Rev. Tom Brown, First Church of the Magi, P.O.Box 2827, Fayetteville, Arkansas; 72702; (479) 582-4138
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