DC Federal District Court
1:20-cv-00906
VAN-KUSH
v.
DRUG ENFORCEMENT ADMINISTRATION
The Cantwell case is considered a Landmark because it established the Incorporation of the 1st Amendment into the States, meaning that Federal Religious Rights applied to State Governments, Cantwell v. Connecticut, 310 U.S. 296 (1940). But the Cantwell case is an Attainder Case, stating that Religious Organizations do not require Licensing if the Ability does exist to perform an Action under License. For example Marrying a Couple, which a Judge, JP, or other Officiant can perform, but so can a Minister; Why? Because Marriage started within Religion. Religion at one point was the State prior to Secular Enlightenment Government. The Religious Freedom Restoration Act was made after Religious Peyote use was ruled by the Supreme Court to be a fireable offense by a Private Corporation, the Law was in favor of the Religious Peyote use from Government intrusion, keeping in tact Private Contract Law, Pub. L. 103–141, § 6, Nov. 16, 1993, 107 Stat. 1489; Pub. L. 106–274, § 7(b), Sept. 22, 2000, 114 Stat. 806. "The Roman Catholic Church has been recognized as possessing legal personality by the Treaty of Paris with Spain of 1898, and its property rights solemnly safeguarded." '- Ponce v. Roman Catholic Church, 210 U.S. 296 (1908); 42 U.S. Code§ 2000cc: Protection of land use as religious exercise
(3) Exclusions and limits
No government shall impose or implement a land use regulation that—
(A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.
Religious organizations may, if needed, issue Edicts, or form Conferences and conduct votes, and Tribunals, and Define things like Saints, or Holidays. An example in the United States is the Presbetarian Church, who schismed over the decision, as a larger Conference of Churches, to accept female Pastors. "All who unite themselves to such a body [the general church] do so with an implied consent to [its] government, and are bound to submit to it. But it would be a vain consent, and would lead to the total subversion of such religious bodies, if anyone aggrieved by one of their decisions could appeal to the secular courts and have them [sic] reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for." -Presbyterian Church v. Hull Church, 393 U.S. 440 (1969)
Another example is the
Letter “Iuvenescit Ecclesia” to the Bishops of the Catholic Church Regarding the Relationship Between Hierarchical and Charismatic Gifts in the Life and the
Mission of the Church, The Sovereign Pontiff Francis, in the Audience granted to the undersigned Cardinal Prefect on 14 March 2016, approved the present Letter, adopted in the Plenary Session of this Congregation, and ordered its publication. I have attached this document to this Brief, it is an Order to acknowledge speaking in Tongues, Healing by Touch, and other Gifts or "Charisms" coming by way of God. This all began in the mid-1900s with Pentacostal Churches, which were nearly Spiritualist in nature and believed in Baptism by the Holy Spirit. The Catholic Church rejected this as "Biblical not a modern phenomenon", and there was a Catholic Schism which largely created the modern Evangelical Movement. Judge Amy Coney Barrett, Supreme Court shortlister for the Trump admin, is a member of the "People of Praise" a Charismatic Catholic NGO with many prominent members from Notre Dame and other Schools and Government positions, which existed far before the 2016 Vatican Order.
And Religion is not separated from State and below State, it is separated from State and acts separate from State. "The fundamental theory of liberty upon which all governments of this Union rest excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only." -Pierce v. Society of Sisters, 268 U.S. 510 (1925); 42 U.S. Code§ 2000cc–5.Definitions: (7) Religious exercise
In general
- The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
This concept is fairly well articulated here by the Colorado Court: "This rationale requires that a distinction be made between charitable and religious exemptions; a religious group does not have as a fundamental purpose the providing of services which the state would otherwise have to provide since the state is constitutionally prohibited from such religious involvement. See Note, 29 Rocky Mtn.L.Rev. 143 (1956-57)." -General Conference, Church of God v. Carper, 557 P.2d 832 (1976). And we are now in this day in age, now in a place where Governments themselves feel comfortable regularly becoming the advocate against Religion "Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires." -Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018)
With Marijuana and Religion, Government Hostility is not a new phenomenon. H. J. Anslinger often connected Marijuana to the Hashashins who were a Persian Islamic sect from where the word "Assassin" is originally derived. He also connected it to Mexicans like myself, Black Culture and Jazz; yet now as State and Federal legalization exists in various forms, no one wants to acknowledge the Cultural Expression of Religious Marijuana use that has existed since the Indus Valley Civilization in the Stone Age and likely earlier than that. It is currently expressed in my own Shaivism, in a well known American born Christian sect from Jamaica called Rastafarianism, and a number of American born Religions over the past century.
"Mr. Chairman, my name is H. J. Anslinger; I am Commissioner of Narcotics in the Bureau of Narcotics, in the Treasury Department.
Mr. Chairman and distinguished members of the Ways and Means Committee, this traffic in marihuana is increasing to such an extent that it has come to the be cause for the greatest national concern.
This drug is as old as civilization itself. Homer wrote about, as a drug that made me forget their homes, and that turned them into swine. In Persia, a thousand years before Christ, there was a religious and military order founded which was called the Assassins and they derived their name from the drug called hashish which is now known in this country as marihuana. They were noted for their acts of cruelty, and the word "assassin" very aptly describes the drug.
The plant from which the drugs comes is a hardy annual, growing from 3 to 16 feet in height.
Marihuana is the same as Indian hemp, hashish. It is sometimes cultivated in backyards. Over here in Maryland some of it has been found, and last fall we discovered three acres of it in the Southwest.
As I say, marihuana is the same as Indian hemp, and is sometimes found as a residual weed, and sometimes as the result of a dissemination of birdseed. It is known as cannabin, cannabis Americana, or Cannabis Sativa. Marihuana is the Mexican term for cannabis indica. We seem to have adopted the Mexican terminology, and we call it marihuana, which means good feeling. In the underworld it is referred to by such colorful, colloquial names as reefer, muggles, Indian hay, hot hay, and weed. It is known in various countries by a variety of names." -STATEMENT OF H. J. ANSLINGER,
COMMISSIONER OF NARCOTICS, BUREAU OF NARCOTICS, DEPARTMENT OF THE TREASURY (1937)
"This unusual criminal case delves into the new realm of psychedelic experience, and into mysticism, religion and its free exercise. The principal issue we must decide is whether the conviction of appellant for violations of federal criminal statutes relating to marihuana-- a psychedelic drug which the defendant claims he uses as a religious sacramental aid-- contravenes the accused's First Amendment right to the free exercise of his religion. There are, however, other important questions, some of them constitutional also, which we will discuss fully
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In 1960, while visiting Mexico, he testified that he had 'the most intense religious experience' he had ever had in his life as the result of having eaten a number of the 'Sacred Mushrooms' of Mexico. The incident changed his life. Since that time he has written five books and thirty-eight articles pertaining to religious and scientific use of psychedelic drugs, and he has devoted his life to attempting to understand the religious experience and how it can be applied to help others. He said that he formed a religious research group after returning to Harvard University, and with the help of Aldous Huxley, he experimented with certain psychedelic drugs. In 1962 he studied Hinduism and after a year became a member of a Hindu sect. In 1963 he left Harvard, performed further experimental work in Mexico, and later established a center and workshop for religious and scientific research in Millbrook, New York which center is now his home. The building also serves as a place for religious meditation and spiritual retreat. Rooms in the house contain shrines devoted to Hindu, Buddhist and Christian ways of finding God, as well as religious pictures and statues. Dr. Leary has traveled extensively through Asia in pursuit of his religious endeavors and has studied Buddhism and Hinduism with several religious teachers and monks. While studying in India with Sri Asoke Fukir, a religious leader, Dr. Leary participated in religious rituals in which marihuana was used. He was converted to Hinduism, and is now a member of the Brahmakrishna sect in Massachusetts.
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He said that marihuana plays a very important part in the rituals of the Hindu sect conducted by Sri Asoke Fukir in India. The Brahmakrishna sect in the United States of which he and Dr. Leary are members is a highly established authority sect in India, recognized throughout India by all Hindus. He admitted that he was partially able to achieve and practice his religious beliefs in the Hindu sect without the use of marihuana. He does not use marihuana in the United States because it is unavailable; he is forced to use other psychedelic drugs in conjunction with meditation and prayer.
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Dr. Ralph Metzner, a psychopharmacologist who received his Master's degree from Oxford and Ph. D. in Psychology from Harvard, testified on behalf of appellant. He co-authored with Dr. Leary the book 'Psychedelic Experience' as well as several articles including 'Reducing Criminal Behavior' by the use of the psychedelic drug psilocybin (the extract of the sacred mushroom). The word 'psychedelic' refers to a class of drugs, which includes LSD, mescaline, marihuana, among others, whose primary effect is to expand consciousness, heighten intellectual activity and sensory awareness. In India he was initiated into the same Hindu sect of which Dr. Leary is a member. He participated with Dr. Leary in several scientific experiments under the auspices of Harvard University. He also assisted Dr. Leary in conducting seminars, giving lectures, writing books and giving training courses in consciousness expansion without drugs. He corroborated Dr. Leary's testimony concerning the religious nature and character of the Millbrook center in New York.
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Religious freedom, guaranteed by the Constitution, must be weighed with the public interest and the broad power to legislate vested in Congress by the Constitution.9 Thus the First Amendment 'embraces two concepts,-- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.' Cantwell v. State of Connecticut, 310 U.S. 296, at 303, 304, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940). The freedom to act is conditional and relative and Congress may prescribe and enforce certain conditions to control conduct which may be contrary to a person's religious beliefs in the interest of the public welfare and protection of society. See the Supreme Court's decisions in the anti-bigamy cases, Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878); Davis v. Beason, 133 U.S. 333, 10 S. Ct. 299, 33 L. Ed. 637 (1890), and the Sunday-closing-law cases, McGowan v. State of Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Two Guys From Harrison-Allentown v. McGinley, 366 U.S. 582, 81 S. Ct. 1135, 6 L. Ed. 2d 551 (1961); Braunfeld v. Brown, 366 U.S. 599, 81 S. Ct. 1144, 6 L. Ed. 2d 563 (1961); Gallagher v. Crown Kosher Super Mkt. of Mass., 366 U.S. 617, 81 S. Ct. 1122, 6 L. Ed. 2d 536 (1961).
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Our concern is with the laws of the United States, which appellant admittedly, knowingly and purposely violated because they conflicted with his personal religious beliefs and practices. Appellant has attempted to demonstrate that the experience he finds through the use of marihuana is the essence of his religion. We do not inquire into the truth or verity of appellant's religious beliefs-- to do so would be violative of the Free Exercise Clause of the First Amendment. United States v. Ballard, 322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148 (1944). But appellant's religious creed and the sincerity of his beliefs are not at issue here. The district judge properly refused an instruction to the jury that they should acquit the defendant if they found his religious practices were in good faith.
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Appellant argues that the religious use of peyote, a psychedelic hallucinogen, by Indians who are members of the Native American Church has been constitutionally protected by the Supreme Court of California in People v. Woody, 61 Cal. 2d 716, 40 Cal. Rptr. 69, 394 P.2d 813 (1964). He refers also to the California Supreme Court's decision in In re Grady, 61 Cal. 2d 887, 39 Cal. Rptr. 912, 394 P.2d 728 (1964), decided the same day as Woody, in which conviction of a 'self-styled peyote preacher' for unlawful possession of narcotics, namely, peyote, was annulled and a new trial granted in order that the defendant might have an opportunity to prove that his use of peyote was in connection with an honest and bona fide practice of a religious belief. By parity of reasoning he contends that marihuana, another psychedelic drug, is entitled to the same constitutional protection as peyote. With due deference to the California Supreme Court, we are of course not bound by its decisions. However, we note an essential difference between Woody and the instant matter in that peyote in the Woody case played 'a central role in the ceremony and practice of the Native American Church, a religious organization of Indians,' and that the 'ceremony marked by the sacramental use of peyote, composes the cornerstone of the peyote religion.' Grady was apparently the spiritual leader of a group of individuals and provided peyote for the group which he said was for religious purposes." -Timothy Leary v. United States, 383 F.2d 851 (5th Cir. 1967)
I filed Dec 11th.