Notes On Important Marijuana Cases
Title: Notes On Important Marijuana Cases
Sourced From: weedpress.wordpress.com/2021/03/23/notes-on-important-marijuana-cases/
Published Date: Tue, 23 Mar 2021 19:16:45 +0000
These are not my notes, and were sent by a colleague. Reposting here without permission, to help organize my notes a bit better.
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Olsen v. DEA, 878 F.2d 1458, 1459 (D.C. Cir. 1989)
Petitioner in this case seeks a religious-use exemption from federal laws proscribing marijuana. We hold that the first amendment’s free exercise of religion guarantee does not require the requested exemption, and that petitioner was not denied equal protection-establishment clause rights by the government’s refusal to accommodate his church’s sacramental use of marijuana.
Employment Division v. Smith, 494 U.S. 872, 881 (1990)
The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections
Employment Division v. Smith, 494 U.S. 872, 884 (1990)
where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of “religious hardship” without compelling reason. Bowen v. Roy, supra, at 708.
Olsen v. DEA, 878 F.2d 1458, 1461 (D.C. Cir. 1989)
Furthermore, we recognize that even if the DEA were not empowered or obliged to act, Olsen would be entitled to a judicial audience. Ultimately, the courts cannot escape the obligation to address his plea that the exemption he seeks is mandated by the first amendment’s religion clauses. See Peyote Way Church of God v. Smith , 742 F.2d 193 (5th Cir. 1984) (upholding church’s standing to seek a declaratory judgment that denying church access to peyote is unconstitutional). We are aided in this task of judicial review by the consideration given the matter, in the first instance, by the expert administrator.
In sum, for purposes of this case, we accept the position that Congress did not strip the DEA of authority to rule on the merits of Olsen’s petitions, [Footnote 3] and we turn to the questions whether the free exercise of religion clause or the equal protection principle (coupled with the establishment clause) commands the exemption Olsen seeks.
Footnote 3: But see Olsen v. DEA, 776 F.2d 267 (11th Cir. 1985), cert. denied , 475 U.S. 1030, 89 L. Ed. 2d 344, 106 S. Ct. 1236 (1986) (while the DEA is obliged to respond to all exemption petitions, religious exemption for marijuana use falls outside the scope of 21 U.S.C. § 811). Subsequent to this Eleventh Circuit decision, Olsen broadened beyond 21 U.S.C. § 811 the bases of his exemption claim. See Reply Brief of Court-Appointed Amicus Curiae at 7 n. 5.
Olsen v. DEA, 878 F.2d 1458, 1462 (D.C. Cir. 1989)
And “Olsen does not dispute the government’s compelling interest in controlling the distribution and drug-related use of marijuana.” Brief of Court-Appointed Amicus Curiae at 18.
Olsen v. DEA, 878 F.2d 1458, 1462 (D.C. Cir. 1989)
Olsen refers to his proposal for restrictive use, see supra pp. 4-5, and claims that this case is now differently contoured than earlier ones. Even if the government is not required to accommodate to the extent of allowing a broad religious exemption, he argues, it can and must accommodate to the time- and place-specific use he has proposed. Because the tenets of the Ethiopian Zion Coptic Church endorse marijuana use every day throughout the day, however, Olsen’s proposal for confined use would not be self-enforcing.
Olsen v. DEA, 878 F.2d 1458, 1462 (D.C. Cir. 1989)
Critically, Olsen’s proposal would require the government to make supplies of marijuana available to Olsen’s church on a regular basis. See Reply Brief of Court-Appointed Amicus Curiae at 7, 17.
[See the cases cited right after this where the state already had a system in place and there would be no additional burden on the state – Olsen wanted the federal pot farm in Mississippi to supply the marjuana.]
Olsen v. DEA, 878 F.2d 1458, 1464 (D.C. Cir. 1989)
True, for purposes of the exemption requested, Olsen narrowed the permission he sought to track the one accorded the Native American Church. See Memorandum of Court-Appointed Amicus Curiae in Support and on Behalf of Petitioner Carl E. Olsen at 29-30 (submitted to DEA on remand). But “narrow” use, concededly, is not his religion’s tradition.
Gonzales v. Raich, 545 U.S. 1, 15 (2005)
Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress’ commerce power. Brief for Respondents 22, 38. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents’ challenge is actually quite limited; they argue that the CSA’s categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress’ authority under the Commerce Clause.
Gonzales v. Raich, 545 U.S. 1, 20 (2005)
That the Secretary of Agriculture elected to exempt even smaller farms from regulation does not speak to his power to regulate all those whose aggregated production was significant, nor did that fact play any role in the Court’s analysis.
Gonzales v. Raich, 545 U.S. 1, 26 (2005)
The Court of Appeals was able to conclude otherwise only by isolating a “separate and distinct” class of activities that it held to be beyond the reach of federal power, defined as “the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law.” 352 F.3d at 1229. The court characterized this class as “different in kind from drug trafficking.” Id., at 1228. The differences between the members of a class so defined and the principal traffickers in Schedule I substances might be sufficient to justify a policy decision exempting the narrower class from the coverage of the CSA. The question, however, is whether Congress’ contrary policy judgment, i.e., its decision to include this narrower “class of activities” within the larger regulatory scheme, was constitutionally deficient. We have no difficulty concluding that Congress acted rationally in determining that none of the characteristics making up the purported class, whether viewed individually or in the aggregate, compelled an exemption from the CSA; rather, the subdivided class of activities defined by the Court [*27] of Appeals was an essential part of the larger regulatory scheme.
[Congress was aware of peyote and thought about including an exemption in the statute, but it was decided to do it by regulation – Congress could not have been aware that states would later authorize the use of marijuana]
Gonzales v. Raich, 545 U.S. 1, 28 (2005)
Accordingly, the mere fact that marijuana–like virtually every other controlled substance regulated by the CSA–is used for medicinal purposes cannot possibly serve to distinguish it from the core activities regulated by the CSA.
[state authorized use of marijuana is not limited to medical use, so the term “medical” is not a distinguishing factor]
Gonzales v. Raich, 545 U.S. 1, 28 n.37 (2005)
Respondents’ submission, if accepted, would place all homegrown medical substances beyond the reach of Congress’ regulatory jurisdiction.
[the exemption would be for “state authorized” use, not all homegrown medical substances – use of peyote is authorized by state laws, not by a church (although the state has delegated that authority to a church to determine who is exempt – there is no guidebook or published instructions on who can use peyote and how it should be used for religious purposes) – states have detailed laws and regulations explaining who can use marijuana and what it can and cannot be used for]
Gonzales v. Raich, 545 U.S. 1, 29 n.38 (2005)
California’s decision (made 34 years after the CSA was enacted) to impose “stric[t] controls” on the “cultivation and possession of marijuana for medical purposes,” post, at ____, 162 L. Ed. 2d, at 48 (Thomas, J., dissenting), cannot retroactively divest Congress of its authority under the Commerce Clause.
Gonzales v. Raich, 545 U.S. 1, 31 (2005)
The authority to grant permission whenever the doctor determines that a patient is afflicted with “any other illness for which marijuana provides relief,” Cal. Health & Safety Code Ann. § 11362.5(b)(1)(A) (West Supp. 2005), is broad enough to allow even the most scrupulous doctor to conclude that some recreational uses would be therapeutic.
Gonzales v. Raich, 545 U.S. 1, 32 n.41 (2005)
The state policy allows patients to possess up to eight ounces of dried marijuana, and to cultivate up to 6 mature or 12 immature plants. Cal. Health & Safety Code Ann. § 11362.77(a) (West Supp. 2005). However, the quantity limitations serve only as a floor. Based on a doctor’s recommendation, a patient can possess whatever quantity is necessary to satisfy his medical needs, and cities and counties are given carte blanche to establish more generous limits. Indeed, several cities and counties have done just that. For example, patients residing in the cities of Oakland and Santa Cruz and in the counties of Sonoma and Tehama are permitted to possess up to 3 pounds of processed marijuana. Reply Brief for United States 19 (citing Proposition 215 Enforcement Guidelines).
Gonzales v. Raich, 545 U.S. 1, 33 (2005)
Respondents also raise a substantive due process claim and seek to avail themselves of the medical necessity defense. These theories of relief were set forth in their complaint but were not reached by the Court of Appeals. We therefore do not address the question whether judicial relief is available to respondents on these alternative bases. We do note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs.
[missing is another avenue of relief: 21 C.F.R. 1307.03]
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