Appeal from pharmacy board’s refusal to consider religious exemption

On August 15, 2018, my attorney filed an appeal from the pharmacy board’s refusal to consider a religious exemption to the schedules of controlled substances for the sacramental use of cannabis by members of the Rastafari faith.  Olsen v. Board of Pharmacy, Iowa District Court, Polk County, No. CVCV056841.

The executive director unilaterally denied the petition on July 16, 2018, arguing that the board has no authority to consider religious exemptions.  The director’s unilateral decision runs contrary to the fact the Iowa schedules include a religious exemption (Iowa Code §§ 124.204(4)(p) and 124.204(8))) for the sacramental use of peyote by the Native American Church and the board has been given the duty to recommend changes to the schedules.  See Iowa Code § 124.201 (“Duty to recommend changes in schedules”).  The board’s federal counter-part, the Drug Enforcement Administration (DEA), has guidelines on how to apply for religious exemptions to the federal controlled substances act (21 U.S.C. §§ 801 et seq.), so it would violate both the state and federal constitutions if the state scheduling did not have a similar process (due process) for doing the same thing.  And, the DEA has a religious exemption (21 C.F.R. § 1307.31) for the sacramental use of peyote by the Native American Church.

But the DEA has not always accepted applications for religious exemptions.  In 1988, The DEA said it had no authority to consider religious exemptions when I applied for one.  See Olsen v. DEA, 878 F.2d 1458, 1460 (D.C. Cir. 1989) (“According to the DEA, Congress intended no religious-use exemption from Controlled Substances Act proscriptions other than the peyote-use permission granted the Native American Church”).

The U.S. Court of Appeals responded to the DEA by saying:

The DEA’s contention that Congress directed the Administrator automatically to turn away all churches save one opens a grave constitutional question.  A statutory exemption authorized for one church alone, and for which no other church may qualify, presents a “denominational preference” not easily reconciled with the establishment clause.  See Larson v. Valente, 456 U.S. 228, 245, 72 L. Ed. 2d 33, 102 S. Ct. 1673 (1982); cf. infra pp. 12-13.  We resist an interpretation dissonant with the “cardinal principle” that legislation should be construed, if “fairly possible,” to avoid a constitutional confrontation.  See Ashwander v. TVA, 297 U.S. 288, 348, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J., concurring).

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).

Id. at 1461.

I don’t want to predict how the Iowa courts will rule on this, but I can certainly say how the Iowa courts should rule on it.  The Iowa courts should agree with the federal courts.  The pharmacy board’s executive director was not authorized by the Iowa legislature to turn away all churches other than the Native American Church.

My attorney is representing me pro bono, but I am paying for the filing fees.  If you’d like to help me with expenses, you can donate by going to my donation page at https://www.gofundme.com/rastafari-cannabis-sacrament.