1. The petitioner petitions the department to create an application process for
religious exceptions to the Iowa Uniform Controlled Substances Act (Iowa Code Chapter 124).
2. The authority for this rule making action is Iowa Code §
124.204(4)(p) (“Peyote, except as otherwise provided in subsection 8”).
3. Iowa has created an exception for the religious use of a controlled substance,
peyote. A process should exist to accept applications for religious use of other controlled
substances. Iowa has created an exception for the secular use of a controlled substance, cannabis. A
process should exist to accept applications for the religious use of cannabis.
Existing Religious Exception
Iowa
Code § 124.204(8) is a religious exception for the use of a Schedule I controlled substance in
Iowa.
Federal regulations provide a process to apply for exceptions to the federal Controlled
Substances Act. 21 C.F.R. § 1307.03. There is a federal regulation for religious use of
peyote. 21 C.F.R. § 1307.31.
The listing of peyote in this subparagraph does not apply to non-drug use in bona fide
religious ceremonies of the Native American Church; however, persons supplying the product to the Church are
required to register and maintain appropriate records of receipts and disbursements of the article. FEDERAL
REGISTER, Vol. 31, No. 54, Saturday, March 19, 1966, at page 4679; codified at 21 C.F.R. §
166.3(c)(3) (1968)
SEC. 2. Section three (3) of this Act shall not apply to the following: 12. Peyote
used in bona fide religious ceremonies of the Native American Church; however, persons supplying the product to
the church are required to register and maintain appropriate records of receipts and disbursements of the
article. 1967 Iowa Acts, ch. 189 § 2(12)
Existing Secular Exception
Iowa Code
Chapter 124E is a secular exception for the use of a Schedule I controlled substance without a
prescription.
Although cannabis has “no legitimate medical use” in Iowa, State v.
Middlekauff, 974 N.W.2d 781, 798 (Iowa 2022), Iowans can apply for the non-drug use of cannabis to
treat qualifying medical conditions.
See health care practitioner certification, 641 IAC
154.2. “This document, the written certification in this case, is essentially a physical
manifestation of the physician’s and patient’s First Amendment right to openly and candidly discuss
appropriate medical treatments, including medical marijuana.” State v.
Middlekauff, 974 N.W.2d 781, 800 (Iowa 2022).
Iowans can petition to have new medical conditions added or petition for the addition of new
forms of administration, 641 IAC 154.65. Id.
4. The petitioner is aware of two Schedule I controlled substances, both in the same
subcategory as peyote (hallucinogens), that have documented religious use in the United States.
The petitioner is a member of a religious organization in Jamaica that uses cannabis as its
sacrament. See, Town v. State, ex rel. Reno, 377 So.2d 648, 649 (Fla. 1979) (“the Ethiopian
Zion Coptic Church is not a new church or religion but the record reflects it is centuries old and has regularly
used cannabis as its sacrament.”). Olsen v. State
of Iowa, United States District Court, S.D. Iowa, Central Division, Civ. No. 83-301-E, March 19,
1986, 1986 WL 4045 (“Testimony at his trial revealed the bona fide nature of this religious organization
and the sacramental use of marijuana within it.”).
Hoasca
Hoasca is recognized in the country of Brazil as a religious sacrament, and the use of
hoasca is currently protected by federal regulations. Hoasca contains dimethyltryptamine (DMT), a
hallucinogenic chemical. Under the federal Controlled Substances Act, DMT is a “Schedule I”
controlled substance. See, Gonzales v. O
Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006). DMT is also a Schedule I
controlled substance in Iowa. Iowa Code § 124.204(4)(j).
5. There is a religious organization in Iowa that uses hoasca. See,
Iowaska Church of Healing v. United States, Case No. 21-02475, United States District Court for the
District of Columbia (March 31, 2023); Iowaska Church of Healing v. IRS, Case No. 23-5122, United States
Court of Appeals for the District of Columbia Circuit (July 3, 2023). Iowa church wages four-year fight with IRS over hallucinogenic-drug ceremonies,
Iowa Capitol Dispatch, January 2, 2023
6. The petitioner requests a meeting provided for by rule 481—2.4(17A).
Dated this 26th day of September, 2023
FIRST BRIEF IN SUPPORT OF PETITION
Religious Exception
The federal government created the peyote exception by administrative regulation in 1966 and
the Iowa legislature enacted it in 1967. The two are identical. The term “non-drug”
indicates this substance is not an approved prescription medication.
FEDERAL EXCEPTION (1966): The listing of peyote in this subparagraph
does not apply to non-drug use “ ... in bona fide religious ceremonies of the Native American Church;
however, persons supplying the product to the Church are required to register and maintain appropriate records
of receipts and disbursements of the article.”
IOWA EXCEPTION (1967): Section three (3) of this Act shall not apply to
the following: Peyote used “ ... in bona fide religious ceremonies of the Native American Church;
however, persons supplying the product to the church are required to register and maintain appropriate records
of receipts and disbursements of the article.”
In 2006, the U.S. Supreme Court recognized an exception for the religious use of hoasca
similar to the exception for the religious use of peyote. Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418,
432-433 (2006) (“... the Act itself contemplates that exempting certain people from its requirements would
be ‘consistent with the public health and safety’ ...”).
Secular Exception
Iowa has created a secular exception for the “non-drug” use of marijuana.
Iowa Code
Chapter 124E. Chapter 124E authorizes cultivation of marijuana for the production of highly
concentrated marijuana extracts. These extracts do not have any accepted medical use and they are given to
individuals who have serious medical conditions. SeeState v.
Middlekauff, 974 N.W.2d 781, 798 (Iowa 2022):
“Whereas some other drugs can be dispensed and prescribed for medical use the same is
not true for marijuana. Indeed, for purposes of the Controlled Substances Act, marijuana has ‘no
currently accepted medical use’ at all.” United States v. Oakland Cannabis Buyers’
Coop., 532 U.S. 483, 491 (2001) (citation omitted); seeGonzales v. Oregon, 546 U.S.
243, 269 (2006) (“Congress’ express determination that marijuana had no accepted medical use
foreclosed any argument about statutory coverage of drugs available by a doctor’s prescription.”);
see alsoBonjour, 694 N.W.2d at 514.
Giving people with serious medical conditions a Schedule I controlled substance with no
accepted medical use defies logic. However, the DEA is currently in the process of removing marijuana from
Schedule I. SeeStatement from President Biden on Marijuana Reform, October 6, 2022 (“Federal law
currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the
most dangerous substances. This is the same schedule as for heroin and LSD, and even higher than the
classification of fentanyl and methamphetamine – the drugs that are driving our overdose
epidemic.”).
As the Drug Enforcement Administration Chief Administrative Law Judge said in 1988,
“Marijuana, in its natural form, is one of the safest therapeutically active substances known to
man.” DEA Docket No. 86-22, Sept.
6, 1988, pp. 58-59.
Chapter 124E has shown what the DEA ALJ said in 1988 is true. There haven’t been
any reports of adverse effects resulting from the use of these highly concentrated extracts in Iowa in a
population of Iowans with severe medical conditions.
Establishment Clause
The Establishment Clause generally prohibits the government from granting certain
preferences to religions or religious adherents which are not available to secular organizations or nonreligious
individuals. E.g., Everson v. Board of Education, 330 U.S. 1 (1947).
It is well accepted that the Establishment Clause prohibits a government from
“prefer[ring] one religion over another.” SeeEverson, 330 U.S. at
15:
“The ‘establishment of religion’ clause of the First Amendment means at
least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which
aid one religion, aid all religions, or prefer one religion over another.”
Cause of Action
We must assume the Iowa legislature did not intend to establish a religion to the exclusion
of all others. A religious exception for one church alone, and for one Schedule I controlled substance
alone, is permissible as long as a process to consider equally worthy causes exists. Other exceptions must
be considered for good cause (both for secular and religious uses). See, Employment Division v. Smith, 494 U.S. 872 (1990).
The Iowa legislature has created a means of redress through the Iowa Administrative
Procedures Act (Petition for Rulemaking). Iowa Code § 17A.7.
In order to implement the intent of the Iowa legislature (interpreting legislative intent to
be consistent with the Iowa Constitution), the department must implement rules to evaluate petitions for other
exceptions.
Plants Historically Used in Religious Ceremonies and Folk Medicine
Plants and fungi have been used for traditional religious purposes and folk medicine for
millennia. Carod-Artal FJ. Hallucinogenic drugs in pre-Columbian Mesoamerican cultures. Neurologia. 2015
Jan-Feb; 30(1):42-9. English, Spanish. doi: 10.1016/j.nrl.2011.07.003. Epub 2011 Sep 3. PMID:
21893367.
The peyote exemption embodies two parts: (1) a non-commercial exemption for members of the
church; and (2) a federal registration for persons supplying peyote to the church. 21 C.F.R. § 1307.31; Iowa Code §
124.204(8). The hoasca exemption has the same two parts: (1) a non-commercial exemption for members
of the church; and (2) a federal import license for persons supplying hoasca to the church.
Dated this 2nd day of October, 2023
SECOND BRIEF IN SUPPORT OF PETITION
This is just a brief history of my previous efforts to obtain a religious exception like the one for peyote.
Olsen v.
DEA, 878 F.2d 1458 (D.C. Cir. 1989), cert. denied, 495 U.S. 906 (1990).
A state controlled substances act does not violate the federal constitution if it is both
neutral toward religion and generally applicable. If either of those conditions is not met, then the state
must apply a strict scrutiny analysis called the “compelling interest test” and the subordinate
“least restrictive means” test.
1. Is there a compelling state interest in prohibiting the
substance?
2. If condition 1 is met, is total prohibition the least
restrictive means of enforcing the prohibition against a religious user?
Olsen v. Iowa
Board of Pharmacy, Case No. CVCV056841 (April 2, 2019). The board is not required to accept
petitions to make scheduling recommendations to the legislature. It can accept petitions if it wants to, but
it is not required to accept them.
2019 – Medical Cannabidiol Board recommends a federal exemption like the one for peyote for Iowa
patients, after Carl Olsen requested it.
2020 – Iowa
Legislature enacts a law requiring the department to apply for a federal exemption. Carl Olsen lobbied
legislators for this in 2019, and the board recommended it in January of 2020.
2021 – Iowa Department of Health filed for the federal exemption. The U.S. Drug Enforcement
Administration (DEA) hasn’t responded.
Olsen v. Iowa Department of Public Health, Case No. CVCV062566 (May 3, 2022).
Carl Olsen tried to bring a declaratory judgment action against the state for violating his religious
freedom. The court denied the claim because the state cannot be sued. The state has sovereign
immunity. A recent Iowa Supreme Court decision explains this in Burnett v.
Smith, No, 22-1010 (May 5, 2023).
https://www.iowacourts.gov/courtcases/17340/embed/SupremeCourtOpinion
2023 – Iowa Senate Judiciary Committee Chair introduced a bill to provide the Department with legal
assistance in addressing the issue with the DEA’s lack of a response. Carl Olsen requested the bill
and the Medical Cannabidiol Board recommended it in January of 2023. Senate File 69.
Olsen v. Iowa Department of Health and Human Services, Case No. CVCV065114 (August
20, 2023). The court found that religious use of cannabis is not a qualifying condition for registration
under Iowa Code Chapter 124E.
Dated this 4th day of October, 2023
THIRD BRIEF IN SUPPORT OF PETITION
Absence of Regulations is Unconstitutional
Creating rules to process requests for exceptions, adding religious use of peyote to a list of exceptions, and
recommending the legislature repeal the statutory exemption for the Native American Church, resolves the
inconsistency between Iowa Code Chapter 124 and the Iowa Constitution:
Establishment of Religion, article 1, §
3 of the Iowa Constitution:
The general assembly shall make no law respecting an establishment of religion
Uniformity of Law, article 1, §
6 of the Iowa Constitution:
All laws of a general nature shall have a uniform operation; the general assembly shall not
grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not
equally belong to all citizens
Consistency with Federal and Uniform Acts
The general assembly intended Chapter 124 to be consistent with federal and uniform acts.
Uniformity of interpretation. This chapter shall be so construed as to
effectuate its general purpose to make uniform the law of those states which enact it.
If the church is a bona fide religious organization that makes sacramental use of peyote,
then it would be our view that H.R. 2, even without the peyote exemption which appeared in the House-passed
version, could not forbid bona fide religious use of peyote. We believe that the constitutional guarantee
of religious freedom fully safeguards the rights of the organization and its communicants.
Under the existing law originally the Congress was going to write in a specific exemption
but it was then decided that it would be handled by regulation and we intend to do it the same way under this
law.
Page 24 of the 1990 Uniform Act lists peyote in Schedule I without any exception. See this
comment on page 26:
Although peyote is listed as a Schedule I controlled substance in this Act and under
Schedule I of the federal act, a separate federal regulation (21 CFR 1307.31 (April 1, 1989)) exempts the
nondrug use of peyote in bona fide religious ceremonies of the Native American Church.
In Collins v. State Board of Social Welfare, 81 N.W.2d 4 (Iowa 1957), for example,
we held that the plaintiffs could pursue an action for a declaratory judgment that their state welfare payments
were unconstitutionally discriminatory in violation of article I, section 6 of the Iowa Constitution. Id.
at 6-7. We said, “The rule is ... well recognized that where no judgment or decree is asked against
the State, but the suit is rather to require its officers and agents to perform their duty, there is no immunity
recognized.”
As the plurality pointed out in Roy, our
decisions in the unemployment cases stand for the proposition that 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.