MARC PERKEL, Church of Reality v. U.S. DEPARTMENT OF JUSTICE, Drug Enforcement Administration

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARC PERKEL, Church of Reality,
Petitioner,
v.
U.S. DEPARTMENT OF JUSTICE,
Drug Enforcement Administration,
Respondent.
No. 08-74457
MEMORANDUM *
On Petition for Review of an Order of the
Drug Enforcement Administration
Submitted November 19, 2009 **
Before: HUG, SKOPIL and BEEZER, Circuit Judges.
Marc Perkel petitions for review of a final order issued by the Drug
Enforcement Administration (DEA) denying his request for an exemption from the
Controlled Substance Act (CSA) that would permit him and other members of the
Church of Reality to possess and distribute marijuana. We deny the petition for
review.
FILED
JAN 27 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The CSA, 21 U.S.C. §§ 801-971, classifies marijuana as a controlled
substance and makes it unlawful to manufacture, distribute, dispense, or possess the
drug except as otherwise provided in the statute. See Raich v. Gonzales, 500 F.3d
850, 854-55 (9th Cir. 2007). Perkel contends that enforcement of the CSA against
him and members of the Church of Reality violates the Religious Freedom
Restoration Act (RFRA), 42 U.S.C. §§ 2000bb-1 to 2000bb-4. RFRA “prohibits
the Federal Government from substantially burdening a person’s exercise of
religion, unless the Government demonstrates that application of the burden to the
person represents the least restrictive means of advancing a compelling interest.”
See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 423
(2006) (citing 42 U.S.C. § 2000bb-1(b)) (internal quotations marks omitted).
We agree with the DEA that Perkel failed to establish a prima facie case
under RFRA because he did not demonstrate that his religion is “substantially
burdened” by enforcement of the CSA. In Navajo Nation v. United States Forest
Serv., 535 F.3d 1058, 1070 (9th Cir. 2008) (en banc), cert. denied, 129 S. Ct. 2763
(2009), we explained that a “substantial burden is imposed . . . when individuals are
. . . coerced to act contrary to their religious beliefs by the threat of civil or criminal
sanctions.” We concluded that “[a]ny burden imposed on the exercise of religion
short of that . . . is not a ‘substantial burden’ within the meaning of RFRA.” Id.

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Here, Perkel’s admissions demonstrate that prohibiting marijuana would not
coerce him or other church members to act contrary to their religious beliefs.
Although Perkel claims the Church of Reality is “marijuana inspired,” he admits
church doctrine would have developed without the drug. When asked to describe in
what context marijuana is used by the church, Perkel stated that marijuana “has
been misclassified and is a relatively harmless substance” used by church members
“to inspire creative thinking, for medical purposes, relaxation, and socially [-] like
social drinking.” Church members are not solicited to use the drug. When the drug
is consumed, it is not in any particular location or during any particular ritual or
ceremony. Finally, Perkel admits that “[u]nlike some religions, the Church of
Reality is not a religion that centers on marijuana or drug experiences” but rather
drugs “inspire creative thinking that leads to really good ideas.” At most, Perkel
describes a “diminishment of spiritual fulfillment” which we explained in Navajo
Nation: “– serious though it may be – is not a ‘substantial burden’ on the exercise
of religion.” See id.
PETITION FOR REVIEW DENIED.

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