Craig X Rubin
264 South La Cienega #468
Beverly Hills, CA 90211
(818)370-6528

In court Pro Per

                   SUPERIOR COURT OF CALIFORNIA

                       COUNTY OF LOS ANGELES

THE PEOPLE OF THE STATE OF      ) CASE NO.  BA313304

  CALIFORNIA                    )

    Plaintiff,                  ) 

                                ) Move to Demurrer;

        Vs.                     ) Memorandum of Points

                                ) and Authority's

REVEREND CRAIG X RUBIN          ) 

                                ) DATE:  December 18, 2006

     Defendant                  ) TIME:  8:30 a.m.

                                ) DEPT:  38

                                ) 

PLEASE TAKE NOTICE pursuant to California 2006 Rules of Court 312, Defendant moves to demurrer.

FACTS

Temple 420 is a new Judeo-Christian religious sect with origins in the City of Los Angeles and members receive communion by burning a sacramental herb, marijuana.  The plant that is burned is not altered in anyway.  It is picked, dried and burned.  However the contains a hallucinogen, THC, regulated under the Controlled Substances Act by the Federal Government.  The Government concedes that this practice is a sincere exercise of religion by ignoring the fact that it is a religion, but nonetheless Temple 420 practices a “real religion.”  The sect is currently being barred from engaging in the practice of its religion on the ground that the Controlled Substances Act bars all use of the hallucinogen. Temple 420 is moving to demurrer the arrest of their religious leader and the seizing of temple sacrament. 

Temple 420 relied on the Religious Freedom Restoration Act of 1993 (RFRA), which 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. 42 U. S. C.§2000bb–1(b). LAPD Officer Trayce Fields joined Temple 420 as a member of a sincere religious sect and the purchases sacrament from the temple.  This is the basis of her warrant and arrest of Defendant Reverend Craig X Rubin.  In the case of “Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal” 546 U.S. (2006) when the church’s sacrament was seized the District Court granted the preliminary injunction, and the Court of Appeals affirmed.  The Government’s central submission is that it has a compelling interest in the uniform application of the Controlled Substances Act, such that no exception to the ban on use of the hallucinogen can be made to accommodate the sect’s sincere religious practice. The Supreme Court concluded that the Government has not carried the burden expressly placed on it by Congress in the Religious Freedom Restoration Act.  This is the same thing that is occurring with Temple 420.

ISSUE

1.      Are the acts deemed criminal by the LAPD in fact legal under the RFRA and RLUIPA?

ARGUMENT

I. TEMPLE 420 AND CLERGY HAVE THE LEGAL RIGHT TO POSSESS AND DISTRIBUTE CANNABIS AS RELIGIOUS SACRAMENT.

New, small and unfamiliar churches are often the victims of religious discrimination that is why Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA) in response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, where, in upholding a generally applicable law that burdened the sacramental use of peyote, this Court held that the First Amendment’s Free Exercise Clause does not require judges to engage in a case-by-case assessment of the religious “burdens imposed by facially constitutional laws,” id., at 883–890.  However, in the Supreme Courts recent ruling “Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal” 546 U.S. (2006) they ruled just the opposite that each case must be looked at on an individual basis and the Government cannot rely on rules of general applicability to deny someone of their religious freedom rights.  This was not the case with Defendant, Reverend Craig X Rubin and his religious organization Temple 420.  His rights were denied because of religious discrimination.

In 1997 several courts said that the RFRA was over reaching and it was ruled unconstitutional, so to further protect individuals and religious institutions the Congress crafted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), so that it could not be ruled unconstitutional.  The standard for religious protection under RLUIPA is the RFRA standard, which provides that state agencies receiving federal funding must provide minimum judicial protection (the RFRA standard) to persons and religious institution in their practice and exercise of religion.

Among other things, RFRA prohibits the Federal Government from substantially burdening a person’s exercise of religion, “even if the burden results from a rule of general applicability,” 42 U. S. C. §2000bb–1(a), except when the Government can “demonstrate that application of the burden to the person (1) [furthers] a compelling government interest; and (2) is the least restrictive means of furthering that . . . interest,” §2000bb–1(b).  In this case the Government has ignored their fiduciary duties because of their religious prejudice against Temple 420.  The officers showed their prejudice during the raid by denying Defendant rights afforded to clergy under the laws California Penal Code (CPC) 1524 and 1525, as well as by stating during the raid, “This is not a real religion.”

Defendant and members of his church (Temple 420) receive communion by burning marijuana, a common cannabis flower that contains THC, a hallucinogen regulated under Schedule I of the Controlled Substances Act, see 21 U. S. C. §812(c), Schedule I(c). LAPD Officer Trayce Fields first joined Temple 420 and then arrested the Defendant for selling her the church’s sacrament.  The Officer then requested a search warrant based on her purchase of religious sacrament and then seized the sacrament from Temple 420 and the Government is now attempting prosecuting the clergy of the temple for that sale of religious sacrament.  The Defendant and Temple 420 are now asking the court to grant them declaratory and injunctive relief, alleging, inter alia, that applying the Controlled Substances Act Temple 420’s sacramental marijuana use violates the RFRA, the standard in this case.  The Government should concede that the challenged application is substantially burdening a sincere exercise of religion and their use of land in Hollywood, CA.

In this case the Government has failed to demonstrate a compelling interest justifying the substantial burden put on Temple 420.  It can be said that forgoing or modifying the practice of one’s religion because of governmental interference or fear of punishment by the government is precisely the type of ‘substantial burden’ Congress intends to trigger the RLUIPA and RFRA protections; indeed, it is impelled adoption of the First Amendment.  In “Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal” 546 U.S. (2006) the Court rejected the Government’s argument that evidentiary equipoise from the potential harm and diversion is a sufficient basis for a preliminary injunction against enforcement of the Controlled Substances Act.  The Government will bear the burden of demonstrating a compelling interest at trial on the merits of this case that is why we ask that it be dismissed by this motion to demurrer.

 The Government may say that because it has a compelling interest in the uniform application of the Controlled Substances Act, no exception to the THC ban can be made to accommodate Temple 420.  The LAPD may argue, inter alia, that the Act’s description of Schedule I substances as having “a high potential for abuse,” “no currently accepted medical use,” and “a lack of accepted safety for use . . . under medical supervision,” 21 U. S. C. §812(b)(1), by itself precludes any consideration of individualized exceptions, and that the Act’s “closed” regulatory system, which prohibits all use of controlled substances except as the Act itself authorizes, see Gonzales v. Raich, 545 U. S. ___, ___, cannot function properly if subjected to judicial exemptions. Pp. 8–16. (a) RFRA and its strict scrutiny test contemplate an inquiry more focused than the Government’s categorical approach.  RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”—the particular claimant whose sincere exercise of religion is being substantially burdened. 42 U. S. C. §2000bb–1(b). Section 2000bb(b)(1) expressly adopted the compelling interest test of Sherbert v. Verner, 374 U. S. 398, and Wisconsin v. Yoder, 406 U. S. 205.  They can not simply apply the law as they see fit, but must look at each case as an individual case.  This was not done in this case, “People of the State of California v. Craig X Rubin.”

In the “O Centro Espirita” case the court looked beyond broadly formulated interests justifying the general applicability of government mandates, scrutinized the asserted harms, and granted specific exemptions to particular religious claimants. Id., at 213, 221, 236; Sherbert, supra, at 410.  Outside the Free Exercise area as well, the Court has noted that “context matters” in applying the compelling interest test, Grutter v. Bollinger, 539 U. S. 306, 327, and has emphasized that strict scrutiny’s fundamental purpose is to take “relevant differences” into account, Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 228. Pp. 9–10. (b) Under RFRA’s more focused inquiry, the Government’s mere invocation of the general characteristics of Schedule I substances cannot carry the day.

Although Schedule I substances such as marijuana are generally exceptionally dangerous THC the active ingredient in marijuana has actually been rescheduled down to a Schedule III drug.  The court is still asked to consider the harms posed by the particular use at issue and not rule on general application. In the “O Centro Espirita” case as in this one the Court will find that the Government has not carried its burden of showing a compelling interest in preventing such harm.  The court noted in “Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal” 546 U.S. (2006) that it could not ignore the congressional classification and findings. But Congress’ determination that marijuana should be listed under Schedule I simply does not provide a categorical answer that relieves the Government of the obligation to shoulder its RFRA burden.

The Controlled Substances Act’s authorization to the Attorney General to “waive the requirement for registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety,” 21 U. S. C. §822(d), reinforces that Congress’ findings with respect to Schedule I substances should not carry the determinative weight, for RFRA purposes, that the Government would ascribe to them. Despite the fact that everything the Government says about the THC in marijuana applies in equal measure to the mescaline in peyote, or the DMT in hoasca, both also Schedule I substance, but for both the Executive and Congress have decreed an exception from the Controlled Substances Act for religious purposes, see 21 CFR §1307.31; 42 U. S. C. §1996a(b)(1). If such use is permitted in the face of the general congressional findings for hundreds of thousands of Native Americans practicing their faith, those same findings alone cannot preclude consideration of a similar exception for the 400 or so American members of Temple 420 who want to practice theirs.  See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547.

The Government’s argument that the existence of a congressional exemption for peyote does not indicate that the Controlled Substances Act is amenable to judicially crafted exceptions fails because RFRA plainly contemplates court-recognized exceptions, see §2000bb–1(c). Pp. 11–13. (c)  The peyote exception also fatally undermines the Government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA.  The peyote exception has been in place since the Controlled Substances Act’s outset, and there is no evidence that it has undercut the Government’s ability to enforce the ban on peyote use by non-Indians. The Government’s reliance on pre-Smith cases asserting a need for uniformity in rejecting claims for religious exemptions under the Free Exercise Clause is unavailing. Those cases did not embrace the notion that a general interest in uniformity justified a substantial burden on religious exercise, but instead scrutinized the asserted need and explained why the denied exemptions could not be accommodated. See, e.g., United States v. Lee, 455 U. S. 252, 258, 260.

They show that the Government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program. Here the Government’s uniformity argument rests not so much on the particular statutory program at issue as on slippery slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law, i.e., “if I make an exception for you, I’ll have to make one for everybody, so no exceptions.” But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.” §2000bb–1(a). Congress’ determination that the legislated test is “workable . . . for striking sensible balances between religious liberty and competing prior governmental interests,” §200bb(a)(5), finds support in Sherbert, supra, at 407, and Cutter v. Wilkinson, 544 U. S. ___, ___.

While there may be instances where a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA, it would be surprising to find that this was such a case, given the longstanding peyote exemption and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance.  The Government has not shown that granting Temple 420 an exemption would cause the kind of administrative harm recognized as a compelling interest in, e.g., Lee.  The Government has not shown to the Court allowing an exemption in this instance would create health or diversion concerns.

The Government argued unpersuasively in “Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal” 546 U.S. (2006) that it has a compelling interest in complying with the 1971 U. N. Convention that controls Schedule I, II and III drugs.  While the Supreme Court may or may not agree that this covers cannabis, that does not automatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to Temple 420’s sacramental use. At this stage, it suffices that the Government did not submit any evidence addressing the international consequences of granting Temple 420 an exemption because they have simply relied on the misleading search warrant request and incomplete complaint filed by the officers.  Under RFRA, invocation of such general interests, standing alone, is not enough. Pp. 16–18. 389 F. 3d 973, affirmed and remanded.  Therefore, the actions of Temple 420 and Defendant Reverend Craig X Rubin are completely within the boundaries of both federal and state law.

CONCLUSION

Defendant respectfully requests this Court to dismiss all charges with prejudice and return seized property including cannabis that is used as sacrament immediately:

1.   Defendants had a legal right to possess sacrament for their sincere religious practices as per the Religious Land Use and Institutionalized Persons Act (RLUIPA), - 42 U.S.C. sec. 2000cc et al and by the Religious Freedom Restoration Act (RFRA) of 1993 as reaffirmed in  “Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal” 546 U.S. (2006).

2.   The acts deemed criminal and items seized as per the search warrant are legally protected by the California Constitution, Religious Land Use and Institutionalized Persons Act (RLUIPA), - 42 U.S.C. sec. 2000cc et al and by the Religious Freedom Restoration Act (RFRA) of 1993 as reaffirmed in  “Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal” 546 U.S. (2006).

3.   It would not violate federal or state law to return the cannabis sacrament to Temple 420 in fact is would reaffirm the decision made in “Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal” 546 U.S. (2006).

4. The Defendant prays the court will offer some relief by dismissing charges with prejudice and returning requested seized items as per Penal Code 1538.5.

                                                                        __________________________________________

                                                                        DEFENDANT’S SIGNATURE           DATE