COURT DOESN'T BUY COUPLE'S DEFENSE

A Topeka couple convicted of felony cultivation of marijuana despite their
claim the drug was part of their Rastafarian faith don't have the same
legal standing as an Indian church whose members legally use peyote, the
Kansas Court of Appeals has ruled.

The court Friday upheld the 1996 convictions in Shawnee County District
Court of Joe McBride and Connie McBride.

The ruling was the first in which the question of whether one religious
group can be exempted from a drug law while another can't has surfaced on
appeal in Kansas.

The McBrides were charged with growing 86 marijuana plants, which would
have yielded 6.5 pounds of the drug, in a garden at their home, 2921 S.E.
10th, a Topeka Housing Authority apartment at Pine Ridge.

The Drug Enforcement Administration adopted a regulation in 1971 allowing
the Native American Church to use peyote in its ceremonies. But the
McBrides don't have the legal standing the NAC has for three reasons, the
court of appeals ruled:

- - Peyote is consumed by NAC members only at specific and infrequent
religious ceremonies while Rastafarians may consume marijuana "in any
quantity at any time." Joe McBride testified his religion has no limits on
how much marijuana he smokes or when he smokes it. That makes regulating
marijuana for religious use "nearly impossible because of widespread and
uncontrolled usage," the court of appeals wrote.

- - Rastafarian use of marijuana contrasts starkly to practices of NAC use of
peyote, in which ceremonies are elaborate and lengthy. NAC congregants are
issued membership cards, and the federal Drug Enforcement Administration
has established and administers a licensing system for peyote dealers in
Texas.

- - Peyote isn't used at the same rate as marijuana. According to DEA
statistics cited in the court of appeals opinion, the amount of peyote
seized and analyzed by the DEA between 1980 and 1987 was 19.4 pounds vs.
more than 15.3 million pounds of marijuana during the same time frame.

"While these statistics are somewhat dated, they do support the fact that
marijuana abuse is a far greater social and economic problem than peyote,"
the court of appeals opinion said.

Kansas law grants a peyote exemption to NAC members to bring Kansas law
into line with federal law, the court of appeals said, noting "federal
Native American law is different."

Since the early 19th century, the U.S. Supreme Court precedent has treated
Native Americans as having a unique and dependent setting in the federal
system.

"Modern courts have interpreted the unique obligations owed to Native
Americans as exempting laws passed pursuant to the trust responsibility
from the strictures of traditional equal protection analysis," the court of
appeals wrote.

During the Shawnee County District Court case, Judge Eric Rosen had granted
a prosecution motion to block the McBrides from presenting testimony saying
the Rastafarian religion was a defense to the marijuana cultivation charge.

When the case was submitted to Rosen on Sept. 9, 1996, based on a set of
facts agreed to by defense and prosecution lawyers, Rosen convicted the
pair of one count each of cultivation of marijuana and failure to pay the
Kansas drug dealer tax.

Rosen placed the couple on probation, but warned them that smoking
marijuana as a religious sacrament of the Rastafarian faith could get them
in trouble because a probation condition prohibits consumption of drugs.

Copyright 1998 The Topeka Capital-Journal