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 Msg  : #4153 [218]                                                             
 From : Carl E. Olsen                       1:2613/335      Tue 23 Aug 94 23:54 
 To   : All                                                                     
 Subj : Israel Zion Coptic 5                                                    

From: Carl_E._Olsen@commonlink.com (Carl E. Olsen)
Organization: Common Link Consulting & On-Line Service

State of Wisconsin v. Michael Matteson
Crawford County Circuit Court No. 92-CF-10
Memorandum Decision
  The defendant filed a motion to dismiss the Information in this case on the
grounds that Wisconsin Statutes 161.41(1)(h) violates the defendant's first
amendment free exercise of religion rights and equal protection rights.  The
Court denies these motions.
  Defendant Matteson is a priest in the Israel Zion Coptic Church.  Church
doctrine as it has been stated, dictates the use of marijuana or ganja as a
"religious sacrament".  Ganja is used during worship by church members called
"reasoning".  It's use is not confined to any particular right or service.
It may be carried on continually.
  The marijuana was cultivated by the defendant in containers under grow
lights in his basement.  A search warrant was executed on the premises of
defendant's residence and the plants were seized and the defendant was
charged with manufacturing a controlled substance.
  Statutes such as the charging statute in this case, which imposes
restrictions on the exercise of religion, must be measured against the
government interest served by the statute.  State v. Yoder, 49 Wis.2d 430
(1971), affirmed Wisconsin v. Yoder, 406 U.S. 205 (1972).
  In spite of defendant's efforts to make distinctions, this case is amazingly
similar to the Wisconsin case, State v. Peck, 143 Wis.2d 624.  As in the Peck
case, the State concedes that Matteson is a sincere practitioner of a
bonafide religion; that his use of marijuana is a religious practice rooted
in his sincere theological beliefs and that the Statutes prohibiting the
manufacture of controlled substances impose a burden on Matteson's first
amendment right to use marijuana in his religious rituals.
  I believe that the question in this case is the same as the one in Peck,
i.e. whether the State can show that it has a compelling interest in
regulating such conduct.  Can the State show an "overriding" interest as
required by United States v. Lee, 455 U.S. 252 (1982)?
  Much testimony was received in this hearing that marijuana is not a health
hazard nor a threat to social welfare.  One witness thought it should be
reclassified.  It is obvious that there are conflicting opinions as to the
threat or danger to individuals or society by marijuana use.  Nevertheless,
Wisconsin's Legislature has determined that manufacturing marijuana is an act
that should be subjected to criminal penalties.  A trial Court may not
substitute it's own judgment for that of the Legislature.  I conclude that
the State's interest is of sufficient magnitude to override Matteson's first
amendment interest in using marijuana as a daily sacrament.
  Chapter 161 exempts the Native American Church from its penalties with
respect to religious use of peyote and mescaline.  A similar exemption
appears in Federal drug laws.  But this Court, as other Courts have before,
including Peck, holds that the separate treatment of the Native American
Church does not result in an unconstitutional classification violating
defendant's equal protection of the laws.  The Native American Church's
exception is based upon unique cultural and historic attributes of native
americans.  This does not appear to be the only distinction based upon their
unique status.
  The defendant's motions will be denied by separate order and the case will
proceed to trial.
  Dated this 27th day of July, 1993.
  BY THE COURT:
  Michael Kirchman, Circuit Judge

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