Pubdate: Wednesday, March 4, 1998 Source: Topeka Capital-Journal Author: Steve Fry, The Capital-journal Contact: http://cjonline.com/ 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