                              NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                           FILED
                              FOR THE NINTH CIRCUIT                              JAN 27 2010

                                                                          MOLLY C. DWYER, CLERK
MARC PERKEL, Church of Reality,                                               U.S. COURT OF APPEALS

                                                 No. 08-74457
               Petitioner,

  v.
                                                 MEMORANDUM *
U.S. DEPARTMENT OF JUSTICE,
Drug Enforcement Administration,

               Respondent.

                       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.

          *
             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).
       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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