(concurring).
I concur with the majority that the petition of the Church of the Awakening for exemption for use of Peyote in religious services was properly rejected by the Director of the Bureau of Narcotics and Dangerous Drugs.
21 C.F.R. § 320.3(c) (3) was enacted under the “Police Power” to protect the health, safety and welfare of the citizenry. The Director found, and the majority assumes, that peyote is a dangerous hallucinogenic substance.
It has been strongly propounded that this “police power” will prevail over an individual’s right to freely practice his religious beliefs where the practice involves criminal conduct, [see, Leary v. U. S., 383 F.2d 851 (5th Cir. 1967), reversed on other grounds, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57; U. S. v. Kuch, 288 Fed.Supp. 439 (D.C.Dist.Col. 1968); Annot. 35 A.L.R.3d 939].
The court in the Leary case set out the applicable test in stating at 383 F.2d p. 859:
“Religious freedom, guaranteed by the Constitution, must be weighed with the public interest and the broad power to legislate vested in Congress by the Constitution. Thus the First Amendment ‘embraces two concepts, —freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.’ The freedom to act is conditional and relative and Congress may prescribe and enforce certain conditions to control conduct which may be contrary to a person’s religious beliefs in the interest of the public welfare and protection of society.”
The Director concluded from the evidence that the governmental interest *418sufficiently outweighed the First Amendment rights of the petitioners. The record substantiates this finding.
In support of their contentions, petitioners cite People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964), which involves a unique and extremely restricted exemption to the use of peyote in religious services. This is essentially attributable to the historical roots from which the Native American Church stems. See, U. S. v. Kagama, 118 U.S. 375, 6 S.Ct. 1109 (1886); 25 U.S.C. §§ 1302-03. The Church of the Awakening lacks this historical culture which would bring it within the exemption. Also, in the Woody case it was established that:
“Although peyote serves as a sacramental symbol similar to bread and wine in certain Christian churches, it is more than a sacrament. Peyote constitutes in itself an object of worship; prayers are directed to it much as prayers are devoted to the Holy Ghost. On the other hand to use peyote for nonreligious purposes is sacrilegious.” (61 Cal.2d page 721, 40 Cal.Rptr. page 73, 394 P.2d page 817)
The founder of the Church of the Awakening, Dr. Aiken, testified that the “mystical experience” sought by practitioners of the church can be achieved more quickly with peyote than with the numerous other methods employed. Peyote therefore appears to be a means to an end in the realm of the Church of the Awakening, whereas the Indians worship the drug itself.
Membership in the Native American Church is limited to those of at least one-quarter Indian blood as compared to the Church of the Awakening which requires only that a prospective member convince the governing body of the church that he agrees with the principles of the church.
Thus the exemption granted the Native American Church is reasonable, and denying the exemption to petitioners does not violate their constitutional rights.
The Government’s interest in controlling the use of peyote outweighs the infringement upon petitioners’ practice of their religion and the order of the Director is affirmed.