dissenting:
I dissent because the majority fails to address the Establishment Clause implications of the Drug Enforcement Agency’s rejection of Olsen’s request for a limited religious exemption. That denial creates a clear-cut denominational preference in favor of the Native American Church, which has been granted such an exemption. As the agency has not adequately explained why the Ethiopian Zion Coptic Church must not be accorded comparable treatment, I would grant Olsen’s petition for review on the Establishment Clause claim and remand to the agency.
I.
The majority treats Olsen’s denominational preference claim as an equal protection challenge rather than as one involving the Establishment Clause. Majority Opinion (“Maj. op.”) at 1463-65. While the Supreme Court has at times discussed the principle of neutrality among religions in terms of equal protection rights, see, e.g., Fowler v. Rhode Island, 345 U.S. 67, 70, 73 S.Ct. 526, 527, 97 L.Ed. 828 (1953) (Frankfurter, J., concurring), Olsen’s choice of an Establishment Clause battleground is consistent both with the facts of this case and with the Supreme Court’s more recent precedent that applies the Establishment Clause to denominational preferences (see Larson v. Valente, 456 U.S. 228, 244 et seq., 102 S.Ct. 1673, 1683 et. seq., 72 L.Ed.2d 33 (1982)).
II.
Although certain aspects of the Supreme Court’s Establishment Clause jurisprudence are complex, the doctrine applicable in this particular case is straightforward. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Id. at 244, 102 S.Ct. at 1683; see also Everson v. Board of Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947) (“The ‘establishment of religion’ clause ... means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.”). When we are presented with government action “granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality.” Larson, 456 U.S. at 246, 102 S.Ct. at 1684.
In the instant case, the DEA has permitted the Native American Church to make sacramental use of a drug listed as a Schedule I controlled substance under the Controlled Substances Act, but denied the Ethiopian Zion Coptic Church a similar accommodation. This denominational preference constitutes a violation of the Establishment Clause unless the DEA is able to demonstrate that “it is justified by a compelling governmental interest ... and ... *1469is closely fitted to further that interest.” Larson, 456 U.S. at 247, 102 S.Ct. at 1685.
III.
The DEA asserts that it does not have the inherent authority to grant exemptions, and that “[i]n granting the exemption for the Native American Church, the [DEA’s predecessor] relied upon the intentions of Congress in the Controlled Substances Act for its authority.”* In the Matter of Petition of Carl E. Olsen for the Ethiopian Zion Coptic Church, Final Order (July 26, 1988) (“Final Order”), supra at 1466. On appeal, the agency also implies, DEA Brief at 24, that the Native American Church is to be distinguished not on the basis of its religious character, but on “the sui generis legal status of American Indians” (quoting United States v. Rush, 738 F.2d 497, 513 (1st Cir.1984)).
Neither explanation is relevant. Whatever the DEA’s authority to grant exemptions, it has in fact granted one to the Native American Church. Furthermore, that Church’s status as an indigenous faith does not affect its religious character. As the Department of Justice’s Office of Legal Counsel wrote when reviewing the Native American Church’s exemption:
[T]he special treatment of Indians under our law does not stem from the unique features of Indian religion or culture. With respect to these matters, Indians stand on no different footing than do other minorities in our pluralistic society. Rather, the special treatment of Indians is grounded in their unique status as political entities, formerly sovereign nations preexisting the Constitution, which still retain a measure of inherent sovereignty over their peoples unless divested by federal statute or by necessary implication of their dependent status. See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978).
An exemption for Indian religious use of peyote would not be grounded in the unique political status of Indians. Instead, the exemption would be based on the special culture and religion of the Indians. In this respect, Indian religion cannot be treated differently than other religions similarly situated without violation of the Establishment Clause.
Memorandum Opinion for the Chief Counsel, Drug Enforcement Administration, Peyote Exemption for Native American Church 403, 419 (Dec. 22, 1981), reprinted as attachment 16 of Memorandum of Court-Appointed Amicus Curiae in Support and on Behalf of Petitioner Carl E. Olsen (submitted to DEA on remand) (“Amicus Memorandum”).
As the United States Government unquestionably has granted the Native American Church an accommodation that it has declined to extend to the Ethiopian Zion Coptic Church, it has the burden of demonstrating that its action was required by its paramount responsibility for the control of drugs. I submit that the DEA’s explanation in its Final Order falls far short of meeting Larson’s strict scrutiny standard.
In its discussion of the issues implicated by the Establishment Clause, the DEA finds two points of distinction between the Native American Church and the Ethiopian *1470Zion Coptic Church. The first turns on differences between the practices of the two churches as they relate to the use of peyote and marijuana; the second hinges on the differences in the law enforcement problems posed by the two drugs.
The first distinction is addressed in a single sentence: “Mr. Olsen has stated that the Ethiopian Zion Coptic Church advocates the continuous use of marijuana or ‘ganja’, while the Native American Church’s use of peyote is isolated to specific ceremonial occasions.” Final Order, supra at 1467. The problem with this statement is that it wholly ignores the stringent restrictions on the members’ sacramental use of marijuana that would be imposed by the terms of the limited religious exemption requested by Olsen. See Maj. op. at 1460. The DEA later acknowledges that Olsen has proposed limiting the use of marijuana “to specific days and specific time periods,” but dismisses the proposal because of “the large amounts of marijuana available in this country, and the difficulty the DEA would have in trying to monitor compliance” with the stipulated restrictions. Final Order, supra at 1468. Without more, I find this explanation utterly unsatisfactory as any member of the Church found in possession of the drug outside the limited hours and place set aside for its ceremonial use would not be shielded by the exemption.
Moreover, the restrictions proposed by Olsen, which are similar to those imposed by the Native American Church on the sacramental use of peyote, clearly distinguish this case from those cited by the DEA (id. at 1467-68) and the majority (Maj. op. at 1468) to show that other circuits have rejected comparable claims advanced on behalf of the Ethiopian Zion Coptic Church. None of those cases involved the facts now before us: the denial of a request for a limited, prospective exemption from the Controlled Substances Act that the government had already granted another denomination.
The second distinction made by the DEA, and the one that the majority finds compelling, is the dramatic disparity between our society’s abuse of the two substances as illustrated by the fact that 19.4 pounds of peyote were seized by the DEA between 1980 and 1987 in contrast to the 15,302,-468.7 pounds of marijuana seized during the same period. Final Order, supra at 1467. “This overwhelming difference,” the DEA asserts, “explains why an accommodation can be made for a religious organization which uses peyote in circumscribed ceremonies, and not for a religion which espouses continual use of marijuana.” Id. With all respect to the DEA and my colleagues, I must demur. The difference in pounds seized is indeed overwhelming but, again, the explanation is not.
The government’s interest in preventing abuse of a given drug is not proportional to the drug’s prevalence. By classifying both marijuana and peyote as Schedule I controlled substances, Congress has determined that the federal government has a compelling interest in preventing the illegal distribution and use of both drugs. Moreover, this quantitative justification, standing alone, is difficult to reconcile with Larson. In that case, the Supreme Court invalidated a provision of a Minnesota statute exempting religious organizations that receive more than fifty percent of their funds from members (“fifty percent rule”) from certain registration and reporting requirements imposed on charitable organizations engaged in fundraising. The practical consequence of this provision was to confer a preference on well-established denominations. Applying strict scrutiny to the State’s justification of the preference, the Court conceded Minnesota’s compelling interest in protecting its citizens from abusive solicitation practices but concluded that it had failed to demonstrate that the fifty percent rule was closely fitted to further that interest. 456 U.S. at 251, 102 S.Ct. at 1686-87.
Minnesota justified the rule on the ground that it could be assumed that members of religious organizations exercise control over both the internal solicitation of contributions and the expenditure of the funds that they contribute. Id. at 248, 102 S.Ct. at 1685. The State asserted that where these safeguards do not exist, public *1471disclosure is necessary. Id. The Court rejected this justification for three reasons. First, it determined that the State had failed to provide any evidence demonstrating that members of religious organizations “will effectively control the organization if they contribute more than half of its solicited income,” id. at 249, 102 S.Ct. at 1686 (emphasis original); second, the State had not supported its assumption “that membership control is an adequate safeguard against abusive solicitations of the public by the organization,” id. at 250, 102 S.Ct. at 1686; and third, the Court rejected a premise behind the fifty percent rule— that the need for public disclosure corresponds to the percentage of nonmember contributions. Id. at 251, 102 S.Ct. at 1686-87.
The Supreme Court’s detailed scrutiny of Minnesota’s justification of the fifty percent rule underscores the superficiality of the DEA’s justification of its denominational preference in this case. The DEA offers no reason why it could not have tailored a closer fit than its out-of-hand denial of the requested exemption. The DEA finds no difficulty in monitoring the compliance by the more than 250,000 members of the Native American Church with the limited use of peyote permitted for ceremonial purposes, and the majority offers good reasons why this should be so. Maj. op. at 1464. Yet the only reason the agency gives for concluding that monitoring compliance by the estimated one to two hundred communicants of the Ethiopian Zion Coptic Church living in the United States (Amicus Memorandum at 11) should be more difficult is that our streets are awash in marijuana. Without further explanation, I find this reasoning less than compelling. As in the case of the Native American Church, the exemption would place no restriction on the agency’s normal enforcement activities beyond the parameters of the Church’s place of worship during the limited number of hours in which the sacramental use of marijuana would be permitted.
The majority notes a significant problem the DEA might face if it were to grant Olsen’s request:
Were the DEA to consider a marijuana exemption, equal protection (and/or the establishment clause ...) would indeed appear to command that it do so evenhandedly. The DEA would have no warrant to contain the exemption to a single church or religion.
Maj. op. at 1464 (citations omitted). I find the majority’s “opening the floodgate” argument more persuasive than anything the DEA has offered. It is for the agency, however, to make the argument and to explain why it would find itself unable to cope with the flood of similar applications, not for us to speculate about them.
Finally, the majority supports the denial of the exemption to Olsen by arguing that
Even if we were to credit Olsen’s equal protection argument or the dissent’s portrayal of it in terms of the establishment clause, the remedy Olsen requests hardly follows. Faced with the choice between invalidation and extension of any controlled-substances religious exemption, which would the political branches choose? It would take a court bolder than this one to predict, as our dissenting colleague appears to suggest, that extension, not invalidation, would be the probable choice.
Maj. op. at 1464. I have two responses. First, the Supreme Court has consistently recognized that conceptual problems regarding appropriate remedial actions do not relieve us of our obligation to review government classifications that are imper-missibly underinclusive. See, e.g., Arkansas Writer’s Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987) (finding Arkansas statute unconstitutionally underinclusive). Second, we would not be called upon to make the choice the majority describes if, as I believe appropriate, we were to remand the case to the DEA for further consideration in light of its Establishment Clause implications.
IV.
The DEA has chosen to accommodate one religion but not another. The Establishment Clause compels the agency to justify its distinction and requires us to scrutinize the agency’s rationale strictly. Given this demanding standard of review, I must *1472conclude that the agency has failed to satisfy its burden. Accordingly, I would grant Olsen’s petition for review and remand to the agency for reconsideration without reaching Olsen’s Free Exercise challenge,
It is by no means certain that the present exemption has its origin in a congressional mandate rather than in an agency determination that it was constitutionally required. As the DEA notes in its brief, DEA Brief at 4-5 n. 4, the first regulation exempting the Native American Church’s use of peyote was issued following the enactment of the Drug Abuse Control Amendments of 1965. Shortly before final House action on the bill, the Chairman of the House Committee on Interstate and Foreign Commerce, Congressman Harris, introduced a letter from the Food and Drug Administration (the agency then concerned with drug enforcement) in support of his recommendation that his colleagues accept a Senate amendment striking a House provision exempting the sacramental use of peyote. The letter contains the following statement:
If the church is a bona fide religious organization that makes sacramental use of peyote, then it would be our view that H.R. 2, even without the peyote exemption which appeared in the House-passed version, could not forbid bona fide religious use of peyote. We believe that the constitutional guarantee of religious freedom fully safeguards the rights of the organization and its communicants.
Ill Cong.Rec. 15,977-78 (1965). The House concurred in the Senate amendment immediately thereafter. Id. at 15,778.