Justices take issue with ban of religious tea

Wednesday, November 2, 2005

WASHINGTON — For decades, it was the Jehovah’s Witnesses who pressed the Supreme Court to expand First Amendment freedom of speech and religion doctrines. Yesterday, New Mexico members of a small Brazilian religious sect seemed on the verge of playing the same role in a case pitting religious freedom against the war on drugs.

The Supreme Court heard arguments in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, in which the Bush administration asserted that the members of the sect (known as UDV) should not be able to import hoasca, a sacramental tea that contains dimethyltryptamine (DMT), a Schedule 1 drug banned by the federal Controlled Substances Act.

Deputy Solicitor General Edwin Kneedler encountered resistance from the Court when he took a categorical stance against any importation of hoasca, in spite of the Religious Freedom Restoration Act. RFRA, passed in 1993, bars government from burdening the exercise of religion unless it can show a “compelling governmental interest.” Inclusion of the drug on the banned list under the Controlled Substances Act was in itself sufficient to show that interest, Kneedler said. He also relied on the fact that allowing use of the drug would violate a 1971 treaty signed by the U.S. that specifically bans DMT.

Judges on two lower courts found that nonetheless, the government had failed to show a compelling interest in keeping the small number of UDV followers from using the tea in their rituals. Among those judges was Michael McConnell, who serves on the 10th U.S. Circuit Court of Appeals, and whose views on church-state issues are especially influential. So Kneedler was starting from a disadvantage, and he appeared unable to turn the tide.

Several justices pointed to the fact that Congress had passed an exception to the Controlled Substances Act to allow use of peyote by the Native American Church. That, said Justice Antonin Scalia, shows “you can make an exception without the sky falling.” Justice John Paul Stevens added, “The historical evidence is that the sky did not fall.”

Kneedler argued unconvincingly that the peyote exception was an exercise of separate congressional authority over Indian tribes, and as a result was irrelevant to the current case.

Chief Justice John Roberts also seemed to attack the government’s rigid position, asserting that if an exception for DMT was made, and it turned out that it led to abuse or a suspicious increase in the number of adherents, it could be changed.

When Roberts asked if the government’s position would be the same if the religion's followers only used one drop of the tea once a year, Kneedler said yes.

In fact, according to the brief for the group, the tea is not heavily used in ceremonies, and has an unpleasant taste. The sect has fewer than 200 members in the United States.

New Mexico lawyer Nancy Hollander, representing the religious group, said her clients were simply “seeking the right to exercise their religion,” a right protected by RFRA.

Several justices, in their questioning of Hollander, seemed troubled by the treaty aspect of the case, wondering whether U.S. treaty obligations should trump RFRA. But Scalia intervened to offer her a helpful answer: “Isn’t it well established that statutes can trump treaties?” Hollander agreed. In rebuttal, Kneedler asserted that in fact the treaty does take precedence over RFRA.

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