Religious liberty gets boost in hallucinogenic-tea case

Wednesday, February 22, 2006

WASHINGTON — Last year, the Supreme Court ruled that in the interest of the nation’s drug war, an exception to the Controlled Substances Act could not be made to allow the production of marijuana for medical use.

But yesterday, the Court made an exception to the same law, but for a different reason: to protect the First Amendment right of a small sect in New Mexico to practice its religion.

Chief Justice John Roberts’ maiden First Amendment opinion in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal was a clear and clean victory for the free-exercise clause.

“Today’s action reaffirms the importance of religious liberty,” said Barry Lynn, executive director of Americans United for Separation of Church and State. “The justices reaffirmed that the federal government cannot interfere with religion without a compelling interest.”

Roberts, writing for a unanimous court, said the government had failed to demonstrate its “compelling interest” in stopping the members of the sect from importing hoasca, a hallucinogenic tea, for use in religious ceremonies. Hoasca contains DMT, a “Schedule 1” drug banned by the Controlled Substances Act.

The church challenged the government’s action under the 1993 Religious Freedom Restoration Act, which says that general laws may not burden religious exercises unless justified by a compelling state interest. In lower court proceedings, Roberts wrote, the government conceded that enforcing the law against the church would “substantially burden a sincere exercise of religion.”

But the government justified the burden as serving government interests in protecting practitioners’ health and safety, preventing diversion of the drug to other users, and complying with an international treaty on psychotropic substances. Lower courts said the government failed to demonstrate those interests.

Roberts agreed with the lower courts, and disparaged the Bush administration’s argument that the Controlled Substances Act should be enforced uniformly — even though that argument worked in the medical marijuana case.

“The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions,” wrote Roberts. The Religious Freedom Restoration Act, he continued, “operates by mandating consideration, under the compelling interest test, of exceptions to ‘rule[s] of general applicability.’… Congress determined that the legislated test ‘is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.’”

Roberts also stressed that the law already contains an exception that explicitly allows members of the Native American Church to use peyote in religious ceremonies even though peyote is also a Schedule 1 drug. “If such use is permitted…. for hundreds of thousands of Native Americans practicing their faith,” Roberts wrote, “it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs.”

While the high court’s 8-0 ruling made it seem easy to apply RFRA to federal laws like the Controlled Substances Act, Roberts acknowledged that it wouldn’t always be simple. “We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one,” he wrote. “But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.”

K. Hollyn Hollman, general counsel for the Baptist Joint Committee for Religious Liberty, said the decision was good news. “The Court rejected the government’s categorical argument that it had a compelling interest in not allowing exceptions. To protect religious freedom, RFRA requires a case-by-case analysis to the facts of the burdened religious practice. The government did not meet its burden.”

Strictly speaking, the case is not over. The Court was ruling on a preliminary injunction that barred the government from enforcing the federal drug law against the Brazil-based church. The case now returns to lower courts where the government is entitled to make its case more fully at a trial, but Roberts’ strong language would appear to make that task very difficult.

New Justice Samuel Alito Jr. did not participate in the case, which was argued to the Court last November before he joined the bench.

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