Religious-tea dispute brings RFRA back to high court

Tuesday, April 19, 2005

WASHINGTON — The Supreme Court yesterday added to its docket a case that will test how much deference the federal government should give to religious practices that would otherwise be illegal.

The case, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, was filed by the Bush administration to keep the members of a New Mexico church from using a hallucinogenic tea in their ceremonies.

The case, which will be argued in the fall, will be an important test of what is left of the federal Religious Freedom Restoration Act — or RFRA, part of which was declared unconstitutional in 1997.

The Christian church, founded in Brazil, has about 130 American members who drink hoasca, an herbal tea that contains dimethyltryptamine, during regular ceremonies. DMT is barred under the federal Controlled Substances Act and also under an international treaty.

Acting Solicitor General Paul Clement argues that allowing use of the tea, which is imported from Brazil, would “open the nation's borders to the importation, circulation, and usage of a mind-altering hallucinogen and threatens to inflict irreparable harm on international cooperation in combating transnational narcotics trafficking.” The government also contends that mandating it to allow importation would force it to violate the United Nations Convention on Psychotropic Substances, and would weaken the government's ability to urge other nations to abide by the treaty.

The administration wants the high court to overturn a November 2004 en banc ruling by the 10th U.S. Circuit Court of Appeals. That decision affirmed an earlier injunction that prohibited the government from barring importation and use of the tea. The 10th Circuit ruling cited RFRA, which requires the government to demonstrate a “compelling governmental interest” before it can “substantially burden” religious practices.

The government did not meet that test, the 10th Circuit found, because it did not prove that use of the tea would lead to adverse health effects.

In a concurring opinion, Judge Michael McConnell — an expert on church-state issues — also noted that the Controlled Substances Act allows for exceptions, and that the Native American Church's use of peyote in its ceremonies has been permitted under the law. The exemptions, McConnell said, indicate “Congress’ belief that at least some uses of the substances controlled by the act are consistent with the public health and safety.”

In City of Boerne v. Flores in 1997, the high court struck down part of RFRA as it related to state government actions, but allowed it to continue to apply to federal laws such as the Controlled Substances Act.

In a reply to the government's brief, church lawyer Nancy Hollander said the government’s arguments were “alarmist,” and she said the government had not shown that the ceremony represented any harm to society. Hollander also argued that because the 10th Circuit merely upheld a preliminary injunction in the case, it should be allowed to go to trial on the merits.

That ordinarily would have been a strong argument that would dissuade the high court from taking up a case that still had issues to resolve in courts below, but the justices apparently responded to the government’s request that the Supreme Court rule at this stage.

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