Pubdate: Sat, 1 Apr 2006
Source: Liberty Magazine (US)
Copyright: 2006 Liberty Magazine
Author: K. Hollyn Hollman,
Note: K. Hollyn Hollman is general counsel for the Baptist Joint 
Committee for Religious Liberty in Washington, D.C
Note: the hoasca ruling, 24 pages
Bookmark: (Hallucinogens)


Missing were the shouting protestors with placards, the miniature Ten
Commandments tablets, and the throng of media representatives. It was
almost business as usual the day the Supreme Court heard the term's
sole religious liberty case. Unlike the Ten Commandments display cases
that received so much media attention last term and flamed the
cultural debates on religion, the case of O Centro Espirita
Beneficiente Uniao Do Vegetal v. Gonzalez made its way to the Supreme
Court rather quietly. At oral argument in November last year, the case
drew the attention mostly of the members of the small religious sect
whose central sacrament is threatened by the enforcement of federal
drug laws against them. While much of the media took a pass on this
one, all who are interested in the protection of religious liberty
should take note, because the importance of this case may far exceed
the particular religious practice at issue.

In broad terms, the case addresses the fundamental question of what
the government must do to protect the free exercise of religion.

As with many of the Court's religious freedom cases, it also
demonstrates how cases dealing with religious minorities and uncommon
religious practices often test our country's commitment to fundamental
freedoms that others may take for granted.

It is in cases arising from religious minorities that courts affirm or
deny the principles of the religion clauses that apply to all. Such
cases remind us that when religious liberty is denied to anyone,
everyone's religious liberty is threatened.

The case began more than six years ago with the federal government's
attempt to prohibit a small church from practicing its religion.

The church (known as "UDV") has about 150 members in the United States
and follows the teachings of a religion native to Brazil. The church's
religious practices involve a central sacrament of ingesting a tea,
known by its Portuguese name, hoasca, that is ritually prepared from
two Brazilian plants.

Members of the church believe that hoasca, when used in UDV's
religious ceremonies, brings them closer to God. A small amount of the
chemical dimethyltryptamine (DMT) results from the preparation of the
tea. DMT is on a list of chemicals regulated by the Controlled
Substances Act.

The government confiscated the church's plants and records, threatened
its members with prosecution, and sought to prevent further
importation and use of hoasca.

When negotiations failed to resolve the dispute, UDV sued the
government under the Religious Freedom Restoration Act (RFRA) to stop
the government from using the Controlled Substances Act against them.
The church presented evidence that the consumption of hoasca has
caused no significant adverse health consequences and has not been
diverted to illicit use. The government claimed that hoasca posed a
health danger to UDV's members and was likely to be diverted to
nonreligious use, and its importation from Brazil would cause the
United States to violate an international treaty.

UDV was successful in the lower court proceedings, and the government
appealed to the Supreme Court.

This case marks the first time an RFRA case has reached the Supreme
Court since the 1997 City of Boerne case invalidated RFRA's
application to state laws. RFRA, which was supported by a broad
coalition of religious and civil liberties organizations, including
Seventh-day Adventists, Baptists, Catholics, Jews, and Muslims,
requires that the federal government have a compelling interest,
exercised by the least restrictive means, when it substantially
burdens religion.

The federal statute, which remains in effect as to federal laws after
City of Boerne, is an essential protection for religion in light of
the Supreme Court's 1990 decision in Employment Division, Oregon
Department of Human Resources v. Smith, 494 U.S. 872 (1990), which has
been widely criticized for reducing protections under the free
exercise clause. Without RFRA, religious practices that are burdened
by neutral, generally applicable laws of the federal government would
not be protected. When Congress passed RFRA, it did so recognizing
that many times general laws incidentally and unintentionally harm

RFRA was intended to guard against such harms.

In the UDV case the federal government makes the expansive argument
that it has a compelling interest in the "uniform application" of the
drug laws. In other words, the Controlled Substances Act cannot allow
exceptions based upon religious beliefs; uniform enforcement meets the
compelling interest test without a case-by-case review.

The significance of the case to the larger religious community lies in
that broad claim.

The government's analysis would sharply limit RFRA. It is that
concern, and the deep investment many religious organizations had made
as part of the broad Coalition for the Free Exercise of Religion that
supported the passage of RFRA, that led to broad amicus support in
favor of UDV.

In fact, RFRA was specifically designed to make it hard for government
to impinge on the free exercise of religion without a good specific
reason. The government's position, however, would allow it to be
excused from making the proper statutory showing.

As Judge Michael McConnell explained in the case at the Tenth U.S.
Circuit Court of Appeals, "Congress' general conclusion that DMT is
dangerous in the abstract does not establish that the government has a
compelling interest in prohibiting the consumption of hoasca under the
conditions presented in this case."

UDV, and many religious entities that filed briefs on its side, argued
forcefully that the government cannot avoid its burden under RFRA by
asserting that the drug laws can bear no exemptions. To satisfy the
compelling interest test, the government must show a serious harm,
based on specific evidence rather than speculation or general statements.

At the Supreme Court, a senior deputy solicitor general, Edwin S.
Kneedler, argued the government's case. The questions came quickly,
and at least some of the questions from the bench indicated skepticism
about the government's sweeping theory.

A couple of justices noted exceptions in drug laws for the use of
peyote as a sacrament in the Native American Church. Justice Antonin
Scalia asserted that such an exception was a "demonstration that you
can make an exception without the sky falling in." Justice Ruth Bader
Ginsburg had the same concern and questioned whether permitting an
exception for one religious group, but not others, would raise
constitutional concerns.

Questions for UDV, represented at oral argument by Albuquerque, New
Mexico, attorney Nancy Hollander, however, indicated that the context
of the claim in the federal drug law arena and international treaty
obligations relating to those laws make this case a challenging one
for the Court. Chief Justice John Roberts, hearing his first religious
freedom case since his confirmation, asked questions about whether the
Court's outcome should be different if UDV expanded or if later hoasca
was diverted from its religious use. Others questioned how an
exemption for UDV would square with United States treaty

On February 21, the Court issued a unanimous opinion in favor of UDV.
The opinion was written by Chief Justice Roberts in his first religious
liberty case. The Court rejected the Government's argument that it had
a compelling interest in the uniform application of the Controlled
Substances Act that would not allow exceptions to accommodate UDV. That
argument was fatally undermined by the longstanding exemption for
religious use of peyote by Native Americans. Instead, the Court read
RFRA according to its terms and enforced it in a way that bodes well
for religious freedom and the continuing vitality of RFRA. Because the
case was decided on a preliminary injunction, the case now goes back to
district court for additional proceedings.
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