"Your approach is totally categorical,'' Roberts told government lawyer Edwin Kneedler during a one-hour argument session in Washington. If a religious group used only one drop of the drug a year, : "your position would still be the same,'' Roberts said....Interesting! I suppose people will compare this to last term's medical marijuana case, Raich, in which the Court (including Scalia) was quite deferential to the claim that the government needs to be able to pervasively regulate a drug. But Raich was about the scope of Congress's power as against the power of the states. Today's case is about two different federal statutes, one coming after the other and capable of limiting it. The question isn't how much constitutional power Congress has, but what Congress actually did in its two statutes. If it didn't want to cut special exemptions to religious groups, it shouldn't have passed the Religious Freedom Restoration Act. If it didn't want RFRA to apply to drugs, it could have written an exception into it. But in fact, RFRA was enacted in response to a Supreme Court case that was about the failure to give special treatment to the religious use of a drug, so it's especially apt that it should apply here.
Justice Antonin Scalia, who wrote the 1990 decision, pointed to an exception Congress made for peyote in American Indian religious ceremonies.
"It's a demonstration you can make exceptions without the sky falling,'' Scalia said.
Justice John Paul Stevens followed up by asking whether the use of peyote indicated that "maybe it's not all that compelling.''
Of the nine justices, Anthony Kennedy offered the strongest support for the government's position.
"It seems to me at the very least there should be a presumption that there is a compelling interest,'' Kennedy told Nancy Hollander, the church's lawyer....
Several justices, including Scalia and Roberts, questioned Hollander's contention that hoasca is exempted under the 1971 United Nations Convention on Psychotropic Substances, which aims to bar trade in illicit drugs. The U.S. is among more than 160 signatories to that treaty.
Both Scalia and Roberts, however, said Congress has the authority to override a treaty through domestic law.
"Isn't it well established that statutes trump treaties?'' Scalia asked.
UPDATE: Here's the report from SCOTUSblog.