February 21, 2006

Just[ices] say yes to hallucinogenic tea.

The Supreme Court is back from a long break today, with Samuel Alito on the bench for the first time. There's a new opinion, in the hallucinogenic tea case:
Justices, in their first religious freedom decision under Chief Justice John Roberts, moved decisively to keep the government out of a church's religious practice. Federal drug agents should have been barred from confiscating the hoasca tea of the Brazil-based church, Roberts wrote in the decision.

The tea, which contains an illegal drug known as DMT, is considered sacred to members of O Centro Espirita Beneficiente Uniao do Vegetal, which has a blend of Christian beliefs and South American traditions. Members believe they can understand God only by drinking the tea, which is consumed twice a month at four-hour ceremonies.

I'll read the case and have more later. Here is my earlier post on the oral argument in the case:
A religious group wants to use a drug -- hoasca -- and argues that the Religious Freedom Restoration Act entitles it to an exemption from the Controlled Sustances Act. Under RFRA, the federal government must have a compelling state interest to impose a substantial burden on the free exercise of religion. The government claims an interest in preventing the drug from being diverted into other uses:
"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....

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.
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.
Today's opinion is unanimous (with, Alito, of course, not participating). It's written by the new Chief Justice, so I'm especially interested in reading it. I so devoutly hope to find his opinions sublimely crisp.

UPDATE: I’ve read the case, which is called Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal. The government said it has a compelling interest in the uniform application of the federal law, but Roberts slapped that down:
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. But RFRA 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.”…

We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA. But it would have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance.
There was also an argument that the government has a compelling interest in complying with the international Convention on Psychotropic Substances, which, the Court held, did in fact cover hoasca. But the government failed to present any evidence of what detriment would occur if this small group were given an exemption.

The Court tweaks the government for relying so heavily on interests represented by the Controlled Substances Act:
Congress had a reason for enacting RFRA, too. Congress recognized that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” and legislated the compelling interest test as the means for the courts to “strik[e] sensible balances between religious liberty and competing prior governmental interests.”

We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. 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.
I must say that I find this case quite amusing! Congress catered to religious interest groups by passing RFRA and thereby disagreeing with the way the Smith Court had read exemptions out of the Constitution's Free Exercise Clause. The Court had tried to constrain the judicial role, but Congress then forced that role on the courts with a statute. And now the Court is taking the statute seriously. They are deferring to Congress by accepting the old activist role of making case-by-case accommodations. How deliciously ironic.

22 comments:

David said...

There should be no difference between the religious use of a drug and the recreational use of a drug under the law-Federal or State.

This is a pandora's box that needs to be shut quickly!

MadisonMan said...
This comment has been removed by a blog administrator.
MadisonMan said...

There should be no difference between the religious use of a drug and the recreational use of a drug under the law-Federal or State.

So Freedom of Religion should be ignored if drug use is a part of the religion? I am thankful that the justices have not ruled that way in the past.

I will note that sacramental wine was legal (and very very popular) during Prohibition. Exemption for religions have a long history. And rightly so.

Karl said...

Is the decision online yet?

I've looked here to no avail.

-kd

Edmund said...

"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....

Does anyone besides me find this troubling? I guess this is how we end up with decisions like Kelo.

Karl said...

It's up now, at the above link.

-kd

Goesh said...

The Native American Church and peyote comes to mind here...

Smilin' Jack said...

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.

Hmmm...can I just make up my own religion if I want to do drugs? Or does it have to be a religion approved (i.e. established) by Congress?

Bruce Hayden said...

I do find there to be a big difference between medical and religious use of a drug. The later is arguably protected by the 1st Amdt. The former is really not.

Someone pointed out about Communion wine - available during the Depression. But also note that it is the one big exception to the 21 drinking age. Millions of teenagers legally drink it at Communion.

I know it shouldn't be this way, but I think the reality is that the courts have to look at the sincerity of a religion's use of these substances, whether they be wine, peyote, or hoasca tea. A long standing tradition would go a long way to showing that it was being done for religious reasons, and the religion not being practiced for the chance to consume the otherwise illegal substance.

Kirk Parker said...

Edmund,

Yes indeed. Perhaps our conlaw hostess can explain why Kennedy's statement doesn't mean what it appears to. But if she's not so inclined, or finds it as troubling as we do....

Ann Althouse said...

Smilin' Jack: You can have your own completely idiosyncratic religion, but the test will be whether you actually believe it.

Smilin' Jack said...

Smilin' Jack: You can have your own completely idiosyncratic religion, but the test will be whether you actually believe it.

I actually believe that I'm endowed by my Creator with an inalienable right to pursue happiness, which includes the right to consume drugs of my choice. Is that good enough? In other words, if I'm arrested for "substance abuse," does the prosecution have the burden of proving that I don't actually believe that?

Also, someone else brought up the example of communion wine being served to underage minors. Shouldn't those minors be tested on the sincerity of their Christian beliefs? And just how would that be done?

DaveG said...

The best approach IMHO would be for the government to adopt the term "Freedom" in it's fullest practical sense and extend the emanations of the penumbra (or however that convoluted logic was stated) of the Constitutional Right to Privacy that applies to womens' reproductive rights to the right to ingest whatever our little hearts desire, and just stay out of deciding what is an appropriate and what is an inappropriate use of naturally occuring drugs. After all, where's my right to privacy? Where's my right to have control over my body?

bill said...

The court takes a step ... is this a harbinger of what is to come?

Freeman Hunt said...

I actually believe that I'm endowed by my Creator with an inalienable right to pursue happiness, which includes the right to consume drugs of my choice.

Believing that you are endowed with a right by God is a far cry from believing you are obligated by God. These exemptions seem to be for people who are religiously obligated to use such substances.

Patrick Martin said...

Just to make sure everybody is clear, the Court did not find a First Amendment right to drink hallucinogenic tea here. They merely found that Congress, in passing the Religious Freedom Restoration Act of 1993, intended to overrule all laws, including drug control laws, which unreasonably interfered with the exercise of religious beliefs. This was just statutory interpretation. If Congress doesn't want William S. Burroughs and Allen Ginsberg's beverage of choice to be legal, they can easily fix it.

If anybody is interested, The case (in pdf) is Gonzales v. Centro Espirita Beneficente Uniao Do Vegetal. The tea at issue is called "hoasca" or yage.

mtihqsc: the deep and profound word one encounters while floating on an hallucinogenic cloud.

Tim said...

Was the opinion as crisp as you hoped?

Eli Blake said...

Ann, you answered smilin jack by asking whether he in fact would believe it (impossible to quantify):

However, the question here also deals indirectly with the seriousness of the crime. Many people (including myself) consider that there is no compelling societal or personal reason to keep narcotic drugs illegal (here in Arizona, there is a list of 'narcotic' drugs which would include this stuff, along with marijuana and heroin, as well as a list of 'dangerous' drugs which includes cocaine and cocaine derivatives and all synthetic drugs like LSD, ecstasy and meth; the definitions and penalties differ). Now, if a church sprang up after listening to some self-proclaimed prophet who insisted on using meth in their ceremonies, would this be protected?

Moreover, we know that there are religions with many followers including Santeria that require the use of animal sacrifices. Is this also protected? And, there are religions which have been practiced in places like Papua during relatively recent times (as in many former practicioners are still alive although the Australian army 'pacified' the place in the 1950's) that involve the use of human sacrifices and cannibalism. There are also rumors (none of which have been proven) that Satanists practice human sacrifice. Clearly the first amendment would not be construed to excuse murder, but there has to be a line clearly delineated somewhere.

Where do you place it, and does Roberts' opinion clearly indicate where it should be placed on the scale:

narcotic drug (peyote)
dangerous drug (methamphetamine)
animal cruelty (animal sacrifice)
murder (human sacrifice)

Ann Althouse said...

Eli: "Ann, you answered smilin jack by asking whether he in fact would believe it (impossible to quantify)."

It's not my test. It's the Court's. And factfinders every day make decisions about mental states. Some of the difficulties are resolved by assigning the burden of proof to one party or another.

What's the alternative, if you're going to have religious exemptions? You can't prefer some religions over others, and you can't test the truth of the religion.

brian said...

I've just got to get on record saying this isn't the first time that "Justices say yes to hallucinogenic tea." I think Thomas has been drinking it for years.

Eli Blake said...

Exactly, Ann. It is the court's decision. That is why I am so interested in what Roberts thinks about it.

Of course, if we made narcotic drugs uniformly legal, there would be no problem with any of the religions that have been raised by this case, and everyone would then have access to the same drugs.

But sooner or later the court will have to draw a line, I would think.

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