U.S. Government Fights Against Religious Freedom
Supreme Court Hears Ayahuasca Religious Case
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The US Supreme Court Tuesday heard oral arguments in a case in which the federal government seeks to bar a small religious group from using its holy sacrament, a hallucinogenic tea known as ayahuasca (hoasca). The case highlights the clash between the spiritual mandate of the Religious Freedom Restoration Act (RFRA), designed to insulate religious practices from federal government intrusion, and the drug war imperatives of the Controlled Substances Act. Because of its RFRA implications, it is the rare illegal drug case to have incited groups such as the Baptist Joint Commission on Religious Freedom and the National Association of Evangelicals to submit amicus briefs to the court.
The government has so far lost at every level but continues to spend taxpayer dollars in its six-year battle against the US branch of the Brazil-based church O Centro Espirita Beneficiente Uniao do Vegetal (the Spiritual Center of the Union of the Vegetable, or UDV), a Santa Fe, New Mexico, grouping that imported ayahuasca from Brazil to use in its religious ceremonies. In May 1999, DEA agents seized a shipment of ayahuasca, only to be slapped a year-and-a-half later with a civil action by the church, which benefited from legal counsel paid for from the deep pockets of its leader, Seagram's whiskey fortune heir Jeffrey Bronfman.
A US district court judge ruled that under the RFRA, the federal government could not interfere with the UDV's ayahuasca use, and granted a preliminary injunction to that effect. That ruling was upheld last year by the 10th Circuit Court of Appeals, and there matters would have rested had not the Bush administration been so fervent in its desire to quash any challenge to the CSA. So Attorney General Alberto "Mr. Torture" Gonzales appealed that decision to the US Supreme Court.
If oral arguments on November 1 in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal were any indication, it does not appear that the federal government is going to fare any better before the highest court in the land. Deputy Solicitor General Edwin Kneedler, who argued the case for the government, found himself under sustained attack from the bench as he attempted to justify the government's absolutist approach. And while his attackers were many, only one of the nine justices, Anthony Kennedy, seemed sympathetic to Kneedler's argument.
The question before the court was whether the RFRA required the government to allow the use of an "illicit" drug for ritual purposes. No way, argued Kneedler, reprising the arguments put forth in the government's written brief. While the RFRA requires the federal government to show a "compelling interest" in prohibiting a religious practice, Kneedler argued that the mere listing of DMT, the psychoactive substance in ayahuasca, in the CSA's most restrictive schedule met the "compelling interest" requirement. "The congressional listing in and of itself is sufficient," he said, adding warnings that the sacrament could be diverted or prove harmful to users.
And in a hard-line, zero-tolerance argument indicative of the federal government's general approach to drug issues, Kneedler argued that ruling in favor of the UDV would give individual federal judges the power to grant exemptions from the CSA. To do so would "turn over to 700 district judges" the ability to undo Congress' "categorical judgment" that certain substances should be prohibited in all circumstances.
"But that's exactly what the Act [RFRA] does," retorted Justice David Souter. He wasn't the only one to challenge Kneedler on that point. Justice Sandra Day O'Connor pointed out that in enacting the RFRA Congress "did seem to indicate that the courts are supposed to examine each instance."
Justice Antonin Scalia also brushed aside Kneedler's argument that individual judges should not be able to move drugs off the CSA's most restrictive schedule. "RFRA overrides all that," Scalia said. "It says there can be an exception to all federal statutes where there is a religious objection and a court makes a finding there can be an exception."
Scalia should know. The RFRA was passed by Congress in 1993 in part to undo a 1990 Supreme Court decision allowing states to ban the tribal use of peyote. Scalia was the author of that decision. Referring back to Congress' move to enact an exemption for peyote, Scalia said: "This demonstrates you can make an exception without the sky falling."
Justice Ruth Bader Ginsburg also grilled Kneedler. Referring to the exemption for peyote use by the Native American Church, Ginsburg said the government had not shown its need for uniformity was compelling. "The two situations seem to be alike, peyote and this," Ginsburg said. "The problem of preferring one religious group over another arises once there is an exception."
Even Justice Stephen Breyer, who has proven fond of federal drug laws while on the court, worried about "a rather rough First Amendment problem" if the government allowed the Native American Church to use peyote, but barred other religious groups from using sacramental psychedelics.
And in one of his first appearances on the high court, new Chief Justice John Roberts joined the majority of his colleagues in skeptical questioning of the government's case. "We don't have to make a once-and-for-all determination, do we?" he asked. An exemption for the UDV's ayahuasca use could be reexamined if it turned out the drug was being diverted "or the membership of the church expands in a way that leads you to believe it is being abused."
Roberts also needled Kneedler into arguing that Congress could prohibit the church's use of ayahuasca even if each member consumed but one drop a year. "Your approach is totally categorical," Roberts told his former colleague. "If there were one group, in one year, and it gave each member one drop, and the practice were rigorously policed, your position would be the same."
Lead attorney for the UDV Nancy Hollander also came in for some tough questions, but the former head of the National Association of Criminal Defense Lawyers had a much easier time than Kneedler.
Hitting the high points of her written brief, Hollander argued vigorously that if the law allowed for the use of peyote by one religious group, it must allow for similar use of ayahuasca by another. She also attacked the government's claims of the dangers of diversion or harm to UDV members from taking the sacrament. As for the international treaties, Hollander argued that while DMT is mentioned, ayahuasca is not, and that other nations that have signed the treaty do not regard it as covered.
The court will not issue a decision in the closely-watched case until sometime this winter, but the tenor of the oral arguments should leave the UDV feeling fairly confident. But concern over the case isn't limited to exotic tea drinkers and drug reformers eager to see freedom cracking the wall of the paternalistic, big-government Controlled Substances Act. That's because the case is ultimately not about drugs but about religious freedom and the scope of the RFRA. If the drug laws are allowed to crush religious freedom, other laws could be applied in a manner that eroded that freedom, religious groups worry.
And that's why a number of them have filed briefs urging the Supreme Court to rule on the side of the UDV. "We don't question the government's interest in protecting against drug abuse," said K. Hollyn Hollman, general counsel for the Baptist Joint Committee. "We question whether it can show a compelling interest without taking into account the particular circumstances of the religious claimant. It is not enough for the government to say it has an interest in upholding its laws," she said. "RFRA requires it show a compelling interest in applying laws to particular religious conduct."
The Christian Science Church also urged the court to support the RFRA.
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