Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal

[Torsten]

http://www.scotusblog.com/movabletype/arch...l_tea_case.html

Tuesday, November 01, 2005

Herbal tea case: a government loss?

Posted by Lyle Denniston at 01:58 PM

A small religious band of about 140 adherents, locked in a high-stakes legal battle with federal drug enforcers, appeared on Tuesday to be nearing at least a partial victory in the Supreme Court. The government’s no-exception, zero-tolerance approach to the religious use of a hallucinogen ran into considerable skepticism among the Justices. Only one, Justice Anthony M. Kennedy, seemed ready to go most of the way to support the government side.

Despite the small size of the sect, and the rather exotic substance it uses in its rituals – hoasca tea, imported from Brazil and containing a banned substance, the case of Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal(docket 04-1084) poses a major conflict between the Controlled Substances Act, banning a wide array of narcotics, and the Religious Freedom Restoration Act, insulating religious practices from federal government intrusion. This, in fact, is the clearest test case yet on RFRA as it applies to government drug policy.

The case was argued Tuesday at a high level of advocacy: Deputy Solicitor General Edwin S. Kneedler for the government, and Nancy Hollander of Albuquerque, N.M., for the religious sect. In the end, however, Kneedler appeared to be struggling to maintain support for blanket enforcement of the Controlled Substances Act against a tiny religious group. Chief Justice John G. Roberts, Jr., for example, told Kneedler: “We don’t have to make a once-and-for-all determination. If some of the things you say come true – if there is a lot of diversion [of the tea], or there is an expanded church, the drug was being abused – we could re-visit this.” Roberts also remarked: “Your approach is totally categorical: 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.” Kneedler did not disagree.

Perhaps the most telling development of the argument was that Justice Antonin Scalia displayed almost no sympathy for the government’s position. Noting that Congress has created an exception to drug policy for Indian tribes’ ritual use of peyote, Scalia told Kneedler: “This demonstrates you can make an exception without the sky falling.” Kneedler did not do well in trying to explain away the peyote exception as limited to Congress' special concern for Indian tribes. Scalia, of course, was the author of the Court’s 1990 decision (Employment Division v. Smith) allowing states to ban the tribal use of peyote – a decision that Congress essentially overturned in passing RFRA, and enacting a separate exception for Indians’ use of peyote.

When the small religious sect’s lawyer, Hollander, was being pressured to defend the religious use of hoasca tea against the government’s reliance on a 160-nation treaty banning the import of the hallucinogen, Scalia came to her rescue. “Statutes trump treaties,” he said, so “if RFRA can trump a statute [like the Controlled Substances Act], it can trump a treaty.”

Justice Stephen G. Breyer, who has shown sympathy for the government's drug policy, told Kneedler that he saw "a rather rough First Amendment problem" of discriminating among religions if government policy allows the Native-American Church to use peyote as a sacramental substance, while other sects' adherents are forbidden to use other substances.

The O Centro case reached the Supreme Court in an appeal from a preliminary injunction barring enforcement of drug law against the Uniao Do Vegetal sect for its herbal tea sacrament. The Court had refused last December to stay that injunction, but then granted review of the government's appeal in April. Two Justices -- Ruth Bader Ginsburg and Sandra Day O'Connor -- seemed somewhat troubled about the thin record made in the case, because it has proceeded only to the preliminary injunction stage. If that concern spreads among the Court's members, it is conceivable that the case might be returned to lower courts, for a full trial as the sect sought a permanent injunction to allow its use of hoasca tea.

Kneedler sought to rely in part on prior Supreme Court precedents allowing the government to enforce general laws against religious practices -- such as the Social Security Act, the tax code, state laws against polygamy, and Sunday closing laws. Those precedents demonstrate, the government lawyer said, that the Court has found individual exceptions for religious practices to be inappropriate.

Making an exception (beyond peyote) under the Controlled Substances Act, Kneedler said, "would turn over to 700 District judges" the judgment about enforcing federal drug law. Justice David H. Souter retorted: "That's exactly what the Act [RFRA] does." Justice O'Connor chimed in that Congress, in enacting RFRA, "did seem to indicate that the courts are supposed to examine each instance."

Kneedler also contended that individual judges should not be in the position to move controlled drugs off of the most restrictive list by making individual judgments about how safe a drug is. There is an administrative process for making those judgments, he said. But Scalia immediately shot back: "RFRA overrides all of that. 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."

Hollander put a good deal of emphasis in her side of the argument on the special status that peyote has under federal drug policy. She noted, for example, the tiny size of the Uniao Do Vegetal sect, and compared that with the 250,000 members of the Native-American Church using peyote. She also suggested that the government was exaggerating any problem of diversion of hoasca tea beyond the sect's small number of adherents, and pointed out that, in the significantly larger Native-American Church, there has been no evidence of a diversion of peyote. Hollander also noted that Native-Americans drink sacramentally a tea containing peyote.

She sought to counter the government's reliance on the global treaty banning import of the hallucinogen, arguing that hoasca tea is not even covered by that pact, and noting that other nations that have signed the treaty do not regard it as covered.

Scalia did tell Hollander that he was worried about "the general proposition we would be adopting" if it found that the Controlled Substances Act had been displaced in part by RFRA. If there were a federal law against bigamy, but just a "tiny little group" insisted on its religious need to follow that practice, the government might be unable to step in to stop that. The sect's lawyer responded that, if that situation should arise, the courts would simply make the same kind of analysis: was the religious practice sincere, and did the government show it had a compelling interest in stopping the practice? "All that RFRA does," she said, "is to give every religious organization an opportunity to go into court to make its claim" for protection.

The Court has no timetable for deciding the case. It is likely to reach a decision in the winter.

[Torsten]

N Y Times

November 2, 2005

Justices Weighing Narcotics Policy Against Needs of a Church

By LINDA GREENHOUSE

WASHINGTON, Nov. 1 - The Bush administration tried to persuade the Supreme Court on Tuesday that federal narcotics policy should trump the religious needs of members of a small South American church who want to import a hallucinogenic tea that is central to their religious rituals.

Two lower federal courts have barred the government from seizing the sacred drink, known as hoasca tea, which is brewed from indigenous Brazilian plants that do not grow in the United States. The tea's hallucinogenic effect comes from a chemical, dimethyltryptamine, usually known as DMT, which occurs naturally in the plants and is listed as a Schedule I banned substance in the federal Controlled Substances Act.

The Supreme Court refused last year to lift the preliminary injunction issued by the federal district court in Albuquerque. But the justices did agree to hear the administration's appeal. As the major church-state clash of the court's new term, the case has drawn the attention of mainstream religious groups, including the Conference of Catholic Bishops, the National Association of Evangelicals and the American Jewish Committee.

These and numerous other organizations filed briefs on behalf of O Centro Espírita Beneficiente União do Vegetal, the 130-member American branch of a Brazilian church known by the initials U.D.V. The full name rolled with apparent ease off the tongue of Chief Justice John G. Roberts Jr. at the start of the argument. Several of the other justices smiled appreciatively at his success.

Although the case clearly has constitutional overtones, the issue before the court concerns not the First Amendment's protection for religious practice but rather a federal statute, the Religious Freedom Restoration Act. Congress enacted that law in 1993 to give more protection to religious exercise than the Supreme Court itself was willing to provide in a 1989 decision that rejected the claim of members of an American Indian church to a constitutional right to use peyote in religious rituals.

Under the Religious Freedom Restoration Act, the government may not interfere with a religious practice unless it can demonstrate a "compelling" reason for doing so. The Supreme Court declared in 1997 that the law could not apply to states on states' rights grounds, but it remains applicable to the federal government. This case, Gonzales v. O Centro Espírita Beneficiente União do Vegetal, No. 04-1084, may show whether the law has teeth.

Arguing for the government, Edwin S. Kneedler, a deputy solicitor general, said the government's "compelling interest" in prohibiting the importation of the group's sacramental tea was established by the listing of DMT in the most restricted category under the federal drug law, reserved for substances that are regarded as contraband, without legitimate uses.

"The Congressional listing in and of itself is sufficient," Mr. Kneedler said.

He added that any deviation from Congress's "categorical judgment" would "turn over to 700 district judges" the power to grant individualized exemptions from a law that required uniform application in order to be effective.

But several justices objected that the Religious Freedom Restoration Act appeared to require individual determinations. Justice Antonin Scalia said he understood the law "to say there can be an exception to all federal statutes where someone makes a religious objection to compliance" and a judge finds an absence of a compelling interest.

Justice Ruth Bader Ginsburg said the fact that Congress had now granted Indian tribes an exemption for their religious use of peyote showed that the government's interest in uniformity could not be compelling.

"The two situations seem to be alike, peyote and this," Justice Ginsburg said. "The problem of preferring one religious group over another arises once there is an exception."

Mr. Kneedler replied that the peyote exception was a special case, justified by the history and special relationship between the federal government and Indian tribes.

"But," Justice Scalia said, "it still shows that you can make an exemption without the sky falling."

Chief Justice Roberts, addressing his former colleague from the solicitor general's office, asked Mr. Kneedler, "We don't have to make a once-and-for-all determination, do we?"

He said that if it turned out that the drug was being diverted to illicit uses, "or the membership of the church expands in a way that leads you to believe it is being abused," an exemption could be withdrawn.

The chief justice asked whether, under the government's "totally categorical approach," Mr. Kneedler's position would be the same if the church permitted each member to have only one drop of hoasca tea once a year.

Yes, Congress could prohibit even that minimal use, Mr. Kneedler said.

Mr. Kneedler, making his 91st argument, is one of the most experienced Supreme Court advocates of all time. His opponent, Nancy Hollander, a lawyer from Albuquerque, was appearing before the Supreme Court for the first time. But as a former president of the National Association of Criminal Defense Lawyers, Ms. Hollander was hardly a courtroom novice and managed gamely to hold her own.

All that the Religious Freedom Restoration Act did, she said, was to "give every religious organization, minority and majority, the opportunity to go into court and make their claim." She said the government's position was "fundamentally and structurally incompatible" with the statute.

One disagreement between the two sides was over the interpretation of a 1971 international treaty, the United Nations Convention on Psychotropic Substances, which obliges the 175 countries that have signed it to combat international traffic in illicit drugs. While DMT as a chemical substance or additive is covered by the treaty, there is much dispute over whether the prohibition applies to its natural occurrence in hoasca tea.

Mr. Kneedler argued that the treaty did apply, and that it provided another compelling justification for the government's policy.

[apothecary]

I just heard that Bush got fucked. Nobody wants to start the hearings on Alito until January.

Sandra Day O'Connor (that's her right?) can't leave until Alito is sworn in, and that won't happen till the hearings are over.

Which means she might actually get to vote on this one.

[Torsten]

That is excellent news. Although, I think Alito will have a few surprises. he might fuck up women's rights, but I think we might see some interesting decisions from him on gays and religious freedoms (this case is a religious freedom case).

[apothecary]

Yah I don't think Alito will want to cross Roberts and Scalia on this one too much just to please Bush, so he would probably vote in favour anyway, but I'd prefer the decision (and since she is the decider as far as I know) to land in O'Connors lap.

Hopefully the democrats have been emboldened by their recent blitz on congress floor and will continue to spread annoyance for Bush. I don't even mind Alito too much, but for every day he is out of office, O'Connor is in ;)