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Invisibleveggie

Registered: 07/26/04
Posts: 13,985
New Mexico hallucinogenic tea case
    #3354406 - 11/13/04 03:20 AM (12 years, 30 days ago)

Appeals court sides with church over hallucinogenic tea
Casper Star Tribune

11-12-04 22:21EST
DENVER (AP) - A federal appeals court on Friday upheld a lower court's ruling that temporarily stops the government from preventing a New Mexico church from using a hallucinogenic tea.

The U.S. attorney general, the Drug Enforcement Administration and other government agencies are trying to stop the Brazil-based O Centro Espirita Beneficiente Uniao do Vegetal from using hoasca tea, which is brewed from plants found only in the Amazon River Basin.

Last year, a three-judge panel of the 10th U.S. Circuit Court of Appeals upheld a lower federal court's ruling granting the church a preliminary injunction, blocking the government from stopping the use of the tea while the church sues the government. The lower court said the use of the tea is likely protected by freedom of religion laws.

The government then asked the full court to consider the appeal, arguing that permitting the tea violates a 1971 treaty on psychotropic drugs. A majority of the court agreed the preliminary injunction should be upheld but some judges objected.

Judge Michael Murphy pointed out that before the church's Santa Fe office was raided in 1999, leaders concealed the use of the tea and told customs agents it was an herbal extract to be used as a health supplement.

''It is odd, indeed, to assume that (the church) thought its actions were entirely lawful and protected by the Religious Freedom Restoration Act or the First Amendment, in light of the fact that all of its actions were taken in secret,'' he wrote.

Jeffrey Bronfman, president of the church, sued the Justice Department after U.S. Customs agents seized 30 gallons of hoasca tea in 1999. No one was arrested.

The church's U.S. operations are based in Santa Fe. About 130 people, many of them Brazilian citizens, are members of the U.S. branch, according to court documents.


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Invisibleveggie

Registered: 07/26/04
Posts: 13,985
Re: Court sides with church over hallucinogenic tea [Re: veggie]
    #3440855 - 12/03/04 03:35 AM (12 years, 10 days ago)

Just an update to this story. Guess I'll postpone my joining this church til this is all sorted out.

Court blocks church from using hallucinogenic tea
December 2, 2004
Detroit Free Press

WASHINGTON -- The Bush administration won a Supreme Court stay Wednesday that blocks a New Mexico church from using hallucinogenic tea the government contends is illegal and potentially dangerous.

The government has been in a long-running legal fight with Brazil-based O Centro Espirita Beneficiente Uniao do Vegetal over hoasca tea, brewed from plants found in the Amazon River Basin. The tea contains DMT, a controlled substance.

The U.S. 10th Circuit Court of Appeals in Denver found that the church probably has a religious-freedom right to use the tea. The administration plans to appeal but wanted the church barred from using the tea in the meantime.

Justice Stephen Breyer, acting on behalf of the full court, granted a temporary stay to give both sides time to file more arguments with the circuit court.

The church's leader had sued after federal agents raided his office in Santa Fe in 1999 and seized 30 gallons of the tea.

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Christmas is not a time nor a season, but a state of mind. To cherish peace and goodwill, to be plenteous in mercy, is to have the real spirit of Christmas. - Calvin Coolidge


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Anonymous

Re: Court sides with church over hallucinogenic tea [Re: veggie]
    #3452994 - 12/06/04 02:46 AM (12 years, 7 days ago)

30 gallons of tea, whew. wonder how potent it was, a big glass to get enlightened or not much at all..


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Invisibleveggie

Registered: 07/26/04
Posts: 13,985
Re: Court sides with church over hallucinogenic tea [Re: veggie]
    #3478956 - 12/10/04 11:23 PM (12 years, 2 days ago)

Another update:

New Mexico church wins one round in fight over hallucinogenic tea
12/10/2004 1:50:39 PM
Associated Press
kpho.com

SUPREME COURT A New Mexico church has gotten a Christmas gift from the Supreme Court, winning permission for its members to use hallucinogenic tea and leaving the government holding the bag.
The high court lifted a temporary stay the government had won last week. The administration contends the tea is illegal and dangerous.The attorney for the church, which is a branch of a Brazilian denomination, told justices that the tea (hoasca) is not only safe, but is sacred to members, who feel connected to God by using it.She says since the federal agents raided the church in 1999 and began a legal fight over the tea, church members haven't been able to receive communion, a particular loss at Christmastime.


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Invisibledr_gonz
Registered: 08/18/03
Posts: 44,644
Re: Court sides with church over hallucinogenic tea [Re: veggie]
    #3479334 - 12/11/04 12:34 AM (12 years, 2 days ago)

I think I'm gonna puke now :puke:

Quote:

WASHINGTON -- The Bush administration won a Supreme Court stay Wednesday that blocks a New Mexico church from using hallucinogenic tea the government contends is illegal and potentially dangerous.




How dare them. The Indians are just practicing what they have been since the beginning of their culture. It's absolutely ludicrous for the government to step in and say that a natural plant which they choose to ingest is "illegal and potentially dangerous"

Ummmm ok.... Silly me, sometimes I forget how fucking safe and enlightening tobacco and alcohol can be :mad2:

This madness must end!  :mushroom2: :sun: :heart:


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InvisibleShroomOmatic
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Re: Court sides with church over hallucinogenic tea [Re: dr_gonz]
    #3479688 - 12/11/04 01:38 AM (12 years, 2 days ago)

Tradition my friend Tradition.... dont change the ways things have been done for years.


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Invisibleveggie

Registered: 07/26/04
Posts: 13,985
Re: Court sides with church over hallucinogenic tea [Re: veggie]
    #4068720 - 04/18/05 03:16 PM (11 years, 7 months ago)

High court agrees to review New Mexico hallucinogenic tea case
April 18, 2005
reuters.com

WASHINGTON (Reuters) - The U.S. Supreme Court said on Monday it would decide whether the federal government must allow the U.S. branch of a Brazilian-based religion to import a hallucinogenic tea for use as a sacrament.

The high court agreed to review a U.S. appeals court ruling that said the government could not prohibit the sacramental use of the tea because of a 1993 religious freedom law.

The U.S. Justice Department said that under the ruling the government must allow the importation and possession of hoasca tea for religious services, even though it contains an illegal, controlled substance that can be potentially dangerous.

Members of the religion, O Centro Espirita Beneficiente Uniao do Vegetal, believe the tea is sacred and that using it connects them to God. The tea is made from two plants that grow in the Amazon.

Founded in Brazil in 1961, the religion practices a blend of Christian theology and indigenous South American beliefs. It has about 8,000 members in Brazil.

In 1993, its leader set up a branch in Santa Fe, New Mexico, and it has about 130 followers in the United States.

In 1999, U.S. Customs inspectors intercepted a shipment from Brazil to the American branch of three drums labeled "tea extract." U.S. agents then seized 30 gallons of the tea from the home of Jeffrey Bronfman, the head of the church's U.S. chapter.

The tea contains dimethyltryptamine, or DMT, a controlled substance. The government said it had a high potential for abuse and was unsafe for use even under medical supervision, but attorneys for the religion said experts testified that sacramental use of the tea caused no harm.

The U.S. branch, Bronfman and several other members sued and sought an injunction to prevent the federal government from seizing the tea and to allow its importation and use in religious ceremonies.

Acting Solicitor General Paul Clement of the Justice Department appealed to the Supreme Court after the government lost before the appeals court.

"The ... decision has mandated that the federal government open the nation's borders to the importation, circulation and usage of a mind-altering hallucinogen and threatens to inflict irreparable harm on international cooperation in combating transnational narcotics trafficking," he said.

Attorneys for the religion and its members urged the Supreme Court to deny the appeal. They said DMT was readily available in the United States from many sources, including grasses the government recommends to control roadside erosion.

The Supreme Court will hear arguments in the case and then issue a decision during its upcoming term that begins in October.


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OfflineMadtowntripper
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Re: Court sides with church over hallucinogenic tea [Re: veggie]
    #4069353 - 04/18/05 06:37 PM (11 years, 7 months ago)

Quote:

They said DMT was readily available in the United States from many sources, including grasses the government recommends to control roadside erosion.




:tongue2: :sun: :tongue2:  Which grasses are these?


--------------------
After one comes, through contact with it's administrators, no longer to cherish greatly the law as a remedy in abuses, then the bottle becomes a sovereign means of direct action.  If you cannot throw it at least you can always drink out of it.  - Ernest Hemingway

If it is life that you feel you are missing I can tell you where to find it.  In the law courts, in business, in government.  There is nothing occurring in the streets. Nothing but a dumbshow composed of the helpless and the impotent.    -Cormac MacCarthy

He who learns must suffer. And even in our sleep pain that cannot forget falls drop by drop upon the heart, and in our own despair, against our will, comes wisdom to us by the awful grace of God.  - Aeschylus


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Invisibledblaney
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Registered: 10/03/04
Posts: 7,894
Loc: Here & Now
Re: Court sides with church over hallucinogenic tea [Re: Madtowntripper]
    #4069358 - 04/18/05 06:38 PM (11 years, 7 months ago)

Phalaris, as well as the human brain


--------------------
"What is in us that turns a deaf ear to the cries of human suffering?"

"Belief is a beautiful armor
But makes for the heaviest sword"
- John Mayer

Making the noise "penicillin" is no substitute for actually taking penicillin.

"This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it." -Abraham Lincoln


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Offlinecurenado
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Re: Court sides with church over hallucinogenic tea [Re: dblaney]
    #4665022 - 09/15/05 02:46 PM (11 years, 2 months ago)

Gee, whatever they decide, I hope it seems "important" to them because it's certainly not important to us! :smile:


--------------------
Yours in the Natural State!
"The woods are lovely, dark and deep; but I have patches to keep, and jars to sterilize before I sleep...."


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Invisibleveggie

Registered: 07/26/04
Posts: 13,985
Loc: Flag
Re: Court sides with church over hallucinogenic tea [Re: curenado]
    #4665153 - 09/15/05 03:12 PM (11 years, 2 months ago)

It will be interesting to see what happens here. With Sandra Day O'Connor retiring and the death of Chief Justice William Rehnquist this, along with other cases, may go unresolved.

The last I read the hearing date to determine whether hallucinogenic tea is protected by a federal religious-freedom law or banned by federal drug laws has been moved to Nov 1.


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Invisibleveggie

Registered: 07/26/04
Posts: 13,985
Loc: Flag
On docket: religious freedom vs. drug laws [Re: veggie]
    #4873176 - 10/31/05 12:34 AM (11 years, 1 month ago)

On docket: religious freedom vs. drug laws
October 31, 2005 - Christian Science Monitor

The Supreme Court takes up a case involving a New Mexico sect that could be important for other minority religions.
WASHINGTON - In a case with potential important significance for minority religious groups in America, the US Supreme Court this week takes up a clash between the nation's drug laws and a statute protecting religious liberty.

At issue in the case set for oral argument Tuesday is the scope of the 1993 Religious Freedom Restoration Act (RFRA). The law requires the federal government to justify any measure that substantially burdens a person's ability to practice his or her religion.

But what happens when a religious ceremony requires consumption of a drug outlawed under the Controlled Substances Act? That is the essence of the dispute in a case called Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (UDV).

Although the case involves the use of drugs, how the high court resolves the matter could have an impact on a wide array of religious groups in the United States that depend on a robust defense of religious liberty to practice their faith free of government interference. If the nation's drug laws are found to trump religious protections, other laws might also be applied in ways that substantially erode religious freedom, legal analysts say.

On the other hand, if religion may be invoked to easily bypass the nation's criminal laws, that could greatly complicate and undermine federal law-enforcement efforts, analysts say.

The case involves a religious sect of 130 members based in New Mexico. The group, adherents of the Brazil-based religion UDV, believes the use of sacramental tea in its ceremonies helps them connect with God. Consumption of the tea is the central ritual act of their faith. Some analysts liken it to the consecration of wine at a Roman Catholic mass or serving unleavened bread at a Passover Seder.

The problem is that the tea, made from two sacred plants found in the Amazon region of Brazil, contains a hallucinogenic substance banned in the US.

When US narcotics agents discovered this, they confiscated the group's supply of the sacramental tea as an illegal drug and barred them from importing any more from Brazil. The group sued, claiming the government was infringing on their religious rights by blocking a fundamental aspect of their religious worship and threatening to prosecute them should they continue to use the sacramental tea.

A federal judge and federal appeals court agreed with the group and issued a preliminary injunction against the government. The court ordered the government to accommodate the UDV members by allowing them a religious exemption from the drug laws. The courts ruled that such actions were necessary under RFRA.

Government's case

In appealing to the Supreme Court, the Bush administration argues that the government has a compelling interest in the uniform enforcement of the nation's drug laws.

Congress determined that a categorical ban on this hallucinogenic substance was required to help protect the health and safety of Americans, including the followers of UDV, from detrimental effects, government lawyers say. "Religious motivation does not change the science," writes Solicitor General Paul Clement in his brief to the court.

The government also argues that a categorical ban is needed to prevent diversion of the drug into America's illicit recreational drug market. And it is necessary to comply with international treaties banning all trafficking in narcotics and psychotropic substances.

Lawyers for the religious group counter that Congress passed RFRA after it passed the Controlled Substances Act and that since RFRA applies to all federal law, it requires the government to make religious accommodations even from criminal drug laws when individual accommodations are deemed appropriate after a careful case-by-case review.

For example, Congress has created an exemption for the religious use of peyote by native Americans, they say.

"The government's successful accommodation of the sacramental use of peyote, also a banned Schedule I substance, belies its claim that such substances require a categorical ban, even for religious use," Nancy Hollander, an Albuquerque lawyer representing the UDV, writes in her brief.

Ms. Hollander accuses the government of playing fast and loose with the facts in claiming there are adverse health effects to the group's use of sacramental tea. She says the only study of sacramental tea use "found no significant health concerns."

On the potential for diversion for recreational drug use, she says use of the tea is tightly controlled during ceremonies, and consumption of the tea outside such ceremonies is considered sacrilegious. Hollander adds that there hasn't been a US conviction for attempting to traffic the hallucinogenic substance contained in the tea in 27 years.

She says the government's argument concerning international treaties is also flawed. The treaty doesn't apply to sacramental tea, she says, and other treaties signed by the US require signatory governments to respect and accommodate religious practices.

Other groups weighing in

Although the New Mexico sect has only 130 members, the case has attracted the attention of a large cross section of religious groups expressing concern about the case. They include the Baptist Joint Committee, the National Association of Evangelicals, Agudath Israel of America, the Minaret of Freedom Institute, the Sikh Coalition, and The First Church of Christ, Scientist, in Boston, which publishes this newspaper.

In an appendix to a friend-of-the-court brief supporting the UDV, the Christian Science Church said in part: "Although The First Church of Christ, Scientist, supports the legal arguments made in this brief, neither the church nor the theology of Christian Science supports the use of drugs or any other material substances as an aid or pathway to spirituality or a greater understanding of God."


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Invisiblecateyes
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Registered: 12/16/03
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Re: On docket: religious freedom vs. drug laws [Re: veggie]
    #4873328 - 10/31/05 12:58 AM (11 years, 1 month ago)

interesting story to follow... thank you veggie.

peace

cateyes


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OfflineMicrocosmatrix
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Re: On docket: religious freedom vs. drug laws [Re: veggie]
    #4875651 - 10/31/05 05:17 PM (11 years, 1 month ago)

I want some now, because Bush said no.


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:orly:



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Invisibleveggie

Registered: 07/26/04
Posts: 13,985
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Roberts, Supreme Court May Allow Religious Use of Hallucinogen [Re: veggie]
    #4879995 - 11/01/05 04:55 PM (11 years, 1 month ago)

Roberts, Supreme Court May Allow Religious Use of Hallucinogen
November 1, 2005 - bloomberg.com

Nov. 1 (Bloomberg) -- U.S. Chief Justice John G. Roberts Jr. led a chorus of Supreme Court skepticism aimed at a Bush administration effort to bar a 130-member New Mexico church from using a hallucinogenic tea in religious ceremonies.

Roberts today was one of several justices who suggested that a U.S. religious-freedom law trumped the Justice Department's contention that hoasca is dangerous and illegal under both a federal controlled-substances law and a treaty. Roberts questioned the government's argument that it needs to bar all use of hoasca to prevent diversion to non-religious 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.

The case poses the first religious-freedom test during Roberts's watch as chief justice. It pits the Bush administration against religious groups including the U.S. Conference of Catholic Bishops and the National Association of Evangelicals.

The case centers on the 1993 Religious Freedom Restoration Act, which says the U.S. government can't restrict religious activities except to meet a ``compelling interest.''

Congress passed the law in reaction to a 1990 Supreme Court ruling that said governments could enforce generally applicable laws, even if they incidentally restricted religious practices. That ruling, which involved a different hallucinogen known as peyote, limited the scope of the constitutional clause that protects the free exercise of religion.

Brazilian Church

The Justice Department says it nonetheless can block hoasca use by a Santa Fe branch of O Centro Espirita Beneficiente Uniao Do Vegetal, an 8,000-member Brazilian church that mixes Christian theology and indigenous South American beliefs. The church's U.S. branch is led by Jeffrey Bronfman, a second cousin of Warner Music Group Chairman Edgar Bronfman Jr.

Kneedler said the government has a compelling interest in ``uniform enforcement'' of its drug laws.

He drew resistance from both the liberal and conservative wings of the court. 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.''

Kennedy Support

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.

Hollander argued that the government must show a compelling interest in enforcing its drug laws specifically against the church's members.

``Congress's policy is that religious freedom and religious liberty shall not be burdened unless and until the government meets its burdens,'' she argued.

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.

Trump the 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.

Hoasca contains dimethyltryptamine, or DMT, a hallucinogenic substance restricted under the U.S. Controlled Substances Act. The Justice Department says DMT can lead to depression, intense anxiety, disorientation and psychosis and that the drug is a particular danger to children.

The dispute began in 1999, when Customs inspectors intercepted a shipment from Brazil of three drums that contained the drug. Authorities later searched Bronfman's home and seized 30 gallons of hoasca.

The Denver-based 10th U.S. Circuit Court of Appeals, on an 8-5 vote, concluded that the Justice Department hadn't met its burden under the religious-freedom law. The appeals court upheld a temporary order barring the government from taking action against the church for its religious use of hoasca.

The case is Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 04-1084.


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OfflineTwirling
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Re: Roberts, Supreme Court May Allow Religious Use of Hallucinogen [Re: veggie]
    #4880183 - 11/01/05 05:47 PM (11 years, 1 month ago)

Quote:

veggie said:
``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.




Holy shit, that is the greatest thing I've ever heard a judge say.


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OfflineMicrocosmatrix
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Re: Roberts, Supreme Court May Allow Religious Use of Hallucinogen [Re: Twirling]
    #4880248 - 11/01/05 05:58 PM (11 years, 1 month ago)

I was thinking the same thing, maybe Bush fucked-up haha


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:orly:



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InvisibleSuperD
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Re: Roberts, Supreme Court May Allow Religious Use of Hallucinogen [Re: Twirling]
    #4880866 - 11/01/05 08:32 PM (11 years, 1 month ago)

Quote:

Twirling said:
Quote:

veggie said:
``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.






Holy shit, that is the greatest thing I've ever heard a judge say.




I said a quick 'fuck yeah' in my head as I read that statement.  :thumbup:


--------------------
:super:D
Manoa said:
I need to stop spending all my money on plants and take up a cheaper hobby, like heroin. :lol:

Looking for Rauhocereus riosaniensis seeds or live specimen(s), :pm: me if you have any for trade


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Invisibleveggie

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Re: Roberts, Supreme Court May Allow Religious Use of Hallucinogen [Re: veggie]
    #4887824 - 11/03/05 11:37 AM (11 years, 1 month ago)

another opinion on the case...

The Supreme Court Hears Its First Religion Case with Chief Justice Roberts at the Helm
By MARCI HAMILTON
November 3, 2005 - FindLaw

The Supreme Court heard arguments on Tuesday in United States v. O Centro Espirita Beneficiente Uniao de Vegetal - the first religion case that the new Roberts Court has confronted.

The case presents the question whether the U.D.V., as the religious group is called, may use a tea brewed from the (South American) hoasca plant, which contains a hallucinogen, DMT, in its ceremonies -- despite the fact that DMT is illegal under the Controlled Substances Act.

It is well-established, under Employment Division v. Smith, that the Constitution's Free Exercise Clause would permit the application of the federal drug laws against the group, because the laws are neutral and generally applicable, and thus do not target the religious or particular worshippers.

But in this case, the group claims the protection not of the Free Exercise Clause, but of the Religious Freedom Restoration Act (RFRA).

The Religious Freedom Restoration Act And Its Standards

As I discussed in a prior column, RFRA puts courts into the position of carving religious exemptions out of federal laws, by imposing strict scrutiny on every neutral, generally applicable law that incidentally burdens religious conduct.

In particular, RFRA directs the courts to invalidate the application of any law to any religious entity unless the government can prove it has a "compelling interest" in the law and the law is the "least restrictive means" of achieving that interest.

The "compelling interest" and "strict scrutiny" tests are drawn from Supreme Court precedents, but here they were adopted by Congress, not the Court. With RFRA, Congress is purporting to tell the courts what constitutional test to apply, and delegating to the courts the ability to make policy regarding exemptions for religious practice.

But this is a role the courts are ill-suited to perform, as the oral argument in the U.D.V. case made clear. As I document in my recent book God vs. the Gavel: Religion and the Rule of Law, specific religious exemptions from neutral, generally applicable laws should be crafted by legislatures, which can weigh the exemption against the public good, and do the research necessary to reach a conclusion that is good for society. In contrast, RFRA delegates this task to courts, and heavily weights the analysis in favor of the claimed exemption, even if the public good is harmed.

It is easy to forget that an exemption is permission to break a law thought otherwise worthy, and, therefore, one should proceed with caution. But RFRA operates from the opposite presumption: that such exemptions are almost always good in themselves.

Applying RFRA in the U.D.V. Case: The Uniform Application Argument

The focus of the oral argument in the U.D.V. case, however, was not on the flaws of RFRA; it was on how to apply RFRA in this case. And the "compelling interest" issue was the one that dominated the debate.

Edwin Kneedler of the Solicitor General's Office argued, on behalf of the government, that there was a compelling interest in applying the federal drug laws to the U.D.V's use of hoasca. The interest, he contended was two-fold:

The government, he argued, has a compelling interest in the uniform application of the drugs laws. Moreover, it also has a compelling interest in the observance of a treaty, the UN Convention on Psychotropic Substances, which requires the 175 countries that signed it - including the United States -- to fight international trafficking in drugs.

The Justices wondered about the uniform application argument, because Congress had provided an exemption for a different drug, peyote, for use in Native American rituals. Peyote is also listed in Schedule 1 of the Controlled Substances Act, which is the list of the drugs Congress found most dangerous.

So the reasoning, at oral argument, went this way: If the government was willing to sacrifice uniformity with respect to peyote, how can it now argue that uniformity as to all Schedule I drugs is a compelling interest?

This question is a forceful, if misguided, one. It was, in fact, the wrong question to ask - and the government argued the uniformity issue the wrong way.

How The Uniform Application Argument Should Be Re-Framed

The real issue in the case is not whether Schedule I, as a whole, needs to be uniformly enforced, because the drugs covered by Schedule I are quite different from one another: Schedule I encompasses a variety of chemicals, which - while they may be similar in danger as a general category -- are not similar in effect, use for recreational purposes, potential for addiction, source, effect on children, or in their effect on international trafficking. Had the UDV asked for heroin or marijuana (as other churches have), this point would have been patently obvious.

Rather, the issue is whether the ban for each of these dangerous drugs needs to be uniformly enforced - that is, enforced the same no matter who the would-be user is, or what his or her reason for using may be. Indeed, it may be true, roughly, that the greater the danger, the more reluctant the government ought to be in allowing departures from uniformity of application.

A Peyote Exemption Does Not Entail a Heroin Exemption

Put another way, the exemption for peyote shows only that the government is willing to tolerate use of peyote - with all of its individual characteristics -- within the United States, not that it must be willing to tolerate religious exemptions to prohibitions on other Schedule 1 drugs, like heroin or marijuana or DMT.

The reason many states and the federal government have been willing to exempt religious peyote use is because it is not a terribly pleasant drug -- reportedly often causing headaches and nausea, and rather unreliable in its effect. Thus, it is not a desirable recreational drug with an active black market. Moreover, it is domestically grown, which relieves the United States of its obligations under the UN treaty.

The same cannot be said for DMT, about which much less is known, and which is grown in South America, raising the United States' obligations under the UN's treaty. The potential for this relatively new hallucinogen in the United States to foster an active black market simply is not known.

Another Misstep: Citing a "Special Relationship" to Defend the Peyote Exemption

The uniformity argument, as presented by the government, not only was unnecessarily broad, but it also highlighted a weakness in the United States' exemption for religious peyote use.

Kneedler argued that the government had a special relationship with the Indian tribes justifying and distinguishing the peyote exemption. But that only led him into a new thicket - when he was rightly questioned about the constitutional propriety of a law that provided an exemption solely for a single religious group (as opposed to every religious group engaging in the practice).

There has long been speculation that the federal government's exemption for the Native American Church's use of peyote would not pass Establishment Clause muster, because it singles out a particular religious group for benefit. By highlighting this aspect of the exemption, the government also highlighted this constitutional defect.

The government's proper role in providing exemptions is not to decide which religious group is "special" or worthy enough to "deserve" an exemption. Rather, it is to decide whether an exemption for religious conduct can be tolerated even if it breaks a pre-existing law. The government's proper focus is on the conduct regulated, and whether that conduct would harm others or the common good if permitted for religious groups - not on the identity of any particular religious organization.

Put another way, the government's legitimate reasoning extends solely to whether the practice can be tolerated in light of the public good, not to choosing between religious groups that might engage in the same practice.

Thus, the Native American Religious Freedom Act - the current podium for the peyote exemption -- is unconstitutional, though a straightforward federal peyote exemption for religious use would be constitutional. (Indeed, many states already have just such a neutral exemption.)

The Court May Find A Compelling Interest in Honoring the Treaty

In the end, it appeared that the uniformity argument, as the government presented it, was weak. But the second argument - that the U.S. has a compelling interest in honoring an international treaty to which it is a signatory - was stronger.

Peyote is neither imported nor traded internationally. Hoasca, in contrast, comes from plants from Brazil and must be imported into the U.S.

Thus, even with the peyote exemption, the government has, in fact, consistently approached its obligations under the treaty. It would be a very unusual step for the Court to overturn foreign policy, especially in the context of the complicated international drug war - which, after all, is an arena that properly belongs to the Executive Branch. .

The Alice-in-Wonderland Quality of RFRA: Courts as Legislatures

There was a particular moment when all should have been reminded of the Alice-in-Wonderland, through-the-looking-glass character of RFRA.

Chief Justice Roberts suggested that granting the exemption under RFRA now would not be a necessarily permanent situation, because the government could withdraw the exemption in the future once it learned more about the drug and its use. This sounds reasonable at first blush, but let's examine exactly how this would happen:

The government would have to go to court again, this time armed with more evidence, to re-argue the case. That in itself isn't unusual - but what is unusual is that it would be petitioning the court to make national drug policy. The government would have to ask the Court to re-weigh the policy balance. The reality is that RFRA turns judges into legislators with broad policymaking powers, and makes legislatures the servants of the courts' super-legislative viewpoint.

In other words, the government would be in the business of having to sell public policy to the most unaccountable branch, which has none of the tools to test or reliably decide public policy.

Another Reversal: Conservative-Backed RFRA Encourages Court Activism

If Chief Justice Roberts is truly the sort of strict constructionist he has been portrayed to be, this RFRA-required reversal of roles should be rather uncomfortable for him.

(Ironically, the test RFRA imposes was devised by liberal Justice Brennan in the 60s, while the dominant and long-recognized approach to such issues, which was reaffirmed in Employment Division v. Smith, was devised by conservative Justice Scalia. It is not hard to see the liberal/conservative divide here. Brennan backed a system wherein courts would have broad latitude to set social policy at will, while Scalia embraced the system that requires all citizens to obey the rule of law. Under Smith, exemptions were permissible, but only when passed by the legislature.)

It ought also to be uncomfortable for the Bush Administration. After all, RFRA invites the very sort of activist policymaking by judges that the Bush Administration has pledged to halt.

Still, this contradiction seems unlikely to cause anyone in this Administration to lose sleep - for here the activism is at the behest of religious groups. And for them, as I discussed in a previous column, this Administration has been more than willing to sacrifice federalism, small government, and reining in the Welfare State - turning traditional Republicanism on its head.

When Exemptions are at Issue, Majority and Minority Religions Tend to Ally

Some of the chatter around the U.D.V. case has focused on the supposed problem that minority religions have obtaining exemptions to neutral, generally applicable laws. But anyone who knows how many states exempt those who believe in faith healing from the laws prohibiting the medical neglect of children, also knows this is a red herring.

Those who claim that minority religions have trouble getting Congress' ear for exemptions, also must struggle to explain how the little Native American Church was able to get so many exemptions, including those tailored just to it.

The political reality is that minority religions, in this context, tend to enjoy powerful support. That's because religious groups, since 1990, when Smith was decided, have been willing to lobby for the religious conduct of other religious groups, even when they are morally or religiously opposed to the practice.

Indeed, in this very case, a number of religious groups filed amicus briefs on behalf of the U.D.V., including the Christian Legal Society, the Baptist Joint Committee, the Church of Christ, Scientist, the Liberty Counsel, the National Association of Evangelicals, the American Jewish Congress, the Conference of Catholic Bishops, the Unitarian Universalist Association, the Hindu American Foundation, the Sikh Coalition, and the Muslim Minaret of Freedom Institute. It makes for fascinating reading to pore over the conservative Christian Legal Society's brief in support of the use of illegal hallucinogenic drugs in religious services.

These groups have the capacity, politically, many of them individually, to lobby for the U.D.V's exemption for the use of hoasca. They don't want to have to do that, though, because they also seek the benefit of RFRA.

For example, with respect to the Christian Legal Society, the goal is to overcome fair housing laws that would require its members to rent apartments in apartment buildings to unmarried or gay couples.

With respect to the Conference of Catholic Bishops, it would be the watering down of federal bankruptcy law so that canon law determines property ownership and, therefore, clergy abuse victims with legitimate tort claims against Archdioceses can recover as little as possible.

The Likely Result: A Win For the Government, and a Rush To Congress

What is the likely outcome of the U.D.V. case? It seems probable that the Court will find a compelling interest in treaty compliance in the international drug trafficking context, and deny the exemption.

Then what? Then, I predict, there will be plenty of groups taking up the torch for the UDV. As Justice Scalia rightly pointed out in Smith -- and as I document in God vs. the Gavel -- this is a country inclined to exemptions for the purpose of religious liberty.

One can only hope that Congress will not simply rubber stamp such requests, but rather will ask the hard questions that need to be asked in such cases: Where does the public interest lie? What harm will flow if this exemption is provided, and how great or little will it be?

If - and only if -- the UDV can give strong answers to such questions, should it be given the ability to avoid the Controlled Substances Act.


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Invisibleveggie

Registered: 07/26/04
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Loc: Flag
Supreme Court and Brazilian Religious Rituals [Re: veggie]
    #4895132 - 11/04/05 09:04 PM (11 years, 1 month ago)

PBS ran the story on their Religion&Ethics show. Below is the transcript followed by a link to the video...

Supreme Court and Brazilian Religious Rituals
November 4, 2005 - PBS

BOB ABERNETHY, anchor: As the U.S. Senate prepares for hearings on the president's nomination of Judge Samuel Alito to the Supreme Court, the court this week heard arguments on a major religious freedom case. At issue is whether a small church should be able to import a hallucinogenic tea it uses for worship, or whether the government should be able to prevent that as a danger to public health.

Tim O'Brien has the story.

TIM O'BRIEN: No, this is not just another tour group visiting the Supreme Court. Meet the U.S. congregation of the Uni?o do Vegetal Church. With only 130 members, it is tiny. But religious leaders agree the impact of the case the church brought to the Supreme Court this week could be huge.

Uni?o do Vegetal, or UDV, originated in Brazil and has followers throughout South America. The faith blends Christian beliefs with tribal South American traditions. Central to the faith is receiving Communion through hoasca, a tea made from two plants unique to the Amazon rain forest. The tea contains a small amount of dimethyltryptamine -- a hallucinogenic ingredient strictly controlled under federal drug laws. When UDV sought to import hoasca from Brazil, customs officials seized the tea and tried to block further imports. UDV took the government to court.

JEFFREY BRONFMAN (President, Uni?o do Vegetal Church, United States): We came before the Supreme Court of the United States today asking for the affirmation of a right already enjoyed by millions of other Americans -- a right to simply be able to practice our religion without the threat of interference or imprisonment by the government.

O'BRIEN: Sixteen years ago, the Supreme Court ruled that Oregon could prohibit Native American Indians from using peyote in their religious ceremonies. The court reasoned that Native Americans weren't being singled out because of their religious beliefs -- that the drug laws applied equally to everyone, and any burden on religion was only incidental.

That decision touched off a firestorm on Capitol Hill, and Congress quickly passed the Religious Freedom Restoration Act. The law requires [that] any government burden on religious freedom be justified by "a compelling governmental interest" and that the government must use the "least restrictive means."

That is a very high hurdle, but one Justice Department lawyers told the Supreme Court this week it had met in blocking importation of hoasca. The ingredients in hoasca are dangerous even under medical supervision, they said, and the government has a compelling interest in protecting public health from any abuse.

Attorney John Boyd, representing the church, disagrees.

JOHN BOYD (Attorney, Uni?o do Vegetal Church): There's no evidence of any health impact on any of the members. There has never been, and is unlikely to be, any risk of diversion to illicit use. It is simply these people wishing to be left alone, hurting no one, to practice their religion.

O'BRIEN: Boyd said there's never been a commercial market for the bitter-tasting hoasca tea, distinguishing this case from future cases that might involve recreational drugs like marijuana and cocaine.

UDV has picked up some hefty support from a broad range of religious groups, including the U.S. Conference of Catholic Bishops, the National Association of Evangelicals, the American Jewish Committee, and the Baptist Joint Committee for Religious Liberty -- all fearing the court may cut back on the protections of the federal law.

K. HOLLYN HOLLMAN (General Counsel, Baptist Joint Committee for Religious Liberty): We filed on behalf of the church at issue here, saying that the court should not accept the government's position in this case -- a position that would largely undercut this religious freedom statute that protects freedom of religion for all of us.

O'BRIEN: The justices appeared evenly divided, suggesting the case could turn, as religion cases so often do, on the vote of retiring Justice Sandra O'Connor.

It takes months to churn out the opinions in these cases, and if O'Connor is no longer on the court when the decision is announced, her vote would not count. Should her remaining colleagues split four to four, the court would likely order reargument of the case, requiring everyone to come back and try again next year.

ABERNETHY: Tim, I want to ask you about Judge Alito, the president's nominee to replace Justice O'Connor. If he's confirmed, he would bring the number of Catholics on the court to five.

O'BRIEN: That's unprecedented. I don't think it's going to be an issue, however. It wasn't with his nomination. I don't think they're going to take it into consideration in the hearings.

ABERNETHY: Hearings to begin now in January?

O'BRIEN: January 9th, right.

ABERNETHY: If he is confirmed, what difference would that make, do you think, on church-state decisions?

O'BRIEN: Well, we know that O'Connor was a swing justice on these issues, so he could make a significant difference. He's followed the Supreme Court to the tee. He's not spoken out for religious freedom. He's not been a crusader. But what we do know about him generally is he's very conservative and would likely make the court more tolerant of government involvement with religion.

ABERNETHY: Tim O'Brien, many thanks.

LINK TO STREAMING VIDEO.
(Requires RealAudio)


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