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OfflineRedstorm
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Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (UDV), No. 04-1084
    #4291150 - 06/13/05 02:26 PM (11 years, 5 months ago)

I had to write a mock dissent opinion for this case for my Constitutional Law class, and I figured I would post it here and see what you guys think about it.

For background, this is a case which will decide whether a religious group in Oregon will be granted an exemption from the Controlled Substance Act to use Ayahuasca in their religious ceremonies.

I was suckered into being the justice Breyer :smirk: (I was hoping for Kennedy, but he was already taken). That means this opinion is very liberal, and does not necessarily match my views.

Well, here we go.....

---------------------------------------------------------
    It is the duty of the court to protect the rights of the people of the United States when these rights come under fire. It is just as important, if not more important, to protect the rights of the less popular minority groups. As Madison warned in the Federalist Papers, it is necessary to protect the few from the majority tyranny of the faction that controls power. That brings us to the small church of the O Centro Espirita Beneficiente Uniao Do Vegetal, or UDV, as I will call it from now on. This church revolves around ceremonies that consist of the use of hoasca, a hallucinogenic tea that contains dimenthyltryptamine (DMT) which is a schedule I drug. Schedule I drugs are illegal without exception, which could have dire consequences for the UDV church if it is held that they will no longer be able to use the hoasca tea in their ceremonies. Due to this blatant trampling of the UDV member?s right to a freedom of religion stated in the First Amendmen, I respectfully dissent from the majority opinion.

    The court must determine whether the Religious Freedom Restoration Act (RFRA) and/or the free exercise clause of the first amendment require the federal government to make an exception to enforcement of the Controlled Substances Act (CSA) that would permit the importation and use of hoasca, a substance containing the CSA Schedule 1 drug dimenthyltryptamine (DMT)? Using the standard of review of strict scrutiny, it is easy to see that the government must make an exception to the Controlled Substance Act. There is very little in terms of precedents for this case, so it is clear that this case must be determined on legal reasoning alone.

      The RFRA was passed in 1993 in response to government action that was severely impeding with one?s right to religious freedom. Since then, the Court has declared that the RFRA does not apply to states, but only to the federal government. Since the CSA is clearly a federal law, the two acts have come into conflict. It should be clear that in such a conflict that the RFRA, which protects unalienable rights, should come out on top against that CSA. The right to a freedom of religion is as old as our country, and predates the ?War on Drugs? by almost two-hundred years. Also important to address is the United Nations Convention on Psychotropic Drugs. While it is important to put a stop to international drug trade that plagues both first and third-world countries, it is hard to believe that an exception can not be made for a member state. The majority states that asking for an exception from the treaty for religious reasons would undermine our appearance as a leader of the War on Drugs. I have a few replies to that. First, it is not unreasonable to think that we could be granted an exception. Both Brazil and France have been granted exceptions, without a huge uproar. Also, it seems somewhat hypocritical to use international organization?s wills as an argument to the United State?s side of the case. In the past twenty years, the United States has not seemed concerned about the world?s view of our country when we decided not to sign onto the Kyoto Protocol or the International Court of Justice. If the United States does not care about a backlash over important issues such as pollution or global crime, then why does it seem so worried about trying to achieve a simple exception for one small religious group from the Treaty?

          On the issue of previous court decisions, we are covering somewhat of new ground. The majority tries to use Employment Division, Department of Human Resources of Oregon v. Smith, but I believe this is a mistake. In this case, the issue at hand was not whether the Peyote used was illegal, but whether or not the men should be able to retain unemployment benefits because they were terminated from their place of employment. Not only was the issue at hand not relevant to this case, but the decision made in Oregon v. Smith was incorrect as well. In any case which deals with fundamental rights (religious freedom, freedom of speech, ect.), it is an utter travesty to use such a low standard of review as rational basis. When concerning rights such as these, the burden of proof should always be on the government to prove that any actions restricting these rights are absolutely necessary. The correct way to decide a case that concerns government action restricting fundamental rights would be to return to the Sherbert Test and strict scrutiny.

        For government action to pass the strict scrutiny test, it must navigate its way through two prongs without conflicting with either of them. The first is that the actions taken by the government must fulfill a compelling governmental interest. Secondly, the government action must also be the least restrictive means possible to achieve that interest.

      In this case, the government has said that its actions of denying the UDV an exception to the CSA to use hoasca in their religious ceremonies serves several interests. They believe that by granting an exception to the CSA, it would undermine drug laws in Oregon and elsewhere around the country. While making sure the prohibition on drugs remains intact is a legitimate government concern, it does not really apply in this situation. Hoasca is something which has little chance of being abused or diverted into the black market. There are many reasons for this. First off, the effects of the tea are not ones which most drug users would look for in a recreational drug. Though it is a hallucinogen and will get the user ?high?, the high does not come without costs. He or she can look forward to hours of extreme abdominal discomfort and violent vomiting. This high certainly does not seem worth the physical toll that is put on the body during it. Another aspect of the hoasca tea that would make it an unlikely prospect for diversion is its means of consumption. In its final, active form it is a tea. This sort of liquid would be very hard for a drug dealer to lug around, especially since there are other hallucinogens that are much more inconspicuous. Finally, and most importantly, the fact that people can legally purchase the goods to make the tea would mean that there is no reason to attempt to get the hoasca from the UDV church. An internet search for ?hoasca? or ?ayauasca? as it is sometimes called brings up thousands upon thousands of results. Among these search results are many online vendors who sell banisteriopsis caapi and psychotria viridis, the two plants used to brew this tea. These plants are legal to own and cultivate and only become illegal when brewed to make hoasca or consumed to become inebriated. If one can anonymously and legally purchase the materials needed to make hoasca online, why would he or she go through the trouble of buying a large amount of liquid off of a drug dealer or unscrupulous UDV church member? When looked at closely, the issue of divergence is a very weak argument and is knocked down easily with a little criticism.

            The other interest the government says it is trying to protect is the health of its constituency. The federal government and the state of Oregon want to protect the safety and health of not only the UDV members, but the entire population?s health. They make the argument that if the UDV church is granted an exception for the use of hoasca, the issue of divergence would threaten the safety of their citizens. Divergence clearly is not an issue, so the only people?s health who the government should have an interest in protecting is the UDV members. This is where the case becomes hazy. Both the government and the UDV health surveys seem to conflict with each other and neither really stand out as a good observational study. There are visible problems with both the UDV and government?s studies. The UDV study has very few people in it (fifteen) and even though the church has a very small member base, a better effort could be made to create a more legitimate study. The government?s study consists of people who are given pure DMT, a laboratory-synthesized drug. While DMT is the active chemical in the hoasca tea, there would be a significant difference between in the intensity of the hoasca and that of DMT. Also, the method of consumption could create significant differenced between the hoasca and pure DMT. While the hoasca is orally consumed as tea the DMT is injected into the body. The method of delivering the substance to the body is just as important as the concentration of the DMT in the material delivered. While the UDV insists that there is no health problems with using the hoasca tea other than the immediate effects of discomfort and vomiting the government study showed that DMT (not hoasca) use created health problems such as high blood pressure, depression, and psychotic episodes. The government also makes the point that the hoasca tea contains monamine oxidase inhibitors (MAOI?s) which cause serious health problems with various anti-depression medicines. This could easily be countered by regulating the members that would be taking the hoasca tea. The UDV church says they currently screen all members to make sure there are no health risks, but if allowed to use this tea it may be a good idea for the government to either approve the screening test used or create a new test. This would allow the UDV church to continue operating with autonomy but at the same time would allow the government to have oversight of the hoasca usage. This oversight would allow the government to achieve its interests stated above but would allow the UDV members to practice their religion without significant interference.

        The government action clear violated the second prong of the Sherbert Test. To be the least restrictive mean to achieve a government interest one only has to imagine a realistic way to go about achieving their interest that is less restrictive that the current actions. It is obvious that there are less restrictive means of maintaining the health of the UDV members and the legitimacy of the War on Drugs. One such way of giving an exemption was stated above. By allowing the UDV members to consume the hoasca tea but giving the church a government-created screening process, both parties achieve what they set out to protect. The church gets to drink its tea during ceremonies and the government protects the health of the members of the church. This action would clearly meet the Sherbert Test and should leave both parties with what they want.

    There are many implications to the majority?s decision which are contrary to the history of freedom of religion in the United States. This will continue the trend set in Oregon v. Smith by allowing the government to continue to interfere with individuals? practice of religion as they see fit. The courts have slowly moved away from placing the burden of proof on the government since Sherbert was put in place and this decision is another step away from allowing free practice of religion. To be as free of a society as we perceive ourselves to be we must return to the strict scrutiny standard that was put in place by Sherbert. By allowing the UDV members to have an exemption to the CSA, there would be very little policy implications. It has already been proven that an exception can be granted to a religious group to use schedule I drugs. The Native American religion in New Mexico was granted an exception for the use of peyote in their religious ceremonies. If the UDV were granted an exception, the drug laws would not change. The government has little to lose by allowing an exception for the UDV members to use hoasca in their religious ceremonies.

      This case brings up many issues which are either closely or loosely related to the issue at hand in this case. The most obvious is the War on Drugs and United State?s drug laws. It makes little sense to make a substance such as DMT or hoasca illegal when you can legally purchase the plants needed to create the tea. Loopholes like these lead to the inefficiency that plague the War on Drugs.

      Also necessary to note is the reliance on the UN treaty as an argument by the federal government. I find it hypocritical to use an international organization?s rules as leverage in a case when it suits your needs, but as are quick to dismiss these same organizations when they do not agree with your goals or views. If our country is to do be part of these organizations, it is to follow their rules always, not just when it will benefit us. Such arbitrary recognition of the rules will alienate us from those countries who serve in these groups, not asking for an exemption from one treaty for a small group of people for a religious purpose.

      This move away from religious freedom is very alarming. This movement away from the standard put in place in Sherbert is a direct assault on the virtues that brought our founding fathers to what would become the United States. As a leader on the world stage, we should be worrying more about protecting the rights of our citizens than enforcing a drug law. With the United States being the leader of the new spread of democracy, it is necessary that we set a good standard for those fledgling democracies around the world. A democracy is not defined by how it treats those majority groups that hold the popular, widespread views but those minority groups who have little political power and rely on the Constitution and the Courts to make sure they are given the freedom they are entitled to. The majority in this decision is losing sight of the freedoms that are granted to every citizen of the United States, not just those of traditional views. It is because of this that I respectfully dissent from the majority.
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It's probably riddles with spelling and grammatical errors, since I just finished it. I am just curious as to what you guys and gals think of this issue.


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InvisibleRandalFlagg
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Re: Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (UDV), No. 04-1084 [Re: Redstorm]
    #4293641 - 06/14/05 01:06 AM (11 years, 5 months ago)

So the "freedom to exercise religion" clause in the Constitution is in conflict with federal drug laws in this instance. And you say that the religious freedom right granted to American citizens is more important than, and supercedes any, drug laws. That is a sound argument.


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OfflineRedstorm
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Re: Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (UDV), No. 04-1084 [Re: RandalFlagg]
    #4294504 - 06/14/05 10:34 AM (11 years, 5 months ago)

Yup.

The Constitution has been considered the supreme law of the land and any part of it that conflicts with a statute effectively nullifies that statute.


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InvisibleAnnapurna1
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Re: Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (UDV), No. 04-1084 [Re: RandalFlagg]
    #4294687 - 06/14/05 12:34 PM (11 years, 5 months ago)

Quote:

RandalFlagg said:
So the "freedom to exercise religion" clause in the Constitution is in conflict with federal drug laws in this instance. And you say that the religious freedom right granted to American citizens is more important than, and supercedes any, drug laws. That is a sound argument.




nothing could be further from the truth...the UDV church doesnt even have a case here..since the SCOTUS has already overturned the RFRA in boerne v flores (1997)..on the grounds that it discriminates against atheists...the boerne ruling also holds that the application of the commerce clause against any given religious group is constitutional..so long as it applies equally to all religions...the federal circuit courts will often rule contrary to a very obvious precedent in order to send it to the SCOTUS so as to quickly end the debate on the issue at hand...

also of interest here is US v sprague (1931)..in which the SCOTUS ruled the 9th and 10th amendments null and void because they conflict with the earlier commerce clause...the entirety of the constitution is not "the supreme law of the land"..the only such laws are the commerce and coinage "big brother" clauses...


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"anchor blocks counteract the process of pontiprobation..while omalean globes regulize the pressure"...


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OfflineRedstorm
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Re: Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (UDV), No. 04-1084 [Re: Annapurna1]
    #4294976 - 06/14/05 04:00 PM (11 years, 5 months ago)

RFRA was not overturned, it was just ruled that it was limited to federal law.


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