Herbal tea case: a government loss?
on Nov 1, 2005 at 1:58 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.
