Friday, February 11, 2005

Tea Time

I meant to post on this earlier, but got sidetracked. According to, the Attorney General has appealed the 10th Circuit Court of Appeals decision in O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft. The background of the case is as follows. The Church (known in short as the UDV) uses a type of tea in its ceremonies that contains hallucinogenic ingredients. The plant used doesn't grow in America, so they import it from Mexico. The DEA is arguing that this plant is classified as a Schedule I drug (the most restricted category) under the Controlled Substances Act, and thus the church should be barred from importing it. The 10th Circuit disagreed and ruled for the church. The case has now been appealed to the Supreme Court (who, to be clear, haven't taken the case, so this could all be moot).

If they do take the case, I can see a couple of outcomes. First, they could simply agree that prohibiting the drug importation for religious use fulfills a compelling government interest. Most obviously, it could plausably be argued that allowing the drug in for religious purposes would undermine Congress' regulatory scheme with regards to controlled substances. This argument hinges heavily on the outcome of the Raich v. Ashcroft, of which I blogged about here. If the Court rules that the use of drugs outside the general commercial market ruins Congress' regulatory scheme (which consists of keeping drug prices high via the black market), then the Church will almost definitely lose. However, this is one of the better possible outcomes.

The biggest problem is that the statute under which the church is seeking relief is the Religious Freedom Restoration Act (42 U.S.C. § 2000bb-1). The law was in direct response to the Supreme Court's decision in Employment Division of Oregon v. Smith that any legitimate, generally applicable law could override any free exercise claims besides mere abstract expression of belief. That decision justifiably came under a lot of fire, and Congress worked to change it. The RFFA sought to overturn that decision, and restore the "compelling interest" test in Sherbert v. Verner, which mandated that any law which impugned on the free exercise of religion must satisfy a compelling state interest. The Supreme Court has already ruled that act unconstitutional as applied to the states in City of Boerne v. Flores, saying that it granted preference to religion by only allowing them to claim exemptions from general law. However, since the UDV case deals with a federal claim, Boerne is inapplicable.

However, while Boerne itself only applies to the states, I don't see much in its reasoning that prevents it from being applied to the federal government. If the Court applies Boerne to the federal government, then that will entirely restore Smith to Constitutional supremacy and strike a lethal blow to the religious beliefs of minorities. It would, in effect, prevent these minorities from gaining judicial OR statutory relief from laws which prevent the exercise of their religion. That essentially write the Free Exercise clause out of the constitution. On the flipside, the Court could overrule Boerne and rule for the Church. That would be the best outcome.

There is a way that the Court could distingiush Boerne and uphold the law on the federal level. However, it involves some very scary implications for the future of 1st amendment jurisprudence. It has been well accepted for some time now that the 1st amendment's religion clauses now apply to the states, though they technically only say "Congress Shall Make No Law" establishing religion or prohibiting the free exercise thereof. A few extremist jurists (Justice Thomas among them) do not believe this should have been so. If his view swings the Court, then the RFFA will be upheld--but only because it applies to the federal government. The implication, then, is that the states are exempt from some of the first amendments prohibitions and mandates--precisely what Thomas wants, but it direct conflict with decades of Court precedent protecting the rights of religious minorities. Upholding the RFFA could be a stealth attempt by the Court to utterly shortcircuit first amendment protections under the guise of protecting them.

Watch this case carefully.

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