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A Federal Appeals Court Says A Religious Group Can Import Illegal Drugs:
The Religious Freedom Restoration Act Shows Its True Colors

Thursday, Nov. 18, 2004

The U.S. Court of Appeals for the Tenth Circuit recently sat en banc - that is, in a larger-than-usual panel representing the Circuit as a whole - to address the claim that the federal drug laws do not apply to a particular church.

The party adverse to the government was the O Centro Espirita Beneficiente Uniao Do Vegetal (UDV). It was secretly importing a tea-like substance called hoasca -- which it refers to as the "vine of the soul," the "vine of the dead," and the "vision vine - from Brazil to the U.S. for use in its religious ceremonies. The problem is, hoasca contains a Controlled Substances Act, Schedule I, banned drug.

Unbelievably, the Tenth Circuit ruled in favor of the UDV. Its ruling (on the likelihood of success on the merits in the context of a preliminary injunction request) purports to foreclose the government from enforcing the drug laws. That's a perversion of the Constitution's Free Exercise Clause, and it cannot be squared with the Supreme Court's free exercise jurisprudence. But it did not have to square with the Free Exercise Clause, because it was brought under the Religious Freedom Restoration Act (RFRA). Interestingly, the panel included Judge Michael McConnell - formerly a law professor highly critical of current Free Exercise doctrine and highly supportive of RFRA.

Generally, of course, we all must abide by the federal drug laws and international treaties prohibiting the importation of illegal use and international trafficking in drugs into the country. So the court's ruling may seem odd: Courts are not normally in the business of deciding whether to enforce a law or not. To the contrary, under the Constitution, they are obligated to enforce the law.

But this case was decided under RFRA. And that misguided statute, as I will explain, wrongly transforms courts into legislatures. Here, for example, the Tenth Circuit - absurdly - used RFRA as the basis to enjoin the federal government's enforcement of the drug laws.

Background on the UDV, Hoasca, and the Case Before the Court

If the reader hasn't heard of the UDV, that may be because, in the United States, it remains a very tiny religious institution.

The UDV was founded in 1963 by a Brazilian rubber-tapper who discovered that hoasca could be made from several plants indigenous to the rainforest. Hoasca, as the Tenth Circuit described it, is a "liquid, tea-like mixture."

The plants from which hoasca is made are psychotria viridis and banisteriposis caapi. As the Tenth Circuit also explained, psychotria viridis "contains dimethyltryptamine (DMT), which is listed on Schedule I of the CSA and the Convention."

The religion is a blend of Christian theology and indigenous American beliefs. In Brazil, it has approximately 8,000 members.

In 1993, one of its leaders arrived here in the United States. And as of now, there are 130 members in the United States. The UDV's ceremonies involving hoasca occur at least twice a month, and last roughly four hours. Church officials prepare the hoasca in Brazil and ship it here for the UDV's ceremonies.

The case before the Tenth Circuit arose because United States Customs Service officials seized approximately 30 gallons of hoasca in transit, and has threatened prosecution. In light of the threat - according to the Tenth Circuit's original panel opinion, issued in September 2003 -- UDV has ceased using hoasca in the United States.

After the seizure, the UDV filed suit -- asking for injunctive relief and a declaratory judgment that its practices are protected under the U.S. Constitution and the Religious Freedom Restoration Act (RFRA). But, as I will explain, it is RFRA - not the Constitution's Free Exercise Clause - that really made the difference in this case. Indeed, RFRA opened the door for the Tenth Circuit en banc panel to become a super-legislature, supposedly competent to determine federal and international drug policy.

Technically, because the subject was a preliminary injunction, what the Tenth Circuit held was that the UDV was substantially likely to succeed in its claims. But the court's analysis made clear that if presented with the issue directly, it would rule for the UDV - and thereby undo neutral federal criminal laws.

The Free Exercise Clause -and How RFRA Tries to Modify It

The Constitution's Free Exercise Clause has long been interpreted to allow neutral laws that regulate conduct - not belief -- to be applied to religious persons and institutions, along with everyone else in society. The untenable alternative would be to apply the law regulating conduct to everyone except those who are religiously motivated. But conduct is conduct, and harm is harm.

Religious belief is sacrosanct under the Constitution. But religiously motivated conduct is not - when it violates civil law.

Thus, in the Supreme Court's opinion in Employment Div. v. Smith, Native American Church members, who used peyote, a hallucinogen, in their religious ceremonies, were held subject to the state and federal drug laws. Like everyone else, the Court concluded, they were prohibited by law from using hallucinogen - even in religious ceremonies.

The Court noted in its ruling that their remedy was to ask the legislatures - not the court - to modify the law. And indeed, they had already succeeded in some states, as the Smith decision explicitly noted. They went on to secure legislative exemptions for the sacramental use of peyote in many states and from Congress. One would have thought that that would have been the end of the story, because the Court's jurisprudence did indeed ensure religious liberty.

After Smith, though, a torrent of unwarranted criticism rained down on the Supreme Court--while accommodations for peyote were being secured. The argument was that legislatures could not be trusted to grant exemptions for religious practices. In a move that cannot be explained by logic, but only by politics, Congress, through unanimous consent in the House and a near-unanimous recorded vote in the Senate, passed the Religious Freedom Restoration Act (RFRA). In effect, RFRA gives religious entities the power to challenge the application of every law in the land - and in so doing, it runs directly contrary to the Supreme Court's Free Exercise doctrine, as embodied in Smith and other precedents.

In Boerne v. Flores, the Supreme Court struck down RFRA as applied to the states. But so far, the courts have upheld RFRA's application to federal law. They reason that a government can place whatever restraints it imposes on itself.

But they ignore how RFRA places courts into the constitutional shoes of the legislatures. RFRA appoints courts to become the primary drafters of public policy, when that is the province of legislatures. And it infringes on the Supreme Court's - and lower federal courts' -- power to interpret the Constitution by displacing the Court's own interpretation of Free Exercise Clause, and replacing it with Congress's preferred interpretation.

RFRA's Three-Part Analysis, as Applied in the UDV/Hoasca Case

Specifically, a court applying RFRA must go through a three-part analysis:

First, it must ask whether the religious institution or person has shown that the law imposes a substantial burden, which is to say that it must make the practice "effectively impracticable." That was obviously the case with the UDV and hoasca: If the church couldn't legally import the drug, it couldn't use it in its ritual.

Second, it must ask if the government has proven its law satisfies a compelling interest. Plainly, the interest in keeping illegal drugs out of the U.S. is compelling.

Third, and crucially, the court must ask whether the laws enforced are the least restrictive means the government can opt for, with respect to this particular believer. This third step was crucial in the UDV/hoasca case.

The Key to the Tenth Circuit's Ruling: The "Least Restrictive Means" Step

Here, the laws at issue were the Controlled Substances Act, and the United Nations Convention on Psychotropic Substances. (The Convention, which provides for the cooperation of nations in their attempts to eliminate the illicit use and trafficking in psychotropic substances, also is part of U.S. law, for the Constitution deems treaties to be part of U.S. law.)

The Tenth Circuit had to ask whether these laws were the least restrictive means the federal government could have chosen, with respect to the UDV believers.

Judge Murphy, in dissent, wisely said yes. But Judges Seymour and McConnell said no (in separate opinions, neither of which garnered the support of a majority of the court.)

Judges' Seymour and McConnell's Fallacy: Using Evidence for Legislative Exemption

In so holding, Judges Seymour and McConnell assessed the evidence from a hearing before the district court and concluded that by their lights there should be an exemption for the UDV.

Judge Seymour even suggested, shockingly, that a treaty exemption could be judge-made! She pointed out that the relevant Convention permitted signatory nations to obtain an exemption from the treaty for prohibited substances "traditionally used by certain small, clearly determined groups in magical or religious rites." She then pointed out that the United States obtained just such an exemption for the Native American Church for peyote. But she omitted a glaring truth: The United States had not done so for the UDV - as of yet. And hoasca is not peyote.

Her opinion, though, did reveal that UDV had two other options open to it. Free exercise doctrine permits exemptions in the legislatures and the Convention permits an exemption as well. So what RFRA has done is to detour religious entities from the political process where they would have to justify their need for exemption in the light of the public good into a courtroom where it is impossible for the government to gin up the sort of legislative record0--hearings, reports from experts, investigations--that could only justify a conclusion regarding whether to permit use of a Schedule I drug.

Judge McConnell's opinion (joined by Judge Tymkovich) is the quintessential example of the court as super-legislature. He rejected explicit Congressional findings regarding Schedule I drugs, like hoasca, because they cannot be "conclusive." He asserted, for instance, that "Congress's inclusion of DMT in Schedule I "should [not] control our assessment of the relative dangerousness of hoasca," because Congress had not considered hoasca by itself. But why not? Congress doubtless included DMT because it found it dangerous. And hoasca contains DMT.

McConnell also complained that "Congressional findings invariably tout the importance of the laws to which they are appended." And he criticized the particular findings Congress chose to make in this case: "If Congress or the executive branch had investigated the religious use of hoasca and had come to an informed conclusion that the health risks or possibility of diversion were sufficient to outweigh free exercise concerns in this case, that conclusion would be entitled to great weight."

It did not matter to McConnell that the findings Congress made were good enough for Congress, which is, after all, charged with making the law, and which was, deciding whether to pass a neutral drug law, not whether to grant an exemption. Nor did it matter under McConnell's RFRA analysis that the UDV could easily seek that very exemption from Congress - and submit evidence in support of that exemption at that time.

Congress, Not the Courts, Should Be the Ones to Decide on Drug Law Exemptions

There are important separation of powers reasons for why courts should not be carving out exemptions that are within the sole power of other bodies - including Congress. As Judge Murphy remarked, assessing the evidence to decide whether a given exemption should be granted is the function of the legislature --- not the court.

Judge McConnell response to Judge Murphy's argument was this: If the court were institutionally incompetent in the drug laws, "the same may be said for application of RFRA to virtually any field of regulation that may conflict with religious exercise."

McConnell seemed to see this consequence as an absurdity. But it is simply the truth.

RFRA is unconstitutional, under the separation of powers, precisely because an institutionally incompetent branch, the judiciary, has been assigned the duty of a competent branch, Congress -- in this case, the core duty to make the law.

Yet courts are in no position to make the public policy determination whether a drug can or should be permitted for some groups and not others. They are inherently institutionally incompetent to do so, as they must make decisions within the narrow confines of a particular case under only the facts presented by two parties.

No court in the country is capable of seeing the big picture that is essential in making decisions on public policy - including decisions on whether to grant exemptions from a generally applicable law, and whether they will erode the general law's effectiveness or result in harm to others. Only the legislature--with its wide-ranging fact-finding capacities and its charge to make the laws in the public good--can be trusted to do this.

Republicans, Especially, Should Oppose This Kind of Judicial Overreaching

During the last election, Republicans frequently talked about the need for judges to interpret the law, not make it. Hear, hear.

But RFRA invites judges to do just the opposite; it encourages judicial activists like McConnell to appoint themselves superlegislatures, and to second-guess what the people's representatives have done or should do. For this reason, among others, the Republican-controlled Congress should repeal RFRA - or it will continue to deputize the very kind of activism by judges that Republicans hate. It's not surprising that RFRA aligns itself with a more liberal agenda; its standard of strict scrutiny in free exercise cases involving neutral, generally applicable laws was devised by Justice William Brennan.

And the need for RFRA simply cannot be proven. There are hundreds, if not thousands of legislative religious exemptions in the United States. They grant everything from an exemption to the felony murder laws for faith-healing parents who permit their children to die, to an exemption from the immunization laws for school-age children for parents who oppose immunization on religious grounds.

Whatever the wisdom of these particular exemptions, they testify to the ability of religious organizations--even small ones-- to work within the system, and to obtain exemptions from legislatures. The UDV should not have been able to invoke the courts to obtain the right to avoid the drug laws. RFRA as applied to federal law plainly violates the separation of powers, and no case illustrates this fact better than this one.

Marci A. Hamilton is a Visiting Scholar at the Princeton Theological Seminary and the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns, including those on the Catholic Church clergy abuse scandal can be found on this site. Her email is

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