The Supreme Court Hears Its First Religion Case with Chief Justice Roberts at the Helm

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.