The Supreme Court's Unanimous Decision Recognizing a Religious Right to Use Hallucinogenic Tea
By MICHAEL C. DORF
|Monday, Feb. 27, 2006
Last week, in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, the Supreme Court held that U.S. members of a Brazilian-based Christian Spiritist Sect had a right to use a hallucinogenic tea called hoasca for religious purposes. The Court so ruled notwithstanding the fact that hoasca is a Schedule I substance with no medical or otherwise accepted use.
Crucial to the reasoning of the unanimous opinion, authored by Chief Justice Roberts, was the Court's determination that the government bore the burden of showing that permitting a religious exception to the prohibition would undermine compelling governmental objectives.
The Court's decision appears to indicate that the Justices are more receptive to claims of religious freedom now than they were just sixteen years ago, when they issued a landmark ruling in a case involving a different hallucinogenic drug--peyote--rejecting a claimed right to use the drug for religious purposes.
But it is not clear whether the Justices are really more receptive to such claims because the Court's hoasca opinion ignored, rather than addressed, a critical ambiguity in its own prior rulings.
A Law Unto Himself? The Nineteenth Century Approach to Free Exercise Claims
To understand what makes the hoasca case important requires some familiarity with the Justices' less-than-entirely-successful efforts, over time, to reconcile the background assumption of majority rule with the First Amendment's protection of free exercise of religion.
The doctrinal story begins in the Nineteenth Century, at a time when the Mormon Church regarded polygamy as a religious rite. (The Mormon Church prohibited the practice in 1890.) George Reynolds was charged with violating a federal law banning bigamy. He defended on the ground that he was obligated to take plural wives by his religion. But the trial judge refused to instruct the jury that sincere religious belief could excuse compliance with an otherwise valid law. Reynolds was convicted.
The Supreme Court affirmed the conviction in the 1878 case of Reynolds v. United States. Chief Justice Waite explained: "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices." A religious belief in the necessity of human sacrifice could not supply a defense to murder, the Court reasoned, and more generally, to grant exemptions from generally applicable laws on the basis of individual religious belief would be "to permit every citizen to become a law unto himself."
There the law stood for nearly a century, but then the Supreme Court ruled that sincere religious belief can excuse compliance with otherwise valid general laws, unless the government can demonstrate that it has a "compelling interest" that cannot be achieved by granting religious exemptions. Under this test, human sacrifice would still be proscribable because of the government's compelling interest in protecting innocent human life, but less pressing governmental objectives would yield to religious claims.
Two leading cases illustrate what the compelling interest test requires. In 1963, in Sherbert v. Verner, the Court invalidated a South Carolina law that deemed a Seventh Day Adventist ineligible for unemployment benefits because she refused to work on Saturdays. Even though the law applied to everyone, the Court held, as applied to those who observed the Sabbath on Saturday, it infringed religious freedom.
Likewise, in the 1972 ruling in Wisconsin v. Yoder, the Supreme Court found that Wisconsin had failed to justify the application of its compulsory education law with respect to Amish children between the ages of 14 and 15. (The state required children to go to school until the age of 16; for religious reasons, the Amish finished school after the eighth grade.)
The Peyote Decision, and Congress' Reaction
In 1990, however, in the case of Employment Division v. Smith, the Court essentially returned to the principle of Reynolds. Echoing the Reynolds Court's unwillingness to make every citizen "a law unto himself," Justice Scalia, writing for the majority in Smith, declared that "a private right to ignore generally applicable laws . . . is a constitutional anomaly."
Accordingly, in the Smith case itself, the Justices did not apply the compelling interest test to Oregon's extension of its ban of peyote to those who used this hallucinogenic drug in their Native American worship service. Thus, the majority ruled that the Oregon law did not even implicate the religious rights of Native Americans.
Since the Smith decision in 1990, the Court has understood the Free Exercise Clause to be nothing more than a principle of formal equality: If a law singles out a religious practice because it is religious, then the compelling interest test applies. But if the law applies to everyone, then no Free Exercise issue is even raised.
For example, under Smith, a state could not specifically prohibit the wearing of yarmulkes in courtrooms, for that would single out observant Jews for disadvantage. But the state could forbid the wearing of all headgear in courtrooms, even though the impact on observant Jews of these two laws is identical.
The Smith ruling was widely unpopular, sparking legislation in 1993 that enjoyed broad bipartisan support: the federal Religious Freedom Restoration Act (RFRA). That law expressly restored the compelling interest test even for generally applicable laws, wherever they substantially burden religious exercises.
The Court Strikes Back by Invalidating RFRA
Yet Congress did not have the last word. In the 1997 case of City of Boerne v. Flores, the Supreme Court held that RFRA itself was unconstitutional.
Congress may only exercise those powers delegated to it by the Constitution. Although Congress claimed that RFRA was authorized by Section Five of the Fourteenth Amendment, the Court thought otherwise.
Section Five grants to Congress the power to "enforce" the substantive provisions of the Fourteenth Amendment, including its Due Process Clause. That Due Process Clause is the basis for the application of the First Amendment's Free Exercise Clause to state and local governments. Hence,, Congress thought that, by "restoring" the compelling interest test and the pre-Smith cases, it was "enforcing" the Fourteenth Amendment--and thus acting within its constitutionally granted powers.
The Court disagreed. In Boerne, Justice Kennedy explained for the Court that the power to enforce the substantive provisions of the Fourteenth Amendment does not include the power to change the meaning of those substantive provisions. The Court had already said--in Smith--that the compelling interest test does not apply to laws that do not single out religious practices. Accordingly, RFRA's attempt to restore the rule of Sherbert and Yoder was deemed a disguised effort to change the meaning of Free Exercise and Due Process. And the only way to do that is by amending the Constitution.
The Exaggerated Rumors of RFRA's Demise
The Boerne case thus held RFRA unconstitutional, but it left a critical ambiguity unaddressed. By its terms, RFRA applied to all levels of government--federal, state and local. The Boerne decision itself involved a local law, and its theory made clear that Congress was without power to subject local or state laws of general applicability to the compelling interest test. But what about federal laws?
As to federal laws, most constitutional scholars (including yours truly) argued that RFRA remained valid. Why? Because as to federal laws, Congress did not need to rely on its power to enforce the Fourteenth Amendment for authority to enact RFRA. Rather, with respect to federal laws, RFRA was simply an exception to whatever other rules Congress enacted--for example, the drug laws. It said, in effect, don't apply these other federal laws to the extent that they substantially burden free exercise of religion and fail the compelling interest test.
Congress surely didn't need any source of power to withhold the exercise of federal authority. Put differently, the authority for RFRA as applied to the federal government was simply whatever power authorized each of the laws to which RFRA mandated an exception.
In last week's ruling in the hoasca case, the Supreme Court tacitly accepted this theory. It remarked in a footnote that the Court had invalidated RFRA as to state and local government in Boerne, and it proceeded on the assumption that, with respect to the federal drug laws, RFRA could simply be treated as authorization for the courts to find religious exemptions from those laws.
It is not very surprising that the Court upheld RFRA as applied to the federal government. What is somewhat surprising is that it did so unanimously, and without even addressing two arguments that had previously been advanced in support of the proposition that RFRA is unconstitutional as applied to all levels of government.
Establishment of Religion: The First Dog that Didn't Bark
According to the first argument, which was made by Justice Stevens in a concurring opinion in the Boerne case, RFRA was unconstitutional because it favored religious claims for exemptions from general laws over other kinds of exemptions, in violation of the First Amendment's Establishment Clause.
The Court has long held that government may not favor religion over non-religion. Yet RFRA can be seen as doing just that. If you can't work on Saturdays because that is your Sabbath, then RFRA--which expressly approves of the Sherbert decision--will grant you an exemption from a state law that classifies you as ineligible for unemployment compensation. However, if you can't work on Saturdays because that is the only day that you can feasibly visit your ailing mother, RFRA provides you no excuse (unless perhaps you can claim that you need to visit your mother to comply with the Biblical obligation to honor her). More generally, RFRA favors those who claim religious reasons for exemptions from general laws over those who claim medical, family and other non-religious reasons for exemptions.
Look at last week's decision itself. The Court held that the federal government bore the burden of proving that granting a religious exemption from the general prohibition on hoasca possession would undermine the prohibition. Yet less than a year ago, in Gonzales v. Raich, the Court had placed the burden of showing that an exemption from a general prohibition on marijuana use would not undermine the prohibition on the law's challengers--not on the government defending the law.
The difference in burden allocation mattered: The federal government was permitted to enforce its marijuana prohibition nothwithstanding a medical claim rooted in states' rights; it was not permitted to enforce its hoasca prohibition in the face of a religious claim.
Does Justice Stevens's argument mean that the Court was wrong in the hoasca case? Should the Justices have invalidated RFRA as applied to all levels of government?
Not necessarily. Recall that only Justice Stevens had previously expressed the view that RFRA violates the Establishment Clause. Other Justices might have reasonably thought that a regime of religious exemptions does not actually favor religion over non-religion. Rather, such a regime provides protection for religious minorities who might fare poorly in the political process. After all, it is no accident that during the era of Prohibition, ritual use of wine (by Catholics, Jews and others) was permitted, but that Oregon and other states made no exception for ritual use of peyote. RFRA, on this view, merely levels the playing field.
And indeed, that is more or less what the Supreme Court said last year in Cutter v. Wilkinson. That case rejected an Establishment Clause challenge to a different law--the Religious Land Use and Institutionalized Persons Act (RLUIPA)--which, like RFRA, mandates that general laws (in the context of prisons and other settings of confinement) be subject to the compelling interest test if they substantially burden religious practice. (Curiously, Justice Stevens joined the majority opinion in Cutter, without explaining whether, or why, he had changed his mind since writing his concurring opinion in Boerne.)
Separation of Powers: The Second Dog that Didn't Bark
A second argument for the invalidity of RFRA even as applied to the federal government derives from the language of the peyote decision itself. Legislatures, Justice Scalia wrote there, could balance the costs and benefits of granting religious exemptions in particular cases, but courts are particularly ill-suited to that task: Weighing the importance of a religious practice against the government interest in its generally applicable laws is within the legislature's competence, not that of the courts.
Yet if the judiciary lacks the institutional competence to perform some task, how can the legislature assign that task to the judiciary? In the view suggested by this rhetorical question, RFRA violated the separation of powers--the constitutional notion that each branch of government must stick to its assigned area of expertise.
In his opinion for the Court in the hoasca case, Chief Justice Roberts addressed the separation-of-powers objection obliquely. He said that concerns about judicial competence led the Smith Court to reject the compelling interest test as a matter of constitutional obligation. But, he implied, those concerns are not weighty enough to override a Congressional mandate--in RFRA--to apply the compelling interest test.
A Duty to Explain: The Court Fails to Address Judicial Competence Concerns
Why not? Is it because judicial application of the compelling interest test is merely difficult--rather than, as suggested in the peyote case, impossible? And if so, does that suggest that the peyote case itself was wrongly decided? Why should the Court shy away from performing its constitutional duty merely because doing so is difficult?
Persuasive answers could perhaps be given to these questions, but the Court did not even address them.
To be fair to the Court, perhaps Chief Justice Roberts ignored the separation-of-powers argument in the hoasca case because it was not advanced by the parties. Avoiding unnecessary determinations of constitutional law is an important discipline for the Court.
At the same time, however, the Court has an obligation to explain apparent inconsistencies in its own decisions. Moreover, if, as the Smith Court suggested, it is simply improper for the judiciary to apply the compelling interest test in religion cases, then the fact that the parties didn't object to the courts' playing this improper role should not have made any difference.
Our courts derive their legitimacy in part from their willingness to give reasoned explanations for their decisions. The hoasca opinion is well-reasoned as far as it goes, but it should have gone further in explaining just what, if anything, is left of the Court's broad pronouncements in the peyote case. There, Justice Scalia wrote for the Court that it is an "unavoidable consequence of democratic government" that the legislature must make religious exemption determinations on a statute-by-statute basis rather than having the courts weigh each law against claims to religious freedom under the compelling interest test. The disadvantage that thus results to religious minorities, the Smith majority said, "must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs."
In the hoasca case, the Court formally left Smith intact as the constitutional rule. Yet, at the same time, the Court appeared to reject the core logic of Smith, as Justice Scalia explicated it. Thus, these issues will likely return to the Court before too long.