Ritual Tea and Religious Freedom

The freedom of religion case in which the Supreme Court just granted review -- Gonzalez v. O Centra Espirita Beneficiente Uniao do Vegetal [UDV] -- is an extremely important one for the freedom of all faiths in America.  The case concerns the interpretation of the 1993 Religious Freedom Restoration Act (RFRA), in which Congress required that before a law can be applied to "substantially burden" sincere religious conduct, that application must be justified by a "compelling" governmental interest and be the "least restrictive means" of achieving that interest.  RFRA was a response to Supreme Court precedent stating that a law that is "neutral and generally applicable" can be applied to suppress religious conduct no matter how serious the burden on religion and how minimal the need for regulation.  Under the principle that RFRA reversed, a dry county in Oklahoma could prohibit the mass, no questions asked, and generally applicable sex-discrimination laws could be applied to force the Catholic Church to ordain women as priests.  Although RFRA was struck down in 1997 as applied to state and local laws, it remains valid as a limit on federal laws and regulations that restrict religious freedom.

In UDV, the government sought to prohibit the consumption and importation of a tea used in the central ritual act of UDV worship services, on the ground that the tea contained a hallucinogenic substance listed under federal drug laws.  The UDV, the tiny American offshoot of an established Brazilian religion, obtained an injunction against the government's actions, based on evidence that the use of the tea would not create dangers of health hazards or drug trafficking, because (among other things) the church insisted that members limit their use to the worship service and because the unpleasant taste of the drug made it unattractive to recreational users.  These very same features are true of sacramental use of peyote by Native Americans, which has led numerous states and the federal government to exempt such peyote use from their drug laws.  The role of the RFRA statute is to ensure that when a similar claim, such as UDV's, cannot get a legislative hearing because the group is less familar or less adept at lobbying, the courts will declare an equal right to free exercise for that faith.  (In sharp contrast is the uncircumscribed use of marijuana, a widely trafficked drug, by other groups claiming religious freedom; these claims always lose, even under the higher standard of RFRA.)

The federal government does not challenge the validity of the RFRA statute; the Bush administration wants to be able to defend religious freedom when it is more popular.  Instead, the government offers an interpretation of the statute that would gut its effectiveness.  The government argues that the mere listing of a drug on the schedule of controlled substances proves that there is a "compelling" reason to prohibit it in any and all circumstances -- without regard to the kind of evidence described above concerning the limited risks from the UDV's use.  Essentially, the government says that the mere existence of a law is proof that it serves a compelling interest in all cases.  Although the government tries to limit this argument to drug cases, its implications go much further.  As Judge Michael McConnell -- a Bush appointee, and no wild-eyed radical -- argued in the court of appeals decision ruling for UDV:

Congress’s general conclusion that DMT is dangerous in the abstract does not establish that the government has a compelling interest in prohibiting the consumption of

hoasca under the conditions presented in this case. . . .

RFRA requires

the government

to "demonstrate[]" that application of a challenged federal law to religious exercise satisfies strict scrutiny under RFRA. 42 U.S.C. § 2000bb-1(b). The term "demonstrates" is defined as "meet[ing] the burdens of going forward with the evidence and of persuasion." Id., § 2000bb-2(3). Obviously, Congress contemplated the introduction of "evidence" pertaining to the justification of "application" of the law in the particular instance. If such a burden of proof could be satisfied by citing congressional finding in the preambles to statutes, without additional evidence, RFRA challenges would rarely succeed; congressional findings invariably tout the importance of the laws to which they are appended.

If the government's position prevails in UDV, then potentially almost any claim of religious freedom as against a generally applicable law would fail.  Amish parents were allowed to remove their teenagers from high school in lieu of informal vocational education (Wisconsin v. Yoder, 406 U.S. 205 (1972)) because, even though education in general is an important state interest, a couple extra years of formal education was not shown to be crucial to the development of Amish children.  Formal teacher credentials are generally important for the public-school and private-school teachers handling significant numbers of students, but that does not mean they have to be applied rigidly to home-schooling parents who have close relationships with a small number of students, their children.  These and numerous other successful religious-freedom claims would fail under the standard that the federal government advocates in UDV.  (For input from several Christian organizations that are theologically light years from the UDV but support its right to practice its faith, see this amicus brief.)

This case concerns far more than just a tiny group practicing an unfamilar faith and consuming a hallucinogenic substance.  It concerns far more than drugs and the war on them.  It will affect the freedom of religions across the spectrum when they come in conflict with the huge range of federal laws and regulations. 

Tom Berg