You Remember the Recent Religious Liberty Case ...

It was a major one, on a recurring question that, after several years, finally reached the Supreme Court, with the federal government pitted against a religious body.  The lower courts decided it on fairly fact-specific issues, but in its SCT brief the Administration surprisingly took a much broader position against the religious liberty claim.  Embarrassingly for the Administration, the Court slapped it down 9-0.  Even justices expected to the sympathize with the federal laws in question rejected the Administration's broad position.  And Chief Justice Roberts's opinion for the Court specifically took a pot-shot at the implications of the government's argument.

The case, of course, is Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006), in which the Court unanimously affirmed a preliminary injunction preventing the Bush Administration from pursuing criminal prosecution of a small sect that used a hallucinogenic drug in a tea that members consumed at worship services.  In the lower courts the government had argued that the tea could cause significant harm to worshipers and could be diverted to recreational uses.  But in the Supreme Court the Solicitor General claimed it didn't have to make any such arguments.  It claimed instead that the mere listing of a drug on the federal schedule of controlled substances conclusively showed a "compelling interest" under RFRA--despite the statute's requirement that the government show a compelling interest in applying the law "to the person" in question.  The Chief Justice's unanimous majority opinion commanded the votes of the non-druggies on the Court as well as the druggies.  It also derided the government's broad argument as "the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions."  The Court (correctly) found that the government's "slippery slope concerns" would undermine RFRA because they "could be invoked in response to any RFRA claim for an exception to a generally applicable law."  For those who paid attention, it was an embarrassing rebuke to the Administration and its litigation posture.

This term's ministerial-exception case, Hosanna-Tabor, shared the same features, and end-of-term reviews are reminding us how badly the Obama Administration did before the Court in that case among others.  The current administration was wrong in Hosanna-Tabor, as was argued by many briefs, including the one Rick and I filed, argued.  But in the arguments about whether the Obama Administration is uniquely negative on religious liberty, I would caution against putting too much weight on Hosanna-Tabor.  The O Centro tea case shows that administrations of different perspectives can let basically valid law-enforcement concerns it favors (anti-drugs for Bush, anti-discrimination for Obama) go too far and trump religious liberty to a point where all the justices, however sympathetic to the law in question, say "No."