Supreme Court will revisit issue of free exercise of religion

In 1990, the US Supreme Court shook the foundations of religious liberty in America.

Five justices declared in a landmark decision that there is no fundamental right under the First Amendment's free exercise clause to a religious exemption from any law that applies to everyone in society, no matter how oppressive that law might be to a particular religious faith.

The only recourse for religions affected by a neutral, generally applicable law is to lobby lawmakers to make an exception, the high court said. But there is no constitutional right to an exception.

The ruling alarmed many minority religious sects in the US whose chosen methods of worship are frequently misunderstood and sometimes ridiculed by society. Often they lack the political clout needed to protect their faiths through legislation.

In light of these concerns, Congress responded to the ruling by passing the Religious Freedom Restoration Act of 1993. It orders judges to conduct a rigorous case-by-case examination of any law that clashes with religious freedoms.

Now, 15 years after its landmark ruling, the US Supreme Court has agreed to take up a case examining whether religious rights granted by statute under RFRA may trump the nation's drug laws in the same way constitutional protections might have protected religious groups prior to the 1990 ruling. At issue is the sacramental use of a tea-like mixture (which is allegedly hallucinogenic) during worship ceremonies by American adherents of a Brazilian religious sect called O Centro Espirita Beneficiente Uniao Do Vegetal (UDV).

The case pits the nation's war on drugs against the scope of religious freedom in the US. More specifically, it pits the federal drug law, the Controlled Substances Act, against the Religious Freedom Restoration Act (RFRA). The Bush administration, which urged the high court to take up the case to reverse a series of lower court rulings siding with the religious group, says the drug laws must be enforced regardless of religious requests for accommodation.

Acting Solicitor General Paul Clement says earlier rulings by a federal judge and the 10th US Circuit Court of Appeals will undermine the government's ability to effectively battle drug abuse and drug trafficking. He says no other court has ever ordered the government to permit a religious exemption to the Controlled Substances Act. Others counter that in passing RFRA, Congress established the preservation of religious liberty as a top priority, saying that the new religious freedom law applies to all laws.

In a friend of the court brief, Gregory Baylor of the Christian Legal Society says efforts to outlaw sacramental tea is "tantamount to banning the wine served at a Roman Catholic mass."

Others say RFRA violates the separation of powers by forcing judges to assume the role of lawmakers tasked to amend the nation's drug laws on a case-by-case basis.

The tea, called hoasca, is made from two plants that grow in the Amazon rain forest. One of the plants contains a hallucinogen outlawed under the federal Controlled Substances Act.

Founded in Brazil in 1961, the UDV has 8,000 followers worldwide, with some 140 in the US. The UDV combines Christian teachings with religious beliefs native to Brazil.

Consumption of hoasca is central to UDV worship services, the group's lawyers say. It is considered sacred and drinking it is viewed as a way for believers to connect with God, they say. Although it has been scientifically classified as a hallucinogen, UDV lawyers say consumption of hoasca during tightly controlled religious services does not result in hallucinations for participants.

The US government takes a different view. They say hoasca is an illegal hallucinogen banned in US law and through an international treaty. If Congress intended there to be religious exemptions for banned drugs, it would have said so, government lawyers say. The courts have repeatedly upheld the Controlled Substances Act against various groups claiming a religious right to smoke marijuana.

The case stems from the interception in 1999 by US Customs agents of a shipment of hoasca on its way from Brazil to the US. The shipments were labeled "herbal tea extract," but they tested positive for DMT, a hallucinogen.

Federal agents raided the New Mexico home of the leader of the US branch of UDV, Jeffrey Bronfman, and confiscated 30 gallons of hoasca.

The group fought back with a lawsuit charging that the government was violating the UDV members' constitutional right to freely practice their religion. They also sued under the 1993 law, RFRA.

Based on the 1990 Supreme Court ruling, their constitutional case was thrown out. But both a federal judge and the 10th Circuit have sided with the religious group in their RFRA case.

Although the litigation is only in the preliminary stages, if upheld the earlier rulings strongly suggest the group would win its case for an exemption, legal analysts say.

A victory for UDV would not invalidate the nation's drug laws every time a religious group seeks an exemption. But it might in some cases.

Under RFRA, unless the government can demonstrate a compelling interest that requires the repression of a particular religious act and can show that it is using the least restrictive means, the government must permit a religious exemption.

"In this case the government is taking the position that they shouldn't have to put on any evidence because Congress found in general that anything that is listed on the schedule of controlled substances is dangerous," says John Boyd, one of two Albuquerque lawyers representing UDV.

"If the government prevails in their position, then RFRA will have been rendered meaningless in a stroke," Mr. Boyd says.

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