Source: Legal Times
Date: 14 April 2004

High Court Asked to End Religious Teatime

Government says New Mexico Christian group's ceremonial drink
violates federal controlled substance laws

Marya Lucas


A small Christian group's drinking of ceremonial tea could be curtailed if the Bush administration has its way before the Supreme Court.

The administration is challenging the New Mexico group -- O Centro Espirita Beneficiente Uniao Do Vegetal -- and its practice of drinking hoasca, a sacred herbal tea that members believe connects them to God. The tea contains dimethyltryptamine, a controlled substance under the Controlled Substances Act and one the administration claims is banned by international treaty. The Supreme Court will decide whether to hear the case, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, No. 04-1084, at its conference Friday.

O Centro Espirita was founded in Brazil in 1961. The tea, hoasca, which in the Quechuan Indian language means "vine of the soul," "vine of the dead," and "vision vine," comes from the Amazon rainforest. Members drink the tea at least two times a month during ceremonies. Approximately 130 members of the church reside in the United States, 8,000 in Brazil.

Brazil, a member of the international treaty at issue, has exempted hoasca from its controlled substances list.

But the Bush administration claims that no such exemption should exist in the United States. The administration is arguing that the high court should overturn a November 2004 en banc ruling from the 10th U.S Circuit Court of Appeals that affirmed an earlier injunction prohibiting the administration from enforcing the Controlled Substances Act and the United Nations Convention on Psychotropic Substances.

The 10th Circuit's ruling is grounded in the federal Religious Freedom Restoration Act, which protects individuals from governmental interference in the exercise of religion. Congress passed the act after the Supreme Court, in the 1990 case Employment Division v. Smith, affirmed Oregon's prohibition on Native Americans' use of peyote and marijuana for religious purposes, ruling that the First Amendment free exercise clause afforded them no protection. And although the Supreme Court struck down part of the RFRA in the 1997 case City of Boerne v. Flores, the act still applies to federal laws such as the Controlled Substances Act.

Under the RFRA, the government must show that it has a "compelling governmental interest" in restricting the religious practice and that the interest is fulfilled in the "least restrictive" way. The 10th Circuit ruled that the government had not proved that use of the tea, which contains 25 mg of DMT per typical serving, would lead to adverse health effects or abuse of the drug outside of a religious context.

In its appeal to the Supreme Court, the Bush administration argues that Congress already determined that DMT is a Schedule I drug (meaning that it is prohibited in all circumstances except for research) and that it is harmful to a person's health. The 10th Circuit decision, the government argues, second-guesses Congress.

"The court of appeals -- unlike every court of appeals before it -- fundamentally disregarded Congress's expert judgment that Schedule I controlled substances have profoundly adverse health effects and an elevated potential for abuse and diversion," Acting Solicitor General Paul Clement writes in the government's brief. Clement also claims that if the injunction stands, "scores if not hundreds of persons, including minors ... [will] continue to put their physical and psychic well-being in serious jeopardy."

The government also contends that the injunction forces it to violate the United Nations Convention on Psychotropic Substances. The convention, to which the United States is a signatory, also classifies DMT as a Schedule I drug.

Lawyers from Freedman Boyd Daniels Hollander & Goldberg of Albuquerque, N.M., who are arguing for O Centro Espirita, say that the government failed to prove its case under the compelling interest standard. They write that the government "does not fairly summarize the facts" and that evidence shows the tea does not cause health problems or lead to drug abuse.

This is just the type of case in which religious practice should be exempted from government interference, says John Boyd, a lawyer for O Centro Espirita. He draws an analogy between this case and a hypothetical one in which the government reinstitutes Prohibition.

"Under [the RFRA], the Catholic Church would be able to say, 'We have to be able to conduct mass, and we need wine in order to do that,' " says Boyd. "The courts would say [that] unless the government can show that it had a genuine compelling interest of preventing the Catholic Church from using wine as its sacrament, then the Catholic Church would prevail under RFRA if it challenged Prohibition."

Boyd also argues that the U.N. treaty doesn't apply. "The treaty recognizes that there may be laws like RFRA, for example, that preclude the application of this treaty," he says.

Furthermore, lawyers for O Centro Espirita point out in their brief that the government allows certain religious uses of peyote in the Native American Church: "The government has never attempted to explain how it can ask the courts to ignore the [Native American Church's] possession, distribution, and ritual use of peyote while claiming that [O Centro Espirita's] similar use of hoasca must be conclusively presumed to be a menace to society." In 1994, Congress amended the American Indian Religious Freedom Act to say that Native Americans' use of peyote for ceremonial purposes was lawful and could not be prohibited by law.

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