Forget Pot - Drink Tea

The Supreme Court heard oral arguments yesterday in a really interesting case that deals with the intersection of criminal law and religious practice. The case involves the small American branch of a Brazilian church called UDV. As part of their religious ceremonies, UDV adherents consume hoasca tea, which is made from two plants that grow only in the Amazon. The tea contains DMT, a hallucinogen that happens to be a Schedule I controlled substance in the United States. Use and possession of Schedule I substances, like pot, are completely prohibited (outside of a few Government research projects). The DEA seized a shipment of the tea, which the American branch of UDV imports from Brazil. UDV sued the Government and obtained an injunction prohibiting the DEA from any more seizures. The DEA has appealed all the way to the Supreme Court.

If this case sounds a little familiar, that's because it is. In 1990, the Court held that Colorado could punish the ritual use of Peyote by Native Americans because the law was generally applicable and was not designed to discriminate specifically against religious use. A coalition of religious leaders took umbrage at that and got Congress to pass the Religious Freedom Restoration Act (RFRA), which requires courts reviewing such general laws that impose on religious expression to determine whether the Government has a "compelling interest" in enforcing the law against that particular religious group. That's a very difficult standard for the Government to meet, which essentially means that religious exceptions to general laws will be upheld.

The real issue in the case heard by the Supremes yesterday was how to apply the RFRA in this particular case. But the broader issue is should the First Amendment be interpreted to allow religious exceptions to generally applicable laws? I'm not comfortable with that idea, for lots of reasons. The major one is that it might lead to courts passing judgment on what religions are "sincere" enough to warrant the exceptions. That would seem to cause all kinds of First Amendment problems, as it puts the Government in the position of separating out "true believers" from phonies.

Another problem I have is that I see no compelling reason to limit the exception to religious groups. Why should I be deprived the benefits of this (or any other) particular drug because I don't have a church or cult to back me up? I know the cases are legally distinct, but compare this case with the Raich medical marijuana case decided last term. It's OK for a group of religious folks to break the law in order to better commune with God, but people seeking medical treatment under a state statute providing for such treatment are out of luck? What if someone started the Church of Medicinal Marijuana?

Either way, it appears headed for a pro-religion outcome, according to Lyle Denniston's report over at SCOTUSblog.

For more perspectives on this issue, check out the Legal Affairs Debate Club this week.