Church needs hallucinogenic drug for its ceremonies; will Supreme Court allow them to have it?

Justices Weighing Narcotics Policy Against Needs of a Church -- By Linda Greenhouse

The Bush administration tried to persuade the Supreme Court on Tuesday that federal narcotics policy should trump the religious needs of members of a small South American church who want to import a hallucinogenic tea that is central to their religious rituals.

Two lower federal courts have barred the government from seizing the sacred drink, known as hoasca tea, which is brewed from indigenous Brazilian plants that do not grow in the United States. The tea's hallucinogenic effect comes from a chemical, dimethyltryptamine, usually known as DMT, which occurs naturally in the plants and is listed as a Schedule I banned substance in the federal Controlled Substances Act.

The Supreme Court refused last year to lift the preliminary injunction issued by the federal district court in Albuquerque. But the justices did agree to hear the administration's appeal. As the major church-state clash of the court's new term, the case has drawn the attention of mainstream religious groups, including the Conference of Catholic Bishops, the National Association of Evangelicals and the American Jewish Committee.

These and numerous other organizations filed briefs on behalf of O Centro Espírita Beneficiente União do Vegetal, the 130-member American branch of a Brazilian church known by the initials U.D.V. The full name rolled with apparent ease off the tongue of Chief Justice John G. Roberts Jr. at the start of the argument. Several of the other justices smiled appreciatively at his success.

Although the case clearly has constitutional overtones, the issue before the court concerns not the First Amendment's protection for religious practice but rather a federal statute, the Religious Freedom Restoration Act. Congress enacted that law in 1993 to give more protection to religious exercise than the Supreme Court itself was willing to provide in a 1989 decision that rejected the claim of members of an American Indian church to a constitutional right to use peyote in religious rituals.

Under the Religious Freedom Restoration Act, the government may not interfere with a religious practice unless it can demonstrate a "compelling" reason for doing so. The Supreme Court declared in 1997 that the law could not apply to states on states' rights grounds, but it remains applicable to the federal government. This case, Gonzales v. O Centro Espírita Beneficiente União do Vegetal, No. 04-1084, may show whether the law has teeth.

Arguing for the government, Edwin S. Kneedler, a deputy solicitor general, said the government's "compelling interest" in prohibiting the importation of the group's sacramental tea was established by the listing of DMT in the most restricted category under the federal drug law, reserved for substances that are regarded as contraband, without legitimate uses.

"The Congressional listing in and of itself is sufficient," Mr. Kneedler said.

He added that any deviation from Congress's "categorical judgment" would "turn over to 700 district judges" the power to grant individualized exemptions from a law that required uniform application in order to be effective.

But several justices objected that the Religious Freedom Restoration Act appeared to require individual determinations. Justice Antonin Scalia said he understood the law "to say there can be an exception to all federal statutes where someone makes a religious objection to compliance" and a judge finds an absence of a compelling interest.

Justice Ruth Bader Ginsburg said the fact that Congress had now granted Indian tribes an exemption for their religious use of peyote showed that the government's interest in uniformity could not be compelling.

"The two situations seem to be alike, peyote and this," Justice Ginsburg said. "The problem of preferring one religious group over another arises once there is an exception."

Mr. Kneedler replied that the peyote exception was a special case, justified by the history and special relationship between the federal government and Indian tribes.

"But," Justice Scalia said, "it still shows that you can make an exemption without the sky falling."

Chief Justice Roberts, addressing his former colleague from the solicitor general's office, asked Mr. Kneedler, "We don't have to make a once-and-for-all determination, do we?"

He said that if it turned out that the drug was being diverted to illicit uses, "or the membership of the church expands in a way that leads you to believe it is being abused," an exemption could be withdrawn.

The chief justice asked whether, under the government's "totally categorical approach," Mr. Kneedler's position would be the same if the church permitted each member to have only one drop of hoasca tea once a year.

Yes, Congress could prohibit even that minimal use, Mr. Kneedler said.

Mr. Kneedler, making his 91st argument, is one of the most experienced Supreme Court advocates of all time. His opponent, Nancy Hollander, a lawyer from Albuquerque, was appearing before the Supreme Court for the first time. But as a former president of the National Association of Criminal Defense Lawyers, Ms. Hollander was hardly a courtroom novice and managed gamely to hold her own.

All that the Religious Freedom Restoration Act did, she said, was to "give every religious organization, minority and majority, the opportunity to go into court and make their claim." She said the government's position was "fundamentally and structurally incompatible" with the statute.

One disagreement between the two sides was over the interpretation of a 1971 international treaty, the United Nations Convention on Psychotropic Substances, which obliges the 175 countries that have signed it to combat international traffic in illicit drugs. While DMT as a chemical substance or additive is covered by the treaty, there is much dispute over whether the prohibition applies to its natural occurrence in hoasca tea.

Mr. Kneedler argued that the treaty did apply, and that it provided another compelling justification for the government's policy.