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Cert. Granted in Rapanos

The UDV, DMT, and the RFRA

On November 1, the Supreme Court will hear argument in Gonzales v. O Centro Esperita Benficiente Uniao Do Vegetal, No. 04-1084.  Plaintiffs/appellees ("the UDV") are a Christian church and its members whose religious rituals involve the ingestion of "hoasca," (a.k.a. "ayahuasca"), a tea brewed from South American plants.  Hoasca is central to their religious experience, literally constituting communion with God.  However, the tea contains the controlled psychoactive substance DMT, making it illegal to possess, distribute or import under federal law. 

 

In 1999, the government seized thirty gallons (about 3,000 doses) of hoasca tea from the UDV and threatened to prosecute UDV members for any future possession or importation of the tea.  The UDV sought and won a preliminary injunction from U.S. District Judge James A. Parker in New Mexico.  After an extensive hearing, Judge Parker, finding the UDV was likely to prevail in showing a violation of their rights under the Religious Freedom Restoration Act ("RFRA"), enjoined the government from prosecuting the UDV.  A divided en banc panel of the Tenth Circuit affirmed.

 

The RFRA, passed in response to Employment Division of Oregon v. Smith, requires the government to pass strict scrutiny when it substantially burdens the exercise of religion.  (The Supreme Court struck down the RFRA as applied to the states in City of Boerne v. Flores as an impermissible exercise of Congress's Section 5 power, but several circuit courts of appeal have since upheld the RFRA as applied to the federal government.)

 

If the Court considers the case objectively, the UDV should win hands down.  The government's argument concerning the dangerousness of hoasca is an overblown, hyperbolic artifact of the war on drugs. Hoasca is comparatively harmless, and presents little risk to the populace at large.  There is no threat of addiction, physical or otherwise.  Most people who drink the foul-tasting tea grow nauseous to the point of vomiting, and the heavily psychedelic nature of the experience can be terrifying to the uninitiated.  There will be no teenagers imbibing hoasca in droves at dance clubs.  If the Court is concerned about the use of other, more dangerous drugs, it can write a narrow opinion leaning heavily on the facts.

 

Unfortunately, when the war on drugs comes into play, objectivity and rationality go out the window.  In this context, some members of the Court are unlikely to take seriously the UDV's religious beliefs.  Also, should Justice O'Connor remain on the Court, it will not bode well for the UDV (see her concurrence in Smith, finding the government passed strict scrutiny in banning Native Americans' use of peyote).

 

A reversal would be a tremendous shame and a serious injustice.  As demonstrated by the First Amendment, America was founded in large part by people who placed their relationship with God above the state.  Hopefully, the Court will carve out some small harbor for that relationship amidst the madness of the war on drugs.

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