Whether public health and safety concerns and the potential for non-religious use are sufficiently compelling reasons for the government to prevent the religious group, UDV, from using a tea containing a Schedule 1 hallucinogenic for religious ceremonies.
The Religious Freedom Restoration Act of 1993 (“RFRA”) generally prohibits the federal government from restricting the use of controlled substances in bona fide religious ceremonies. A small North American sect of the Brazilian group, “O Centro Espirita Beneficiente Uniao Do Vegetal” (“UDV”) has challenged the government’s enforcement of a ban on DMT, a Schedule I narcotic and principle ingredient of “ hoasca ” a tea imported from South America that is central to UDV’s religious rituals. The government argues that its restriction on UDV falls within narrow RFRA exceptions because of the health risks associated with the use of DMT, the potential for diversion of the substance to non-religious uses, and the 1971 United Nations Convention ban on the importation of DMT. In this case the Supreme Court will decide whether RFRA's prohibition extends to the use and importation of Schedule I narcotics, which are those substances the federal government deems most harmful.
Questions as Framed for the Court by the Parties
Whether the Religious Freedom Restoration Act of 1993 (RFRA) requires the government to permit the importation, distribution, possession, and use of a Schedule I hallucinogenic controlled substance, where Congress has found that the substance has a high potential for abuse, it is unsafe for use even under medical supervision, and its importation and distribution would violate an international treaty.
In May, 1999, federal customs officials seized goods labeled “tea extract” en route to Sante Fe, New Mexico, to Jeffrey Bronfman, President of the United States Chapter of a Brazilian religious group known as O Centro Espirita Beneficiente Uniao Do Vegetal (“UDV”) — roughly translated, “The Beneficial Spiritualist Center of the Union of the Vegetable.” See Gonzales v. O Centro Espirita Beneficiente Uniao De Vegetal, No. 04-1084 (U.S. filed July 2005).
A subsequent raid of Bronfman’s home led to the seizure of thirty gallons of a tea brewed from indigenous Brazilian plants known as “hoasca,” which contains the compound dimethyltryptamine (“DMT”). DMT is a Schedule I controlled substance under the Controlled Substances Act (“CSA”), codified in 21 U.S.C. § 812. A drug is classified as a Schedule I controlled substance — the most restricted level — if it has “a high potential for abuse” and “no currently accepted medical use or treatment in the United States.” 21 U.S.C. § 812(b)(1). The CSA bans distribution of Schedule I controlled substances except for in strictly controlled research projects that are registered with appropriate federal agencies or for limited industrial purposes excluding human consumption. See 21 U.S.C. § 822.
After the seizure of the hoasca, Bronfman and other UDV members sought declaratory and injunctive relief in federal court to prohibit the government from restricting UDV’s importation, possession, and use of the hallucinogenic tea in their religious services. See Brief for the Petitioners at 6, O Centro Espirita, 389 F.3d 973 (10th Cir. 2004), cert. granted, 125 S.Ct. 1846 (U.S. Apr. 18, 2005) (No. 04-1084). The government argued that it could indeed restrict the use of hoasca because it contained DMT, which is dangerous to the health of the UDV members and could easily be diverted to other users. See Id. at 14. Further, the government argued that it was obligated under the 1971 United Nations Convention on Psychotropic Substances to prohibit the importation of DMT. See Id. at 41.
A district court, nevertheless, granted UDV’s preliminary injunction against the government, and a three-judge panel of the 10th Circuit and later the 10th Circuit, sitting en banc as thirteen judges, affirmed that ruling. Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 389 F.3d 973 (10th Cir. 2004), cert. granted, 125 S.Ct. 1846 (U.S. Apr. 18, 2005). The courts held that the Religious Freedom Restoration Act of 1993 (“RFRA”) likely protected UDV’s right to use the tea in legitimate religious ceremonies and, therefore, that the temporary injunction restricting the government’s ability, while awaiting trial, to ban and seize the tea was justified. See Id.
The RFRA was passed by Congress in 1993 to nullify the Supreme Court’s decision, Employment Division v. Smith, which held that Native American tribes had no right under existing state law to use peyote, a controlled substance, in religious ceremonies. 494 U.S. 872 (1990). Although the Court later held in Boerne v. Flores that the RFRA was unconstitutional as applied to state governments, the RFRA still applies to the federal government. 521 U.S. 507.
In Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 389 F.3d 973 (10th Cir. 2004), cert. granted, 125 S.Ct. 1846 (U.S. Apr. 18, 2005), the Supreme Court will decide whether the government has shown compelling interests in prohibiting UDV from using hoasca in its ceremonies, in light of the statutory protection of free exercise of religion provided by the RFRA, 42 U.S.C. § 2000bb. This issue comes to the Court as a question of whether or not the 10th Circuit erred in granting a preliminary injunction in favor of UDV to allow the group to use hoasca while awaiting a full trial. O Centro Espirita, 282 F. Supp. 2d 1236 (D.N.M. 2002).
The RFRA provides broad protection for the free exercise of religion with the exception that the "[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." RFRA, 42 U.S.C. § 2000bb-1. This standard is reminiscent of other "strict scrutiny" tests employed by the Supreme Court and operates in two parts: the government must first show a compelling state interest and then prove that that are no less restrictive methods than its proposed method to further the compelling interest.
As a preliminary matter in the present case, the government concedes that UDV is a legitimate religion and that preventing UDV from using hoasca would be a substantial burden on the group's free exercise of religion. O Centro Espirita, 282 F. Supp. 2d at 1253. This immediately distinguishes the case from many earlier cases where various groups failed to skirt drug laws on the basis of religious freedom, including United States v. Meyers, 95 F.3d 1475 (10th Cir. 1996), where the 10th Circuit found that the defendant who declared himself the "founder and Reverend of the Church of Marijuana" did not adhere to a religion but rather to a philosophy, and also United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996), where the 9th Circuit held that the religious rights of adherents to the Rastafarian religion were not substantially burdened by being prevented from selling marijuana. Therefore, the sole question here is whether the government’s prohibition on UDV's use of hoasca falls within the exception carved out by the RFRA.
Despite the government's concessions, it nevertheless argues that prohibiting use of hoasca falls within the RFRA's exception and asserts three state interests it believes are "compelling" — preventing health risks, guarding against the potential for abuse, and adhering to the 1971 United Nations Convention on Psychotropic Substances, 32 U.S.T. 543, 545, 1019 U.N.T.S. 175, opened for signature Feb. 21, 1971. See O Centro Espirita, 282 F. Supp. 2d at 1252–53.
The government argues that use of hoasca, which contains the hallucinogen DMT, poses a significant threat to the health and safety of UDV adherents even though they only use it in religious ceremonies. See Brief for the Petitioners at 14–35, O Centro Espirita, 389 F.3d 973 (10th Cir. 2004), cert. granted, 125 S.Ct. 1846 (U.S. Apr. 18, 2005) (No. 04-1084). UDV adherents believe that they can only fully perceive God while under the effects of hoasca and consume the tea in thirty-two religious ceremonies a year. See O Centro Espirita, 282 F. Supp. 2d at 1255. DMT has properties similar to that of LSD and has been classified by Congress as a Schedule I drug, meaning it has no accepted medical use. See Brief for the Petitioners at 2, 32. To date, medical research on DMT is preliminary, and the parties in this case presented experts that provided conflicting opinions about its potential for health risks. See O Centro Espirita, 282 F. Supp. 2d at 1252. In deciding on whether a health risk is present, the District Court concluded that the evidence was inconclusive, and thus, the government failed to meet the burden of proving a compelling interest. See Id.
Apart from health risks, the government also points out the potential for hoasca to be diverted towards illegal, non-religious uses. To this end, it claims that there is a high demand for hoasca in the domestic black market — the tea sells for $200 to $450 a glass — and also that hoasca cannot be grown domestically and must be imported, a process that raises the risk of theft, loss, or fraud. See Brief for the Petitioners at 37–78. UDV responds by arguing that the government raises general risks of DMT use and fails to properly focus on the risks of UDV’s specific practices. See Brief for Respondents, at 16, O Centro Espirita, 389 F.3d 973 (10th Cir. 2004), cert. granted, 125 S.Ct. 1846 (U.S. Apr. 18, 2005) (No. 04-1084).
Underlying the quarrel over the potential for harm and illegitimate drug divergence is the more fundamental question of the level of generality the Court should adopt in analyzing the RFRA. UDV contends that the RFRA calls for a case-by-case analysis of the potential for harm and divergence arising from the specific practices of UDV, while the government argues that a court should look at the risks in a broader light and must defer to Congressional policy as reflected by the classification of DMT as a Schedule 1 substance. See Brief for Respondents, at 16, Brief for the Petitioners at 16.
The 10th Circuit, sitting en banc as a court of thirteen judges, failed to come to a consensus on this point. See O Centro Espirita, 389 F.3d at 973. While Judge McConnell opined that "what must be assessed is not the more general harm [from] the importation and sale of street drugs, but rather the harm resulting from a temporary injunction against prohibiting the controlled use of hoasca by the UDV in its religious ceremonies," Judge Murphy disagreed and wrote that "courts should not direct the nation's drug policy, courts simply lack the institutional competence to craft a set of religious exemptions to the uniform enforcement of those laws." See Id. at 983, 1008.
In furtherance of their argument that the Court should analyze the RFRA broadly, the government borrows logic from Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994), which held that courts must substantially defer to the predictive judgments of Congress when deciding the constitutionality of a statute. On the contrary, UDV contends that this broad analysis does not apply when the Court applies "strict scrutiny" as called for by the RFRA, and must instead "apply the * * * regulation to the individual claimant." See Kikumura. v. Hurley, 242 F.3d 950, 962 (10th Cir. 2001); See Brief for the Petitioners at 18.
The government also argues that allowing UDV to use hoasca would contravene the 1971 United Nations Convention on Psychotropic Substances, a treaty which the United States has signed. The treaty prohibits the use of Schedule I substances, with a narrow exception for the religious use of domestically-grown wild plants. See O Centro Espirita, 282 F. Supp. 2d at 1266–67. However, a commentary to the treaty suggests that the ban applies only to banned substances in their pure form and not to plants or beverages containing them. See Brief for Respondents, at 26. Apart from whether hoasca is banned by the treaty, the Court must also consider whether deference to a foreign treaty can represent a compelling interest for abridging a religious group’s freedom. See Id. at 36.
Finally, the Court will decide whether completely prohibiting the UDV's use of hoasca is the least restrictive means that the government can employ to advance its interests. However, because the District Court did not decide this point as it determined that the government failed to make its preliminary showing of a compelling interest, the parties have thus far expended little effort litigating it. See O Centro Espirita, 282 F. Supp. 2d at 1270. Therefore, should the Supreme Court find that the government has shown a compelling interest and decides it needs resolution on this final point, the case will likely be sent back to the lower courts for further fact-finding. See O Centro Espirita, 389 F.3d at 990.
This case will challenge the limits of the RFRA, and UDV, along with other small religious groups, will learn whether the statute protects the importation of a Schedule I substance like DMT as it does the use of more common substances like peyote that are not imported Schedule I narcotics.
Before the Federal government may restrict any substance from genuine religious usage, the RFRA requires a showing of both a “compelling government interest” that will be furthered and that the proposed action will be the “least restrictive means of furthering that compelling governmental interest.” This is the traditional language of the Supreme Court’s “strict scrutiny” standard of review for cases involving alleged violations of “fundamental rights” such as the religious freedoms guaranteed in the First Amendment. This language in the statute clearly signals to the Supreme Court that Congress intended that all governmental actions challenged as violations of the RFRA should receive such strict scrutiny.
The government does not dispute UDV’s bona fide religious usage of DMT. Instead, it argues that allowing the importation of hoasca would be a clear violation of the 1971 United Nations Convention on Psychotropic Substances, which they argue is a compelling government interest. Since the importation itself is at issue, there may be no less restrictive manner of enforcing this interest than to bar the substance from entering the country.
A complete victory for the government would mean that it could ban the use of DMT and other Schedule I substances, thus affectively ending the usage by small religious sects throughout the country. Religious groups, including many “mainstream” groups, fear that such a victory would weaken the RFRA to the point where its protections would no longer be reliable. They also fear that the federal government would then be emboldened to issue a new series of regulations that might ultimately constrain the free exercise of other, well-established religious groups. In an amicus curiae brief, one group compared UDV’s hoasca tea to the sacramental wine used in the communion rituals of various Christian denominations. While the underlying comparison of DMT to alcohol is not legally persuasive, such a statement provides insight into the thinking of those who support UDV’s rights under the RFRA to use hoasca.
Should UDV prevail on its RFRA claim, the United States would be forced to violate the U.N Convention on Psychotropic Substances by allowing the imporation of DMT. To return to compliance with the Convention, Congress would be forced to consider amending the RFRA to exclude Schedule I narcotics (or any other group) from its scope, a sensitive political issue. Should Congress amend the RFRA in this way, groups like UDV would again be without protection and, ironically, would then have to consider challenging the constitutionality of the RFRA as amended.
As directed by the language of the RFRA itself, the Court will apply strict scrutiny to decide whether the ban on the Schedule I narcotic DMT is the least restrictive way to further the government’s compelling interest of regulating a dangerous substance and complying with existing international conventions in light of the religious freedoms of groups like UDV. The Court will consider both the strength of the government’s interest and its method for furthering that interest against both the RFRA and, ultimately, the First Amendment. Supporters of UDV fear a government victory here will lead to further insidious erosions of religious protections, while others fear a victory by UDV will leave government powerless to prevent dangerous substances from harming citizens if those substances are given blanket protection in the name of religious freedom. Written by:
- LII Law about... First Amendment