Should Drug Laws Limit Religious Activities?

Nov. 1, 2005 — -- About once a month and on certain holidays, members of a New Mexico branch of a Brazilian religious group drink a tea called hoasca, a sacrament they liken to Catholics taking wine at communion. They believe it gives them heightened spiritual awareness.

But one of the ingredients in hoasca, which is made from plants indigenous to the Brazilian Amazon, is dimethyltryptamine, an illegal hallucinogen. The government has been fighting since 1999 to stop the group from importing and using the tea.

The 10th U.S. Circuit Court of Appeals ruled last year that the group could continue to drink hoasca. Now the issue has reached the Supreme Court in a case that is seen as a test of religious freedom in America.

The court will decide in Gonzales v. Centro Espirita Beneficente União do Vegetal whether the Religious Freedom Restoration Act of 1993 requires the government to allow the church to continue to import and drink the tea.

"Many groups see this case as a very important case because the government is taking a position … that it really ought not to have to prove any compelling interest in restricting [religious activity,]" said John Boyd, one of the lawyers representing the church.

Centro Espirita Beneficente União do Vegetal blends Christian theology with Amazonian spiritual traditions. It developed as a religious practice in 1961 in Brazil, where it has temples in more than 100 cities and villages, according to the group. In America, there are about 140 UDV members.

Drinking hoasca is an integral part of the group's worship, and UDV members believe a manifestation of divinity is present within the tea. "The members of this church believe it connects them with God and it is a very sacred and very holy moment for them, and that's something that the government does not dispute," Boyd said.

While it does not discount the reasons behind using hoasca, the government argues that DMT is an unsafe drug, banned by the Controlled Substances Act. It also asserts the substance is barred from being imported into the United States under the United Nations Convention on Psychotropic Substances of 1971, an international treaty aimed at stopping drug trafficking.

In its legal brief, the Justice Department notes that the convention did allow signatories at the time to make "reservations," exempting a substance if it arises from a native-grown plant that is "traditionally used by certain small, clearly determined groups in magical or religious rites," but it said this does not govern the international trade of the substance, and the United States made no reservation for DMT when it joined the convention.

The brief also states that studies of DMT and "ayahuasca," the general name for hoasca and similar products, documented "significant adverse psychological effects arising from ingestion of the substance, such as the relapse of depression, intense anxiety and disorientation and various forms of psychosis."

However, UDV members say that the use of the tea is limited to their ceremonies, and abuse is considered sacrilegious, according to the group's Web site.

"The record does not support the government's alarmist arguments that denial of the petition will result in physical or psychological harm," the church's filings state.

A spokesman for the solicitor general's office declined comment on the case, as did members of UDV.

At the heart of the justices' decision will be whether the regulations of RFRA allow UDV to use hoasca without prosecution. RFRA, passed overwhelmingly by Congress in 1993, requires the government not to limit religious freedom unless it has a "compelling interest" in doing so, and -- if it must be restricted -- to use the least burdensome and intrusive method.

Supporters of UDV believe the government has neither proven it has a compelling reason nor tried to stop the practice in the least restrictive manner. Lee Boothby is vice president of the International Academy for Freedom of Religion and Belief, one of many religious organizations representing a spectrum of faiths to file briefs on behalf of UDV in the case. He said the case marks an important test of RFRA.

"We believe it [RFRA] should be applied to a situation such as this," he said, adding, "Whether the group would lose or win is kind of beside the point."

Similarly, Melissa Rogers, visiting professor of religion and public policy at Wake Forest University Divinity School, said the case will determine whether RFRA "has real bite or whether it is essentially toothless."

"This is not a case where religious groups are asking for immunity from public laws, but merely for an important check on the government's ability to interfere with religious practices," Rogers said.

UDV and its supporters also note that the Controlled Substances Act makes an exception for the use of peyote, which contains the illegal substance mescaline but has been allowed for use in rituals of the Native American Church.

In a 1990 majority opinion written by Justice Antonin Scalia, the Supreme Court ruled in Employment Division vs. Smith that religions get no special exemptions from a universally applicable law.

Jamin Raskin, a professor of constitutional law at American University, said there are many groups that would like to be the exceptions.

"Rastafarians would like to be exempt from the marijuana laws," Raskin said. "Groups that proselytize would like to be exempt from child labor laws. The Amish would like to be exempt from Social Security laws … the bottom line is that we all have to accept general laws that may step on our toes in a religious sense."

In response to the Employment Division case, Congress passed RFRA to require the government to prove it has a compelling interest before intervening in a religious practice. It faced legal challenges, and the Supreme Court ruled it could not be applied to states but that it could be applied to federal laws.

In this case, Raskin said, there are two ways to consider the question: "One is whether a selective religious exemption for believers here would undermine the law against the tea. To a certain extent, it does obviously undermine the law," he said. "The other way of framing it is whether there is a compelling interest for not allowing this small religious group to have an exemption."

Religious groups will be watching the case closely, Boothby said.

"We think it has an implication in the event the court doesn't use the test ... that's set forth in the Religious Freedom Restoration Act," he said, adding, "Should they start carving out exceptions to that -- that it doesn't apply to treaties or to other things -- that would tend to start threatening what we believe to be an important public interest. The activities of religious groups should not overturned by government fiat."