[Paleopsych] NYT: Supreme Court to Hear Case of Dispute Over Religious Group's Use of Banned Drug

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Tue Apr 19 12:41:08 UTC 2005

Supreme Court to Hear Case of Dispute Over Religious Group's Use of Banned Drug

    WASHINGTON, April 18 - The Supreme Court added an important new
    religion case to its docket on Monday, agreeing to decide whether the
    government can ban the importation of a hallucinogenic tea that is
    central to the religious rituals of a small Brazil-based church.

    The case raises the broader question of how the court will interpret,
    in the context of an illegal drug, a law that ordinarily requires the
    federal government to refrain to the maximum extent possible from
    interfering with religious practices.

    The tea, known as hoasca, is made from plants that grow in the Amazon
    region and that produce a chemical listed by both the federal
    government and an international narcotics trafficking treaty as a
    controlled substance. The chemical, dimethyltryptamine, usually known
    as DMT, can also be produced in a laboratory, but followers of the
    Uniao Do Vegetal religion use only the naturally occurring version,
    which does not grow in the United States.

    The case is an appeal by the Bush administration of a federal court
    injunction won by the 130 members of the church's American branch, who
    brought a lawsuit five years ago to prohibit the government from
    invoking the Controlled Substances Act to block the importation of
    their tea and from seizing the sacred drink. The church, which
    combines elements of Christianity and indigenous Brazilian religion,
    opened its American branch in Santa Fe, N.M., in 1993.

    The Federal District Court in Albuquerque, ruling before trial, issued
    a preliminary injunction against the government. The order was
    subsequently affirmed by a three-judge panel of the United States
    Court of Appeals for the 10th Circuit, in Denver, and last November
    was affirmed again by the full appeals court by a vote of 8 to 5.

    A trial has still not taken place, a fact that would ordinarily pose
    an obstacle to Supreme Court review. In fact, on Dec. 10 of last year,
    the justices denied the administration's request for a stay of the
    Court of Appeals order until the solicitor general's office could
    prepare a formal petition for Supreme Court review. The denial of a
    request for a stay in those circumstances is usually a strong signal
    that the Supreme Court will not consider the eventual appeal to be
    worthy of its attention.

    But in this case, Gonzales v. O Centro Espirita Beneficiente Uniao Do
    Vegetal, No. 04-1084, the justices might have been persuaded, at least
    to let the administration have its say, by the strongly worded appeal
    filed by Paul D. Clement, the acting solicitor general.

    Denouncing the lower courts' handling of the case as "contrary to all
    precedent," Mr. Clement said that "no court has ever ordered the
    United States to permit a religious exemption to Schedule I of the
    Controlled Substances Act." Schedule I, on which DMT is listed, along
    with marijuana and other illicit drugs, is reserved for substances
    that the government considers to be particularly unsafe and to have no
    valid medical use.

    Both the executive branch and Congress, however, have granted a
    religious exemption for another Schedule I drug, peyote, which is used
    in religious ceremonies by the Native American Church.

    In an opinion concurring in the 10th Circuit's decision to uphold the
    injunction, Judge Michael W. McConnell cited the peyote exemption as
    evidence that the government was free to exercise discretion in such

    Rejecting the argument that the district court should have deferred to
    the other two branches, Judge McConnell said: "If Congress or the
    executive branch had investigated the religious use of hoasca and had
    come to an informed conclusion that the health risks or possibility of
    diversion are sufficient to outweigh the free exercise concerns in
    this case, that conclusion would be entitled to great weight. But
    neither branch has done that."

    Instead, he said, the government had simply invoked the general
    principle that controlled substances are dangerous.

    Judge McConnell, a leading scholar on questions concerning the free
    exercise of religion before he became a judge, is widely seen as a
    possible Bush administration choice for a future Supreme Court

    In its Supreme Court appeal, the administration is also arguing that
    the injunction is forcing the government to violate a 1971
    international treaty, the United Nations Convention on Psychotropic
    Substances, which obliges the 160 nations that have signed it to
    combat international traffic in illicit drugs. The question of whether
    the convention applies to hoasca is disputed, because Brazil, an
    original signatory to the treaty, has exempted the tea, and a recent
    appellate court ruling in France exempted its religious use.

    The lower courts based their ruling on the Religious Freedom
    Restoration Act, a 1993 federal law that forbids the government to
    enforce laws in a way that interferes with religious practice unless
    the interference is justified by a "compelling interest." The Supreme
    Court ruled in 1997 that Congress lacked authority to apply the law to
    the states, but the statute remains in effect for the federal

    The hoasca tea case, which will be argued in the fall, is the third
    case on the Supreme Court docket that deals with federal drug policy.
    The court is expected to announce a decision soon in a case argued in
    November on whether the federal government can block enforcement of
    California's medical marijuana initiative. And the court recently
    agreed to hear the Bush administration's challenge to the Oregon law
    permitting doctors to prescribe lethal doses of federally regulated
    drugs to assist terminally ill patients in committing suicide.

    In other action on Monday, the court accepted an appeal by the State
    of Georgia on a question of criminal law that has long created
    confusion among the state courts. The issue in Georgia v. Randolph,
    No. 04-1067, is whether the police can search a home without a warrant
    if one occupant gives consent but another occupant objects.

    In this case, a woman involved in a domestic dispute called the police
    to the home she shared with her husband. In the officers' presence,
    she complained that her husband was using cocaine and told the police
    that cocaine was in the house.

    The husband, Scott F. Randolph, refused to give consent for a search,
    but his wife led the officers to a bedroom where evidence of cocaine
    use was apparent.

    Mr. Randolph, challenging the legality of the search, won a ruling in
    the Georgia Supreme Court that since both partners had "common control
    and authority" over the premises, the consent of both was needed to
    conduct a search without a warrant.

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