Supreme Court to Hear Appeal on Hallucinogenic Tea

April 19, 2005
Supreme Court to Hear Case of Dispute Over Religious Group's Use of Banned Drug
By LINDA GREENHOUSE

ASHINGTON, 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
matters.
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
vacancy.
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
government.
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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