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
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
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.