Washington, USA - U.S. Chief Justice John G. Roberts Jr. led a chorus of Supreme Court skepticism aimed at a Bush administration effort to bar a 130-member New Mexico church from using a hallucinogenic tea in religious ceremonies.
Roberts today was one of several justices who suggested that a U.S. religious-freedom law trumped the Justice Department's contention that hoasca is dangerous and illegal under both a federal controlled-substances law and a treaty. Roberts questioned the government's argument that it needs to bar all use of hoasca to prevent diversion to non-religious uses.
``Your approach is totally categorical,'' Roberts told government lawyer Edwin Kneedler during a one-hour argument session in Washington. If a religious group used only one drop of the drug a year, ``your position would still be the same,'' Roberts said.
The case poses the first religious-freedom test during Roberts's watch as chief justice. It pits the Bush administration against religious groups including the U.S. Conference of Catholic Bishops and the National Association of Evangelicals.
The case centers on the 1993 Religious Freedom Restoration Act, which says the U.S. government can't restrict religious activities except to meet a ``compelling interest.''
Congress passed the law in reaction to a 1990 Supreme Court ruling that said governments could enforce generally applicable laws, even if they incidentally restricted religious practices. That ruling, which involved a different hallucinogen known as peyote, limited the scope of the constitutional clause that protects the free exercise of religion.
Brazilian Church
The Justice Department says it nonetheless can block hoasca use by a Santa Fe branch of O Centro Espirita Beneficiente Uniao Do Vegetal, an 8,000-member Brazilian church that mixes Christian theology and indigenous South American beliefs. The church's U.S. branch is led by Jeffrey Bronfman, a second cousin of Warner Music Group Chairman Edgar Bronfman Jr.
Kneedler said the government has a compelling interest in ``uniform enforcement'' of its drug laws.
He drew resistance from both the liberal and conservative wings of the court. Justice Antonin Scalia, who wrote the 1990 decision, pointed to an exception Congress made for peyote in American Indian religious ceremonies.
``It's a demonstration you can make exceptions without the sky falling,'' Scalia said.
Justice John Paul Stevens followed up by asking whether the use of peyote indicated that ``maybe it's not all that compelling.''
Kennedy Support
Of the nine justices, Anthony Kennedy offered the strongest support for the government's position.
``It seems to me at the very least there should be a presumption that there is a compelling interest,'' Kennedy told Nancy Hollander, the church's lawyer.
Hollander argued that the government must show a compelling interest in enforcing its drug laws specifically against the church's members.
``Congress's policy is that religious freedom and religious liberty shall not be burdened unless and until the government meets its burdens,'' she argued.
Several justices, including Scalia and Roberts, questioned Hollander's contention that hoasca is exempted under the 1971 United Nations Convention on Psychotropic Substances, which aims to bar trade in illicit drugs. The U.S. is among more than 160 signatories to that treaty.
Trump the Treaty
Both Scalia and Roberts, however, said Congress has the authority to override a treaty through domestic law.
``Isn't it well established that statutes trump treaties?'' Scalia asked.
Hoasca contains dimethyltryptamine, or DMT, a hallucinogenic substance restricted under the U.S. Controlled Substances Act. The Justice Department says DMT can lead to depression, intense anxiety, disorientation and psychosis and that the drug is a particular danger to children.
The dispute began in 1999, when Customs inspectors intercepted a shipment from Brazil of three drums that contained the drug. Authorities later searched Bronfman's home and seized 30 gallons of hoasca.
The Denver-based 10th U.S. Circuit Court of Appeals, on an 8-5 vote, concluded that the Justice Department hadn't met its burden under the religious-freedom law. The appeals court upheld a temporary order barring the government from taking action against the church for its religious use of hoasca.
The case is Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 04-1084.