Three weeks ago, the en banc U.S. Court of Appeals for the Tenth Circuit
upheld a preliminary injunction that would prevent the U.S.
government from enforcing the Controlled Substances Act with respect to
the importation, possession and distribution of hoasca (a tea containing
dimethyltryptamine, or DMT, a substance regulated under Schedule I of the
Act) for use in religious ceremonies of a church known as O Centro
Espirita Beneficients Uniao Do Vegetal, or "UDV." The court of appeals'
mandate issued on Tuesday.
Yesterday, the Acting Solicitor General
moved the Supreme Court to stay the preliminary injunction
pending a filing of a cert. petition, and made an emergency application to
the Court for a temporary stay of the injunction pending the disposition
of the Government's motion to stay the injunction.
Justice Breyer granted the application for a temporary stay,
pending disposition of the motion for a stay pending petition. He ordered
the plaintiffs to file responsive papers by the end of the day tomorrow
(Friday), with the SG's reply due on Tuesday.
The injunction is
based upon the Religious Freedom Restoration Act (RFRA), which requires
the United States to grant an exemption to one of its laws when the law
substantially burdens the exercise of religion, unless denial of the
religious exemption would be a narrowly tailored way of advancing a
compelling governmental interest. (The Court in Boerne
invalidated RFRA as applied to the States; but it remains constitutional
as applied to the federal government.) The Government claims that there
are two compelling interests that support denial of the RFRA exemption
here: (i) preventing the risks of danger caused by ingestion of the tea
and/or its possible diversion to nonreligious uses; and (ii) ensuring that
the U.S. remains in strict compliance with the United Nations Convention
on Psychotropic substances, which generally requires signatories
(including the U.S.) to prohibit almost all use of certain psychotropic
substances, including DMT. The second argument is not that strict treaty
compliance is a "compelling interest" in and of itself, but instead that
if the U.S. violates the Convention in any respect, it will undermine U.S.
efforts to secure worldwide cooperation in the international fight to
control psychotropic substances.
In his concurring opinion in the
en banc proceeding, Tenth Circuit Judge Michael McConnell identified what
will probably be one of the principal issues in the case as it is argued
in the Supreme Court: Judge McConnell contends that the U.S. will be
hard-pressed to demonstrate that something is a "compelling interest"
under RFRA if the government allows other exemptions that also undermine
that interest in analogous ways. (The Bush Administration has generally
agreed with this understanding of the "compelling interest" test in RFRA
and related contexts. See, e.g., its explanation for why RFRA would
dictate an exemption for religious organizations to a statutory
requirement that recipients of certain social-service funds not
discriminate on the basis of religion in employment decisions: 67 Fed.
Reg. 77,351-52 (Dec. 17, 2002).) Judge McConnell points, in particular, to
a statute that permits members of recognized Native American tribes to use
peyote, a Schedule I substance, in religious ceremonies. 42 U.S.C. 1996a.
He argues that this peyote exemption demonstrates that "concerns for
religious freedom can sometimes outweigh risks that otherwise justify
prohibiting Schedule I substances," shows that "[n]either Congress nor the
Executive has treated the CSA's general findings about Schedule I
substances as precluding a particularized assessment of the risks involved
in a specific sacramental use," and "indicates Congress?s belief that at
least some use of substances controlled by the Act are 'consistent with
the public health and safety,' despite the generalized congressional
finding that any Schedule I substance is not safe to consume even under
the supervision of medical personnel." The Government, in response to such
arguments, has argued that the health and diversion risks created by the
plaintiffs' use of DMT would be greater than the risks created when Native
Americans use peyote. There are factual disputes on this question between
the parties.
The plaintiffs and Judge McConnell also argue that the
peyote exception demonstrates either that the U.N. Convention permits
limited religious exemptions, and/or that the U.S. does not suffer serious
damage to its efforts to ensure international drug interdiction when it
permits such minor exemptions, even if they might be technical violations
of the treaty. The U.S. has argued in response that whereas the
congressionally sanctioned peyote exemption does not violate the
Convention (because the U.S. took a timely reservation to the treaty that
covered such an exemption), a RFRA exemption for hoasca would be
a treaty violation, and would be understood as such by our treaty partners
from whom we seek cooperation. Judge McConnell notes that "the United
States permits the exportation of [peyote] to Native American
Church groups in Canada, despite the fact that exportation of a Schedule I
substance for other than scientific or medical purposes would appear to
violate the Convention," and that "[t]his suggests that, in practice,
there is room for accommodation [under the Convention] of the legitimate
needs of religious minority groups. . . . This case . . . raises the
question of why an accommodation analogous to that extended to the Native
American Church cannot be provided to other religious believers with
similar needs. As the panel majority noted, the apparent workability of
the accommodation for Native American Church peyote use strongly suggests
that a similar exception would adequately protect the government?s
interests here." The United States contends, however, that it does
not "permit" the export of peyote to Canada.
DISCLOSURE:
While I was employed at DOJ (OLC), I worked on the case in 2000-2002, when
the Government was considering whether RFRA required an exemption and when
the ensuing litigation began in district court. Nothing in this or other
posts should be understood as necessarily representing the views of the
United States, or of OLC, either then or now.
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