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As I note below, the respondents have now filed their opposition to the
SG's application of a stay of the preliminary injunction granting a RFRA
exemption. I'm curious: This is certainly the most important case
yet concerning the application of RFRA to federal law. To what extent
are proponents and opponents of RFRA/RLUIPA planning to get involved -- or
already involved -- in the case?
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Respondents' Opposition to Stay Application in
Hoasca Tea Case |
The UDV and other respondents have
filed their opposition to the SG's emergency
application for a stay of the preliminary injunction in No. 04-A469,
Ashcroft v. O Centro Espirita Beneficiente Unaio Do Vegetal, the
RFRA case involving a requested exemption from the Controlled Substances
Act for the religious ceremonial use of hoasca tea. As I discussed last week, the respondents not
surprisingly argue (e.g., at pages 6, 11 n.11) that the government will
not be able to demonstrate that it has a compelling interest in denying
religious use of hoasca while it at the same time permits the religious
use of peyote. The respondents also argue (p. 32-33) that, even if
permitting the use of hoasca would cause the U.S. to violate the
Convention on Psychotropic Substances (a conclusion that respondents
dispute as a matter of treaty interpretation), the other nations that are
party to the Convention would not consider such permitted hoasca use to be
a treaty violation -- from which respondents conclude that the U.S. has
failed to show that its standing among nations would be injured if RFRA
requires the exemption.
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----- Original Message -----
Sent: Thursday, December 02, 2004 4:07
PM
Subject: SG Application for Stay of
"Hoasca Tea" Injunction
|
Temporary Stay of Injunction in "Hoasca Tea"
Case |
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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