I've linked, and I briefly discuss, the SG's reply brief, here:
----- Original Message -----
Sent: Monday, December 06, 2004 1:33
PM
Subject: Re: SG Application for Stay of
"Hoasca Tea" Injunction
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?
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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