|
No one claims that
Congress decided in its consideration of RFRA whether children could safely
consume hoasca or any other drug in a religious ritual under conditions to be
specified. What Congrss decided was that all such issues of conflict
between general law and religious practice required individual examination, and
that only the courts were equipped to provide that examination, applying a
standard enacted by Congress. The nine days of trial in UDV gave the
judge vastly more information about hoasca and its religious use than
Congress had about DMT when it put DMT on schedule I, and infinitely more
information than Congress had about religious use of hoasca when it put DMT on
schedule I. Congress had literally no information; it had never heard of
hoasca when it put DMT on schedule I.
In the amendments to the
American Indian Religious Freedom Act, Congress authorized religious use of
peyote with some exceptions. The legislative history, and if I recall
correctly, the text of the Act as well, are explicit that cases within the
exceptions are subject to RFRA. So in drug applications where Congress
thought it had enough information to enact a rule, it enacted a rule, and in
applications where it thought it did not have enough information, it enacted
RFRA's standard and directed courts to apply that standard.
One of the great puzzles
of Marci's position, and especially her book, is that she has no confidence in
the adversary process of adjudication, and apparently great confidence in the
process of legislative hearings and fact finding, which are generally ad
hoc and politicized. Legislatures write bills in general terms, and
it is quite common for those bills to apply to facts of which the legislature
was totally ignorant. Most of her horror stories in the book are things
legislatures did and that courts would not have done. Most
obviously, there are no cases of courts finding no compelling interest in health
care for children; it is legislatures that enacted exemptions to parental duties
to provide health care. So half the book denounces overly generous
exemptions granted by legislatures, and the other half says that only
legislatures can be trusted in this area; courts should be
excluded.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341 (phone)
512-471-6988 (fax)
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Friday, February 24, 2006 9:48 AM To: religionlaw@lists.ucla.edu Subject: Re: Breaking news in federal RFRA case Read the legislative history behind RFRA from beginning to end -- the
administration of illegal drugs to children by religious groups is not
there. It is a wholesale reconstruction of history to
believe that Congress considered the issue in any way, shape, or
form. The vast majority, i.e., over 95%, of the legislative history
involves castigating the Supreme Court for Smith. The practical
consequences of RFRA were never approached, because Congress's purpose was to
reverse a Supreme Court decision, without any meaningful consideration of what
that would accomplish at a policy level. Now, there are post hoc
justifications for RFRA proffered all around, but they do not displace what
Congress actually considered and actually knew at the time it was enacted.
As to policy choices, it is my view that RFRA is unsound
constitutionally and policy-wise, but the latter does not undermine the
former.
And, yes, the placement of a drug on Schedule I does, indeed, end the
discussion when the drug is being administered to minors. The fact
the drugs were delivered in a religious context does not change the
extraordinary interest of the children.
Marci
In a message dated 2/23/2006 2:36:19 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:
|
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
