The question is, when is a “compelling governmental interest” really, truly, a compelling governmental interest? At some point in its October term, the Supreme Court will take one more look at that abiding question.
This time around, the question goes to the First Amendment rights of a handful of New Mexico citizens who count themselves members of a religious sect known as Uniao Do Vegetal -UDV for short. As part of their semimonthly ritual, they sip a small quantity of hoasca, a liquid derivative of two Brazilian vines. The Department of Justice says the bitter drink is a controlled substance, a hallucinogen, forbidden by law.
Another law says the government may substantially burden a person’s exercise of religion “only if it demonstrates that the burden is in furtherance of a compelling governmental interest.” In the case at hand, how compelling is “compelling”?
It appears from briefs on file at the court that the structured religion UDV, now protected by Brazilian law, was founded by a Brazilian rubber trapper in 1961. In its 8-5 opinion last year, the 10th Circuit identified the UDV as “a syncretic religion of Christian theology and indigenous South American beliefs.” The sincerity of the faithful “is uncontested.” The court explained:
“UDV uses hoasca, which in the Quechua Indian language means `vine of the soul,’ `vine of the dead’ or `vision vine’ as a link to the divinities, a holy communion, and a cure for ailments physical and psychological. Church doctrine holds that members can perceive and understand God only by drinking hoasca. Brazil, in which there are about 8,000 UDV members, recognizes UDV as a religion and exempts sacramental use of hoasca from its prohibited controlled substances.”
The pending high-court case had its genesis in 1993, when Jeffrey Bronfman and others founded an American branch of the UDV in Santa Fe, N.M. The “tea” that is indispensable to their rituals is extracted from vines that cannot be grown in the United States. Six years ago, customs agents seized an incoming shipment of hoasca and threatened Bronfman with prosecution under the Controlled Substances Act. Last year, Bronfman successfully invoked the Religious Freedom Restoration Act and won an injunction in the 10th Circuit to fend off government agents.
The government’s petition to the Supreme Court is remarkable in its fire-alarm cry for reversal. The attorney general says the lower court “has forced the U.S. government into an ongoing violation of an international treaty.” A majority of judges in the 10th Circuit have mandated that the federal government “open the nation’s borders to the transportation, circulation and usage of a mind-altering hallucinogen.” The injunction threatens to inflict “irreparable harm on international cooperation in combating transnational narcotics trafficking.”
These dramatic consequences will be the result of “nothing more than prima facie allegations and the testimony of a few hired experts.” The 10th Circuit’s extraordinary decision “conflicts with the considered judgments of Congress and more than 160 other nations.” It is “contrary both in outcome and legal analysis to the decision of every other court of appeals to address similar religion-based requests for exemption from the nation’s drug laws.”
The government’s petition for appeal was filed on Feb. 10, only a week after Alberto Gonzales was sworn in as attorney general. He is a sensible fellow, not known for such hyperbolic spasms and heaves. It is difficult to believe that he sees this tiny congregation in New Mexico as a “significant threat to public health and safety,” or that he regards hoasca as “so profoundly harmful that it is not safe for use even under medical supervision [let alone unregulated religious ceremonies].”
The First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Granted, none of our constitutional rights is an absolute right. Like a right of free speech, the right to free exercise of religion may be restrained in the public interest. We cannot expect to avoid punishment for falsely crying “Fire!” in a crowded theater. A snake-handling sect in southwest Virginia could not evade a state law of general application.
In the case just granted review, we are talking about invoking the whole might and majesty of the government to prohibit the religious rituals of 130 communicants in New Mexico. There is a relevant maxim by which good judges are guided: De minimis non curat lex.” The law will not bother with trifles. This case is no trifle. This case is an outrage.
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