Invitation to tea: unanimous Supreme Court says federal religious freedom law protects small group's use of hallucinogenic sacrament.

Even after the U.S. Supreme Court's unanimous ruling in its favor, a small American branch of a Brazilian-based church had little to say to the media.

The members of O Centro Espirita Beneficente Uniao Do Vegetal (UDV) were clearly ready to return to their discreet practice of a religion that combines Christianity and South American indigenous beliefs. The American headquarters of the church in New Mexico had been thrust much further into the public view than any of its 130 or so members would have liked after the federal government tried to stop it from using a tea that contains an illegal hallucinogen.

"We are of course very pleased and grateful for this decision," Jeffrey Bronfman, the spiritual leader of the American branch of the UDV, told a reporter fl)r the Albuquerque Journal, a New Mexico daily. "We see it not only as a victory for our small church but a victory for the principle of religious liberty in this country."

That is apparently the only public statement that any member of the church would provide. John Boyd one of the church's attorneys told the The Santa Fe New Mexican that Bronfman and the other members would not submit to media interviews. The UDV's other attorney Nancy Hollander also told Church & State that no members of the church wanted to talk to media about the victory.

The church's Web site contains no mention of its victory before the nation's high court. The Web site does explain what the religion is all about, but notes its activities are of a "discreet nature." In Portuguese, O Centro Espirita Beneficiente Uniao Do Vegetal translates: "Central Beneficial Spirit United from plants." (See "Tea With God," June 2005 Church & State.)

Other individuals and groups, however, were ready to discuss the ramifications of the Supreme Court's ruling in Gonzales v. 0 Centro Espirita Beneficente Uniao Do Vegetal.

Legal Times Supreme Court correspondent Tony Mauro cited Americans United Executive Director Barry W. Lynn's statement on the case in an analysis of the ruling.

"Today's action," Lynn said, "reaffirms the importance of religious liberty. The justices reaffirmed that the federal government cannot interfere with religion without a compelling interest."

Americans United had joined a wide array of religious and civil liberties groups in filing a friend-of-the-court brief arguing in favor of the church's religious liberty rights. AU argued in its brief that the 1993 Religious Freedom Restoration Act (RFRA) should be upheld in this instance.

The controversy was triggered when in 1999 government officials seized shipments of the tea, which is produced from plants grown in the rainforests. The tea, called hoasca, contains the hallucinogen Dimethyhryptamine, which is banned under the federal Controlled Substances Act. The federal government then threatened to prosecute the UDV pursuant to the federal drug law.

The church sued the government arguing that its rights under the 1993 federal religious freedom law were threatened by the government's actions to bar its use of hoasca. RFRA requires the federal government to show a "compelling interest" for support of a law that "substantially burdens" the free exercise of religion.

In 2002, U.S. District Judge James A. Parker granted the church's request for a preliminary injunction. During hearings, the federal government conceded that prosecution under the federal drug law would substantially burden the UDV's religious liberty rights. The federal government argued, however, that it had a "compelling interest" in doing so.

Parker didn't buy the government's arguments and issued a preliminary injunction against its attempts to prosecute the church. The federal government appealed Parker's ruling to the 10th U.S. Circuit Court of Appeals, which on two different occasions upheld the preliminary injunction.

The Bush administration, however, was bent on enforcing the federal drug law with no exemption for the UDV and asked the U.S. Supreme Court to intervene.

The high court agreed to take the case for review and on Feb. 21 upheld Parker's decision, agreeing that the federal government failed to show a "compelling interest" in prosecuting the church under the Controlled Substances Act.

Writing for the unanimous court, Chief Justice John Roberts said that RFRA adopted the "compelling interest" test as set forth in two high court rulings, Sherbert v. Verner in 1963 and Wisconsin v. Yoder in 1972 and that the federal government's refusal to grant an exemption to the church did not pass that test.

The Bush administration argued that no exceptions could be granted from the Controlled Substances Act without undercutting the government's abilities to control the spread of the hallucinogen to people outside the church and to protect the health of the UDV's congregants. Additionally, the administration argued its commitment to the United Nations Convention on Psychotropic Substances would be undermined by granting an exception to the UDV.

Like the lower federal courts, Roberts could not agree with any of the administration's arguments. First off, Roberts pointed out that for 35 years, peyote use in religious rituals by the Native American Church has been permitted by way of a congressional act, though it is also a substance in the same category as the hallucinogen found in hoasca.

"If such use is permitted in the face of the congressional findings ... for hundreds of thousands of Native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs," Roberts wrote.

Roberts, however, wrote that the government could show a "compelling interest" in universal application of a law that did burden religious exercise. Roberts cited as precedent the high court's 1982 ruling in United States v. Lee, where the court denied a religious-based request of an exemption to pay Social Security taxes.

But the UDV's request for an exemption was not analogous to the one made in Lee. Instead, Roberts wrote that the federal government's "argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions."

Thus Roberts concluded that the administration "failed to convince the District Court at the preliminary injunction hearing that health or diversion concerns provide a compelling interest in banning the UDV's sacramental use of hoasca. It cannot compensate for that failure now with the bold argument that there can be no RFRA exceptions at all to the Controlled Substances Act."

The high court also gave short shrift to the administration's contention that granting an exemption to the UDV would compromise the nation as a world leader in combating the transportation of illegal drugs. The administration specifically argued that it had a "compelling interest" in complying with the U.N.'s convention on psychotropic substances, which prohibit the hallucinogen found in hoasca.

Roberts wrote that a desire to remain faithful to the international treaty "did not automatically mean that the government has demonstrated a compelling interest" in enforcing the federal drug law against the church's religious use of hoasca.

Although Americans United and other civil liberties groups hailed the high court's decision in the UDV's case, there were troubling signs that Religions Right activists were eager to exploit the ruling.

Alan Sears, president of the Religious Right lawyers" outfit the Alliance Defense Fund, suggested the ruling bodes well for physicians, pharmacists and other health professionals who refuse to dispense medication and provide treatment to people who offend their religious beliefs.

In a Feb. 21 Alliance Defense Fund press statement, Sears said that the UDV ruling and other high court precedents could "pave the way" for future cases that would uphold so-called "freedom-of-conscience" laws for health professionals and the right of parents to remove their children from classes that offend their religious beliefs.

The Alliance Defense Fund, whose founders include evangelical Christian counselor James C. Dobson, has been at the forefront of groups defending health care professionals and pharmacists who refuse to provide morning-after pills to women.

Another Religious Right legal group, The Becket Fund, also declared in a press release that the ruling in the UDV case had made RFRA almost iron-clad.

Jared N. Leland, legal counsel for the group, said that, "Absent a compelling government interest to regulate the specific religious activity of a specific religious entity, the federal government must accommodate religious exercise and make exceptions to otherwise applicable laws."

But a close reading of the high court's ruling, of which new Justice Samuel Alito took no part because he was not on the bench when arguments were heard, suggests that the Alliance Defense Fund and the Becket Fund are hoping the ruling can be stretched to protect all kinds of religious actions from regulation. But Justice Roberts noted that "there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA." Furthermore, Roberts said RFRA called on courts to carefully balance competing interests. And nowhere does the opinion suggest that RFRA creates an impenetrable shield for religious believers from laws they find nettlesome or offensive.

Congress, Roberts wrote, constructed RFRA with the intent that "courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue."

UDV attorney Hollander said the Supreme Court did "the right thing" in the case. She also described RFRA as "an avenue for people to go to court if the government is burdening their religious practice." She added that the ruling made clear that the government cannot just cite a statute or law and claim it has met its interest in applying it against individuals seeking to practice their religion.

However, "'there may be statutes in which the government can rely and can say there is no way to have exceptions, but the government will have to convince the court of that."

The case now goes back to federal district court. Hollander said the situation is not over until the UDV has a permanent injunction. She said the federal government has not determined its next move.