Reading the Psychedelic Tea Leaves

Jacob Sullum | November 3, 2005

According to The New York Times, Chief Justice John Roberts had no trouble pronouncing "O Centro Espirita Beneficiente Uniao do Vegetal" on Tuesday, when the Supreme Court considered the sect's claim for a religious exemption from the Controlled Substances Act. And according to SCOTUSblog writer Lyle Denniston, neither Roberts nor his fellow justices (with the possible exception of Anthony Kennedy) seemed to have trouble buying the argument that the Religious Freedom Restoration Act, which prohibits the government from imposing a "substantial burden" on the free exercise of religion unless it is "the least restrictive means of furthering [a] compelling governmental interest," requires tolerance of Uniao do Vegetal rituals involving the psychedelic tea ayahuasca.

The Bush administration's position, which Roberts described as "totally categorical," is that drug prohibition will collapse if the government is forced to make exceptions for religious rituals. I wish that were true, but the argument is hard to maintain in light of the CSA exemption for peyote use by the Native American Church, a far larger group (some 250,000 adherents vs. the 140 or so members of Uniao do Vegetal's American branch). "This demonstrates you can make an exception without the sky falling," noted Justice Antonin Scalia.

That's an interesting point coming from Scalia, who wrote the 1990 opinion that prompted Congress to pass the Religious Freedom Restoration Act in the first place. That case, in which Scalia declared that the First Amendment does not require religious exemptions from "neutral laws of general applicability," involved the very peyote use he now cites to suggest that the government's fears are exaggerated. At the time he seemed to share those fears, writing that "to make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs" would be "courting anarchy."

My own view is that, while it's better to eliminate stupid laws than make exceptions to them on a case-by-case basis (whether for religious or medical reasons), more freedom is better than less. And while the drug warriors are obviously wrong that tolerating Uniao do Vegetal's rituals will gut the Controlled Substances Act, they are right to fear the precedent over the long term--not because of its legal consequences but because of its power as an example of how demonized drugs can be used in a responsible, controlled fashion.

Comments

|11.3.05 @ 10:15AM|#

I dont think Congress or the Prosecutor really care about anything but appearances. None of of them really care about whether there really is a drug war ten years from now that much.

|11.3.05 @ 10:41AM|#

Where are the Rastafarians in all of this? So help me Jah, I may find religion yet.

|11.3.05 @ 10:42AM|#

I don't read Scalie's opinion the same way. He's warning about anarchy - that is, lawlessness. If the law contains an exemption, then those who take advantage of it are acting within the law. If there is no exemption, then the people ignoring the law are acting illegally, and the government that turns its head is signalling that it will not enforce the law. This situation is corrosive to the rule of law itself, as the public and the police become comfortable with open lawbreaking for "good" reasons. A legal exemption avoids this problem.

|11.3.05 @ 10:55AM|#

This is entirely off-topic.. but would it be possible to number comments? I wouldn't want to overtax the Atari 2600 y'alls use for a server, but when certain entries get over about fifty comments (and certainly when they get to the triple digits), it's a major pain in the ass to scroll around and find where you left off four hours ago.

Also, it'd make it very obvious who gets post #69, for those people who enjoy such things.

|11.3.05 @ 12:27PM|#

While I agree with the argument Joe makes, I am skeptical that Scalia is on board. In the California medical marijuana case (the name escapes me) which addressed the Commerce Clause earlier this year he broke with Thomas and Rehnquist to concur in upholding the federal prohibition. His opinion there was convoluted (whatever one thinks about Scalia, his opinions are usually straightforward; it is when he is straining to avoid the logical results of his principles that his writing gets messy) but boiled down to 'drugs are so bad that I'm not going to worry whether I'm consistent.'

|11.3.05 @ 12:44PM|#

By strange coincidence, I had just brewed myself a cup of hoasca tea and sat down to read Hit & Run when I read this post.

[sips tea]

Now, I think what Roberts really meant when he said to the Deputy Solicitor General, "Your approach is totally categorical: if there were one group, in one year, and it gave each member one drop, and the practice were rigorously policed, your position would be the same," was that then ipso facto the golden-orange marmots frolic in the sunshine of my joy vis a vis weird scenes from a child's fragile eggshell mind. Ride the snake.

Wintermute|11.3.05 @ 1:37PM|#

Great post. Thanks for the news. Roberts may just be showing off before ruling for the government, though. We'll see.

|11.3.05 @ 3:41PM|#

matt,

The case was [i]Raich v. Ashcroft[/i].

- Josh

|11.3.05 @ 3:41PM|#

matt,

The case was Raich v. Ashcroft.

- Josh

|11.3.05 @ 3:44PM|#

Peg = doofus

- Josh

|11.3.05 @ 5:54PM|#

The trick is that you use the fake stuff and pretend really hard, like the Catholics.

|11.3.05 @ 7:43PM|#

http://www.cnn.com/2005/LAW/11/03/chiefson.arrest.ap/index.html

In another ironic drug war twist, Miami police chief's son busted trying to buy 400 lbs of pot. Like all other hipocritical drug warriors his spokesperson had this to say:

"He does not have all the details and he's not going to comment on it publicly because it's a private family matter," spokesman Delrish Moss said.

I wonder how many families he's had a part in destroying.

|11.4.05 @ 8:55AM|#

Our religion requires that we drive fast.

|11.4.05 @ 9:51AM|#

There are serious poblems with the Religious Freedom Restoration Act as I see it.

First of all The Govt gets to decide what is a religion and who may be a practitioner.

Ultimately you can't just say "I want to use peyote so I'm going to convert the Native American Church." You have to be an Indian and at that one who has traditionally observed these practices.

Furthermore you can't just one day pull your own Joe Smith and start telling people God has revealed his truth to you and that part of that truth is some need to practice some illegal act (and I mean a "crime" like smoking pot for instance, not human sacrifice say) (also, you're probably just going to leave yourself open to a lot of "intervention" from relative and mental health professionals). Frankly with today's regualations I doubt that Mormonism could get established today. Hell I doubt L Ron Hubbard could get away with his scam now. Although the only real state imposed impediment would be the denial of taxfree status.

So if I can't convert to the Native American Church (I don't think the one sixtyfourth that family legend claims qualifies) how is my Religious Freedom restored?

Perhaps I am mistaken. If anyone can correct me I would welcome it.

|11.5.05 @ 5:07PM|#

joe,

I don't read Scalie's opinion the same way.

Well, that's because you didn't read it.

If there is no exemption, then the people ignoring the law are acting illegally, and the government that turns its head is signalling that it will not enforce the law.

Scalia didn't base his objection to an exemption on that. This is why I know you didn't read the case. Scalia based his rationale for not granting an exemption on two grounds: judges shouldn't delve into any Brennan-like "core beliefs" analysis regarding religion and the proper role for determining whether an exemption is granted should be left to the people. Both you and Sullum are focusing on dicta in other words. You're worse though because you created a grandiose rationale based on a few snipped lines from an opinion.

This situation is corrosive to the rule of law itself, as the public and the police become comfortable with open lawbreaking for "good" reasons.

If that is your line of thinking then the lack of enforcement of anti-sodomy laws prior to Lawrence must have given you fits.

|11.6.05 @ 1:22PM|#

"He does not have all the details and he's not going to comment on it publicly because it's a private family matter."

Since when do the details get in the way of fighting the scourge of some drugs and commenting about how bad drugs are?

Cops are ready to bust down doors and start kicking ass at the drop of a name from an anonymous source. Innocent bystanders, private property and civil rights be damned in the cops' opinion.

I believe what we have here is a failure to parent properly. The only recourse is to lock up the Miami police chief and his son in the same cell.

|11.6.05 @ 4:01PM|#

On a tangent topic....

I always hear about "experimentation" with these politicians when it comes to some drugs. None of them will ever cop to getting high, or catching a buzz. Such dishonesty, but that's what we can expect from these yellow bellied pork suckers. Then they turn to the kids and lie about their drug use. These politicians', LEO's and bureaucrats past "youthful indiscretions" are the same ones that they want to bust people for now. I used to like Hickenlooper, but now I despise him, because he is a hypocrite (he was allegedly a party guy in college). Prop 100 was the perfect opportunity to have a real discussion about the war on some drugs. Instead, they try to spin the results and are in effect calling the masses asses that are too stupid to know better. The votes on Medical MJ and Prop 100 were fair and square, I hope the prohibitionists choke on the vote of the people.

|11.7.05 @ 12:51PM|#

None of them will ever cop to getting high, or catching a buzz.

The exception to that is former NM Gov Gary Johnson.