Reading the Psychedelic Tea Leaves

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.