Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal

In Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 389 F.3d 973 (10th Cir. 2004), cert. granted, 125 S.Ct. 1846 (U.S. Apr. 18, 2005), the Supreme Court will decide whether the government has shown compelling interests in prohibiting UDV from using hoasca in its ceremonies, in light of the statutory protection of free exercise of religion provided by the RFRA, 42 U.S.C. § 2000bb. This issue comes to the Court as a question of whether or not the 10th Circuit erred in granting a preliminary injunction in favor of UDV to allow the group to use hoasca while awaiting a full trial. O Centro Espirita, 282 F. Supp. 2d 1236 (D.N.M. 2002).

The RFRA provides broad protection for the free exercise of religion with the exception that the "[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." RFRA, 42 U.S.C. § 2000bb-1. This standard is reminiscent of other "strict scrutiny" tests employed by the Supreme Court and operates in two parts: the government must first show a compelling state interest and then prove that that are no less restrictive methods than its proposed method to further the compelling interest.

As a preliminary matter in the present case, the government concedes that UDV is a legitimate religion and that preventing UDV from using hoasca would be a substantial burden on the group's free exercise of religion. O Centro Espirita, 282 F. Supp. 2d at 1253. This immediately distinguishes the case from many earlier cases where various groups failed to skirt drug laws on the basis of religious freedom, including United States v. Meyers, 95 F.3d 1475 (10th Cir. 1996), where the 10th Circuit found that the defendant who declared himself the "founder and Reverend of the Church of Marijuana" did not adhere to a religion but rather to a philosophy, and also United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996), where the 9th Circuit held that the religious rights of adherents to the Rastafarian religion were not substantially burdened by being prevented from selling marijuana. Therefore, the sole question here is whether the government’s prohibition on UDV's use of hoasca falls within the exception carved out by the RFRA.

Despite the government's concessions, it nevertheless argues that prohibiting use of hoasca falls within the RFRA's exception and asserts three state interests it believes are "compelling" — preventing health risks, guarding against the potential for abuse, and adhering to the 1971 United Nations Convention on Psychotropic Substances, 32 U.S.T. 543, 545, 1019 U.N.T.S. 175, opened for signature Feb. 21, 1971. See O Centro Espirita, 282 F. Supp. 2d at 1252–53.

The government argues that use of hoasca, which contains the hallucinogen DMT, poses a significant threat to the health and safety of UDV adherents even though they only use it in religious ceremonies. See Brief for the Petitioners at 14–35, O Centro Espirita, 389 F.3d 973 (10th Cir. 2004), cert. granted, 125 S.Ct. 1846 (U.S. Apr. 18, 2005) (No. 04-1084). UDV adherents believe that they can only fully perceive God while under the effects of hoasca and consume the tea in thirty-two religious ceremonies a year. See O Centro Espirita, 282 F. Supp. 2d at 1255. DMT has properties similar to that of LSD and has been classified by Congress as a Schedule I drug, meaning it has no accepted medical use. See Brief for the Petitioners at 2, 32. To date, medical research on DMT is preliminary, and the parties in this case presented experts that provided conflicting opinions about its potential for health risks. See O Centro Espirita, 282 F. Supp. 2d at 1252. In deciding on whether a health risk is present, the District Court concluded that the evidence was inconclusive, and thus, the government failed to meet the burden of proving a compelling interest. See Id.

Apart from health risks, the government also points out the potential for hoasca to be diverted towards illegal, non-religious uses. To this end, it claims that there is a high demand for hoasca in the domestic black market — the tea sells for $200 to $450 a glass — and also that hoasca cannot be grown domestically and must be imported, a process that raises the risk of theft, loss, or fraud. See Brief for the Petitioners at 37–78. UDV responds by arguing that the government raises general risks of DMT use and fails to properly focus on the risks of UDV’s specific practices. See Brief for Respondents, at 16, O Centro Espirita, 389 F.3d 973 (10th Cir. 2004), cert. granted, 125 S.Ct. 1846 (U.S. Apr. 18, 2005) (No. 04-1084).

Underlying the quarrel over the potential for harm and illegitimate drug divergence is the more fundamental question of the level of generality the Court should adopt in analyzing the RFRA. UDV contends that the RFRA calls for a case-by-case analysis of the potential for harm and divergence arising from the specific practices of UDV, while the government argues that a court should look at the risks in a broader light and must defer to Congressional policy as reflected by the classification of DMT as a Schedule 1 substance. See Brief for Respondents, at 16, Brief for the Petitioners at 16.

The 10th Circuit, sitting en banc as a court of thirteen judges, failed to come to a consensus on this point. See O Centro Espirita, 389 F.3d at 973. While Judge McConnell opined that "what must be assessed is not the more general harm [from] the importation and sale of street drugs, but rather the harm resulting from a temporary injunction against prohibiting the controlled use of hoasca by the UDV in its religious ceremonies," Judge Murphy disagreed and wrote that "courts should not direct the nation's drug policy, courts simply lack the institutional competence to craft a set of religious exemptions to the uniform enforcement of those laws." See Id. at 983, 1008.

In furtherance of their argument that the Court should analyze the RFRA broadly, the government borrows logic from Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994), which held that courts must substantially defer to the predictive judgments of Congress when deciding the constitutionality of a statute. On the contrary, UDV contends that this broad analysis does not apply when the Court applies "strict scrutiny" as called for by the RFRA, and must instead "apply the * * * regulation to the individual claimant." See Kikumura. v. Hurley, 242 F.3d 950, 962 (10th Cir. 2001); See Brief for the Petitioners at 18.

The government also argues that allowing UDV to use hoasca would contravene the 1971 United Nations Convention on Psychotropic Substances, a treaty which the United States has signed. The treaty prohibits the use of Schedule I substances, with a narrow exception for the religious use of domestically-grown wild plants. See O Centro Espirita, 282 F. Supp. 2d at 1266–67. However, a commentary to the treaty suggests that the ban applies only to banned substances in their pure form and not to plants or beverages containing them. See Brief for Respondents, at 26. Apart from whether hoasca is banned by the treaty, the Court must also consider whether deference to a foreign treaty can represent a compelling interest for abridging a religious group’s freedom. See Id. at 36.

Finally, the Court will decide whether completely prohibiting the UDV's use of hoasca is the least restrictive means that the government can employ to advance its interests. However, because the District Court did not decide this point as it determined that the government failed to make its preliminary showing of a compelling interest, the parties have thus far expended little effort litigating it. See O Centro Espirita, 282 F. Supp. 2d at 1270. Therefore, should the Supreme Court find that the government has shown a compelling interest and decides it needs resolution on this final point, the case will likely be sent back to the lower courts for further fact-finding. See O Centro Espirita, 389 F.3d at 990.