Another fascinating decision today came from the U.S. Supreme Court involving the Religious Freedom Restoration Act and the right to drink hallucinogenic tea as part of a religious ritual. What makes this fascinating to me is that it involves the RFRA, one of the more unusual pieces of legislation ever passed, and that the decision was unanimous (8-0, with Justice Alito not taking part in the case because it was argued before he was confirmed). Chief Justice Roberts wrote the unanimous opinion, which found that the government had not shown that preventing this use of hallucinogenic substances served a compelling state interest.
The background of the case and of the RFRA is worth detailing because it involves the interplay of various constitutional powers. In 1990, the Supreme Court ruled in Employment Division of Oregon v Smith that the free exercise clause did not make generally applicable laws unconstitutional. In that particular case, there is a general prohibition on the use of peyote in the Controlled Substances Act and the Court ruled that the fact that American Indians use peyote for religious purposes does not mean that such a law, imposed upon them, violates the free exercise clause.
Largely in response to this decision, Congress passed the Religious Freedom Restoration Act, which prohibits the Federal Government from substantially burdening a personâs exercise of religion, "even if the burden results from a rule of general applicability" except when the Government can demonstrate that application of that law furthers "a compelling government interest" and is "the least restrictive means" of achieving that government interest. The RFRA also explicitly granted authority to the courts to decide when the RFRA takes precedence over an already existing law, rather than trying to spell out each and every instance where it might apply.
This is fascinating for several reasons. First, because it is a rare example of a legislature limiting its own authority. The RFRA had to be applied to already existing statutes like the Controlled Substances Act. Second, because it's also a rare instance where the legislature explicitly asks the judiciary to decide between competing statutes (courts must do so anyway, but Congress generally complains when they do so, yet in this case they invited such intervention and even demanded that the Courts apply a strict scrutiny standard when doing so. Legislatures generally hate strict scrutiny review because it typically means the Court is going to overturn a statute; in this case, they actually insisted upon that standard.
The case brings up all sorts of interesting legal questions. For example, the Court just upheld the Federal government's authority to deny the right to use marijuana for medicinal purposes even when prescribed by a doctor in the Raich case, yet here they have ruled unanimously that the Federal government cannot prohibit a group from using hallucinogenic substances as part of religious ceremony. So if Raich had instead made a case based on religious freedom, would the Court have ruled differently? Of course, the constitutional doctrine at issue in those cases was completely different but it still leads to somewhat contradictory results.
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Thank you Ed for mentioning this case. As one who has participated in the early stages of this case, research and personal recollections on the creation and intent of the American Indian Religious Freedom Act of 1978 (when i worked on staff for Senator Abourezk of the Senate Select Committee on Indian Affairs), the important amendments of 1994 (thanks to Senator Inouye), as well as lobbying intensely for the passage of RFRA (hoping to get a new ruling on the Oregon peyote case and three other ayahuasca cases), i am certainly, happily, surprised by the unanimous decision. The irony of course is that many of those on the religious right were very supportive of the RFRA, intending to use it to instill certain icons and artifacts in the public sphere, while simultaneously holding views anathema to american indian religious practices.
While battle lines continue to exist in the psychedelic studies community over some of these issues, this 'wonderful' opinion helps to refocus efforts and energies of those who believe that religious freedom is fundamentally important to our nation, and applies equally to all religions celebrated and practiced in the US.
Yeah, I do love the irony of this decision. It's not OK to use marijuana to relieve pain and nausea that cancer patients have to deal with but, perfectly OK to trip out on mushrooms for religious purposes.
I, for one, am just a little sick and tired of this kind of hypocrisy and stupidity. I am sick and tired of seeing all kinds of special rights and privileges given to people under the guise of religious freedom. Why does religion garner such special consideration anyway? Would it be legal for me to purchase and use LSD if I claimed it was part of my Flying Spaghetti Monster Pastafarian rituals? Seems to me, this supreme court decision just might have opened that door for me. Hmmm...
--JK--
Strange as it may sound, the RFRA actually does seem to require that judges administer a "smell test" on the sincerity of the religious beliefs in question. This just highlights Ed's point. The Congress handed quite of bit of power to the courts on this particular issue, and invited them to make some difficult decisions.
RFRA relief is a statutory matter, but there is some precedent for people with "non-serious" reglions being denied First Amendment relief: e.g. US vs. Meyers (a guy with who claimed to be a "Reverend" in the "The Church of Marijuana") and US vs. Kuch (The "Neo-American Church" that claimed "Puff the Magic Dragon" as its holy hymn.) From Kuch:
"Those who seek constitutional protections for their participation in an establishment of religion and freedom to practice its beliefs must not be permitted the special freedoms this special sanctuary may provide merely by adopting religious nomenclature and cynically using it as a shield to protect them when participating in anti social conduct that otherwise stands condemned."
So is there any conclusion to reach here but that the Court is in a position to use the law to judge the sincerity of a person's faith? And not only that, but determine that a freedom applies for a sincere believer only?
Please tell me why only the devout deserve "special freedoms." I would love to know.
Please tell me why only the devout deserve "special freedoms." I would love to know.
Because their giant invisible sky-fairy said they deserve them, of course.
"Those who seek constitutional protections for their participation in an establishment of religion and freedom to practice its beliefs must not be permitted the special freedoms this special sanctuary may provide merely by adopting religious nomenclature and cynically using it as a shield to protect them when participating in anti social conduct that otherwise stands condemned."
This really is part of my point. Determining whether one's faith and practices are "genuine" or not is highly subjective and pretty much at the whim of some judge â assuming you can even afford to mount such a case (or defend yourself as the case may be). I my view, there should be no special consideration, no special privileges for religion. That way, the government remains neutral and out of the equation altogether. If not, then I am going to demand special privileges for my deeply held, fiercely fought for, faith and devotion to FSMism â including my right to take all Fridays off as religious holidays and to blow my brains to mush with powerful hallucinogenic substances. Who's to say I am wrong? A judge?
VisualFX asks: Who's to say I am wrong? A judge?
Well there are some indicators that would lead to courts to deny your claim of religious protections. There are many ways in which you would be wrong, not the least of which would be your lack of theological and mythological constructs, lack of ritual/ rite/ ceremony liturgies and handbooks, lack of a constituent congregation that meets regularly (though this standard has been more loosely defined) and other deficiencies. As one who spend decades studying the history and philosophy of religions, and who has testified in these matters, i have been asked that very question a number of times.
But, if you are interested in getting all those Friday's off, you would need to begin to create the necessary mythological rationales for why all Friday's are essential to you, your congregation, and your deeply held religious views. Same for the LSD and other entheogens, which in and of themselves are, at least by definition, chemical compounds and molecules that generate theological awareness and creation myths. Therefore (tongue well pushing against my cheek) i suggest you start with the LSD and then work back towards a Friday's off theology. lol
Awww, Jeez. Just like someone who actually knows what the hell they are talking about to go and post here. Sigh...
Well, we could just solve the whole issue by doing away with tax-free religion altogether. That would get the government out of the equation entirely (and reap quite a bounty for Unc. Sam in the process).
Maybe?
Naaahhhh. Never happen. We like our childhood, magic sky-daddy myths too much for that to ever happen.
Interesting. So what does the law say about joining an already established religion, such as Rastafarianism? So far as I can tell, good Rastas sincerely believe that smoking copious amounts of strong cannabis is essential for communing with God, but they don't normally partake in a church. Can a plain sincere belief that God orders you to get high on His Holy Weed whereever and whenever possible so that He can better communicate His Important Thoughts to you qualify under the RFRA? If it does, I feel a conversion coming on. Forgive me, oh Lord, for following man's laws instead of Yours!
Also, how would the RFRA treat offshoots of established religions? I'm thinking of something like Reformed Rastafarians. (RRs don't stand on hilltops beating a drum and shouting "Kill the Pope!" to the four winds. Instead, they ingest Sacred Substances and pray that the Pope gets laid. It would do him a world of good.)