Faith case before Supreme Court targets illegal drugs

Justices lean toward ceremonial use of hallucinogen

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WASHINGTON -- The U.S. Supreme Court yesterday reacted with surprising sympathy to the claim by a small religious movement with roots in Brazil that it should be allowed to import a tea containing an illegal hallucinogenic drug for use in its rituals.

If the justices decide in favor of the group, they would breathe new life into a 12-year-old federal law known as the Religious Freedom Restoration Act, which in certain cases allows believers to ignore laws that interfere with their faith.

Noting that federal law permits 250,000 members of the Native American Church to use the hallucinogen peyote as part of its worship, Justice Ruth Bader Ginsburg asked a lawyer for the Bush administration why it wants to prevent 130 U.S. adherents of a faith known as O Centro Espirita Beneficiente Uniao do Vegetal from importing a sacramental tea known as hoasca from Brazil. Hoasca contains a hallucinogen called dimethyltryptamine or DMT.

"The government has to recognize one, why not the other?" Justice Ginsburg asked Deputy U.S. Solicitor General Edwin S. Kneedler.

Justice Antonin Scalia, noting that Native Americans have used peyote without the drug being diverted to general use, said that was "a demonstration that you can make an exception without the sky falling," an observation echoed by Justice Stephen Breyer.

Mr. Kneedler replied that Congress made an exception for the religious use of peyote out of respect for the traditional rights of Indian tribes.

But Justice David H. Souter noted that the 1993 Religious Freedom Restoration Act was worded broadly. It might not matter, Justice Souter said, that "Congress didn't think of this case."

Congress passed the act to overrule a 1990 Supreme Court decision in which the justices upheld the state of Oregon's refusal to provide unemployment benefits to two members of the Native American Church who had been fired for using sacramental peyote.

The act, which was supported by a broad range of religious groups, allowed believers to opt out of generally applicable laws -- including drug laws -- if they had a religious motivation and their compliance with the law wasn't required by a "compelling state interest." Moreover, the burden was on the government to prove that the "compelling" interest couldn't be achieved without violating religious freedom.

In 1997, the Supreme Court severely limited the reach of the act when it ruled that Congress lacked the authority to force states to comply with its provisions. But the law remained on the books as a limitation of the federal government.

Mr. Kneedler told the court that DMT, the active ingredient in hoasca, the tea consumed by the church, is illegal not only under U.S. Controlled Substances Act but also under a 1971 treaty called the United Nations Convention on Psychotropic Substances.

But Nancy Hollander, the lawyer for the church, said that, properly interpreted, the treaty did not cover hoasca, and that other countries that signed the treaty have found ways to accommodate the use of otherwise-illegal drugs in religious rites.

That argument carried little weight with Justice Scalia, who doesn't believe that U.S. courts should rely on the decisions of foreign tribunals. But Justice Scalia suggested that the treaty issue was irrelevant because Congress could override a treaty, just as it could a federal statute.

Even Chief Justice John G. Roberts Jr., who expressed strong support for federal drug regulation in a recent argument over physician-assisted suicide, suggested that the Religious Freedom Restoration Act might require some concessions to religious groups that used otherwise-banned drugs.

In a second argument yesterday, several justices expressed concern about the way a 17-year-old accused murderer in Annapolis, Md., was induced to talk to police even after he asserted his Miranda right to talk to a lawyer. Under a 1981 Supreme Court ruling, interrogation must stop once a suspect says he wants a lawyer.

After Leeander Blake said he didn't want to speak without an attorney present, a police officer showed him a court document suggesting -- falsely -- that he might face execution if convicted. "I bet you want to talk now, huh?" the officer said.

Another officer intervened, saying Mr. Blake already had asked for a lawyer and couldn't be questioned. But half an hour later, Mr. Blake asked the second officer if "I can still talk to you" and later incriminated himself.

Maryland's highest court refused to allow Mr. Blake's statement to be admitted, and most Supreme Court justices yesterday seemed to agree that Mr. Blake had not "initiated" the second conversation, but rather was responding to cues by the police.

Maryland Assistant Attorney General Kathryn Grill Graeff told the court that Mr. Blake had initiated the later conversation, but only Chief Justice Roberts and Justice Scalia seemed sympathetic to her position.


Michael McGough can be reached at mmcgough@nationalpress.com or 202-662-7025.


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