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Debate Club
DEBATE CLUB 10/31/05

Are Illegal Drugs Legal in Church?

Marci A. Hamilton and Garrett Epps debate.

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Six years ago, customs agents seized packages of "tea extract" from Brazil headed to O Centro Espirita Beneficiente Uniao Do Vegetal, a small church in Santa Fe, New Mexico. In the boxes was hoasca, a plant extract that's a potent hallucinogen and that the church brews in tea as part of its religious ceremonies. While the First Amendment protects Americans' religious freedom, it may not protect their use of a controlled substance.

For salvation, the church is looking to the Religious Freedom Restoration Act—which generally prohibits the government from limiting the religious use of controlled substances. This week, the Supreme Court will consider whether RFRA protects the church. Why can't the group continue to brew their hallucinogenic tea?


Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at Cardozo School of Law. Garrett Epps is Orlando John & Marian H. Hollis Professor at the University of Oregon School of Law.

Hamilton: 10/31/05, 11:07 AM
Garrett, I am assuming that you would defend the right of Uniao Do Vegetal (UDV) to use the hallucinogenic tea pursuant to RFRA in this case, so I will start from that premise. The problem for me, of course, is that RFRA is unconstitutional, which is the position I have taken in an amicus brief submitted to the Court in the O Centro case, on behalf of the clergy abuse tort claimant victims involved in the Portland Archdiocese's federal bankruptcy.

RFRA is a statute that was passed pursuant to a mythology fostered by law professors and religious organizations. When the Supreme Court in 1990 decided Employment Div. v. Smith, it reaffirmed the dominant approach to the Free Exercise Clause since the court's earliest free exercise cases. The rule is that neutral, generally applicable laws apply to everyone, whether they are religious or not. In other words, while there is absolute protection for belief, and strong protection for religious speech, religious conduct can be regulated. If such a law is going to accommodate religious conduct in conflict with it, the legislature must make the accommodation (after consideration of the public good). I make this argument at some length and in some detail in my book, God vs. the Gavel: Religion and the Rule of Law.

But religious groups, spurred on by legal academics who were not accurately stating the law, interpreted Smith as an attack on religious liberty, because they believed that whenever religious conduct is burdened, strict scrutiny should be applied. In other words, a government must prove the law is absolutely necessary (passed for a compelling interest and narrowly tailored to the religious believer), before that law can be applied to the believer. The court, per Justice Brennan, had embarked on such an approach in 1963 in the Sherbert v. Verner case, and found its apotheosis in the case of Wisconsin v. Yoder, which held that a state's neutral, generally applicable compulsory education law could be overcome by the Amish, who were asking for the right to take their children out of school after 8th grade. In truth, the standard was not applied with any consistency, and the Supreme Court in Smith was positively correct when it stated that the "vast majority" of its free exercise cases have applied low-level scrutiny to neutral, generally applicable laws.

In this case, RFRA put the Tenth Circuit in the position of deciding, under RFRA, whether the Controlled Substances Act (clearly a neutral, generally applicable law) can be applied to the UDV. Under the First Amendment, the answer is a clear "yes," and the sect would have to ask members of Congress for the right to use the illegal drug for religious purposes. At that point, Congress could determine how the drug is being used, how harmful it is, and whether it is safe for the public, especially children, to permit it to be used. RFRA, however, put the judges into the position as super-legislatures, with the most striking opinion written by Judge Michael McConnell, formerly a law professor at the Universities of Chicago and Utah. His concurrence reveals a judge engaging in legislative judgment, without any capacity to hold hearings or consult experts regarding the actual impact of the use of the illegal drug on the public. This should not have been surprising coming from McConnell, who has been an extremist on free exercise issues for a long period of time. (As I discuss in God vs. the Gavel, he represented a woman who permitted her son to die the agonizing death of untreated diabetes, because of her religious beliefs, claiming that she and the Church of Christ Science, her religion, should not be held liable for his death.)

As McConnell's opinion makes so clear, RFRA is a violation of the separation of powers, putting the courts into the shoes of the legislatures. It is also beyond Congress's powers and a violation of the Establishment Clause, but I'll leave those issues to future posts.

Epps: 10/31/05, 05:53 PM
Marci. Early in its life, the Rehnquist Court took a wrong turn on religious freedom. In Employment Division v. Smith, the court held (without being asked by either party) that the majority may burden or even outlaw a minority religion entirely without any showing of harm to any state interest—as long as the law destroying the minority religion is "neutral and generally applicable"—or, as I put it, arises out of ignorance or indifference rather than specific malice.

The Roberts Court can spare us all a world of hurt by using the UDV case to reverse Smith and reaffirm the "compelling interest" test of Sherbert v. Verner. It could uphold the Religious Freedom Restoration Act or it could just reinstate Sherbert as the constitutional test. Under Sherbert, a "neutral, generally applicable" law that burdens a religious practice cannot be enforced against a practitioner of that religion unless it (a) furthers a governmental interest of the highest order and (b) uses only those means necessary to further the interest. That means that courts, rather than solely legislatures, will be involved in determining the necessity and impact of laws and regulations as they affect religious minorities. This is hardly an anomaly in our system—whether it is examining affirmative action under the Equal Protection Clause or scrutinizing state trucking regulations under the Dormant Commerce Clause, courts often find facts and make specific determinations about how closely a legislative regulation fits its objective. The process of adjudication is no more threatening to society in the context of Free Exercise than in any other. If the result of that process is that the UDV Church continues to use hoasca in its services, the edifice of civilization will remain more or less intact.

RFRA is broadly drawn, but in my judgment it's not unconstitutional. (In fact, one could argue that it is the kind of legislative accommodation that the Smith opinion invited.) In recent years, the Rehnquist Court has followed a model of the Constitution that many call "juriscentric." The idea is that the court is not merely a co-equal branch of government but is, as Kenneth Starr argued in a book of the same name, "first among equals." The court's decisions about the meaning of the Constitution are in essence to be regarded as ending all debate and examination by other branches. Historically and textually that's a hard principle to justify. Congress often protects minority rights beyond what the court thinks the Constitution requires—see, for example, the Civil Rights Act of 1964, the Voting Rights Act of 1965, or the Americans with Disabilities Act. RFRA is intended as that kind of rights-expanding statute. I think the court's invalidation of RFRA as applied to states (Flores v. City of Boerne) showed a fundamental misunderstanding of the Fourteenth Amendment; an opinion striking down the federal part of RFRA would be unfaithful to the role of Congress, the representative branch of government, in constitutional lawmaking.

Finally, let's remember that the clause at issue forbids the government from "prohibiting the free exercise" of religion (emphasis mine). The word "exercise" means doing something; the right question is how much conduct the clause protects. You suggest that it protects no conduct—only belief (which government can't regulate anyway) and some speech (already protected by the Speech Clause). That, I think, is the one reading of the clause that is demonstrably unfaithful to the text; and history shows that it has repeatedly given rise to bad law. From Reynolds v. United States (approving laws enacted specifically to suppress the Mormon faith) to Minersville School District v. Gobitis (which set off a wave of persecution of Jehovah's Witnesses because their religion forbids them to recite the Pledge of Allegiance) to Smith itself (allowing criminalization of a venerable and dignified faith despite its demonstrated benefits), the court has not been well served by the idea that religious minorities are not entitled to the day in court that others protected by the Constitution receive.

So we have a lot to talk about. I look forward to your next post.

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Hamilton: 11/1/05, 04:21 PM
You say that the plain language of the First Amendment mandates strict scrutiny of neutral, generally applicable laws, that Smith was contrary to that rule, and that RFRA just mimics what that language demands. This is not a defensible position, though. The First Amendment prevents the government from "prohibiting the free exercise" of religion. A literal interpretation would say that the government may not forbid religious worship, but it certainly does not mean that all religious conduct is thereby protected by the First Amendment, or even that every aspect of worship is to be protected. We can all agree that no religious organization engaging in the sacrifice of humans would be protected. That concession means that there can be no absolute protection, and the question is where to draw the line.

It is instructive to return to the time of the framing to understand what the language was intended to mean (whether one is an originalist or not). As Justice Scalia rightly has pointed out, free exercise in the state constitutions also had been protected, but they included limiting language, which stopped the freedom to exercise religion at the point where public health, or safety, or welfare were being threatened. Moreover, the concept of the rule of law was a concept crafted in no small part by preachers at the time who taught their parishioners that they had an obligation to obey duly enacted laws and, even, that there was no religious defense to such a law. So it is quite a stretch to argue that the First Amendment was intended to or was crafted to protect religious conduct to the extent that RFRA takes it.

It is by now a familiar argument that RFRA was enacted by a legislature, that Smith said religious accommodation can be permissible, and, therefore, RFRA is just fine under the Constitution. That is quite a stretch. The sorts of accommodation the court approved in the last half of the Smith decision involved practice-specific accommodation (e.g., use of peyote in a religious ceremony) or far narrower accommodation than RFRA's breathtaking sweep (e.g., the right to use religious belief in hiring decisions, despite the general provisions of Title VII). The notion that the Congress could enact a law that would create a federal cause of action every time a neutral, generally applicable law incidentally burdened some religious conduct was beyond anyone's imagination at the time. It would take the union of power of religious organizations, civil rights organizations (who unfortunately did not understand at the time that they were operating adversely to their own civil rights missions), and the mythology of the Free Exercise Clause I discussed in my last post, to yield such a statute.

And just so we're clear—Smith did not overturn Sherbert. Rather, it stated quite explicitly that any future case presenting Sherbert's constitutional issue would be decided the same. That means that where the government engages in an
individualized assessment for each exemption from a neutral, generally applicable law and where the government favors secular over religious exemptions, strict scrutiny applies. What Smith plainly refused to do was to affirm the much larger theory that stands behind RFRA—that all neutral, generally applicable laws deserve strict scrutiny. In a society based on the rule of law and the rule of no-harm, the across-the-board RFRA imposition of strict scrutiny on every imaginable law is intolerable.

Early reports regarding the court's argument in the O Centro case this morning indicate that a majority of the court was inclined to say that there is a compelling interest either in the federal Controlled Substances Act or in the relevant treaty, which would mean the RFRA claim would fail in that case, the UDV could not use hoasca, and that the arguments over RFRA's constitutionality would be reserved to a later day.

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Epps: 11/2/05, 09:17 AM
The rule, as you recited it yesterday, is that under the Free Exercise Clause, "there is absolute protection for belief, and strong protection for religious speech, [but] religious conduct can be regulated." My counterargument is not, as you suggest, that "all religious conduct is . . . protected by the First Amendment, or even that every aspect of worship is to be protected." Smith did not say that the government can outlaw religious conduct when it is particularly dangerous to the public health or safety. That would be a balancing test. The Smith rule was that, as long as a majority does not act with the intent of suppressing a minority religious practice, that practice can be outlawed without any need for balancing at all. That was radical then, and remains so today.

What I do say about the plain language of the Free Exercise Clause is that it offers protection to more than belief. How much more? Well, that's where a balancing test becomes significant. The test used in the Sherbert case—and the test prescribed by RFRA—is what you and I teach our students to call "strict scrutiny." It requires the government to show that its regulation is (1) aimed at advancing a compelling governmental interest and (2) pretty much necessary to attain that interest. That test, you say (and Justice Scalia in Smith said as well) in some way threatens the very rule of law.

Why is that exactly? This precise test is used in other First Amendment areas—for example, to test laws regulating speech based on its content. If the test is legitimate for speech, why is it not legitimate in applications of the very same words ("Congress shall make no law . . . .") in the very same sentence of the very same Amendment when applied to Free Exercise? Only an unspoken constitutional presumption against religious claims (which I am unable to justify from either the text or the history of the clause) would explain a broad reading for speech and a crabbed reading for free exercise.

As for RFRA, I freely grant that it is broad. But it was a response to a broad, radical, embarrassingly sloppy and (to use properly an overused term) activist decision by the court. (You state that "Smith did not overturn Sherbert." But in fact Smith took a rule that had protected a significant amount of religious conduct, incorrectly proclaimed that it applied to the unemployment-compensation area alone, and then refused to apply it to an unemployment-compensation case. That distortion of prior doctrine was significant; but it was only a minor example of the Smith court's grotesque failure of judicial craft.)

I do believe that Congress, as the representative body in our system, has an important role to play in defining and protecting constitutional rights. (And, by the way, the fact that a Congressional statute has broad support doesn't impeach its legitimacy.) That I might have written RFRA differently does not in my mind justify the court stepping in and proclaiming (as it came close to doing in Boerne) that it and it alone is the arbiter of rights. That doctrine seems to me more dangerous than an occasional dose of hoasca drunk by the faithful.

As for the reports of oral argument, I eschew prophecy. I do, however, hope that the Roberts Court will manage to avoid needlessly plunging itself into the tangled and indefensible thicket of Smith. "Compelling interest" is a good and workable rule; the Smith rule is incoherent and indefensible.

Hamilton: 11/2/05, 06:15 PM
Yes, the Smith rule was that neutral, generally applicable laws duly enacted by legislatures and affecting religious conduct are valid. In other words, the rule of law governs religious and as well as nonreligious actors. That is hardly an "indefensible" rule. Indeed, if you stopped most Americans on the street, they would think that was an obvious tenet of our Constitution.

In contrast to the approach taken by Smith, you are advocating balancing of the public interest by the courts, who have no capacity to engage in policy weighing. What we get are judicial prejudices regarding public policy, not a well-debated and considered policy conclusion. It cannot be stated often enough that RFRA is like no other law (other than its unfortunate successor, the Religious Land Use and Institutionalized Persons Act). They are the only laws to legislate a judicial standard of review, let alone this sort of strict scrutiny, and they are simply wrongheaded.

Normally, strict scrutiny cannot be triggered by a neutral, generally applicable law. I challenge you to come up with a single speech case where strict scrutiny is applied against such a law. RFRA, though, imports strict scrutiny against such laws, and, worse, in situations where that which is being governed is conduct. Belief is absolutely protected, in part because it cannot harm another. Speech receives strong, though not absolute, protection, in part because it is unlikely to harm another, but in some circumstances does (e.g., child pornography and defamation). Conduct always carries within it the capacity to harm another. Thus, the government, so long as it is not targeting religion in general or a particular religion, must be permitted to outlaw conduct, whether performed by the religious or nonreligious. I urge you to defend the argument that religious individuals and entities ought to have constitutional rights to harm others, because that is what is at stake here.

As to your claim that Smith is wrongheaded and a disaster, that is only true for those misguided individuals who believed that the Sherbert/Yoder standard was applied in every case between 1963 to 1990. We all know that is political hyperbole, and nothing more. Far from the application of strict scrutiny in every case, the court applied low-level scrutiny in the prison and military contexts, and did not even purport to apply strict scrutiny in others. It is the great lie in the Free Exercise debate that Smith overturned solid precedent. In fact, it adopted the dominant approach taken in the vast majority of cases, and rejected a lesser test that, in the end, could not be defended in a system of ordered liberty.

RFRA turns judges into policymakers and legislatures into the servants of the courts' unilateral policymaking. It will be interesting to see how the strict constructionists at the court, who revere the separation of powers regarding who should make policy, handle RFRA in the O Centro case.

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Epps: 11/3/05, 09:05 AM
Marci, you say that the Smith rule—"neutral, generally applicable laws duly enacted by legislatures and affecting religious conduct are valid"—is simply synonymous with "the rule of law." By implication, a balancing test is, well, lawless. This isn't so in the free exercise area or anywhere else. Both of us believe in the rule of law; the question—an important one—is: what should that rule be?

The "compelling interest" test is a rule of law. Yes, it does involve "balancing of the public interest by the courts." Where we differ is in your flat assertion that courts "have no capacity to engage in policy weighing." On the contrary, courts often weigh policy arguments in statutory and constitutional cases. One of the routine functions of federal courts today, for example, is to examine state commercial regulations and determine whether the burden they impose on interstate commerce is outweighed by the advantage they offer to legitimate non-discriminatory local interests. Very fact-intensive; very policy-oriented; not lawless at all. If courts can be trusted to examine the advantages of various kinds of truck mud flaps, they can probably also handle determining the dangers, if any, posed by religious practices like hoasca. Before holding for the church, the trial court in the Vegetal case engaged in a very careful process of fact-finding. Having spent much time in Chief Judge Parker's courtroom, I know that he is open-minded and skilled at this kind of proceeding. If his injunction is upheld, the rule of law will survive.

As for "doing harm," that is precisely the point. If a minority religion does harm to others, there should be no problem demonstrating that to a court. Smith, not Sherbert, is the case that says that, if the law is "neutral and generally applicable," harm is simply irrelevant. And in fact, in Smith, the government never could make any showing that peyotism was harmful. From what I read of the record and the briefs, the same is true in Vegetal. No harm, no foul—that's not the same as calling for abolition of the "rule of law."

By the way, Justice Scalia made an interesting comment during oral argument yesterday. When the government argued that religious exemptions would destroy the uniformity of drug laws, Scalia pointed to the federal statute, passed after Smith, protecting peyotism. According to The New York Times, Scalia said that the statute "shows that you can make an exemption without the sky falling."

Say what you will about Justice Scalia, the man is a phrase-maker.

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Hamilton: 11/4/05, 11:47 AM
Actually, Garrett, I don't think applying strict scrutiny to neutral, generally applicable laws is compatible with the rule of law at all. To start, we all agree, I assume, that the rule of law requires the application of the same laws to those in similar situations.

We don't choose who gets the burden of a law on the basis of status, gender, or race, for example. Those are unconstitutional applications of the law that invite strict scrutiny under the Equal Protection Clause. When the government transgresses such boundaries, it has abandoned the rule of law in favor of discrimination. And in those instances, the courts are justified in closely scrutinizing what the government has done to see whether it really is discriminatory and/or perhaps can be justified by a compelling interest.

In the First Amendment context, there must be a similar trigger to justify the judicial second-guessing of the legislature's judgment. In the speech context, viewpoint or content discrimination justifies the bump up to strict scrutiny. In the press context, a prior restraint operates as the same sort of trigger. In the religion context, targeting a religious organization, as in Church of Lukumi Babalu Aye, or favoring secular exemptions from neutral laws over religious exemptions, a la Sherbert v. Verner, also justify the leap to strict scrutiny. Yes, I think Sherbert was rightly decided. Wisconsin v. Yoder, though, where strict scrutiny was applied to a neutral, generally applicable law was plainly wrongly decided.

Strict scrutiny of neutral, generally applicable laws for religious entities, though, is an anomaly in constitutional law. There is absolutely no trigger in a neutral, generally applicable law that can justify the court's second-guessing of the public policy set by the legislature. The law regulates conduct across the board, because the legislature has found the conduct unacceptable, without regard to religious identity. If it just so happens a religious individual chooses for faith reasons to medically neglect their child, the Constitution certainly should not give the courts to power to jump in and re-calibrate such complex social policy.

I'm going to be very frank here (I know, that is very uncharacteristic of me), but the advent of RFRA I (federal and state) and RLUIPA does not arise from the principled application of constitutional law, but rather from the enormous power of religious entities in the political process and the complete abdication of our elected representatives to serve as filters for the public good when a religious entity is in front of them. Religious lobbyists ask for RFRA, and we get 3 years of hearings on how wrong the decision in Smith was, but no one says, "Gee, there was a law I worked very hard to get passed several years ago, will this harm the interests I sought to protect there?" During the hearings on RLUIPA, not a single member even broached on grilling the various religious entities regarding the impact of this law that disables zoning and land use laws on residential homeowners—even though everyone knows religious buildings and projects frequently are near or within residential neighborhoods. Our elected representatives abandoned their obligation to consider the public good, because they did not have the foresight or wherewithal to challenge religious entities with hard questions.

The compelling interest test for generally applicable, neutral laws is wrong as a matter of constitutional law. And it is a recipe for disaster in the legislative context. Exemptions for particular practices, if they do not harm the public good, are perfectly legitimate if enacted by legislators who have done their homework and asked the hard questions.

By the way, you nicely illustrated what is wrong with courts (and legal academics) applying the compelling interest test when you suggested that DMT, the drug at issue in the UDV case, was probably as little a public problem as is peyote. Given that there were no fact-findings in the case, and no trial, and given that there have been no hearings in Congress and no studies done, how do you know that? Here is how—you were drawing conclusions based on the statements of litigants. Public policy will never be secure if it is being determined by litigants and the insular courts who are limited to their papers.

Epps: 11/4/05, 05:56 PM
You've stated our point of difference well. Is the "compelling interest" test, when applied in the context of "neutral, generally applicable" laws that burden religious groups, a "constitutional anomaly" like government use of race or sex to disadvantage one group? I say not.

First, a rule of law that treats some citizens less well because of a suspect trait is fundamentally different from one that requires government not to mistreat other citizens because of another suspect trait.

Second, you say "there is absolutely no trigger in a neutral, generally applicable law that can justify the court's second-guessing of the public policy set by the legislature." The trigger is the possibility that a majority has burdened a religious minority out of ignorance or indifference. That was behind Oregon's no-exceptions peyote statute—this overwhelmingly white, homogeneous state simply didn't bother to ask what its norm (which was anomalous even among Western states) might mean to a small, largely Native American religious group. Not hostility; just lack of curiosity.

Our attorney general's office insisted that even to consider a legislative or administrative exemption would imperil "the rule of law"; in Scalian terms (see my post yesterday), the sky would fall if an exemption were made. After the decision, the legislature went back and made one. Sky intact, both here and in the nation.

If, as I suggest, majority ignorance can imperil minority religious groups, then it makes sense for courts to interrogate the majority's norms to find out whether there really is any harm in the practice being unintentionally banned. And a judicial trial isn't such a bad way to do that. (You are right that there's been no trial in the Vegetal case, just an unusually thorough war of affidavits. The answer to that, I think, is an actual trial, with expert testimony and witnesses who have been involved in vegetalism.)

You are correct that Yoder was an example of such a "neutral, generally applicable" law being reframed to include a court-made exemption. Was it, as you say, "plainly wrongly decided"? I think not. True, Chief Justice Burger's absurd love poem to the Amish makes us squirm. It's a wretched piece of craft by a sloppy and biased judge. But the result, I think, is defensible. The Old Order Amish weren't asking for the right to turn their kids loose on the world with no education. They wanted the children to start their education in public schools, then do the last two years of compulsory schooling in Amish-supervised vocational training. The exemption they asked for was a small adjustment, and did not contravene the underlying policy of the state to educate all children to age 16. And of course the sky hasn't fallen in Wisconsin or anywhere else the
Amish live in the years since the case.

As for RFRA, it is not the statute I might have written. Log-rolling, ambiguity, and special interest taint most statutes to one degree or another, and RFRA and RLUIPA are no exception.

But the two statutes are no more sloppy—indeed, probably less so—than the indefensible decision they are trying to limit. Smith came to the court as an unemployment compensation case; the court, at Justice Scalia's apparent suggestion, told the parties to reargue it as if it were a criminal case. Then the court denied relief to the respondents on the grounds that Smith wasn't an unemployment compensation case. And if that weren't manipulative enough, the majority opinion relied heavily on one case that is thoroughly discredited (Reynolds v. United States) and one that is quite literally overruled (Minersville School District v. Gobitis). So a slipshod decision may have provoked a flawed legislative response. Who'da thunk it? That fact does not mean that Congress has no role to play in the ongoing dialogue on religious freedom.

Let's hope the Roberts Court does a better job with these issues than its predecessor. But in any case, I predict that you and I will have much to disagree about in the years ahead. I look forward to it!

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