Centerfield

If the number of congregants lends credibility to a religion, this one promises to become more credible. Legal tripping will draw crowds.

Right. And then does the system respond by scrutinizing the intent and sincerity of those claiming to be the faithful? Not a fun road to tread, IMO.

This can easily lead into a larger debate about what should and should not be considered criminal behavior. If it is acceptable to engage in some activity because it's your religion, why shouldn't you be allowed to engage in the same activity for other reasons? And there are some things, like human sacrifice, that cannot be justified legally on religious grounds.

Of course, there is a solution which avoids the quagmire of defining "what is a religion?": toss all the drug laws which do not relate to endangering others (e.g. driving under the influence).

Nah, too sensible to even be considered.

Lol, wj. I'm with you, but it just makes too much sense...it'll never happen.

Shh, I'm thinking up new religious beliefs...

I knew that Universal Life Church ordination would pay off someday.

Just to be clear about the legal basis for this ruling, the Court was relying on another act of Congress, the Religious Freedom Restoration Act of 1993 (the RFRA), to toss out the case against the tea drinkers. The government argued that Congress wanted and needed a uniform ban on controlled dangerous substances (an argument which carried the day in Raich, the marijuana case) in order for it to be truly enforceable. As the Court noted, it's essentially a slippery slope argument.

The Court's response was to say that the RFRA allows for and requires the court to make more individualized determinations, and noting that Congress had itself realized that a religious exemption from CDS is feasible, as Congress itself has exempted religious peyote use from regulation under the CDS.

In other words, this case is very different from Raich, where no counter-vailing Congressional act was at hand. If Congress doesn't like the decision, they can amend the RFRA to exempt use of controlled substances from its purview and protection.

The case (in pdf) is Gonzales v. Centro Espirita Beneficente Uniao Do Vegetal. Wikipedia has a comprehensive article on the tea, which has already been updated to reference the decision.

I apologize for injecting seriousness into what is obviously the fun thread for the day! In that vein, I'll note that the guy who Bobbitted himself while under the influence of an hallucinogenic tea used Angel's Trumpet, not ayahuasca (hoasca).

William S. Burroughs and Allen Ginsberg must be very happy right now. Had I seen this story before lunch time, I might have dressed very differently for it.

Where can I sign up with these dudes? You get these guys and their dope together with Swaggert and Baker...sounds like my bachelor party all over again!!! (Let's not invite the Roman Catholics, though...I'm not into boys).

Point being...Why is your belief system better than theirs? Seems to me, they all have their faults.

"Well, that question just got more urgent. If people get to do certain things under the umbrella of free religious practice that are otherwise prohibited..."

What about the reverse? What if a government enacted a "generally applicable regulation" as an end run around the 1st amendment? Does a ban on religious practice magically pass constitutional muster if the enactment of the ban affects enough people who are not of the affected religion?

Yes. As long as the motive behind and effect of the legislation is not to actually discriminate against the exercise of religion. The government can require the Amish to put brakelights on their horse-drawn carriages in order to operate them on public roads. They can prohibit the sacrifice of virgins or prostitution by temple priestesses. The government can impose on its employees (Constitutionally speaking) whatever work days it wants; if you can't work on the sabbath and your job requires you to, then you've got to make a choice.

But Congress decided that sometimes it won't hurt that much to bend the rules in order to accomodate religious beliefs and practices. So it passed the RFRA of 1993, which is the law relied on by the Court in this tea case. It decided that it would be "unreasonable" in light of the RFRA, prohibit the use of this tea in the religious ceremonies of a very small sect. Had the RFRA not existed, this case would have had a different result.

Right, bend the rules, And that's the thing to notice here. It's a little inconsistency, a little white lie. There's a little bit of a loophole here, and the courts can judge a little bit on a case by case basis.

But if a lot more people start using this loophole successfully, the courts would be in a diffficult spot. They'd have to try to divine some implicit principles which would allow them to decide which otherwise illegal practices were ok for which religions, and which ones weren't. And if they couldn't do it in a way that made most of us happy, they'd have to default back much closer to "illegal is illegal."

Supposing some more religions formed that incorporated drug use, or older ones evolved to incorporate drug use, or that large numbers of citizens joined these "evil drug-worshipping" faiths. What criteria would we use to say "ok these guys were ok, but you aren't?" Do you use a grandfather clause, or distinguish based on number of members, or institute a length of time that signifies that a faith is legitimate and sustainable, and not a trojan horse?

Or do you judge each religion by its practices as evidence of intent and say "OK these guys do it on quietly on Sundays in a building with stained glass windows and help poor people, but these other guys do it at keg parties?"

In other words, do we adopt towards religion the same sort of "we know it when we see it" standard that applies to obscenity? Would we let somet organizations be considered plausible as religions in one town or state, but not in another?

It's a real pandora's box.

The court wouldn't be in such an awkward spot, Congress would, Brian. For now, until real abuses start, the courts are pretty capable of exercising their sound judgment in applying the general law (the RFRA) to particular circumstances. It's not a little white lie, it's the courts heeding the very explicit command of Congress to balance competing societal impulses and values. The courts will, over time, develop a variety of mechanisms and balancing tests to help them separate the wheat from the chaff.

Aren't you the one who wants the courts to use their own values from time to time without worrying about rigid formalistic consistency to the "law"? ;) Here's an area where we can both agree, because Congress has explicitly commanded just such an exercise.

The courts will, over time, develop a variety of mechanisms and balancing tests to help them separate the wheat from the chaff.

Right. I'm saying that I think this is going to be very hard to do. Sometimes solid principles for distinctions emerge. Other times, what at first glance seems like a good distinction turns out to be more like your garden-variety everyday arbitrary bullshit.

What we have right now is this little exception of preferential treatment before the eyes of the law that is provided only for religious reasons, in certain circumstances. But the unanswered question ( I called it a white lie, but I really meant a glossing over of a troublesome issue, same thing in spirit) is this. Why, if the government has very good reasons to protect the people from the adverse effect of illegal drugs. does this rationale disappear when the drug users are using in the name of religion? Like you said, they can't do illegal sacrifices. So where do we draw the line? I'm just asking.

In general, I'm not opposed to "moving the lines." It's just that wehn someone wants to move a line, I try to make sure they have found a good place to put it. In this case, it feels like an unstable and ill-defined place. And I don't disagree that it may be a worthwhile goal, this promoting of religious freedom, especially when the transgressions are misdemeanor in nature.

What I'm wondering about is whether there's ultimately a good, fair, and principled way to do it. Maybe there isn't. Maybe it's like you say campaign finance reform is. It may seem like a good idea if you suppose that money isn't speech, but then when you try to do it, every way you try sucks, and you always end up curtailing speech even though you are only trying to control money.

We know that congress may pass no law with respect to the establishment of A religion, but is it a good a idea to pass a law with respect to establishing religion period? Notice how this could tie into the notion we looked at the other day, that atheism could be construed as one particular form of religious faith.

Maybe it seems like a good idea if you suppose that the exceptions only apply to those practices that are very similar to the current widely acknowledged religions. But then when you try to make distinctions, every way you try sucks, and you always end up privileging some forms of faith and denying the validity of other deeply-felt ones.

"but is it a good a idea to pass a law with respect to establishing religion period?"

I'm not sure how much of the Court's ruling is based on RFRA and how much is direct constitutional reasoning, given that RFRA was overturned by the Court in 1997. One thing to remember is that RFRA was a response to a decision in the 1980s that allowed an Indian to be denied unemployment benefits because he was fired for using peyote in accordance with ritual.

There were four prior decisions impacting this one (I could look up the cases later). I forget one of them, the second was that the Amish could not be compelled to attend school beyond 8th grade, the third held that Jeh--'s Witnesses could be compelled to say the pledge of allegiance and the fourth overturned the third. In ruling that the Constitution did not require giving deference to religious practice, the Court redefined the Amish case as one of free association, relied on the ruling allowing compulsion of saying the pledge of allegiance and ignored the fact that that ruling had been overturned a few years after it was issued.

Scott, I'm pretty sure the Court did not previously overturn the RFRA. Maybe some little portion of it, but by no means the whole thing. I provided a link to the opinion, and you can read it for yourself to see that it's based entirely on the RFRA. Even the majority in Raich, the marijuana case, joined in this recent tea case, solely because here, Congress had passed a law which DOES mandate that exceptions be made to otherwise general laws in order to accomodate religious beliefs and practices.

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