With all the news, commentary, and frantic spin attending the Supreme Court’s decision to review the federal ban on partial-birth abortion, it would be easy to overlook the justices’ recent opinion in a religious-freedom case involving the sacramental use of hallucinogenic tea from the Amazon. Certainly the (unsurprising) announcement about the abortion law is a headline-grabber, and sets the stage for a battle royal in the courts of both law and public opinion. That said, the sacramental-tea decision in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal might tell us more about the current state and the future of constitutional law and, more generally, about the new Roberts Court.
In his crisp and straightforward opinion–from which no justice dissented–Chief Justice Roberts reported that O Centro Espirita Beneficiente Uniao do Vegetal (UDV) is “a Christian Spiritist sect based in Brazil, with an American branch of approximately 130 individuals.” And, he continued, “[c]entral to the UDV’s faith is receiving communion through hoasca . . . , a sacramental tea made from two plants unique to the Amazon region.” However, this tea includes a hallucinogenic substance that is strictly regulated by federal drug laws. After customs inspectors seized a shipment to the UDV of hoasca, the group filed a lawsuit, seeking an exemption from those laws and claiming that the application to them of the hoasca ban substantially burdens its free exercise of religion.
The Supreme Court decided 15 years ago, in Employment Div. v. Smith, that the Constitution itself does not require the government to accommodate religious believers by exempting their rituals, liturgies, and practices from the reach of generally applicable laws. That is, if the law says no speeding, the First Amendment does not require an exception for faith-based drag-racing; if hunting bald eagles is prohibited, there is no constitutional right to kill them and use their feathers in religious ceremonies. Of course, the free-exercise clause does not permit governments to single out religious believers and activities for discrimination or special burdens. Nor does it permit the state to punish people because of their religious beliefs. But when it comes to securing special exemptions from general laws, the Court has told believers to look to the political process–to make their case in the public square–and not to the Constitution.
And so the UDV invoked the Religious Freedom Restoration Act, a law passed by Congress in 1993 precisely in order to provide more generous accommodations of religion than the First Amendment requires. Under the act, the federal government may not “substantially burden” a person’s exercise of religion, even through the imposition of generally applicable laws, unless it is the “least restrictive means” of advancing a “compelling” public interest.
The UDV won in the trial court, where the judge concluded that the government had failed to satisfy the act’s standard, and to justify its insistence on a no-exceptions hoasca ban. The federal court of appeals affirmed the decision. Next, in the Supreme Court, the government argued, among other things, that the federal drug laws establish a “closed system.” It conceded that the laws burden the UDV’s religious exercise, but nevertheless asserted that the simple fact that the Controlled Substances Act designates the hallucinogenic substance in hoasca as unsafe and highly susceptible to abuse should preclude any consideration, even under the religious-freedom law, of individualized exceptions for religious users.
In their February 21 opinion, Chief Justice Roberts and his colleagues rejected resoundingly this argument, insisting that the government cannot justify substantial burdens on religious exercise by asserting that uniformity is required. The chief justice emphasized that the religious-accommodations law “contemplate[s] an inquiry more focused than the Government’s categorical approach. RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to . . . the particular claimant whose sincere exercise of religion is being substantially burdened.” This is exactly right. As church-state expert Professor Thomas Berg put it, this is how RFRA “ensures that there will be a balance between religious freedom and government interests: if the government could define its interest as uniform enforcement of the law, it would always win.” In any event, as the Court pointed out, the government has for years allowed religious use of another illegal drug–peyote. Given this longstanding accommodation, it is all the more difficult to credit the government’s claim that its preference for exceptionless uniformity in the application of the drug laws should automatically outweigh religious-freedom interests.
There is more that could be said about this case and its significance. For now, though, two points are worth highlighting: First, like the Court’s decision last year in Cutter v. Wilkinson–which rejected the argument that another religious-accommodations law, the Religious Land Use and Institutionalized Persons Act, was an illegal “establishment” of religion–the ruling in O Centro Espirita was unanimous. True, the justices have been and remain sharply divided in church-state cases involving public displays and government funds; but when it comes to legislative accommodations of religious exercise, they are united in recognizing that the Constitution permits special accommodations of religion and in insisting that accommodations laws secured through the political process should be meaningfully enforced. The fact that the Constitution rarely requires accommodations and exemptions does not and should not mean that they are or should be disfavored. And, second: This reaffirmation that the “least restrictive means” and “compelling interest” requirements are not toothless is one that should shape courts’ interpretations and applications of many other religious-accommodations laws, federal and state.
Thinkers from St. Augustine and Pope Gregory VII to Roger Williams and James Madison have taught us that the “separation of church and state,” properly understood, is an important component of religious freedom. That is, the institutional and jurisdictional separation of religious and political authority, the independence of religion from government oversight and control, respect for the freedom of individual conscience, government neutrality with respect to different religious traditions, and a strict rule against formal religious tests for public office–all these “separationist” features of our constitutional order have helped religious faith to thrive in America. Properly understood, the separation of church and state is not an anti-religious ideology, but rather, as John Courtney Murray put it, a “means, a technique, [and] a policy to implement the principle of religious freedom.” And, as the Court’s decision reminds us, one permissible and praiseworthy way to implement this principle is through popularly enacted, reasonable, and balanced religious-accommodations laws.
–Richard W. Garnett is an associate professor at Notre Dame’s law school.