Dude, Which Religion Do I Have to Join to Get Some Drugs? How the Supreme Court Got it Wrong in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.s. 418 (2006)

• Jurisdiction: United States,Federal
• Citation: Vol. 86
• Publication year: 2021

86 Nebraska L. Rev. 987. Dude, Which Religion Do I Have to Join to Get Some Drugs? How the Supreme Court Got it Wrong in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418 (2006)

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Note(fn*)

Dude, Which Religion Do I Have to Join to Get Some Drugs? How the Supreme Court Got it Wrong in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418 (2006)

TABLE OF CONTENTS

I. Introduction ...................................................... 988
II. History: The Religious Freedom Restoration Act and Its
Historically Based Meaning ....................................... 989
A. The Beginning Up to Sherbert v. Verner and
Wisconsin v. Yoder ............................................ 989
B. Employment Division, Department of Human
Resources, Oregon v. Smith and the Religious
Freedom Restoration Act ....................................... 992
III. Gonzales v. O Centro Espirita Beneficiente Uniao Do
Vegetal ......................................................... 994
IV. Analysis ......................................................... 996
A. Historical Treatment of the Compelling Interest
Test in the Free Exercise Context ............................. 996
1. Health and Welfare Carveouts in Sherbert v.
Verner and Yoder v. Wisconsin .............................. 996
2. Treatment of Drug Cases Under the Compelling
Interest Test .............................................. 999
B. The Supreme Court Should Have Acknowledged the
Government's Interest in Preventing Numerous
Exemptions .................................................... 1001

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C. Lack of Uniformity Resulting From a Rough
Balancing of the Physical "Harm" Consideration ................ 1003
V. Conclusion ........................................................ 1005

I. INTRODUCTION

The case, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal,(fn1) [hereinafter O Centro] provides the disturbing result that any person who is, or becomes, a member of a particular church is permitted to use an otherwise illegal hallucinogenic drug, hoasca, because of his or her religious affiliation.(fn2) The drug hoasca contains DMT,(fn3) which, under the Controlled Substances Act, is a Schedule One drug.(fn4) This means that the drug is not approved for any medicinal use and falls into the same category as drugs such as cocaine, marijuana, and methamphetamines.(fn5) Further, the classification of this drug is not merely arbitrary as there are scientific studies that show that it causes serious adverse effects, including the inability to focus and perceptual distortions including hallucinations.(fn6)

Overall, the Supreme Court's departure from existing free exercise precedent in O Centro is inappropriate, may lead to the evisceration of the Controlled Substances Act, and certainly will lead to inconsistent results in similar claims. Under the applicable legal standard, the "compelling interest test" that is required under the Religious Freedom Restoration Act (RFRA),(fn7) and at one time was the Supreme Court's established precedent,(fn8) the Court has never granted a religious group the right to use otherwise illegal drugs for religious pur-poses.(fn9) Further, the Court did not fully consider the overall impact of the precedent created by this decision on the enforcement of the Con

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trolled Substances Act,(fn10) which would not be substantially harmed by a single exemption, but would be greatly harmed by many exemptions. Finally, the Supreme Court ensured that there would be inconsistent results in future RFRA claims related to drug use by leaving the district courts to determine how harmful an illegal drug must be before a claimant is not permitted to use it.(fn11)

Section III.A analyzes the compelling interest test as it is applied in the free exercise context prior to 1990 and points out how O Centro is inconsistent with this precedent. Then, section III.B explores the destructive influence of the Court's failure to weigh the future impact of the exemption on the Controlled Substances Act caused by the Supreme Court's failure to adequately consider the effect of this case on precedent. Finally, section III.C explains why it is imprudent for the Supreme Court to allow federal district courts to determine RFRA free exercise claims for drug usage without further guidance than is provided in O Centro.

II. HISTORY: THE RELIGIOUS FREEDOM RESTORATION ACT AND ITS HISTORICALLY BASED MEANING

The Religious Freedom Restoration Act [hereinafter RFRA], as applied in O Centro, was drafted in response to Employment Division, Department of Human Resources of Oregon v. Smith(fn12) [hereinafter Smith], which decreased the Constitutional protection of the First Amendment free exercise right by changing the standard of review on such claims.(fn13) The purpose of the Act was to provide increased protection to free exercise claimants by making it more difficult for the government to enforce laws that infringe upon religious practices. Prior to Smith, the explicit standard of review for a free exercise claim had been more favorable to claimants, as evidenced in Sherbert v. Verner(fn14) and Wisconsin v. Yoder.(fn15) RFRA was Congress' attempt to "turn back the clock" to Sherbert and Yoder.

A. The Beginning up to Sherbert v. Verner and Wisconsin v. Yoder

Sherbert v. Verner(fn16) and Wisconsin v. Yoder(fn17) set forth the "compelling interest" test that is now the applicable test under the

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RFRA.(fn18) Prior to these cases, the Supreme Court had adopted a position that the "freedom to believe" should be protected but the "freedom to act" should not be.(fn19) Then during the 1940s and 1950s, the Court struck down laws which interfered with the right to act in conformity with religious beliefs because the laws interfered with free speech rights.(fn20) The Supreme Court then broke with earlier precedent in the Sherbert and Yoder decisions by extending protection to certain religiously motivated actions under the free exercise clause, even though these actions would otherwise be unlawful.(fn21) In these cases, the Court used the compelling interest test to balance the interests of the government in having a law upheld versus the interests of a claimant in practicing his religion.

The compelling interest test is designed to measure whether a law (that is not designed to discriminate against religious practices) creates an "undue burden" on the religious practices of the claimant. In the first step, the claimant must show that the law interferes with his religion by requiring him to perform an act which his religion prohibits or the law prohibits him from performing an act which his religion requires.(fn22) For example, the claimant met this requirement in Sherbert where an unemployment law required her to be available to work on Saturday to be eligible for benefits, but her religious beliefs required her to worship and not work on Saturday.(fn23) However, the requirement is not met when a law indirectly makes it more costly to practice a certain religion. For example, in McGowan v. Maryland,(fn24) a Jewish shopkeeper's economic hardship due to Sunday closing laws was not sufficient to meet this requirement, even though his religion required him to also close his store on Saturday, and thus only be open five days per week, whereas the Christian shopkeepers could have their stores open six days a week.(fn25) In the second step, the claimant must show that the practice at issue is central to the religion and that his belief is sincerely held.(fn26) This is largely subjective, but tends to root out claims where the claimant engages in an illegal activity where the religion permits, or suggests the activity, but does not require it.(fn27) Finally, the government bears the burden of proving that

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the conflicting law is the least restrictive means of accomplishing a compelling government interest.(fn28) In this part of the test, the Court weighs the government's asserted interest against that of the free exercise claimant.(fn29) The Court used this test in Sherbert and Yoder and continued to apply it explicitly until Employment Division, Department of Human Resources, Oregon v. Smith.(fn30)

In Sherbert, the Court held that the claimant must receive unemployment benefits even though she was unable to fulfill all the eligibility requirements due to her religious beliefs.(fn31) The claimant, a Seventh-Day Adventist, lost her job when she was required to work on Saturday, but could not do so because her religious beliefs required her to worship on Saturday.(fn32) The unemployment law came into direct conflict with the woman's beliefs since it required her to be available for work on Saturdays in order to receive benefits.(fn33) The Court held that the State's interest in preventing people from fraudulently claiming a religious exemption and collecting unemployment was not sufficiently compelling to justify denying a practicing Seventh-Day Adventist unemployment funds.(fn34)

In Yoder, Amish parents claimed "that their children's attendance at high school, public or private, was contrary to the Amish religion and way of life . . . [because the children] would not only expose themselves to the danger of the censure of the church community, but . . . also endanger their own salvation and that of their children."(fn35) The Court concluded that the law that required the Amish children to attend school was a substantial burden on their free exercise, primarily for the aforementioned reasons,(fn36) and then noted that there were other, less restrictive, means through which the Amish were accomplishing the State's goal of educating children to be good citizens, "selfreliant" and "self-sufficient."(fn37) The Court decided that the Amish essentially fulfilled the purpose of the education law by providing an education...