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Roberts upholds religious freedom in his first Native rights decision

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WASHINGTON -- Chief Justice John Roberts took the side of indigenous
religious freedom in his first written Indian law opinion since joining the
U.S. Supreme Court.

In Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, decided on
Feb. 21, Roberts upheld a lower court injunction against U.S. Customs
inspectors who had seized a shipment of hoasca, a hallucinogenic tea brewed
from plants found only in the Amazon rain forest. The hoasca was destined
for sacramental use by American members of a Brazilian sect, the Centro
Espirita Beneficente Uniao do Vegetal (UDV). Hoasca contains DMT, a
chemical regulated by the federal Controlled Substances Act.

Roberts rejected the government claim that it was entitled to hamper the
"sincere exercise" of the UDV religion for the sake of applying the act
uniformly. He ruled that the Religious Freedom Restoration Act of 1993
required the government to show that its ban on the tea was "the least
restrictive means" of furthering its interest in controlling hallucinogenic

The RFRA, designed to protect adherents of the Native American Church,
figured notably in Roberts' recent confirmation hearings. The act was a key
issue in a long-simmering dispute between Congress and the Supreme Court.
It passed in 1993 as a congressional attempt to overturn a 1990 Supreme
Court ruling that allowed the state of Oregon to punish two American
Indians for participating in the peyote rite (See Employment Division,
Department of Human Resources of Oregon v. Smith). The court, in turn,
declared parts of the act unconstitutional, saying that Congress had
exceeded its authority in extending religious freedom as a barrier against
state law. (See City of Boerne v. Flores.)

Resentment against this override emerged in the Senate Judiciary Committee
hearings on Roberts and the subsequent floor debate. U.S. Sen. Arlen
Specter, R.-Pa., dealt with it at length, although press coverage mocked
his technical language.

Roberts disposed of the controversy in a quick footnote, saying the Boerne
ruling applied only to state law. His holding struck a conciliatory note in
what has been, in effect, a slow-motion constitutional crisis between
Congress and the court. "Congress had a reason for enacting RFRA, too," he
reminded the government prosecutors.

"Congress recognized that 'laws neutral towards religion may burden
religious exercise as surely as laws intended to interfere with religious
exercise,' and legislated the 'compelling interest test' as the means for
the courts to 'strike sensible balances between religious liberty and
competing prior governmental interests.'"

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He acknowledged that "we have no reason to pretend that the task ... is an
easy one." But he deferred to congressional intent. "But Congress has
determined that courts should strike sensible balances."

Part of Roberts' opinion appeared to worry advocates of the Native American
Church, however. Roberts cited the federal law exception for Indian use of
peyote in justifying a "similar exception for the 130 or so American
members of the UDV." Government lawyers had argued that the peyote
exception was based on the "unique relation" between the United States and
the tribes. Roberts retorted that the government brief "never explains what
about that 'unique' relation justifies overriding the same congressional
finding on which the government relies in resisting any exception for the
UDV's religious use of hoasca.

"In other words," he continued, if any controlled substance "is in fact
always highly dangerous in any amount no matter how used, what about the
unique relationship with the Tribes justifies their use of peyote?"

Some critics appear to have seen this passage as the entering wedge of
Roberts' call as a private lawyer for the rethinking of the federal trust
relationship with tribes. But Roberts was specifically ridiculing the
government's position that there should be no exceptions to the Controlled
Substances Act.

"The Government's argument echoes the classic rejoinder of bureaucrats
throughout history," he wrote. "If I make an exception for you, I'll have
to make one for everybody, so no exceptions."

Instead, he wrote, "Congress determined that the legislated test 'is a
workable test for striking reasonable balances between religious liberty
and competing prior governmental interests.'"

The decision was unanimous, except for newly confirmed Justice Samuel
Alito, who took no part in considering the case.