High tea: when law and religious practice conflict

Christian Century, Nov 1, 2005 by Thomas C. Berg

The UDV's witnesses also have testified that diversion to other uses is unlikely because no significant traffic exists in hoasca, drinking the tea often causes nausea and vomiting, and UDV strictly forbids members to ingest it outside of worship services.

Many of these features of hoasca resemble those of peyote--which has been used for years by some 250,000 Native American worshipers under federal and state exemptions, with no significant record of health problems or illicit use--and differ greatly from those of drugs that have a large recreational market.

Finally, the government argues that permitting importation of hoasca would violate U.S. obligations under an international drug-control treaty. The UDV has replied that, among other things, the treaties make provision for accommodation of sacramental uses.

The judge who heard this conflicting evidence found it "virtually in equipoise." He ruled for the UDV--correctly, in my view--because the government bore the burden of proof under RFRA in two ways that are crucial to the statute's protection of religious freedom. First, RFRA requires the government to prove the necessity of its law not in general but in its application to the particular religious conduct involved. So the issue is not DMT's general dangerousness, but its dangerousness in the hoasca drink when consumed in the controlled circumstances of the UDV ritual.

Focusing on the danger in the particular religious context is sensible, indeed crucial, for protecting religious freedom. It allows sincere believers to practice their faith in that context, and the government still to apply its law in the vast majority of cases. If the federal government could simply assert the general need for a law, religious freedom would almost never prevail. Nearly all laws serve some important social purpose in the abstract.

Second, the judge noted that under RFRA the government must prove more than just some risk of harm. Since "compelling interest" is legal phraseology for a very demanding standard, the harm in question must be serious and the likelihood of its occurring great.

Applying these principles vigorously is important for the religious freedom of all faiths. In the Christian tradition, the argument for accommodating religion in the face of a general law stems from the priority of conscience over government. As James Madison, trained by Calvinists at Princeton, wrote in his famous Memorial and Remonstrance, duties to God are "precedent both in order of time and degree of obligation to the claims of civil society." Government, of course, has authority to make general laws to preserve peace, welfare and others' rights, and one can even argue that there is no general constitutional right to exemptions from such laws. But a government that makes such accommodations, through means such as RFRA, should be commended for respecting its limits and treading on conscience only where necessary.

Marci Hamilton, a leading opponent of RFRA, argues in her book God and the Gavel that RFRA immunizes believers and churches from the rule of law, giving them carte blanche to harm others. She points to cases of obvious harm being done in religious settings: the sexual abuse of children by priests, the deaths of children whose parents refused medical treatment. Her arguments have had some appeal to mainline and liberal Christian leaders who worry about religious triumphalism and appreciate the wrongs that religion can do.