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AN E-BULLETIN
LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL
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The following 2 decisions were released today:
1. Gonzales v. O Centro Espírita Beneficente União do Vegetal
2. Buckeye Check Cashing, Inc. v. Cardegna

Due to technical difficulties, today's links will be to the Supreme
Court's PDF slip opinions.

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Gonzales v. O Centro Espírita Beneficente União do Vegetal (No. 04–
1084)
Web-accessible at:
http://a257.g.akamaitech.net/7/257/2...df/04-1084.pdf


Argued November 1, 2005—Decided February 21, 2006
Opinion author: Roberts
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Syllabus

GONZALES, ATTORNEY GENERAL, ET AL. v. O CENTRO ESPIRITA BENEFICENTE
UNIAO DO VEGETAL ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 04–1084. Argued November 1, 2005—Decided February 21, 2006

Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA)
in response to Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U. S. 872, where, in upholding a generally applicable law
that burdened the sacramental use of peyote, this Court held that the
First Amendment's Free Exercise Clause does not require judges to
engage in a case-by-case assessment of the religious burdens imposed by
facially constitutional laws, id., at 883–890. Among other things, RFRA
prohibits the Federal Government from substantially burdening a
person's exercise of religion, "even if the burden results from a rule
of general applicability," 42 U. S. C. §2000bb–1(a), except when the
Government can "demonstrat[e] that application of the burden to the
person (1) [furthers] a compelling government interest; and (2) is the
least restrictive means of furthering that . . . interest," §2000bb–
1(b).

Members of respondent church (UDV) receive communion by drinking
hoasca, a tea brewed from plants unique to the Amazon Rainforest that
contains DMT, a hallucinogen regulated under Schedule I of the
Controlled Substances Act, see 21 U. S. C. §812(c), Schedule I(c).
After U. S. Customs inspectors seized a hoasca shipment to the American
UDV and threatened prosecution, the UDV filed this suit for declaratory
and injunctive relief, alleging, inter alia, that applying the
Controlled Substances Act to the UDV's sacramental hoasca use violates
RFRA. At a hearing on the UDV's preliminary injunction motion, the
Government conceded that the challenged application would substantially
burden a sincere exercise of religion, but argued that this burden did
not violate RFRA because applying the Controlled Substances Act was the
least restrictive means of advancing three compelling governmental
interests: protecting UDV members' health and safety, preventing the
diversion of hoasca from the church to recreational users, and
complying with the 1971 United Nations Convention on Psychotropic
Substances. The District Court granted relief, concluding that, because
the parties' evidence on health risks and diversion was equally
balanced, the Government had failed to demonstrate a compelling
interest justifying the substantial burden on the UDV. The court also
held that the 1971 Convention does not apply to hoasca. The Tenth
Circuit affirmed.

Held: The courts below did not err in determining that the Government
failed to demonstrate, at the preliminary injunction stage, a compel
ling interest in barring the UDV's sacramental use of hoasca. Pp. 6–
19.

1. This Court rejects the Government's argument that evidentiary
equipoise as to potential harm and diversion is an insufficient basis
for a preliminary injunction against enforcement of the Controlled
Substances Act. Given that the Government conceded the UDV's prima
facie RFRA case in the District Court and that the evidence found to be
in equipoise related to an affirmative defense as to which the
Government bore the burden of proof, the UDV effectively demonstrated a
likelihood of success on the merits. The Government's argument that,
although it would bear the burden of demonstrating a compelling
interest at trial on the merits, the UDV should have borne the burden
of disproving such interests at the preliminary injunction hearing is
foreclosed by Ashcroft v. American Civil Liberties Union, 542 U. S.
656, 666. There, in affirming the grant of a preliminary injunction
against the Government, this Court reasoned that the burdens with
respect to the compelling interest test at the preliminary injunction
stage track the burdens at trial. The Government's attempt to limit the
Ashcroft rule to content-based restrictions on speech is unavailing.
The fact that Ashcroft involved such a restriction in no way affected
the Court's assessment of the consequences of having the burden at
trial for preliminary injunction purposes. Congress' express decision
to legislate the compelling interest test indicates that RFRA
challenges should be adjudicated in the same way as the test's
constitutionally mandated applications, including at the preliminary
injunction stage. Pp. 6–8.

2. Also rejected is the Government's central submission that, because
it has a compelling interest in the uniform application of the
Controlled Substances Act, no exception to the DMT ban can be made to
accommodate the UDV. The Government argues, inter alia, that the Act's
description of Schedule I substances as having "a high potential for
abuse," "no currently accepted medical use," and "a lack of
accepted safety for use . . . under medical supervision," 21 U. S. C.
§812(b)(1), by itself precludes any consideration of individualized ex-
ceptions, and that the Act's "closed" regulatory system, which prohib-
its all use of controlled substances except as the Act itself
authorizes, see Gonzales v. Raich, 545 U. S. ___, ___, cannot function
properly if subjected to judicial exemptions. Pp. 8–16.

(a) RFRA and its strict scrutiny test contemplate 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 per-son"—
the particular claimant whose sincere exercise of religion is being
substantially burdened. 42 U. S. C. §2000bb–1(b). Section 2000bb(b)(1)
expressly adopted the compelling interest test of Sherbert v. Verner,
374 U. S. 398, and Wisconsin v. Yoder, 406 U. S. 205. There, the Court
looked beyond broadly formulated interests justifying the general
applicability of government mandates, scrutinized the asserted harms,
and granted specific exemptions to particular religious claimants. Id.,
at 213, 221, 236; Sherbert, supra, at 410. Outside the Free Exercise
area as well, the Court has noted that "[c]ontext matters" in applying
the compelling interest test, Grutter v. Bollinger, 539 U. S. 306, 327,
and has emphasized that strict scrutiny's fundamental purpose is to
take "relevant differences" into account, Adarand Constructors, Inc. v.
Peña, 515 U. S. 200, 228. Pp. 9–10.

(b) Under RFRA's more focused inquiry, the Government's mere invocation
of the general characteristics of Schedule I substances cannot carry
the day. Although Schedule I substances such as DMT are exceptionally
dangerous, see, e.g., Touby v. United States, 500
U. S. 160, 162, there is no indication that Congress, in
classifyingDMT, considered the harms posed by the particular use at
issue. That question was litigated below. Before the District Court
found that the Government had not carried its burden of showing a
compelling interest in preventing such harm, the court noted that it
could not ignore the congressional classification and findings. But
Congress' determination that DMT should be listed under Schedule I
simply does not provide a categorical answer that relieves the Gov-
ernment of the obligation to shoulder its RFRA burden. The Controlled
Substances Act's authorization to the Attorney General to "waive the
requirement for registration of certain manufacturers, distributors, or
dispensers if he finds it consistent with the public health and
safety," 21 U. S. C. §822(d), reinforces that Congress' findings with
respect to Schedule I substances should not carry the determinative
weight, for RFRA purposes, that the Government would ascribe to them.
Indeed, despite the fact that everything the Government says about the
DMT in hoasca applies in equal measure to the
mescaline in peyote, another Schedule I substance, both the Executive
and Congress have decreed an exception from the Controlled Substances
Act for Native American religious use of peyote, see 21 CFR §1307.31;
42 U. S. C. §1996a(b)(1). If such use is permitted in the face of the
general congressional findings for hundreds of thousands of Native
Americans practicing their faith, those same findings alone cannot
preclude consideration of a similar exception for the 130 or so
American members of the UDV who want to practice theirs. See Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547. The
Government's argument that the existence of a congressional exemption
for peyote does not indicate that the Controlled Substances Act is
amenable to judicially crafted exceptions fails because RFRA
plainlycontemplates court-recognized exceptions, see §2000bb–1(c). Pp.
11–13.

(c) The peyote exception also fatally undermines the Govern-ment's
broader contention that the Controlled Substances Act establishes a
closed regulatory system that admits of no exceptions under RFRA. The
peyote exception has been in place since the Controlled Substances
Act's outset, and there is no evidence that it has undercut the
Government's ability to enforce the ban on peyote use by non-Indians.
The Government's reliance on pre-Smith cases asserting a need for
uniformity in rejecting claims for religious exemptions under the Free
Exercise Clause is unavailing. Those cases did not embrace the notion
that a general interest in uniformity justified a substantial burden on
religious exercise, but instead scrutinized the asserted need and
explained why the denied exemptions could not be accommodated. See,
e.g., United States v. Lee, 455 U. S. 252, 258, 260. They show that the
Government can demonstrate a compelling interest in uniform application
of a particular program by offering evidence that granting the
requested religious accommodations would seriously compromise its
ability to administer the program. Here the Government's uniformity
argument rests not so much on the particular statutory program at issue
as on slippery slope concerns that could be invoked in response to any
RFRA claim for an exception to a generally applicable law, i.e., "if I
make an exception for you, I'll have to make one for everybody, so no
exceptions." But RFRA operates by mandating consideration, under the
compelling interest test, of exceptions to "rule[s] of general
applicability." §2000bb–1(a). Congress' determination that the
legislated test is "workable . . . for striking sensible balances
between religious liberty and competing prior governmental interests,"
§200bb(a)(5), finds support in Sherbert, supra, at 407, and Cutter v.
Wilkinson, 544 U. S. ___, ___. While there may be instances where a
need for uniformity precludes the recognition of exceptions to
generally applicable laws under RFRA, it would be surprising to find
that this was such a case, given the longstanding peyote exemption and
the fact that the very reason Congress enacted RFRA was to respond to a
decision denying a claimed right to sacramental use of a controlled
substance. The Government has not shown that granting the UDV an
exemption would cause the kind of administrative harm recognized as a
compelling interest in, e.g., Lee. It cannot now compensate for its
failure to convince the District Court as to its health or diversion
concerns with the bold argument that there can be no RFRA exceptions at
all to the Controlled Substances Act. Pp. 13–16.

3. The Government argues unpersuasively that it has a compelling
interest in complying with the 1971 U. N. Convention. While this Court
does not agree with the District Court that the Convention does not
cover hoasca, that does not automatically mean that the Government has
demonstrated a compelling interest in applying the Controlled
Substances Act, which implements the Convention, to the UDV's
sacramental use. At this stage, it suffices that the Government did not
submit any evidence addressing the international consequences of
granting the UDV an exemption, but simply relied on two affidavits by
State Department officials attesting to the general (and undoubted)
importance of honoring international obligations and maintaining the
United States' leadership in the international war on drugs. Under
RFRA, invocation of such general interests, standing alone, is not
enough. Pp. 16–18.
389 F. 3d 973, affirmed and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which all other
Members joined, except ALITO, J., who took no part in the consideration
or decision of the case.

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