Tea case could cause religious liberty tempest

UPDATED FEB. 21, 2006: On Tuesday the U.S. Supreme Court ruled unanimously that a small religious group that combines Christianity and Native American practices can use hallucinogenic tea in its ceremonies. The core of the case – what happens to the First Amendment right to freely exercise religion when it conflicts with federal law – could change the rules for every religious group in America. A wide variety of religious groups – from conservative to liberal – representing millions of members have filed briefs supporting O Centro Espirita Beneficiente Uniao Do Vegetal, or UDV as it is known.

The case is the first religious freedom case to be decided under Chief Justice John Roberts. The court ruled that the U.S. government had no right to seize tea from the church or to ban its use.

UDV is a small Brazilian religious sect that has about 10,000 members in the United States, where they are based in New Mexico. Members use a hallucinogenic tea during worship ceremonies in order to help them gain union with God. The case, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, began when federal agents seized the tea, which is classified as a controlled substance. The case is considered pivotal for several reasons:

• It has the potential to change the precedent from a landmark 1990 Supreme Court case involving the use of peyote for ceremonial purposes. That ruling – in Employment Division v. Smith – changed the prevailing legal test for free exercise cases. Before the case, the state had to prove it had a “compelling interest” that trumped a religious group’s First Amendment right to exercise its religion. In Smith, the court ruled that as long as a law didn’t target a religious group and was generally applicable to the whole population – in this case, a law that banned use of peyote – it was acceptable, even if it unintentionally affected one group, such as Native Americans, more than others. Many religious groups were outraged, fearing that, say, if a legislature banned wine on Sunday then Roman Catholics who used it at Mass would have no redress under the First Amendment – instead, they would have to persuade the legislature to pass a special exemption for them.
• The case is considered a test of the RFRA federal law, passed in 1993, which restored the compelling-interest test and said it should apply in all cases where religious exercise is substantially burdened. In 1997, the Supreme Court ruled that RFRA doesn’t apply to state and local governments. Religious liberty advocates fear that the Supreme Court could rule in the UDV case that RFRA doesn’t apply to federal law, either, significantly reducing protections for religious adherents.
• Legal experts say any ruling in the UDV case that steers religious groups toward legislative remedies in free exercise cases while reducing their constitutional options would have profound effects, particularly for minority faiths. Larger groups – Roman Catholics or evangelicals — would likely have an easier time marshalling support for legislative protection for faith practices, while smaller groups – particularly those with less mainstream practices – would likely have a much harder time getting legislative support. Free exercise of religion, in effect, could become a popularity contest if its main protection rested in legislative remedies, legal experts say.

Why it matters
The right to free exercise of religion is a bedrock value of the First Amendment. It is held in tension with Americans’ right to be free from the government establishing one religion over another.

National sources

IN FAVOR OF ALLOWING USE OF THE TEA
• O Centro Espirita Beneficiente Uniao Do Vegetal‘s U.S. base is in Santa Fe, N.M. The group prefers that the media contact it via email, udvbr@opengate.com.br.
• Nancy Hollander of Freedman, Boyd, Daniels, Hollander & Goldberg in Albuquerque, N.M., is the attorney representing the UDV. Contact 505-842-9960.
• Mark E. Chopko is general counsel for the United States Conference of Catholic Bishops in Washington, D.C., which filed an amicus brief in support of UDV. The brief says there are severe negative consequences for religion if UDV loses its case. Contact 202-541-3300.
• Gene K. Schaerr is counsel of record for an amicus curiae supporting UDV that represents 17 religious organizations, including the National Association of Evangelicals, the Baptist Joint Committee, the Institute on Religion and Public Policy, the First Church of Christ Scientist, the Union for Reform Judaism, the Sikh Coalition and the Muslim Minaret of Freedom Institute. Read an excerpt of the brief posted by UDV with links to the full brief. Contact Schaerr in Washington, D.C., 202-282-5000.
• Anthony Picarello Jr. filed an amicus brief supporting UDV on behalf of the Becket Fund for Religious Liberty. Contact 202-955-0095.
• Lee Boothby is a lawyer and vice president of the International Academy for Freedom of Religion and Belief. His organization has filed an amicus brief in support of UDV. Contact 202-363-1773.
• Kelly Shackelford is chief counsel for the Liberty Legal Institute, a Texas law firm that works to preserve religious freedom. His firm filed an amicus brief in support of UDV. Contact 972-423-3131.
• Jeremy Gunn is director of the American Civil Liberties Union’s new Program on Freedom of Religion and Belief. The ACLU has filed an amicus brief in support of UDV. Contact 212-549-2500, media@aclu.org.
• Gregory Baylor is director of the Christian Legal Society and says outlawing sacramental tea is the equivalent of banning the wine served at a Roman Catholic Mass. Contact 703-642-1070, clshq@clsnet.org.
AGAINST ALLOWING USE OF THE TEA
• Paul D. Clement is a solicitor general for the U.S. Department of Justice and represents the government in the case. Contact 202-514-2217.
• Marci A. Hamilton is a professor of public law at the Cardozo School of Law at Yeshiva University in New York. She opposes the UDV because she contends that the Religious Freedom Restoration Act usurps the U.S. Supreme Court’s power to interpret the establishment clause. She represents people who are suing Roman Catholic archdioceses for alleged sex abuse by priests and contends that some church defendants are using the act to prevent federal bankruptcy laws from being applied to them in ways that would require them to compensate victims. She wrote the book God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press, 2005). Contact 212-790-0215, hamilton02@aol.com.
• Annie Laurie Gaylor is co-president of the Freedom From Religion Foundation, an educational group based in Madison, Wis., that promotes the separation of church and state. Gaylor says the UDV case causes concern because a religious group is seeking to be exempt from the law by using an illegal substance and, she says, offering it to minors. Contact 608-256-8900, algaylor@ffrf.org (phone preferred).
ACADEMIC
• Derek Davis directs the J.M. Dawson Institute of Church-State Studies at Baylor University in Waco, Texas. He says there are dangers in allowing religious freedom to be left in the hands of state legislatures, as it was in the 1990 Smith peyote case, or in the hands of Congress, as it could be depending on the outcome of the tea case. He co-edited the book New Religious Movements and Religious Liberty in America, Second Edition (J.M. Dawson Institute of Church-State Studies, 2002). Contact 254-710-1510, Derek_davis@baylor.edu.
• Charles C. Haynes, senior scholar for religious freedom at the Freedom Forum First Amendment Center in Arlington, Va., says if the Supreme Court decides that the RFRA law does not apply to the federal government, it would be another strong blow that helps erase the free exercise clause from the First Amendment. Contact 703-284-2859, chaynes@freedomforum.org.
• John Witte Jr. is a professor of law and ethics and director of the Law and Religion Program at the school of law at Emory University in Atlanta. He wrote the book Religion and the American Constitutional Experiment: Essential Rights and Liberties, Second Edition (Westview Press, 2004). Contact 404-727-6980, jwitte@law.emory.edu.

Background

THE UDV TEA CASE
• Read the petition to the U.S. Supreme Court in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal.
• The UDV religion in the United States has a web page with resources for covering the case, including a FAQ and background links.
• Read the First Amendment Center’s resource page on Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal. It includes amicus briefs filed for both sides of the case.
• Read Northwestern University’s Medill resource page on Gonzales v. UDV.
• Georgetown University’s law school presented a moot court exercise based on the tea case in August 2005. Read a summary of the arguments in the case.
OTHER LEGAL BACKGROUND
• Read the First Amendment Center’s article on the free exercise clause, which includes a discussion of how Employment Division v. Smith, the 1990 peyote case, changed the legal precedent for religious groups whose practices conflict with state law.
• Read about the legal status of peyote, including the 1993 federal statute that allowed members of the Native American Church to ingest peyote as part of religious ceremonies and state laws granting exemptions for Native Americans’ ceremonial use of peyote. The information is posted by the Peyote Foundation.
• Read the U.S. Supreme Court’s decision in the 1990 peyote case, Employment Division, Oregon Department of Human Resources v. Smith 494 U.S. 872.
• The Pew Forum on Religion & Public Life offers resources for covering the UDV case.
ARTICLES
• See an Oct. 31, 2005, Christian Science Monitor story about the UDV case.
• Read a June 2005 article about the tea case posted by Americans United for Separation of Church and State.
• Read a June 24, 2004, Associated Press story about the Utah Supreme Court ruling that non-native Americans can use peyote in religious ceremonies. The article is posted by the First Amendment Center.
• Read an April 19, 2005, Christian Science Monitor article on the UDV case.
• Read the April 19, 2005, article “Religious-tea dispute brings RFRA back to high court” from the First Amendment Center.

Regional sources

STATE BY STATE
• See links to organizations that promote religious freedom on a page assembled by Jeffrey K. Hadden, an author and teacher at the University of Virginia.
IN THE NORTHEAST
• David Wayne Machacek is a visiting assistant professor at the Public Policy Center for the Study of Religion in Public Life at Trinity College in Hartford, Conn. He co-wrote the book Religion on Trial: How Supreme Court Trends Threaten Freedom of Conscience in America (AltaMira Press, 2004). Contact 860-297-2353, david.machacek@trincoll.edu.
• Vincent Phillip Munoz is an assistant professor of political science at Tufts University in Medford, Mass. He wrote the article “James Madison’s Principle of Religious Liberty” for the American Political Science Review (2003). Contact 617-627-2658, Phillip.Munoz@tufts.edu.
IN THE EAST
• Philip Jenkins is a professor of history and religious studies at Pennsylvania State University in University Park. He wrote the essay “The Politics of Persecuted Religious Minorities” for the book Religion and Security: The New Nexus in International Relations (Rowman & Littlefield, 2004). Contact 814-863-8946, jpj1@psu.edu.
• Noah Feldman is an associate professor at the School of Law at New York University. He wrote the book Divided by God: America’s Church-State Problem-And What We Should Do About It (Farrar, Straus and Giroux, 2005). Contact 212-998-6711, noah.feldman@nyu.edu.
• Roger K. Finke is a professor of sociology at Pennsylvania State University at University Park. He wrote the article “Religious Regulation and the Courts: The Judiciary’s Changing Role in Protecting Minority Religions from Majoritarian Rule” for the Journal for the Scientific Study of Religion (2001). Contact 814-865-6257, rfinke@psu.edu.
• W. Clyde Wilcox is a professor of American government at Georgetown University in Washington, D.C. He wrote the article “Public Opinion on Church-State Issues in a Changing Environment” for the Journal for the Scientific Study of Religion (2001). Contact 202-687-5273, wilcoxc@georgetown.edu.
IN THE SOUTHEAST
• Davison M. Douglas is director of the Election Law Program at the Marshall-Wythe School of Law at the College of William and Mary in Williamsburg, Va. He wrote the essay “‘Christian Nation’ as a Concept in Supreme Court Jurisprudence” for Religion and American Law: An Encyclopedia (Garland Publishing, 1999). Contact 757-221-3853, dmdoug@wm.edu.
• Richard C. Schragger is an associate professor at the school of law at the University of Virginia in Charlottesville. He wrote the article “The Role of the Local in the Doctrine and Discourse of Religious Liberty” for the Harvard Law Review (2004). Contact 434-924-3641, schragger@virginia.edu.
IN THE SOUTH
• The Rev. Lewis V. Baldwin is a professor of religious studies at Vanderbilt University in Nashville, Tenn. He edited the book The Legacy of Martin Luther King Jr.: The Boundaries of Law, Politics, and Religion (University of Notre Dame Press, 2002). Contact 615-322-6339, Lewis.V.Baldwin@vanderbilt.edu.
• William G. Ross is a professor at the school of law at Samford University in Birmingham, Ala. He is an expert on religious liberties. Contact 205-726-2889, wgross@samford.edu.
• Timothy L. Hall is a professor at the school of law at the University of Mississippi in Oxford. He wrote the article “Omnibus Religious Liberty Protection and the Establishment Clause” for the Cardozo Law Review (1999) and the book Separating Church and State: Roger Williams and Religious Liberty (University of Illinois Press, 1998). Contact 662-915-6847, lwhall@olemiss.edu.
• Catherine Wessinger is a professor of religious studies at Loyola University New Orleans. She wrote the essay “New Religious Movements and Conflicts with Law Enforcement” for the book New Religious Movements and Religious Liberty in America (J.M. Dawson Institute of Church-State Studies, 2002). Please note that because of Hurricane Katrina, the university will be closed until January. Contact 504-865-3182, wessing@loyno.edu.
IN THE MIDWEST
• David E. Wilkins is co-author of Uneven Ground: American Indian Sovereignty and Federal Law (University of Oklahoma Press, 2001) and associate professor of American Indian studies, political science and law at the University of Minnesota, Twin Cities. Contact 612-624-1634, wilkinsd@tc.umn.edu.
• Kevin R. den Dulk is assistant professor of political science at Grand Valley State University in Allendale, Mich. He wrote the article “So Help Me God: Explaining the Recent Rise in Religious Group Litigation in the U.S. and Beyond” for the Georgia Journal of International and Comparative Law (2001). Contact 616-331-2991, dendulkk@gvsu.edu.
• Scott C. Idleman is a professor at the law school at Marquette University in Milwaukee. He wrote the article “Religious Premises, Legislative Judgments and the Establishment Clause” for the Cornell Journal of Law & Public Policy (2002). Contact 414-288-5362, scott.idleman@marquette.edu.
• Thomas C. Berg is a professor at the school of law at the University of St. Thomas in Minneapolis. He wrote the article “Minority Religions and the Religion Clauses” for the Washington University Law Review (2004). Contact 651-962-4918, tcberg@stthomas.edu.
• James Hitchcock is a professor of history at Saint Louis University. He wrote the book The Supreme Court and Religion in American Life, Vol. 2: From “Higher Law” to “Sectarian Scruples” (Princeton University Press, 2004). Contact 314-977-2910, hitchcpj@slu.edu.
IN THE SOUTHWEST
• K. Tsianina Lomawaima is co-author of Uneven Ground: American Indian Sovereignty and Federal Law (University of Oklahoma Press, 2001) and professor of American Indian studies at the University of Arizona. Contact 520-626-9772, lomawaim@u.arizona.edu.
• Douglas Laycock filed an amicus brief in support of UDV. He is Alice McKean Young Regents Chair in Law and associate dean for research at the University of Texas School of Law in Austin. Contact 512-232-1341, dlaycock@mail.law.utexas.edu.
• W. Cole Durham Jr. is director of the International Center for Law and Religion Studies at Brigham Young University in Utah. He is a member of several U.S. and international advisory boards dealing with religious freedom and church-state relations. Contact 800-422-2281, durhamc@lawgate.byu.edu.
• Michael S. Ariens is a professor of church and state for the school of law at St. Mary’s University in San Antonio, Texas. He wrote the essay “Religion in the Courtroom” for the book Religions of the World: A Comprehensive Encyclopedia of Beliefs and Practices (ABC-Clio, 2002). Contact 210-431-2009, mariens@stmarytx.edu.
• Paul Finkelman is a professor at the college of law at the University of Tulsa in Oklahoma. He co-wrote the book Landmark Decisions of the United States Supreme Court (CQ Press, 2003). Contact 918-631-3706, paul-finkelman@utulsa.edu.
IN THE WEST/NORTHWEST
• Michal R. Belknap is a professor of law at California Western School of Law in San Diego, Calif. He wrote the essay “Cults and the Law” for the book Religion and American Law: An Encyclopedia (Garland Publishing, 1999). Contact 619-525-1457, mbelknap@cwsl.edu.
• James T. Richardson is director of the Judicial Studies Program at the University of Nevada, Reno. He wrote the essay “Public Policy Toward Minority Religions in the United States: A Model for Europe?” for the book Religion and Public Policy (AltaMira, 2001). Contact 775-784-6270, jtr@unr.edu.
• Eugene Volokh is a professor at the School of Law at the University of California, Los Angeles. He wrote the article “Freedom of Speech, Religious Harassment Law, and Religious Accommodation Law” for the Loyola University of Chicago Law Review (2001). Contact 310-206-3926, volokh@law.ucla.edu.
• Stephen Matthew Feldman is a professor at the college of law at the University of Wyoming in Laramie. He edited the book Law and Religion: A Critical Anthology (New York University Press, 2000). Contact 307-766-4250, sfeldman@uwyo.edu.
• Alan E. Brownstein is a professor at the School of Law at the University of California, Davis. He wrote the essay “Equal Protection Clause and the Free Exercise of Religion” for the book Religion and American Law: An Encyclopedia (Garland Publishing, 1999). Contact 530-752-2586, aebrownstein@ucdavis.edu.
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