After years of regarding international treaties as, at best, an inconvenience to be worked around, the Bush administration has finally decided that they might have some value after all. This article at Law.com details how the administration plans to invoke the 1971 United Nations Convention on Psychotropic Substances in appealing to the Supreme Court to rule against a Brazilian sect with a tiny presence in New Mexico.
In previous court battles, the group (O Centro Espirita Beneficiente Uniao Do Vegetal) has invoked the Religious Freedom Restoration Act- the same act that permits certain Native American sects to use peyote in their religious rituals- to prove the legality of their ongoing use of a tea containing small amounts of dimethyltryptamine (DMT). DMT, which occurs naturally in the brain and in a number of South American plant species, is a Schedule I drug under the Controlled Substances Act. However, the Religious Freedom Restoration Act asserts that even if a religious practice is in violation of a more generally applicable law, the state can not ‘substantially burden’ the practice of religion without demonstrating that there is a compelling interest in doing so, and that the least restrictive means are employed to secure that interest.
So far, the courts have found that the government lacks such a compelling interest. Clearly, the administration can’t just argue that permitting the use of DMT in religious exercises undermines the Controlled Substances Act, since the entire intent of the Religious Freedom Restoration Act is to provide for exceptions to Federal laws that unintentionally (or intentionally!) burden religious practice. Instead, the White House would like to argue that permitting an exception for religious use of DMT would conflict with the state’s obligation to comply with the UN convention. It seems that the Bush administration has picked an odd time to become a stickler for UN approval.
If I had to guess, I would say that the Bush administration’s drug warriors are looking at the increasing interest in limited legalization efforts that have sprung up in many states. While many efforts have failed, every medical marijuana or legal possession ballot initiative presents the federal government with the specter of legal drug use in the states. As the RFRA does not apply to state laws, a state government would need to enact some sort of drug liberalization in order to provide complete protection from prosecution. But with a state law and an appeal to the RFRA, citizens in drug-progressive states would have a clear platform to challenge the federal government’s right to enforce their views on drug policy. And who knows? If using recreational drugs in a religious context gains acceptance, it could be a stepping stone to wider general acceptance, and more rational substance control policies. Imagine how terrible that would be.
There are some interesting Constitutional issues involved in the Religious Freedom Restoration Act. Initially, the RFRA applied to state laws as well, but that provision was struck down in a Supreme Court dispute over the power of Congress and the Court to interpret the Constitution. You can read a little more about the history of the RFRA, and the cases that created (and nearly destroyed) it in this article from the Princeton Law Journal.