Strengthening Constitutional Self-Government

No Left Turns

SCOTUS and religious freedom

Yesterday, the Supreme Court heard oral arguments in this case, pitting a small American branch of a Brazilian syncretist religious group against the federal government on the question of whether the U.S. can ban importation of an hallucinogenic tea the group uses in its ceremonies. The issues, established by the Religious Freedom Restoration Act, are whether the the federal government’s interest in controlling drug abuse is compelling and whether a blanket prohibition of the importation of the tea is the least restrictive means of achieving that interest. Things don’t seem to be going to well for the government, when even Antonin Scalia, the author of the Employment Division v. Smith opinion, observes that "you can make exceptions without the sky falling."

For commentary from big guns, go here, here, here, and here. Michael McConnell sided with the religious group in the 10th Circuit en banc hearing. I also take this opportunity to note that my brief prognostication about this case will likely be incorrect, since Scalia seems to be questioning the compelling state interest articulated in the Controlled Substances Act (which is to say that he’s doing what RFRA told the courts to do).

Update: Marci Hamilton, who doesn’t like this one bit, has more here.

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