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Tuesday, November 01, 2005

Religious Freedom Case

Interesting case in front of the U.S. Supreme Court right now. It concerns a small religious group who follow a Brazilian-based religion, and their petition to import a tea containing a banned substance into the country to use as a sacrament in their worship. Their argument is for the U.S. ban on importing the hallucinogenic substance contained in the tea to be waived due to their rights to practice their religion freely. According to the JTA, Jewish groups have filed in support of the religious group's petition. According to the coverage of the deliberations, the Supreme Court seems to not be of a single mind on this issue, with some justices (Scalia, Stevens, Ginsburg) sounding amenable to making an exception on the ban due to religious freedom, and others (Roberts, Souter), sounding less inclined to allow the importing of the substance. The case tests the Religious Freedom Act, which sets a high standard for the government restriction on religious practices.

This is, of course, relevant to every person who practices religious rituals of any nature. Obviously, no one is taking issue with the practice of aquiring and shaking of the Arba Minim, nor with the practice of checking lettuce for bugs before serving, nor with the practice of driving on Shabbos. But there are much murkier areas of Jewish ritual, and it isn't hard to find opponents of practices that we are allowed to perform under our right to religious freedom. One of the most current examples is, of course, the controversy over Metzitzah B'Peh, on which I posted my take here. But that is just one example. There are child rights activists who oppose Brit Milah, saying it is a brutal, barbaric practice, that causes a helpless infant undue pain. There are animal rights activists who oppose Shechita, saying it is a brutal, barbaric practice, that causes a helpless animal undue pain. If it were up to some of these groups, these practices would be banned as well. So the question becomes, where is the line drawn when it comes to religious freedoms? I personally feel that the line should be drawn to include as many practices and rituals as possible, short of proof of a direct link of a threat to public safety. Does allowing small amounts of a banned hallucinogenic drug for sacramental use cross that line? If the import is controlled in a manner that ensures that the substance is used solely for sacramental purposes and not for distribution, it seems to me that the right to religious reedom would override the ban on the substance, especially as was pointed out by Justice Ginsberg, Native Americans use a similar substance, peyote, in their rituals.

We'll see how this case falls out.

10 Comments:

Blogger respondingtojblogs said...

I think the Supreme Court jursiprudence on the Free Exercise Clause, is fairly straight forward. A facially neutral law will be upheld unless it unfairly singles out a religion, or if it is combined with another constitutional claim.

Peyote use and other religious practices are often given accomodation by the legislature, which is perfectly okay, but unless one exists here, the case seems to be a slam dunk against the Brazilians.

(Also, fix your links)

11:00 PM  
Blogger Tam said...

Remember prohibition? (Not that I'm suggesting that you were actually around then.) The religious exemptions caused all sorts of problems. Jewish ties to organized crime increased as well as strained relationships between Orthodox and Reform. This was a big issue in South Florida with Santeria and animal sacrifice. (Got a great book on it that I haven't read yet) I think this pushes the case for legalization.

7:57 AM  
Blogger orthomom said...

Yeah, during Prohibition, wine was allowed in church for sacramental purposes.

8:47 AM  
Blogger Krum as a bagel said...

respondingtojblogs, as OM notes, the issue is not the First Amendment but the Religious Freedom Restoration Act, which sets a higher standard for governmental actions that impinge on religious freedoms.

10:53 AM  
Blogger respondingtojblogs said...

respondingtojblogs, as OM notes, the issue is not the First Amendment but the Religious Freedom Restoration Act, which sets a higher standard for governmental actions that impinge on religious freedoms.

This case must be ultra complicated becuase the Court ruled RFRA unconstitutional several years ago. Its successor, RLUIPA, has been held constitutional but only applies to land use and prison inmates.

I suppose I will look into this.

12:01 PM  
Blogger Krum as a bagel said...

RFRA was struck down as applied to state actions, not federal actions. The law was found to exceed the grant of power to Congress under the 14 the amendment which governs the ability of states to impinge on individuals consititutional rights. As applied to federal law, which is the case here, RFRA is still good law.

1:06 PM  
Blogger respondingtojblogs said...

Heh, I am glad I keep my binders. According to my notes on Boerne the question of applying RFRA to the states has never been litigated. My bad!

10:48 PM  
Blogger Nephtuli said...

RTJB,

I thought RFRA was found unconstitutional in application to the states, but this case is about the elements applying to the federal government.

1:08 AM  
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