editorial comment Interestingly, the Bush administration considers the Geneva Convention as "quaint" while the US has the right to act unilaterraly when it wants, while at the same time being somewhat fully bound by a 1971 international treaty, the United Nations Convention on Psychotropic Substances, which obliges the 160 nations that have signed it to combat international traffic in illicit drugs. Must be a case of Quantum Logic......

By LINDA GREENHOUSE

Published: April 19, 2005


WASHINGTON, April 18 - The Supreme Court added an important new religion case to its docket on Monday, agreeing to decide whether the government can ban the importation of a hallucinogenic tea that is central to the religious rituals of a small Brazil-based church.

The case raises the broader question of how the court will interpret, in the context of an illegal drug, a law that ordinarily requires the federal government to refrain to the maximum extent possible from interfering with religious practices.

The tea, known as hoasca, is made from plants that grow in the Amazon region and that produce a chemical listed by both the federal government and an international narcotics trafficking treaty as a controlled substance. The chemical, dimethyltryptamine, usually known as DMT, can also be produced in a laboratory, but followers of the Uniao Do Vegetal religion use only the naturally occurring version, which does not grow in the United States.

The case is an appeal by the Bush administration of a federal court injunction won by the 130 members of the church's American branch, who brought a lawsuit five years ago to prohibit the government from invoking the Controlled Substances Act to block the importation of their tea and from seizing the sacred drink. The church, which combines elements of Christianity and indigenous Brazilian religion, opened its American branch in Santa Fe, N.M., in 1993.

The Federal District Court in Albuquerque, ruling before trial, issued a preliminary injunction against the government. The order was subsequently affirmed by a three-judge panel of the United States Court of Appeals for the 10th Circuit, in Denver, and last November was affirmed again by the full appeals court by a vote of 8 to 5.

A trial has still not taken place, a fact that would ordinarily pose an obstacle to Supreme Court review. In fact, on Dec. 10 of last year, the justices denied the administration's request for a stay of the Court of Appeals order until the solicitor general's office could prepare a formal petition for Supreme Court review. The denial of a request for a stay in those circumstances is usually a strong signal that the Supreme Court will not consider the eventual appeal to be worthy of its attention.

But in this case, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, No. 04-1084, the justices might have been persuaded, at least to let the administration have its say, by the strongly worded appeal filed by Paul D. Clement, the acting solicitor general.

Denouncing the lower courts' handling of the case as "contrary to all precedent," Mr. Clement said that "no court has ever ordered the United States to permit a religious exemption to Schedule I of the Controlled Substances Act." Schedule I, on which DMT is listed, along with marijuana and other illicit drugs, is reserved for substances that the government considers to be particularly unsafe and to have no valid medical use.

Both the executive branch and Congress, however, have granted a religious exemption for another Schedule I drug, peyote, which is used in religious ceremonies by the Native American Church.

In an opinion concurring in the 10th Circuit's decision to uphold the injunction, Judge Michael W. McConnell cited the peyote exemption as evidence that the government was free to exercise discretion in such matters.

Rejecting the argument that the district court should have deferred to the other two branches, Judge McConnell said: "If Congress or the executive branch had investigated the religious use of hoasca and had come to an informed conclusion that the health risks or possibility of diversion are sufficient to outweigh the free exercise concerns in this case, that conclusion would be entitled to great weight. But neither branch has done that."

Instead, he said, the government had simply invoked the general principle that controlled substances are dangerous.

Judge McConnell, a leading scholar on questions concerning the free exercise of religion before he became a judge, is widely seen as a possible Bush administration choice for a future Supreme Court vacancy.

In its Supreme Court appeal, the administration is also arguing that the injunction is forcing the government to violate a 1971 international treaty, the United Nations Convention on Psychotropic Substances, which obliges the 160 nations that have signed it to combat international traffic in illicit drugs. The question of whether the convention applies to hoasca is disputed, because Brazil, an original signatory to the treaty, has exempted the tea, and a recent appellate court ruling in France exempted its religious use.

The lower courts based their ruling on the Religious Freedom Restoration Act, a 1993 federal law that forbids the government to enforce laws in a way that interferes with religious practice unless the interference is justified by a "compelling interest." The Supreme Court ruled in 1997 that Congress lacked authority to apply the law to the states, but the statute remains in effect for the federal government.

The hoasca tea case, which will be argued in the fall, is the third case on the Supreme Court docket that deals with federal drug policy. The court is expected to announce a decision soon in a case argued in November on whether the federal government can block enforcement of California's medical marijuana initiative. And the court recently agreed to hear the Bush administration's challenge to the Oregon law permitting doctors to prescribe lethal doses of federally regulated drugs to assist terminally ill patients in committing suicide.

In other action on Monday, the court accepted an appeal by the State of Georgia on a question of criminal law that has long created confusion among the state courts. The issue in Georgia v. Randolph, No. 04-1067, is whether the police can search a home without a warrant if one occupant gives consent but another occupant objects.

In this case, a woman involved in a domestic dispute called the police to the home she shared with her husband. In the officers' presence, she complained that her husband was using cocaine and told the police that cocaine was in the house.

The husband, Scott F. Randolph, refused to give consent for a search, but his wife led the officers to a bedroom where evidence of cocaine use was apparent.

Mr. Randolph, challenging the legality of the search, won a ruling in the Georgia Supreme Court that since both partners had "common control and authority" over the premises, the consent of both was needed to conduct a search without a warrant.

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