- The Washington Times - Tuesday, November 1, 2005

ASSOCIATED PRESS

The Supreme Court debated yesterday whether to let a congregation in New Mexico worship with hallucinogenic tea, which its Brazil-based church considers communion.

Bush administration lawyer Edwin Kneedler told the justices that the drug not only violates a federal narcotics law, but a treaty in which the United States promised to block the importation of drugs, including dimethyltryptamine, also known as DMT, that is in the tea from Brazil.

The Supreme Court argument was lively, with new Chief Justice John G. Roberts Jr. asking tough questions of both sides. He suggested that the Bush administration was demanding too much, a “zero-tolerance approach.”

Justice Antonin Scalia said American Indian tribes have been legally using the hallucinogen peyote in tribal services — “a demonstration you can make an exception without the sky falling.”

About 130 members of a Brazil-based church have been in a long-running dispute with federal agents who seized their tea in 1999. The hoasca tea, which contains DMT, is considered sacred to members of O Centro Espirita Beneficiente Uniao do Vegetal.

Church members want “just the right to practice their religious faith as Congress guaranteed,” said Nancy Hollander, the attorney for the church, which has a congregation in Santa Fe, N.M. Members of the church, which blends Christian beliefs and South American traditions, consume the tea twice a month at four-hour ceremonies.

Justice Sandra Day O’Connor seemed skeptical of the Bush administration’s claim that the tea can be banned.

But Mr. Kneedler said other countries also could back off the international war on drugs, citing lax U.S. enforcement of the treaty. Mr. Kneedler noted that the peyote used by American Indians is grown in the United States and used here.

The Supreme Court has dealt with religious drug cases before. The justices ruled 15 years ago that states could criminalize the use of peyote by American Indians. But Congress changed the law to allow the sacramental use in tribal services of peyote, a bitter-tasting cactus that includes the hallucinogen mescaline.

Justice O’Connor, who may not be around to vote in the case, pointed out that Congress changed the rules. She interrupted the Bush administration lawyer in his opening statement and peppered him with difficult questions.

Other justices also seemed concerned by the government’s claim that an exception could be made for peyote, but not for hoasca tea.

“That is a rather rough problem under the First Amendment,” said Justice Stephen G. Breyer.

Justice Ruth Bader Ginsburg suggested that the justices could send the case back to a lower court without a ruling, because the case is not final. The appeal involves an injunction the church received to allow the tea. No trial has been held yet.

The man nominated to replace the retiring Justice O’Connor, Samuel A. Alito Jr., could be called on to vote in the religious tea case with a new argument session if the justices are divided 4-4 when Justice O’Connor leaves the court. Her votes only count in cases decided while she is still on the bench. This case could take months to decide.

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