U.S. Supreme Court - United States v. Seeger, 380 U.S. 163 (1965)
380 U.S. 163
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U.S. Supreme Court - Welsh v. United States, 398 U.S. 333 (1970) Concurring Opinion
398 U.S. 333
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MR. JUSTICE HARLAN, concurring in the result. Candor requires me to say that I joined the Court's opinion in United States v. Seeger, 380 U.S. 163 (1965), only with the gravest misgivings as to whether it was a legitimate exercise in statutory construction, and today's decision convinces me that, in doing so, I made a mistake which I should now acknowledge. [n1] In Seeger, the Court construed § 6(j) of the Universal Military Training and Service Act so as to sustain a conscientious objector claim not founded on a theistic belief. The Court, in treating with the provision of the statute that limited conscientious objector claims to those stemming from belief in "a Supreme Being," there said: Congress, in using the expression "supreme Being," rather than the designation "God," was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views, and held that the test of belief "in a relation to a Supreme Being" is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox [p345] belief in God of one who clearly qualifies for the exemption. 380 U.S. at 165-166. Today, the prevailing opinion makes explicit its total elimination of the statutorily required religious content for a conscientious objector exemption. The prevailing opinion now says: If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content, but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time (emphasis added), he qualifies for a § 6(j) exemption. In my opinion, the liberties taken with the statute both in Seeger and today's decision cannot be justified in the name of the familiar doctrine of construing federal statutes in a manner that will avoid possible constitutional infirmities in them. There are limits to the permissible application of that doctrine, and, as I will undertake to show in this opinion, those limits were crossed in Seeger, and even more apparently have been exceeded in the present case. I therefore find myself unable to escape facing the constitutional issue that this case squarely presents: whether § 6(j) in limiting this draft exemption to those opposed to war in general because of theistic beliefs runs afoul of the religious clauses of the First Amendment . For reasons later appearing, I believe it does, and, on that basis, I concur in the judgment reversing this conviction, and adopt the test announced by MR. JUSTICE BLACK not as a matter of statutory construction, but as the touchstone for salvaging a congressional policy of long standing that would otherwise have to be nullified. I Section 6(j) provided during the period relevant to this case: Nothing contained in this title shall be construed to require any person to be subject to combatant [p346] training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code. Universal Military Training and Service Act of 1948, § 6(j), 62 Stat. 612, 50 U.S.C.App. § 456(j). The issue is then whether Welsh's opposition to war is founded on "religious training and belief," and hence "belief in a relation to a Supreme Being" as Congress used those words. It is, of course, true that certain words are more plastic in meaning than others. "Supreme Being" is a concept of theology and philosophy, not a technical term, and consequently may be, in some circumstances, capable of bearing a contemporary construction as notions of theology and philosophy evolve. Cf. United States v. Storrs, 272 U.S. 652 (1926). This language appears, however, in a congressional enactment; it is not a phrase of the Constitution, like "religion" or "speech," which this Court is freer to construe in light of evolving needs and circumstances. Cf. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), and my concurring opinion in Estes v. Texas, 381 U.S. 532 , 595-596 (1965), and my opinion concurring in the judgment in Garner v. Louisiana, 368 U.S. 157 , 185 (1961). Nor is it so broad a statutory directive, like that of the Sherman Act, that we may assume that we are free to adopt and shape policies limited only by the most general statement of purpose. Cf., e.g., Standard Oil Co. v. United States, 221 U.S. 1 (1911). It is Congress' will that must here be divined. In that endeavor, [p347] it is one thing to give words a meaning not necessarily envisioned by Congress so as to adapt them to circumstances also uncontemplated by the legislature in order to achieve the legislative policy, Holy Trinity Church v. United States, 143 U.S. 457 (1892); it is a wholly different matter to define words so as to change policy. The limits of this Court's mandate to stretch concededly elastic congressional language are fixed in all cases by the context of its usage and legislative history, if available, that are the best guides to congressional purpose and the lengths to which Congress enacted a policy. Rosado v. Wyman, 397 U.S. 397 (1970). [n2] The prevailing opinion today snubs both guidelines, for it is apparent from a textual analysis of § 6(j) and the legislative history that the words of this section, as used and understood by Congress, fall short of enacting the broad policy of exempting from military service all individuals who in good faith oppose all war. [p348] A The natural reading of § 6(j), which quite evidently draws a distinction between theistic and nontheistic religions, is the only one that is consistent with the legislative history. Section 5(g) of the 1940 Draft Act exempted individuals whose opposition to war could be traced to "religious training and belief," 54 Stat. 889, without any allusion to a Supreme Being. In United States v. Kauten, 133 F.2d 703 (C.A.2d Cir.1943), the Second Circuit, speaking through Judge Augustus Hand, broadly construed "religious training and belief" to include a belief finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets. 133 F.2d at 708. The view was further elaborated in subsequent decisions of the Second Circuit, see United States ex rel. Phillips v. Downer, 135 F.2d 621 (C.A.2d Cir.1943); United States ex rel. Reel v. Badt, 141 F.2d 845 (C.A.2d Cir.1944). This expansive interpretation of § 5(g) was rejected by a divided Ninth Circuit in Berman v. United States, 156 F.2d 377, 380-381 (1946): It is our opinion that the expression "by reason of religious training and belief" . . . was written into the statute for the specific purpose of distinguishing between a conscientious social belief, or a sincere devotion to a high moralistic philosophy, and one based upon an individual's belief in his responsibility to an authority higher and beyond any worldly one. * * * * [I]n United States v. Macintosh, 283 U.S. 605 . . . , Mr. [Chief] Justice Hughes in his dissent . . . said: "The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation." [p349] The unmistakable and inescapable thrust of the Berman opinion, that religion is to be conceived in theistic terms, is rendered no less straightforward by the court's elaboration on the difference between beliefs held as a matter of moral or philosophical conviction and those inspired by religious upbringing and adherence to faith. There are those who have a philosophy of life, and who live up to it. There is evidence that this is so in regard to appellant. However, no matter how pure and admirable his standard may be, and no matter how devotedly he adheres to it, his philosophy and morals and social policy without the concept of deity cannot be said to be religion in the sense of that term as it is used in the statute. It is said in State v. Amana Society, 132 Iowa 304, 109 N.W. 894, 898 . . . : surely a scheme of life designed to obviate such results (man's inhumanity to man), and by removing temptations, and all the inducements of ambition and avarice, to nurture the virtues of unselfishness, patience, love, and service, ought not to be denounced as not pertaining to religion when its devotee regards it as an essential tenet of their [sic] religious faith. (Emphasis of Court of Appeals.) Ibid. In the wake of this intercircuit dialogue, crystallized by the dissent in Berman, which espoused the Second Circuit interpretation in Kauten, supra, Congress enacted § 6(j) in 1948. That Congress intended to anoint the Ninth Circuit's interpretation of § 5(g) would seem beyond question in view of the similarity of the statutory language to that used by Chief Justice Hughes in his dissenting opinion in Macintosh and quoted in Berman and the Senate report. The first half of the new language was almost word for word that of Chief Justice Hughes in [p350] Macintosh, and quoted by the Berman majority; [n3] and the Senate Committee report adverted to Berman, thus foreclosing any possible speculation as to whether Congress was aware of the possible alternatives. The report stated: This section reenacts substantially the same provisions as were found in subsection 5(g) of the 1940 act. Exemption extends to anyone who, because of religious training and belief in his relationship to a Supreme Being, is conscientiously opposed to combatant military service or to both combatant and noncombatant military service. (See United States v. Berman [sic], 156 F. (2d) 377, certiorari denied, 329 U.S. 795 .) S.Rep. No. 1268, 80th Cong., 2d Sess., 14. [n4] [p351] B Against this legislative history, it is a remarkable feat of judicial surgery to remove, as did Seeger, the theistic requirement of § 6(j). The prevailing opinion today, however, in the name of interpreting the will of Congress, has performed a lobotomy and completely transformed the statute by reading out of it any distinction between religiously acquired beliefs and those deriving from "essentially political, sociological, or philosophical views, or a merely personal moral code." In the realm of statutory construction, it is appropriate to search for meaning in the congressional vocabulary in a lexicon most probably consulted by Congress. Resort to Webster's [n5] reveals that the meanings of "religion" are: 1. The service and adoration of God or a god as expressed in forms of worship, in obedience to divine commands . . . ; 2. The state of life of a religious . . . ; 3. One of the systems of faith and worship; a form of theism; a religious faith . . . ; 4. The profession or practice of religious beliefs; religious observances collectively; pl. rites; 5. Devotion or fidelity; . . . conscientiousness; [p352] 6. An apprehension, awareness, or conviction of the existence of a supreme being, or more widely, of supernatural powers or influences controlling one's own, humanity's, or nature's destiny; also, such an apprehension, etc., accompanied by or arousing reverence, love, gratitude, the will to obey and serve, and the like. . . . (Emphasis added.) Of the five pertinent definitions, four include the notion of either a Supreme Being or a cohesive, organized group pursuing a common spiritual purpose together. While, as the Court's opinion in Seeger points out, these definitions do not exhaust the almost infinite and sophisticated possibilities for defining "religion," there is strong evidence that Congress restricted, in this instance, the word to its conventional sense. That it is difficult to plot the semantic penumbra of the word "religion" does not render this term so plastic in meaning that the Court is entitled, as matter of statutory construction, to conclude that any asserted and strongly held belief satisfies its requirements. It must be recognized that the permissible shadow of connotation is limited by the context in which words are used. In § 6(j), Congress has included not only a reference to a Supreme Being, but has also explicitly contrasted "religious" beliefs with those that are "essentially political, sociological, or philosophical" and a "personal moral code." This exception certainly is, at the very least, the statutory boundary, the " asymptote," of the word "religion." [n6] [p353] For me, this dichotomy reveals that Congress was not embracing that definition of religion that alone speaks in terms of "devotion or fidelity" to individual principles acquired on an individualized basis, but was adopting, at least, those meanings that associate religion with formal, organized worship or shared beliefs by a recognizable and cohesive group. Indeed, this requirement was explicit in the predecessor to the 1940 statute. The Draft Act of 1917 conditioned conscientious objector status on membership in or affiliation with a well-recognized religious sect or organization [then] organized and existing and whose existing creed or principles forb[ade] its members to participate in war in any form. . . . § 4, 40 Stat 78. That § 5(g) of the 1940 Act eliminated the affiliation and membership requirement does not, in my view, mean as the Court, in effect, concluded in Seeger that Congress was embracing a secular definition of religion. [n7] [p354] Unless we are to assume an Alice-in-Wonderland world where words have no meaning, I think it fair to say that Congress' choice of language cannot fail to convey to the discerning reader the very policy choice that the prevailing opinion today completely obliterates: that between conventional religions that usually have an organized and formal structure and dogma and a cohesive group identity, even when nontheistic, and cults that represent schools of thought and in the usual case are without formal structure or are, at most, loose and informal associations of individuals who share common ethical, moral, or intellectual views. II When the plain thrust of a legislative enactment can only be circumvented by distortion to avert an inevitable constitutional collision, it is only by exalting form over substance that one can justify this veering off the path that has been plainly marked by the statute. Such a course betrays extreme skepticism as to constitutionality, and, in this instance, reflects a groping to preserve the conscientious objector exemption at all cost. I cannot subscribe to a wholly emasculated construction of a statute to avoid facing a latent constitutional question, in purported fidelity to the salutary doctrine of avoiding unnecessary resolution of constitutional issues, a principle to which I fully adhere. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288 "] 297 U.S. 288 , 348 (1936) (Brandeis, J., concurring). It is, of course, desirable to salvage by construction legislative enactments whenever there is good reason to believe that Congress did not intend to legislate consequences that are unconstitutional, but it is not permissible, in my judgment, to take a lateral step that robs legislation of all meaning in order to avert the collision between its plainly intended purpose and the commands of the Constitution. [p355] Cf. Yates v. United States, 354 U.S. 298 (1957). As the Court stated in 297 U.S. 288 , 348 (1936) (Brandeis, J., concurring). It is, of course, desirable to salvage by construction legislative enactments whenever there is good reason to believe that Congress did not intend to legislate consequences that are unconstitutional, but it is not permissible, in my judgment, to take a lateral step that robs legislation of all meaning in order to avert the collision between its plainly intended purpose and the commands of the Constitution. [p355] Cf. Yates v. United States, 354 U.S. 298 (1957). As the Court stated in Aptheker v. Secretary of State, 378 U.S. 500 , 515 (1964): It must be remembered that, "[a]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . ." or judicially rewriting it. Scales v. United States [ 367 U.S. 203 , 211]. To put the matter another way, this Court will not consider the abstract question of whether Congress might have enacted a valid statute, but, instead, must ask whether the statute that Congress did enact will permissibly bear a construction rendering it free from constitutional defects. The issue comes sharply into focus in Mr. Justice Cardozo's statement for the Court in Moore Ice Cream Co. v. Rose, 289 U.S. 373 , 379 (1933): "A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score." . . . But avoidance of a difficulty will not be pressed to the point of disingenuous evasion. Here, the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power. The problem must be faced and answered. If an important congressional policy is to be perpetuated by recasting unconstitutional legislation, as the prevailing opinion has done here, the analytically sound approach is to accept responsibility for this decision. Its justification cannot be by resort to legislative intent as that term is usually employed, but by a different kind of legislative intent, namely, the presumed grant of power to the courts to decide whether it more nearly accords with [p356] Congress' wishes to eliminate its policy altogether or extend it in order to render what Congress plainly did intend, constitutional. Compare, e.g., Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926); United States v. Reese, 92 U.S. 214 (1876), with Skinner v. Oklahoma, 316 U.S. 535 (1942); Nat. Life Ins. Co. v. United States, 277 U.S. 508 (1928). I therefore turn to the constitutional question. III The constitutional question that must be faced in this case is whether a statute that defers to the individual's conscience only when his views emanate from adherence to theistic religious beliefs is within the power of Congress. Congress, of course, could, entirely consistently with the requirements of the Constitution, eliminate all exemptions for conscientious objectors. Such a course would be wholly "neutral," and, in my view, would not offend the Free Exercise Clause, for reasons set forth in my dissenting opinion in Sherbert v. Verner, 374 U.S. 398 , 418 (1963). See Jacobson v. Massachusetts, 197 U.S. 11 , 29 (1905) (dictum); cf. McGowan v. Maryland, 366 U.S. 420 (1961); Davis v. Beason, 133 U.S. 333 (1890); Hamilton v. Board of Regents, 293 U.S. 245 , 264-265 (1934); Reynolds v. United States, 98 U.S. 145 (1879); Kurland, Of Church and State and the Supreme Court, 29 U.Chi.L.Rev. 1 (1961). However, having chosen to exempt, it cannot draw the line between theistic or nontheistic religious beliefs, on the one hand, and secular beliefs, on the other. Any such distinctions are not, in my view, compatible with the Establishment Clause of the First Amendment . See my separate opinion in Walz v. Tax Comm'n, 397 U.S. 664 , 694 (1970); Epperson v. Arkansas, 393 U.S. 97 (1968); School District of Abington Township v. Schempp, 374 U.S. 203 , 305 (1963) (Goldberg, J., concurring); [p357] Engel v. Vitale, 370 U.S. 421 (1962); Torcaso v. Watkins, 367 U.S. 488 , 495 (1961); Fowler v. Rhode Island, 345 U.S. 67 (1953). The implementation of the neutrality principle of these cases requires, in my view, as I stated in Walz v. Tax Comm'n, supra, an equal protection mode of analysis. The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders. In any particular case the critical question is whether the scope of legislation encircles a class so broad that it can be fairly concluded that [all groups that] could be thought to fall within the natural perimeter [are included]. 397 U.S. at 696. The "radius" of this legislation is the conscientiousness with which an individual opposes war in general, yet the statute, as I think it must be construed, excludes from its "scope" individuals motivated by teachings of nontheistic religions, [n8] and individuals guided by an inner ethical voice that bespeaks secular, and not "religious," reflection. It not only accords a preference to the "religious," but also disadvantages adherents of religions that do not worship a Supreme Being. The constitutional infirmity cannot be cured, moreover, even by an impermissible construction that eliminates the theistic requirement and simply draws the line between religious and nonreligious. This, in my view, offends the Establishment Clause and is that kind of classification [p358] that this Court has condemned. See my separate opinion in Walz v. Tax Comm'n, supra; School District of Abington Township v. Schempp (Goldberg, J., concurring), supra; Engel v. Vitale, supra; Torcaso v. Watkins, supra. If the exemption is to be given application, it must encompass the class of individuals it purports to exclude, those whose beliefs emanate from a purely moral, ethical, or philosophical source. [n9] The common denominator must be the intensity of moral conviction with which a belief is held. [n10] Common experience teaches that, among [p359] "religious" individuals, some are weak and others strong adherents to tenets, and this is no less true of individuals whose lives are guided by personal ethical considerations. The Government enlists the Selective Draft Law Cases, 245 U.S. 366 (1918), as precedent for upholding the constitutionality of the religious conscientious objector provision. That case involved the power of Congress to raise armies by conscription and only incidentally the conscientious objector exemption. The language emphasized by the Government to the effect that the exemption for religious objectors and ministers constituted neither an establishment nor interference with free exercise of religion can only be considered an afterthought, since the case did not involve any individuals who claimed to be nonreligious conscientious objectors. [n11] This conclusory assertion, unreasoned and unaccompanied by citation, surely cannot foreclose consideration of the question in a case that squarely presents the issue. Other authorities assembled by the Government, far from advancing its case, demonstrate the unconstitutionality of the distinction drawn in § 6(j) between religious and nonreligious beliefs. Everson v. Board of Educational, 330 U.S. 1 (1947), the Sunday Closing Law Cases, 366 U.S. 420 , 582, 599, and 617 (1961), and Board [p360] of Education v. Allen, 392 U.S. 236 (1968), all sustained legislation on the premise that it was neutral in its application and thus did not constitute an establishment, notwithstanding the fact that it may have assisted religious groups by giving them the same benefits accorded to nonreligious groups. [n12] To the extent that Zorach v. Clauson, 343 U.S. 306 (1952), and Sherbert v. Verner, supra, stand for the proposition that the Government may (Zorach), or must (Sherbert), shape its secular programs to accommodate the beliefs and tenets of religious [p361] groups, I think these cases unsound. [n13] See generally Kurland, supra. To conform with the requirements of the First Amendment 's religious clauses as reflected in the mainstream of American history, legislation must, at the very least, be neutral. See my separate opinion in Walz v. Tax Comm'n, supra. IV Where a statute is defective because of underinclusion, there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion. Cf. Skinner v. Oklahoma, 316 U.S. 535 (1942); Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239 (1931). [n14] [p362] The appropriate disposition of this case, which is a prosecution for refusing to submit to induction and not an action for a declaratory judgment on he constitutionality of § 6(j), is determined by the fact that, at the time of Welsh's induction notice and prosecution the Selective Service was, as required by statute, exempting individual whose beliefs were identical in all respects to those held by petitioner except that they derived from a religious source. Since this created a religious benefit not accorded to petitioner, it is clear to me that this conviction must be reversed under the Establishment Clause of the First Amendment unless Welsh is to go remediless. Cf. Iowa-Des Moines National Bank v. Bennett, supra; Smith v. Cahoon, 283 U.S. 553 (1931). [n15] [p363] This result, while tantamount to extending the statute, is not only the one mandated by the Constitution in this case, but also the approach I would take had this question been presented in an action for a declaratory judgment [p364] or "an action in equity where the enforcement of a statute awaits the final determination of the court as to validity and scope." Smith v. Cahoon, 283 U.S. at 565. [n16] While the necessary remedial operation, extension, is more analogous to a graft than amputation, I think the boundaries of permissible choice may properly be considered fixed by the legislative pronouncement on severability. Indicative of the breadth of the judicial mandate in this regard is the broad severability clause, 65 Stat. 88, which provides that, [i]f any provision of this Act or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the Act and of the application of such provision to other persons and circumstances shall not be affected thereby. While the absence of such a provision would not foreclose the exercise of discretion in determining whether a legislative policy should be repaired or abandoned, cf. United States v. Jackson, 390 U.S. 570 , 585 n. 27 (1968), its existence "discloses an intention to make the Act divisible and creates a presumption that, eliminating invalid parts, the legislature would have been satisfied with what remained. . . ." Champlin Rfg. Co. v. Commission, 286 U.S. 210 , 235 (1932). See also Skinner [p365] v. Oklahoma, supra; Nat. Life Ins. Co. v. United States, 277 U.S. 508 (1928). [n17] In exercising the broad discretion conferred by a severability clause it is, of course, necessary to measure the intensity of commitment to the residual policy and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation. Cf. Nat. Life Ins. Co. v. United States, supra, (Brandeis, J., dissenting); Dorchy v. Kansas, 264 U.S. 286 (1924). The policy of exempting religious conscientious objectors is one of longstanding tradition in this country and accords recognition to what is, in a diverse and "open" society, the important value of reconciling individuality [p366] of belief with practical exigencies whenever possible. See Girouard v. United States, 328 U.S. 61 (1946). It dates back to colonial times, and has been perpetuated in state and federal conscription statutes. See Mr. Justice Cardozo's separate opinion in Hamilton v. Board of Regents, 293 U.S. at 267; Macintosh v. United States, 42 F.2d 845, 847 (1930). That it has been phrased in religious terms reflects, I assume, the fact that ethics and morals, while the concern of secular philosophy, have traditionally been matters taught by organized religion and that, for most individuals, spiritual and ethical nourishment is derived from that source. It further reflects, I would suppose, the assumption that beliefs emanating from a religious source are probably held with great intensity. When a policy has roots so deeply embedded in history, there is a compelling reason for a court to hazard the necessary statutory repairs if they can be made within the administrative framework of the statute and without impairing other legislative goals, even though they entail not simply eliminating an offending section, but rather building upon it. [n18] Thus, I am prepared to accept the prevailing opinion's conscientious objector test not as a reflection of congressional statutory intent but, as patchwork [p367] of judicial making that cures the defect of underinclusion in § 6(j) and can be administered by local boards in the usual course of business. [n19] Like the prevailing opinion, I also conclude that petitioner's beliefs are held with the required intensity, and consequently vote to reverse the judgment of conviction. |
Justice Harlan's opinion starts with an admission that his previous decision (Seeger) regarding conscienscious objection was flawed in that it over-extended the meaning of religion to include a strong secular opinion. He then recognizes that Congress had erroneously restricted the meaning of religion to a conventional sense, meaning a religious group, which would exclude those individuals with personal religious opinions. Though Congress had previously created a defective conscription statute, which suffered from underinclusion, as is the case with the Illinois Vehicle Code, the Supreme Court extended the statute's coverage to include those individuals previously discriminated against by underinclusion. Simply put, both religious group affiliates and faith-based individuals have the same rights provided that one's faith was referenced to a Supreme Being. In accordance, the Illinois Religious Freedom Restoration Act supports the notion of a religious belief which is not compulsory or central to a larger system of religious belief. Therefore, the people of Illinois recognize that independent believers have valid religious opinions without preference be given by law to any religious denomination or mode of worship as specified by the Illinois Constitution. |
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U.S. Supreme Court - Gonzales v. O Centro Espirita Beneficenteuniao Do Vegetal (2006)
389 F. 3d 973
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A religious sect with origins in the Amazon Rainforest receives communion by drinking a sacramental tea, brewed from plants unique to the region, that contains a hallucinogen regulated under the Controlled Substances Act by the Federal Government. The Government concedes that this practice is a sincere exercise of religion, but nonetheless sought to prohibit the small American branch of the sect from engaging in the practice, on the ground that the Controlled Substances Act bars all use of the hallucinogen. The sect sued to block enforcement against it of the ban on the sacramental tea, and moved for a preliminary injunction. It relied on the Religious Freedom Restoration Act of 1993, which prohibits the Federal Government from substantially burdening a person’s exercise of religion, unless the Government “demonstrates that application of the burden to the person” represents the least restrictive means of advancing a compelling interest. 42 U. S. C. §2000bb–1(b) . The District Court granted the preliminary injunction, and the Court of Appeals affirmed. We granted the Government’s petition for certiorari. Before this Court, the Government’s central submission is that it has a compelling interest in the uniform application of the Controlled Substances Act, such that no exception to the ban on use of the hallucinogen can be made to accommodate the sect’s sincere religious practice. We conclude that the Government has not carried the burden expressly placed on it by Congress in the Religious Freedom Restoration Act, and affirm the grant of the preliminary injunction. I In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990) , this Court held that the Free Exercise Clause of the First Amendment does not prohibit governments from burdening religious practices through generally applicable laws. In Smith, we rejected a challenge to an Oregon statute that denied unemployment benefits to drug users, including Native Americans engaged in the sacramental use of peyote. Id., at 890. In so doing, we rejected the interpretation of the Free Exercise Clause announced in Sherbert v. Verner, 374 U. S. 398 (1963) , and, in accord with earlier cases, see Smith, 494 U. S., at 879–880, 884–885, held that the Constitution does not require judges to engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws. Id., at 883–890. Congress responded by enacting the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488 , as amended, 42 U. S. C. §2000bb et seq., which adopts a statutory rule comparable to the constitutional rule rejected in Smith. Under RFRA, the Federal Government may not, as a statutory matter, substantially burden a person’s exercise of religion, “even if the burden results from a rule of general applicability.” §2000bb–1(a). The only exception recognized by the statute requires the Government to satisfy the compelling interest test—to “demonstrat[e] that application of the burden to the person—(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b). A person whose religious practices are burdened in violation of RFRA “may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief.” §2000bb–1(c). 1 The Controlled Substances Act, 84 Stat. 1242 , as amended, 21 U. S. C. §801 et seq. (2000 ed. and Supp. I), regulates the importation, manufacture, distribution, and use of psychotropic substances. The Act classifies substances into five schedules based on their potential for abuse, the extent to which they have an accepted medical use, and their safety. See §812(b) (2000 ed.). Substances listed in Schedule I of the Act are subject to the most comprehensive restrictions, including an outright ban on all importation and use, except pursuant to strictly regulated research projects. See §§823, 960(a)(1). The Act authorizes the imposition of a criminal sentence for simple possession of Schedule I substances, see §844(a), and mandates the imposition of a criminal sentence for possession “with intent to manufacture, distribute, or dispense” such substances, see §§841(a), (b). O Centro Esprita Beneficente Unio do Vegetal (UDV) is a Christian Spiritist sect based in Brazil, with an American branch of approximately 130 individuals. Central to the UDV’s faith is receiving communion through hoasca (pronounced “wass-ca”), a sacramental tea made from two plants unique to the Amazon region. One of the plants, psychotria viridis, contains dimethyltryptamine (DMT), a hallucinogen whose effects are enhanced by alkaloids from the other plant, banisteriopsis caapi. DMT, as well as “any material, compound, mixture, or preparation, which contains any quantity of [DMT],” is listed in Schedule I of the Controlled Substances Act. §812(c), Schedule I(c). In 1999, United States Customs inspectors intercepted a shipment to the American UDV containing three drums of hoasca. A subsequent investigation revealed that the UDV had received 14 prior shipments of hoasca. The inspectors seized the intercepted shipment and threatened the UDV with prosecution. The UDV filed suit against the Attorney General and other federal law enforcement officials, seeking declaratory and injunctive relief. The complaint alleged, inter alia, that applying the Controlled Substances Act to the UDV’s sacramental use of hoasca violates RFRA. Prior to trial, the UDV moved for a preliminary injunction, so that it could continue to practice its faith pending trial on the merits. At a hearing on the preliminary injunction, the Government conceded that the challenged application of the Controlled Substances Act would substantially burden a sincere exercise of religion by the UDV. See O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 282 F. Supp. 2d 1236, 1252 (NM 2002). The Government argued, however, that this burden did not violate RFRA, because applying the Controlled Substances Act in this case was the least restrictive means of advancing three compelling governmental interests: protecting the health and safety of UDV members, preventing the diversion of hoasca from the church to recreational users, and complying with the 1971 United Nations Convention on Psychotropic Substances, a treaty signed by the United States and implemented by the Act. Feb. 21, 1971, [1979–1980], 32 U. S. T. 543, T. I. A. S. No. 9725. See 282 F. Supp. 2d, at 1252–1253. The District Court heard evidence from both parties on the health risks of hoasca and the potential for diversion from the church. The Government presented evidence to the effect that use of hoasca, or DMT more generally, can cause psychotic reactions, cardiac irregularities, and adverse drug interactions. The UDV countered by citing studies documenting the safety of its sacramental use of hoasca and presenting evidence that minimized the likelihood of the health risks raised by the Government. With respect to diversion, the Government pointed to a general rise in the illicit use of hallucinogens, and cited interest in the illegal use of DMT and hoasca in particular; the UDV emphasized the thinness of any market for hoasca, the relatively small amounts of the substance imported by the church, and the absence of any diversion problem in the past. The District Court concluded that the evidence on health risks was “in equipoise,” and similarly that the evidence on diversion was “virtually balanced.” Id., at 1262, 1266. In the face of such an even showing, the court reasoned that the Government had failed to demonstrate a compelling interest justifying what it acknowledged was a substantial burden on the UDV’s sincere religious exercise. Id., at 1255. The court also rejected the asserted interest in complying with the 1971 Convention on Psychotropic Substances, holding that the Convention does not apply to hoasca. Id., at 1266–1269. The court entered a preliminary injunction prohibiting the Government from enforcing the Controlled Substances Act with respect to the UDV’s importation and use of hoasca. The injunction requires the church to import the tea pursuant to federal permits, to restrict control over the tea to persons of church authority, and to warn particularly susceptible UDV members of the dangers of hoasca. See Preliminary Injunction ¶¶2, 5–12, 32–33, App. F to App. to Pet. for Cert. 249a, 250a–252a, 258a–259a. The injunction also provides that “if [the Government] believe[s] that evidence exists that hoasca has negatively affected the health of UDV members,” or “that a shipment of hoasca contain[s] particularly dangerous levels of DMT, [the Government] may apply to the Court for an expedited determination of whether the evidence warrants suspension or revocation of [the UDV’s authority to use hoasca].” Id., at 257a, ¶29. The Government appealed the preliminary injunction and a panel of the Court of Appeals for the Tenth Circuit affirmed, O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 342 F. 3d 1170 (2003), as did a majority of the Circuit sitting en banc, 389 F. 3d 973 (2004). We granted certiorari. 544 U. S. 973 (2005) . II Although its briefs contain some discussion of the potential for harm and diversion from the UDV’s use of hoasca, the Government does not challenge the District Court’s factual findings or its conclusion that the evidence submitted on these issues was evenly balanced. Instead, the Government maintains that such evidentiary equipoise is an insufficient basis for issuing a preliminary injunction against enforcement of the Controlled Substances Act. We review the District Court’s legal rulings de novo and its ultimate decision to issue the preliminary injunction for abuse of discretion. See McCreary County v. American Civil Liberties Union, 545 U. S. ___ , ___ (2005) (slip op., at 19). The Government begins by invoking the well-established principle that the party seeking pretrial relief bears the burden of demonstrating a likelihood of success on the merits. See, e.g., Mazurek v. Armstrong, 520 U. S. 968 , 972 (1997) (per curiam); Doran v. Salem Inn, Inc., 422 U. S. 922 , 931 (1975) . The Government argues that the District Court lost sight of this principle in issuing the injunction based on a mere tie in the evidentiary record. A majority of the en banc Court of Appeals rejected this argument, and so do we. Before the District Court, the Government conceded the UDV’s prima facie case under RFRA. See 282 F. Supp. 2d, at 1252 (application of the Controlled Substances Act would (1) substantially burden (2) a sincere (3) religious exercise). The evidence the District Court found to be in equipoise related to two of the compelling interests asserted by the Government, which formed part of the Government’s affirmative defense. See 42 U. S. C. §2000bb–1(b) (“Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling government interest U” (emphasis added)); §2000bb–2(3) (“[T]he term ‘demonstrates’ means meets the burdens of going forward with the evidence and of persuasion”). Accordingly, the UDV effectively demonstrated that its sincere exercise of religion was substantially burdened, and the Government failed to demonstrate that the application of the burden to the UDV would, more likely than not, be justified by the asserted compelling interests. See 389 F. 3d, at 1009 (Seymour, J., concurring in part and dissenting in part) (“[T]he balance is between actual irreparable harm to [the] plaintiff and potential harm to the government which does not even rise to the level of a preponderance of the evidence”). The Government argues that, although it would bear the burden of demonstrating a compelling interest as part of its affirmative defense at trial on the merits, the UDV should have borne the burden of disproving the asserted compelling interests at the hearing on the preliminary injunction. This argument is foreclosed by our recent decision in Ashcroft v. American Civil Liberties Union, 542 U. S. 656 (2004) . In Ashcroft, we affirmed the grant of a preliminary injunction in a case where the Government had failed to show a likelihood of success under the compelling interest test. We reasoned that “[a]s the Government bears the burden of proof on the ultimate question of [the challenged Act’s] constitutionality, respondents [the movants] must be deemed likely to prevail unless the Government has shown that respondents’ proposed less restrictive alternatives are less effective than [enforcing the Act].” Id., at 666. That logic extends to this case; here the Government failed on the first prong of the compelling interest test, and did not reach the least restrictive means prong, but that can make no difference. The point remains that the burdens at the preliminary injunction stage track the burdens at trial. The Government attempts to limit the rule announced in Ashcroft to content-based restrictions on speech, but the distinction is unavailing. The fact that Ashcroft involved such a restriction was the reason the Government had the burden of proof at trial under the First Amendment , see id., at 665, but in no way affected the Court’s assessment of the consequences of having that burden for purposes of the preliminary injunction. Here the burden is placed squarely on the Government by RFRA rather than the First Amendment , see 42 U. S. C. §§2000bb–1(b) , 2000bb–2(3), but the consequences are the same. Congress’ express decision to legislate the compelling interest test indicates that RFRA challenges should be adjudicated in the same manner as constitutionally mandated applications of the test, including at the preliminary injunction stage. III The Government’s second line of argument rests on the Controlled Substances Act itself. The Government contends that the Act’s description of Schedule I substances as having “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and “a lack of accepted safety for use U under medical supervision,” 21 U. S. C. §812(b)(1) , by itself precludes any consideration of individualized exceptions such as that sought by the UDV. The Government goes on to argue that the regulatory regime established by the Act—a “closed” system that prohibits all use of controlled substances except as authorized by the Act itself, see Gonzales v. Raich, 545 U. S. ___, ___ (2005) (slip op., at 10)—“cannot function with its necessary rigor and comprehensiveness if subjected to judicial exemptions.” Brief for Petitioners 18. According to the Government, there would be no way to cabin religious exceptions once recognized, and “the public will misread” such exceptions as signaling that the substance at issue is not harmful after all. Id., at 23. Under the Government’s view, there is no need to assess the particulars of the UDV’s use or weigh the impact of an exemption for that specific use, because the Controlled Substances Act serves a compelling purpose and simply admits of no exceptions. A RFRA, and the strict scrutiny test it adopted, contemplate an inquiry more focused than the Government’s categorical approach. RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”—the particular claimant whose sincere exercise of religion is being substantially burdened. 42 U. S. C. §2000bb–1(b) . RFRA expressly adopted the compelling interest test “as set forth in Sherbert v. Verner, 374 U. S. 398 (1963) and Wisconsin v. Yoder, 406 U. S. 205 (1972) .” 42 U. S. C. §2000bb(b)(1) . In each of those cases, this Court looked beyond broadly formulated interests justifying the general applicability of government mandates and scrutinized the asserted harm of granting specific exemptions to particular religious claimants. In Yoder, for example, we permitted an exemption for Amish children from a compulsory school attendance law. We recognized that the State had a “paramount” interest in education, but held that “despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote U and the impediment to those objectives that would flow from recognizing the claimed Amish exemption.” 406 U. S., at 213, 221 (emphasis added). The Court explained that the State needed “to show with more particularity how its admittedly strong interest U would be adversely affected by granting an exemption to the Amish.” Id., at 236 (emphasis added). In Sherbert, the Court upheld a particular claim to a religious exemption from a state law denying unemployment benefits to those who would not work on Saturdays, but explained that it was not announcing a constitutional right to unemployment benefits for “all persons whose religious convictions are the cause of their unemployment.” 374 U. S., at 410 (emphasis added). The Court distinguished the case “in which an employee’s religious convictions serve to make him a nonproductive member of society.” Ibid.; see also Smith, 494 U. S., at 899 (O’Connor, J., concurring in judgment) (strict scrutiny “at least requires a case-by-case determination of the question, sensitive to the facts of each particular claim”). Outside the Free Exercise area as well, the Court has noted that “[c]ontext matters” in applying the compelling interest test, Grutter v. Bollinger, 539 U. S. 306 , 327 (2003) , and has emphasized that “strict scrutiny does take ‘relevant differences’ into account—indeed, that is its fundamental purpose,” Adarand Constructors, Inc. v. PeÅ„a, 515 U. S. 200 , 228 (1995) . B Under the more focused inquiry required by RFRA and the compelling interest test, the Government’s mere invocation of the general characteristics of Schedule I substances, as set forth in the Controlled Substances Act, cannot carry the day. It is true, of course, that Schedule I substances such as DMT are exceptionally dangerous. See, e.g., Touby v. United States, 500 U. S. 160 , 162 (1991) . Nevertheless, there is no indication that Congress, in classifying DMT, considered the harms posed by the particular use at issue here—the circumscribed, sacramental use of hoasca by the UDV. The question of the harms from the sacramental use of hoasca by the UDV was litigated below. Before the District Court found that the Government had not carried its burden of showing a compelling interest in preventing such harms, the court noted that it could not “ignore that the legislative branch of the government elected to place materials containing DMT on Schedule I of the [Act], reflecting findings that substances containing DMT have ‘a high potential for abuse,’ and ‘no currently accepted medical use in treatment in the United States,’ and that ‘[t]here is a lack of accepted safety for use of [DMT] under medical supervision.’ ” 282 F. Supp. 2d, at 1254. But Congress’ determination that DMT should be listed under Schedule I simply does not provide a categorical answer that relieves the Government of the obligation to shoulder its burden under RFRA. This conclusion is reinforced by the Controlled Substances Act itself. The Act contains a provision authorizing the Attorney General to “waive the requirement for registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety.” 21 U. S. C. §822(d) . The fact that the Act itself contemplates that exempting certain people from its requirements would be “consistent with the public health and safety” indicates that congressional findings with respect to Schedule I substances should not carry the determinative weight, for RFRA purposes, that the Government would ascribe to them. And in fact an exception has been made to the Schedule I ban for religious use. For the past 35 years, there has been a regulatory exemption for use of peyote—a Schedule I substance—by the Native American Church. See 21 CFR §1307.31 (2005). In 1994, Congress extended that exemption to all members of every recognized Indian Tribe. See 42 U. S. C. §1996a(b)(1) . Everything the Government says about the DMT in hoasca—that, as a Schedule I substance, Congress has determined that it “has a high potential for abuse,” “has no currently accepted medical use,” and has “a lack of accepted safety for use U under medical supervision,” 21 U. S. C. §812(b)(1) —applies in equal measure to the mescaline in peyote, yet both the Executive and Congress itself have decreed an exception from the Controlled Substances Act for Native American religious use of peyote. If such use is permitted in the face of the congressional findings in §812(b)(1) for hundreds of thousands of Native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 , 547 (1993) (“It is established in our strict scrutiny jurisprudence that ‘a law cannot be regarded as protecting an interest ‘of the highest order’ U when it leaves appreciable damage to that supposedly vital interest unprohibited’ ” (quoting Florida Star v. B. J. F., 491 U. S. 524 , 541 –542 (1989) (S calia , J., concurring in part and concurring in judgment))). The Government responds that there is a “unique relationship” between the United States and the Tribes, Brief for Petitioners 27; see Morton v. Mancari, 417 U. S. 535 (1974) , but never explains what about that “unique” relationship justifies overriding the same congressional findings on which the Government relies in resisting any exception for the UDV’s religious use of hoasca. In other words, if any Schedule I substance is in fact always highly dangerous in any amount no matter how used, what about the unique relationship with the Tribes justifies allowing their use of peyote? Nothing about the unique political status of the Tribes makes their members immune from the health risks the Government asserts accompany any use of a Schedule I substance, nor insulates the Schedule I substance the Tribes use in religious exercise from the alleged risk of diversion. The Government argues that the existence of a congressional exemption for peyote does not indicate that the Controlled Substances Act is amenable to judicially crafted exceptions. RFRA, however, plainly contemplates that courts would recognize exceptions—that is how the law works. See 42 U. S. C. §2000bb–1(c) (“A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government”). Congress’ role in the peyote exemption—and the Executive’s, see 21 CFR §1307.31 (2005)—confirms that the findings in the Controlled Substances Act do not preclude exceptions altogether; RFRA makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress. C The well-established peyote exception also fatally undermines the Government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA. The Government argues that the effectiveness of the Controlled Substances Act will be “necessarily U undercut” if the Act is not uniformly applied, without regard to burdens on religious exercise. Brief for Petitioners 18. The peyote exception, however, has been in place since the outset of the Controlled Substances Act, and there is no evidence that it has “undercut” the Government’s ability to enforce the ban on peyote use by non-Indians. The Government points to some pre-Smith cases relying on a need for uniformity in rejecting claims for religious exemptions under the Free Exercise Clause, see Brief for Petitioners 16, but those cases strike us as quite different from the present one. Those cases did not embrace the notion that a general interest in uniformity justified a substantial burden on religious exercise; they instead scrutinized the asserted need and explained why the denied exemptions could not be accommodated. In United States v. Lee, 455 U. S. 252 (1982) , for example, the Court rejected a claimed exception to the obligation to pay Social Security taxes, noting that “mandatory participation is indispensable to the fiscal vitality of the social security system” and that the “tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.” Id., at 258, 260. See also Hernandez v. Commissioner, 490 U. S. 680 , 700 (1989) (same). In Braunfeld v. Brown, 366 U. S. 599 (1961) (plurality opinion), the Court denied a claimed exception to Sunday closing laws, in part because allowing such exceptions “might well provide [the claimants] with an economic advantage over their competitors who must remain closed on that day.” Id., at 608–609. The whole point of a “uniform day of rest for all workers” would have been defeated by exceptions. See Sherbert, 374 U. S., at 408 (discussing Braunfeld). These cases show that the Government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program. Here the Government’s argument for uniformity is different; it rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law. The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.” 42 U. S. C. §2000bb–1(a) . Congress determined that the legislated test “is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” §200bb(a)(5). This determination finds support in our cases; in Sherbert, for example, we rejected a slippery-slope argument similar to the one offered in this case, dismissing as “no more than a possibility” the State’s speculation “that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work” would drain the unemployment benefits fund. 374 U. S., at 407. We reaffirmed just last Term the feasibility of case-by-case consideration of religious exemptions to generally applicable rules. In Cutter v. Wilkinson, 544 U. S. ___ (2005), we held that the Religious Land Use and Institutionalized Persons Act of 2000, which allows federal and state prisoners to seek religious accommodations pursuant to the same standard as set forth in RFRA, does not violate the Establishment Clause. We had “no cause to believe” that the compelling interest test “would not be applied in an appropriately balanced way” to specific claims for exemptions as they arose. Id., at ___ (slip op., at 12). Nothing in our opinion suggested that courts were not up to the task. We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA. But it would have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance. See 42 U. S. C. §2000bb(a)(4) . And in fact the Government has not offered evidence demonstrating that granting the UDV an exemption would cause the kind of administrative harm recognized as a compelling interest in Lee, Hernandez, and Braunfeld. The Government failed to convince the District Court at the preliminary injunction hearing that health or diversion concerns provide a compelling interest in banning the UDV’s sacramental use of hoasca. It cannot compensate for that failure now with the bold argument that there can be no RFRA exceptions at all to the Controlled Substances Act. See Tr. of Oral Arg. 17 (Deputy Solicitor General statement that exception could not be made even for “rigorously policed” use of “one drop” of substance “once a year”). IV Before the District Court, the Government also asserted an interest in compliance with the 1971 United Nations Convention on Psychotropic Substances, Feb. 21, 1971, [1979–1980], 32 U. S. T. 543, T. I. A. S. No. 9725. The Convention, signed by the United States and implemented by the Controlled Substances Act, calls on signatories to prohibit the use of hallucinogens, including DMT. The Government argues that it has a compelling interest in meeting its international obligations by complying with the Convention. The District Court rejected this interest because it found that the Convention does not cover hoasca. The court relied on the official commentary to the Convention, which notes that “Schedule I [of the Convention] does not list U natural hallucinogenic materials,” and that “[p]lants as such are not, and it is submitted are also not likely to be, listed in Schedule I, but only some products obtained from plants.” U. N. Commentary on the Convention on Psychotropic Substances 387, 385 (1976). The court reasoned that hoasca, like the plants from which the tea is made, is sufficiently distinct from DMT itself to fall outside the treaty. See 282 F. Supp. 2d, at 1266–1269. We do not agree. The Convention provides that “a preparation is subject to the same measures of control as the psychotropic substance which it contains,” and defines “preparation” as “any solution or mixture, in whatever physical state, containing one or more psychotropic substances.” See 32 U. S. T., at 546, Art. 1(f)(i); id., at 551, Art. 3. Hoasca is a “solution or mixture” containing DMT; the fact that it is made by the simple process of brewing plants in water, as opposed to some more advanced method, does not change that. To the extent the commentary suggests plants themselves are not covered by the Convention, that is of no moment—the UDV seeks to import and use a tea brewed from plants, not the plants themselves, and the tea plainly qualifies as a “preparation” under the Convention. The fact that hoasca is covered by the Convention, however, does not automatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV’s sacramental use of the tea. At the present stage, it suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV. The Government simply submitted two affidavits by State Department officials attesting to the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs. See Declaration of Gary T. Sheridan (Jan. 24, 2001), App. G to App. to Pet. for Cert. 261a; Declaration of Robert E. Dalton (Jan. 24, 2001), App. H, id., at 265a. We do not doubt the validity of these interests, any more than we doubt the general interest in promoting public health and safety by enforcing the Controlled Substances Act, but under RFRA invocation of such general interests, standing alone, is not enough. 2 The Government repeatedly invokes Congress’ findings and purposes underlying the Controlled Substances Act, but Congress had a reason for enacting RFRA, too. Congress recognized that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” and legislated “the compelling interest test” as the means for the courts to “strik[e] sensible balances between religious liberty and competing prior governmental interests.” 42 U. S. C. §§2000bb(a)(2) , (5). We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. See Smith, 494 U. S., at 885–890. But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue. Applying that test, we conclude that the courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV’s sacramental use of hoasca. The judgment of the United States Court of Appeals for the Tenth Circuit is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of this case. Notes1 As originally enacted, RFRA applied to States as well as the Federal Government. In City of Boerne v. Flores, 521 U. S. 507 (1997) , we held the application to States to be beyond Congress’ legislative authority under §5 of the 14th Amendment. 2 In light of the foregoing, we do not reach the UDV’s argument that Art. 22, ¶5, of the Convention should be read to accommodate exceptions under domestic laws such as RFRA. |
"The Court held that the federal government bore the burden of proving that granting a religious exemption from the general prohibition on hoasca possession would undermine the prohibition. Yet less than a year ago, in Gonzales v. Raich , the Court had placed the burden of showing that an exemption from a general prohibition on marijuana use would not undermine the prohibition on the law's challengers--not on the government defending the law. The difference in burden allocation mattered: The federal government was permitted to enforce its marijuana prohibition nothwithstanding a medical claim rooted in states' rights; it was not permitted to enforce its hoasca prohibition in the face of a religious claim. Does Justice Stevens's argument mean that the Court was wrong in the hoasca case? Should the Justices have invalidated RFRA as applied to all levels of government? Not necessarily. Recall that only Justice Stevens had previously expressed the view that RFRA violates the Establishment Clause. Other Justices might have reasonably thought that a regime of religious exemptions does not actually favor religion over non-religion. Rather, such a regime provides protection for religious minorities who might fare poorly in the political process. After all, it is no accident that during the era of Prohibition, ritual use of wine (by Catholics, Jews and others) was permitted, but that Oregon and other states made no exception for ritual use of peyote. RFRA, on this view, merely levels the playing field." 1 |
1 "The Supreme Court's Unanimous Decision Recognizing a Religious Right to Use Hallucinogenic Tea", Michael C. Dorf , Michael I. Sovern Professor of Law at Columbia University. |
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U.S. Court of Appeals - Carmichael v. United States, 298 F.3d 1367 (2002)
298 F.3d 1367
DAVID ALAN CARMICHAEL v. UNITED STATES.
United States Court of Appeals for the Federal Circuit
Decided: August 12, 2002
David Alan Carmichael (“Carmichael”) appeals the order of the United States Court of Federal Claims dismissing for lack of jurisdiction his claims for back military pay and reinstatement stemming from his discharge from the United States Navy. Carmichael v. United States, No. 99-958C (Ct. Fed. Cl. Oct. 31, 2000). Because the trial court erred in holding that the Navy’s religious accommodation procedures were irrelevant to the voluntariness of Carmichael’s separation, we vacate and remand.
Factual Background
Carmichael enlisted in the Navy in a delayed entry program on June 27, 1980. He served for sixteen years, reaching the rating of Chief Petty Officer, and was awarded a number of medals and commendations.
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