JUSTICES WEIGHING NARCOTICS POLICY AGAINST NEEDS OF A CHURCH

WASHINGTON - The Bush administration tried to persuade the Supreme
Court on Tuesday that federal narcotics policy should trump the
religious needs of members of a small South American church who want
to import a hallucinogenic tea that is central to their religious rituals.

Two lower federal courts have barred the government from seizing the
sacred drink, known as hoasca tea, which is brewed from indigenous
Brazilian plants that do not grow in the United States. The tea's
hallucinogenic effect comes from a chemical, dimethyltryptamine,
usually known as DMT, which occurs naturally in the plants and is
listed as a Schedule I banned substance in the federal Controlled
Substances Act.

The Supreme Court refused last year to lift the preliminary
injunction issued by the federal district court in Albuquerque. But
the justices did agree to hear the administration's appeal. As the
major church-state clash of the court's new term, the case has drawn
the attention of mainstream religious groups, including the
Conference of Catholic Bishops, the National Association of
Evangelicals and the American Jewish Committee.

These and numerous other organizations filed briefs on behalf of O
Centro Espirita Beneficiente Uniao do Vegetal, the 130-member
American branch of a Brazilian church known by the initials U.D.V.
The full name rolled with apparent ease off the tongue of Chief
Justice John G. Roberts Jr. at the start of the argument. Several of
the other justices smiled appreciatively at his success.

Although the case clearly has constitutional overtones, the issue
before the court concerns not the First Amendment's protection for
religious practice but rather a federal statute, the Religious
Freedom Restoration Act. Congress enacted that law in 1993 to give
more protection to religious exercise than the Supreme Court itself
was willing to provide in a 1989 decision that rejected the claim of
members of an American Indian church to a constitutional right to use
peyote in religious rituals.

Under the Religious Freedom Restoration Act, the government may not
interfere with a religious practice unless it can demonstrate a
"compelling" reason for doing so. The Supreme Court declared in 1997
that the law could not apply to states on states' rights grounds, but
it remains applicable to the federal government. This case, Gonzales
v. O Centro Espirita Beneficiente Uniao do Vegetal, No. 04-1084, may
show whether the law has teeth.

Arguing for the government, Edwin S. Kneedler, a deputy solicitor
general, said the government's "compelling interest" in prohibiting
the importation of the group's sacramental tea was established by the
listing of DMT in the most restricted category under the federal drug
law, reserved for substances that are regarded as contraband, without
legitimate uses.

"The Congressional listing in and of itself is sufficient," Mr. Kneedler said.

He added that any deviation from Congress's "categorical judgment"
would "turn over to 700 district judges" the power to grant
individualized exemptions from a law that required uniform
application in order to be effective.

But several justices objected that the Religious Freedom Restoration
Act appeared to require individual determinations. Justice Antonin
Scalia said he understood the law "to say there can be an exception
to all federal statutes where someone makes a religious objection to
compliance" and a judge finds an absence of a compelling interest.

Justice Ruth Bader Ginsburg said the fact that Congress had now
granted Indian tribes an exemption for their religious use of peyote
showed that the government's interest in uniformity could not be compelling.

"The two situations seem to be alike, peyote and this," Justice
Ginsburg said. "The problem of preferring one religious group over
another arises once there is an exception."

Mr. Kneedler replied that the peyote exception was a special case,
justified by the history and special relationship between the federal
government and Indian tribes.

"But," Justice Scalia said, "it still shows that you can make an
exemption without the sky falling."

Chief Justice Roberts, addressing his former colleague from the
solicitor general's office, asked Mr. Kneedler, "We don't have to
make a once-and-for-all determination, do we?"

He said that if it turned out that the drug was being diverted to
illicit uses, "or the membership of the church expands in a way that
leads you to believe it is being abused," an exemption could be withdrawn.

The chief justice asked whether, under the government's "totally
categorical approach," Mr. Kneedler's position would be the same if
the church permitted each member to have only one drop of hoasca tea
once a year.

Yes, Congress could prohibit even that minimal use, Mr. Kneedler said.

Mr. Kneedler, making his 91st argument, is one of the most
experienced Supreme Court advocates of all time. His opponent, Nancy
Hollander, a lawyer from Albuquerque, was appearing before the
Supreme Court for the first time. But as a former president of the
National Association of Criminal Defense Lawyers, Ms. Hollander was
hardly a courtroom novice and managed gamely to hold her own.

All that the Religious Freedom Restoration Act did, she said, was to
"give every religious organization, minority and majority, the
opportunity to go into court and make their claim." She said the
government's position was "fundamentally and structurally
incompatible" with the statute.

One disagreement between the two sides was over the interpretation of
a 1971 international treaty, the United Nations Convention on
Psychotropic Substances, which obliges the 175 countries that have
signed it to combat international traffic in illicit drugs. While DMT
as a chemical substance or additive is covered by the treaty, there
is much dispute over whether the prohibition applies to its natural
occurrence in hoasca tea.

Mr. Kneedler argued that the treaty did apply, and that it provided
another compelling justification for the government's policy.