A small, but accepted as bona fide, religious group illegally imported a hallucinogen to make hoasca tea for their religious ceremonies. When blocked by the DEA, they argued that the federal Religious Freedom Restoration Act gave them an exception to the generally applicable law. The Tenth Circuit of Appeals upheld their argument for the time being (via injunction), though it was divided on the reasoning.
Judge McConnell, referenced a few days ago as a long term advocate for conservative leaning religious groups, wrote a separate concurrence that in particular focused on why the group could ultimately prevail. [His comments on the technical issue suggests the value of using various disciplines to help interpret the law.]
Professor Hamilton, who strongly is against laws such as RFRA (and successfully argued in Boerne v. Flores that as applied to states, the law is unconstitutional*), wrote a column strongly critical of the decision. A basic problem in her argument is seen early on when she notes: "The Constitution's Free Exercise Clause has long been interpreted to allow neutral laws that regulate conduct - not belief -- to be applied to religious persons and institutions, along with everyone else in society."
This is only partially true. First off, from around 1940 to 1990, the federal courts specifically noted that religious conduct is up to a point to be treated (including when state action is involved) with special concern because "free exercise" does not just include belief. Using state constitutions, various state courts have done the same since then.
Likewise, aside from the fact that speech and associational rights in various ways involve religious conduct, there are various specific laws that treat religious activities in special ways. This includes federal civil rights laws and RFRA itself. Though she might think Flores stands for the broad principle that general laws (even those involving religious conduct) should be treated equally, the federal courts have not so held. Thus, though Hamilton's reading might be somewhat reasonable, it isn't the one currently used by the lower courts.
They read the opinion basically as a protection of federalism, and the opinion's focus on the Fourteenth Amendment (and later opinions used it as precedent for other federalism decisions) makes this appropriate. And, the Supreme Court has not challenged this interpretation, a court particularly concerned with its authority in recent years. [It should be pointed out that other provisions of the Bill of Rights also are applied differently by the states and federal government. For instance, the federal government is required to have unanimous juries in criminal cases; a few states allow less.]
This makes sense because not only did the Supremes specifically note that governments could make religiously based exceptions, the federal government has various powers (other than Section Five of the Fourteenth Amendment) that could be carried out in such a way to include them. So, instead of say including the provision in its spending bills, why not have one big ominibus law? Thus, as applied to the federal government, RFRA is still good law.
The fact that Congress passed the law suggests Prof. Hamilton's concern that the court here had to "second-guess what the people's representatives have done" is somewhat misplaced. Congress quite often passes laws that supplies various rights and privileges that somehow narrow other laws previously passed. The courts then have to balance the various laws and determine some sort of reasonable result. This is what Judge McConnell means when he notes that if one is troubled with the judgments made here, you would also be troubled with a lot more.
And, even under the current somewhat narrow reading of the Free Exercise Clause, discrimination against religious claimants is disfavored. Therefore, Prof. Hamilton's suggestion the church try on their own to get a special dispensation is troubling as well. Why exactly should some religious believers be allowed to use the rather similar hallucinogen peyote but not this one?
To the degree RFRA does away with such favoring of politically successful sects over others, it seems to be promoting clear constitutional commands. If nothing else, being particularly concerned about the matter and reading federal laws in such a way (if reasonably possible) to avoid it, is not something for which the courts should be criticized.
It is also interesting how she suggests those that do so in this case align themselves "with a more liberal agenda" in such a way promotes a judicial activism that "Republicans" hate. No, that doesn't work. First, judicial activism is not something one particular party favors ... boilerplate political arguments notwithstanding.
Second, religious freedom is not just a "liberal agenda" as we found out when examining the attempt by conservative legal groups to protect religious conduct and speech. Everything cannot and should not be so easy divided along liberal/conservative lines. The tendency for many to do so in religious matters in particular is troubling.
Prof. Hamilton is right to argue that it is difficult to carry out a rule that gives religion special benefits that the general public does not enjoy. All the same, we have traditionally considered religion special, including religious conduct. Thus, for instance, Jehovah Witnesses need not take part in pledge ceremonies and during the Prohibition sacramental wine use was allowed. Also, religious institutions are given special allowance to ignore certain civil rights laws as to discrimination by religion and even gender.
And, the courts had some role in formulating and carrying forth such exceptions, especially if the general law specifically required it. Are we to do so selectively? Are we to avoid the problem by suggesting that the sort of free exercise of religion we specifically protect only involves belief?
I guess we can, but it wouldn't be very convincing or equitable.
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* Mark Kleiman, who I have referenced lately on other matters and is an expert in drugs and public policy, mentioned the 10th Circuit case on his blog. The case can thus be accessed from his blog or the Hamilton essay. He noted that he was an expert in the case (he spoke on behalf of the church, though he didn't say so), so felt it improper for him to state an opinion on the matter.
I don't quite know why, though perhaps the ongoing nature of the matter influenced his opinion. OTOH, Prof. Hamilton does not mention her role in the Flores case. In an earlier column, Prof. Hamilton did mention that she is a convert on the matter, which might explain her strident beliefs. Anyway, I think being aware of such background information is generally helpful.
Also, though I do not know if he discussed the matter, cases like this suggest the misguided nature of our drug policies. The either/or tendency that determines that any use of certain drugs must be banned, legitimate religious/medical/other uses notwithstanding, is ill advised and often leads to sad results. And, the policies tend to be arbitrary, thus alcohol was long allowed to native tribes, but not certain hallucinogens. This is a rather ironic result, given the historical record.
The specially regulated nature of the ceremonial use of mind altering drugs teaches something as well -- certain dangerous substances and activities will always be used in our society, so its best to accept those who find ways to do so in a safer way. In respect to this subject, Kleiman's comments regarding needle exchange policies is worth reading.