ROBERTS UPHOLDS RELIGIOUS FREEDOM IN HIS FIRST NATIVE RIGHTS DECISION

Chief Justice John Roberts took the side of indigenous religious
freedom in his first written Indian law opinion since joining the U.S.
Supreme Court.

In Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, decided
on Feb. 21, Roberts upheld a lower court injunction against U.S.
Customs inspectors who had seized a shipment of hoasca, a
hallucinogenic tea brewed from plants found only in the Amazon rain
forest. The hoasca was destined for sacramental use by American
members of a Brazilian sect, the Centro Espirita Beneficente Uniao do
Vegetal (UDV). Hoasca contains DMT, a chemical regulated by the
federal Controlled Substances Act.

Roberts rejected the government claim that it was entitled to hamper
the ''sincere exercise'' of the UDV religion for the sake of applying
the act uniformly. He ruled that the Religious Freedom Restoration Act
of 1993 required the government to show that its ban on the tea was
''the least restrictive means'' of furthering its interest in
controlling hallucinogenic substances.

The RFRA, designed to protect adherents of the Native American Church,
figured notably in Roberts' recent confirmation hearings. The act was
a key issue in a long-simmering dispute between Congress and the
Supreme Court. It passed in 1993 as a congressional attempt to
overturn a 1990 Supreme Court ruling that allowed the state of Oregon
to punish two American Indians for participating in the peyote rite
(See Employment Division, Department of Human Resources of Oregon v.
Smith). The court, in turn, declared parts of the act
unconstitutional, saying that Congress had exceeded its authority in
extending religious freedom as a barrier against state law. (See City
of Boerne v. Flores.)

Resentment against this override emerged in the Senate Judiciary
Committee hearings on Roberts and the subsequent floor debate. U.S.
Sen. Arlen Specter, R.-Pa., dealt with it at length, although press
coverage mocked his technical language.

Roberts disposed of the controversy in a quick footnote, saying the
Boerne ruling applied only to state law. His holding struck a
conciliatory note in what has been, in effect, a slow-motion
constitutional crisis between Congress and the court. ''Congress had a
reason for enacting RFRA, too,'' he reminded the government
prosecutors.

''Congress recognized that 'laws neutral towards 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 'strike sensible balances between
religious liberty and competing prior governmental
interests.'''

He acknowledged that ''we have no reason to pretend that the task ...
is an easy one.'' But he deferred to congressional intent. ''But
Congress has determined that courts should strike sensible balances.''

Part of Roberts' opinion appeared to worry advocates of the Native
American Church, however. Roberts cited the federal law exception for
Indian use of peyote in justifying a ''similar exception for the 130
or so American members of the UDV.'' Government lawyers had argued
that the peyote exception was based on the ''unique relation'' between
the United States and the tribes. Roberts retorted that the government
brief ''never explains what about that 'unique' relation justifies
overriding the same congressional finding on which the government
relies in resisting any exception for the UDV's religious use of hoasca.

''In other words,'' he continued, if any controlled substance ''is in
fact always highly dangerous in any amount no matter how used, what
about the unique relationship with the Tribes justifies their use of
peyote?''

Some critics appear to have seen this passage as the entering wedge of
Roberts' call as a private lawyer for the rethinking of the federal
trust relationship with tribes. But Roberts was specifically
ridiculing the government's position that there should be no
exceptions to the Controlled Substances Act.

''The Government's argument echoes the classic rejoinder of
bureaucrats throughout history,'' he wrote. ''If I make an exception
for you, I'll have to make one for everybody, so no
exceptions.''

Instead, he wrote, ''Congress determined that the legislated test 'is
a workable test for striking reasonable balances between religious
liberty and competing prior governmental interests.'''

The decision was unanimous, except for newly confirmed Justice Samuel
Alito, who took no part in considering the case.