Religious Freedom Restoration Act: An Overview of Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal
Religious Freedom Restoration Act:
An Overview of Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal
Daniel Schuman
Legislative Attorney
American Law Division
Summary
On February 21, 2006, the Supreme Court issued an opinion in Gonzales v. O
Centro Espirita Beneficente Uniao do Vegetal (UDV), a case addressing the use of an
hallucinogenic tea in the context of religious ceremonies conducted by a religious sect
in New Mexico. In its decision, the Court determined that under the Religious Freedom
Restoration Act (RFRA), the federal government could not prohibit the sect’s use of the
tea absent a compelling government interest in doing so, and that the federal government
had failed to establish a compelling interest. This report provides an overview of RFRA
and the O Centro Espirita case.
Religious Freedom Restoration Act
The genesis of the Religious Freedom Restoration Act (RFRA) lies in the Supreme
Court’s decision in Employment Division, Oregon Department of Human Resources v.
Smith.1 In that case, decided in 1990, the Court narrowed the scope of the Free Exercise
Clause of the First Amendment, which provides that “Congress shall make no law ...
prohibiting the free exercise [of religion].”2 The specific issue before the Court in Smith
was whether two Native Americans who had been fired from their jobs as drug counselors
after they were discovered to have ingested peyote in a ritual of the Native American
Church were eligible for state unemployment benefits. The Court determined that they
were not, and in so doing also altered the standard of review generally used for free
exercise cases.
1 494 U.S. 872 (1990).
2 U.S. Const. Amend. 1.
Before Smith, the Court had generally applied a strict scrutiny test to government
action that allegedly burdened the exercise of religion.3 That test required the government
to show that an action burdening religion served a compelling government interest and
that no less burdensome course of action was feasible. If the government could not so
demonstrate, the test required that the religious practice be exempted from the
government regulation or prohibition at issue.
In Smith, the Court abandoned the strict scrutiny test and held that religiously neutral
laws may be uniformly applied to all persons without regard to any burden or prohibition
placed on their exercise of religion. The Free Exercise Clause, the Court said, never
“relieves an individual of the obligation to comply with a ‘valid and neutral law of general
applicability’ on the ground the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes).”4 In the case at hand, that new standard meant that the Free
Exercise Clause mandated no religious exemption from Oregon’s drug laws for Native
American use of peyote in a sacramental ceremony and, consequently, no eligibility for
unemployment benefits of the two Native Americans who lost their jobs because of their
participation in such a ceremony. More generally, the Court asserted that the question of
whether religious practices ought to be accommodated by government was a matter to be
resolved by the political process and not by the courts, although it admitted that “leaving
accommodation to the political process will place at a relative disadvantage those
religious practices that are not widely engaged in....”5
In 1993, Congress enacted the Religious Freedom Restoration Act (RFRA) to restore
the compelling interest test set forth in earlier cases in all circumstances where the
freedom of religious exercise is being burdened and to provide a claim for relief when the
government substantially burdens the religious exercise. Thus, RFRA granted government
the right to substantially burden a person’s exercise of religion only if it demonstrates that
application of the burden to the person is (1) in furtherance of a compelling governmental
interest and (2) the least restrictive means of furthering that compelling governmental
interest. 6
Gonzales v. O Centro Espirita
O Centro Espirita Beneficente Uniao do Vegetal (UDV) is a religious sect with
origins in the Amazon Rainforest in which members of the church receive communion
by drinking a sacramental tea containing a hallucinogen (hoasca) regulated under the
Controlled Substances Act by the federal government. In 1999, federal agents seized a
shipment of hoasca from Brazil that was to be used in UDV ceremonies. The church
challenged the seizure and requested a preliminary injunction to prevent the further
seizure of hoasca or the arrest of any UDV members using the drug. The complaint
3 See Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).
4 494 U.S. at 879.
5 Id. at 890.
6 In City of Boerne v. Flores, the Supreme Court determined that RFRA was unconstitutional as
it applied to the actions of state governments. 521 U.S. 507 (1997). For a discussion of the
Boerne case, see CRS Report 97-795, The Religious Freedom Restoration Act: Its Rise, Fall, and
Current Status, by David M. Ackerman.
alleged that the application of the Controlled Substances Act to the church’s sacramental
use of hoasca violated RFRA. At a hearing on the preliminary injunction, the government
conceded that the application of the Controlled Substances Act would substantially
burden a sincere exercise of religion by the UDV, but argued that there was no RFRA
violation because the application of the Controlled Substances Act 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
[Controlled Substances] Act.”7
The district court found 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.”8 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 required the church to import hoasca
pursuant to federal permits, to restrict control of the church’s supply of hoasca to persons
of church authority, and to warn members of the dangers of hoasca. The government
appealed the issuance of the injunction, and a panel of the United States Court of Appeals
for the Tenth Circuit affirmed, as did a majority of the Circuit sitting en banc.9 The
government appealed to the Supreme Court.
In making its appeal, the government put forth three arguments challenging the lower
court’s decision. First, it challenged the preliminary injunction itself, alleging that the
court used the wrong test for determining whether a preliminary injunction was proper.
Second, it argued that enforcement of the Controlled Substances Act precluded any type
of waiver for UDV. Third, it argued that compliance with the United Nations Convention
on Psychotropic Substances also prevented it from allowing UDV to use hoasca, a
substance covered under the convention.
Preliminary Injunction Standard. The government did not challenge the district
court’s factual findings or its conclusion that the evidence presented at the hearing10
regarding health risks and risk of diversion was “in equipoise” and “virtually balanced.”
7 Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 126 S. Ct. 1211 (2006).
8 O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 282 F. Supp. 2d 1236, 1255 (D.
N.M. 2002).
9 342 F. 3d 1170 (10th Cir. 2003); 389 F. 3d 973 (10th Cir. 2004).
10 Gonzales, 126 S. Ct. at 1218. At the hearing on the preliminary injunction, 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
(continued...)
Rather, the government challenged the district court’s determination that evidence “in
equipoise” was sufficient for issuing a preliminary injunction against enforcement of the
Controlled Substances Act.11 On appeal, the government noted “the well-established
principle that the party seeking pretrial relief bears the burden of demonstrating a
likelihood of success on the merits.”12 The government argued that a “mere tie in the
evidentiary record” was insufficient for issuing a preliminary injunction.13 Along with a
majority of the en banc Court of Appeals, the Supreme Court rejected this argument,
finding that 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 interest.”14
The Court also rejected the government’s contention that the UDV bore the burden of
disproving the asserted compelling interests at the hearing on the preliminary injunction,
citing another recent case which held that “respondents must be deemed likely to prevail
unless the government has shown that respondents’ proposed less restrictive alternatives
are less effective than [enforcing the Act].”15 The Court stated that “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.”16
Enforcement of the Controlled Substances Act. The government also
challenged the district court’s determination that it failed to articulate a compelling
governmental interest to justify its burden on the UDV’s religious practices by arguing
that the Controlled Substances Act “precludes any consideration of individualized17
exceptions such as [those] sought by the UDV.” The Supreme Court summarized the
government’s position, saying that “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 and18
simply admits of no exceptions.” However, the Court rejected the government’s
assertion that Congress’s classification of hoasca as a Schedule I substance “relieves the
10 (...continued)
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. 126 S. Ct. at 1218.
11 Id.
12 Id. at 1219, citations omitted.
13 Id.
14 Id.
15 Id., citing Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004). The Court stated
that the reasoning established in Ashcroft applied in the present case, even though the government
failed to meet the first prong of the compelling interest test and did not reach the least restrictive
means prong.
16 Id. at 1220.
17 Id.
18 Id.
government of the obligation to shoulder its burden under RFRA.”19 The Court noted that
the Controlled Substances Act authorizes 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,” and that an exception has been made for the religious
use of peyote by the Native American Church and all members of every recognized Indian
Tribe.20 The Court found that “[i]f such use is permitted ... for thousands of Native
Americans practicing their faith, it is difficult to see how [the government] can preclude
any consideration of a similar exception for the 130 or so American members of the UDV
who want to practice theirs.”21
The Court held that the peyote exemption not only undermined the government’s
contention that the Act admits no exceptions under RFRA, but that it also found that the
government failed to provide evidence of how such an exemption has “undercut” the
government’s ability to enforce the law with respect to nonreligious uses.22 The Court
rejected the government’s reliance on other cases where the Court found that the
government had a compelling interest in the uniform application of a particular program,
finding that in this case the government’s claim was not based on the administration of
a statutory program, but rather on “slippery-slope concerns that could be invoked in
response to an RFRA claim for an exception to a generally applicable law.”23 In so doing,
the Court stated that “RFRA operates by mandating consideration, under the compelling
interest test, of exceptions to ‘rule[s] of general applicability,’” and noted that it had
recently reaffirmed “the feasibility of case-by-case consideration of religious exemptions
to generally applicable rules.”24
Convention on Psychotropic Substances. With respect to its obligation to
comply with the United Nations Convention on Psychotropic Substances, the Court also
rejected the government’s contention that compliance with the treaty itself was enough
to justify the burden on the UDV’s religious exercises.25 In so doing, the Court stated that
it did “not doubt the validity of [the government’s] interests [in complying with the
treaty], any more than [it] doubt[ed] the general interest in promoting public health and
19 Id. at 1211.
20 Id., citing 21 U.S.C. 822(d). See 21 C.F.R. 1307.31. The government argued that the existence
of a congressionally mandated exemption from the Controlled Substances Act did not mean that
the Act was subject to judicially mandated exemptions. The Court countered that argument by
noting that RFRA “plainly contemplates that courts would recognize exceptions — that is how
the law works.” 126 S. Ct. at 1222.
21 Id. The Court also rejected the government’s argument that the use of peyote is allowed
because of the “unique relationship” between the United States and the tribes, noting that the
government never explained what about that relationship justifies the different treatment of the
tribes versus the UDV.
22 Id.
23 Id. at 1223.
24 Id., citing Cutter v. Wilkinson, 544 U.S. 709 (2005).
25 126 S. Ct. at 1224.
safety by enforcing the Controlled Substances Act, but under RFRA invocation of such
general interests, standing alone, is not enough.”26
Conclusion
The Court proceeded to affirm the judgment of the United State Court of Appeals
for the Tenth Circuit and remanded the case for further proceedings. Presumably, the
remand leaves open the possibility that the government could at some point establish a
compelling interest that justifies the burden on the UDV. It should also be noted that the
Court did not address the constitutionality of RFRA as it applies to the federal
government, as this was not a question presented to it on appeal.
The potential impact of the Court’s decision is uncertain because the Court focused
on the importance of a case-by-case approach with respect to religious exemptions from
generally applicable rules. The Court’s decision does not establish a broad precedent for
religious exemptions from criminal statutes. It does, however, appear to establish a
precedent with respect to the type of evidence that must be presented by the government
to establish a compelling interest. The Court made it clear that the government could not
establish a compelling interest in simply enforcing an existing statute; there must be some
other justification for the burden on religious expression.
26 Id. at 1225.