Oral Argument on Ritual Tea and Religious Freedom

As I've blogged before (here and here), the Uniao do Vegetal case -- on the application of the Religious Freedom Restoration Act (RFRA) to the sacramental use of tea with a small amount of hallucionogenic substance in it -- raises vital issues across the board about the scope of religious freedom in America, and what kind and quantum of evidence the government must provide to justify serious restrictions on religious freedom.

The case was argued in the Supreme Court yesterday, and the argument appeared to go very well for the religious group and badly for the federal government (HT: SCOTUS Blog):

Perhaps the most telling development of the argument was that Justice Antonin Scalia displayed almost no sympathy for the government’s position. Noting that Congress has created an exception to drug policy for Indian tribes’ ritual use of peyote, Scalia told [Deputy SG Edwin] Kneedler: “This demonstrates you can make an exception without the sky falling.” Kneedler did not do well in trying to explain away the peyote exception as limited to Congress' special concern for Indian tribes. Scalia, of course, was the author of the Court’s 1990 decision (Employment Division v. Smith) allowing states to ban the tribal use of peyote – a decision that Congress essentially overturned in passing RFRA, and enacting a separate exception for Indians’ use of peyote.

If indeed the justices are overhwlemingly in favor of protecting the group under RFRA, then the view of Justice O'Connor versus Judge Alito won't matter, and the case won't need to be held over until a new justice is seated.

I have an article on the case in the November 1 issue of The Christian Century.  It's at your local newsstand, but despite the date, it's not posted online yet; I'll provide a link when I can.  My article describes the background of the case and the importance of RFRA to religious freedom in America.  It also takes on some of the arguments against religious accommodation made by Marci Hamilton, whose position was discussed here at MOJ a while back.

Tom