Re: Breaking news in federal RFRA case

[Marty Lederman]

Marci writes:  "The Supreme Court was in no position to investigate whether this drug is different from peyote, or, more importantly from my point of view, whether the drug is routinely given to minors (as it is)."   Why not?  The case was briefed by some of the best lawyers in the government and argued by one of the best SCOTUS advocates in the business.  DEA, the State Department and the Civil Division left no stone unturned in developing every argument they could imagine for why there was a compelling interest in denying the exemption here.  If the risk to children from hoasca was more substantial than the risk to children from Native American use of peyote, surely that fact would have been prominent in the government's case, and the courts could have evaluated the evidence.  But the goverment made only a passing reference (in its opening brief) to the fact that UDC administers hoasca to children.  The government did not try to demonstrate that the UDV's practice with respect to minors causes harms greater than the use of peyote by children of tribal members -- a use that the federal government has left unregulated for decades.  Nor did the government ask for any restrictions in the preliminary injunction limiting or regulating the use of the drug by children.   The risk to children could have, and would have, been "taken into account" and "documented" if there were evidence that distinguishes this case from the peyote exemption.  But apparently there was no such evidence.  DOJ's calculated decision not to place as much weight on this factor as Marci apparently would have done does not demonstrate anything about the courts' capacity to evaluate and defer to compelling interests that are supported by evidence.  Cf. Cutter.  ----- Original Message ----- From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Tuesday, February 21, 2006 12:49 PM Subject: Re: Breaking news in federal RFRA case I am not going to belabor the point, Marty, but I strongly disagree with your interpretation of the application of standards of review.  The strict scrutiny standard puts the courts in the business of second-guessing legislative judgment, normally where there is a lurking constitutional violation.  RFRA strict scrutiny is not triggered by any lurking constitutional error, but rather bare second-guessing.  Trying to normalize what RFRA demands -- imposition of a constitutional standard of review through legislation (which is only reflected in RLUIPA) is a mistake in my view.   In this case in particular, the inadequacies of the courts are shown.  The Supreme Court was in no position to investigate whether this drug is different from peyote, or, more importantly from my point of view, whether the drug is routinely given to minors (as it is).  Had this specific exemption request been part of a legislative inquiry, the regular use by minors could have been taken into account, and, I presume, the compelling interest for denying its use documented.  There was no place for such an inquiry in the Court's appellate review.  In any event, the Court is absolutely right that the federal government asked for it, and here they have it.   Marci     In a message dated 2/21/2006 12:29:30 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: I know we've been over this ground many times, but perhaps it's still worth clarifying:   It's not a delegation of a "policy" decision -- it's asking the courts to apply a legal standard.  For instance, in this case, it was Congress that decided that the sky would not fall with the peyote exemption, and the federal government that failed to explain why the harms in this case would be any worse or different than in the peyote case.  This was basic analogic reasoning, applying a statutory standard -- everyday stuff for the judiciary.  Nor was it beyond the Court's ken to conclude -- correctly -- that the exemption would not be required if the treaty-based consequences would be severe, but that the government had not demonstrated that the consequences of breaching the treaty would in fact be as draconian as the State Department alleged.   _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

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