Amicus Curiae Brief — Gonzales v. O Centro Espírita Beneficente União Do Vegetal

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No. 04-1084

In Che

Supreme Court of the United States

ALBERTO R. GONZALES,

Attorney General, et al.,

Petitioners,

O CENTRO ESPIRITA BENEFICIENTE

UNIAO DO VEGETAL, et al.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Tenth Circuit

BRIEF OF LIBERTY LEGAL INSTITUTE

AS AMICUS CURIAE IN SUPPORT

OF THE RESPONDENTS

KELLY SHACKELFORD

Counsel of Record

HIRAM S. SASSER III

JONATHAN M. SAENZ

Liberty Legal Institute

903 East 18th Street, Suite 230

Plano, Texas 75074

(972) 423-3131

(972) 423-6570 (FAX)

Counsel for Amicus Curtae

iM KEE LAW BRIEF PRINTING CO ae 225-90

OR CALL COLLECT (#02) 442 2841

TABLE O™ CONTENTS

THE UNITED NATIONS CONVENTION ON

PSYCHOTROPIC SUBSTANCES MAY NOT

BE USED TO BURDEN FREEDOM OF RE-

LIGIOUS EXPRESSION BECAUSE THE

TREATY IS SUBJECT TO THE RELIGIOUS

FREEDOM RESTORATION ACT.............cccc000+ 4

A. The Religious Freedom Restoration Act

supersedes the Convention on Psychotro-

pic Substances because the RFRA was

i isctrpevcccccnnsnstinnneneninmnencasn 5

B. The Religious Freedom Restoration Act

applies to the Convention on Psychotropic

Substances because the RFRA expressly

applies to all other rules of general appli-

cability, regardless of when the rules were

C. The Government’s reliance on Charming

SI Be ccsncccncstcccensaneinsagetanetnsens 7

RFRA IS CONSISTENT WITH THE INTER-

NATIONAL LEGAL OBLIGATIONS OF THE

TABLE OF CONTENTS - Continued

Page

Ill. EVEN IF THE CONVENTION CAN BE

USED AS A POTENTIAL COMPELLING

GOVERNMENTAL INTEREST, THE GOV-

ERNMENT WOULD NOT BE JUSTIFIED IN

BURDENING THE FREE EXERCISE OF

RELIGION ON THE BASIS OF THE CON-

VEEINT ION, .....cccccccccosscscscosescoscsssscssoscssoosssssssoosooses 10

A. Two religious groups engaging in a simi-

lar practice that the government would

argue creates the same “harm” are being

treated differently.................cccceseceeeeeresees ~10

B. There is no compelling interest if the

government restricts the religious prac-

tice of hoasca but allows activity that

causes the same “harm” ..............:.c0000s+0008 11

CONCLUSION .....ccccccccccccccsccoscsscssesscessosssssosssocssssososossees 12

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Church of Lukumi Babalu Aye v. City of Hialeah,

EE 11

City of Boerne v. Flores, 521 U.S. 507 (1997).................04. 4

Employment Division v. Smith, 494 U.S. 872 (1990) ....... 12

Hartford Fire Ins. Co. v. California, 509 U.S. 764

EE eS 7

Missouri v. Holland, 252 U.S. 416 (1920) ................ccccccccees 9

Murray v. The Schooner Charming Betsy, 6 U.S. (2

EE 7

Reid v. Covert, 354 U.S. 1 (1957) ..........ccccccescccsccceeeseerreeeenes 6

The Paquete Habana, 175 U.S. 677 (1900)....................00. 7

Whitney v. Robertson, 124 U.S. 190 (1888)...................... 6

Wisconsin v. Yoder, 406 U.S. 205 (1972) ................000. 11, 13

INTERNATIONAL CASES

Ambatielos Case (Greece v. U.K.), 1951, 12 R.Int

EE 2

Interhandel (Switz. v. U.S.), 1959 LC.J. Rep. 5, 27

ET 1

STATUTES

ee 5,6

I Ui ccrenstceenintreniipiemnenennenmenesemngmecnunnnemnmemenennenns 8

CE 4,6

GEIR, GIR, WE, G. BB cccczsncevscsccsssesssnssecccscszevesesncemascnseseee 5

TABLE OF AUTHORITIES — Continued

TREATIES

International Covenant on Civil and Political

Rights, opened for signature Dec. 19, 1966, 999

OR ke Dy ,

United Nations Convention on Psychotropic Sub-

stances, opened for signature Feb. 21, 1971, 32

U.S.T. 543, 1019 U.N. T.S. 175..........ccccccecceeeeneennnenes

OTHER AUTHORITIES

Hon. JACK BrRooKS, CHAIRMAN, COMMITTEE ON THE

JUDICIARY; RELIGIOUS FREEDOM RESTORATION ACT

OF 1993 (RFRA), H.R. REP. No. 103-88 (1993) ........

Gerald L. Neuman, The Global Dimension of

RFRA, 14 Const. Comment. 33 (1997)..................+

Universal Declaration of Human Rights, G.A. res.

217A (III), U.N. Doc A/810 at 71 (1948) ...............0+

eeeeeee

INTEREST OF AMICUS CURIAE'

Amicus Curiae Liberty Legal Institute is a non-profit

law firm dedicated to the preservation of first amendment

rights and religious freedom. In its commitment to the

protection of religious liberty of all faiths, the Institute

country. The Liberty Legal Institute is increasingly aware

that international law is playing a role in decisions by the

United States Supreme Court in a diverse array of issues,

international law has played a distinct role in our jurispru-

dence since the formation of this Nation, it is important to

recognize that our domestic jurisprudence superbly serves

this Nation, its citizens and visiting foreign nationals.

The customary international rule of exhaustion of

local remedies compels federal courts to first exhaust all

domestic legal analysis before engaging in the application

of foreign sources of law. See Interhandel (Switz. v. U.S.),

1959 LC.J. Rep. 5, 27 (Mar. 21) (“The rule that local

remedies must be exhausted before international pro-

ceedings may be instituted is a well-established rule of

customary international law.”). Amicus believes very

strongly thet our national sovereignty depends upon

federal courts restraining themselves to bifurcate analy-

sis in all cases where international law may be seen as

providing helpful guidance. Such bifurcation of analysis

" The parties have consented to the filing of this brief. Their letters

of consent have been filed with the Clerk of this Court. Pursuant to this

Court's Rule 37.6, none of the counsel for the parties authored this brief

in whole or in part and no one other than amicus or its counsel contrib-

uted money or services to the preparation and submisrion of this brief.

protects the integrity of our judicial system and highlights

exactly how the Court is employing international law.

“Local remedies” includes “the whole system of legal

protection, as provided by municipal law,” including “the

use of procedural facilities which municipal law makes

available to litigants.” Ambatielos Case (Greece v. U.K.),

1951, 12 RIntl Arb. Awards 91, 120, 122. Thus, it is

incumbent upon this Court to resort to international legal

analysis only when all domestic legal analysis has been

fully exhausted, bifurcating its analysis to purely domestic

analysis first, then international legal analysis. This case

presents the Court with an opportunity to clearly define

the application of an international legal source as it affects

domestic legislation.

While the social] utility of relying upon international

sources in various areas of the law, such as domestic

constitutional jurisprudence, remains controversial, it is

the position of amicus that this Court should at least put

lower courts and practitioners on notice of exactly how

international law may be applied. Bifurcation will ensure

the consistency the legal community has come to expect

from the judiciary while not foreclosing the application of

international law in appropriate circumstances.

SUMMARY OF THE ARGUMENT

The United States Government may not use the

United Nations’ Convention on Psychotropic Substances

(Convention) as a basis for limiting the freedom of reli-

apply to the hoasca ter at issue in this case. Second, the

Religious Freedom Restoration Act of 1993 (“RFRA”)

supersedes the Convention by being last-in-time and by

explicitly prohibiting federal law from violating the RFRA.

The Religious Freedom Restoration Act itself is the

United States’ expression of the global consensus that the

freedom of religious expression remain inviolate. Both

domestic and international law repeatedly emphasize the

importance of protecting the freedom of religious expres-

sion. The United States is compelled to uphold those

international treaties, such as the International Covenant

on Civil and Political Rights (““ICCPR”), which demand

that the freedom of religious expression be promoted.

Even if the Convention on Psychotropic Substances

can be used as a compelling governmental interest, the

Government would not be justified in burdening the free

exercise of religion on the basis of the Convention. The

Convention allows for religious-use exemptions, such as is

employed with peyote. The hoasca used by O Centro

Espirita Beneficiente Unido do Vegetal, however, is kept

from this exemption solely because it is made from plants

that are native to Brazil, not the United States. There is,

per se, 10 compelling governmental interest. Not allowing

an exemption for the limited, religious use of hoasca

cannot be truly “compelling” for the government when it

allows an exemption for the religious use of peyote.

ARGUMENT

I. THE UNITED NATIONS CONVENTION ON

PSYCHOTROPIC SUBSTANCES MAY NOT BE

USED TO BURDEN FREEDOM OF RELIGIOUS

EXPRESSION BECAUSE THE TREATY IS SUB-

JECT TO THE RELIGIOUS FREEDOM RESTO-

RATION ACT.

The Religious Freedom Restoration Act, 42 U.S.C.

8§_2000bb et seg. (“RFRA”), prohibits even rules of general

applicability from “burdenfing] a person’s exercise of

religion” unless the Government can demonstrate that the

burden both “is in furtherance of a compelling governmen-

tal interest” and “is the least restrictive means of further-

ing that compelling governmental interest.” Because the

United Nations Convention on Psychotropic Substances,

opened for signature Feb. 21, 1971, 32 U.S.T. 543, 1019

U.N.TS. 175 is a “rule of general applicability” resulting in

the burdening of religious expression, the RFRA explicitly

applies.

Because the Convention is subject to the RFRA, the

mere existence of the Convention may not be used as a

compelling governmental interest to fulfill the demands of

the RFRA. If the Government could claim a compelling

governmental interest in a treaty’s burdening a person’s

freedom of religious expression merely because the treaty

exists, then the first prong of the RFRA test would be

meaningless. Any statute, merely by virtue of having been

enacted by Congress, would then become a “compelling

governmental! interest” and the RFRA would be severely

* In City of Boerne v. Flores, 521 U.S. 507 (1997), this Court

declared the RFRA unconstitutional! only as applied to the States.

hindered in its ability to protect religious liberty from

offending statutes.

Further, because the Convention is not self-executing,

it is merely the implementing legislation that can serve as

a compelling interest, rather than the Convention itself.

See 21 U.S.C. § 801la(2) (“The Convention is not self-

executing, and the obligations of the United States there-

under may only be performed pursuant to appropriate

legislation.”).

This Court should bifurcate its analysis. Assuming

that the Convention and its implementing legislation even

apply to hoasca at all,’ both are subject to RFRA, which is

later enacted and which applies to all federal law. Under

normal rules of statutory construction, when two statutes

or a statute and treaty clearly conflict, the one passed last-

in-time prevails.

A. The Religious Freedom Restoration Act su-

persedes the Convention on Psychotropic

Substances because the RFRA was passed

_last-in-time.

Under the Supremacy Clause, the RFRA, the Con-

vention and the Convention’s implementing legislation

are the “supreme law of the land.” U.S. Const. art. VI, cl.

2. As the Government argues that the Convention should

be interpreted, the Convention burdens the free exercise

of religion of people who use non-exempted psychotropic

substances in a religious manner. The RFRA, however,

* an fact, the Convention has no application to hoasca. See Brief of

Respondents, section II B; Brief of Amicus Curiae Dr. John H. Halpern,

et al.

6 ~

mandates that the free exercise of religion may not be

burdened without a compelling governmental interest and

a showing that the burden is the least restrictive means of

furthering the interest. This conflict may be settled by

using the last-in-time rule.

Traditionally, the last statute that was passed super-

sedes any prior, conflicting statutes or treaties. See Reid v.

Covert, 354 U.S. 1, 18 (1957) (plurality opinion) (“an Act of

Congress ... is on a full parity with a treaty, and that

when a statute which is subsequent in time is inconsistent

with a treaty, the statute to the extent of conflict renders

the treaty null.”); see also Whitney v. Robertson, 124 US.

190, 194 (1888) (when a treaty and a federal statute

conflict, “the one last in date will contvol the other.”). In

this case, the RFRA, passed in 1993, controls the Conven-

tion to the extent of any conflict, because the Convention

was implemented in 1978 with 21 U.S.C. § 801a et seq.

B. The Religious Freedom Restoration Act ap-

plies to the Convention on Psychotropic

Substances because the RFRA expressly

applies to all other rules of general appli-

~ eability, regardless of when the rules were

passed.

The RFRA states, “[t]his Act applies to all Federal law,

and the implementation of that law, whether statutory or

otherwise, and whether adopted before or after the enact-

ment of this Act. [...] Federal statutory law adopted after

the date of the enactment of this Act is subject to this Act

unless such law explicitly excludes such application by

reference to this Act.” 42 U.S.C. § 2000bb-3. RFRA is “all-

inclusive” and specifically governs over all law enacted

before or ufter RFRA. See HON. JACK BROOKS, CHAIRMAN,

COMMITTEE ON THE JUDICIARY; RELIGIOUS FREEDOM RESTO-

RATION ACT OF 1993 (RFRA), H.R. REP. No. 103-88, at 16

(1993) (finding that the RFRA defines governmental

activity as “all-inclusive,” so that “all governmental

actions (law or action to implement a law) which have a

substantial external impact on the” practice of religion”

would require a “compelling justification to burden reli-

gious exercise”)).

Nothing in the Convention on Psychotropic Sub-

stances or its implementing legislation specifically ex-

empts it from the Religious Freedom Restoration Act.

Therefore, the Convention is subject to the RFRA and the

RFRA controls.

C. The Government’s reliance on Charming

Betsy is misplaced.

The Charming Betsy holds that “an act of Congress

ought never be construed to violate the law of nations if

any other possible construction remains.” Murray v. The

Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118

(1804). However, the “law of nations” as stated in 1804 is

merely what modern courts identify today as “customary

international law.” See, e.g., Hartford Fire Ins. Co. v.

California, 509 U.S. 764, 815 (1993). First, at issue here is

a treaty, not customary international law. Second, if a

conflict arises between customary international law and a

federal statute, a domestic court must give effect to the

statute. See The Paquete Habana, 175 U.S. 677, 700 (1900)

(where there is no treaty, and no controlling executive or

legislative act or judicial decision, resort must be had to

the customs and usages of civilized nations.”). A court may

—

only resort to customary international law when there is

no treaty or domestic legislation governing the issue.

Because that is not the case here, there is no basis for the

government’s invocation of customary international law.’

II. RFRA IS CONSISTENT WITH THE INTERNA-

TIONAL LEGAL OBLIGATIONS OF THE

UNITED STATES.

Both in domestic law and international law, there is a

consensus that the freedom of religious expression must be

preserved inviolate. In 22 U.S.C. § 6401, Congress made a

finding of fact that “[t]he right to freedom of religion

undergirds the very origin and existence of the United

States. 17. Freedom of religious belief and practice is a

universal human right and fundamental freedom articu-

lated in numerous international instruments, including

the Universal Declaration of Human Rights, the Interna-

tional Covenant vn Civil and Political Rights, the Helsinki

Accords, the Declaration on the Elimination of All Forms

of Intolerance and Discrimination Based on Religion or

Belief, the United Nations Charter, andthe European

Convention for the Protection of Human Rights and

Fundamental Freedoms.”

In the statute, Congress affirmed that the freedom of

religious expression is nearly universally recognized and

should be protected as a cornerstone of the United States.

Article 18 of the International Covenant on Civil and

Political Rights, for instance, states, “[e]veryone shall have

* This is exactly why bifurcation of analysis is so important.

Bifurcation, required under international law, allows the Court to avoid

unnecessarily inserting international law into purely domestic issues.

the right to freedom of thought, conscience and religion.

This right shall include freedom to ... manifest his relig-

ion or belief in worship, observance, practice and teach-

ing.” International Covenant on Civil and Political Rights,

opened for signature Dec. 19, 1966, 999 U.N.T.S. 171.

Similarly, Article 18 of the Universal Declaration of

Human Rights declares, “[e]veryone has the right to

freedom of thought, conscience and religion; this right

includes freedom to change his religion or belief, and

freedom, either alone or in community with others and in

public or private, to manifest his religion or belief in

teaching, practice, worship and observance.” Universal

Declaration of Human Rights, G.A. res. 217A (III), U.N.

Doc A/810 at 71 (1948). The United States had an obliga-

tion under the ICCPR Article 18 to enact the RFRA. In

addition, RFRA itself is but an expression of the global

recognition of the importance of religious freedom.

In fact, Article 18 of the ICCPR justified Congress in

enacting the RFRA and having it apply to the federal

government, the states and their political sub-divisions.

See Gerald L. Neuman, The Global Dimension of RFRA, 14

Const. Comment. 33, 53 (1997) (ICCPR Article 18 “would

support a verbatim reenactment of [RFRA] if Congress so

chose”); see also Missouri v. Holland, 252 U.S. 416, 434-35

(1920). Amicus believes that had this Court been given an

opportunity to consider the argument that the RFRA is

constitutional as an enactment of Congress’ duty under

the ICCPR, then the RFRA would have been upheld as

applied to the states. The elimination or marginalization

of RFRA would do great harm to the leadership of the

United States in preserving religious freedom for the

world and be inconsistent with international law.

Ill. EVEN IF THE CONVENTION CAN BE USED AS

A POTENTIAL COMPELLING GOVERNMEN-

TAL INTEREST, THE GOVERNMENT WOULD

NOT BE JUSTIFIED IN BURDENING THE

FREE EXERCISE OF RELIGION ON THE BA-

SIS OF THE CONVENTION.

The Government maintains that allowing O Centro

Espirita Beneficiente Unido do Vegetal to employ small

amounts of hoasca tea for a religious ceremony would

hinder the compelling governmental interest of maintain-

Convention does not even apply to hoasca, as explained in

the church’s brief section II.B. and in the amicus brief of

Dr. John Halpern. The government’s argument that the

Convention does apply is mistaken, but the relevant point

here is that the government’s argument is equally applica-

ble to all plants and plant products, peyote and hoasca

alike. Either the Convention does not apply, or it applies to

peyote too and the government has created a large excep-

tion.

A. Two religious groups engaging in a similar

practice that the government would argue

creates the same “harm” are being treated

differently. |

Article 32, paragraph 4 of the Convention states, “[a]

State on whose territory there are plants growing wild

which contain psychotropic substances from among those

in Schedule I and which are traditionally used by certain

small, clearly determined groups in magical or religious

rites, may, at the time of signature, ratification or acces-

sion, make reservations concerning these plants...” Even

if the Convention applied to peyote, religious use of peyote

would remain outside the Convention because the United

States made a reservation under this clause. The necessity

of this reservation is contested, but whether or not the

reservation was necessary, the United States cannot

satisfy its burden of justifying the discrimination between

peyote and hoasca. Unfortunately for members of O Centro

Espirita Beneficiente Unido do Vegetal, the plants that are

used to make hoasca are not indigenous to the United

States, and the government relies on this fact to claim that

no reservation was or could have been made for their use

as was made for peyote.

Assuming arguendo the Convention applies to both

peyote and hoasca, the government is essentially left with

the problem of giving a religious practice of one group an

exemption while denying that very same exemption to

another group engaging in a similar practice that presents

no different or greater dangers.

B. There is no compelling interest if the gov-

ernment restricts the religious practice of

hoasca but allows activity that causes the

same “harm.”

In Wisconsin v. Yoder, this Court expounded upon

what constitutes a compelling governmental interest by

saying that “[o]nly those interests of the highest order and

not otherwise served can overbalance legitimate claims to

the free exercise of religion.” Wisconsin v. Yoder, 406 U.S.

205, 215 (1972). Moreover, “[w]here government restricts

only conduct protected by the First Amendment and fails

to enact feasible measures to restrict other conduct pro-

ducing substantial harm or alleged harm of the same sort,

the interest given in justification of the restriction is not

compelling.” Church of Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520, 546-47 (1993).' Allowing peyote to

be used for religious ceremonies while banning hoasca

does not rise to the level of a compelling interest.

The harm, if any, from peyote and hoasca is the same.

If banning the religious use of hoasca were truly “compel-

ling,” the religious use of peyote would have to be banned

as well. Yet peyote is permitted while hoasca is prohibited,

without any compelling interest or even rational reason for

so doing. Thus, even if the Court determines the Conven-

tion applies, the very large exception provided for peyote

not only destroys the government’s compelling interest,

but would also destroy the government’s case under the

more deferential test in Employment Division v. Smith,

494 U.S. 872 (1990).

CONCLUSION

The Religious Freedom Restoration Act applies to the

government's attempt to burden the religious freedom of

the members of O Centro Espirita Beneficiente Unido do

Vegetal because the RFRA states that it applies to laws of

general applicability, such as the Convention on Psycho-

tropic Substances, and because it was passed after the

* (“It is established in our strict scrutiny jurisprudence that “a law

cannot be regarded as protecting an interest ‘of the highest order’...

when it leaves appreciable damage to that supposedly vital interest

unprohibited.” Florida Star v. B. J. F, supra, at 541-542 (SCALIA, J.,

concurring in part and concurring in judgment) (citation omitted). See

Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502

U.S. 105, 119-120, 116 L. Ed. 2d 476, 112 S. Ct. 501 (1991). Cf. Florida

Star v. B. J. F, supra, at 540-541; Smith v. Daily Mail Publishing Co.,

443 U.S. 97, 104-105, 61 L. Ed. 2d 399, 99 S. Ct. 2667 (1979); id., at 110

(REHNQUIST, J., concurring in judgment)”).

Convention was implemented. Because the RFRA applies,

only a compelling governmental interest will allow the

burdening of religious freedom by banning hoasca use. The

Convention itself cannot serve as a compelling interest

because allowing the Convention to be its own compelling

interest would destroy the compelling interest test in the

RFRA. The Convention also does not rise to the level of a

compelling interest as defined in Yoder. Instead, the

Uniited States has a strong interest in preserving religious

freedom consistent with international law. Even if the

Comvention applied in this case, a goverrment interest

camnot be compelling as to hoasca if the government

exempts peyote.

Respectfully submitted,