SG Application for Stay of "Hoasca Tea" Injunction

[Hamilton02 at aol.com]

I'm coming in in the middle here, so forgive me if I'm repeating something  
from this thread.  It seems to me two principles are getting confused  here.  
The first is the free exercise principle: whether strict scrutiny  should be 
invoked because the government has permitted secular exemptions but  not 
religious exemptions (Sherbert and Locke).  Obviously, a statute that  permits 
religious exemptions and not secular exemptions does not fall under this  category, 
and therefore RFRA's strict scrutiny command changes the  landscape 
dramatically.
 
 The second is the question in RFRA whether the government has shown a  
compelling interest and the lrm.  I don't think that a government's  compelling 
interest necessarily should be undermined because the law  grants limited 
religious exemptions.  In any event, I think the SG is  taking the wrong tack when it 
argues compelling  interest regarding CSA rather than CSA's inclusion of  
hoasca.  Every drug is different and exemptions absolutely must be  determined on 
a drug-by-drug basis.  For example,  to argue that a peyote exemption says 
anything about a heroin  exemption is absurd.  Hoasca is not peyote, and 
therefore the question is  whether hoasca prohibition serves a compelling govt 
interest and is the lrm of  serving that interest.  I'd say yes on both counts, but 
as I say in my  findlaw column on the topic, I don't think any court is 
institutionally  competent to make these determinations.  Best case to date to show 
that  RFRA violates the separation of powers by placing judges in the shoes of 
 legislators.
 
Marci     
 

If the  government has a compelling interest in the
uniform enforcement of a tax  law riddled with exemptions, then why doesn't
it have the same presumptive  compelling interest in the enforcement of
each of its many other  laws?  What principle distinguishes tax laws and
drug laws from any  other legislation enacted by a government of  limited
powers?

 
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