Breaking news in federal RFRA case

[Volokh, Eugene]

I don't know anything about the dangers of hoasca, but I wouldn't infer much about such dangers simply from the fact that Congress has outlawed it.  Indiana, unless, I'm mistaken, bars anyone from furnishing alcoholic beverages to minors, see Ind. Code 7.1-5-7-8; but I wouldn't lightly condemn a parent who gave a child a sip of wine -- whether sacramental or otherwise -- of child abuse.  Nor would I condemn the parent even if the parent had done this during Prohibition.  That Congress considers Schedule I drugs to be dangerous doesn't by itself tell us that much about how dangerous they are (especially when taken in moderation), or even how dangerous they are when minors drink them.

Returning specifically to RFRA, that hoasca is a schedule I drug isn't, it seems to me, conclusive of how dangerous it is when consumed in a religious ceremony, even when it's consumed by a minor.

Eugene


-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu on behalf of Hamilton02 at aol.com
Sent: Wed 2/22/2006 7:57 PM
To: religionlaw at lists.ucla.edu
Subject: Re: Breaking news in federal RFRA case
 
 
I hope the paragraph below was in jest.  Schedule I drugs  are drugs that are 
considered to have no beneficial use and to be  dangerous.  If children are 
drinking the DMT in the tea, they are the  victims of child abuse.  I cannot 
believe that anyone on this  list is willing to give a group a pass in abusing 
children just because it  is religious. It is one thing for adults to choose to 
take such drugs, but  quite another for that group to provide the drugs to 
children.
 
With respect to RFRA, it's error lies in its blind accommodation.  It  is a 
blind handout to religion.  As I argue in God vs the Gavel, I have no  problem 
with legislative accommodation, and in fact in many circumstances  support it. 
 But to be legitimate, it must be passed pursuant to  consideration of the 
public good (i.e., Congress fulfilled its constitutionally  appointed duty to 
make policy choices) and not be merely, as RFRA was, a special  interest gift.  
I may disagree with the public policy balance, which is a  wholly different 
matter.  Under RFRA, Congress shuffles those hard policy  choices over to the 
courts.
 
The defenses of RFRA as responsible congressional enactment are formalistic  
in the extreme.
 
Marci
 
 
In a message dated 2/22/2006 6:19:26 P.M. Eastern Standard Time,  
mnewsom at law.howard.edu writes:

I don't know how  important it is that minors drink the tea.  Why is drinking 
it per se bad  for minors, or for anybody else?  It is only bad because 
Congress said it  was, at least as a general proposition.  However, Congress can 
properly  decide to allow for a little play in the joints, can't it?  You seem 
to  want to hem in Congress' policy discretion on matters of this sort, and 
there  is no Constitutional basis for doing so.  If Congress passes bad - but  
constitutional - laws, then the answer is to elect a different Congress.