Breaking news in federal RFRA case
VOLOKH at law.ucla.edu
Wed Feb 22 22:59:59 PST 2006
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.
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
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
The defenses of RFRA as responsible congressional enactment are formalistic
in the extreme.
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.
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