Hoasca case

[Douglas Laycock]

The church argued both free exercise and RFRA.  The trial judge dismissed their free exercise claim on the ground that excepetions for American Indians don't count.  American Indian law is strange; the US deals with tribes as foreign sovereigns for some purposes, and there is a decision, Morton v. Mancari, holding that a statute giving preferential rights (hiring rights I think it was) to Indian tribes is not a racial preference, but a political one, a deal between sovereigns.  The trial judge applied that reasoning to free exercise and dismissed the claim. 

He granted a preliminary injunction based on RFRA, and the government appealed, so RFRA was the only theory in the Supreme Court.  Whether or not Morton v. Mancari has any relevance to free exercise claims, it has no relevance to the compelling interest test, as Roberts pointed out.  Their status as sovereigns does not insulate them from alleged health dangers or from the alleged risks of diversion.    

Quoting David Griffiths <davord at hotmail.com>:

>
>
> Can anyone explain why the O Centro Church, which won in the Supreme 
> Court in the 2006 Hoasca case, chose to rely on the federal RFRA, 
> when presumably they would have had an equally strong case under 
> First Amendment free exercise doctrine (the Lukumi/Newark line of 
> decisions)? This seems clear from the fact that Justice Roberts uses 
> Lukumi itself to flesh out the compelling interest limb of the RFRA 
> test (ie, the fact that Congress had made an exemption from the 
> Controlled Substance Act for thousands of native American sacramental 
> users of peyote meant that - under Lukumi - it was difficult for the 
> Government to argue that there was a compelling interest in banning 
> hoasca for a few hundred sacramental users of that substance).
>
> Surely a strategically minded religious group would go for First 
> Amendment constitutional protection rather than statutory/RFRA? Or is 
> it that the contingencies of litigation explain the choice of the 
> RFRA route? Or have I read Roberts' judgment incorrectly?
>
> David H Griffiths
> PhD Candidate
> Faculty of Law
> University of Auckland
> NEW ZEALAND
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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