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 Thursday, 23 December 2004
Thursday, 23 December 2004 11:03:33 (Central Standard Time, UTC-06:00) ( )

In a previous post I brought up the issue of drug use in religious ceremony. Thomas commented


The Government concerns are valid in this case. What defines "serious" risk? What defines a "significant diversion to non-religious use"?


And this is absolutely correct. The government does have valid concerns here. But fortunately that doesn’t mean that the religious practice is automatically invalid. It means that the government has a responsibility to prove their case. And the courts have a responsibility to judge that case. The system is set up to answer the questions posed. What defines “serious” risk? A “significant diversion”? Our government and legal systems are specifically designed to answer these questions. That is their role.


The drug thing is a difficult question, but is really just the gateway to a much more important question.


If your religion is old, predating the current attitudes toward drug use, are you subject to changing your religion based on new-fangled and potentially transitory views on drugs?


Suppose various American Indian, Brazilian and other religions are right? Suppose the only way to really communicate with god, the goddess, the gods, spirits, forces of nature or the universe at large is through the use of a hallucinogenic?


We can’t know. Not objectively. Certainly some people have faith that this is not a requirement, but others have an equally solid faith that it is required. A third group has faith that neither is correct and that there is no higher power. There’s no way to objectively determine whether any of these people are right.


But taking a black and white stance that any and all secular laws automatically trump any and all religious practices could entirely destroy or prohibit the practice of certain, if not all, religions.


Former Speaker of the House and futurist Newt Gingrich, in his book To Renew America makes the case that the primary reason government has a bureaucracy is so laws and regulations can be managed in a human way, with judgement and wisdom. It is recognition that the real world isn’t just black and white, but rather is composed of many shades of gray.


I think there is some truth to that view of bureaucracy, and certainly it is true that the world is not black and white.


Is hoasca harmful to humans? It certainly appears to have an effect after long-term use according to this preliminary study. Assuming that further medical studies confirm negative effects it seems to me that the government has a good case here.


Thomas’ use of crack cocaine as a straw man isn’t overly valuable unfortunately. There is ample evidence that crack is directly harmful to humans. Thus it very obviously meets the test required by the court and the government wouldn’t find the burden “onerous” at all. The only reason the hoasca case is “onerous” is due to lack of scientific evidence one way or the other.


But the point really isn’t about this specific case or about drugs in general. Rather it is the broader and far more important issue of whether secular laws and views automatically trump religious practice. Certainly that’s the view held in China today, and was the prevalent view in the USSR. I don’t think this is the approach we want to take here in the US.


Secular law is based on a mishmash of mores, pseudo-science, real science, opinion and even religious views. But mostly it is based on economics, and supports the needs of those who hold power.


Religious practice isn’t pristine either. While in theory it is based on truth, or at least the search for truth, historically it has been subverted to serve the needs of those who hold power as well. The bigger and more successful the particular religious sect, the more corrupt it tends to become. Often only the non-mainstream, fringe groups are able to truly seek truth. Unfortunately some fringe groups are also just totally nuts and are sometimes dangerous to themselves or others.


Who are we to judge which are valid? Well, we are the government. It is our job to evaluate these things based on the system laid out by the founders. That pesky “we the people” thing means that it is our job. While we might delegate certain powers to elected officials, and they to bureaucrats, that certainly doesn’t mean that we are allowed to abdicate responsibility.


It is a Constitutional guarantee that we can practice religion as we see fit. At the same time, it is the government’s responsibility to care for its citizenry. These two requirements are sometimes in conflict, and that is to be expected and even welcomed.


This is why the whole issue is complex. This is why a one-size-fits-all answer is inappropriate, and why we have a bureaucracy and justice system to sort out the finer details.


Ultimately, this is why the burden of proof must rest with the government. In specific cases the government must establish that the danger to the citizenry is so great that some religious activities must be restricted. That the societal cost of the specific activity is so high that it overshadows the Constitutional guarantee of freedom.


And we surely don’t want the reverse. In such a case the burden would be on religions to justify any and all practices. By default, practices would be illegal or invalid, and any religious practice would have to be justified through the courts or through explicit laws.


Given the overwhelming majority of Christians (of various flavors) in the US, there’s little doubt that we’d be a mono-religious state at this point. All other religious practices would be underground and illegal. Much like life in Iran or China. And that’s a nightmarish thought!

Comments [14] | | # 
Thursday, 23 December 2004 16:23:23 (Central Standard Time, UTC-06:00)
A “crack” religion may be a straw man argument, but that hyperbole is particular poignant in this case. By allowing the claim that crimes can be acquitted in the name of religion leaves the door wide, wide open. You are simply waiting for someone to devise a religion practice (they all are devised IMO) such that the use of a narcotic or any other illegal actions (e.g. giving wine to under age drinkers) that are part of a given religion’s dogma. For example, the molestation of children and the subsequent cover-up of said act. In these situations, you are asking the judge to make an evaluation on the legitimacy of that particular religion and its practice and then place the use of that drug in perspective of the religion (e.g. “According to their religion, its ok”). You are having the judge determine which religious practices he/she personally feel are acceptable and which are not. IMO, that is far worse that having *one* set of rules that applies to *all* religions. That only way to devise a set of rules that applies to all religions is to have a set that is secular. Your statement about the use of law to protect religious practice and the citizenry merely substantiates my claim. This greatly simplifies the situation in that we are stating that you can practice your religion in any way, shape, or form you wish as long as it does not violate local, state or federal legislation.

“Ultimately, this is why the burden of proof must rest with the government. In specific cases the government must establish that the danger to the citizenry is so great that some religious activities must be restricted. That the societal cost of the specific activity is so high that it overshadows the Constitutional guarantee of freedom.”

The Government, in this case, has already provided that claim by showing that the drug in question is illegal for consumption as dictated by the FDA. You can question whether the FDA is justified in doing so, but that is an entirely different argument.

I do not accept that the US is a mono-religious state. I accept that many people in the US are subscribers to monotheistic religions. The difference is that the former implies that the government is (or should be) dictating religion preference or dogma to the citizenry, whereas the later simply implies that while policy applies to people of any religion, coincidently, many of them have similarities in their belief.
Thursday, 23 December 2004 17:20:55 (Central Standard Time, UTC-06:00)
Communion wine has historically been given to underage children in churches, and is historically a legally accepted practice...and that is a precedent...which is also part of "the law". There has historically been a fuzzy area surrounding the limitation of religious practices by law...the use of Peyote comes to has been upheld and struck down so variously that I have lost track of it's current status...but substantial material has been generated around that controversy, and no doubt much of it was cited in the current case.
The law is generated by the legislature, enforced by the executive, and interpreted by the judiciary. So, it is not for Ashcroft to say what the law means...only to enforce it to the best of his understanding. He must accept it when the court says his interpretation of the law is wrong.
You assert that a law has been broken, and religion is being used to aquit the guilty. This is also Ashcroft's assertion. The court, who's job it is to say whether there has been a crime or not, has said that there was not a crime.
That is their role. If the court says the there was no crime, because the law cannot be applied to this religious practice...due to a failure of "tests" set up in opinions, backed up by precedent and common historical practice of the law across a range of cases...then there has been no crime.
The specific language of any given law enacted by the legislature, and the enforcement policy of the executive branch are only the first layers of what make "the law". The "body of law", which guides the interpretations of the courts has the highest trump card.
In this case, the courts have said, according to their interpretation of the body of crime has been comitted...not because of some wild, frivolous claim of religious immunity, but because the charges did not meet appropriatly riggerous tests of their validity for over-riding the constitutional safeguards on the establishment or prohibition of religious practices.

Thursday, 23 December 2004 20:17:17 (Central Standard Time, UTC-06:00)
So, according to that logic, every drug offender (especially marijuana smokers) could claim that they were participating in a religious, spiritual ceremony? We all know that wouldn’t fly in court. The dispensing of wine to minors through communion is/was not a great precedent to use for a couple of reasons. Firstly, a majority of the judges and jury making the judgments are in fact Christian. Secondly you are talking about the dispensing of a legal drug in a technically illegal manner. This case revolved around the dispensing of an illegal drug in a technically illegal manner. The defendant should have been found guilty and then left it up to the judge to provide a sentence that accounts for the mitigating circumstances. The law is fairly clear about drug use and possession. If people feel that certain illegal drugs should be available for use in religious ceremonies, then they should have the law changed. Simply changing the interpretation of the law based on the whims of judge is lunacy. You’ll run into situations where using a drug is ok for one religion and not another. It will create an environment of favoritism based on the opinions of the judges.
Thursday, 23 December 2004 21:11:45 (Central Standard Time, UTC-06:00)
No, according to that logic, drug offenders can claim to be participating in a religious ceremony only if the enforcement arm of the government fails to pass the judicial "tests" laid out by the courts. You missed the part about how the federal government has the opportunity to prove that the use is of "significant risk" to the individual and/or that there has been "significant diversion" of the use into general society.

That they failed to do so in this case is not the problem of the courts.

The court is not "changing the interpretation of the law". They are extending a history of interpretations from the body of law and the safeguards against prohibiting religious practices in the Constitution to this particular case.

These judges didn't make up the rules. These rules are part of "the law". The history of the law, and how it has been enforced and interpreted is part and parcel of the "the law".

There is no need to change the law to accomodate religious the constitution explicitly says that the government is restrained from passing laws prohibiting the free expression of religion.

As these questions have been addressed over the years, opinions and "tests" have been established that guide the balance between the public good and freedom of religion.

This court decision, in the view of the Supreme Court, is in accordance with those tests and maintains the balance properly.

The danger of having these test misapplied or applied unevenly with regard to different religions or based on the "whims" of judges is mitigated by the appeals system...which is how we got here in the first place...

Sunday, 26 December 2004 22:51:48 (Central Standard Time, UTC-06:00)
So, to recap, if the drug in question is not a "significant risk" and is used in a "religious" ceremony, then it is ok? How is it that every pot smoker from Humbolt to Miami isn't using that excuse to get off possession charges? Proving that pot is not a "significant risk" to the individual should be fairly simple.

Which case law represents this magical litmus test for illegal acts done legally because of religion? Furthermore, how were they able to explain possession? If you use an illegal drug in a religious ceremony, regardless of whether the use of the drug is legal, the possession of the drug is by definition illegal.

I agree with the government on this one. Religion should not be allowed as a shield from committing illegal acts. If the given action is not legal, then claiming that it was done on behalf of religion should not change the determination of guilt.

Sunday, 26 December 2004 23:25:47 (Central Standard Time, UTC-06:00)
Pot use in religious ceremonies would not pass the test of "significant diversion" pot is widely used outside of legal circumstances. This tea has not had a history of diversion for non-religious uses, although the government is free to try to prove that has not succeeded in doing so.
Monday, 27 December 2004 08:52:09 (Central Standard Time, UTC-06:00)
Oh, so because pot happens to be in wide distribution means that someone is not allowed to have spiritual revelations that require the use of pot much like Christianity requires the use of alcohol? Who are they to judge someone's revelation with their deity? You are suggesting that the State is mandating that any new revelations use relatively unknown drugs. Again, this is all sophist nonsense. We can go round and round but it all comes down to Christian judges determining the legitimacy someone’s religion. By far the best solution is to apply a set of secular laws that apply to *all* religions in equal measure. That way, there is no favoritism; no evaluation of someone’s religion or beliefs. It is simply the same set of laws that can use science and evidence in their determination. It means that the religion of the judge and jury will have far less impact.
Monday, 27 December 2004 10:39:46 (Central Standard Time, UTC-06:00)
So, the law should be a dead, ridgid, inflexible thing that lops off all unsceintific unquantifieable aspects of the human condition, should not be open to interpretation, and should subject us all to the same mechanistic requirments without respect for concience.

Aside from the fact that it's the approach used by most of the worst violators of human rights in the world, it's unAmerican, and not in any way in keeping with any of the history of how law is practiced in democracies, or even in English common law, which is the basis for our legal system.

As I have been trying to point out, your argument is not with this particular court, but with the entire system of law in this country going back to it's origins pre-dating this whole country...

The reason that the law is flexible and open to interpretation is so that we can use reason to adjust our application of the law based on the individual nature of cases. Precedent is to guide that application the issuing of opinions is to explain the decisions and set up "tests" to guide future decisions. The extreme situations that you cite as argument would not occure under this system, because there are tests and precidents that keep them from occuring. When I point this out, you say that this is a flaw in the system, and the only remedy is to abandon a few hundered years of traditional legal and civil thought.

Hopefully, that will not happen for a good, long time.

The reason we have appeals courts and a Supreme court is to allow for the correction of court bias and bad decisions. The deliberative nature of the courts provides for the flexibility and consideration of each case as an individual that is required for actual humans to live with reasonable peace and freedom in a civil society.

I'll write more about this on Anomalous Data. I won't inflict anymore argument on this we have already gone beyond the bounds of civility in someone else's blog.

Monday, 27 December 2004 15:37:39 (Central Standard Time, UTC-06:00)
Your straw man argument aside, it is possible to be attentive to the human condition with secular law. Religion should not be allowed as an excuse for committing crime. Doing so puts the onus of determining “legal” religious practice from “illegal” religious practice which means people of one religion must be asked to legitimize the practice of another religion. That is a far more error prone solution than to have the laws apply regardless of religion.

If you are going to allow people to use an illegal drug for religious purposes, you might as well make the drug legal since allowing religion as an excuse is tantamount to making it legal. Rather, guilt should be determined by whether they used and possessed illegal drugs. If you disagree with the law or feel that the law is too rigid, have the law changed. That still provides for tremendous amount of flexibility while maintaining consistency in the application of that law.

I fully understand the role of precedent within the confines of law. Keep in mind that precedent requires a case first. Secondly, I’m asking that you provide citations supporting the use of illegal drugs for religious purposes (beyond the case at hand).

Your statement about the courts is obvious. At no time have I disagreed that the courts are designed for correction and analysis of decisions. That said, it should not be left to the courts to differentiate “good” religious practice from “bad” religious practice.

What is "Anomalous Data"?
Monday, 27 December 2004 16:17:28 (Central Standard Time, UTC-06:00)
It's my blog. There is a link to it over on the blogroll...otherwise, you can go to to argue this further, if you wish.
Monday, 27 December 2004 18:59:12 (Central Standard Time, UTC-06:00)
You know what I find amusing? The hypocracy of 'significant harm'. The government is applying this "standard" on an illogical, subjective, and totally ad-hoc basis.

The second they decide to apply this test to the use of tobbacco and alcohol (not to mention such dangerous drugs as Asprin, Celebrex, caffine, etc.) as rigorously as they do to the list of currently demonized 'illegal' drugs, then they will have ground to stand on. Until then, the government is simply applying one set of standards to one set of substances, and another to a different set. The only predictable indicator as to which group a given substance belongs to is how much money the government makes off the people who supply it.

I have said before, and will continue to say this: Whatever I, or you, or anyone else, chooses to do with our own bodies is none of anyone elses concern, unless it impacts other people in some way.
The Evil Cub
Tuesday, 28 December 2004 15:17:35 (Central Standard Time, UTC-06:00)
The fundamental issue here is the protection of minority religious interests against the majority belief system in the US.

The Congress is specifically designed to cater to the whims of the current majority, with the Senate providing some small bit of balance and sanity. But the reality is that laws are made by the majority to serve the needs of those in power. In the US this tends to mean that laws are driven first by economics and second by pseudo-Christian values.

Were it up to pure law-making, we’d be living in a pseudo-Christian theocracy not unlike Iran.

Fortunately we have the court system, acting as a check against the legislature. While it is almost certainly true that the judges in the system reflect the proportional values of society at large, the reality is that they are more educated and less subject to whimsical politics than the lawmakers themselves. Also, they are bound by the larger body of law (precedent) in their decisions. And they are bound ultimately by the Constitution as the highest law of the land.

The end result is that the court system does provide a reasonably effective check against the legislative (and executive) branches. This tends to tick off those branches, leading to some of the recent outcry against “activist” judges. But the courts and the executive branch live where the “rubber meets the road” and must use (often conflicting) judgment to effectively apply “law” to reality.

In many cases this means defining tests that must be met in order to apply specific laws to specific cases. These tests become part of precedent, and thus become part of the body of law as a whole. The tests themselves are as much “law” as the original law itself, and provide guidance and clarity going forward.

In the case I brought up originally, the tests already existed. The federal government was unable to meet them, and thus was unable to prove that the law applied in this particular case. That is the way the US government (as a whole, not just the executive) works, and on the whole that is a good thing!
Wednesday, 29 December 2004 09:40:23 (Central Standard Time, UTC-06:00)
I've read the actual decision ((O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170 (10th Cir. 09/04/2003)). IMO, there were two key reasons that the UDV won which had nothing to do with religion:
1. The Government could not prove that hoasca was sufficiently dangerous.
2. The drug is relatively unknown in the US.

If the Government could have proven that hoasca was even slightly dangerous, they win this case. Further, had hoasca been widely used like marijuana, they would have lost. In fact, in the decision, they went as far as saying that marijuana could never be considered a drug for use in a religion. Nevermind the fact that it is far less dangerous than a psychotropic drug. Another contributing factor was that the court claimed that the "status quo" was the UDV using the drug prior to *enforcement* or enactment. That means that because the Government could not dedicate resources to enforcment or because the religion is just old enough to predate the Nixon drug laws, they get an edge with respect to this case. Stupid.

I still think that it is a mistake to ask the court to make determinations of "sincereity" and "true belief". It is far fairer to apply the same set of rules to everyone. Further, I think it is silly to only allow the use of a non-dangerous drug simply because you make it part of your belief in some uber-being(s).
Friday, 07 January 2005 16:22:49 (Central Standard Time, UTC-06:00)
Which was what I said in the first place :-)

"The government does have valid concerns here. But fortunately that doesn’t mean that the religious practice is automatically invalid. It means that the government has a responsibility to prove their case."

The court didn't decide based on the validity of the religion, but rather based on the fact that the government was unable to meet the pre-established tests that would make the law apply in this case.
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