Charming Betsy and Psychedelic Tea

A summary of yesterday’s Supreme Court oral argument in Gonzalez v. O Centro is available at SCOTUSblog. The case raises concerns about the interplay of two federal statutes–the Controlled Substances Act and the Religious Freedom Restoration Act–and a treaty, the 1971 Convention on Psychotropic Substances.

From the summary it appears that the international law arguments did not hold much sway with the Court, particularly given that RFRA was enacted after the treaty. According to the post, “[w]hen the small religious sect’s lawyer, Hollander, was being pressured to defend the religious use of hoasca tea against the government’s reliance on a 160-nation treaty banning the import of the hallucinogen, Scalia came to her rescue. ‘Statutes trump treaties,’ he said, so ‘if RFRA can trump a statute [like the Controlled Substances Act], it can trump a treaty.'” The precise nature of the international obligation also was at issue, with Hollander questioning “the government’s reliance on the global treaty banning import of the hallucinogen, arguing that hoasca tea is not even covered by that pact, and noting that other nations that have signed the treaty do not regard it as covered.”

There also is extensive discussion of Charming Betsy in the Supreme Court briefs in O Centro. In her brief, Hollander argued that Charming Betsy does not control. “First, it applies only where the statute is ambiguous … and the government does not claim that RFRA … is ambiguous. Second, there is no tension between RFRA and the Convention. Third, even if a conflict did exist, it would be immaterial since RFRA is later in time.”

The government, by contrast, argued in its brief that the international obligation seves as the compelling state interest under RFRA. “The government’s argument is not that the Convention renders RFRA inapplicable, but that compliance with a longstanding, multi-Nation international treaty that is critical to combating illicit transnational drug trafficking and to obtaining international law enforcement cooperation … constitutes a compelling interest under RFRA.”

It will be interesting to see whether the Court follows its recent approach in Spector v. Norwegian Cruise Line and struggles to find a creative way to reconcile the federal statute with the international obligation. In that case the Court noted an exception to the ADA’s requirement of barrier removal if compliance was difficult, and then interpreted “difficulty” to include creating a conflict with an international treaty governing safety standards on foreign-flag ships.