O Centro Espirita and Charming Betsy

The Supreme Court today rendered an important decision in Gonzalez v. O Centro Espirita concerning religious practices that are in violation of statutory and treaty obligations relating to controlled substances. The discussion of the treaty obligation is quite short:

Before the District Court, the Government also asserted an interest in compliance with the 1971 United Nations Convention on Psychotropic Substances …. The Convention, signed by the United States and implemented by the Controlled Substances Act, calls on signatories to prohibit the use of hallucinogens, including DMT. The Government argues that it has a compelling interest in meeting its international obligations by complying with the Convention.

The District Court rejected this interest because it found that the Convention does not cover hoasca…. The court reasoned that hoasca, like the plants from which the tea is made, is sufficiently distinct from DMT itself to fall outside the treaty…

We do not agree. The Convention provides that “a preparation is subject to the same measures of control as psychotropic substance which it contains,” and defines “preparation” as “any solution or mixture, in whatever physical state, containing one or more psychotropic substances.”… Hoasca is a “solution or mixture” containing DMT… [T]he UDV seeks to import and use a tea brewed from plants, not the plants themselves, and the tea plainly qualifies as a “preparation” under the Convention.

The fact that hoasca is covered by the Convention, however, does not authomatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV’s sacramental use of the tea. At the present stage, it suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV. The Government simply submitted two affidavits by State Department officials attesting to the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs…. We do not doubt the validity of these interests, any more than we doubt the general interest in promoting public health and safety by enforcing the Controlled Substances Act, but under RFRA invocation of such general interests, standing alone, is not enough.

This is quite a significant holding, although difficult to apply to other statutes. The case suggests that mere invocation of Charming Betsy is not enough to satisfy the compelling interest requirements under RFRA. RFRA expressly requires the Government to establish a compelling interest and utilize least restrictive means to further that compelling interest. In that context, application of the Charming Betsy doctrine is problematic to apply because reconciliation of the international law obligation is not enough. One does not simply interpret RFRA consistent with international law obligations, one establishes that the statutory burden is satisfied because of international law concerns. Significantly, the Supreme Court did not say that compliance with international law is not a compelling state interest. It simply said that the Government had failed its evidentiary burden of establishing that this particular international obligation met that standard.

Related Links:
Charming Betsy and Psychedelic Tea