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HOW HE SEES IT Religious freedom case will test Roberts



Published: Thu, July 28, 2005 @ 12:00 a.m.



By WILLIAM McKENZIE

DALLAS MORNING NEWS

Partisans on both sides are trying to divine John Roberts' beliefs about the right to privacy, the doctrine upon which the Supreme Court legalized abortion.

But a case far less famous than Roe v. Wade could tell us a lot about Judge Roberts and how he interprets religious freedom. For a conservative, Gonzales v. O Centro Espirita presents a nightmare of competing claims, as tight a bind as any abortion-rights case.

And, unlike the abortion question, the Gonzales case comes up in November and, assuming a Senate confirmation before October, would force Judge Roberts to show his hand right out of the box.

The Gonzales case stands out because it pits religious conservatives against law-and-order conservatives, as University of Texas law professor Douglas Laycock describes it. Think of it as a tug-of-war between Jerry Falwell and Rudy Giuliani.

It also will test how much Judge Roberts believes in judicial restraint -- which, of course, is what all conservatives want from him. To rule with the government, he must oppose Congress' intent in a major religious freedom act. We've all heard conservatives from the Tom DeLay school howl that judges shouldn't overturn lawmakers' wishes.

Background on case

The tension started building when a lower court and the 10th U.S. Circuit Court of Appeals ruled in favor of the Uniao do Vegetal sect's right to use a tea known as hoasca. It's made from Brazilian plants that contain a hallucinogen banned by the Controlled Substances Act. The two courts concluded that UDV, as the sect is known, had a legitimate claim under the Religious Freedom Restoration Act.

That act is holy ground for religious conservatives. They worked hard to pass it to stop government from interfering with religious-minded Americans. The Christian Legal Society and National Association of Evangelicals filed friend-of-the-court briefs on behalf of UDV.

That's right. Two leading evangelical groups support a South American Christian sect's right to use a substance on the watch list of the Controlled Substances Act. Not your everyday partnership.

What's more, UDV teachings claim that its members in the United States and elsewhere need to use this concoction to know God. You can't think of a belief more offensive to evangelicals.

Nonetheless, on both fronts, the groups stood up for UDV's rights to pursue its faith. That took guts.

On the other side, there's the law-and-order crowd, led by the Bush administration and Attorney General Alberto Gonzales. They hang much of their case on the Controlled Substances Act. It regulates drugs like heroin, marijuana and, yes, the bad stuff in hoasca.

The hallucinogen meets the act's standards for most dangerous substances. That's why customs agents seized a bunch of the concoction when it was shipped into the United States in 1999. And that's why authorities confiscated 30 gallons of it from the apartment of the New Mexican to whom the substances were shipped. We're not talking candy.

The U.N. argument

The administration also argued the substance violates a United Nations treaty, which a government lawyer claimed the United States had a "compelling interest" not to violate. (You read that right: The Bush administration arguing for a U.N. treaty.)

As I said, this case has everything. Religious freedom. Law and order. Heck, even foreign policy. And, oh, yes, it offers up a heck of a showdown between prominent GOP wings. The laws in this case stem from different traditions, both rooted in American conservatism.

Judge Roberts' decision will be complicated by the lower courts' siding with the religious freedom side. Those courts concluded that the tea poses no health risk to the sect's members or the larger public, so the Controlled Substances Act doesn't trump religious rights. Does he overturn those strong rulings?

The way the newest justice goes in this case will tell us a lot about him.

X William McKenzie is an editorial columnist for The Dallas Morning News. Distributed by Knight Ridder/Tribune Information Services.




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