The U.S. Supreme Court is debating whether to let a small congregation in Santa Fe, N.M., worship with hallucinogenic tea, the first religious freedom dispute under Chief Justice John Roberts.
Justice Sandra Day O'Connor seems skeptical of the Bush administration's claim that the tea can be banned, but she may not be around to vote in the case.
About 130 members of a Brazil-based church have been in a long-running dispute with federal agents who seized their tea in 1999.
The hoasca tea, which contains an illegal drug known as DMT, is considered sacred to members of O Centro Espirita Beneficiente Uniao do Vegetal.
The Bush administration contends the tea is not only illegal but potentially dangerous.
Previous cases before the high court
The Supreme Court has dealt with religious drug cases before.
Justices ruled 15 years ago that states could criminalize the use of peyote by American Indians.
But Congress changed the law to allow the sacramental use in tribal services of peyote, a bitter-tasting cactus that includes the hallucinogen mescaline.
O'Connor pointed out during Tuesday's argument that Congress changed the rules.
She interrupted the Bush administration lawyer in his opening statement and peppered him with difficult questions.
Other justices also seemed concerned by the government's claim that an exception could be made for peyote, but not for hoasca tea.
"That is a rather rough problem under the First Amendment," said Justice Stephen Breyer.
Justice Antonin Scalia, who wrote the 1990 peyote opinion, said tribes have been using peyote — "a demonstration you can make an exception without the sky falling."
Uncertainty in nominee Alito's views
The man nominated to replace the retiring O'Connor, Samuel Alito, has dealt with a variety of religion cases as an appeals court judge.
He wrote a 1999 opinion allowing Muslim police officers to keep their beards and voted that year to permit a government holiday display containing a creche, a menorah, a banner celebrating diversity and secular symbols of the season.
Alito could be called on to vote in the religious tea case with a new argument session, if justices are divided 4-4 when O'Connor leaves the court.
Her votes only count in cases decided while she is still on the bench.
This case could take months to decide.
"It's not clear how he would rule," said Anthony Picarello, president of The Becket Fund for Religious Liberty. "Normally religious freedom cases are tricky to predict. This one is especially tricky."
Federal drug law bans importation of DMT
Bush administration lawyer Edwin Kneedler told justices that the drug not only violates a federal narcotics law, but a treaty in which the United States promised to block the importation of drugs including dimethyltryptamine, also known as DMT.
The hoasca tea had been imported from Brazil.
He said other countries could back off the international war on drugs, citing lax U.S. enforcement of the treaty.
Kneedler noted that peyote used by Native Americans is grown in America and used here.
The herbal hoasca brew is used in communion by the church, which has a blend of Christian beliefs and South American traditions.
Members believe they can understand God only by drinking the tea, which is consumed twice a month at four-hour ceremonies.
New justice asks tough questions
The Supreme Court argument was lively, with the new chief justice a particularly active questioner.
Roberts asked tough questions of both sides.
He suggested the Bush administration was demanding too much, a "zero tolerance approach."
Church members want "just the right to practice their religious faith as Congress guaranteed," said Nancy Hollander, the lawyer for the church that has a congregation in Santa Fe.
Justice Ruth Bader Ginsburg suggested that justices could send the case back to a lower court without a ruling because the case is not final.
The appeal involves an injunction the church received to allow the tea.
No trial has been held yet.
The case is Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 04-1084.