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The Supreme Court agreed Monday to consider a Bush administration plea to keep the members of a New Mexico church from using a hallucinogenic tea in their ceremonies. Founded in Brazil, the Christian church O Centro Espirita Beneficiente Uniao Do Vegetal has about 130 American members who drink hoasca, an herbal tea that contains dimethyltryptamine. DMT is barred under the federal Controlled Substances Act and also under an international treaty. In the case of Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, acting Solicitor General Paul Clement argues that allowing use of the tea, which is imported from Brazil, would “open the nation’s borders to the importation, circulation, and usage of a mind-altering hallucinogen and threatens to inflict irreparable harm on international cooperation in combating transnational narcotics trafficking.” The administration wants the high court to overturn a November 2004 en banc ruling by the U.S Court of Appeals for the 10th Circuit. The en banc decision affirmed an earlier injunction that prohibited the government from barring importation and use of the tea. The government also contends that mandating it to allow importation would force it to violate the United Nations Convention on Psychotropic Substances, and would weaken the government’s ability to urge other nations to abide by the treaty. The 10th Circuit ruling cited the federal Religious Freedom Restoration Act, which requires the government to demonstrate a “compelling governmental interest” before it can “substantially burden” religious practices. The government did not meet that test, the 10th Circuit found, because it did not prove that use of the tea would lead to adverse health effects. In a concurring opinion, Judge Michael McConnell — an expert on church-state issues — also noted that the Controlled Substances Act allows for exceptions, and that the Native American Church’s use of peyote in its ceremonies has been permitted under the law. The exemptions, McConnell said, indicate “Congress’ belief that at least some uses of the substances controlled by the act are consistent with the public health and safety.” In City of Boerne v. Flores in 1997, the high court struck down part of the Religious Freedom Restoration Act, but it still applies to federal laws such as the Controlled Substances Act. In a reply to the government’s brief, the church’s lawyer Nancy Hollander said the government’s arguments were “alarmist” and do not demonstrate that the church’s ceremony represents any harm to society. Hollander, a partner at Freedman Boyd Daniels Hollander & Goldberg of Albuquerque, N.M., also argued that because the 10th Circuit merely upheld a preliminary injunction in the case, it should be allowed to go to trial on the merits. — Legal Times intern Marya Lucas contributed to this report.

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