Tea case a religious liberty tempest

On February 21, 2006, the U.S. Supreme Court ruled unanimously that a small religious group that combines Christianity and Native American practices can use hallucinogenic tea in its ceremonies. The core of the case – what happens to the First Amendment right to freely exercise religion when it conflicts with federal law – affects every religious group in America.  A wide variety of religious groups – from conservative to liberal – representing millions of members filed briefs supporting O Centro Espirita Beneficiente Uniao Do Vegetal, or UDV as the group is known.

The case was the first religious freedom case to be decided under Chief Justice John Roberts. The court ruled that the U.S. government had no right to seize tea from the church or to ban its use.

Why it matters

The right to free exercise of religion is a bedrock value of the First Amendment. It is held in tension with Americans’ right to be free from the government establishing one religion over another.


UDV is a small Brazilian religious sect that has about 10,000 members in the United States, where they are based in New Mexico. Members use a hallucinogenic tea during worship ceremonies in order to help them gain union with God. The case, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, began in 1999 when federal agents seized the tea, which is classified as a controlled substance. The case was considered pivotal for several reasons:

  • It had the potential to change the precedent from a landmark 1990 Supreme Court case involving the use of peyote for ceremonial purposes. That ruling – in Employment Division v. Smith – changed the prevailing legal test for free exercise cases. Before the case, the state had to prove it had a “compelling interest” that trumped a religious group’s First Amendment right to exercise its religion. In Smith, the court ruled that as long as a law didn’t target a religious group and was generally applicable to the whole population – in this case, a law that banned use of peyote – it was acceptable, even if it unintentionally affected one group, such as Native Americans, more than others. Many religious groups were outraged, fearing that, say, if a legislature banned wine on Sunday then Roman Catholics who used it at Mass would have no redress under the First Amendment – instead, they would have to persuade the legislature to pass a special exemption for them.
  • The case was considered a test of the federal Religious Freedom Restoration Act, passed in 1993, which restored the compelling-interest test and said it should apply in all cases where religious exercise is substantially burdened. In 1997, the Supreme Court ruled that RFRA doesn’t apply to state and local governments. Religious liberty advocates feared that the Supreme Court would rule in the UDV case that RFRA doesn’t apply to federal law, either, significantly reducing protections for religious adherents.
  • Legal experts said any ruling in the UDV case that steered religious groups toward legislative remedies in free exercise cases while reducing their constitutional options would have had profound effects, particularly for minority faiths. Larger groups – Roman Catholics or evangelicals — would likely have had an easier time marshalling support for legislative protection for faith practices, while smaller groups – particularly those with less mainstream practices – would likely have had a much harder time getting legislative support. Free exercise of religion, in effect, could have become a popularity contest if its main protection rested in legislative remedies.

The UDV tea case

Other legal background


National sources

In favor of allowing use of the tea

  • Jeremy Gunn

    Jeremy Gunn is director of the American Civil Liberties Union’s new Program on Freedom of Religion and Belief. The ACLU filed an amicus brief in support of UDV.

  • Kelly Shackelford

    Kelly Shackelford is president and CEO of First Liberty Institute, a Texas law firm that works to preserve religious freedom and argued in support of the Bladensburg cross before the Supreme Court.

  • Lee Boothby

    Lee Boothby is a civil rights and employment lawyer in Washington, D.C. He was vice president of the International Academy for Freedom of Religion and Belief, which filed an amicus brief in support of UDV.

    Contact: 202-776-0642.
  • Anthony Picarello Jr.

    Anthony Picarello Jr. is associate general secretary of the United States Conference of Catholic Bishops. He filed an amicus brief supporting UDV on behalf of the Becket Fund for Religious Liberty.

    Contact: 202-541-3000.
  • Nancy Hollander

    Nancy Hollander of Freedman Boyd Hollander Goldberg Urias & Ward P.A. in Albuquerque, N.M., was the attorney representing the UDV.

  • Gregory Baylor

    Gregory Baylor is director of the Christian Legal Society and said outlawing sacramental tea would be the equivalent of banning the wine served at a Roman Catholic Mass.

  • Gene Schaerr

    Attorney Gene Schaerr helped draft RLUIPA, testified on its behalf before Congress and has been heavily involved in defending it.

    He was counsel of record for an amicus curiae supporting UDV that represented 17 religious organizations, including the National Association of Evangelicals, the Baptist Joint Committee, the Institute on Religion and Public Policy, the First Church of Christ Scientist, the Union for Reform Judaism, the Sikh Coalition and the Muslim Minaret of Freedom Institute.

  • Mark E. Chopko

    Mark E. Chopko is an adjunct professor of law at Georgetown Law and an expert on church-state relations. He has been a member of the Board of Scholars of the DePaul Law School’s Center for Church-State Studies, the American Corporate Counsel Association and the National Council of Churches Religious Liberty Committee. He is the author of numerous articles on church-related topics for law reviews and the religious press; among his publications are Faith and the Law – Public Lives, Private Virtue.

    He was general counsel for the United States Conference of Catholic Bishops in Washington, D.C., which filed an amicus brief in support of UDV. The brief said there would be severe negative consequences for religion if UDV lost its case.

Against allowing the use of the tea

  • Paul D. Clement

    Paul D. Clement is an attorney with the Washington, D.C., law firm Bancroft PLLC.

    At the time of this case, he was solicitor general for the U.S. Department of Justice and argued on behalf of the government.

  • Annie Laurie Gaylor

    Annie Laurie Gaylor is co-founder and co-president of the Freedom From Religion Foundation, a Madison, Wis.-based national association of atheists and agnostics working to keep state and church separate. She previously served as editor of Freethought Today, the nation’s only freethought newspaper. She is the author of Woe to the Women: The Bible Tells Me So and editor of Women Without Superstition: “No Gods-No Masters,” an anthology of women freethinkers.

  • Marci A. Hamilton

    Marci A. Hamilton is the Robert A. Fox Leadership Program Professor of Practice at the University of Pennsylvania. She is also the founder, CEO and academic director for Child USA, a nonprofit think tank aimed at ending child abuse. Hamilton, who began her career as a lawyer, is an expert on child sex abuse statutes, as well as law and religion. She is author of God vs. the Gavel: The Perils of Extreme Religious Liberty.


Regional sources

In the Northeast

  • Clyde Wilcox

    Clyde Wilcox is professor of government at Georgetown University in Washington, D.C. He specializes in electoral behavior and public opinion and can comment on the Catholic vote, abortion, gun control, gay rights, church-state issues and other issues involving religion and politics. He wrote “Abortion, Gay Rights and Church-State Issues in the 2000 Campaign” for the book Religion and Liberal Democracy: Piety, Politics and Pluralism and he is the co-author of The Values Campaign? The Christian Right and the 2004 Elections.

  • Roger Finke

    Roger Finke is a professor of sociology, religious studies and international affairs at Penn State University. He’s also director of the Association of Religion Data Archives.

  • Noah Feldman

    Noah Feldman is a professor at Harvard Law School whose specialties include the relationship between law and religion. He gave the keynote address, “Persecution and the Art of Secrecy: An Interpretation of the Mormon Encounter with American Politics,” at a 2007 conference on Mormonism and American politics. He also wrote a July 22, 2007, essay in The New York Times Magazine (subscription required) titled “Orthodox Paradox,” about his drift away from the Orthodox Judaism of his youth. He has a doctorate in Islamic thought and is an expert on Middle East politics and Islamic constitutional law.

  • Philip Jenkins

    Philip Jenkins is Edwin Erle Sparks Professor of Humanities at Pennsylvania State University. He also is a Distinguished Senior Fellow at Baylor University’s Institute for Studies of Religion and serves as co-director for the institute’s Initiative on Historical Studies of Religion. He is the author of Climate, Catastrophe and Faith: How Changes in Climate Drive Religious Upheaval and The Next Christendom: The Coming of Global Christianity, which includes extensive discussion of the global impact of Pentecostalism.

  • Vincent Phillip Muñoz

    Vincent Phillip Muñoz teaches religion and and public life at the University of Notre Dame. He focuses on the founders and religious freedom.

In the South

  • Paul Finkelman

    Paul Finkelman is a professor of law and public policy at Albany Law School in New York. He is an expert in constitutional history and constitutional law, freedom of religion, the law of slavery, civil liberties and the American Civil War, baseball and the law and religious monuments in public spaces. He has written prolifically about the First Amendment and religion, including Landmark Decisions of the United States Supreme Court (with Melvin I. Urofsky).

  • Catherine Wessinger

    Catherine Wessinger, professor of religious studies at Loyola University in New Orleans, has written widely on theosophy, millennialism, New Religious Movements and New Age religions. She is co-editor of Nova Religio: The Journal of Alternative and Emergent Religions.

  • Timothy Hall

    Timothy Hall is an associate professor of philosophy at Oberlin College & Conservatory in Oberlin, Ohio. He teaches a variety of ethics courses, and his research interests include the applied ethics of gun control.

  • William G. Ross

    William G. Ross is a law professor at Samford University in Birmingham, Ala. He has written on religion, law and education. He is an expert of judicial ethics, and his work on judicial ethics has been sighted in several federal court decisions.

  • Richard Schragger

    Richard Schragger is a law professor at the University of Virginia and an expert in land use issues.

  • Michael S. Ariens

    Michael S. Ariens is a professor of church and state for the school of law at St. Mary’s University in San Antonio, Texas. He wrote the essay “Religion in the Courtroom” for the book Religions of the World: A Comprehensive Encyclopedia of Beliefs and Practices (ABC-Clio, 2002).

  • Lewis V. Baldwin

    The Rev. Lewis V. Baldwin is a professor emeritus of religious studies at Vanderbilt University in Nashville, Tenn. He edited the book The Legacy of Martin Luther King Jr.: The Boundaries of Law, Politics and Religion.


  • Davison M. Douglas

    Davison M. Douglas is director of the Election Law Program at the Marshall-Wythe School of Law at the College of William and Mary in Williamsburg, Va. He wrote the essay “‘Christian Nation’ as a Concept in Supreme Court Jurisprudence” for Religion and American Law: An Encyclopedia.

  • Douglas Laycock

    Douglas Laycock is a professor of law and religious studies at the University of Virginia and an authority on religious liberty. He is the author of several books and articles on law and religion and co-edited a collection of essays on same-sex marriage and religious freedom.

    Laycock filed an amicus brief in support of UDV.

In the Midwest

  • Thomas C. Berg

    Thomas C. Berg is a law professor at the University of St. Thomas in Minneapolis. He is a leading expert on church-state issues and has written on religious land use questions. He supports the rights of religious organizations to choose members based on religion and sexual conduct. He has also written about religious speech in the workplace.

  • Scott C. Idleman

    Scott C. Idleman is a law professor at Marquette University in Milwaukee. He specializes in church-state issues, including religious freedom and land use questions.

  • Kevin den Dulk

    Kevin den Dulk teaches political science at Calvin College in Grand Rapids, Mich. His interests include American politics, religion and politics cross-nationally, public law and courts and political theory. He has written about free speech and religious liberty and about the legal mobilization of conservative Christians in the United States. He is the co-author of Religion and Politics in America: Faith, Culture and Strategic Choices.

  • James Hitchcock

    James Hitchcock is a professor emeritus of history at St. Louis University. He wrote the book The Supreme Court and Religion in American Life, Vol. 2: From “Higher Law” to “Sectarian Scruples.”

  • David E. Wilkins

    David E. Wilkins is co-author of Uneven Ground: American Indian Sovereignty and Federal Law (University of Oklahoma Press, 2001) and associate professor of American Indian studies, political science and law at the University of Minnesota, Twin Cities.

In the West

  • Alan E. Brownstein

    Alan E. Brownstein is a professor of constitutional law at the University of California, Davis. He is a nationally known expert on religious freedom issues and has written widely about religious land use issues and states’ rights.

  • Eugene Volokh

    Eugene Volokh teaches law at the University of California, Los Angeles. He has written extensively about religious exemptions, freedom of speech and religious accommodation law.

  • W. Cole Durham Jr.

    W. Cole Durham Jr. is a law professor and director of the International Center for Law and Religion Studies at Brigham Young University in Provo, Utah. He has worked on religious freedom issues around the world.

  • K. Tsianina Lomawaima

    K. Tsianina Lomawaima is co-author of Uneven Ground: American Indian Sovereignty and Federal Law (University of Oklahoma Press, 2001) and professor of American Indian studies at the University of Arizona.

  • Michal R. Belknap

    Michal R. Belknap is an emeritus professor of law at California Western School of Law in San Diego. He wrote the essay “Cults and the Law” for the book Religion and American Law: An Encyclopedia.

  • James T. Richardson

    James T. Richardson is Emeritus Foundation Professor of Sociology and Judicial Studies at the University of Nevada, Reno. He wrote the essay “Public Policy Toward Minority Religions in the United States: A Model for Europe?” for the book Religion and Public Policy.

  • Stephen Matthew Feldman

    Stephen Matthew Feldman is a professor at the college of law at the University of Wyoming in Laramie. He edited the book Law and Religion: A Critical Anthology (New York University Press, 2000).

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