Taking Accommodation Seriously: Religious Freedom and the O Centro Case

CATO SUPREME COURT REVIEW, pp. 257, 2005-2006

Notre Dame Legal Studies Paper No. 06-16

27 Pages Posted: 20 Sep 2006

See all articles by Richard W. Garnett

Richard W. Garnett

Notre Dame Law School

Joshua D. Dunlap

Pierce Atwood LLP; Notre Dame Law School


The big stories from the Supreme Court's 2005-06 Term were about military commissions and enemy combatants, political redistricting and campaign contributions, and the nomination and confirmation - the first in more than a decade - of two new Justices. Largely overlooked in the crush of Court-related coverage was the Term's lone church-state decision, Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, involving the ritualized, but illegal, use by a small religious community from Brazil of a hallucinogenic tea called hoasca. Strictly speaking, O Centro was not a Religion Clauses case at all. It involved the interpretation and application of a particular statute, the federal Religious Freedom Restoration Act (RFRA). And, the Justices agreed with the courts below that the Act requires the government to demonstrate, in a particularized, more-than-conclusory way, that its refusal to exempt from the scope of the drug laws the otherwise-illegal religious use of hoasca is justified by a compelling state interest. It would be a mistake, though, move past the decision too quickly, and for at least two reasons. First, it is no small thing that the new Roberts Court - unanimously - has made it clear that the tighter constraints imposed by Congress on the national government really do bind. The Smith case teaches clearly that the political process is the main arena, and politically accountable actors are the primary players, when it comes to accommodating the special needs of religious believers. O Centro is entirely consistent with this teaching. However, it also underscores the point that when that process, and those actors, produce such an accommodation, courts and officials are to take it seriously. Second, it appears that the Justices have, with one voice, rejected the notion that such accommodations amount to an unconstitutional privileging, endorsement, or establishment of religion. Again, the Constitution for the most part permits - for better or worse - governments to regulate in ways that, in effect, burden religious exercise. At the same time, and no less certainly, it allows - and even invites - governments to lift or ease the burdens on religion that even neutral official actions often impose. O Centro affirms that, notwithstanding our constitutional commitment to religious freedom through limited government and the separation of the institutions of religion and government, it is and remains in the best of our traditions to single out lived religious faith as deserving accommodation.

JEL Classification: K10, K19, K39

Suggested Citation

Garnett, Richard W. and Dunlap, Joshua D., Taking Accommodation Seriously: Religious Freedom and the O Centro Case. CATO SUPREME COURT REVIEW, pp. 257, 2005-2006, Notre Dame Legal Studies Paper No. 06-16, Available at SSRN: https://ssrn.com/abstract=931186

Richard W. Garnett (Contact Author)

Notre Dame Law School ( email )

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Joshua D. Dunlap

Pierce Atwood LLP ( email )

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Portland, ME 04074
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Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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