By and large I’m in favor of the libertarian spirit reflected in yesterday’s decision to allow a small religious group to use an otherwise illegal hallucinogenic drug. In unsophisticated terms, I like the notion of telling people that they can do what they want as long as they don’t make a nuisance of themselves. And that characterizes, by and large, the discussion around whether or not to make an exception in the drug laws for O Centro Espírita Beneficente União do Vegetal (UDV). Is it more important to keep the drug laws uniformly enforced or to allow the members of the UDV society to do what they want to do?

The decision had the Supreme Court weighing the imposition the law made on religious practice against the social harm done by allowing what is otherwise illegal, and therefore generally presumed to be a bad thing. It is at some level getting at a basic problem of law – examining the application of the general rule in terms of the individual circumstance, a practice which, one imagines, would often find some apparent case for making exceptions.

Significantly, though, the question in this case was considered in terms of the 1993 Religious Freedom Restoration Act – enacted by congress to counteract a Supreme Court decision that seemed to allow states more latitude in enforcing laws that ran afoul of citizen’s religious practices. It was very explicitly under the aegis of the RFRA that the Supreme Court felt religious groups like the UDV should receive a serious hearing. In oral argument, Justice Scalia noted the breadth the RFRA: “It says there can be an exception to all federal statutes where there is a religious objection and a court makes a finding there can be an exception."

Later in arguments, Scalia raised the question of whether, say, bigamy could be argued for under the provision of the RFRA. The response of the UDV’s lawyer was basically “Yes,” though there was no guarantee that such a practice would in the end be allowed. As she put it: “All that RFRA does is to give every religious organization an opportunity to go into court to make its claim." So, while the war on terror grows as a reason for keeping people out of the courts, yesterday the Supreme Court ruled unanimously that the interruption of religious practice should get your case heard.

Part of the power of the religious claim comes from the eventual irreducibility of the argument for the religious practice in question. In the end, deities don’t have to explain themselves in entirely rational terms, and so neither can those who follow divine decree. The effect of this diffuses or displaces the desire behind the illegal practice, assuring that it’s not done just for fun. (As a side note, one of the central questions in determining the potential harm done by allowing the UDV to have their tea was whether it might end up in the wrong hands, getting out into the larger public where it would be used for non-religious purposes. The term for this is “diversion,” a word whose multiple meanings created a sort of comic effect in the oral arguments as the Justices fretted over the threatening possibility of diversion.)

I’ve got no reason to doubt the faith of the UDV (neither did the court, the sincerity of their faith was never made an issue), but I also have no doubt that a social club – as opposed to a church – with a longstanding tradition of drinking hallucinogenic tea that is illegal in the U.S. would not have had such a friendly reception.

On his weekly Le Show Harry Shearer has often advised his listeners to copyright their lives, playing cynically on the notion that the law is more interested in protecting commodities than the ephemerality of individuals’ privacy and freedom. One wonders if the lesson from the court yesterday was to find religion – some religion, any religion.

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