Introduction

On April 18, 2005, the [United States Supreme Court] granted a [writ of certiorari] to the United States Attorney General to review a [preliminary injunction] which barred the United States from enforcing the [Controlled Substances Act] to prevent [O Centro Espíritu Beneficial União de Vegetal], a New Mexico corporation which is the United States branch of a Brazilian church, also known as the União de Vegetal or "UDV", from importing and using certain Amazonian herbs which contain DMT.

[DMT], and herbal concoctions containing DMT, are listed on Schedule I of the Controlled Substances Act. The Schedule I designation means the United States Congress has determined that DMT is a dangerous hallucinogenic drug with no recognized medical value. International trafficking in DMT, and DMT-containing substances, is also banned by an international drug control treaty, the United Nations Convention on Psychotropic Substances.

The UDV is a religious sect founded in Brazil in the mid-20th Century. The UDV's doctrine is a syncretic blend of Christian ethical and moral principles with Native American ritual practices and reverance for the nature, specifically, the rain forest ecosystem of Amazonia. The UDV uses a mild form of DMT, prepared as an herbal tea called [hoasca], in its religious ceremonies.

In 1999, the home of the UDV-USA's president in [Santa Fe, New Mexico] was raided by federal agents and 30 gallons of [hoasca] tea were seized. While no members of the Church were prosecuted, the government thus made it clear that it would not permit the Church to import or use [hoasca]. The UDV does not have written "scriptures": its doctrine is transmitted solely through words and music used in the ritual involving [hoasca]. Banning the ritual is therefore tantamount to banning the exercise of the religion.

The UDV's New Mexico corporation and members brought a federal lawsuit, claiming a religious exemption to the drug laws, under the Free Exercise Clause of the [Amendment I|First Amendment] to [the Constitution of the United States of America| U.S. Constitution], as Congress has expressed it should be interpreted in the [Religious Freedom Restoration Act] of 1993. See 42 USC § 2000bb-1(b). Under that section, when federal law "substantially burdens" the exercise of religion, Congress directed courts to whether the application of federal law to a specific person furthers a "compelling" government interest, and is the least restrictive means of furthering that interest.

The case was assigned to the Honorable James Parker, a Senior United States District Court Judge. (Judge Parker may be familiar as the judge who castigated the [Department of Justice] for its inept handling of the highly publicized prosecution of [Wen Ho Lee], a Los Alamos nuclear scientist falsely alleged by the government to be a Chinese spy). After hearing experts from both sides testify about DMT and [hoasca], Judge Parker determined that the UDV was substantially likely to prevail on the merits at trial, and therefore a preliminary injunction was appropriate. At the request of the Attorney General, he placed conditions on the injunction which effectively gave the United States government a role in regulating the importation of the herbs for making [hoasca], in order to prevent their diversion to illegal, non-religious uses.

The United States appealed the case to the Tenth Circuit Court of Appeals. As is the usual practice, the case was initially assigned to a three judge panel. In 2002, the panel decided to affirm the district court. The United States then asked for and got en banc review: reconsideration by the entire circuit court of thirteen judges. The Tenth Circuit was divided on both the procedural niceties of granting a preliminary injunction, as well as the merits of the UDV's claim for a religious exemption, and ended up with two separate majorities on the procedural issue and the merits of the case, but the final result, in 2004, was to affirm the injunction in favor of the UDV. The United States then applied to the Supreme Court for a stay of the injunction pending appeal, which was denied.

(NB: All these opinions are available under the name "O Centro Espíritu Beneficial União de Vegetal v. Ashcroft": the en banc opinion of the court of appeals is reported at 389 F.3d 973. The panel opinion of the court of appeals is reported at 342 F.3d 1170. The opinion of the motions panel granting a stay pending appeal is reported at 314 F.3d 463. The opinion of the district court is reported at 282 F. Supp. 2d 1236. In 2005, the United States filed a Petition for Writ of Certiorari, and as the loser in the court below, the Attorney General became the Petitioner (the first party) in the Supreme Court. Attorney General John Ashcroft has been replaced by Alberto Gonzales, and thus the name of the case has changed to Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal .)

Hoasca

Native Americans, from [Patagonia] to the [Arctic Circle] have been using a variety of hallucinogenic plants in religious ceremonies since well before Europeans arrived. Specifically, the tropical plants venerated by the UDV have been in use for some time. In 1851, an English botanist, [Richard Spruce], encountered [Tucano] Indians on the banks of the Vaupés River in Brazilian Amazonia. The meeting was celebrated with a Tucano ritual that included the ingestion of a tea known as "caapi", prepared from the leaves of a vine, banisteriopsis caapi. The caapi vine, which the UDV calls "Mariri", is decocted with the leaves of a shrub, psychotria viridis, which they call "Chacrona". The result is a tea known as "ayahuasca" or "hoasca". The UDV is uncomfortable with the term "hallucinogen". The UDV and some ethnobiologists prefer the term "entheogen", "a substance that generates an experience of contact with the divine causing a general sensation of coming closer to the Sacred and facilitating self-knowledge and the betterment of the human being."

The UDV maintains that hoasca is "proven harmless to the health". The United States, in response, maintains that it is proven that DMT is a dangerous drug. Whatever the merits of the United States' evidence for this assertion about DMT (and they are dubious at best) hoasca is demonstrably different from the synthetic DMT studied and abused in the United States.

The government and private anti-drug organizations assume that conditions of illegal abuse are inherent in the substance. An example of this is the current campaign against [MDMA]. Controlled doses of pharmaceutically pure MDMA have never killed anyone, but street tabs of [ecstasy] have. So, we get anti-drugs advertising suggesting that "ecstasy" killed some poor guy's daughter, when in fact she died after ingesting methamphetamine-laced tabs of ecstacy. Also, in trumpeting the potential psychiatric harms of hallucinogens, anti-drug rhetoric frequently ignores research showing that "set and setting" in which drugs are used are critical for predicting whether they will engender harmful psychoses in the user. These distinctions are critical in evaluating the harm of "hoasca" as used in religious ceremonies.

Since 1971, DMT and DMT-containing substances have been classified as illegal hallucinogenics under the Controlled Substances Act, in a rush to classify all conceivable hallucingens as illegal, following widespread abuse of psychotropic drugs in the 1960s. The government's arguments in the UDV case frequently repeat that DMT, and anything containing DMT, is a dangerous drug. Taken literally, this assertion is preposterous since DMT is an "endogenous" substance: a neurotransmitter naturally produced within the human body. Indeed, some researchers speculate that endogenous DMT may be the physical mechanism for a variety of self-induced "spiritual" or mystical experiences, such shamanic journeys, out-of-body experiences, mystic encounters with "God" or angels, or more recently, alien abductions.

The primary effects of DMT include a rush of "visions" or visual hallucinations, followed by a period of euphoria lasting one to two hours. The visions or hallucinations reported frequently include talk of "travel" to a different "place" and conversation or communication with other entities (the specifics of which are highly culturally-conditioned).

The synthetic form of the active ingredient in hoasca, N,N-dimethyltryptamine (DMT) cannot effectively be taken orally, due to an enzyme process called "catabolic deamination". To use synthetic DMT, you have to smoke or inject a lot of it. Drug abusers in the United States tend to smoke it, and scientific studies have been done by injecting large doses of DMT. These methods result in a sudden, rather harsh DMT experience, and the documented psychiatric harm can readily attributed to this method of ingestion and the less-than ideal "set and setting" of scientific DMT study.

Amazonian natives discovered, however, that combining plants that contained MAO ([monoamine oxidase]) inhibitors, and other plants containing DMT, the DMT would be effective if taken orally, in a tea. [MAO inhibitors] block the destruction of DMT in the digestive track and in the brain. Probably the more dangerous substance in "hoasca" is not the DMT, but rather the MAO inhibitors. MAO inhibitors reacts with [tyramine], a substance found in certain foods, beverages, or medicines, and may cause serious and possibly life-threatening reactions, such as sudden high blood pressure. The dangerous reactions may not begin until several hours after consuming these things. Aged cheeses, beer, red wines, smoked or pickled meats, chocolate, and caffeinated beverages are among the foods and drinks to be avoided. However, for some people with severe depression, MAO inhibitors are the only drugs that work. The FDA allows psychiatrists to prescribe them as an [antidepressant]: isocarboxazid ([Marplan]), phenelzine ([Nardil]), and tranylcypromine ([Parnate]) are examples of MAO inhibitors approved for use an antidepressants.

Thus, the ingredient in hoasca which poses known, serious health risks is a readily available prescription drug in America. DMT, the relatively risk-free hallucinogenic component, which can be found in your bloodstream right now, is declared a dangerous drug, unsafe for use under any conditions. Of course, United States drug laws really have no coherent medical or scientific basis. If they did, harmless substances like marijuana would be legal, and many readily available over-the-counter medications would be banned.

The UDV

The "Mestre" of the União do Vegetal, José Gabriel da Costa was born in 1922, in Coração de Maria, near Feira de Santana in the state of Bahia, Brazil. He lived and worked in the Amazonian forest as a rubber worker and hospital worker, and there learned the medicinal and spiritual properties of "hoasca", a tea made from the Mariri and Chacrona plants. In the early 1970's, the UDV successfully petitioned the Brazilian government for the right to continue its activities, and adopted an official name, the"Centro Espírita Beneficente União do Vegetal." UDV reports that Mestre Gabriel "disincarnated" in Brasilia in 1971.

UDV combines a simple doctrine of Christian love with a notion of evolutionary reincarnation, along with a reverance for nature, and in particular, for the Amazonian wilderness. "Through successive incarnations, the spirit evolves, gradually developing faithfulness to the practice of Good, until reaching Purification - "sainthood" for western traditions." "For the UDV as a religious society, the Amazon forest is not only its geographic origin but also holds essential spiritual values." (Quotes from UDV website: http://www.udv.org.br/english/index.html)

The UDV does not have sacred scriptures. The UDV transmits its doctrine exclusively in its religious rituals. In these rituals, "hoasca" tea, also called "Vegetal", is distributed to enable participants to achieve "a state of balanced mental concentration".

Preliminary Injunction

Most private lawsuits in Anglo-American law are about money. An action "at law" is by definition a case about money, and seeks a judgment for money damages. Fairly early on in the history of English law, however, there arose a different case, known as a case in "[equity]", which seeks a court order prohibiting or mandating certain conduct. Such an order is known as an "[injunction]". Such an order is particularly useful to resolve disputes between the government and its citizens, such as this one. In England, the original structure for these cases actually involved a separate court system, which evolved out of appeals to the King or Queen, (which were referred to an official called the Chancellor) for relief from some action or threat of action from the judicial branch. (As a result, equity actions are sometimes called "[chancery]"). As it has evolved further, separate equity courts no longer exist, but equity cases are still treated very differently from "legal" cases. In the United States, for example, there is no right to a jury trial.

Since legal proceedings can drag on for years (like this one has) and time is of the essence where one party claims its fundamental rights are being violated (as in this case the members of the UDV are prevented from exercising their religion as long as the government has its way) the [Federal Rules of Civil Procedure], Rule 65, allow for what is known as a "preliminary injunction". As one might expect from a profession that calls thirty-page written arguments a "brief", the hearing for a preliminary injunction can often be as long and involved as a full-blown trial. In this case, Judge Parker heard testimony for two solid weeks. Moreover, the judge is required to enter "findings and conclusions" (decide factual and legal issues, respectively) just as if the injunction hearing were a bench trial (trial where the judge makes the decisions, not a jury). Nonetheless, the preliminary injunction is not the last word on the subject: a trial is anticipated before a preliminary injunction is converted to a permanent injunction. Therefore, the strengths and weaknesses of the parties evidence are not evaluated in terms "proof" or "burden of proof". Nothing is finally "proved" or settled in an injunction hearing. Instead of "proving" something, the party seeking an injunction has to demonstrate "irreparable harm" (that they have a problem which can't be satisfied or compensated with money) and "a substantial likelihood of success on the merits". In other words, they have to show that if the case did go to trial, they would win.

Another difference between a preliminary injunction and a permanent one is that the former is only allowed to preserve the "[status quo]" between the parties, whereas if you want a court order that changes the relationship, you have to wait for the permanent injunction. Precisely what would constitute the "status quo" or a "likelihood of success" in this case was the subject of much disagreement among the full panel of judges in the Tenth Circuit.

One view, which turned out to be the minority view, is that this case presents a conflict between competing legal rights, embodied in conflicting federal statutes (the Controlled Substances Act and the Religious Freedom Restoration Act) and therefore the court had to look at how the injunction would alter the status quo and affect or "harm" the respective parties. In this view, the UDV has established (and the government cannot dispute) that enforcing the Controlled Substances Act substantially burdens the exercise of their religion, and thus constitutes a present and ongoing "irreparable harm" meriting an injunction. In this view, the government's alleged interest in preventing a potential black market in DMT, or to avoid being swamped by a myriad bogus applications for a religious exemptions, is not a present and ongoing harm, but as rather purely speculative, and as such "outweighed" by the harm to the UDV.

The majority view on the procedural issue turned out to be that the "status quo" in this case is that DMT is illegal, under both federal and international law, and that the preliminary injunction altered that status quo by imposing on the government the burden of regulating the import of hoasca. (This view ignores the fact that it was the United States, not the UDV, which demanded and got the regulatory conditions on the injunction). The majority view takes as its starting point the fact that Congress put DMT on Schedule I, and thus implicitly "found" that DMT has a high potential for abuse and is not safe under any circumstances. The majority on the procedural issue viewed this Congressional finding as the established fact which the UDV had the burden to overcome.

The majority quoted authority that "status quo" is "the last peaceable uncontested status existing between the parties before the dispute developed". The majority view was that the UDV were disturbing the "peace" because they knew they were evading the drug laws (they labelled their drugs as "herbal tea" and stated on Customs documents that the tea was a "dietary supplement", thus knowingly concealing the fact that the tea contained a scheduled psychotropic substance). The notion that the government may have been disturbing the UDV's "peace" by raiding their homes and seizing their herbs seems not to occur to them. According to the majority view of the procedural issue, the burden was on the UDV to show that their tea was either not dangerous and/or that their import of hoasca created no risk of "diversion" of DMT to the illegal black market for recreational drugs.

My own view is that the "status quo" is religious liberty. The free exercise of religion is a "[The Declaration of Independence|self-evident]" natural right, secured by the First Amendment long before the government got into the business of regulating supposedly-dangerous substances. Religious liberty preceeds the government's claimed interest in "protecting us from ourselves" both historically and logically. As such, the government should have the burden of demonstrating to a court that a religious exemption should not be allowed. This will be difficult for the government, since an analogous religious exemption for Native American use of peyote was law before the feds started harassing the UDV in Santa Fe, and none of the problems the government speculates about seem to have occurred with peyote. An argument from [natural law] is not a viable legal argument by itself, but it is considerably strengthened by Congress' enactment of the Religious Freedom Restoration Act which, as the name suggests, sought to "restore" religious liberty to its natural place after it had been "lost". It is highly significant for the UDV, and to its [amicus curiae|friends] in the religious community, that the impetus for the RFRA was a Supreme Court [Employment Division v. Smith|case] in which liberty was given second priority behind the government's "[zero tolerance]" policy toward drugs.

Legal Background: The Free Exercise Clause and Drug Laws

So you want a religious exemption to U.S. drug laws? Well, first your religous use has to be "sincere". "Sincere" in this context means active, organized, and long established. "Religion", in order to qualify for protection under the [Amendment I|First Amendment], has to be an organized, group activity. It cannot be a solitary spiritual pursuit. If you got "ordained" on the internet and your only disciples are your dog or cat, you don't qualify.

Second, even "sincere" religions have failed to obtain legal protection in the United States, when they venerate commonly-abused recreational drugs, like marijuana. An example would be the [Rastafarians]. While the "sincerity" of ganja-worship should not be questioned (even if the Rasta in question is a white suburban boy from [New Jersey]) the government can articulate a "compelling interest" in controlling the importation of marijuana to prevent its [diversion] to non-believers for recreational use.

The "compelling government interest" test has been the subject of some legal controversy, with the Supreme Court on one side, and Congress and religious groups on the other. The controversy began when a drug counselor was fired and denied unemployment benefits because of his sacramental use of peyote in a ceremony of the [Native American Church]. The case was called [Employment Division v. Smith]. While the [Smith] case directly affected very few people --most members of the Native American Church live in states where their religious use of peyote is protected by both federal and state law-- many religious groups felt threatened by the legal rationale employed by the majority. Justice Scalia, writing for that majority, opined that any criminal law which is "generally applicable" and "neutral on its face" toward religion requires no further judicial scrutiny. This reasoning dispensed with decades of precedent requiring the government to come forward with a "compelling" justification for the burden on religious exercise.

For example, take laws which prohibit door-to-door solicitation or religious proselytation. Laws which prohibit specific groups (like the [Jehovah's Witnesses]) from proselytizing obvious flunk the test: they aren't generally applicable. Laws which prevent all proselytizing are generally applicable, but they aren't "neutral" toward religion. Thus, to pass Justice Scalia's test, a community would have to ban all forms of door-to-door solicitation: religious, commercial and charitable.

One problem with this approach is that local governments will write laws to appear neutral "on their face", but then enforce them in a selective manner. For example, a government might strictly enforce a solicitation law against Jehovah's Witnesses but ignore Girl Scouts selling cookies door-to-door. Such a practice, if proved, could undermine the government's attempts to justify the apparently neutral law under the "compelling interest" test.

Another example is Sherbert v. Verner, 374 U.S. 398 (1963)

There, a South Carolina woman who was a [Seventh Day Adventist] lost unemployment benefits because she refused to take jobs that required her to work on Saturday. Seventh Day Adventists believe the Sabbath should be observed on Saturday, rather than Sunday. (And they have a point: the Sabbath was moved to Sunday by the first purportedly-Christian Roman Emperor, [Constantine], a devotee of the sun-worshipping pagan cult of [Sol Invictus].) South Carolina allowed people to refuse to work on Sunday, so while the law was generally applicable and neutral on its face toward religion, it was discriminatory as applied. So the Court imposed a requirement that the government demonstrate some "compelling" reason for the law, which South Carolina in this case could not do (because any excuse they could come up with would apply as well to the Sunday exemption).

Congress responded to the decision in the Smith case by enacting the Religious Freedom Restoration Act of 1993 ("RFRA"). The RFRA sought to restore the "compelling governmental interest" test as stated in Sherbert v. Werner and [Wisconsin v. Yoder], 406 U.S. 205 (1972). RFRA prohibited the government from substantially burdening a person's exercise of religion --even if the burden results from a rule of general applicability-- unless the government can demonstrate that the burden is the least restrictive means of furthering a compelling governmental interest.

In Smith, Justice Scalia had tried to mollify critics by limiting the new rule about "generally applicable" laws to criminal laws, but even relatively trivial disputes between communities and religious minorities, such as zoning disputes, can involve criminal laws. In fact, the very first test of the Religious Freedom Restoration Act, the case of [City of Boerne, Texas v. Flores], 521 US 507 (1997), which involved a zoning dispute between a Catholic church and the eponymous city in Texas, which had declared the church a historic landmark and refused to allow it to be remodeled.

In City of Boerne, the Supreme Court held that RFRA was invalid, at least as far as Congress purported to apply the First Amendment to state and local governments. Applying the Constitution to the States is the exclusive prerogative of the Supreme Court. The reasoning of City of Boerne, however, did not entirely invalidate RFRA: it still applies to federal statutes (Congress can tell the Court how to interpret federal statutes).

That brings us back to this dispute between the UDV and the United States Attorney General. The UDV is seeking to enjoin the enforcement of federal drug laws, and so the Religious Freedom Restoration Act must be applied. Ultimately, at trial, the Attorney General will have to prove a "compelling government interest" which outweighs the burden on religous exercise, and that the manner in which the government seeks to further that interest is the "least restrictive means".

Interestingly, while a majority of the Tenth Circuit Court of Appeals thought a higher standard should apply to get a preliminary injunction, a different majority held that the UDV met that higher standard in this case. Given that the Tenth Circuit is generally a conservative court (unlike the notoriously liberal and frequently overturned Ninth Circuit) this may foreshadow what the United States Supreme Court is going to do with the case.

Update: Supreme Court rules for UDV against United States

On February 21, 2006, the [United States Supreme Court] issued a unanimous decision in favor of the UDV and against the United States Attorney General, and affirmed the district court and Court of Appeals decisions discussed above. The opinion authored by new Chief Justice Roberts is notable for the following:

The government had the burden of proof: The Court rejected the government's argument that plaintiffs had the burden of proof, because they were asking for an [injunction], or because they sought to disturb the "status quo" in the [War on Drugs]. All cases involving on-going government deprivations of fundamental constitutional rights are now on the same footing as cases seeking money damages. If the evidence is evenly balanced, the government loses.
The [Religious Freedom Restoration Act] applies to federal laws, whether or not the Supreme Court thinks it is a good idea. Chief Justice Roberts acknowledges the point made Justice Scalia in Smith, that the "compelling interest" test invites courts to "legislate" on complicated matters and set policy. Congress, however, has mandated judicial intervention for religious minorities claiming oppression by federal laws. Thus, the courts must "legislate from the bench", whether or not the Constitution requires it.

The opinion by Justice Roberts is concise and clear, and unencumbered by additional concurring or dissenting opinions. Apparently, no one wanted to use this case to rehash the dispute between Congress and the Court about how religious exemptions should be handled.

Gonzales v. O Centro Espíritu Beneficial União de Vegetal