On May 21, 1999, inspectors at US Customs intercepted a shipment of
three drums marked as holding “herbal tea extract.” A test of the brown
liquid indicated that it contained the Schedule I substance dimethyltryptamine
(DMT). The tea, known as hoasca or ayahuasca, was destined
for the American branch of the Brazilian-based Uniao do Vegetal (UDV),
whose members drink hoasca as a sacred communion. When Customs
refused to allow the hoasca through, and threatened to destroy it, the
UDV filed a federal lawsuit against the Attorney General seeking a
court order that the government return the hoasca and permit the
UDV to import and use hoasca in their religious ceremonies.
Before the trial began, the UDV
moved for a preliminary injunction,
requesting that its members be permitted
to import and use hoasca in their religious
ceremonies prior to, and during, the trial.
Although the government conceded that
the UDV was a genuine religious organization
whose members were sincere in
their use of hoasca for religious purposes,
the government opposed the preliminary
injunction on the ground that hoasca is an
illegal mixture containing DMT and hence
any use of it was prohibited by the federal
Controlled Substances Act. The UDV
replied that the Religious Freedom
Restoration Act (RFRA) protected their
use of hoasca.
A hearing was held and the district
court subsequently ruled in favor of the
UDV, granting the preliminary injunction.
The government appealed and lost in the
Court of Appeal for the Tenth Circuit.
After being denied a second appeal to the
Tenth Circuit, the government appealed to the US Supreme Court, which in 2005,
agreed to hear the case.
On February 21, 2006, in a unanimous
opinion authored by new Chief
Justice Roberts, the Supreme Court ruled
in favor of the UDV, affirming the grant of
the preliminary injunction. The Supreme
Court found that by passing RFRA,
Congress empowered federal courts to
make a case-by-case determination of
whether a federal law burdens a religious
practice. Thus, the fact
that hoasca contained
DMT-and that DMT was a
Schedule I substance-was
not by itself sufficient to
automatically trump the
UDV’s religious practices.
Rather, under RFRA, the
government had the
burden of proving that it
was unable to accommodate
the UDV’s religious
use of hoasca. In an effort
to meet this burden, the
government argued that a
complete ban on all use of
hoasca, including religious
use by UDV members,
was necessary for
three reasons: (1) to
protect the health and
safety of the UDV members;
(2) to prevent
diversion of hoasca
beyond UDV members;
and, (3) because an
international drug control
treaty required the US to
prohibit all use of DMT,
including hoasca used by
UDV members.
With respect to the first two government
interests (health of UDV members,
and prevention of diversion), the US
Supreme Court noted that the District
Court had found that both the UDV and
the government introduced evidence on
these issues, and that the evidence virtually
balanced out: the government’s
evidence showed that DMT was unsafe
and that hoasca could be diverted, while
the UDV’s evidence showed that its
members’ use of hoasca was quite safe, and
that no actual diversion had occurred in
the past. However, because the government
had the burden of proof, balanced
evidence like this was insufficient to meet
its burden. The Supreme Court also
pointed to the federal exemption that
allows members of the Native American
Church (NAC) to use peyote, which like
DMT, is a Schedule I controlled substance.
Noting that membership in the NAC
numbered in the hundreds
of thousands, and yet the
federal government was
able to accommodate their
religious use without
undue harm or diversion,
the Court saw no reason
why the government could
not likewise accommodate
hoasca use by the 130 or so
US members of the UDV.
The third interest
proposed by the government
as a justification for
barring the UDV’s use of
hoasca was that the 1971
Convention of Psychotropic
Substances required
the US to ban all use and
importation of DMT. The
District Court rejected this
argument, finding that
hoasca was not covered by
the Convention because it
was made from two plants
that were unscheduled and
was made by a simple
process of simmering those
two plants in water. The
Supreme Court rejected
this finding by the District Court, explaining,
“Hoasca is a ‘solution or mixture’
containing DMT; the fact that it is made by
the simple process of brewing plants in
water, as opposed to some more advanced
method, does not change that... [T]he tea
plainly qualifies as a ‘preparation’ under
the Convention.”
Nevertheless, the Supreme Court
found that even though hoasca is within
the 1971 Convention, the government
failed to present any evidence showing how granting an exemption to the UDV
would actually frustrate the government’s
international duties under the Convention.
By failing to introduce such evidence,
the government once again failed to carry
its burden of proof, and as a result, the
Supreme Court held that the government’s
general duties under the 1971 Convention
were not sufficient to justify the specific
harms to the UDV that would occur if its
members were prohibited from using
hoasca.
Having rejected all three of the
government’s arguments, the Supreme
Court affirmed the grant of the preliminary
injunction
in favor of the
UDV. The case
will now return
to the district
court where it is
expected that the
government will
forgo a trial and
instead negotiate
the finer terms of
allowing the
UDV to import
and use hoasca in
its ceremonies.
There is, however,
the possibility
that the
government will
continue forward
to trial, meaning
the case could eventually reach the
Supreme Court once again in several
years.
So what does this decision mean with
regard to other entheogens and other
religious users? It is important to remember
that the Religious Freedom Restoration
Act only applies to federal law. It does
not apply to states, where the vast majority
of entheogen arrests and prosecutions
occur. So, in the vast majority of
entheogen cases, RFRA will not be of any
benefit.
It is also important to note the unique
characteristics of the UDV: the esoteric
nature of its hoasca sacrament, its careful
monitoring of members’ health, and the very small number of members in the US
branch (said to number about 130).
Nevertheless, the decision is
groundbreaking because it is the first
entheogen case to reach the Supreme
Court after the Court’s grim holding in
Department of Human Resources of Oregon
v. Smith, where the Supreme Court held
that the First Amendment’s Free Exercise
Clause did not protect the Native American
Church’s use of peyote. The UDV case
is also the first entheogen case to reach the
Court since the passage of RFRA, and
shows that RFRA is vigorous and did
indeed restore the compelling state
interest test
largely abandoned
in Smith.
Under RFRA the
outcome of Smith
would have been
different.
The UDV
case establishes
that in future
entheogen cases
where RFRA is
applicable, the
federal government
will not be
able to win
simply by
asserting that the
use of a particular
entheogen was
prohibited by the
Controlled Substances Act. Instead, each
case will be judged on a case-by-case basis
with an eye to the specifics of the religious
practice, the specifics of the entheogen
used, and the specific reasons and evidence
offered by the government as to
why no accommodation is possible.
The decision is Gonzalez v. O Centro
Espirita Beneficente Uniao do Vegetal, 546
U.S. ___ (2006).
Richard Glen Boire has a private law
practice (www.convictionfree.com) focused on
obtaining post-conviction relief in entheogen
cases. He is also co-founder and a Senior
Fellow of the Center for Cognitive Liberty
& Ethics (www.cognitiveliberty.org).
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