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UDV Wins Supreme Court Decision on Preliminary Injunction
Allowing the use of their ayahuasca / hoasca tea
by Earth Erowid
edited by Bo, Fire, Spoon
v1.0 - Feb 21, 2006
Related Documents (See Also):

On February 21, 2006 the U.S. Supreme Court decided that members of the ayahuasca-using União do Vegetal (UDV) church must be allowed to continue using their DMT-containing brew until a final decision is reached in their case against the government. Although many news reports about the ruling seem to suggest that the decision is final, the case before the Supreme Court was simply a re-re-re-hearing on a "preliminary injunction" that the UDV requested to stop the DEA from seizing their psychoactive tea and arresting church members.

The decision was a unanimous 8-0 (Justice Alito did not participate in the decision because he was not yet on the Court at the time of the hearing). The Supreme Court decided most of the points of contention in favor of the UDV, although the Supreme Court disagreed with the lower court, which said that the United Nation's International Convention on Psychotropic Substances did not control ayahuasca because it is derived from plants (see below for more on this).

Summary of the Opinion: #
The Supreme Court held that the Religious Freedom Restoration Act, passed in the wake of the Supreme Court's decision in Oregon v. Smith (1990), clearly carved out the possibility for exemptions to the Controlled Substances Act for religious groups and that the Government had failed to show that there would be serious harm done to make such exceptions in this case. The Court wrote:
Before this Court, the Government's central submission is that it has a compelling interest in the uniform application of the Controlled Substances Act, such that no exception to the ban on use of the hallucinogen can be made to accommodate the sect's sincere religious practice. We conclude that the Government has not carried the burden expressly placed on it by Congress in the Religious Freedom Restoration Act, and affirm the grant of the preliminary injunction. [Gonzales v. UDV, 2006]
This decision is final, and cannot be appealed further. It allows the UDV to transport and use DMT-containing hoasca tea until the conclusion of the trial in the District Court (a US Federal trial court) looking at the actual religious freedom questions involved. This Supreme Court decision lends substantial weight to the UDV's case by dismissing some of the key arguments by the DEA and federal government against the use of the tea by the UDV.

"The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions."
Justice Roberts, writing for the U.S. Supreme Court, Gonzales v. UDV (2006)
Major points in this decision include:
  • The Religious Freedom Restoration Act is the controlling law for this matter.
  • The Government must prove that it has a compelling interest in criminalizing the religious use of this tea for this specific instance.
  • Just because the Government says that a drug is dangerous in legislation (DMT is Schedule I) does not relieve the government of its obligation to show that it is dangerous in this specific case.
  • The Government bears the burden of showing actual harm and the evidence the Government presented about actual harm caused by using DMT-containing tea did not meet its standard.
  • The government failed to provide a clear compelling interest which would override the default assumption of religious freedom as spelled out in the Religious Freedom Restoration Act.
  • The Supreme Court never even got to considering whether the ban on the tea was the "least restrictive means" available to meet the governmental interest because the Government failed to show a compelling interest in the first place.
  • The case now goes back down to the District Court, a Federal trial court where the case is actually tried with witnesses, testimony, etc.
  • The Government will then get another chance to try to make up for the weaknesses in their arguments and the whole thing starts over again.
Opinion: #
The following is an attempt to describe the decision and some of the more interesting quotes from the decision, authored by Chief Justice Roberts, that show the view of the Court as well as Roberts's informal, yet clear style of writing. The Supreme Court engaged in a "de novo" review of the case, which means they dug back into the whole case instead of simply deciding a narrow legal technicality. The decision reflects a broad examination of the underlying religious freedom case and makes a strong judgement on this preliminary injunction that will impact the eventual ruling by the District Court.

RFRA Background: #
First, it is important to understand a little about the Religious Freedom Restoration Act. In 1990, the U.S. Supreme Court changed the legal standard by which First Amendment religious cases were decided with regard to "laws of general applicability". For laws that apply generally and are not intended to ban a particular religious practice, there are Constitutional questions about what the US Government can and can't do. Just because someone claims that their religion requires that they drive faster than the speed limits, the generally applicable laws regarding traffic safety still apply to those members of the fanciful "100 Mile-Per-Hour Church".

Before Smith, the Court had used a two-prong test for deciding religous freedom cases. The analysis asked whether there was a "compelling governmental interest" and whether the government had applied the "least restrictive means" necessary to accomplish that interest. This is one of the strictest tests used by courts when looking at the interaction between Constitutional freedoms and laws. In some Supreme Court cases, this is called "the Sherbert test", named after Sherbert v. Verner (1963), the first case decided based on this two-prong standard.

Smith was a member of the peyote-using Native American Church (NAC). He was fired from his job as a state-employed drug abuse counsellor for his sacramental use of peyote, which violated the agency's ban on the use of illegal drugs. The Supreme Court decided that the two-prong Sherbert test should not be used for many types of laws, especially when evaluating criminal laws that banned potentially dangerous behavior. In the official opinion of the Court, Justice Scalia wrote: "To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling' -- permitting him, by virtue of his beliefs, 'to become a law unto himself,' -- contradicts both constitutional tradition and common sense." Oregon v. Smith (1990).

Immediately after the Smith decision, many religious groups and politicians became concerned that there had been a shift away from religious freedom in the U.S. In 1993, the Religious Freedom Restoration Act (RFRA, pronounced 'rif-rah') was passed by the US Congress and signed into law by Bill Clinton. RFRA tried to reset the standard to the previous two-pronged Sherbert test for religous freedom questions. The law states:
United States Religious Freedom Restoration Act : SECTION 3, FREE EXERCISE OF RELIGION PROTECTED
  1. IN GENERAL.---Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
  2. EXCEPTION.---Government may substantially burden a person's exercise of religion only if it determines that application of the burden to the person---
    1. is in furtherance of a compelling governmental interest; and
    2. is the least restrictive means of furthering that compelling governmental interest.
    3. JUDICIAL RELIEF.---A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
The UDV's case rests on the Religious Freedom Restoration Act and it is on this law that the Feb 21, 2006 US Supreme Court decision was based. RFRA is the valid, governing law for federal regulations and agencies. However, RFRA has been weakened by the Supreme Court's decision in City of Boerne v. Flores (1997), which held that RFRA does not apply to state laws. Therefore, the 50 states are able to regulate or ban DMT-containing hoasca despite this Supreme Court decision in favor of the UDV. Although this decision may help create a broad federal protection for the religious use of ayahuasca, states that do not have religious exemptions to their controlled substances acts may still prosecute hoasca drinkers.

Decision : #
The Supreme Court decided this case on the basis of a RFRA analysis. The first step in this analysis is to ask whether the law or regulation "substantially burdens" someone's religious practices. In this case, the government stipulated that treating the UDV members as criminals and seizing their DMT-containing tea met that criteria:
At a hearing on the preliminary injunction, the Government conceded that the challenged application of the Controlled Substances Act would substantially burden a sincere exercise of religion by the UDV... The Government argued, however, that this burden did not violate RFRA, because applying the Controlled Substances Act in this case was the least restrictive means of advancing three compelling governmental interests: protecting the health and safety of UDV members, preventing the diversion of hoasca from the church to recreational users, and complying with the 1971 United Nations Convention on Psychotropic Substances... [Further] the UDV effectively demonstrated that its sincere exercise of religion was substantially burdened... [Gonzales v. UDV, 2006]
This then opens the analysis of the two prongs of the RFRA test: compelling interest and least restrictive means. For the Compelling Interest question, the primary arguments by the Government were that the controlled substance DMT in the hoasca is harmful, that DMT's inclusion in Schedule I is a conclusive indication that the tea is dangerous, that allowing the use of this tea by the UDV could lead to diversion of illegal drugs into the general market, and that it is an important need for the government to comply with the U.N. Convention on Psychotropic Substances which bans DMT.

On the issue of harms, the Court wrote:
The District Court heard evidence from both parties on the health risks of hoasca and the potential for diversion from the church. The Government presented evidence to the effect that use of hoasca, or DMT more generally, can cause psychotic reactions, cardiac irregularities, and adverse drug interactions. The UDV countered by citing studies documenting the safety of its sacramental use of hoasca, and presenting evidence that minimized the likelihood of the health risks raised by the Government. With respect to diversion, the Government pointed to a general rise in the illicit use of hallucinogens, and cited interest in the illegal use of DMT and hoasca in particular; the UDV emphasized the thinness of any market for hoasca, the relatively small amounts of the substance imported by the church, and the absence of any diversion problem in the past.

The District Court concluded that the evidence on health risks was "in equipoise," and similarly that the evidence on diversion was "virtually balanced." In the face of such an even showing, the court reasoned that the Government had failed to demonstrate a compelling interest justifying what it acknowledged was a substantial burden on the UDV's sincere religious exercise. [Gonzales v. UDV, 2006]
Because there was evidence on both sides of the debate about health risks to members of the UDV (according to the District Court) and the harms caused by the infrequent, low-dose use of DMT were neither clear nor very bad, both the lower courts and the Supreme Court found that the government failed to meet the burden of showing a compelling need for blocking the UDV's use on the basis of harm to health of the tea drinkers themselves.

The Government tried to say that the UDV should have the burden of proving that the tea is safe, but RFRA clearly puts the burden to show harm on the government and the Supreme Court rejected the Government's stance:
The Government argues that, although it would bear the burden of demonstrating a compelling interest as part of its affirmative defense at trial on the merits, the UDV should have borne the burden of disproving the asserted compelling interests at the hearing on the preliminary injunction... [however] RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law "to the person"--the particular claimant whose sincere exercise of religion is being substantially burdened. [Gonzales v. UDV, 2006]
Government Argues Schedule I Drugs are Always Bad : #
The Government argues that simply by virtue of inclusion in Schedule I of the US Controlled Substances Act (CSA), the DMT-containing tea must be considered too dangerous to allow anyone to use and therefore banning it for the UDV meets the "compelling interest" standard:
The Government contends that the Act's description of Schedule I substances as having "a high potential for abuse," "no currently accepted medical use in treatment in the United States," and "a lack of accepted safety for use . . . under medical supervision," 21 U. S. C. 812(b)(1), by itself precludes any consideration of individualized exceptions such as that sought by the UDV. The Government goes on to argue that the regulatory regime established by the Act--a "closed" system that prohibits all use of controlled substances except as authorized by the Act itself, see Gonzales v. Raich, 545 U. S. ___, ___ (2005) (slip op., at 10)--"cannot function with its necessary rigor and comprehensiveness if subjected to judicial exemptions." (Brief for Petitioners 18). According to the Government, there would be no way to cabin religious exceptions once recognized, and "the public will misread" such exceptions as signaling that the substance at issue is not harmful after all. Under the Government's view, there is no need to assess the particulars of the UDV's use or weigh the impact of an exemption for that specific use, because the Controlled Substances Act serves a compelling purpose and simply admits of no exceptions. [Gonzales v. UDV, 2006]
However the Court firmly rejects that argument:
"Under the more focused inquiry required by RFRA and the compelling interest test, the Government's mere invocation of the general characteristics of Schedule I substances, as set forth in the Controlled Substances Act, cannot carry the day."
Justice Roberts, writing for the U.S. Supreme Court, Gonzales v UDV (2006)
Under the more focused inquiry required by RFRA and the compelling interest test, the Government's mere invocation of the general characteristics of Schedule I substances, as set forth in the Controlled Substances Act, cannot carry the day. It is true, of course, that Schedule I substances such as DMT are exceptionally dangerous. Nevertheless, there is no indication that Congress, in classifying DMT, considered the harms posed by the particular use at issue here--the circumscribed, sacramental use of hoasca by the UDV... Congress' determination that DMT should be listed under Schedule I simply does not provide a categorical answer that relieves the Government of the obligation to shoulder its burden under RFRA. [Gonzales v. UDV, 2006]
The Court rejects the argument on several grounds. First, despite DMT being "exceptionally dangerous", the Court notes that the CSA includes exceptions as part of its statutory language.
This conclusion is reinforced by the Controlled Substances Act itself. The Act contains a provision authorizing the Attorney General to "waive the requirement for registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety." 21 U. S. C. 822(d). The fact that the Act itself contemplates that exempting certain people from its requirements would be "consistent with the public health and safety" indicates that congressional findings with respect to Schedule I substances should not carry the determinative weight, for RFRA purposes, that the Government would ascribe to them. [Gonzales v. UDV, 2006]
Further, the Court notes that peyote, a Schedule I substance, already has an exemption for religious use by Native Americans. The Supreme Court finds this to be a "fatal" flaw in the Government's argument:
And in fact an exception has been made to the Schedule I ban for religious use. For the past 35 years, there has been a regulatory exemption for use of peyote--a Schedule I substance--by the Native American Church. (See 21 CFR 1307.31 (2005)). In 1994, Congress extended that exemption to all members of every recognized Indian Tribe. (See 42 U. S. C. 1996a(b)(1)). Everything the Government says about the DMT in hoasca--that, as a Schedule I substance, Congress has determined that it "has a high potential for abuse," "has no currently accepted medical use," and has "a lack of accepted safety for use . . . under medical supervision," 21 U. S. C. 812(b)(1)--applies in equal measure to the mescaline in peyote, yet both the Executive and Congress itself have decreed an exception from the Controlled Substances Act for Native American religious use of peyote. If such use is permitted in the face of the congressional findings in 812(b)(1) for hundreds of thousands of Native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs.

The Government responds that there is a "unique relationship" between the United States and the Tribes, but never explains what about that "unique" relationship justifies overriding the same congressional findings on which the Government relies in resisting any exception for the UDV's religious use of hoasca. In other words, if any Schedule I substance is in fact always highly dangerous in any amount no matter how used, what about the unique relationship with the Tribes justifies allowing their use of peyote? Nothing about the unique political status of the Tribes makes their members immune to the health risks the Government asserts accompany any use of a Schedule I substance, nor insulates the Schedule I substance the Tribes use in religious exercise from the alleged risk of diversion.

The Government argues that the existence of a congressional exemption for peyote does not indicate that the Controlled Substances Act is amenable to judicially crafted exceptions. RFRA, however, plainly contemplates that courts would recognize exceptions--that is how the law works. See 42 U.S. C. 2000bb-1(c) ("A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government"). Congress' role in the peyote exemption--and the Executive's, see 21 CFR 1307.31 (2005)--confirms that the findings in the Controlled Substances Act do not preclude exceptions altogether; RFRA makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress. [Gonzales v. UDV, 2006]

In addition, the peyote exception to Schedule I also puts a bullet in the Government's argument that there is a compelling state interest in maintaining "uniformity" in the application of the CSA's most restrictive schedule, further weakening that prong of their argument:
"The well-established peyote exception also fatally undermines the Government's broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA."
Justice Roberts, writing for the U.S. Supreme Court, Gonzales v. UDV (2006)
The well-established peyote exception also fatally undermines the Government's broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA. The Government argues that the effectiveness of the Controlled Substances Act will be "necessarily . . . undercut" if the Act is not uniformly applied, without regard to burdens on religious exercise. The peyote exception, however, has been in place since the outset of the Controlled Substances Act, and there is no evidence that it has "undercut" the Government's ability to enforce the ban on peyote use by non-Indians.

"The Government's argument for uniformity ... rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law. The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to "rule[s] of general applicability". ... We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA. But it would have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance. [Gonzales v. UDV, 2006]
In the end, the Court completely dismisses the Government's "slippery slope" argument as a proof of a compelling state interest in controlling the use of hoasca tea:
But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to "rule[s] of general applicability." 42 U. S. C. 2000bb-1(a). Congress determined that the legislated test "is a workable test for striking sensible balances between religious liberty and competing prior governmental interests." 200bb(a)(5). This determination finds support in our cases; in Sherbert, for example, we rejected a slippery-slope argument similar to the one offered in this case, dismissing as "no more than a possibility" the State's speculation "that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work" would drain the unemployment benefits fund. Sherbert, 374 U. S. at 407. [Gonzales v. UDV, 2006]

UN Convention on Psychotropic Substances Bans Hoasca : #
Finally, the Government argues that they have a compelling state interest in maintaining compliance with international law. The U.S. is a signatory on the United Nations Convention on Psychotropic Substances and the Government argues it is a substantial interest to comply with that. The District Court ruled that hoasca was probably not banned under that ruling, because it is a plant-based tea. The Supreme Court, however, found that the District Court erred and the DMT-containing tea is actually controlled by the UN Convention:
Before the District Court, the Government also asserted an interest in compliance with the 1971 United Nations Convention on Psychotropic Substances, (Feb. 21, 1971, [1979-1980], 32 U. S. T. 543, T. I. A. S. No. 9725). The Convention, signed by the United States and implemented by the Controlled Substances Act, calls on signatories to prohibit the use of hallucinogens, including DMT. The Government argues that it has a compelling interest in meeting its international obligations by complying with the Convention. The District Court rejected this interest because it found that the Convention does not cover hoasca. The court relied on the official commentary to the Convention, which notes that "Schedule I [of the Convention] does not list . . . natural hallucinogenic materials," and that "[p]lants as such are not, and it is submitted are also not likely to be, listed in Schedule I, but only some products obtained from plants." U. N. Commentary on the Convention on Psychotropic Substances 387, 385 (1976). The court reasoned that hoasca, like the plants from which the tea is made, is sufficiently distinct from DMT itself to fall outside the treaty. See 282 F. Supp. 2d, at 1266-1269.

We do not agree. The Convention provides that "a preparation is subject to the same measures of control as the psychotropic substance which it contains," and defines "preparation" as "any solution or mixture, in whatever physical state, containing one or more psychotropic substances." (See 32 U. S. T., at 546, Art. 1(f)(i); id., at 551, Art. 3.) 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. To the extent the commentary suggests plants themselves are not covered by the Convention, that is of no moment--the UDV seeks to import and use a tea brewed from plants, not the plants themselves, and the tea plainly qualifies as a "preparation" under the Convention. [Gonzales v. UDV, 2006]

Despite agreeing with the Government that the tea is controlled under the UN Convention, however, the Court goes on to say that does not mean the government has met the burden of showing a compelling interest in banning the UDV from using the tea:
"... it suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV."
Justice Roberts, writing for the U.S. Supreme Court, Gonzales v. UDV (2006)
The fact that hoasca is covered by the Convention, however, does not automatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV's sacramental use of the tea. At the present stage, it suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV. The Government simply submitted two affidavits by State Department officials attesting to the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs. [Gonzales v. UDV, 2006]
Conclusion: #
So, in the end, the second prong of the test ('least restrictive means') is never really reached. Because the government has failed to show a compelling interest in stopping this tiny church from using this non-harmful tea in its religious practices, the Religous Freedom Restoration Act clearly protects the UDV's use:
We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. See Smith, 494 U. S., at 885-890. But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.

Applying that test, we conclude that the courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV's sacramental use of hoasca. [Gonzales v. UDV, 2006]

Import of DMT-containing tea from outside the US allowed: #
One follow-up note of interest: the Supreme Court upheld the UDV's ability to import the DMT-containing tea into the US:
The court entered a preliminary injunction prohibiting the Government from enforcing the Controlled Substances Act with respect to the UDV's importation and use of hoasca. The injunction requires the church to import the tea pursuant to federal permits, to restrict control over the tea to persons of church authority, and to warn particularly susceptible UDV members of the dangers of hoasca. The injunction also provides that "if [the Government] believe[s] that evidence exists that hoasca has negatively affected the health of UDV members," or "that a shipment of hoasca contain[s] particularly dangerous levels of DMT, [the Government] may apply to the Court for an expedited determination of whether the evidence warrants suspension or revocation of [the UDV's authority to use hoasca]. [Gonzales v. UDV, 2006]
[Earth Erowid provided minor assistance in the preparation of an amicus brief presented to the Court prior to this decision.]

Agreement on Procedures for Handling UDV Sacrament #
In July 2010, an agreement was reached [see O Centro Espirita Beneficiente Uniao do Vegetal v. Holder (PDF), CV 00-1647 JP/RLP (NM 2010)] definining how ayahuasca destined for US UDV ceremonies must be handled. In February 2011 Jeffrey Bronfman, president of the U.S. UDV, commented:

Subsequent to the ruling of the United States Supreme Court (that the United States government had failed to prove a "compelling interest" to justify prohibiting the religious use of Hoasca by the UDV) in 2006, the case proceeded through four more years of litigation in U.S. federal court. At issue were the regulatory conditions related to the importation, storage and distribution of its religious sacrament to which UDV members would be required to adhere. In July of 2010, after almost 10 years from the time the UDV's complaint against the United States government was first filed, an accord was finally reached between the church and federal drug control authorities, bringing a conclusion to the case.

The comprehensive detailed agreement, which is 24 pages long, defines the terms whereby the UDV can continue its religious practice within the United States territory at the same time as it gives the Drug Control authorities in the United States a degree of administrative supervision over the use of a substance that courts affirmed as "controlled" under that nation's drug laws. The agreement, following the principles outlined through the decisions made by the U.S. courts over the years of legal dispute, defines the procedures the UDV must follow to be able to import, package, distribute and utilize the sacrament of Hoasca within the registration requirements of the U.S. Drug Enforcement Administration.

Although the UDV had resolutely argued that the regulatory involvement by the federal government in a religious practice was impermissible under the Constitution of the United States, concerns about the use of tea led the federal judge administering the case to conclude that some degree of control over the importation, storage and use of the church's sacrament was desirable. Rather than define the terms of such an arrangement through a judicial order, however, the judge and his designated subordinates supervised negotiations between church officials and their lawyers, and representatives from the U.S. Customs and Border Patrol, the DEA and the United States Department of Justice in reaching an accord that all parties could accept. [Jeffrey Bronfman, Feb 2011]