Guest Post: An O Centro Update

(The following Guest Post is by Matthew Meyer, a PhD candidate in the Department of Anthropology at the University of Virginia.)

Since the Brazil-based church União do Vegetal won its US Supreme Court case in early 2006, a number of people interested in ayahuasca have assumed that the case is over and the UDV’s situation has been stabilized. In fact, as Steve Beyer has pointed out, “the case is not over. All that has been litigated is the propriety of the initial preliminary injunction” that New Mexico District Court Judge James Parker issued back in 2002

Since the Supreme Court’s ruling the case has returned to New Mexico for further litigation. The government has been arguing that the Supreme Court’s decision should be very narrowly interpreted as barring only an outright “ban” on the importation and use of ayahuasca, and not a prohibition of any regulation by the DEA of the UDV’s practice. According to the government, the UDV has in effect won the right to be a legal importer of a controlled substance, and as such may be subject to the extensive regulations that govern the importation of dangerous pharmaceuticals.

(Above: Ayahuasca cooks in a traditional ceremony in the Amazon in 2006.  Photo from the blog of Joel Robert Harris.)

In September 2007 the UDV filed an amended, eight-count complaint in the New Mexico court. This complaint alleged that the government could not legally ban the UDV’s use of ayahuasca, and also that it could not apply the regulations of the Controlled Substances Act (CSA) to the group for various reasons. The government moved to dismiss the complaint, alleging that the District Court lacked jurisdiction over the UDV’s RFRA claims. Instead, the government argued, the UDV should apply to the DEA for exemptions from any CSA regulations that it felt should not apply; if these exemptions were not granted, then the UDV should have recourse to the Washington, DC Court of Appeals.

Judge Parker has so far responded to the government’s motion in piecemeal fashion. In June 2008 he issued a judgment granting the motion to dismiss three of the UDV’s eight counts (those based on free exercise, equal protection, and international law arguments that the government could not enforce CSA regulations against the UDV). A few days later, Parker issued another memorandum denying the government’s motion with respect to the UDV’s first count, which argued that an outright ban on the use of hoasca would violate the Religious Freedom Restoration Act (RFRA). Most recently, at the beginning of August 2008, Parker granted dismissal of three more of the UDV’s arguments against the application of the CSA to their use of ayahuasca (these were arguments that the CSA was not intended to cover religious practice; that it amounted in this case to a prohibited “standardless licensing scheme”; and that application of the regulations would illegally “entangle” the government in the UDV’s religion).

This decision leaves two counts of the UDV’s amended complaint intact: the first count, which Parker refused to dismiss, and which holds that “banning the UDV’s sacramental use of Hoasca [ayahuasca] violates RFRA” and count three, on which he has yet to rule, and which alleges that application of the CSA’s regulatory scheme to the UDV violates RFRA. The third count, however, would seem to be dead in the water, since in discussing another of the counts Parker disagreed with the UDV’s assertion that the court had previously ruled that the DEA “does not have the authority to place conditions or limits on [the UDV’s] right to freely exercise their religion.”

If dismissal of the third count is ultimately granted or if judgment on it is deferred as “unripe” because the government has not yet said which CSA regulations it would attempt to enforce against the UDV, that leaves only the first count of the complaint against an outright ban intact. The UDV’s worry seems to be that the government, having lost in court on their most straightforward arguments about ayahuasca’s supposed dangers, is now determined to entomb the group’s religious practice in a mire of regulations and harassment on technicalities. Judge Parker’s rejection of the government’s attempts to relocate the site of negotiation about which CSA regulations ought to apply to its home turf, however, seems to me (as a layperson, admittedly) to signal a determination to work out a settlement in the District Court.

As Judge Parker pointed out in the August memorandum, the fact is that the UDV is “currently permitted to import and use hoasca consistent with the terms of the preliminary injunction,” which struck a compromise between the UDV’s desire to be free of regulation and the stipulations of the CSA with respect to licensed importers of controlled substances. At this point the most likely scenario may be that the preliminary injunction becomes permanent. This would be good news for the UDV—if not exactly what they hoped for, at least a solution they can live with, as they have done for the last three years. It would not seem to bode so well for other ayahuasca-using groups and individuals in the United States, who might look with dismay on the difficult road the UDV has travelled to reach this point and wonder whether they have the wherewithal to travel a similar path.

Related Posts:

"Marijuana Church" Launched to Take Advantage of O Centro Ruling on Religious Use of Drugs Under First Amendment 4/29/06

The Scope of O Centro 1/30/07

Comments

[Rev. Carl E. Olsen]

Well, it seems like UDV actually agreed to be regulated and the government had a compelling reason for doing so. I have never used hoasca tea, so I wouldn't have a clue whether the DEA has a compelling interest in regulating it. UDV would know.

Here's a quote from page 3 of the judge's order:

Plaintiffs also argue that because "the courts have ordered the government to allow Plaintiffs to lawfully import and distribute hoasca," the Drug Enforcement Administration ("DEA") lacks the power to apply any CSA regulations to Plaintiffs. (Pls.' Response at 57.) Plaintiffs' argument assumes that if there is no compelling interest in banning hoasca, then a fortiori, there is no compelling interest in any regulation of hoasca's use. This argument misinterprets the law of this case. The Supreme Court affirmed this Court's finding that the government had not established a compelling interest in banning Plaintiffs' use of hoasca. Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418 (2006). The decision cannot be read to exempt Plaintiffs from any and all regulation under the CSA, because the balancing of interests required by RFRA may be different for regulation of hoasca than for a ban on hoasca. Plaintiffs' response to the motion to dismiss seems to concede the point. Plaintiffs "recognize[] that the government may have a compelling interest in requiring certain conduct in relation to UDV's importation of hoasca" and that they are willing to consider these compelling needs. (Pls.' Response at 47.)

[Rev. Carl E. Olsen]

I guess I just have to wonder if the UDV actually said the government has a compelling interest in regulating the sacramental use of hoasca tea, or whether this is something their attorneys slipped in without UDV considering the implications. Under the compelling interest test, the government has to prove any restriction is the least restrictive means. However, if the UDV conceded this point, then the government doesn't have to prove it. That's a big error, as far as I'm concerned. I hope the UDV simply overlooked this and didn't intentionally let the government off the hook that easily. The government has been claiming a compelling interest in regulating certain plants for a long, long time. Most people just take it for granted they have a compelling reason for doing so. But, do they really? For example, Alex's recent post about swimming pools and how many kids drown in them. If the government has no compelling interest in banning man-made swimming pools, then where is the compelling interest in prohibiting plants? Shame on UDV for getting this far and letting the big one get away. Oh well, at least the UDV has given us fair warning of how easy it is to give away the store.

[Scott]

Thank you for the update. I have a question for the guest commentator: Do you know who is acting as counsel for the UDV? More specifically, are they paying their legal bills or is their counsel handling the case pro bono? I imagine that would have an impact on how far the UDV is willing to fight these issues.

[Matthew Meyer]

Scott, the UDV is represented by the Albuquerque firm Freedman Boyd Hollander Goldberg & Ives, P.A. Nancy Hollander and John Boyd have done most of the work on the case. Nancy Hollander argued it before the Supreme Court.
I'm not privy to the details of the firm's compensation, but my understanding is that the work is not pro bono. Also, the UDV is fortunate that some of its members have financial resources to aid this type of litigation. It is common knowledge that one of the principals in this case, UDV-USA president Jeffrey Bronfman, is a member of the family that turned Seagram's into a very large enterprise.
Quite apart from Mr. Bronfman's role, however, to my mind it is important to note that the UDV has, since its early days, placed a lot of emphasis on total acceptance by the society in which it operates, be it in Brazil or elsewhere, and has always done everything it could to make sure that its practice would be legally protected and officially recognized as beneficent. They are not the type of group that would be content to operate illegally.

Matthew

[Rev. Carl E. Olsen]

It's my understanding, from talking to Jeffrey Bronfman, that Mr. Bronfman was instrumental in getting both the federal version of the Relgious Freedom Restoration Act as well as the New Mexico version of the Religious Freedom Restoration Act enacted into law. Mr. Bronfman has been working on this for a long, long time. There's no doubt that UDV would not be content to operate illegally.

[Tamara]

Where do they practice this religion? Are there any locations in California?