By Matthew Meyer
August 10, 2008
Since the Brazil-based church União do Vegetal won its US Supreme Court case in early 2006, a number of internauts 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 (http://singingtotheplants.blogspot.com/2008/01/ayahuasca-in-supreme-court.html).
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 de cision 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.
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 ban0Athe 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 international20law 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 illegal lyentangle” 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=2 0so 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.
Michael — This is an outstanding summary. Thank you for bringing this up to date. This case may well turn out to be like the Heller gun-rights case: the state will be able to impose “reasonable restrictions” on the importation and use of hoasca, and the argument will then be about which restrictions are reasonable and which are not. I think an appropriate model may turn out to be the use of peyote by the Native American Church, where peyote may be picked and sold only by authorized peyoteros, and the individual churches must be certified as being part of the NAC. That does not strike me as unduly burdensome, especially given how well organized the UDV is. But, as you rightly point out, it has been a long hard road, which in itself may have a chilling effect on claims to religious exemptions from the drug laws. Thank you again. — Steve
The UDV has also sought, repeatedly, to be subject to the same restrictions as the NAC. Generally these pleas have consisted in pointing out that the NAC, once their peyote is harvested by licensed dealers, is subject to almost no oversight–not even as much as the UDV is under the terms of its preliminary injunction. Yet the government has thus far given every indication of throwing the CSA book at the UDV by making them fulfill the letter of the law for importers of controlled substances. We will see if Judge Parker can strike a compromise.
Thanks for your comments.
Omigod, I just realized that I called you Michael instead of Matthew. Please forgive me. As increasingly happens, my fingers were faster than my brain. I apologize.
I think you are right that the district court would like to see a compromise reached, in which the UDV and the government agree on some reasonable and workable set of regulations. Presumably the government wants regulations concerning — at least — record keeping, secure storage, and limitations on distribution. As you know, if such regulations were contested, the court would decide what restrictions **unduly** burdened UDV religious practice — that is, whether the proposed regulations were the least burdensome way for the government to assert its compelling state interests. Not all burdens on religious practice are undue burdens.
For example, if I remember correctly, government regulations require that peyote be given only to members of the Native American Church who have a 25 percent “blood quantum” membership in a federally recognized tribe. I assume that the government would like to prevent the UDV from handing out hoasca to anyone who dropped by. Is this a compelling state interest? If so, what would be the least burdensome way this compelling interest could be accommodated?
At this point, however, it looks like everyone is being intransigent.
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