Gonzales, Alberto (US Atty Gen.) v. O Centro Espirita Beneficiente Uniao Do Vegetal, et al.

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Term: 05-06

Appealed From: 10th Circuit Court of Appeals (Nov. 12, 2004)

Oral Argument: 11-01-05

Opinion Issued: 8-0 for O Centro Espirita Beneficiente Uniao Do Vegetal (Roberts-Feb. 21, 2006)

Subject: Sacramental hoasca, Religious Freedom Restoration Act, Controlled Substances Act, United Nations Convention on Psychotropic Substances

Question presented: Whether the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq., requires the government to permit the importation, distribution, possession, and use of a Schedule I hallucinogenic controlled substance, where Congress has found that the substance has a high potential for abuse, it is unsafe for use even under medical supervision, and its importation and distribution would violate an international treaty?


In May 1999, U.S. Customs agents raided Jeffrey Bronfman's home in Santa Fe, New Mexico, and seized 30 gallons of hoasca tea. Brewed from plants found in the Amazon River Basin, the tea contained the controlled substance dimethyltryptamine (DMT), known for its hallucinogenic properties.

As the leader of the Brazil-based O Centro Espirita Beneficiente Uniao Do Vegetal - or the UDV - in the U.S., Bronfman possessed the tea because it is a key part of his church's religious ceremonies.

Customs agents discovered the tea when they intercepted a shipment from Brazil labeled "tea extract."

Though no one was arrested in the incident, Bronfman and the UDV sued the federal government, including then Attorney General John Ashcroft and the Drug Enforcement Administration. Bronfman alleged violations of the Religious Freedom Restoration Act (RFRA) and his church's 1st, 4th and 5th amendment rights.

Bronfman also sought an injunction that would allow UDV members to drink the tea during religious services, which they had been prohibited from doing since the government seized the drink.

Since UDV's founding in 1961, the group's doctrine has combined Christian principles with Native American rituals and a reverence for nature, especially the Amazon, which is communicated through words and music during the tea-drinking rituals. DMT's effects include a rush of visual hallucinations followed by a period of euphoria that lasts one to two hours.

But DMT is also listed as a Schedule I drug in the Controlled Substances Act (CSA). According to the government, it is a "dangerous hallucinogenic drug with no recognized medical value." International trafficking in DMT - and substances that contain DMT - are banned by the United Nations' Convention on Psychotropic Substances, an international drug control treaty that more than 160 countries, including the U.S., signed in 1971.

The government gave the courts three reasons for prohibiting the tea's use, including "protection of the health and safety of UDV members, potential for diversion from the church to recreational users, and compliance with the U.N. Convention."

A U.S. District Court in New Mexico granted the church a preliminary injunction to allow members to continue using the tea. While the court rejected UDV's claims that DMT was not included in the Controlled Substances Act, the judge agreed UDV was likely to prevail on its merits under the Religious Freedom Restoration Act.

The government appealed to the 10th Circuit Court of Appeals, which gave U.S. authorities an emergency stay on the district court's injunction pending appeal. The church could not touch its tea until a decision was reached.

In September 2003, a 10th Circuit panel ruled 2-1 that use of the tea was protected under religious-freedom laws. The court held the government had not sufficiently supported its claims that hoasca tea poses a danger to users' health, could easily be diverted to other users or violates the U.N. treaty.

"Even if the (U.N.) Convention does apply to hoasca, the United States has obligations under its laws and other international treaties to protect religious freedom," Judge John Porfilio wrote for the majority. "Treaties are part of the law of the land; they have no greater or lesser impact than other federal laws."

In fact, the court found UDV's use of the tea "comparable to the Native American Church's exempted use of peyote" and said it would not provide a gateway to other religious drug claims because "courts have already ruled against sacramental marijuana claims."

Judge Michael Murphy dissented. He said not allowing the United States to enforce the Controlled Substances Act put the nation in violation of the U.N. treaty.

"The majority, like the proponent of the preliminary injunction, has confused ‘what should be' with ‘what is,'" Murphy wrote. "In so doing, the majority has carved out the following special rule in RFRA cases. … The status quo in this case is the enforcement of the CSA and compliance with the Convention."

Murphy also wrote the district court had "abused its discretion in issuing the preliminary injunction" and that "UDV's assertion is meritless."

The government sought review from the full 10th Circuit.

In November 2004, the full circuit affirmed by an 8-5 vote, though it was divided on how to determine when and if a preliminary junction is warranted as well as the merits behind UDV's claim for religious exemption.

"This case is not about enjoining enforcement of the criminal laws against the use and importation of street drugs," Judge Stephanie Seymour wrote for the majority. "Rather, it is about importing and using small quantities of a controlled substance in the structured atmosphere of a bona fide religious ceremony."

Judge Michael McConnell joined Seymour's opinion to uphold UDV's preliminary injunction. It was the court's duty to prevent "irreparable harm" and to maintain the status quo until the parties' rights were determined, he wrote.

Again, Murphy dissented, citing that UDV did not present a strong entitlement to the preliminary injunction and the government's right to prohibit drug trafficking outweighed UDV's religious freedom.

Judge Harris Hartz agreed with Murphy's opinion that maintaining the government's status quo is more important than developing new standards for UDV. He also wrote the preliminary injunction should be reversed because it was unlikely UDV would prevail on the merits and there was a "compelling interest" in complying with the U.N. Convention.

The government again asked for a temporary stay. On Dec. 1, 2004, Supreme Court Justice Stephen Breyer granted the stay to block the church from using the tea and to give both sides time to file arguments. Less than two weeks later, the Supreme Court lifted the stay, which allowed the church to use the tea for the first time since 1998.

On April 18, 2005, the Court accepted review in the case.

According to UDV's attorney, John Boyd, the issue at hand is the 1st Amendment's promise of religious freedom.

"Because the government considers this to involve a controlled substance, they think they have to take every step they can to defeat this religious liberty claim," Boyd said. "It's surprising given Congress' direction to respect freedom of religion."

Boyd says even though the full 10th Circuit split over whether the UDV met a heightened standard for a preliminary injunction, the majority held regardless what standard applied, UDV had met it.

In its petition for certiorari, the U.S. Solicitor General's office argued that the 10th Circuit decision "enjoins the federal government from enforcing a long-standing and unquestionably constitutional criminal law that bans the importation, possession, distribution and use of a Schedule I controlled substance."

The solicitor general also said the decision forces the United States to violate the U.N. treaty, opens borders to drug trafficking and conflicts with every court of appeals decision addressing similar claims to date.

"The court of appeals judgment has ... rendered the American public, including children, vulnerable to significant physical and mental health risks," wrote the solicitor general. "And put a new drug delivery system for a Schedule I controlled substance on American soil."

During the Supreme Court's oral arguments on Nov. 1, 2005, the justices questioned why hoasca tea should be banned from religious use when Congress had specifically exempted the sacramental use of peyote by Native American tribes. Though most of the justices agreed that, at face value, the U.S. had reasonable grounds to ban the importation and consumption of the tea, some felt that the UDV's religious rights could be infringed upon by doing so.

"Say that we will create an exception for peyote, but not for [the UDV], which has far fewer members, less risk of diversion …if the government must accommodate to one, why not to the other?" Justice Ruth Bader Ginsburg asked.

Deputy Solicitor General Edwin S. Kneedler said the peyote exception arose from Congress' desire "to respect the autonomous, independent institutions of the tribe." The UDV's use of hoasca, he argued, was qualitatively different.

"I, in no way, think that Congress believed that by enacting the special provision for Indian tribes, it was thereby opening the Controlled Substances Act to individualized religious exceptions," Kneedler said.

The justices, however, seemed unconvinced with Kneedler's subsequent argument that the UDV's hoasca consumption could lead to an increase in worshippers only joining the church in search of a hallucinogenic high.

Arguing for the UDV, Nancy Hollander said the government "places no restrictions on who can participate in the Native American Church," nor is the use of peyote limited to members of Indian tribes. Furthermore, Hollander said Native American use of peyote hasn't led to abuse of the drug outside of religious ceremonies, and pointed out that its church's ceremonial tea contains not only peyote, but also mescaline, a substance banned by the U.N. Convention.

Vexing to the justices was whether hoasca is even included in the U.N. Convention's list of banned substances. Hollander insisted the Convention didn't cover hoasca because the plant is not listed as a Schedule 1 drug, which includes LSD, opium and heroin. However, Justice David Souter disagreed, citing that solutions containing DMT—and therefore the UDV's hoasca tea—are listed and indeed prohibited.

The justices also mulled over whether a religious group's rights under the RFRA automatically trumps U.N. Convention rules.

"If we conclude, looking at the Treaty, that it prohibits hoasca, covers it, and that it provides that nations that enter into the Convention must avoid importation of it, then is that a compelling interest under RFRA?" Justice Sandra Day O'Connor asked.

Justice Stephen Breyer concurred: "The compelling interest is, we signed a treaty, and you follow it."

But Justice Souter referred to a provision in the U.N. Convention, which allows a nation's domestic laws to define how the treaty is enforced.

"Our domestic law includes RFRA," Justice Souter said. "That would seem to open the door for, in effect, a RFRA exception." Souter said that common fruits such as pineapples and bananas, also contain DMT but are not banned from importation.

Justice Antonin Scalia also demurred, saying that if RFRA can nullify a statute — in this case, the Controlled Substances Act — then surely it would also cancel out any treaty the U.S. signs.

On Feb. 21, 2006, the Court sided with UDV, holding 8-0 that the government had failed to demonstrate a compelling interest in barring the sacramental use of the tea. Chief Justice John Roberts wrote the Court's opinion.

As to government's argument that it has a compelling interest in complying with the U.N. Convention's list of banned substances, though Roberts disposed of the district court's finding that the Convention doesn't cover hoasca, he concluded that the government has not yet submitted evidence of the international consequences of allowing an exemption to the UDV.

Justice Samuel Alito, who had not been a member of the Court when the case was orally argued, did not participate in the decision.

Attorneys in this case:
Attorneys for Petitioner:
Acting Solicitor General, Counsel of Record
Assistant Attorney General
Deputy Assistant Attorney General
Assistant to the Solicitor General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
Party name: Alberto R. Gonzales, Attorney General, et al.

Attorneys for Respondent:
Nancy Hollander
Freedman Boyd Daniels
(505) 842-9960
Hollander & Goldberg, P.A.
20 First Plaza, Suite 700
Albuquerque, NM 87102
Party name: O Centro Espirita Beneficiente Uniao Do Vegetal, et al.

Marci A. Hamilton
36 Timber Knoll Drive
(215) 353-8984
Washington Crossing, PA 18977
Party name: Tort Claimants' Committee, et al. in support of neither party

Related Links:
8-0 Supreme Court opinion (Feb. 21, 2006)

Supreme Court oral argument transcript (Nov. 1, 2005)

Feature: Hoasca, the vine of precedent

Feature: Behind the vision vine

Full 10th Circuit's opinion (Nov. 12, 2004)

10th Circuit panel's opinion (Sept. 4, 2003)

Petition for certiorari - U.S.

Reply brief - U.S.

Associated Press coverage of the case

Posted September 1, 2005 10:26 PM

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