Newsbrief: Federal Appeals Court Again Upholds Religious Ayahuasca Use 11/19/04

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A New Mexico-based branch of a Brazilian church that uses an Amazonian psychedelic in its ceremonies has for the third time fended off the federal government's attempt to ban the practice in the United States. In a November 10 ruling, the full US 10th Circuit Court of Appeals in Denver affirmed a ruling by a three-judge panel of the same court last year upholding a US district court decision granting a preliminary injunction barring the government from interfering in the religious use of the drug.

The ruling came in a case that originated in 1999, when US Customs agents raided the US headquarters of the Centro Espirita Beneficiente Uniao do Vegetal (UDV -- Union of the Vegetable) in Santa Fe and seized 30 gallons of ayahuasca, a tea brewed from two plants found only in the Amazon. The government argued that because the preparation contained naturally occurring traces of the powerful psychedelic DMT, ayahuasca is a drug regulated by the Controlled Substances Act.

Customs picked on the wrong people. The US branch of the UDV is headed by Jeffrey Bronfman, heir to the Seagram's whiskey fortune, who promptly sued for relief, claiming violations of the First Amendment and the Religious Freedom Restoration Act. Every court that has heard the case has now agreed that, like peyote use in the Native American Church, the sacramental use of ayahuasca by the UDV is protected by the act.

Under the Religious Freedom Restoration Act, the government must show a compelling interest in interfering with a religious practice. In the case of substances used for religious purposes, the government must also show that the practice is risky to the health of participants and that it would lead to substantial leakage of the drug use into non-protected groups (i.e. just regular people). As US District Court Judge James Parker found in his initial ruling in favor of the UDV, "the Government has not shown that applying the [Controlled Substance Act's] CSA's prohibition on DMT to the UDV's use of hoasca furthers a compelling interest. This Court cannot find, based on the evidence presented by the parties, that the government has proven that hoasca poses a serious health risk to members of the UDV who drink the tea in a ceremonial setting. Further, the Government has not shown that permitting members of the UDV to consume hoasca would lead to significant diversion of the substance to non-religious use."

In its decision last week, the 10th Circuit reaffirmed that finding and upheld the issuance of a preliminary injunction barring the federal government from interfering. While this ruling merely affirms the two previous rulings, there is a significant difference: Now, the UDV will actually be able to start doing its ayahuasca ceremonies again. According to an e-mail from Bronfman to supporters, that could happen as soon as Thanksgiving.

"The District Court's order requires the DEA register our church as a legal importer and distributor of our sacrament, before we begin holding our ceremonies. Up until now they have not done this pending the outcome of their appeal," wrote Bronfman. "Although it is still possible that the Solicitor General and the Justice Department may now ask the United States Supreme Court to rehear their case, that is the last recourse they have left. We are hopeful now that three different courts have all reviewed the evidence and testimony (and all have reached the same conclusion in our favor) that the Supreme Court will allow this preliminary ruling to stand."

Read the US 10th Circuit Court of Appeals ruling at http://pacer.ca10.uscourts.gov/pdf/02-2323.pdf online.

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Issue #363 , 11/19/04

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