2004-11-27
UDV 2004.11.15 ayahuasca ruling
=== Some random fragments regarding the recent court ruling in favor of the UDV church
3rd Time's a Charm for Hallucinogenic Tea
By Scott SandlinJournal Staff Writer
A federal court has ruled for the third time that the Santa
Fe-based
affiliate of a Brazilian religious sect should get back the
hallucinogenic
tea its practitioners take as a sacrament.
The U.S. 10th Circuit Court of Appeals in Denver ruled 8-5 for the
small religious group, O Centro Espirita Beneficiente Uniao do Vegetal,
or
UDV, which has waged a 41/2-year legal battle for return of the tea. In
a
convoluted, lengthy and often esoteric discussion of legal issues, the
appeals court upheld the ruling two years ago by Senior U.S. District
Judge
James A. Parker.
Parker ordered federal authorities to permit the group to import
the
tea and said they could not bar bona fide church members from using
the
hallucinogen according to their own strict internal guidelines.
But he delayed the effective date of the order pending appeal- a
situation in effect until the appeals court's decision was handed down
late
Friday.
The 10th Circuit sat en banc- meaning all 13 judges- to reconsider
a
2003 ruling by a three-judge panel."The court of appeals has once
again
affirmed the right of the UDV and its practitioners to practice their
religion. We hope they will be able to do that as quickly as possible,"
said
Nancy Hollander, who filed suit on behalf of Jeffrey Bronfman of
Tesuque,
the religion's North American leader, and other members of the group
in
2000."Now we have won in two courts and in three decisions," she said.
Hollander late Monday asked for emergency relief from Parker in light
of the
10th Circuit ruling. Noting UDV members "have been effectively
prohibited
from practicing their religion since May 1999," she said the court
should
require the government to issue a permit for the importation and
distribution of the tea.
U.S. Attorney David Iglesias said he is consulting with attorneys
in
his office and with the regional solicitor to decide on the
government's
next step.
The government could seek review by the U.S. Supreme Court, but
that
would require permission from the solicitor's office, Iglesias said.
The U.S. Customs Service seized 30 gallons of the tea, known as
ayahuasca or simply hoasca, from Bronfman's home in 1999. Bronfman, who
was
first exposed to the religion during trips to Brazil for a nonprofit
board
on which he sat, began importing the tea for ceremonies for a growing
but
small North American membership. The tea is a blend of two Amazon
rain-forest plants and is legal in Brazil.
Government lawyers have taken the position that hoasca is
regulated
by the Controlled Substances Act, from which the UDV is not exempt.
They
also have said international treaties governing narcotics will be
breached
by permitting its use.
"This case is unique in many respects because it involves a clash
between two federal statutes, one based in the First Amendment to the
Constitution and protecting an individual's free exercise of religion
and
the other serving the important governmental and public interests of
protecting society against the importation and sale of illegal drugs,"
wrote
10th Circuit Judge Stephanie K. Seymour in one of the majority
opinions.
Seymour said the government's claim of harm if it can't enforce an
international treaty on psychotropic drugs was undermined by
exemptions
permitted for plants traditionally used by certain small clearly
defined
groups. And she noted Congress reiterated the importance of the free
exercise of religion when it enacted the Religious Freedom Restoration
Act.
In a separate, concurring opinion, Judge Michael W. McConnell
noted
that the district court's order worked as a compromise, permitting the
government some control over importation, storage and use of hoasca
while
permitting the UDV to continue its religious activity."This case ...
raises
the question of why an accommodation analogous to that extended to the
Native American Church cannot be provided to other religious believers
with
similar needs," he wrote.The Native American Church is allowed to use
peyote
as a sacrament.
================
This is a message from the Hinosdasemana Group. The mailing list of the
official Santo Daime website.
My dear supporters, friends and family;
Last night at 6:20 pm the 10th Circuit Federal Court of Appeals
(for the Districts of Colorado, New Mexico, Oklahoma, Utah, Wyoming,
and
Kansas) published its en-banc opinion affirming the Lower Court's
Decision allowing us to distribute our Sacred Tea; and practice our
religion in the United States through the final resolution of our
case.
This is a profoundly significant judgment and one we are most
grateful for.
Among the 13 Appeal's Court Judges who reviewed the evidence
presented in our case, an 8-5 Majority ruled in our favor.
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.
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 last recourse they have left. We are hopeful now
that three different Court's 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.
Our Lawyer's will be contacting the DEA's lawyers next
week to
see if they are going to comply with the Court's order now, or not.
In
the event they resist we could be back in District Court as early as
next week asking for sanctions and a new order that does not make our
Religious Liberty dependent on their co-operation. In the event they
accept the order of the Federal Courts and begin to comply, we may well
be able to resume our religious practices, gratefully in time for
Thanksgiving.
I will faithfully continue to keep you posted as further details
emerge.
With my genuine affection and appreciation for all of your
essential support and prayers;
=======================
The message below is forwarded from an email correspondent who got this
"second hand from someone who talked to the UDV lawyer":
======================================
Yesterday (I think, or maybe today), a ruling came down about the Uniao
do Vegetal (UDV) case against the government regarding access to
ayahuasca tea (which contains DMT and harmaline).
Recall that in the late 1990's, the UDV filed suit against the gov't
for the right to import the tea and to be free from interference from
the DEA for practice of their religion.
After filing suit, the UDV sought a preliminary injunction to be able
to have access to the tea while the court case was playing out. They
were granted the injunction.
The gov't then sought to challenge the injunction, by bringing the case
to the 10th Circuit Court of Appeals in Denver. However, the gov't lost
in a 2-1 decision.
However, it apparently takes only one judge to request that the entire
Court (of 13) be called to hear the case. This full panel hearing
happened and, yesterday, the decision was rendered: 8-5 in favor of the
UDV.
This means that the UDV have the right to import the tea. But, more
importantly, it may well mean that the original court case is rendered
moot, because if they can import the tea now, on the basis that the
gov't failed to show the tea is dangerous, then they may not need to go
through with the trial on the same issue.
Note that this is dissimilar from the Native American Church issues of
use of peyote, where one has to have some Native American blood to
participate. From what my informant says, the 10th Court decision is
based on the gov't not being able to interfere with the practice of
religion, and since the UDV did not have any "native blood" issues, this
means that anyone in the US can find a UDV church and take the
sacrament. (Or, if you're imaginative, start their own church with
their own unique sacrament).
Stay tuned. Next stop may still be the Supreme Court in this
interesting legal case.
For more background info, see:
http://www.erowid.org/chemicals/ayahuasca/ayahuasca_law16.shtml
3rd Time's a Charm for Hallucinogenic Tea
By Scott SandlinJournal Staff Writer
A federal court has ruled for the third time that the Santa
Fe-based
affiliate of a Brazilian religious sect should get back the
hallucinogenic
tea its practitioners take as a sacrament.
The U.S. 10th Circuit Court of Appeals in Denver ruled 8-5 for the
small religious group, O Centro Espirita Beneficiente Uniao do Vegetal,
or
UDV, which has waged a 41/2-year legal battle for return of the tea. In
a
convoluted, lengthy and often esoteric discussion of legal issues, the
appeals court upheld the ruling two years ago by Senior U.S. District
Judge
James A. Parker.
Parker ordered federal authorities to permit the group to import
the
tea and said they could not bar bona fide church members from using
the
hallucinogen according to their own strict internal guidelines.
But he delayed the effective date of the order pending appeal- a
situation in effect until the appeals court's decision was handed down
late
Friday.
The 10th Circuit sat en banc- meaning all 13 judges- to reconsider
a
2003 ruling by a three-judge panel."The court of appeals has once
again
affirmed the right of the UDV and its practitioners to practice their
religion. We hope they will be able to do that as quickly as possible,"
said
Nancy Hollander, who filed suit on behalf of Jeffrey Bronfman of
Tesuque,
the religion's North American leader, and other members of the group
in
2000."Now we have won in two courts and in three decisions," she said.
Hollander late Monday asked for emergency relief from Parker in light
of the
10th Circuit ruling. Noting UDV members "have been effectively
prohibited
from practicing their religion since May 1999," she said the court
should
require the government to issue a permit for the importation and
distribution of the tea.
U.S. Attorney David Iglesias said he is consulting with attorneys
in
his office and with the regional solicitor to decide on the
government's
next step.
The government could seek review by the U.S. Supreme Court, but
that
would require permission from the solicitor's office, Iglesias said.
The U.S. Customs Service seized 30 gallons of the tea, known as
ayahuasca or simply hoasca, from Bronfman's home in 1999. Bronfman, who
was
first exposed to the religion during trips to Brazil for a nonprofit
board
on which he sat, began importing the tea for ceremonies for a growing
but
small North American membership. The tea is a blend of two Amazon
rain-forest plants and is legal in Brazil.
Government lawyers have taken the position that hoasca is
regulated
by the Controlled Substances Act, from which the UDV is not exempt.
They
also have said international treaties governing narcotics will be
breached
by permitting its use.
"This case is unique in many respects because it involves a clash
between two federal statutes, one based in the First Amendment to the
Constitution and protecting an individual's free exercise of religion
and
the other serving the important governmental and public interests of
protecting society against the importation and sale of illegal drugs,"
wrote
10th Circuit Judge Stephanie K. Seymour in one of the majority
opinions.
Seymour said the government's claim of harm if it can't enforce an
international treaty on psychotropic drugs was undermined by
exemptions
permitted for plants traditionally used by certain small clearly
defined
groups. And she noted Congress reiterated the importance of the free
exercise of religion when it enacted the Religious Freedom Restoration
Act.
In a separate, concurring opinion, Judge Michael W. McConnell
noted
that the district court's order worked as a compromise, permitting the
government some control over importation, storage and use of hoasca
while
permitting the UDV to continue its religious activity."This case ...
raises
the question of why an accommodation analogous to that extended to the
Native American Church cannot be provided to other religious believers
with
similar needs," he wrote.The Native American Church is allowed to use
peyote
as a sacrament.
================
This is a message from the Hinosdasemana Group. The mailing list of the
official Santo Daime website.
My dear supporters, friends and family;
Last night at 6:20 pm the 10th Circuit Federal Court of Appeals
(for the Districts of Colorado, New Mexico, Oklahoma, Utah, Wyoming,
and
Kansas) published its en-banc opinion affirming the Lower Court's
Decision allowing us to distribute our Sacred Tea; and practice our
religion in the United States through the final resolution of our
case.
This is a profoundly significant judgment and one we are most
grateful for.
Among the 13 Appeal's Court Judges who reviewed the evidence
presented in our case, an 8-5 Majority ruled in our favor.
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.
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 last recourse they have left. We are hopeful now
that three different Court's 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.
Our Lawyer's will be contacting the DEA's lawyers next
week to
see if they are going to comply with the Court's order now, or not.
In
the event they resist we could be back in District Court as early as
next week asking for sanctions and a new order that does not make our
Religious Liberty dependent on their co-operation. In the event they
accept the order of the Federal Courts and begin to comply, we may well
be able to resume our religious practices, gratefully in time for
Thanksgiving.
I will faithfully continue to keep you posted as further details
emerge.
With my genuine affection and appreciation for all of your
essential support and prayers;
=======================
The message below is forwarded from an email correspondent who got this
"second hand from someone who talked to the UDV lawyer":
======================================
Yesterday (I think, or maybe today), a ruling came down about the Uniao
do Vegetal (UDV) case against the government regarding access to
ayahuasca tea (which contains DMT and harmaline).
Recall that in the late 1990's, the UDV filed suit against the gov't
for the right to import the tea and to be free from interference from
the DEA for practice of their religion.
After filing suit, the UDV sought a preliminary injunction to be able
to have access to the tea while the court case was playing out. They
were granted the injunction.
The gov't then sought to challenge the injunction, by bringing the case
to the 10th Circuit Court of Appeals in Denver. However, the gov't lost
in a 2-1 decision.
However, it apparently takes only one judge to request that the entire
Court (of 13) be called to hear the case. This full panel hearing
happened and, yesterday, the decision was rendered: 8-5 in favor of the
UDV.
This means that the UDV have the right to import the tea. But, more
importantly, it may well mean that the original court case is rendered
moot, because if they can import the tea now, on the basis that the
gov't failed to show the tea is dangerous, then they may not need to go
through with the trial on the same issue.
Note that this is dissimilar from the Native American Church issues of
use of peyote, where one has to have some Native American blood to
participate. From what my informant says, the 10th Court decision is
based on the gov't not being able to interfere with the practice of
religion, and since the UDV did not have any "native blood" issues, this
means that anyone in the US can find a UDV church and take the
sacrament. (Or, if you're imaginative, start their own church with
their own unique sacrament).
Stay tuned. Next stop may still be the Supreme Court in this
interesting legal case.
For more background info, see:
http://www.erowid.org/chemicals/ayahuasca/ayahuasca_law16.shtml
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