O Centro Espirita Beneficiente Uniao v. Ashcroft, No. 02-2323.

Decision Date04 September 2003
Docket NumberNo. 02-2323.
PartiesO CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL, also known as Uniao do Vegetal (USA)("UDV-USA"), a New Mexico corporation on its own behalf and on behalf of all its members in the United States; Jeffrey Bronfman, individually and as President of UDV-USA; Daniel Tucker, individually and as Vice-President of UDV-USA; Christina Barreto, individually and as Secretary of UDV-USA; Fernando Barreto, individually and as Treasurer of UDV-USA; Christine Berman; Mitchel Berman; Jussara de Almeida Dias, also known as Jussara Almeida Dias; Patricia Domingo; David Lenderts; David Martin; Maria Eugenia Pelaez; Bryan Rea; Don St. John; Carmen Tucker; Solar Law, individually and as members of UDV-USA, Plaintiffs-Appellees, v. John ASHCROFT, Attorney General of the United States; ASA Hutchinson, Administrator of the United States Drug, Enforcement Administration; Paul H. O'Neill, Secretary of the Department of Treasury of the United States; David C. Iglesias, United States Attorney for the District of New Mexico; David F. Fry, Resident Special Agent in Charge of the United States Customs Service Office of Criminal Investigation in Albuquerque, New Mexico, all in their official capacities, Defendants-Appellants, Christian Legal Society; The National Association of the Evangelicals; Clifton Kirkpatrick, as the Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.); Queens Federation of Churches, Amicus Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Matthew M. Collette, (Michael Jay Singer with him on the briefs), Attorneys, Appellate Staff Civil Division, Department of Justice, Washington, DC, for Defendants-Appellants.

Nancy Hollander, (John W. Boyd with her on the brief), of Freedom, Boyd, Daniels, Hollander, Goldberg & Cline, P.A., Albuquerque, NM, for Plaintiffs-Appellees.

Gregory S. Baylor, Nathan A. Adams, Kimberlee W. Colby, of Center for Law and Religious Freedom, Christian Legal Society, Annandale, VA, filed an amicus curiae brief on behalf of Plaintiffs-Appellees.

Before SEYMOUR, PORFILIO, and MURPHY, Circuit Judges.

JOHN C. PORFILIO, Senior Circuit Judge.

John Ashcroft, Attorney General of the United States, et al., appeal an order in the United States District Court for the District of New Mexico preliminarily enjoining the government from prohibiting or penalizing the sacramental use of hoasca, a substance containing dimethyltryptamine (DMT), a drug listed in Section I of the Controlled Substances Act (CSA), 21 U.S.C. §§ 801-904, by O Centro Espirita Beneficiente Uniao do Vegetal, a small religious organization. We affirm.

Uniao do Vegetal, President of the Uniao do Vegetal's United States chapter Jeffrey Bronfman, and several other church members (collectively, UDV) filed a Complaint for Declaratory and Injunctive Relief and a Motion for Preliminary Injunction against the United States Attorney General, United States Attorney for the District of New Mexico, the Drug Enforcement Administration (DEA), the United States Customs Service, and the Department of the Treasury (collectively, Government) alleging violation of the First, Fourth, and Fifth Amendments, Equal Protection principles, the Administrative Procedure Act (APA), international laws and treaties, and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1. UDV sought declaratory and preliminary injunctive relief against the Government's penalty or prohibition of the church's importation, possession, and use of hoasca and against any attempt to seize the drug or prosecute Uniao do Vegetal members.

After a two-week hearing, on August 12, 2002, the district court granted UDV's motion for a preliminary injunction in a unpublished Memorandum Opinion and Order.1 The court rejected UDV's arguments that hoasca is not covered under the CSA and prohibiting the importation, possession, and use of the drug violates the Constitution and international law. However, the court held UDV had advanced a successful RFRA claim.

For purposes of the preliminary injunction, the Government did not dispute UDV had established a prima facie case under RFRA — a substantial burden imposed by the federal government on a sincere exercise of religion. See Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir.2001).2 The burden therefore shifted to the Government to show "the challenged regulation furthers a compelling interest in the least restrictive manner." See 42 U.S.C. § 2000bb-1(b); United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir.1996). The Government asserted three compelling interests in prohibiting hoasca: protection of the health and safety of Uniao do Vegetal members; potential for diversion from the church to recreational users; and compliance with the 1971 United Nations Convention on Psychotropic Substances (Convention). Convention on Psychotropic Substances, opened for signature Feb. 21, 1971, 1019 U.N.T.S. 175 (ratified by the United States in 1980) [hereinafter Convention].

The district court required the Government to prove sacramental hoasca consumption poses a serious health risk to Uniao do Vegetal members and, if sanctioned, would lead to significant diversion to non-religious use. Finding evidence on the health risks to UDV members "in equipoise," evidence on risk of diversion "virtually balanced," and hoasca not covered by the Convention, the court held the Government failed to meet its "onerous burden" under RFRA. Because it found no compelling government interests, the court did not conduct a least restrictive means analysis.

The district court concluded UDV demonstrated "substantial likelihood of success on the merits" and satisfied the other three requirements for preliminary injunction. First, on irreparable injury, the court noted, "Tenth Circuit law indicates that the violations of religious exercise rights protected under the RFRA represent irreparable injuries." Second, on balance of harms, the court held, "in light of the closeness of the parties' evidence regarding the safety of hoasca use and its potential for diversion, the scale tips in the Plaintiffs' favor." Finally, the court reasoned failure to vindicate religious freedom protected under RFRAa statute specifically enacted by Congress, as representative of the public, to countermand a Supreme Court ruling — would be adverse to the public interest.

In an order dated November 12, 2002, the court delineated a remedy, preliminarily enjoining the Government from prohibiting or penalizing sacramental hoasca use by Uniao do Vegetal members. The court also required that the church, upon demand by the DEA, identify its members who handle hoasca outside of ceremonies, allow for on-site inspections and inventories, provide samples, identify times and locations of ceremonies, and designate a liaison to the DEA.

The Government moved for an emergency stay of the preliminary injunction pending appeal. On December 12, 2002, we granted the stay, holding UDV failed to demonstrate "clear and equivocal" right to relief. O Centro Espirita v. Ashcroft, 314 F.3d 463, 467 (10th Cir.2002).

On appeal, UDV urged us to affirm the district court, contending the Government failed to prove hoasca poses health risks to church members, the Convention does not apply to hoasca, and Uniao do Vegetal's consumption of hoasca is comparable to the Native American Church's exempted use of peyote. Calling for a reversal, the Government's appeal focused on the compelling interests asserted below.

I. Background
A. Uniao do Vegetal

Uniao do Vegetal, a syncretic religion of Christian theology and indigenous South American beliefs, was founded in Brazil in 1961 by a rubber-tapper who discovered the sacramental use of hoasca (the Portuguese transliteration of ayahuasca) in the Amazon rainforests. A highly structured organization with elected administrative and clerical officials, UDV uses hoasca, which in the Quechua Indian language means "vine of the soul," "vine of the dead," or "vision vine," as a link to the divinities, a holy communion, and a cure for ailments physical and psychological. Church doctrine dictates members can perceive and understand God only by drinking hoasca. Brazil, in which there are about 8,000 Uniao do Vegetal members, recognizes Uniao do Vegetal as a religion and exempts sacramental use of hoasca from its prohibited controlled substances. Hoasca is ingested at least twice monthly at guided ceremonies lasting about four hours. Rituals during Uniao do Vegetal service include the recitation of sacred law, singing of chants by the leader, question-and-answer exchanges, and religious teaching.

Uniao do Vegetal has been officially in the United States since 1993, when its highest official visited and founded a branch in Santa Fe, New Mexico, subordinate to the Brasilia headquarters. Approximately 130 Uniao do Vegetal members currently reside in the United States, thirty of which are Brazilian citizens. The Internal Revenue Service has granted Uniao do Vegetal tax exempt status.

Hoasca is made by brewing together two indigenous Brazilian plants, banisteriopsis caapi and psychotria viridis. Psychotria contains DMT; banisteriopsis contains harmala alkaloids, known as beta-carbolines, that allow DMT's hallucinogenic effects to occur by suppressing monoamine oxidase enzymes in the digestive system that otherwise would break down the DMT. Ingestion of the combination of plants allows DMT to reach the brain in levels sufficient to significantly alter consciousness.

Because the plants do not grow in the United States, hoasca is prepared in Brazil by Church officials and exported to the United States. On May 21, 1999, United States Customs Service agents seized a shipment of hoasca labeled "tea extract" bound for Jeffrey Bronfman and Uniao do Vegetal-United States. A subsequent search of Mr. Bronfman's residence resulted in the seizure of approximately 30 gallons of hoasca. Although the...

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