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Frequently Asked Questions
The Justice Department asserts that hoasca is illegal under the Controlled Substances Act. What is UDV's response to this?
The Justice Department asserts that hoasca is illegal under the 1971 Convention on Psychotropic Substances and that the United States Government must adhere to this treaty. What is UDV's response?
The Justice Department asserts that if UDV is allowed to use hoasca for religious purposes, it would then easily be diverted into the general population and become an abused drug. What is the UDV response?</a>
The UDV is a Christian Spiritist religion that originated in Brazil and has received numerous civic awards and governmental recognitions - of distinction- in that country. It is recognized as a church under the laws of the United States. Adherents of the UDV religion drink a tea within their religious services that is made from two plants indigenous to the Brazilian Amazon. The tea, known as hoasca, is revered as sacred by UDV members. It is a sacrament within the UDV ceremonies, serving to heighten spiritual understanding and perception, and bringing the religious practioners in touch with God.
This lawsuit was brought after 18 months of unsuccessful negotiations with the Justice Department during which the UDV sought tolerance and accommodation of its practice of taking Communion with the tea; a practice central and essential to its faith. Representatives of the United States Government had previously threatened to arrest and prosecute members of the UDV if they continued to practice their religion in the United States. The UDV is only seeking the rights it believes are guaranteed under the First Amendment to the U.S. Constitution, international treaties and domestic law, primarily the Religious Freedom Restoration Act of 1993 (RFRA).
The Religious Freedom Restoration Act, a federal law intended to protect the free exercise of religion, provides access to the courts for sincere individuals and recognized churches who are not able to exercise their religion freely because of actions by the federal government. The U.S. Government defendants in this case concede that the UDV is a recognized religion, that its members are sincere and that the government's actions have prevented the UDV members from practicing their religion. Once such a situation arises, and the religious group challenges the government's prohibition in court, RFRA requires the government to prove to a federal judge that it has a "compelling interest" that can only be served by banning the particular exercise of religion. This means that the government has to show that the religious conduct in question, if allowed, will cause serious harm.
The government defendants claimed that hoasca was dangerous to the health of UDV's members, that UDV's hoasca was likely to be diverted to non-religious use, and that permitting UDV's members to import hoasca from Brazil would cause the United States to violate an international treaty.
After two weeks of testimony, including testimony by eminent experts in the fields of medicine, drug control and law enforcement, the district court judge ruled that the government had failed to prove it had any compelling interest at all. The government failed to show any health danger, any likelihood of diversion, or that permitting UDV to import its sacramental hoasca would cause the United States to violate any treaty.
A three-judge panel of the United States Court of Appeals for the Tenth Circuit reviewed the District Court's decision and affirmed it. After the three-judge panel affirmed the District Court's decision the government asked all thirteen active judges of the Court of Appeals to rehear the case and the court agreed to do so. After rehearing, the Court of Appeals again affirmed the District Court's decision.
The government appears to concede that it failed to prove a compelling interest in prohibiting the UDV's religious use of hoasca, so it is now arguing that the district court should have found that the government's burden was satisfied merely because hoasca contains a very small amount of a Schedule 1 controlled substance, the possession and use of which is against the law.
This argument by the government, if accepted, would effectively repeal RFRA. It would do so because RFRA's only role is to address conflicts between federal laws and the free exercise of religion. Whenever such a conflict arises, RFRA requires that the government must prove why it is so important that a particular law be applied to prevent a particular religious practice. But the government, in the case of the UDV, is now taking the position that it should not have to prove anything more than to show that UDV's sacramental hoasca contains a very small amount of a controlled substance and therefore violates the law. In other words, having failed to prove that UDV's exercise of its religion is harmful to anyone, the government is now taking the position that it should not be required to prove anything at all. The government's position is correctly perceived by religious groups in this country to represent a serious attack on RFRA itself because, if the government is successful, it will make RFRA meaningless.
RFRA was passed into law in 1993 by unanimous voice vote in the House of Representatives and by a vote of 97-3 in the Senate. Constitutional scholars and elected officials from both sides of the aisle consider it to be one of the most popular and important laws Congress has passed in recent history. In a case before the Supreme Court earlier this year related to the "establishment of religion", that Court noted that it has not yet ruled on the constitutionality of RFRA as it relates to federal law. However, neither party in this case has questioned the constitutionality of RFRA and its constitutionality is not expected to be an issue before the Court in this case.
The outcome of this lawsuit will be of essential importance to Congress, as well as to the religious and civil rights communities. This case will determine whether the courts will apply RFRA as Congress wrote it or not. If the government is correct that it can satisfy its burden under RFRA merely by proving that something is against the law, then RFRA will be rendered meaningless. This is because RFRA's protections are only triggered when a particular exercise of religion violates a law or regulation. So if in order to win its case the government need only show that UDV's exercise of religion violates a law, then RFRA will not protect anyone's exercise of religion.
RFRA as passed by Congress applies to "every federal law", including the Controlled Substances Act. As a religious sacrament central and essential to the UDV religion, the use of hoasca is not prohibited under the Controlled Substance Act unless the Justice Department can prove (through evidence) that it has a compelling interest in applying the act to the UDV's religious use of hoasca and that there is no "less restrictive" means of meeting that interest as it relates to the 140 U.S. UDV members. So far, two federal courts in three opinions have said the government has not done so.
The United States Government's responsibility under any international treaty can never be used to justify the denial of a constitutional right, or a violation of a domestic law such as RFRA. The treaty in question was effectively amended with the passage of RFRA, which was written after the U.S. signed and ratified the treaty. By its terms, RFRA applies to all existing federal law. The Official Commentary to the 1971 Convention (which is the equivalent of its legislative history in explaining the treaty's intent) states that the treaty does not apply to plants and infusions made from plants. It also speaks specifically of "toleration" of the use of "plants growing wild...which contain psychotropic substances from among those in Schedule I, and which are traditionally used by certain small, clearly determined groups in magical or religious rights." Furthermore, the 1971 Convention contains a provision that excuses compliance if its application in a particular context would violate a country's laws or constitution, as is the case here since both lower courts have found that the government's refusal to accommodate UDV's religion violates RFRA.
The UDV legal counsel has argued that the government's accommodation of the Native American Church and its religious use of peyote clearly demonstrates that the federal government could easily accommodate the UDV's religious practice without undermining the nation's drug laws. The evidence submitted to the court shows that the similarities between the UDV and the Native American Church are truly remarkable. Both are modern expressions of religious traditions using plant material as a form of sacramental communion whose origin goes back hundreds of years. The two churches, both of which are Christian in theology, were organized within 80 years of one another, in both cases predating the current controlled substances laws. The government has readily agreed that the Native American Church's use of peyote, also a Schedule 1 controlled substance, has caused no health or drug problems in this country. But the government has never been able to convincingly explain why UDV's use of hoasca should be seen as dangerous.
The Justice Department asserts that if UDV is allowed to use hoasca for religious purposes, it would then easily be diverted into the general population and become an abused drug. What is the UDV response?
Once again, the evidence does not support the Justice Department's assertions. The UDV imported hoasca for more than 11 years without any diversion from its use as a religious sacrament. Under the injunction imposed by the federal district court and the current license from the DEA, the UDV has, since December of last year, resumed the importation of hoasca for its religious services. No diversion has occurred. Furthermore, there was extensive expert testimony establishing that the nature of hoasca is such that it would be a very unlikely candidate for a drug of abuse.
The federal court's decision only relates to the religious use of the sacrament of hoasca within the "clearly defined, circumscribed context" of the UDV.
Hallucinogenic substances in general remain illegal under federal and most state laws. The accommodation being granted to the UDV is based upon its legitimacy, the history of its religious use of the hoasca tea, and the absence of evidence that it is harmful or would be diverted to illegal use. Another group wishing to utilize a psychoactive substance that is also central to their religious practice must be prepared to prove their case in court, if the government continues to maintain that it had a compelling interest in prohibiting the use of that substance. The accommodations for religious use under RFRA do not extend to "recreational use," as the district court and appeals court opinions have made very clear. There is no "slippery slope".