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Background: União do Vegetal

Centro Espirita Beneficente União do Vegetal (UDV) is a Spiritist Christian religion that blends Indigenous and Amazonian spiritual traditions within Christian theology. Throughout human history it has been a common phenomenon for new religious faiths to emerge, as a result of adapting and combining aspects of different traditions. Christianity itself began this way. UDV emerged as a distinct religious practice in the Brazilian Amazon in 1961, but its anthropological and oral history goes back far longer, for hundreds of years.

"União do Vegetal" literally means "the union of the plants." Central to UDV's religious tradition and practice is the sacramental use of hoasca, a tea made from two plants indigenous to the Brazilian Amazon - the vine banisteriopsis caapi and a bush botanically related to the coffee plant, psychotria viridis. Religious practitioners ritually prepare the tea and consider it sacred, much as Catholics believe the wine they take at communion to be a sacrament. Indians and forest peoples have used hoasca (although sometimes referring to it by different names such as ayahuasca or yage) continuously for centuries to increase spiritual perception. Many anthropologists believe the use of this religious sacrament goes back to the beginnings of the great Inca civilization of Peru.

In the UDV, church members only use the hoasca tea in the context of religious ceremony. The sacrament imbues UDV members with a heightened spiritual awareness that permits them to experience communion with God.

UDV has temples in over 100 cities and villages throughout Brazil with a membership of close to 10,000 adherents. Approximately 140 UDV members live in the United States. They wish to practice their religion in peace under the protection of U.S. law and the Bill of Rights of the U.S. Constitution. UDV is not interested in publicity and does not actively proselytize for new members.

Events Leading to Litigation

On May 21, 1999, U.S. Customs agents entered the UDV national headquarters in Santa Fe, New Mexico, seizing church records, computers and all of the sacramental hoasca tea stored there. On November 22, 2000, after 18 months of unsuccessful efforts to negotiate a settlement with the government aimed at accommodating the UDV's religious practice, the UDV had no recourse but to file a lawsuit in federal court against the Drug Enforcement Administration, the U.S. Customs Service, and the United States Department of Justice for violations of the First Amendment to the U.S. Constitution, The Religious Freedom Restoration Act, and numerous treaty obligations.

The UDV is primarily seeking relief under The Religious Freedom Restoration Act Of 1993 (RFRA). Citing the nation's history and founding principles of religious liberty, Congress passed RFRA almost unanimously. It requires that the government not interfere with religious conduct unless it can demonstrate to a court that it has a "compelling interest" in doing so, and then that the government is using the "least restrictive means" of accomplishing its objectives (as applied to the religious adherents). If it is unable to do so, RFRA requires the government to allow people to practice their religion.

The Justice Department Response

In response to the UDV lawsuit, the U.S. government claimed that it had a compelling interest in suppressing the use of controlled substances and that its interest could only be effectively served by a complete ban on their use, including the UDV's religious use of hoasca. The government defendants have argued that the church's sacramental hoasca tea contains dimethyltriptamine (DMT), a substance, when synthesized and injected or smoked, is considered to have a potential for abuse and is on the government's list of controlled (or prohibited) substances. The government has never explained why it has accommodated The Native American Church's use of peyote (which contains mescaline, also a controlled substance) but cannot accommodate the UDV's use of hoasca. The United States Constitution, which guarantees the free exercise of religion, also guarantees equal protection under the Law.

To justify its prohibition of the UDV religion, the government has claimed that the use of hoasca within the religious ceremony constitutes a threat to the UDV's own members. The UDV's lawyers rebutted the government's allegations as unproven speculations, contrary to decades of empirical evidence, and all of the established medical and scientific research to date.

Evidence presented in Court demonstrated that the quantity of naturally occurring DMT, the alkaloid present within the sacramental hoasca tea, is extremely small and that the same naturally occurring DMT is also present within many plants that grow in the United States, and even within the healthy human brain.

The Controlled Substances Act lists and criminalizes the use of substances with the potential for abuse, while providing exemptions for medical and scientific uses that Congress considers legitimate. The law also provides for an exemption for the sacramental use of peyote in "bona fide religious ceremonies of the Native American Church", a practice in many ways analogous to the UDV's use of the hoasca tea.

The Tenth Circuit Court of Appeals has already ruled in this case that "Uniao do Vegetal's use of hoasca occurs in a 'traditional, precisely circumscribed ritual' where the drug 'itself is an object of worship' and using the sacrament outside the religious context is a sacrilege." In doing so it compared the use of hoasca within the UDV with the authorized religious use of peyote in the Native American Church.

In another attempt to justify their position, the government defendants argued that The 1971 Convention on Psychotropic Substances (a treaty intended to control the international movement of narcotics and dangerous drugs) prohibited them from accommodating the UDV's religious use of its sacramental tea. However, evidence and testimony presented in court demonstrated that the treaty does not restrict or control plants, or decoctions made from plants that are "traditionally used by certain small, clearly defined groups in magical or religious rites." Even if the Convention did cover hoasca tea, a treaty obligation can never legally justify the denial of a fundamental constitutional right or the violation of U.S. law.

Relevant Facts

The UDV was founded in Brazil on July 22, 1961 and has its headquarters in that nation's capital, Brasilia.

The church has close to 10,000 adherents and more than 100 temples in villages and cities throughout Brazil.

It is a central and essential tenet of the UDV religion that its members receive communion by partaking of the sacramental hoasca tea during religious rites. For disciples of the UDV, the spirit of hoasca, a manifestation of Divinity, is present within the tea.

The Religious Freedom Restoration Act is a statute that requires the government to prove that it has a genuinely compelling interest in prohibiting particular religious conduct. If it is unable to do so, the act requires that the government allow the religious practice.

The ritual use of the hoasca tea was the subject of a seven year investigation (between 1985 and 1992) by the Brazilian authorities. The Federal Narcotics counsel from Brazil concluded:

"The followers of the sects appear to be calm and happy people. Many of them attribute family reunification, regained interest in their jobs, finding themselves and God, etc., to their religion and the tea...The ritual use of the tea does not appear to be disruptive or to have adverse effects upon the social interactions of the sects' followers. To the contrary, it appears to orient them towards seeking social contentment in an orderly and productive way."

Under the laws of Brazil, the religious use of the hoasca tea is legally recognized and protected. This was reaffirmed as recently as November 8, 2004, in Brazil's Federal Record.

Many UDV congregations have received government and civic awards for their beneficent works. The UDV is recognized in Brazil as an "utilidade publica", an organization of great public benefit to the people of Brazil.

Because the hoasca tea is the central sacrament of the UDV religion, a prohibition against the use of the tea in the United States would completely prevent the practice of the religion in this country.

Court Decisions to Date

The UDV sued the Department of Justice, the DEA, and the U.S. Customs Service, to enjoin them from interfering with the UDV members' practice of their religion. The Chief Judge of the United States District Court for the District of New Mexico, James Parker, took evidence in the UDV's lawsuit for two-weeks, between October 22 and November 2, 2001. On August 12, 2002, after eleven months of reviewing thousands of pages of evidence, testimony, and expert reports, Judge Parker concluded that the government defendants' prohibition of the UDV's religious practice was unjustifiable under domestic law because the government had failed to show that it had any compelling interest in forbidding the UDV's use of its sacramental tea. He granted a Preliminary Injunction enjoining the Justice Department, the U.S. Customs Service and the DEA from further interfering with this small church's religious liberty and basic civil rights.

Judge Parker's opinion declared:

"In this case, the Court has concluded that the Government has failed to carry its heavy burden of showing a compelling government interest in protecting the health of UDV members using hoasca, or in preventing the diversion of hoasca to illicit use. In addition the Government has not demonstrated that prohibiting the UDV's ceremonial use of hoasca furthers an interest in adhering to the 1971 Convention on Psychotropic Substances because the treaty does not appear to extend to hoasca."

The Justice Department appealed Judge Parker's Decision to the Tenth Circuit Court of Appeals (which reviews federal cases in New Mexico, Colorado, Oklahoma, Utah, Kansas, and Wyoming, and portions of the Yellowstone National Park extending into Montana and Idaho). Over a two-year period, that court granted the government two separate opportunities to explain why Judge Parker's judgment was wrong. In both instances (on September 4, 2003, and on November 12, 2004) the Appeals Court found Judge Parker's decision to be correct.

The Court of Appeals asserted that:

"Based on the record before us, we cannot conclude the government has demonstrated that application of the burden to the [UDV] (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest."

" [As] RFRA, a statute enacted by representatives of the people to protect religious freedom, acknowledges, harm ensues from the denial of free exercise and the public has a significant interest in unburdened legitimate religious expression."

The Supreme Court

On February 10, 2005, the government defendants appealed to the U.S. Supreme Court. This action was apparently rooted in the defendant's unwillingness to fully accept Congress's passage of RFRA and the thoroughness and correctness of the three lower court decisions, all of which found that the UDV members had the right to practice their religion without government interference.

On April 18, 2005, the U.S. Supreme Court agreed to hear the case of Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal in the coming fall session. This case will be a major test of to what degree the U.S. government respects RFRA's provisions. Many religious, legal and human rights organizations are expected to file amicus briefs in support of the UDV's case, and its members' constitutional right to practice their religion without undue government involvement.

The government defendants have presented the question to be decided as "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."

This statement of the question possits several assumptions that have already been proven false in the lower courts. First the statement of the question presented assumes that hoasca is "unsafe for use even under medical supervision" despite the fact that Judge Parker heard almost two weeks of testimony on this contention and rejected it. This statement of the question also assumes importation of hoasca would violate the 1971 Convention, and that Congress has found the substance at issue to be unsafe. Both claims have already been refuted in the lower courts based on clear and uncontradicted evidence.

Judge Parker recognized that he could not ignore Congress's inclusion of DMT on Schedule I of the Controlled Substances Act, but he nevertheless pointed out that RFRA "mandated that a court may not limit its inquiry to Congress's general observations." Under RFRA, "a court is to consider whether the 'application of the burden' to the claimant 'is in furtherance of a compelling governmental interest' and 'is the least restrictive means of furthering that compelling governmental interest.'" As Judge McConnell explained in writing for the Tenth Circuit Court, "Congress' general conclusion that DMT is dangerous in the abstract does not establish that the government has a compelling interest in prohibiting the consumption of hoasca under the conditions presented in this case."