Some Notes on The Recent (11/12/04) UDV Ruling

*** ADDENDUM December 10, 2004 ***
The full United States Supreme Court today refused a government request to appeal the 10th Circuit ruling discussed below. See: USSC docket in case No.
04A469:http://www.supremecourtus.gov/docket/04a469.htm

These notes concern the November 12, 2004 ruling by the Tenth Circuit Court of Appeals in a case involving members of the Uniao do Vegetal, members of which drink ayahuasca (hoasca) during religious ceremonies. 

I know it was good for the UDV, but what exactly is the ruling?

In 2003, a federal court for the District of New Mexico granted the UDV a preliminary injunction in the church’s legal case against the government. That injunction blocked the government from interfering with the UDV’s importation, possession, and use of ayahuasca in its religious ceremonies. The government appealed.

Last year a three-judge panel of the Tenth Circuit upheld the injunction. (see http://www.cognitiveliberty.org/dll/udv_10prelim.htm).The government sought and was granted a rehearing by all thirteen judges in the Tenth Circuit. This is called an en banc rehearing.

Last Friday, November 12, 2004, the Tenth Circuit en banc once again upheld the District Court’s preliminary injunction in favor of the UDV.

So, once again the government is prohibited from interfering with the UDV’s importation, possession or use of ayahuasca in its religious ceremonies.

Does that mean that the UDV won the case?

No. This was a preliminary injunction pending a full-blown trial in the case. The preliminary injunction means that while the trial is pending or underway the UDV can continue its religious use of ayahuasca.

So does the case now go to trial?

Not necessarily. The government might try and appeal the Tenth Circuit’s decision to the US Supreme Court. [December 1 Addendum: It did this, see note at top of this page.] It’s also possible that the government and the UDV will settle the case without a trial. If neither of those happen, then the case will proceed to trial in the New Mexico District Court. 

What does this case mean for non-UDV members who use ayahuasca in religious ceremonies?

The preliminary injunction only protects UDV members who use ayahuasca in the church’s ceremonies. It does not protect nonUDV members. It does not protect religious users of other controlled entheogens (whether or not members of the UDV). 

The majority’s opinion in the Tenth Circuit’s en banc opinion does have some analysis and reasoning suggesting that small groups of religious users of “esoteric” entheogens (“tightly circumscribed use of a drug not in widespread use”) might potentially have meritorious cases under the Religious Freedom Restoration Act. The majority, however, went out of its way to stress how unique the UDV is, and how ayahuasca cannot be compared to popular drugs like marijuana, or even to DMT outside of ayahuasca (“the fact that hoasca is a relatively uncommon substance used almost exclusively as part of a well-defined religious service makes an exemption for bona fide religious purposes less subject to abuse than if the religion required its constant consumption, or if the drug were a more widely used substance like marijuana or methamphetamine.”)

Where can I get a copy of the Tenth Circuit’s opinion?

Here:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=10th&navby=case&no=022323v2&exact=1

Where can I get more info about the case?

The CCLE has some info here. Erowid also has info, here.

Who wrote these notes?

Richard Glen Boire, JD
Director and Legal Counsel
Center for Cognitive Liberty & Ethics | www.cognitiveliberty.org

“Keeping freedom in Mind.”

The Center for Cognitive Liberty & Ethics (www.cognitiveliberty.org) provided legal research assistance to the U.D.V. Church arguing that neither the plants that comprise ayahuasca, nor the tea itself, are controlled substances. See: http://www.cognitiveliberty.org/dll/udv_pj_granted.htm

See Also:

UDV case documents

CCLE Drug Law Library: Ayahuasca