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
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
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
sought and was granted a rehearing by all thirteen judges in the Tenth
Circuit. This is called an en banc rehearing.
November 12, 2004, the Tenth Circuit en banc once again upheld the District
Court’s preliminary injunction in favor of the UDV.
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
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?
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
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?
Where can I get more info
about the case?
The CCLE has some info
here. Erowid also has info,
Who wrote these notes?
Richard Glen Boire, JD
Director and Legal Counsel
Center for Cognitive Liberty & Ethics | www.cognitiveliberty.org
“Keeping freedom in Mind.”
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.