Tea Might Be Ok’D For Religious Practice

Judge to make decision on hoasca in early September
Source: The Santa Fe New Mexican
Publication date: 2002-08-18

A Santa Fe-based group might get permission to drink a hallucinogenic tea called hoasca.

U.S. District Judge James Parker says he is leaning toward granting the group’s right to use the tea, based on the Religious Freedom Restoration Act.

Parker last week issued a 61-page memorandum opinion and order in a lawsuit filed against the federal government and scheduled a Sept. 3 hearing to determine how to implement his order.

Jeffrey Bronfman, a member of the Canadian family that founded the Seagram’s whiskey brand, used to host ceremonies near his home in Arroyo Hondo, near Santa Fe, where participants would drink the tea made from two Amazon plants containing N.N. dimethyltryptamine, or DMT.

On March 21, 1999, U.S. Customs Bureau and other federal agents seized 30 gallons of tea shipped from Brazil to Bronfman’s office on the north side of Santa Fe. No one was charged or arrested. The arrest was not publicized.

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On Nov. 21, 2000, Bronfman, as president of O Centro Espirita Beneficiente Uniao do Vegetal (Portuguese for Central Beneficial Spirit United in the Plant), or UDV, sued the U.S. Department of Justice for confiscating the tea. His complaint compared UDV’s use of hoasca to that of the Native American Church’s use of peyote.

During hearings last fall, UDV’s attorneys brought into the Albuquerque federal courtroom hallucinogen-containing plants purchased at Albuquerque nurseries. U.S. Drug Enforcement Agency officials admitted they knew phalaris grass and San Pedro cactus were available for sale on the Internet and elsewhere, but said they had not tried to prosecute the sellers.

Brazil, where UDV’s rites originated, has legalized hoasca for religious purposes. Some nations allow it to be imported and used by religious groups.

Early this year, UDV suffered a setback when three branches of the Native American Church filed a friend-of-the-court brief that said UDV was “distorting and misrepresenting … the nature, legal history and status of the Native American Church” in seeking an exemption to use a controlled substance under the equal-protection clause of the U.S. Constitution.

Parker rejected the group’s Constitutional and international-law claims, but found merit with UDV’s claims based on the Religious Freedom Restoration Act. The brief from the Native American Church branches took no position on the RFRA.

The 1993 law was responding to a 1990 U.S. Supreme Court ruling that upheld the state of Oregon for denying unemployment benefits to a man who was fired from his job because he used peyote in Native American Church rites. Its sponsors were strange bedfellows: Ted Kennedy, D-Mass., and Orrin Hatch, R-Utah, in the Senate; Barney Frank, D-Mass., and Newt Gingrich, R-Ga., in the House. A Christian Science Church Web site says the U.S. Supreme Court ruling in 1997, regarding a case involving the city of Boerne, Texas, “virtually abandoned the requirement that the government show a compelling reason to restrict religious practices.”

However, “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,” Parker said in the UDV case. “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. The Court thus does not reach the question of whether the Government has employed the least restrictive means of accomplishing its stated goals.”

Elizabeth Goiten, a Washington, D.C.-based assistant U.S. attorney assigned to the defense of the government in the civil case, said Parker originally set the hearing for Monday, but he agreed to wait until Sept. 3 after a telephone conference last week. She declined comment on Parker’s order.

UDV lawyer John Boyd of Albuquerque called the apparent decision a victory for religious freedom. He said he expects the hearing will concern what kind of system the government must set up to “allow a religious use of hoasca and also satisfy the government’s concern that it not be subject to diversion.”

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