Court Affirms Church Tea OK

A federal court has ruled for the third time that the Santa Fe-based affiliate of a Brazilian religious sect should get back the hallucinogenic tea its practitioners take as a sacrament.

The U.S. 10th Circuit Court of Appeals in Denver ruled 8-5 for the small religious group, O Centro Espirita Beneficiente Uniao do Vegetal, or UDV, which has waged a 41/2-year legal battle for return of the tea.

In a convoluted, lengthy and often esoteric discussion of legal issues, the appeals court upheld the ruling two years ago by Senior U.S. District Judge James A. Parker.

Parker ordered federal authorities to permit the group to import the tea and said they could not bar bona fide church members from using the hallucinogen according to their own strict internal guidelines.

But he delayed the effective date of the order pending appeal— a situation in effect until the appeals court’s decision was handed down late Friday.

The 10th Circuit sat en banc— meaning all 13 judges— to reconsider a 2003 ruling by a three-judge panel.

“The court of appeals has once again affirmed the right of the UDV and its practitioners to practice their religion. We hope they will be able to do that as quickly as possible,” said Nancy Hollander, who filed suit on behalf of Jeffrey Bronfman of Tesuque, the religion’s North American leader, and other members of the group in 2000.

“Now we have won in two courts and in three decisions,” she said.

Hollander late Monday asked for emergency relief from Parker in light of the 10th Circuit ruling. Noting UDV members “have been effectively prohibited from practicing their religion since May 1999,” she said the court should require the government to issue a permit for the importation and distribution of the tea.

U.S. Attorney David Iglesias said he is consulting with attorneys in his office and with the regional solicitor to decide on the government’s next step.

The government could seek review by the U.S. Supreme Court, but that would require permission from the solicitor’s office, Iglesias said.

The U.S. Customs Service seized 30 gallons of the tea, known as ayahuasca or simply hoasca, from Bronfman’s home in 1999. Bronfman, who was first exposed to the religion during trips to Brazil for a nonprofit board on which he sat, began importing the tea for ceremonies for a growing but small North American membership. The tea is a blend of two Amazon rain-forest plants and is legal in Brazil.

Government lawyers have taken the position that hoasca is regulated by the Controlled Substances Act, from which the UDV is not exempt. They also have said international treaties governing narcotics will be breached by permitting its use.

“This case is unique in many respects because it involves a clash between two federal statutes, one based in the First Amendment to the Constitution and protecting an individual’s free exercise of religion and the other serving the important governmental and public interests of protecting society against the importation and sale of illegal drugs,” wrote 10th Circuit Judge Stephanie K. Seymour in one of the majority opinions.

Seymour said the government’s claim of harm if it can’t enforce an international treaty on psychotropic drugs was undermined by exemptions permitted for plants traditionally used by certain small clearly defined groups. And she noted Congress reiterated the importance of the free exercise of religion when it enacted the Religious Freedom Restoration Act.

In a separate, concurring opinion, Judge Michael W. McConnell noted that the district court’s order worked as a compromise, permitting the government some control over importation, storage and use of hoasca while permitting the UDV to continue its religious activity.

“This case … raises the question of why an accommodation analogous to that extended to the Native American Church cannot be provided to other religious believers with similar needs,” he wrote.

The Native American Church is allowed to use peyote as a sacrament.

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(Listed if other than Religion News Blog)
Albuquerque Journal, USA
Nov. 16, 2004
Scott Sandlin, Journal Staff Writer

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