COMMENTARY ON UDV CASE AT THE USA SUPREME COURT

 

Below I have set forth the important quotes from the UDV decision.  In bold, I will ad a few comments to cast some light on what is means.

 

 

There are three basic holdings here.

 

1.     The government must prove, at the preliminary stages that it has a real compelling interest in criminalizing the tea.

 

2.     That just because Congress said DMT is dangerous does not relieve the government of its obligation to demonstrate that it is dangerous in this case.  And the Court rejects all of the so-called compelling interests asserted by the government holding that the government simply failed to prove their case.

 

3.         The government failed to provide evidence that the International Treaty Issue Required the Government to Ban the Tea

 



1.     The government must prove, at the preliminary stages that it has a real compelling interest in criminalizing the tea.

 

The Court rejected the government's argument that "evidentiary equipoise is an insufficient basis for issuing a preliminary injunction against enforcement of the Controlled Substances Act. "

 

The Court held that the government looses when there is equipose in the evidence.  This was the scariest part of Judge Parker's opinion.  We felt that the government failed to even meet equipose. But the Court was very clear in saying the government must prevail, not simply have evidence that equalled the evidence of the plaintiff.

 

 

"Accordingly, the UDV effectively demonstrated that its sincere exercise of religion was substantially burdened, and the Government failed to demonstrate that the application of the burden to the UDV would, more likely than not, be justified by the asserted compelling interests. (“[T]he balance is between actual irreparable harm to [the]plaintiff and potential harm to the government which does not even rise to the level of a preponderance of the evidence”).

The Government argues that, although it would bear the burden of demonstrating a compelling interest as part of its affirmative defense at trial on the merits, the UDV should have borne the burden of disproving the asserted compelling interests at the hearing on the preliminary."

 

What the government was saying is that the UDV had to prove that the government could not prove what the government had to prove!!!!  This was a stupid argument that the Court rejected.

 

 

 

2.     That just because Congress said DMT is dangerous does not relieve the government of its obligation to demonstrate that it is dangerous in this case.  And the Court rejects all of the so-called compelling interests asserted by the government holding that the government simply failed to prove their case.

 

"Under the Government’s view, there is no need to assess the particulars of the UDV’s use or weigh the impact of an exemption for that specific use, because the Controlled Substances Act serves a compelling purpose and simply admits of no exceptions."

 

"RFRA, and the strict scrutiny test it adopted, contemplate

An inquiry more focused than the Government’s categorical approach. RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”—the particular claimant whose sincere exercise of religion is being substantially burdened. 42 U. S. C. §2000bb–1(b). RFRA expressly adopted the compelling interest test “as set forth in Sherbert v. Verner, 374 U. S. 398 (1963) and Wisconsin v. Yoder, 406 U. S. 205 (1972).” 42 U. S. C. §2000bb(b)(1)."

 

"But Congress’ determination that DMT should be listed under Schedule I simply does not provide a categori­cal answer that relieves the Government of the obligation to shoulder its burden under RFRA. This conclusion is reinforced by the fact that the Act itself contemplates that exempting certain people from its requirements would be “consistent with the public health and safety” indicates that congressional findings with 

respect to Schedule I substances should not carry the determinative weight, for RFRA purposes, that the Gov­ernment would ascribe to them."

 

In other wards the fact that DMT is listed cannot, under RFRA, relieve the government of proving some public danger from use of Hoasca or Daime

 

"And in fact an exception has been made to the Schedule I ban for religious use. For the past 35 years, there has been a regulatory exemption for use of peyote—a Schedule I substance—by the Native American Church.  Everything the Gov­ernment says about the DMT in hoasca—that, as a Sched­ule I substance, Congress has determined that it “has a high potential for abuse,” “has no currently accepted medi­cal use,” and has “a lack of accepted safety for use . . . under medical supervision,” 21 U. S. C. §812(b)(1)—applies in equal measure to the mescaline in peyote, yet both the Executive and Congress itself have decreed an exception from the Controlled Substances Act for Native American religious use of peyote. If such use is permitted in the face of the congressional findings in §812(b)(1) for hundreds of thousands of Native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar excep­tion for the 130 or so American members of the UDV who want to practice theirs.

 

In Dr. Halpern's amicus brief, we stressed the fact that the evidence from Dr. Halpern's studies clearly indicates no ill health affects associated with the peyote use. It is fair to assume that our amicus brief had some impact because Halpern is the person who did the peyote studies.

 

"In other words, if any Schedule I substance is in fact always highly dangerous in any amount no matter how used, what about the unique relationship with the Tribes justifies allowing their use of peyote? Nothing about the unique political status of the Tribes makes their members immune from the health risks the Government asserts accompany any use of a Schedule I substance, nor insulates the Schedule I substance the Tribes use in religious exercise from the alleged risk of diversion."

 

 

"The Government argues that the existence of a congres­sional exemption for peyote does not indicate that the Con­trolled Substances Act is amenable to judicially crafted exceptions. RFRA, however, plainly contemplates that courts would recognize exceptions—that is how the law works. . . and there is no evidence that it has “undercut” the Government’s ability to enforce the ban on peyote use by non-Indians."

 

The government's argument it rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a gener­ally applicable law. The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for every­body, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of excep­tions to “rule[s] of general applicability.”

 

Of interest to us is that the government cited to the Santo Daime many times in their opening brief to support their "slippery slope" argument.  Despite Nancy's freak-out, as I noted to you all, over and over again, the "slippery slope" argument has never been accepted by the Court and it again rejects it.

 

"We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA. But it would 

have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to re­spond to a decision denying a claimed right to sacramental use of a controlled substance."

 

"And in fact the Government has not offered evidence demonstrating that granting the UDV an exemp­tion would cause the kind of administrative harm recog­nized as a compelling interest in Lee, Hernandez, and Braunfeld. The Government failed to convince the District Court at the preliminary injunction hearing that health or diversion concerns provide a compelling interest in ban­ning the UDV’s sacramental use of hoasca. It cannot compensate for that failure now with the bold argument that there can be no RFRA exceptions at all to the Con­trolled Substances Act. See Tr. of Oral Arg. 17 (Deputy Solicitor General statement that exception could not be made even for “rigorously policed” use of “one drop” of substance “once a year”)".

 

This quote completely shoots down the governments' ill health and diversion claims.

 

3.     The government failed to provide evidence that the International Treaty Issue Required the Government to Ban the Tea

 

"The Convention provides that “a preparation is subject to the same measures of control as the psychotropic substance which it contains,” and defines “preparation” as “any solution or mixture, in whatever physical state, containing one or more psychotropic sub­stances.” See 32 U. S. T., at 546, Art. 1(f)(i); id., at 551, Art. 3. Hoasca is a “solution or mixture” containing DMT; the fact that it is made by the simple process of brewing plants in water, as opposed to some more advanced method, does not change that. To the extent the commen­tary suggests plants themselves are not covered by the Convention, that is of no moment—the UDV seeks to import and use a tea brewed from plants, not the plants themselves, and the tea plainly qualifies as a “prepara­tion” under the Convention."

 

This part is not great in that we took the position that the tea is not even covered by the CSA or the Convention.  Our amicus brief was very clear on this and I noted that the oral argument on this was not very strong.

 

"At the present stage, it suffices to observe that the Govern­ment did not even submit evidence addressing the inter­national consequences of granting an exemption for the UDV. The Government simply submitted two affidavits by State Department officials attesting to the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs."

 

We had our treaty experts who actually ripped apart these two affidavits.   The Court held that the government simply did not make out its case on the treaty issue.

 

 

"We conclude that the courts below did not err in determining that the Govern­ment failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV’s sacra­mental use of hoasca. The judgment of the United States Court of Appeals for the Tenth Circuit is affirmed, and the case is remanded for further proceedings consistent with this opinion."

 

What does this all mean?

 

Technically, the case now goes back to Judge Parker to hold a final trial.  At that trial, the government will have a complete opportunity to retry the case and do better with its experts.  It will try to present evidence, where, in the first round, it offered conclusions, but not good enough evidence.

 

I think we need to look at the negative fallout to the government here before we can talk much about what they will do.  It is possible, but not likely that they will take their defeat and not seek a full new trial.  Bush does pit himself against the mainstream religious groups.  Right now, the best thing to do is behind the scenes religious organizations putting enormous pressure on Bush and the Attorney General to let it be.

 

I'll go into this in greater depth in the next several days.  I have to leave now for other matters.