By Matthew Meyer
(*) Special to bialabate.net
On August 21st, 2009, the Department of Justice formally notified the United States Court of Appeals for the Ninth Circuit that it would appeal Judge Owen M. Panner’s March 18 ruling granting a permanent injunction to the Ashland, Oregon-based Church of the Holy Light of the Queen to import and use Daime tea (ayahuasca) in its religious rituals.
The government had already asked Judge Panner, following the decision, to amend it, arguing that the exemptions to the Controlled Substances Act that Panner set forth “swept too broadly, mistakenly enjoining the enforcement of numerous regulations that were not challenged in the Complaint and that have not been held to pose any burden on Plaintiffs’ exercise of religion.”
The government’s position in this case has lately resembled the stance it has taken in the O Centro case involving the União do Vegetal, where the government, having apparently lost the substantial points about the dangers ayahuasca use by the UDV might pose to its members and to society, has resorted to stonewalling by refusing to agree to a permanent, workable arrangement in negotiations with the UDV outside the court. Instead, the government has argued that the UDV must prove the same case for each and every DEA regulation that places an unreasonable burden on its religious practice. (These regulations include keeping track of the precise dose of the controlled substance—which is this case would be small amounts of DMT in the ayahuasca—given to each individual.)
A blanket or wide-sweeping exception to the CSA, the government told Panner, would mean that “the DEA’s ability to enforce the [Controlled Substances Act] through the closed regulatory system…would be seriously inhibited.”
Judge Panner denied the government’s request in a document dated June 23rd, 2009, saying that the government “has already lost its battle for a closed regulatory system.” He pointed to the Supreme Court’s unanimous decision in O Centro, which characterized the government’s position, having failed to demonstrate harm from ayahuasca use, as saying that “If I make an exception for you, I’ll have to make one for everybody.” But judicial exceptions to laws on a case-by-case basis is exactly what the Religious Freedom Restoration Act requires, Judge Panner noted. And the Supreme Court decision made it clear that the Controlled Substances Act was not beyond the reach of RFRA.
Concluding the legal justification of his decision, Judge Panner declared that he found “that this court’s authority under RFRA to create exceptions to the Controlled Substances Act necessarily includes the authority to create exceptions to the DEA regulations that implement the Act.”
Judge Panner went further, however, chiding the government for its extremely inflexible approach to the Oregon case (and, one imagines, for its similar approach in the UDV’s case in New Mexico, especially given that some of the same government lawyers are working both cases). “Many of the issues the government raises in its motion,” he noted, “could have been resolved through discussions with [the UDV].”
The government’s appeal was not surprising if you consider that it has continued to appeal both ayahuasca cases despite never getting any court, at the district, circuit, and Supreme Court levels to agree with its central arguments.
On the other hand, as Jonathan Goldman, the leader of the Church of the Holy Light of the Queen noted in a recent podcast interview with Martin Ball of the Entheogenic Evolution, the government surely knows that it is raising the stakes in appealing this decision. Because the Ninth Circuit covers all of California, Oregon, Washington, and Hawaii, among other western states, losing an appeal at that level would expand the reach of the precedent set by the case to areas with numerous similar ayahuasca-using churches.
Although it seems likely that the government will continue to argue that all DEA regulations may legally be applied to the Church of the Holy Light of the Queen, we won’t know their precise arguments until the government’s first brief, due to the court December 7th, is available.