The 10th Circuit en banc, by a majority of 8 to 5, has affirmed the 2-1 decision of its own three-judge panel to affirm the grant by the District Court for New Mexico of a preliminary injunction allowing the UDV, which uses as a sacrament a potion containing DMT (a hallucinogen that is a Schedule I controlled substance), to pursue its religious practices without interference. The court also removed the stay it had placed on the preliminary injunction pending appeal.
The decision is subject to review by the Supreme Court, which might or might not take the case and which, if it did take the case, might or might not again stay the preliminary injunction. If the injunction remains in effect, the church will be able to hold its ceremonies in the U.S. for the first time in five years.
How Appealing has the full text of the very cursory per curiam opinion, along with both the dissent by the five-judge minority, the opinion of Judge Seymour and five colleages (agreeing with the result but disagreeing on an important procedural point) and the concurrence by Michael McConnell and one colleage, the only two judges of the thirteen who liked both the result and the procedural decision.
Much of the discussion is about the appropriate standard for the grant of a preliminary injunction; those interested in drug policy and religious freedom may want to skip over those sections to get to the meat.
As I appeared as an expert witness in the case, I probably shouldn’t offer any further comment.