Ritual use of controlled substances

The three-judge panel of Tenth Circuit Court of Appeals has, by a 2-to-1 vote, reinstated a preliminary injunction issued by Judge James Parker of the U.S. District Court for New Mexico, but stayed pending appeal, in favor of the American branch of Uniao do Vegetal. The UDV is a Brazilian syncretic church that uses ayahuasca, a mixture including the hallucinogen DMT and various harmala alkaloids, as a sacrament.

The ruling, unless either the Tenth Circuit en banc or the Supreme Court stays it yet again, at will allow the UDV to resume its rituals, which have been suspended for more than two years since a Federal seizure of a shipment of the church’s ritual mixture.

The Tenth Circuit opinions are highly technical, turning largely on the question of what constitutes the status quo in determining whether a preliminary injunction is “mandatory” or “prohibitory” and thus the allocation of the burden of persuasion between the parties. But the result, if it stands, is pathbreaking: this is the first time that a court, acting under the Religious Freedom Restoration Act, has allowed the use of a controlled substance ritually outside the special case, long enshrined in regulation and now in statute, of peyote use in Native American rituals.

I testified as an expert witness for the UDV on the issue of the risks of diversion of the sacramental mixture to non-religious use. Since the case is ongoing (even if the preliminary injunction stands, the case-in-chief remains to be tried) I will refrain from comment on the decision, except to say that the District Court ruling and both the majority and dissenting opinions from the Circuit Court are excellent specimens of judicial prose, not at all painful for non-lawyers to read. In lieu of any substantive comment, I refer you to Eugene Volokh’s reflections, and to his scholarly article (linked to on his site) on the general question of religious exemptions from facially neutral laws of general applicability.

Judge Parker’s opinion is here.

The appellate decision and dissent are here:

10th cir opinion.pdf

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com