Sunday, March 22, 2009

[Good News 1]

I MEAN GREAT NEWS

US District Judge Owen Panner has released his decision. Santo Daime is now free in Oregon. The conclusions were so supportive that there is speculation that the government will not appeal this decision and that it will become a legal precedent beyond Oregon.

A huge bow of gratitude to all the people who risked imprisonment and their reputations to achieve
this victory for Santo Daime and religious freedom.

The full text of Judge Panner's decision follows.




IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CHUCH OF THE HOLY LIGHT OF
THE QUEEN, et al.,


Plaintiffs,
v. F

MICHAL B. MUKASEY, et al.,
Defendants.


The issue is whether plaintiffs, who are followers of the
Brazilian Santo Daime religion, are entitled to an exemption
from the Controlled Substances Act to import and drink their
sacrament, Daime tea. Because Daime tea contains the
hallucinogen DMT, which is a Schedule I controlled substance,
the federal government contends that it may prohibit
plaintiffs i possession and use of Daime tea regardless of its
use as a sacrament in plaintiffs J religion.

Guided by the unanimous decision of the United States
Supreme Court in a very similar case, Gonzales v. 0 Centro
Espírita Beneficente União do Vegetal, 546 U. S. 418 (2006) (UDV
III), I conclude that the Religious Freedom Restoration Act, 42
U.S.C. §§ 2000bb to 2000bb-4, requires that plaintiffs be
allowed to import and drink Daime tea for their religious
ceremonies, subject to reasonable restrictions. I will enter
a judgment and permanent injunction.

These are my findings of fact and conclusions of law after
the court trial. Fed. R. Civ. P. 52 (a)

FINDINGS OF FACT

I. The Plaintiffs

There are about 80 active members of the Santo Daime
church living in Oregon. The plaintiff Church of the Holy
Light of the Queen (CHLQ) in Ashland has about 40 active
members. CHLQ oversees a small satellite church in Bend with a
few members.

Plaintiff Jonathan Goldman is CHLQ i s spiritual leader or
lIpadrinho. " Goldman has been studying the Santo Daime religion
for 21 years, traveling frequently to Brazil to receive
instruction from church leaders. He has learned Portuguese to
understand the Santo Daime hymns that constitute church
doctrine. Goldman has been an initiate of the Santo Daime
church for almost 19 years. He founded CHLQ in 1993 with
authorization from the Santo Daime mother church in Brazil.

I find that Goldman's testimony is credible. His conduct
over the years shows his sincerity and dedication to CHLQ and
its members.

There is a separate Santo Daime church in Portland, called
Céu da Divina Rosa (Church of the Divine Rose), with about 25
active members. The Portland church is led by plaintiff
Alexandra Bliss Yeager. I find Bliss-Yeager's testimony to be
forthright and honest.

The four remaining plaintiffs, Jacquelyn Prestidge, Gathel
Scott Ferguson, Miriam Ramsey, and Mary Row, M.D., are active
members of CHLQ. I credit the testimony of these plaintiffs
and the other church members who testified. These witnesses
appear to represent a reasonable cross-section of church
members. Many CHLQ members did not want to testify because
they feared repercussions if their membership in a
controversial church became public.

II. The Santo Daime Religion

The Santo Daime religion has its origins in the jungles
and rainforests of South America. For many centuries
indigenous tribes of the Amazon and Orinoco river basins have
brewed a psychoactive drink from a vine, Banisteriopsis caapi,
which they use as a medicine and in religious rituals. Both
the vine and beverages brewed from the vine are called
"ayahuasca," which means "vine of souls" or "vine of the dead."
As the name implies, ayahuasca is believed to allow
communication with the spirit world.

According to Santo Daime lore, the religion's founder, an
Afro-Brazilian man named Raimundo Irineu Serra, worked as an
itinerant rubber tapper and guard in the remote Amazon region
of northern Brazil when he met a shaman who taught him about
ayahuasca. Irineu, now known as Master Irineu, had visions of
a woman who called herself the Queen of the Forest, whom he
later identified as the Virgin Mary. The woman instructed him
to start a new religion using ayahuasca as its sacrament,
telling him that ayahuasca should be called "Daime," a
Portuguese word meaning "give me," as in the prayer, "give me
light," "give me strength," "give me wisdom."

Santo Daime is a syncretic religion, blending elements of
Catholicism with indigenous Amazonian and African beliefs.
Followers of the Santo Daime religion believe that Daime tea is
the blood of Christ, analogous to wine in the Catholic
Communion. They also believe that Daime tea itself is a holy
being of great power. Daime tea is consumed during all Santo
Daime services. CHLQ cannot survive as a viable church without
the Daime tea.

Although ayahuasca generally may be brewed with a variety
of different plants, the Santo Daime religion requires that
Daime tea be brewed from only the B. caapi vine (which
plaintiffs call JagUDe), and leaves of the shrub Psycnotria
viridis (which plaintiffs call Rainha). If consumed orally,
digestive enzymes destroy the DMT in P. viridis leaves before
the DMT can take effect. In Daime tea, however, the harmla
alkaloids in the B. caapi vine temporarily inhibit digestive
enzymes, allowing DMT in the P. viridis leaves to reach the
bloodstream and become psychoactive. Daime tea i s synergistic
action is complex and not yet fully understood.

Following Master Irineu's death in 1971, Santo Daime split
into different groups. CHLQ is affiliated with the Santo Daime
church started in 1974 by Sebastião Mota de Melo (known as
Padrinho Sebastião). When Padrinho Sebastião died in 1990, he
was succeeded by his son, Alfredo Gregorio de Melo. De Melo
has overseen the growth of the Santo Daime church in Brazil,
and the opening of branch churches in the United States, Japan,
and Europe.

The head office of the Santo Daime church, which is called
Centro Eclectico da Fluente Luz Universal Raimundo Irineu Serra
(CEFLURIS), authorizes and supervises the churches in Ashland
and Portland. CEFLURIS is responsible for brewing the Daime
tea and shipping it to CHLQ in Ashland and to the Portland
church. CHLQ is responsible for distributing Daime tea to the
satellite group in Bend.

The Brazilian government, after studying the Santo Daime
religion and the effects of Daime tea on church members, has
recognized the Santo Daime church as a legitimate religion and
permits sacramental use of Daime tea. The Catholic Church in
Brazil considers Santo Daime to be a valid religion and treats
the Santo Daime church as a full partner on humanitarian and
environmental issues. Santo Daime is also recognized as a
legitimate religion in Spain and the Netherlands.

The Brazilian government has recognized another syncretic
ayahuasca-based religion, the União do Vegetal (UDV) church.
The UDV church, which was founded in 1961, differs somewhat
from Santo Daime in doctrines and practices, but the UDV's
sacrament, called nhoascan (the Portuguese transliteration of
ayahuasca), is identical to Daime tea, and hoasca is consumed
only during church ceremonies.

Defendants emphasize that during the late 1970s, Padrinho
Sebastião briefly condoned the ritual use of marijuana, which
he called Santa Maria (Holy Mary). Brazilian authorities did
not approve the new sacrament, and the Santo Daime church has
affirmed that the Daime tea is the church's only sacrament and
that the church does not permit ritual use of marijuana.

Goldman testified that Padrinho Sebastiãoi a simple,
illiterate man who venerated all plants, was persuaded to
condone the use of marijuana while he was living in a tiny
isolated,community in the jungle. Goldman testified that CHLQ
has never permitted marijuana use because Daime tea is CHLQ's
only sacrament. CHLQ discourages the use of drugs, including
alcohol and marijuana, especially during the days before a CHLQ
"work n when Daime tea will be consumed. There is no evidence
that marijuana has been a part of CHLQ practice.

Defendants point out that when federal agents raided
Goldman's house in 1999 to confiscate a shipment of Daime teai
they also seized an unspecified amount of marijuana from
Goldman's bedroom. Plaintiffs state in a brief that the
marij uana belonged to Goldman i s wife, who was using it, for
medical purposes. Reply Br. 10 n.9. At trial, Goldman
testified that he was aware of the marijuana, but he did -not
give any explanation for its presence. Regardless of why
marijuana was in Goldman's bedroom nearly ten years ago, a
spiritual leader's possible personal failings should not
discredit the entire church.

Defendants also note that a very small minority of CHLQ
members stated on intake questionnaires that they occasionally
smoked marijuana, although they were trying to quit. This does
not reflect on CHLQ itself or on the majority of church
members.


Federal agents also claimed to have seized a small amount of
bufotenine, a hallucinogenic drug derived from animal secretions.
Goldman testified that he had no knowledge of bufotenine or its
presence in his house, and that he had never heard of bufotenine
until learning about it through the discovery process a few
months ago.

III. Events Leading to this Litigation

After Goldman's arrest and the seizure of Daime tea in
1999, plaintiffs attempted through counsel to negotiate an
agreement with the U. S. Department of Justice. The Department
refused to consider a religious exemption for plaintiffs. See
PIs. i Ex. 44.

Plaintiffs were more successful with the state of Oregon.
In 2000, the Oregon Board of Pharmacy determined that CHLQ' s
religious use of Daime tea was a Rnon-drug" use and therefore
not subject to state drug laws and regulations. Since then,
Daime tea has enjoyed a status under Oregon law similar to the
status of peyote when used as a sacrament by the Native
American Church.

At about the same time as the raid on Goldman i shouse,
federal agents seized hoasca from a UDV branch church i~ Santa
Fe, New Mexico. Later that year, the New Mexico UDV church
brought an action in U. S. District Court, seek.ing inj unct i ve
relief. In 2002, U. S. District Court issued a preliminary
injunction, allowing the UDV church to import and use hoasca in
religious ceremonies, subj ect to reasonable conditions. Q
Centro Esp!rita Beneficiente união do Vegetal v. Ashcroft, 282
F. Supp. 2d 1236 (D. N.M. 2002) (UDV I), aff'd, 389 F.3d 973
(10th Cir. 2004) (en banc); see Pis. i Ex. 20 (copy of the UDV
preliminary injunction). The Supreme Court upheld the
preliminary injunction. Gonzales v. 0 Centro Espfrita
Beneficente União do Vegetal, 546 U.S. 418 (2006). As of now,
a final judgment has not been issued in the UDV litigation.

After Goldman's arrest in 1999, plaintiffs decided to
practice their religion in secret, so they stopped keeping
records of the Daime tea supply and of church activities. In
2006, after the Supreme Court's decision in the UDV case,
plaintiffs resumed their record keeping. Plaintiffs brought
this action in September 2008.

XV. Health Effects of Daime Tea

The parties dispute the extent of the danger posed by the
consumption of Daime tea during church ceremonies. There is no
question that Diame tea could be dangerous if used improperly.
Almost any substance can be toxic under the right conditions.

The Santo Daime church brews Daime tea in Brazil during art
elaborate religious ritual. Men gather the woody B. caapi vine
and pound it for hours with mallets, while women collect and
clean the P. viridis leaves. The shredded vine is boiled for
many hours, constantly tended. P. viridis leaves are not added
until boiling is nearly complete because the DMT dissolves
rapidly.

The resulting tea is a reddish brown liquid, with a very
unpleasant bitter taste. Church members usually drink between
45 to 150 milliliters of Daime tea during ceremonies, enough to
provide 15-60 milligrams of DMT, a small, barely effective
amount. See Gerule Am. Statement at 8.

Users may experience anxiety and discomfort soon after
drinking Daime tea. In perhaps a third of users, Daime tea
initially causes nausea and vomiting. It less frequently
causes diarrhea. Church members view these ostensibly
unpleasant effects as a beneficial purging or cleansing. Daime
tea may also cause mild increases in heart rate (5 to 15 beats
per minute) and blood pressure.

Daime tea's psychoactive effects begin about 20 to 30
minutes after ingestion, and last 1 to 2 hours. The body
eliminates DMT in about 3 to 4 hours.

As Daime tea takes effect, members may sit quietly with
eyes half-closed. Users describe the experience as dream-like.
They may experiènce visual effects, although not true
hallucinations (i.e., the person is aware that the effect is
not real) i alterations in the perception of time and space; and
intense emotions, including euphoria. Users report profound
insights into their personal problems.

Goldman states that in all his years with CHLQ, he has not
observed anyone who suffered serious physical or mental harm
caused by Daime tea. No apparent ill effects were found in
Brazilians who had regularly consumed hoasca during religious
services for more than thirty years. Defs. i Ex. 1169 at 40.
Several of plaintiffs' experts suggest that Daime tea or hoasca
may actually benefit church members mental and physical
health, although these expe~ts caution that larger and more
rigorous scientific studies are necessary to confirm possible
health benefits.

Defendants have not presented evidence that Daime tea is
addictive or causes long-term health problems. Defendants i
experts cite studies of LSD, pure DMT, or other powerful
hallucinogens. See. e.g., Frankenheim Statement at 8, 11;
Tella Statement at 6 (comparing the DMT in ayahuasca to pure

I find studies of LSD and pure injected DMT are
only marginally relevant in evaluating the risks of consuming
Daime tea in a religious ceremony. LSD is one of the most
potent and powerful hallucinogenic drugs known, whose effects
may last 8 to 12 hours. When DMT is inj ected, smoked, or
inhaled, it is far more powerful, although shorter-acting, than
DMT consumed in Daime tea. One researcher has found that the
harmala alkaloids in hoasca and Daime tea appear to render DMT
"far less potent." Defs.' Ex. 1122 at 176.

In 2006, plaintiffs commissioned a study of CHLQ members
by Dr. John H. Halpern,. a psychiatrist. Dr. Halpern has
written extensively on use and abuse of hallucinogenic drugs,
including a paper on the health of members of the Native
American Church who consume peyote as a sacrament. See Defs. '
Ex. 1154 (John H. Halpern, et al., Psychological and cognitive
effects of long-term peyote use among Natiye Americans (2005)).
Dr. Halpern's peer-reviewed report on CHLQ, published in August
2008, is apparently the only such study of Santo Daime church
members in the United States. ~ Defs.' Ex. 1103 (John H.
Halpern, et al., Evidence of health and safety in American
members of a religion who use a hallucinogenic sacrament).
Although Dr. Halpern frankly acknowledges the study's
limitations, I find the stndy is relevant and useful in
evaluating the health effects of Daime tea on plaintiffs.

Dr. Halpern interviewed 32 of CHLQ' s 40 active members.
The interviewees i experience ranged from 20 to 1300 Daime tea
ceremonies. Dr. Halpern found that the church members
interviewed generally were mentally healthy and appeared to
have benefitted from their participation in CHLQ services.

Five members who reported past alcohol dependence, and one
who reported past alcohol abuse, attributed their recovery and
continued abstinence from alcohol to attending CHLQ services.
This is in accord with a research paper on members of Santo
Daime and UDV, which noted that "dedicated members of these
modern religions typically lose their interest in the habitual
use of alcohol, cocaine, and other addictive substances."
Defs.' Ex. 1118, at 245 (J. C. Callaway, et al.,
Pharmcokinetics of Hoasca alkaloids in healthy humans)) .

About 60% of CHLQ members interviewed reported histories
of psychiatric conditions. Dr. Halpern stated that the study
suggests that participation in the Santo Daime church "is not
proving harmful even to those members most susceptible to
mental health problems." Defs.' Ex. 1103, at 20. Dr. Halpern
cites a double blind study of Brazilian Santo Daime members
which noted acute amelioration of anxiety and panic in church
ceremonies. Id. at 16.

Defendants i experts raise the possibility that Daime tea
could cause acute or long-term psychosis. See Frankenheim
Statement at 11. However, defendants rely more on speculation
than empirical evidence to support this assertion. For
example, one author, Robert Gable, systematically reviewed the
available scientific literature on risks of ingesting hoasca
and Daime tea. Defs. i Ex. 1089 (Robert Gable, Risk assessment
of ritual use of oral dimethyltryptamine (DMT) and harmala
alkaloids (2007)). Gable cited a study of UDV members in
Brazil which found that out of an estimated 25,000 servings of
hoasca, there were between 13 and 24 cases in which hoasca may
have contributed to a psychotic incident. Gable concluded that
the "reported UDV rate of psychotic episodes under 1% suggests
that the use of hoasca is not a triggering event for sustained
psychosis. Many or most of the UDV psychotic episodes were
transient in nature and resolved spontaneously. n Id. at 30.
Defendants' expert Alexander Walker argues that Gable minimizes
the risk of psychosis because the cited study covered 25,000
uses of hoasca, not 25,000 different persons using hoasca.
Even so, the study still indicates only a small risk that Daime
tea will cause a transient psychotic episode i and an even
smaller risk that Daime tea will cause long-term psychosis.

Plaintiffs' expert George Gerding states that set (i. e.
the drug user's purpose and expectations), and setting are
important to determining how a drug will affect a person. I
find that the set and setting fostered by CHLQ reduce the
potential danger posed by Daime tea. Plaintiffs i screening and
orientation process attempts to ensure that when applicants
first drink Daime tea during a church service, they do so with
the proper frame of mind.

The Santo Daime church forbids proselytizing. Potential
new members usually learn about CHLQ through word of mouth from
friends or relatives. Applicants generally must have a sponsor
who is already a church member. If the sponsor's answers to
questions about the applicant are acceptable, the applicant is
. given reading material about the Santo Daime religion. The
applicant is then screened and receives an orientation.

Goldman describes Daime tea as an arduous spiritual path
that is not suitable for most people. In its scréening
process, CHLQ attempts to select only those who are serious
about the Santo Daime religion, and to turn away would-be
recreational users or thrill-seekers. CHLQ demands a serious
commitment of time and energy from members, requiring
attendance three or four times per month at services lasting
several hours and sometimes almost all night. Members are
expected to learn some Portuguese so that they can understand
the hyms sung at most services.

Plaintiffs also attempt to screen persons who might be too
weak physically, or too unstable mentally, to drink Daime tea
safely. Plaintiffs 'screening process is not perfect, but
their track record indicates it has worked well enough. An
applicant occasionally may be allowed to participate in a CHLQ
work within a day of the initial interview. However, the
orientation is usually a longer process.

Plaintiffs give applicants detailed medical questionnaires
to determine whether an applicant has a medical condition or is
taking drugs, such as antidepressants, that might conflict with
drinking Oaime tea. CHLQ has prepared a seven-page list of
drugs that might cause problems in combination with Daime tea.
CHLQ periodically updates the list. CHLQ also advises members
to avoid certain foods, such aged cheese, and drink, such as
red wine, before drinking Daime tea.

Plaintiffs ask applicants about psychiatric histories,
criminal records, and drug and alcohol abuse. Goldman
testified that if an applicant has a history of psychiatric
problems, plaintiffs try to determine whether person might
benefit from the Daime tea. If a screener determines that an
applicant needs the type of attention or environment that the
church cannot provide, the screener will turn the applicant
away no matter how enthusiastic the applicant is.

Defendants criticize plaintiffs for not conducting a more
formal interviewing process. I note that the Native American
Church does not request medical information before allowing new
applicants to participate in services, even though the peyote
consumed during NAC religious ceremonies contains mescaline, a
hallucinogen comparable in strength to the DMT in Daime tea.
The application form for membership in the Native American
Church seeks only name, address, phone number, tribe, and
tribal enrollment. Pis.' Ex. 40.

Turning to setting, CHLQ permits plaintiffs to drink Daime
tea only in a controlled and supportive religious ceremony.
Access to the Daime tea is limited to three or four church
leaders. The spiritual leader who conducts the service
dispenses Daime tea individually to each worshiper.
Consumption of Daime tea outside of the church is a serious
sacrilege.

During services, men and women sit separately. Members
generally are required wear modest white clothing. They are
forbidden to leave the ceremony once the service begins.

The church designates experienced church members as
"guardians" to monitor the congregation during services and
tend to members, particular new ones, who are suffering from
nausea, diarrhea, or other discomforts. The spiritual leader
conducting the ceremony circulates among the congregation to
counsel those who appear anxious or upset. Three church
members are physicians and two are registered nurses, so a
person with medical training is often present during services.

On rare occasions, plaintiffs have permitted children to
drink Daime tea, but only a token or symbolic amount. There is
no evidence that the church allows children to drink enough
Daime tea to experience psychoactive effects. Given the tea's
repulsive and nauseating taste, it seems unlikely that a child
would want more than a sip.

Defendants also raise the possibility that a fetus may be
harmed if a pregnant woman ingests Daime tea. Defendants cite
no evidence that pregnant CHLQ members have consumed Daime tea,
or that any harm has occurred. I note that in the Brazilian
studies UDV church, pregnant women routinely drink hoasca, and
have not reported harm. See, e.g., Defts.' Ex. 1088 at 11
(Dennis J. McKenna, et al., The Scientific investigation of
Ayhuasca: A Review of Past and Current Research) ("most n women
drink hoasca "throughout pregnancy and lactation").

Defendants argue that consuming Daime tea could be fatal.
However, defendants have not presented evidence of that Daime
tea or hoasca has caused any deaths, although there
theoretically is a toxic dose. Plaintiffs i experts state that
the risk of a toxic overdose is minimized by the emetic effect
of Daime tea.

In Brazil, t~ousands of people consume hoasca or Daime tea
several times each month. The government of Brazil would not
allow the UDV and Santo Daime churches to operate if there was
evidence that Daime tea or hoasca was killing church members.
One researcher recently noted that, to his knowledge, "there
have been no deaths caused by hoasca or any other traditional .
ayahuasca brews." Defs.' Ex. 1089 at 29.

Defendants submit evidence regarding two deaths, neither
of which had anything to do with Daime tea or hoasca. One
death reportedly occurred after the victim ingested an unknown
potion that contained a very powerful drug, 5-methoxy-N,N-
dimethyltryptamine, which is not an active component of Daime
tea. The authors of the report admitted that "the composition,
dosage, and precise dosing timeframe are unknown.". Pls.' Ex.
46 at 407. . Antihistamine was also found in the victim's
system, which could have contributed to the death by
suppressing the vomiting reflex.

The other death cited by defendants is also irrelevant.
The autopsy report concluded that the victim, a 71-year-old
woman, had died from "acute nicotine intoxication" after being
gi ven repeated doses of a brew containing tobacco leaves.

Defendants raise other possible dangers, based largely on
extrapolation from studies of òther drugs and on speculation.
For example, defendants assert that Daime tea could cause
"central serotonin syndrome" if a person is also taking an
antidepressant such as Prozac. Defendants have no evidence
that drinking Daime tea or hoasca has caused this syndrome. In
any event, Prozac and similar drugs are on plaintiffs i list of
drugs that should be taken cautiously, if at all, with Daime
tea.

V. Diversion

Defendants raise the possibility that plaintiffs will
allow the diversion of Daime tea to non-church members,
including recreational users. Defendants cite the testimony of
DEA Deputy Directory Denise Curry, who states that the amount
of Daime tea confiscated from Goldman in 1999 indicated that
CHLQ possessed more tea than needed for its members.
However, defendants presented no evidence that plaintiffs have
ever allowed Daime tea to be used without the church is
authorization. Because plaintiffs believe that Daime tea is a
sacrament, use of Daime tea outside of the church violates
church doctrine.

Nor have defendants presented evidence of a viable market
for Daime tea. DMT itself is not a common drug of abuse.

Except when plaintiffs practiced their religion in secret
from 1999 to 2006, they have kept detailed perpetual logs
tracking the supply of Daime tea. Only three or four leaders
of each church have access to the supply of Daime tea.

CONCLUSIONS OP LAW

I. The Religious Preedom Restoration Act

The Religious Freedom Restoration Act (RFRA) prohibits the
federal government from nsubstantially burden(ingl a person's
exercise of relig!on even if the burden results from a rule of
general applicability." 42 U.S.C. § 2000bb-l(a). RFRA allows
the federal government to n substant ially burden a person IS
exercise of religion only if it demonstrates that application
of the burden to the person (1) is in furtherance of a
compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental
interest. n ~ § 2000bb-l (b) Case 1 :08-cv-03095-PA Document 160

The Ninth Circuit recently explained that II (tlo establish
a prima facie RFRA claim, a plaintiff must present evidence
sufficient to allow a trier of fact rationally to find the
existence of two elements. First, the activities the plaintiff
claims are burdened by the government action must be an
i exercise of religion.' Second, the government action must
i substantially burden i the plaintiff i s exercise of religion."
Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1068 (9th
Cir. 2008) (en banc) (quoting 42 U.S.C. § 2000bb-1(a)),
petition for cert. filed, 77 U.S.L.W. 3412 (Jan. 5, 2009) (No.
08-846).

If a plaintiff meets the initial burden, the burden then
shifts to the government to prove "that the challenged
government action is in furtherance of a 'compelling
governmental interest i and is implemented by i the least
restrictive means. '" ~ (quoting 42 U. S.C. § 2000bb-l (b) ) .
If the government cannot meet its burden under this strict
scrutiny test, "the court must find a RFRA violation.

II. Plaintiffs Have Met Their Burden of Proof

Plaintiffs have established their prima facie claim by
more than a preponderance of the evidence. Plaintiffs have
established that they are sincere in their religious beliefs,
and that the ceremonial use of the Daime tea is essential to
their religion.

It is obvious that prohibiting the use of Daime tea would
substantially burden the exercise of plaintiffs i religion. To
paraphrase the California Supreme Court's observation about the
role of peyote in the Native American Church, the ceremonial
use of Daime tea is "the sine qua non of (plaintiffs' i faith.
It is the sole means by which (plaintiffs) are able to
experience their religion; without (Daime teal (plaintiffsl
cannot practice their faith. n People v. Woody, 61 Cal. 2d 716,
725, 40 Cal. Rptr. 69, 394 P.2d 813, 820 (1964).

In the UDV litigation, at least at the preliminary
injunction hearing, the government conceded that the UDV
plaintiffs had made a prima facie claim under RFRA. Here¡
however, defendants challenge plaintiffs' sincerity, citing
plaintiffs' decision to conduct ceremonies in secret until the
Supreme Court ruling in favor of the UDV plaintiffs.
Plaintiffs' secrecy does not show a lack of sincerity.
Instead, it shows that plaintiffs remained committed to
practicing their religion despite the threat of criminal
prosecution and loss of professional status.

IIX. Defendants Have Not Met Their Burden

A. Compelling Interest

The government asserts that it has shown compelling
interests in prohibiting the Daime tea: protecting the health
of plaintiffs and others who drink Daime tea; and preventing
Daime tea from being diverted to recreational users.
Defendants also assert an interest protecting the integrity of
the DEA i S process for regulating controlled substances.

I conclude that the government has failed to show that
these interests justify prohibiting Daime tea outright. These
interests will addressed through the terms of the injunction I
will issue governing plaintiffs' use of Daime tea.

Generally speaking, the government may be said to have a
compelling interest in regulating any drug listed on Schedule I
of the Controlled Substances Act. Of course Daime tea could be
dangerous if misused. However, RFRA requires a more specific
inquiry into the government's compelling interest. See YJ,
546 U. S. at 430-31. Here, the evidence shows that Daime tea is
consumed in a ritual setting by church members who have been
screened for physical or mental problems, and for potential
drug conflicts.

The government argues that Daime tea is inherently unsafe
because it is not, produced in an antiseptic laboratory with
synthetic ingredients. The government correctly points out
that Daime tea varies in strength. Plaintiffs do not contend
that Daime tea is a uniform product, but there is no evidence
that natural variations in the tea have caused problems. This
concern is easily addressed by allowing the DEA to test the
Daime tea periodically.

The government cites the potential danger to children.
There is no evidence that children were harmed when given token
amounts of Daime tea. When Daime tea is not being dispensed at
church services, it is kept under lock and key.

The government raises the specter of danger to pregnant
women or to fetuses. There is no evidence that any such harm
has occurred in Oregon or elsewhere.

The government also asserts a compelling interest in
preventing diversion to recreational users. The government has
not presented evidence that there is a significant market for
Daime tea. The government also has not presented evidence that
plaintiffs have allowed the diversion of a single drop of Daime
tea. This is an issue best addressed through reasonable
guidelines for storing and inventorying plaintiffs i supply of
Daime tea.

The government argues that it has a compelling interest in
maintaining the integrity of the DEAl s administrative process
for approving religious exemptions to the Controlled Substances
Act. The Supreme Court rejected this argument in UDV III,
stating RFR "piainly contemplates that courts would recognize
exceptions to how the law works. n 546 U. S. at 434 (original
emphasis).

B. Prohibition Is Not the Least Restrictive Means

The government has failed to show that outright
prohibition of the Daime tea is the least restrictive means of
furthering its interests. Here, the opinions issued by the
trial and appellate courts in the UDV litigation are
persuasive. The district court, after holding extensive
hearings, concluded that the evidence on health risks caused by
drinking hoasca were "in equipoise, n meaning that the
government had failed to carry its burden under RFRA. Many of
the same experts for the government here also testified in the
UDV litigation. Research completed since the district court's
decision in 2002, including Dr. Halpern's study of thèse
plaintiffs, further undermines the government's arguments for
complete prohibition. I also find it persuasive that the state
of Oregon considers CHLQ i S use of the Daime tea in religious
ceremonies to be a sacramental use that is not subject to
regulation.

The Native American Church's use of peyote in religious
ceremonies is instructive on the feasibility of allowing
plaintiffs to continue the religious use of Daime tea. The NAC
has about 300,000 members. After an applicant completes a
simple application form, he or she may participate in
ceremonies involving the consumption of peyote. There is no
evidence that the NAC i s distribution and use of peyote have
resulted in any significant diversion to recreational users, or
serious health effects to NAC members.

Here, the Santo Daime church in Oregon has fewer than 100
members. The DEA, which monitors the NAC i S use of peyote,
should be capable of shouldering the administrative burden of
monitoring the importation and distribution of Daime tea in
Oregon. A permanent injunction wiii be entered promptly
consistent with this Findings of Fact and Conclusions of Law.

I need not address plaintiffs i claim under the Equal
Protection Clause of the Fifth Amendment.

CONCLUSION

Plaintiffs are entitled to relief under RFRA. Judgment
will be entered for plaintiffs in accordance with this opinion.

IT is SO ORDERED.

DATED this 18th day of March, 2009.


Owen Panner, U.S. District Judge



6 comments:

Lane said...

Lou... That is good news indeed! I am so proud to live in Oregon! You seem to be shining bright!
Lane

Cher said...

Hi Lou,
Thank you ever so much for publishing this long awaited for decision! Viva the Oregon churches and their unwaivering dedication!
Viva the divine intelligence of the Green Nation!
And a big Viva the Judge Owen Panner!
Many Blessings,
Cher Louise

Mojo from Enola Hill said...

Dear Lou,

Thanks so much for posting this! Looking forward to seeing you again sometime before too long.

Peace & love,

Anonymous said...

P.S. -- Judge Panner made the first (and only) great judicial decision for Enola Hill in 1991.

Mojo

eyeconartist said...

I live in Portland and am interested in the possibility of joining Céu da Divina Rosa, but can find no information about the location of their meetings. I realize that they still need to be careful about whom they open their doors to, but is it still necessary for them to hold services in total secrecy since they won the legal battle? I'm sincere in my quest, propelled by more than mere curiosity. Not much chance of being invited if I can't meet any current members.

Lou Gold said...

Hey eyeconartist,

Leave your email here and perhaps someone will respond to you.

lou