10th Cir. stays district court order in RFRA / hoasca drug case

[Volokh, Eugene]

        This apparently happened on Dec. 12, but I just came across the
opinion online.  It's O Centro Espirita Beneficiente Uniao de Vegetal v.
Ashcroft, and here are some key excerpts:


        Although RFRA is incorporated into the CSA and must inform
treaty obligations, we grant the government's motion in this case for
two reasons. First, the district court's conclusion that the 1971 UN
Convention on Psychotropic Substances does not extend to hoasca is in
considerable tension with the language of that Convention, particularly
Article 1(f), defining "preparation" and Article 3, § 1 providing that
"a preparation is subject to the same measures of control as the
psychotropic substances which it contains ." Hoasca is plainly a
preparation containing DMT. As for the argument that plants cannot
constitute preparations, Article 32, § 4 permits "reservations
concerning these plants" for magical or religious rites, thereby
suggesting that plants are covered, although a reservation concerning a
plant (i.e., a substance contained in a plant) is possible. We are
unpersuaded that the Commentary or contrary opinions on the meaning of
the Convention are sufficient to override the plausible interpretation
of the Convention by the executive.

        Second, the district court's factual findings are in
considerable tension with (if not contrary to) the express findings in
the CSA that "any material, compound, mixture, or preparation which
contains any quantity of" DMT, 21 U.S.C. § 812 Schedule 1(c), "has a
high potential for abuse[,] ... has no currently accepted medical use in
treatment in the United States[,] ... [and] [t]here is a lack of
accepted safety for use of the drug or other substance under medical
supervision." 21 U.S.C. § 812(b)(1) (Schedule I required findings) . . .
.

        Courts have routinely rejected religious exemptions from laws
regulating controlled substances employing tests similar to that
required by RFRA. See United States v. Greene, 892 F.2d 453, 456-57 (6th
Cir.1989); Olsen v. DEA, 878 F.2d 1458, 1461-62 (D.C .Cir.1989); Olsen
v. Iowa, 808 F.2d 652, 653 (8th Cir.1986); United States v. Rush, 738
F.2d 497, 512-13 (1st Cir.1984); United States v. Middleton, 690 F.2d
820, 824 (11th Cir.1982); see also Employment Div. v. Smith, 494 U.S.
872, 905 (1990) (O'Connor, J., concurring). Even after enactment of
RFRA, religious exemptions from or defenses to the CSA have not fared
well. See United States v. Brown, 72 F.3d 134, 1995 WL 732803 (8th
Cir.1995); United States v. Jefferson, 175 F.Supp.2d 1123, 1131
(N.D.Ind.2001). Moreover, as noted by the government here, permission
for sacramental use of peyote was granted by Congress after enactment of
RFRA, suggesting Congressional doubts that RFRA was sufficient (alone)
to grant an exemption. Gov't Reply Br. at 9 (citing 42 U.S.C. § 1996a).
. . .

        The government suffers irreparable injury when its criminal laws
are enjoined without adequately considering the unique legislative
findings in this field. . . . . Furthermore, free exercise case law
pre-Employment Div. suggests that religious accommodations requiring
"burdensome and constant official supervision and management" are
especially disfavored. . . . .

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