Faith-Based Initiative

As a result, UDV's attorney, Nancy Hollander of Albuquerque, has won a civil lawsuit and two consecutive appeals against the federal government, arguing that the raid violated the group's constitutional rights. But, after five years of waiting, the group still can't have their tea.

The 30 gallons were seized because they contained naturally occurring traces of dimethyltryptamine, known as DMT, a hallucinogen that is illegal in the United States. The story begins after the tea was brewed in Brazil, then the shipment arrived in California and was marked by federal officials as possible contraband. DEA agents then acquired a search warrant and raided Bronfman's office, seizing thousands of church documents, the 30 gallons of tea and a personal computer, Hollander said.

“I think the whole thing was a violation of his constitutional rights,” said Hollander on Monday, while the case awaits a ruling perhaps as early as this week from the U.S. Supreme Court. “The warrants they had claimed to support what they were looking for—people selling drugs. But they didn't find any of that.”

Hollander filed civil suit against the Justice Department for violating UDV's First Amendment rights and the federal Religious Freedom Restoration Act. The group, described in court documents as a Christian religious organization founded in Brazil with approximately 140 members in the U.S., won their case in U.S. District Judge James Parker's Albuquerque courtroom in 2002.

The decision was upheld in September 2003, following a split ruling by a three-judge panel from the 10^th U.S. Circuit Court of Appeals in Denver. Then the Justice Department appealed to the full, en banc, 13-member 10^th Circuit Court, which ruled, again, in UDV's favor last month by an 8-5 majority.

In response, the Justice Department asked the Supreme Court to intervene last week to continue denying UDV access to its tea, which can only be made from plants found in the Amazon River Basin, according to court records.

“People think you're sitting in a room seeing pink elephants bouncing around and that's not what happens,” said Hollander, referring to the tea's psychological effect. Although DMT is classified as a hallucinogen, in the religious usage Hollander said no hallucinations happen. “It's a combination of two plants with naturally occurring DMT. It's not a precise amount. The government says it's a controlled substance. What is controlled is synthetic DMT created in a laboratory. That's not how this occurs.”

Hollander said the church followers have no choice but to import the pre-brewed tea because its source doesn't grow well in the United States. “It would be huge quantities of plants and how would you ever get those through the department of agriculture?” she said.

While in the United States certain plants, such as peyote cactus or marijuana, are classified as a schedule one controlled substance, there are plants such as phalaris grass, a commonly used ground cover available at your local greenhouse, that contain natural amounts of DMT, said Hollander.

Compelling Interests

Because federal authorities recognize UDV as a bona fide religion, in order to prohibit the sacramental tea drinking, the Justice Department had to reveal “compelling interests” for intervening on the group's spiritual practices.

The Justice Department listed three items that qualified as compelling interests of the state. The first mentioned health concerns of the church members. However, Judge Parker ruled that the tea wasn't unhealthy in a religious context, although it reportedly has an unappealing taste and can cause nausea, vomiting or diarrhea.

The second item suggested that if the government permitted UDV to import the tea, then it's possible it could be diverted to illegal use. There was no evidence to support this claim either, according to Judge Parker's decision.

The third item involves an international treaty signed by the U.S. government and more than 100 other nations in 1971, referred to as the Convention on Psychotropic Substances. The treaty acknowledges DMT as a controlled substance, but does not mention any plants or organic derivatives of the substance as being illegal. The treaty also explicitly states that it cannot conflict with domestic law.

Since all three of these items have been effectively refuted in court, last month UDV filed a request in District Court to require the federal government to immediately comply with Judge Parker's ruling and allow them to practice their religion.

In response, Department of Justice lawyers promptly filed their own court papers saying the request should be denied and have now asked the U.S. Supreme Court for an opinion.

According to a recent report in the Albuquerque Journal, Justice Department attorneys argued that “the content, length, tone and divided nature of the en banc opinion underscore the existence of serious issues that defendants may wish to present to the Supreme Court.” The federal attorneys also continued to argue the U.S. would be harmed by “being in violation of an important international treaty,” according to the Journal report.

Still Waiting

Now, it appears the Supreme Court will be left to decide the matter, perhaps issuing a ruling as early as this week to decide whether UDV members can drink their tea temporarily, until the Court can issue a final ruling within 90 days. Of course, the Justices can decide not to hear the case, at which point, the lower court ruling stands.

A spokesman for the Justice Department in Washington, D.C., did not return Alibi phone calls, but Hollander has a theory why the government continues to press forward with the case.

“Because they think they are right and ignore everything the court says. They make the same arguments even if they lose. They say it could be dangerous, diverted, and in violation of a treaty, and when the courts tell them they are wrong, they keep appealing.”

According to news reports, Mr. Bronfman became involved with the church after visiting Brazil while doing philanthropic work. He is the scion of a prominent Canadian family that owned the Seagrams Corp., before Vivendi, a French company purchased it, for nearly $7 billion in 2001.