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By Matthew Meyer
(*) Special to bialabate.net
On August 21st, 2009, the Department of Justice formally notified the United States Court of Appeals for the Ninth Circuit that it would appeal Judge Owen M. Panner’s March 18 ruling granting a permanent injunction to the Ashland, Oregon-based Church of the Holy Light of the Queen to import and use Daime tea (ayahuasca) in its religious rituals.
The government had already asked Judge Panner, following the decision, to amend it, arguing that the exemptions to the Controlled Substances Act that Panner set forth “swept too broadly, mistakenly enjoining the enforcement of numerous regulations that were not challenged in the Complaint and that have not been held to pose any burden on Plaintiffs’ exercise of religion.”
The government’s position in this case has lately resembled the stance it has taken in the O Centro case involving the União do Vegetal, where the government, having apparently lost the substantial points about the dangers ayahuasca use by the UDV might pose to its members and to society, has resorted to stonewalling by refusing to agree to a permanent, workable arrangement in negotiations with the UDV outside the court. Instead, the government has argued that the UDV must prove the same case for each and every DEA regulation that places an unreasonable burden on its religious practice. (These regulations include keeping track of the precise dose of the controlled substance—which is this case would be small amounts of DMT in the ayahuasca—given to each individual.)
A blanket or wide-sweeping exception to the CSA, the government told Panner, would mean that “the DEA’s ability to enforce the [Controlled Substances Act] through the closed regulatory system…would be seriously inhibited.”
Judge Panner denied the government’s request in a document dated June 23rd, 2009, saying that the government “has already lost its battle for a closed regulatory system.” He pointed to the Supreme Court’s unanimous decision in O Centro, which characterized the government’s position, having failed to demonstrate harm from ayahuasca use, as saying that “If I make an exception for you, I’ll have to make one for everybody.” But judicial exceptions to laws on a case-by-case basis is exactly what the Religious Freedom Restoration Act requires, Judge Panner noted. And the Supreme Court decision made it clear that the Controlled Substances Act was not beyond the reach of RFRA.
Concluding the legal justification of his decision, Judge Panner declared that he found “that this court’s authority under RFRA to create exceptions to the Controlled Substances Act necessarily includes the authority to create exceptions to the DEA regulations that implement the Act.”
Judge Panner went further, however, chiding the government for its extremely inflexible approach to the Oregon case (and, one imagines, for its similar approach in the UDV’s case in New Mexico, especially given that some of the same government lawyers are working both cases). “Many of the issues the government raises in its motion,” he noted, “could have been resolved through discussions with [the UDV].”
The government’s appeal was not surprising if you consider that it has continued to appeal both ayahuasca cases despite never getting any court, at the district, circuit, and Supreme Court levels to agree with its central arguments.
On the other hand, as Jonathan Goldman, the leader of the Church of the Holy Light of the Queen noted in a recent podcast interview with Martin Ball of the Entheogenic Evolution, the government surely knows that it is raising the stakes in appealing this decision. Because the Ninth Circuit covers all of California, Oregon, Washington, and Hawaii, among other western states, losing an appeal at that level would expand the reach of the precedent set by the case to areas with numerous similar ayahuasca-using churches.
Although it seems likely that the government will continue to argue that all DEA regulations may legally be applied to the Church of the Holy Light of the Queen, we won’t know their precise arguments until the government’s first brief, due to the court December 7th, is available.
(*) Special to bialabate.net
On August 21st, 2009, the Department of Justice formally notified the United States Court of Appeals for the Ninth Circuit that it would appeal Judge Owen M. Panner’s March 18 ruling granting a permanent injunction to the Ashland, Oregon-based Church of the Holy Light of the Queen to import and use Daime tea (ayahuasca) in its religious rituals.
The government had already asked Judge Panner, following the decision, to amend it, arguing that the exemptions to the Controlled Substances Act that Panner set forth “swept too broadly, mistakenly enjoining the enforcement of numerous regulations that were not challenged in the Complaint and that have not been held to pose any burden on Plaintiffs’ exercise of religion.”
The government’s position in this case has lately resembled the stance it has taken in the O Centro case involving the União do Vegetal, where the government, having apparently lost the substantial points about the dangers ayahuasca use by the UDV might pose to its members and to society, has resorted to stonewalling by refusing to agree to a permanent, workable arrangement in negotiations with the UDV outside the court. Instead, the government has argued that the UDV must prove the same case for each and every DEA regulation that places an unreasonable burden on its religious practice. (These regulations include keeping track of the precise dose of the controlled substance—which is this case would be small amounts of DMT in the ayahuasca—given to each individual.)
A blanket or wide-sweeping exception to the CSA, the government told Panner, would mean that “the DEA’s ability to enforce the [Controlled Substances Act] through the closed regulatory system…would be seriously inhibited.”
Judge Panner denied the government’s request in a document dated June 23rd, 2009, saying that the government “has already lost its battle for a closed regulatory system.” He pointed to the Supreme Court’s unanimous decision in O Centro, which characterized the government’s position, having failed to demonstrate harm from ayahuasca use, as saying that “If I make an exception for you, I’ll have to make one for everybody.” But judicial exceptions to laws on a case-by-case basis is exactly what the Religious Freedom Restoration Act requires, Judge Panner noted. And the Supreme Court decision made it clear that the Controlled Substances Act was not beyond the reach of RFRA.
Concluding the legal justification of his decision, Judge Panner declared that he found “that this court’s authority under RFRA to create exceptions to the Controlled Substances Act necessarily includes the authority to create exceptions to the DEA regulations that implement the Act.”
Judge Panner went further, however, chiding the government for its extremely inflexible approach to the Oregon case (and, one imagines, for its similar approach in the UDV’s case in New Mexico, especially given that some of the same government lawyers are working both cases). “Many of the issues the government raises in its motion,” he noted, “could have been resolved through discussions with [the UDV].”
The government’s appeal was not surprising if you consider that it has continued to appeal both ayahuasca cases despite never getting any court, at the district, circuit, and Supreme Court levels to agree with its central arguments.
On the other hand, as Jonathan Goldman, the leader of the Church of the Holy Light of the Queen noted in a recent podcast interview with Martin Ball of the Entheogenic Evolution, the government surely knows that it is raising the stakes in appealing this decision. Because the Ninth Circuit covers all of California, Oregon, Washington, and Hawaii, among other western states, losing an appeal at that level would expand the reach of the precedent set by the case to areas with numerous similar ayahuasca-using churches.
Although it seems likely that the government will continue to argue that all DEA regulations may legally be applied to the Church of the Holy Light of the Queen, we won’t know their precise arguments until the government’s first brief, due to the court December 7th, is available.
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Re: appeal of oregon verdict
Tue, September 1, 2009 - 2:19 PM"the government surely knows that it is raising the stakes in appealing this decision. Because the Ninth Circuit covers all of California, Oregon, Washington, and Hawaii, among other western states, losing an appeal at that level would expand the reach of the precedent set by the case to areas with numerous similar ayahuasca-using churches. "
Wow.
Because of their appeal, it will become legal on the whole west coast, and Hawaii.
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Re: appeal of oregon verdict
Tue, September 1, 2009 - 2:45 PMThis will be interesting. The trial court opinion appears to me to be very well written and defensible. The Ninth Circuit is also considered the most liberal US Court of Appeals in the country. Of course, it is, if I remember correctly, also the most reversed circuit in the country. :-)
Thank you, Matthew. I am looking forward to reading the briefs.
-- Steve
www.singingtotheplants.com -
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Re: appeal of oregon verdict
Tue, September 1, 2009 - 4:52 PM
"Because of their appeal, it will become legal on the whole west coast, and Hawaii. "
I think that needs clarification. I'm sure you don't mean legal for anyone anytime they want. Yes? -
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Re: appeal of oregon verdict
Tue, September 1, 2009 - 5:04 PM
I only point that out because it could become something spread all over pretty quickly and I don't think it applies to anyone except those involved in current or future legal negotiations with the Govt. Correct me if I'm wrong, but it's just the organization in court with them that would have that right on the West Coast and Possibly the UDV.
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Re: appeal of oregon verdict
Tue, September 1, 2009 - 5:22 PM
"I think that needs clarification. I'm sure you don't mean legal for anyone anytime they want. Yes?"
The church has a calendar of works ... not sure what "anyone anytime they want" means. The Santo Daime will be legal in not only Oregon, but Washington, California, Idaho, Montana, Nevada, Arizona, Alaska and Hawaii (I looked it up, and that is the area covered by the Nonth Circuit Court). The Santo Daime is especially active in California and Hawaii. And when it is legal (the way it is in Oregon) it no longer has to be secretive and underground, more people who want to join the Daime will be able to find it, and the healing energy that it radiates into the world will be stronger and stronger. -
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Re: appeal of oregon verdict
Tue, September 1, 2009 - 5:30 PMThat's assuming the appeal is rejected.....let's not put the cart before the horse....
(((((((prayers for the ninth circuit appeal verdict)))))))))) -
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Re: appeal of oregon verdict
Tue, September 1, 2009 - 5:42 PMThe government has never won any case against the Ayahuasca churches, not at any level. The Supreme Court decision was UNANIMOUSLY (8-0, one abstention) in favor of the UDV. The Oregon Santo Daime leaders don't seem worried at all. It is a hassle, for sure -- they estimate the costs of fighting the appeal to be $100,000 -- but they expect to get plenty of donations from other Daimistas and sympathizers. Especially in California and Hawaii.
Prayers are important too! So deep thanks for your prayers. -
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Re: appeal of oregon verdict
Tue, September 1, 2009 - 6:08 PMThe government is going to have to figure out a way to distinguish this case from the SCOTUS UDV case. I think that will be an uphill climb. As I read the decision below, the government did not clearly articulate such a distinction, and they can't raise now something they didn't raise in the trial court.
But remember, the government will argue that a victory for the Santo Daime church -- as they continue to argue in the UDV case -- means only that the church has become a legal importer of the ayahuasca drink (or perhaps, in Hawaii, a legal grower of chacruna), and must still comply with all the import, licensing, record-keeping, and safe storage regulations that govern any user of Schedule I controlled substances. Such regulation remains onerous.
-- Steve
www.singingtotheplants.com/ -
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Re: appeal of oregon verdict
Tue, September 1, 2009 - 6:41 PM
Thanks Gayle.
I was worried it would be interpreted as legal for everyone by someone reading this thread, as opposed to the church involved in the case.
"But remember, the government will argue that a victory for the Santo Daime church -- as they continue to argue in the UDV case -- means only that the church has become a legal importer of the ayahuasca drink"
I would say the reason they are being allowed to import the tea is because they have shown that the tea is a sacrament in a religious ceremony. That it contains dmt is incidental in one sense, and vital in another. They've won the right to import Daime, something ayahuasca becomes inside this context of the sacred relationship. The language of the case states that it isn't a drug, even though it contains them, and yes, they will still have to satisfy all the requirements of the drug enforcement agency, who won't be calling anything a sacrament anytime soon. -
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Re: appeal of oregon verdict
Wed, September 2, 2009 - 10:27 AM"I was worried it would be interpreted as legal for everyone by someone reading this thread, as opposed to the church involved in the case. "
By "it" I meant Santo Daime.
(You have pictures about Santo Daime in your profile, so you must know who Santo Daime is ??) -
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This is the maximum depth. Additional responses will not be threaded.
Re: appeal of oregon verdict
Wed, September 2, 2009 - 10:50 AMIt does bring up an interesting freedom of religion issue. So, if SD gets it legally, why not those people who utilize the medicine in a religious context but have chosen not to be part of a church. Can a person only practice what is sacred to them if they belong to organized religion. -
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Unsu...
Re: appeal of oregon verdict
Wed, September 2, 2009 - 11:23 AMOregon has a sort of law like that for peyote. it claims any one can work with it if they have spiritual intent...
i like that... -
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Re: appeal of oregon verdict
Wed, September 2, 2009 - 12:24 PMThat's good. I can't really buy into the Christian aspects of SD or NAC, which doesn't in any way lessen the sacredness of the plants to me. -
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Unsu...
Re: appeal of oregon verdict
Wed, September 2, 2009 - 12:38 PMI am the same way... im just going to keep doing what my rice crispies are telling me... There are so many shapes that relationships with these plants can take the UDV and the santo Damie are just two of the newest as is the christian relational dynamic.
I find it so fascinating to think that if The United League of South American Shamans ( or TULSAS lol) came to the states and said he we are a super old proto-religion we are shamans we deserve to tour and preform ceremonies legally as well... do you really think that they would allow that? we shall see... to bad TULSAS is purely fictional...
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Re: appeal of oregon verdict
Wed, September 2, 2009 - 1:33 PMRichard has raised two interesting points.
>>>Can a person only practice what is sacred to them if they belong to organized religion.<<<
Unfortunately, that's very close to being true. RFRA provides for an exemption to laws of otherwise general applicability if they substantially burden the exercise of a religion. So courts are put to the burden of deciding what a religion is -- just as the IRS has to determine what is a religion for purposes of tax exemption. The courts figure that a religion cannot simply be what a proponent says it is; otherwise, we would all have our own religions and all be tax-exempt.
So courts look at what have traditionally been considered religions -- primarily the monotheistic religions with which they are most familiar. That means social organization, hierarchy, regular communal services, a creed, a theology, seminaries, and ordained religious functionaries. If you fall outside those parameters, you have an uphill walk to convince a court you are a religion, and not just a bunch of rag-tag hippies seeking to evade the drug laws.
As I have had occasion to say many times, if you want to have an exemption from the Controlled Substances Act, the more you resemble an Episcopalian the better.
>>><I can't really buy into the Christian aspects of SD or NAC<<
There are increasingly indigenist elements in the NAC these days, especially in those now run by those who struggled for Native American rights and religious freedom during the past four decades. This is a very interesting phenomenon, which is worth a lot more study than it has received. There are even some NAC leaders who now say that all the Christian symbolism was originally a trick to fool the government. And, of course, there are road chiefs who continue to identify peyote with Jesus. I have heard both sentiments expressed in the same ceremony.
-- Steve
www.singingtotheplants.com/
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Re: appeal of oregon verdict
Wed, September 2, 2009 - 2:18 PM"So, if SD gets it legally, why not those people who utilize the medicine in a religious context but have chosen not to be part of a church."
SD gets it legally because SD went to court and sued the government, at great expense and risk. If this precedent is ever to be extended to individuals, some individual is going to have to go to court about it. -
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Re: appeal of oregon verdict
Wed, September 2, 2009 - 2:28 PMHey Gayle, thanks for clarifying the details of the case, seems like in your analysis that this process shouldn't be too difficult then. Very cool!
As for the SD and NAC laws, I've always felt the same way. It's unfortunate that you have to be a part of an organized religion in order for these plants to be a legal sacrament for individuals. So who gets to decide what a religion is? That bullshit. What's the number of followers you have to have? What are the criteria of what is and what isn't a religion? I would love to see that list, lol.....
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Re: appeal of oregon verdict
Wed, September 2, 2009 - 4:02 PM
Burciaga Ruling in 1991 Boyll Case
On September 6, 1991, U.S. District Judge Juan Burciaga ruled in favor of Lawrence Boyll, a non-Indian member of the NAC, who was accused of mailing eight pounds of Peyote from Mexico. See entry in Chronology.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA
Plaintiff v. Criminal No. 90-207-JB ROBERT LAWRENCE BOYLL Defendant
Judge Burciaga presiding:
MEMORANDUM OPINION AND ORDER - THERE is a genius to our Constitution. Its genius is that it speaks to the freedoms of the individual. It is this genius that brings the present matter before the Court. More specifically, this matter concerns a freedom that was a natural idea whose genesis was in the Plymouth Charter, and finds its present form in the First Amendment to the United States Constitution—the freedom of religion.
The Government's "war on drugs" has become a wildfire that threatens to consume those fundamental rights of the individual deliberately enshrined in our Constitution. Ironically, as we celebrate the 2OOth anniversary of the Bill of Rights, the tattered Fourth Amendment right to be free from unreasonable searches and seizures, and the now frail Fifth Amendment right against self-incrimination or deprivation of liberty without due process, have fallen as casualties in this "war on drugs." It was naive of this Court to hope that this erosion of constitutional protections would stop at the Fourth and Fifth Amendments. But today, the "war" targets one of the most deeply held fundamental rights—the First Amendment right to freely exercise one's religion.
In its "war" to free our society of the devastating effects of drugs, the Government slights its duty to observe the fundamental freedom of individuals to practice the religion of their choice, regardless of race. Simply put, the Court is faced with the quintessential constitutional conflict between an inalienable right upon which this country was founded and the response by the Government to the swelling political passions of the day. In this fray, the Court is compelled to halt this menacing attack on our constitutional freedoms.
On May 10, 1990, the Federal Grand Jury indicted Robert Lawrence Boyll, a non-Native American, for unlawfully importing peyote through the United States mail and possessing peyote with the intent to distribute it, in violation of 21 U.S.C. 952(a), 960(b)(3), 843(b) & (c), & 841(a)(1) (1981). The three-count indictment arose out of Mr. Boyll mailing himself a quantity of peyote from Mexico to his home in San Cristobal, New Mexico. In his motions to dismiss, Mr. Boyll argues that the indictment violates his First Amendment right to freely exercise his religion. Mr. Boyll also claims that, pursuant to 21 C.F.R. 1307.31 (1990), the listing of peyote as a controlled substance does not apply to him because he is a member of the Native American Church and he imported and possessed peyote for use in bona fide religious ceremonies of the Native American Church.
"Church" refers to a body of believers and their shared practices, rather than the existence of a formal structure or a membership roll. Membership in the Native American Church derives from the sincerity of one's beliefs and participation in its ceremonies. Historically, the church has been hospitable to and, in fact, has proselytized non-Indians. The vast majority of Native American Church congregations, like most conventional congregations, maintains an "open door" policy and does not exclude persons on the basis of their race. Racial restrictions to membership have never been a general part of Peyote Religion or of the Native American Church. See Peyote Religion at 333-34; State v. Whittingham, 504 P.2d 950, 951 (Ariz. Ct. App. 1973) (membership to non-Indians is usually not refused), review denied, 517 P.2d 1275, cert. denied, 417 U.S. 946 (1974). Although one branch of the Native American Church, the Native American Church of North America, is known to restrict membership to Native Americans, most other branches of the Native American Church do not. As a result, non-Indian members are accepted within the Native American Church.
It is one thing for a local branch of the Native American Church to adopt its own restrictions on membership, but it is entirely another for the Government to restrict membership in a religious organization on the basis of race. Any such attempt to restrict religious liberties along racial lines would not only be a contemptuous affront to the First Amendment guarantee of freedom of religion but also to the Fourteenth Amendment right to equal justice under the law.
For the reasons set out in this Memorandum Opinion and Order, the Court holds that, pursuant to 21 C.F.R. 1307.31 (1990), the classification of peyote as a Schedule I controlled substance, see 21 U.S.C. 812(c), Schedule I (c)(12), does not apply to the importation, possession or use of peyote for bona fide ceremonial use by members of the Native American Church, regardless of race. Wherefore, IT IS ORDERED, ADJUDGED AND DECREED that Defendant Robert Boyll's motions to dismiss the indictment be and hereby are GRANTED. DATED at Albuquerque the day of September, 1991. -
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Re: appeal of oregon verdict
Wed, September 2, 2009 - 4:17 PMI very much wish that individuals with the desire to use entheogens for sacred purposes was allowed to do so by law. I don't think an individual is in any way less real than the member of a church or religion, or is any less in any way at all.
I'm glad those churches and religious organizations that are going to court are doing so, and hope that it's somehow part of the progression of rights secured for individuals in the future and that it will have a positive effect on the nations vision of this kind of spiritual work. -
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Re: appeal of oregon verdict
Wed, September 2, 2009 - 4:38 PM
I wonder if we'll ever see a shaman in Congress? -
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Re: appeal of oregon verdict
Wed, September 2, 2009 - 4:58 PM> I wonder if we'll ever see a shaman in Congress?
If brujos count, you see them all the time.
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Re: appeal of oregon verdict
Thu, September 3, 2009 - 6:43 AMRichard --
Judge Burciaga's statement that the word church "refers to a body of believers and their shared practices, rather than the existence of a formal structure or a membership roll" is irrelevant to his decision. There was not an issue in the case as to whether or not the NAC was a church. The issue, as the court understood it, was whether the government could impose restrictions -- especially racial restrictions -- on who may be a member of a church. That the NAC was in fact such a church was apparently not in doubt, as indeed it should not have been.
Judges Burciaga's fine expression of his sentiments is what lawyers call dictum. It has no precedential value. And, as I recall, Utah remains a minority of one among states, all the rest of which -- like the federal government -- continue to require tribal membership, which in turn requires some sort of blood quantum, in order to be a member of the NAC.
It would be different if the case had involved peyote use by an individual claiming an idiosyncratic one-member religion with peyote as a sacrament. Such a case would, I predict, end without a RFRA exemption. And probably jail time imposed by an aggravated judge. :-)
-- Steve
www.singingtotheplants.com/ -
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Re: appeal of oregon verdict
Thu, September 3, 2009 - 7:21 AM
We're fortunate to have you here and willing to offer clarification on the legal issues Steve.
Thank you.
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Re: appeal of oregon verdict
Wed, September 2, 2009 - 4:46 PMIt's unfortunate that you have to be a part of an organized religion in order for these plants to be a legal sacrament for individuals. So who gets to decide what a religion is? That bullshit. What's the number of followers you have to have? What are the criteria of what is and what isn't a religion? I would love to see that list, lol.....
Here is a discussion from the ayahuasca.com forum about the criteria the courts have used:
forums.ayahuasca.com/phpbb/viewtopic.php
You wouldn't actually have to be part of an organized religion to pursue a religious freedom case, but it would be pretty difficult for an individual to meet the criteria, plus they'd better have a hell of a lot of money.... -
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Re: appeal of oregon verdict
Wed, September 2, 2009 - 4:59 PMHere is the text of the above, although it loses the formatting:
In examining successful and unsuccessful cases, it emerges that what has mattered to the courts to establish your credibility as a religion has been the quality of:
A history, that shows how your religion originated and developed (and that demonstrates that the religion was not just made up to circumvent the laws).
A well-developed, well-articulated set of doctrines (teachings, principles, creeds, etc) which have to be distinctly "religious" in nature, in the subjective opinion of a judge. If the doctrines sound to the judge's ears like "philosophy," "psychology," or a "way of life" rather than a "religion," the religious claim can be rejected. (Imagine, "religion" and "way of life" are supposed to be separate?)
According to a US 10th Circuit Court decision, the distinction between "religion" and "philosophy" can be made by examining five factors: “ultimate ideas,” “metaphysical beliefs,” “moral or ethical system,” “comprehensiveness of beliefs,” and “accoutrements of religion.” (This last means outer trappings that look like religious practice.) All the above need to be recognizably religious in tone to a judge who probably has slightly more conventional ideas about what constitutes "religion" than a lot of us do.
So a vague claim that begins and ends with "my entheogenic practice is spiritual" will not get to square one in the courts.
A systematic set of practices. Not just doing whatever you feel like doing whenever you feel like it. Some kind of structure and regularity to your rituals.
A basic structure, which may be simple but which includes defining the role of leaders in your group and defining your membership policies.
(There is nothing in the case law that says that solitary individuals cannot try to claim a religious freedom exemption for their individual practice, but it would be very difficult for an individual to make such a case. Nevertheless, not impossible.)
Beyond establishing that you are a real religion in the eyes of a judge, you also have to establish that your entheogen is absolutely necessary for the practice of your religion. To us, this sounds easy to establish, but in practice it has been a hard sell, because few judges have any experience with entheogens and have any idea about them. (Why can't you just believe/practice your religion and leave out the illegal plants?) For the Santo Daime, the Daime itself is a sacrament like the Communion wafer to Catholics, so making that comparison helped them to establish the indispensability of the Daime brew to their religion.
Then there are two "compelling government interest" considerations that the court can weigh against your religious rights. One is the danger the substance might pose to public health. The other (even if the substance poses no danger to public health) is whether there is any danger of "diversion," eg., that your sacrament could make its way into the black market. Diversion is such a strong factor with Ganja that a marijuana church is unlikely to win full religious rights in the foreseeable future. (Indeed, the Oregon Santo Daime had to answer a lot of questions about the use of Santa Maria by some Brazilian branches, and had to promise that no marijuana is used in their services.) But as far as Ayahuasca is concerned, these two questions have been effectively addressed by the high-paid lawyers who successfully argued the UDV and Santo Daime cases and have done that part of the work for us, bless them. So that is not such an issue with Ayahuasca as other entheogens.
Nevertheless, even with Ayahuasca, if you win, you have to submit to strict record-keeping of how much of the sacrament is consumed, how often, by how many people, how many cups each of how many milliliters, and keep the sacrament under lock and key in a facility that can be inspected by the DEA's Office of Diversion Control so they can be sure no crazed junky can break in to your supply and sell cups of Aya on the street.
So that is more or less the situation in the US at present (according to my research and study).
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Theoretically, it would not matter if it is a large organization or a single person, but a single person would have a hard time demonstrating the above. -
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Re: appeal of oregon verdict
Wed, September 2, 2009 - 8:04 PM"A systematic set of practices. Not just doing whatever you feel like doing whenever you feel like it. Some kind of structure and regularity to your rituals."
I guess the first church of Jav is out of the question......good thing I don't live in the states! :)
I gotta say, despite my initial reservations about moving back to Chile 3 years ago, mostly because of an outdated idea in my mind about how conservative it is here, I've come to really appreciate the way some things are handled here. Sometimes having a thing not be illegal is almost better than having it be legal. Legal means so many restrictions and red tape and whatnot....
Here the head of police has said publicly that they don't go after the ayahuasca users or the red path guys or any of those folks, cause they know it's not the profile of people they're looking for. They know these people are peaceful, safe and so long as they stay clean (as in no scandals or being too obvious) then a blind is turned. One psychologist got all trigger happy and started posting ads in papers and mags and online about his San Pedro based therapies, and well, he got busted before too long....
But I do totally support the rights of all these churches and individuals seeking more ample rights in the US. It sets a good precedent for everywhere (the US's actions being highly influential in the world)....
:) -
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Unsu...
Re: appeal of oregon verdict
Thu, September 3, 2009 - 12:37 PM""A systematic set of practices. Not just doing whatever you feel like doing whenever you feel like it. Some kind of structure and regularity to your rituals."
I guess the first church of Jav is out of the question......good thing I don't live in the states! :) "
yeah because spirit works in a mechanical ritualistic manner, just like nature does... machine like... sigh...
once again i like that oregon indicates that spiritual use of peyote is legal... spiritual use is not religious and is much more open to interpitation.
There should be a shamans congress... it should also include people who extract dmt and harmine and such and take in in pill form or smoke it, it should include new shamans as well who ever works with the plants for the benefit of others in what ever capacity. I think that would be interesting... it needs to be held in the USA not Peru... maybe hawaii... -
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Re: appeal of oregon verdict
Thu, September 3, 2009 - 1:13 PM"
There should be a shamans congress... it should also include people who extract dmt and harmine and such and take in in pill form or smoke it, it should include new shamans as well who ever works with the plants for the benefit of others in what ever capacity. I think that would be interesting... it needs to be held in the USA not Peru... maybe hawaii..."
Maybe you could organize it? -
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Unsu...
Re: appeal of oregon verdict
Thu, September 3, 2009 - 5:45 PMheheh... im just an idea guy... not much of an organizer... -
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Re: appeal of oregon verdict
Fri, September 4, 2009 - 12:24 PMThere is the Wisdom Of Mother Beauty (WOMB) Grandmother's conference each year. Thats good enough for me. -
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Unsu...
Re: appeal of oregon verdict
Fri, September 4, 2009 - 12:46 PMspecific agendas focused on just the subject of legalizing the use of ayahausca in shamanic ceremonies out side of VERY NEW RELIGIONS the WOMB is not focused... Shamanic Practitioners should be allowed the same right to practice and participate in a way if relating to these medicines that is much older then Christianity... or the concept of a church...
There is no organization ensuring that this is happening... Maps could get involved perhaps? Some of the people from down in peru that do the ayahausca forum there... if some are allowed back into the USA that is lol ; )
but if there is no one trying to do this as a soul focus then its not going to happen... shamanic ceremonies will continue to be against the law, that that work with ayahausca out side of the churches will be in hiding still... it really doesnt seem right that new religions get the right where old shamanic traditions do not...
On another note i think that people are going to be starting a lot of new ayahausca churchs...... i am not fond of the church concept personally... there are other ways of relating that are just as valid... but how else do people deal with the bureaucracy in the USA?
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Re: appeal of oregon verdict
Fri, September 4, 2009 - 1:03 PM>>>On another note i think that people are going to be starting a lot of new ayahausca churchs<<<
Courts will be very skeptical of brand-new churches that give the appearance of having been formed for the sole purpose of taking advantage of RFRA.
Remember -- In the current state of Constitutional law, religious exemptions to the Controlled Substances Act are not -- I repeat, NOT -- a matter of First Amendment right. They are bestowed, if at all, by Congress, through the Religious Freedom Restoration Act. What Congress gives, Congress can take away. Any widespread perception that RFRA is being used as a device to evade the drug laws could result in its amendment to make it more restrictive.
-- Steve
www.singingtotheplants.com/ -
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Re: appeal of oregon verdict
Fri, September 4, 2009 - 6:39 PM"i think that people are going to be starting a lot of new ayahausca churchs"
Anybody who does that in order to be able to drink Ayahuasca legally had better have a lot of money. The Oregon Santo Daime case cost them half a million dollars and they expect that the appeal will cost them another hundred thousand. The UDV case which went to the Supreme Court cost the UDV several million dollars. I don't know how many people have those resources.
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Re: appeal of oregon verdict
Fri, September 4, 2009 - 9:16 PM"What Congress gives, Congress can take away. Any widespread perception that RFRA is being used as a device to evade the drug laws could result in its amendment to make it more restrictive. "
Well, the courts act as the gatekeepers, judging who RFRA applies to and who it doesn't. (And you have a lot of money to pursue such a case in the first place.) There have been many RFRA cases rejected by the courts, and there will continue to be. It doesn't matter how many groups might try to use RFRA as a device to evade drug laws -- groups that don't appear to be legitimate religions don't get very far. -
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Unsu...
Re: appeal of oregon verdict
Sat, September 5, 2009 - 11:37 AMAHHH AMAERICA....
"it doesn't matter how many groups might try to use RFRA as a device to evade drug laws -- groups that don't appear to be legitimate religions don't get very far."
"I don't know how many people have those resources. "
Many people work with ayahausca who have authentic religious and spiritual reasons for working with it who are neither a part of this or that religion, and yes these people have to evade drug laws inorder to do what they believe is the right thing to do for them... it is a shame that these people cannot be equally represented because of a lack of MONEY...
"Any widespread perception that RFRA is being used as a device to evade the drug laws could result in its amendment to make it more restrictive. "
There is something about this statement that really bothers me...
people have a right to practice spirituality the way they see fit. most of us have had to snake around in the shadows and behind closed doors for a very long time, and boy i wouldnt want to ruin it for a legitimate religion just because i dont have enough money and i am just obviously trying to skirt drug laws?
Im sorry but when i see that some get to come out of hiding but others dont... and i hear that people trying to do what they feel is the right thing to do could be seen as evading drug laws and making it hard for the people who are privileged enough to have a tremendous amount of money to make it happen for them, im not sure i like the sound of that...
but if in time the "state" approved ayahausca churches can bring a positive light to entheogenic spirituality who knows what might be possible in the future...
still for those of us that will not be finding themselves in a UDV or a Damie "church" any time soon or ever, sitting out side and watching them able to legally drink the tea while the rest of us have to hide with the cockroaches is still a bit hard to deal with gracefully...
"ah good for yall... how nice that must be for yah... glad you don't have to worry about property seizure and your kids being taken away... hope you choke on it..." kidding but like i said it hard to be graceful...
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Re: appeal of oregon verdict
Sat, September 5, 2009 - 1:18 PM>>>people have a right to practice spirituality the way they see fit.<<<
This is not true. More important, I don't think you really want it to be true.
For example, suppose I say that I am a practitioner of an ancient Moche spirituality which requires me to sacrifice humans and drink their blood. Clearly, there is no court in this country that would allow me to kill people and drink their blood, even if I was in fact a devout believer in a real Moche religion. And I don't think you would want me to be able to kill people in the name of my religion either.
So of course we draw lines. I am in favor of the broadest possible interpretation of the free speech clause, but I still don't want someone driving a sound truck past my house at 2:00 o'clock in the morning promoting a Congressional candidate.
The disagreement is therefore always about where to draw the line. There are a lot of highly contentious areas where people have wanted religious exemptions from laws of general applicability -- polygamy, for example, or child marriage. Different people will draw the line in different places. When one of these disagreements hits the courts, the courts have to draw a line somewhere.
We need to do everything we can to create a social climate within which courts will draw the line in the places we think are right.
-- Steve
www.singingtotheplants.com/
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Re: appeal of oregon verdict
Sat, September 5, 2009 - 1:23 PMSo true LLB. So true.
Especially as both UDV and SD are christian based religions.
Some of us aren't christians but still find la madre to be sacred and an essential part of our spirituality and connection to the Divine.
I utterly resent any implication that because i choose to not belong to an organized church that my connection with the Divine is "for recreational purposes" or for trying to evade the law.
Apparently so did someone else:
Matthew 6.5-6.6
I hope that the recognized churches in the future do not take advantage of their legal monopoly by trying to exclude others from their own personal sacrament.
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Unsu...
Re: appeal of oregon verdict
Sat, September 5, 2009 - 4:42 PM>>>people have a right to practice spirituality the way they see fit.<<<
"This is not true. More important, I don't think you really want it to be true."
of coarse steve i know that and it needn't be said... thus i didn't say it...
my issue is that we place controls out of fear that something will happen that will prevent good from happening to. we can deal with more complicated issues of ayahausca human sacrifice cults when or if they come, but i still want to live in a country that protects our basic freedom to have a cult if we want one... and if that cult ends up creating problems well we can deal with it... but i would rather deal with the repercussions of freedom that the repercussions of control. you may feel other wise... and if so we are at odds...
and honestly if people wish to be polygamous why the hell shouldn't they? im not a cultural relativist but i know when what i am dealing with is a personal values conflict...
at any rate this doesnt discount any of what i said.
and yeah rich
some of us are not christian, nor find ourselves in line with any such concept of a church at all... i know of a pagan ayahausca group they drink aya in pagan ceremonies...
www.padeva.com/home.html
these people are not protected under the law and they are not allowed the legal right to drink aya legally, and nor are any groups that dont have the money and if they are not christian i wonder if they will be looked at favorably either... neoshamanic circles as well as shamans from SA and their students should be allowed to legally do their work, and if issues arise then society should deal with them. But as it is... these people are allready excluded. How dare they make a law stateing that these people can and others cannot... its ridiculous.
"I utterly resent any implication that because i choose to not belong to an organized church that my connection with the Divine is "for recreational purposes" or for trying to evade the law."
I as well... thats BS...
the first church was in mans head...
as the T-shirt reads......
so lets just justify the continued outlawing of good people doing good work... cheers... -
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Re: appeal of oregon verdict
Sun, September 6, 2009 - 3:52 AMIsn't PaDeva legal?
From their FAQ:
"10. Can I join your church and brew ayahuasca on my own?
Yes, but it would not be a function of the church and may be illegal in many States and countries. We would neither condone nor condemn your decision to learn from the plant teachers outside of a church ceremony." -
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Re: appeal of oregon verdict
Sun, September 6, 2009 - 8:39 AM
I want a lot of things.
Decent and affordable health care for all.
Clean air and water.
True equal rights etc.
Out of all those things that I may wish for, only those that I'm willing to work for in a very specific way are possible. I have to be willing to work for them in an imperfect legal system and willing to work for them in a system that has a high price tag. If I can accept the existing conditions and work with them and I'm willing to raise the funds to do so, then I have a chance, but only a chance, of changing the system.
Nothing is guaranteed except a lot of hard work and money spent.
This isn't an issue of which is better or more valid, a church flavored religious practice or an indigenous tribal based practice.
It's an issue of acceptance and community strength. Acceptance of the political landscape as it exists and a communities commitment and financial will to bring about change working within that system.
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Unsu...
Re: appeal of oregon verdict
Sun, September 6, 2009 - 11:11 AM"Isn't PaDeva legal? "
no Dizkus I do not believe that they are legal, but are attempting to set some sort of precedence... -
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Re: appeal of oregon verdict
Sun, September 6, 2009 - 3:06 PMPadeva is a legal church. It is legally incorporated and scrupulously follows all the bureaucratic guidelines set down by the IRS for a legal tax exempt church,
Being a legally incorporated, tax exempt church doesn't mean that it has the legal right to drink Ayahuasca, but the precedents set by the UDV and Santo Daime do mean that other churches are not likely to be harassed for drinking Ayahuasca. -
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Unsu...
Re: appeal of oregon verdict
Sun, September 6, 2009 - 3:20 PMthey still are not legal and even if it means they may turn a blind eye they still are not legal and the repercussions of them drinking ayahausca could be great, if the all seeing eye of big brother decides they dont like pagans drinking aya (new mexico is a catholic state after all)... unless they have a lot of money to protect themselves in court they are going to be pretty screwed... and thats frustrating...
PA devas been around for a numb er of years too.
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Re: appeal of oregon verdict
Wed, September 9, 2009 - 3:10 AMI thought this might be pertinent to the discussion:
www.azstarnet.com/sn/hourly...308106.php
-- Steve
www.singingtotheplants.com/ -
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Re: appeal of oregon verdict
Wed, September 9, 2009 - 11:47 AMThis case shows an important reason why (sorry to disagree with what Steve said uptopic) the danger that Congress will amend RFRA as it applies to entheogens is virtually zero, no matter how many bogus (or apparently bogus) entheogenic churches try to claim RFRA exemptions.
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Re: appeal of oregon verdict
Sun, September 6, 2009 - 9:19 AM
"I hope that the recognized churches in the future do not take advantage of their legal monopoly by trying to exclude others from their own personal sacrament."
After fighting for the legal right in many countries across the world to practice what we hold to be our sacred right, a practice which isn't even possible without the medicines, I can assure you that we would never attempt to deny that right to others. No one in the UDV or the SD would even consider it. These are not church's that would ever wage a holy war or an inquisition. These church's are a kind of evolution of beliefs and ways, and not the latest attempt by some old school religious group founded on a history of self righteousness to dominate anyone.
The implications of the US government drug policy and philosophy are in no way related to the tenants of faith that are held as sacred principles and which guide the SD and UDV. Please don't confuse the US governments stance with the outlook of those who have struggled to win freedom in the face of them.
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Re: appeal of oregon verdict
Sun, September 6, 2009 - 9:51 AMThank you for the clarification, and I in no way intended that to be an accusation. It is something that has happened in the past though with many religions. Jesus was quite inclusive and non-judgmental in who would be allowed access into his Father's kingdom. Yet the fruit of his work, postmortem, is the structure of Christianity, certainly in most cases highly judgmental and exclusionary.
So no, I don't think that there is a cabal of UDV and SD elders in a back room plotting the exclusive use of la madre. Just something that I hope will never happen.
Deep apologies if my worries caused offense. -
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Re: appeal of oregon verdict
Sun, September 6, 2009 - 11:00 AM
Please Richard, don't imagine any apology was needed. You're a gracious and passionate man and I just wanted to offer that what you see now in these church's is not the same as the church's of olden times. I'd like people to open to the possibility that something beautiful was carried forward from the Christian ways of old and that the troublesome behaviors of exclusion and judgment are historical and are not present in this new unfolding sacred mixture.
Imagine an institution that kept what it thought was good and true and sacred of it's history and then settled in to drink an ayahuasca as a divine sacrament, and do so in a frame of mind that was willing for the medicine itself to shine a new light on the whole of it, personally, spiritually and globally. The medicine itself a partner to the evolution of thought and way. :)
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Re: appeal of oregon verdict
Sun, September 6, 2009 - 12:13 PMYes, I will hold that vision.
Thank you.
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Re: appeal of oregon verdict
Tue, September 8, 2009 - 7:22 PMDoes anyone know what this means for legal recognition elsewhere in the country? -
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Re: appeal of oregon verdict
Tue, September 8, 2009 - 7:31 PMHi, folks. I am posting a link to an interview with Jonathan Goldman, the head of the Santo Daime church in Oregon and the one who led the court case against the federal government.
I haven’t listened to the whole thing, just the first part, but it might shed some light on the issue. All three parts are there [click next episode on the player for 2 and 3] and it is chronological. How he met the Daime, what is the Daime for him, his history with the brew and the court case and its implications.
entheogenic.podomatic.com/entry...-07_00
Peace, -
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Re: appeal of oregon verdict
Wed, September 9, 2009 - 10:17 AM>entheogenic.podomatic.com/entry...-07_00
Thanks for the link. Its weird, I find this whole thing both encouraging and disheartening.
Warm Regards,
Ryan
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Re: appeal of oregon verdict
Sun, September 13, 2009 - 8:52 PMThanks for the link. The picture in that link shows a building on the compound that is shaped like the star of David. Is Goldman using Aya for a Christian sacrament or a Jewish sacrament? Someone on here mentioned it was Christian. The star of David is a Jewish symbol. -
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Re: appeal of oregon verdict
Mon, September 14, 2009 - 5:54 AMThe star of David is also a symbol of the Gangster Disciples. Hmmm...
-- Steve
www.singingtotheplants.com/
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Re: appeal of oregon verdict
Mon, September 14, 2009 - 7:34 AMThe star of David is also a symbol of the Gangster Disciples. Hmmm...
-- Steve
www.singingtotheplants.com/
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Re: appeal of oregon verdict
Mon, September 14, 2009 - 9:45 AMYou are welcome, Omarsky. Well, about the question, the church you mention is indeed Christian. Jesus was Jewish too - of course - and he was also from the lineage of David.
Peace, -
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Unsu...
Re: appeal of oregon verdict
Mon, September 14, 2009 - 11:40 AMGood advice from a plant CG...
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Re: appeal of oregon verdict
Wed, September 9, 2009 - 12:24 PM"Does anyone know what this means for legal recognition elsewhere in the country?"
It means that if another group goes to court (either taking the initiative to sue the government, as UDV and Oregon SD did, or defending themselves against charges) they have these legal precedents to point to, which can make their case a little easier or a lot easier depending on how similar their case is to the precedent cases.
Each case that is won extends the precedent a little farther and makes it easier for subsequent cases. Even a little bit cheaper, because the UDV and SD lawyers already did the groundwork in establishing that there is no "compelling government interest" in banning Ayahuasca. In fact, the Supreme Court opinion issued (unanimously) in the UDV case said that the government had failed to demonstrate that there were either health risks or danger of diversion to the black market, with Ayahuasca. That means that that side of the case would be much easier for another group or individual who uses Ayahuasca as a sacrament.
"Legal recognition" is actually a separate issue from a religious freedom exemption. (RFRA, or Religious Freedom Restoration Act, is an act passed by Congress in 1993 that restored "compelling government interest" and "least restrictive means" as the necessary criteria for restricting religious rights, criteria that had been used by the courts until the Supreme Court decision in Smith v state of Oregon.) There is nothing in the law that says that a group must be a legal church to claim a religious freedom exemption, or for that matter that an individual cannot make the claim.
Winning that claim in court, however, would be difficult for a group that has no formal organization, and extremely difficult for an individual -- unless that individual has 1) a very strong case (see the seventh post in this thread www.forums.ayahuasca.com/phpbb...ic.php for a summary of the criteria the courts have used for evaluating the validity of a religion) 2) a lot of money to spend on the case (probably in the seven figures, because a case setting a precedent for individuals would probably be appealed all the way to the Supreme Court), and 3) willingness to devote several years of his or her life to pursuing the case.
But each case won sets precedents that make future cases easier.
It seems that some people in this thread are complaining because the glass is half-empty, but the glass was all the way empty just a few years ago, and is filling up slowly, and every victory is one more drop in the glass. -
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Re: appeal of oregon verdict
Wed, September 9, 2009 - 4:56 PM"It seems that some people in this thread are complaining because the glass is half-empty, but the glass was all the way empty just a few years ago, and is filling up slowly, and every victory is one more drop in the glass."
Excellent point. Thank you. -
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Unsu...
Re: appeal of oregon verdict
Wed, September 9, 2009 - 8:25 PMwell thats not entirely true...
the native american church has leagally been able to drink peyote in the united states for a while now... and no one has been able to get much father with that out side of a race biased allowance for peyote use no one else gets to work with it... so the glass was not completely empty some people where allowed to work with entheogens spiritually.... my concern is that its going to stay in that same vein with with the santo damie as well as the UDV and no one else is going to be able to practice out side of these traditions legally.
The NAC has not really gotten us any where honestly as far as allowance by the government to work with entheogens spiritually, and i dont think that the udv or the damie will either...
religions tend to be a bit of a closed circuit when it comes to other religions and spiritual practices especially when it boils down to some thing like a commonly held sacrement... and i dont get the sense that they will be sticking up for other religons or spiritual practices that will be trying to gain their FREEDOM...
i am not calling the glass half empty, and i am not being pessemistic i am being realistic from my stand point. it is still illegal for me to do ayahausca, i am persecuted while others are not who do the same... and your not ever going to catch me in a UDV or santo damie church... ever. I do not have any rights... while others do... and why?
money and jesus as far as i can tell...
I dont even have a glass... where i am standing...
so sorry for complaining...
im not jealous... i do however think that it is unjust that exceptions be made for these NEW religions with out considerations towards older more established relationships with this plant teacher, of which will not be able to defend themselves in the same way that the new religions can and with out such traditions these new religions would not have ever existed in the first place...
way to respect yer elders... jeez...
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Re: appeal of oregon verdict
Thu, September 10, 2009 - 12:56 AM
"I do not have any rights... while others do... and why? money and jesus as far as i can tell..."
I doubt that's accurate LLB. All over the world there are differences in the rights people have. You enjoy some rights here that others have died trying to secure for themselves unsuccessfully. A woman risks her life by going to school in some countries, another risks the same by not practicing the dominant religion of the country they live in and others do so for not participating in the dominant political party that rules their country.. The list of inequities is to long to even begin to catalog, and here you are living in the USA complaining about what you don't have.
You have rights LLB, rights that were won for you by people who dedicated their entire lives to securing them not just for themselves, but for everyone. Rights handed to you by generations that worked without receiving money for their efforts, and by entire groups of poor people who marched and picketed and bent their backs to the accomplishment of something you have the luxury of taking for granted. Rights secured for you as well by decent people who committed their fortunes to the legal cost of securing those rights.
Many of them sang hymns while they earned you and me those rights, but you feel comfortable making snide remarks about the Gods or persons they drew their faith from? Really LLB, you sound like someone who expects to have what you want simply because you want it and is upset the world doesn't work that way. Your disdain for others religious faith is insulting and I think you misunderstand the importance of your personal opinion and it's relevance, especially in the face of your unwillingness to work within the system that exists in order to achieve any of the rights you think you deserve.
There's a lot happening in the world today. It needs real attention and hard work if it's going to change. Lifetimes worth of effort will be needed to change some of it and no one can promise it will work. I don't think the question is really about what you don't have, but is about what your willing to commit to working toward regardless of the outcome. Where is your faith LLB? What is it founded on? What will your faith give you the strength to attempt to accomplish? What cause will you commit to heart and soul? What rights are you willing to work for and secure them for others, even if you never enjoy them in your lifetime, or are you really only concerned with what rights you have personally and right now?
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This is the maximum depth. Additional responses will not be threaded.
Re: appeal of oregon verdict
Thu, September 10, 2009 - 1:53 PM"
There's a lot happening in the world today. It needs real attention and hard work if it's going to change. Lifetimes worth of effort will be needed to change some of it and no one can promise it will work. I don't think the question is really about what you don't have, but is about what your willing to commit to working toward regardless of the outcome."
Beautiful post, CG! The power of faith. The power of intent. The power of prayer.
I for one would like to offer THANKS to the UdV and the Santo Daime because they have helped ALL of us along this path. (And the NAC too, as the UdV victory was founded on the NAC's.) Even without suing for RFRA exemptions, all legitimate Ayahuasca spiritual groups in the US are considerably safer now than they were before 2007. In fact, as long as they are discreet, they can consider themselves to be practically completely safe from prosecution, thanks to the hard work of the UdV and Santo Daime. Rather than complaining that the UdV and SD have not accomplished enough, we should be inspired by their faith, spiritual power, and commitment to wage such a hard struggle on behalf of all of us.
They have my heartfelt thanks, and my prayers during this appeal. -
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Re: appeal of oregon verdict
Thu, September 10, 2009 - 3:00 PMGayle said: . . . all legitimate Ayahuasca spiritual groups in the US are considerably safer now than they were before 2007. In fact, as long as they are discreet, they can consider themselves to be practically completely safe from prosecution,"
Gayle, can you kindly elaborate on this? -
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Re: appeal of oregon verdict
Thu, September 10, 2009 - 3:20 PMI don't think you can make a statement like that Gayle. The law is not at all easy to predict and our hopes and feelings about what may or may not be true aren't equivalent to sound legal advice. I don't think at this time that saying what you did about groups being safe from prosecution is equal to actual legal advice. You may have some resources I don't and I want to respect that, but it's a really big statement and should be carefully considered in light of actual legal president as described by a lawyer, which I'm certainly not.
I'd like it to be true, but that doesn't mean it really is.
With respect, CG. -
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Re: appeal of oregon verdict
Thu, September 10, 2009 - 4:13 PMIf I were the DEA and the DOJ, right now I would be worried about the precedents that have been set in the two existing ayahuasca cases. I would want to do something to break that losing streak.
Here is an example. The common law doctrine of collateral estoppel -- and, mind you, this is in civil, not criminal, litigation -- prevents a person from relitigating a factual issue. Once a court has decided an issue of fact, or mixed issue of fact and law, necessary to its judgment, that decision may be held to preclude relitigating that issue in a different suit involving a party to the first case.
I have not researched whether collateral estoppel would apply to cases where a defendant sought an injunction against the government. Seeking an injunction is a civil rather than a criminal matter. So it might, but in any case it provides an analogy.
When I was engaged in nationwide product defense, I would stay up late at night worrying about collateral estoppel. Say I am defending a company that makes toasters -- good toasters, except they have a tendency to burst into flames. Suits come in from injured plaintiffs all over the country. The first suit goes to trial, and the jury finds that the toaster was defectively designed. Another goes to trial, and the jury finds the same thing.
At the start of the third trial, the plaintiff moves to preclude me from arguing that the toaster was not defectively designed. "Your honor," the lawyer says, "two different juries have specifically found that this very model of toaster was defectively designed. Mr. Beyer had every means and reason to litigate that issue fully in those two cases. Let's collaterally estop Mr. Beyer from relitigating the design issue, and save everyone lots of time and money." That's collateral estoppel.
Look at the record in the two ayahuasca cases. There were findings that ayahuasca is not likely to be a drug of abuse, that it is possible to keep it secure and prevent it from being diverted onto the street, and that its use can be made relatively safe in an appropriate ceremonial setting. In addition, the cases provide evidentiary precedents regarding the probative value of, say, studies of LSD and DMT in determining the risks of ayahuasca. Based on the language of the Santo Daime decision, you can bet that a criminal defendant in an ayahuasca case is going to move to exclude such evidence. Plaintiffs seeking injunctions against government enforcement of the Controlled Substances Act now have road maps to success.
As Gayle says, yes, that it makes it better for everyone else.
But at the same time, it also means that the DEA and DOJ **need to win a case.** And to win a case, my guess is that they will go after someone they can win against, someone relatively helpless and likely to lose, like a loosely organized group of ayahuasca drinkers in ceremony with a visiting Peruvian shaman.
And always bear in mind two things. First, Congress can always change RFRA if they think it has allowed scruffy pagan hippies to evade the drug laws. I can do it in nineteen words: "Nothing in this Act shall be construed to provide any exemption from the provisions of the Controlled Substances Act." There. Done. Party over. If I can do it, Congress can do it.
Second, RFRA applies only to the federal government. If any user of ayahuasca is indicted and prosecuted under state law -- and every state has the state equivalent of the CSA -- then RFRA provides no shelter. If the state constitution has the equivalent of the federal free exercise clause, then perhaps the defendant could make a state constitutional argument. But I wouldn't bet my liberty on its success.
Yes it sucks. That is why people seeking cognitive liberty need to think strategically and consult with lawyers. Rights do not appear by magical invocation. They are carefully crafted over time.
Now I could, of course, be wrong on everything I have said. My legal prediction skills are really terrible. I can't tell you how often I have been wrong. I am about to blog, for example, about an eagle feather case where the court in fact decided something I predicted no court would ever decide. :-)
-- Steve
www.singingtotheplants.com/ -
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Unsu...
Re: appeal of oregon verdict
Thu, September 10, 2009 - 4:23 PM"Yes it sucks."
Steve I am glad we agree...
This is really my point... its great for these churches but i really do not think that it brings the rest of us who are outside of these churches a step closer... any more then the NAC ever did...
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 1:38 PM
"If I were the DEA and the DOJ, right now I would be worried about the precedents that have been set in the two existing ayahuasca cases. I would want to do something to break that losing streak.
the DEA and DOJ **need to win a case.** And to win a case, my guess is that they will go after someone they can win against, someone relatively helpless and likely to lose, like a loosely organized group of ayahuasca drinkers in ceremony with a visiting Peruvian shaman."
Yes, they need to win a case, but prosecuting a visiting Peruvian shaman from a tradition that goes back thousands of years and a practice recognized as legal and as cultural patrimony in its country of origin, with relevant precedent in the USA Peyote law (which does not require being a member of a legally formalized group) -- there is a strong likelihood that the government would lose, which could expand the precedent much further.
What they would look for (if they are smart, and there are reasons to doubt that) is a far weaker case -- an individual or loose group of friends who have no history, tradition, doctrine, or ritual structure, The courts have so far not been inclined to define religion as expansion of consciousness, altered states, mystical insights, clairvoyant experiences, etc., in the absence of history, doctrine, structure, or well-defined membership.
So that is why i say that groups working with shamans can consider themselves safe from harassment as long as they are discreet -- in effect, the status quo. Besides, it is the shaman, the one distributing the controlled substance, who is actually at risk.
"Congress can always change RFRA if they think it has allowed scruffy pagan hippies to evade the drug laws. I can do it in nineteen words: "Nothing in this Act shall be construed to provide any exemption from the provisions of the Controlled Substances Act." There. Done. Party over. If I can do it, Congress can do it. "
Yes, they can. But the likelihood that they would do this is nil.
For one thing, this would be a statement that the courts, who were entrusted with judging these cases, are not doing their job. Not just one flaky judge who can be overturned on appeal, but the entire judiciary.
For another thing, any such weakening of RFRA would face opposition from the same broad coalition of religious and civil liberties groups that came together to pass RFRA in the first place and to support the UDV case. (The UDV's right to drink Hoasca was supported by groups as diverse as the National Association of Evangelicals, the U.S. Conference of Catholic Bishops, the American Jewish Congress, the Baptist Joint Committee, the General Assembly of the Presbyterian Church USA, the First Church of Christ Scientist of Boston, the Unification Church (Moonies), the Peyote Way Church of God, the Christian Legal Society, the ACLU, People for the American Way, the Institute on Religion and Public Policy, Americans for Religious Liberty, the Liberty Council, Advocates for Faith and Freedom, the Agudath Israel of America (Orthodox Jews), the Minaret of Freedom Institute (Muslims), the Sikh Coalition, the Sikh American Legal Defense and Education Fund, Union for Reform Judaism, Jewish Prisoner Services International, the United Synagogue of Conservative Judaism, the Association on American Indian Affairs, the Unitarian Universalist Association, the Hindu American Foundation, the Native American Rights Fund, the General Council of Seventh-Day Adventists, the Seventh Day Adventist Church State Council, the Arizona Civil Liberties Union, the Becket Foundation for Religious Liberty, the International Academy for the Freedom of Religion and Belief, the Liberty Legal Institute,m the Council on Spiritual Practices, and others. A wide coalition of evangelical and liberal Protestants and Catholics, orthodox, conservative and reform Jews, Muslims, Sikhs, Hindus, Unitarians, American Indians, Christian Scientists, Moonies, the Peyote Way Church of God, and the ACLU and other civil liberties groups, all recognizing the importance of the UDV case to religious liberty.
Third, for us the issue of entheogenic rights looms large, but for Congress, entheogenic churches, or pagan hippies with odd religions, is wayyyyyyyy far down on their list of priorities as well as way down on the list of public concern. If there were proposals to amend RFRA, many other issues oif much greater public concern would take precedence -- issues involving education, faith healing, abortion, burqas, whether religious belief permits discrimination, etc, etc, which would all be attended by controversy. Snipping pieces out of RFRA because we don't like the kind of people who have used RFRA successfully -- this would be seen as a threat by the entire coalition that supported RFRA. And they could hardly say "We didn't realize this would be used for drug religions" when it was an entheogen case that led to the passage of RFRA in the first place.... let alone after the UDV case and other entheogen cases, successful and unsuccessful. Entheogenic religious rights are the most visible and symbolic aspect of RFRA.
And it isn't quite true that this is "RFRA, not First amendment." RFRA mandates a certain standard for judging First Amendment cases. The establishment clause of the First Amendment prohibits the preference of one religion (or non-religion) over another, a clause which sometimes came into conflict with "prohibiting the free exercise thereof" because courts sometimes interpreted religious freedom exemptions to the law as favoritism to a particular religion, whereas in other cases they used the compelling interest test. RFRA basically mandates that the compelling interest test be used in all religious freedom cases. The compelling interest test was overturned in Smith v state of Oregon, a development so alarming to religious groups of all types that they came together in unprecedented unity to get RFRA passed. (RFRA was passed by Congress by a vote of 532-3.) And since RFRA the body of precedent using the compelling interest test is growing, which means that the precedents would remain even if RFRA were overturned or amended. -
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 1:42 PMWow.... thanks for that Gayle.
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 2:11 PMOne of the great advantages of divergent predictions of the future is that you get to see who is right. :-)
There are different legal strategies that are employed by different lawyers, based on background, temperament, and long- or short-term goals. A plaintiff's lawyer who needs win only one case to pay off the yacht will have one strategy, while a defense lawyer who is defending a hundred similar cases around the country will have another. Add to that the fact that plaintiffs' lawyers and defense lawyers are likely to have different temperaments in the first place, and you can see why there are disagreements such as the one Gayle and I appear to be having.
As a defense lawyer in nationwide litigation, I generally thought about my goals in terms of what has been called a minimax strategy. That is, I would attempt to minimize the likelihood of the worst possible outcome. That is generally a pretty good defense strategy, and is one of the reasons -- as I posted about before -- I would stay awake at night worrying about collateral estoppel. To be collaterally estopped from pursuing a crucial defense would be one of the worst possible outcomes. That is why, strategically, it was often more important for me to win the first two cases than the third case.
As a defense lawyer, I think about entheogen litigation from a defense perspective -- that is, given the current state of the law, what is the worst possible outcome? To me, there are two -- first, a change in RFRA; and, second, a solid well-written appellate decision from a respected circuit that calls into question the precedents so far established, or puts clearly articulated and defensible limits on what can be considered the religious use of an entheogen.
From what I understand of Gayle's background, she is approaching entheogen litigation from a plaintiff's perspective. I have no disagreement with that. It is a valuable perspective which should -- especially because of her background and experience -- be listened to with great respect.
It is not a matter of one of us being wrong and the other right. Gayle thinks: What is the greatest triumph we should strive to win? I think: What is the greatest disaster we should strive to avoid?
From my point of view, that means proceeding carefully, picking the right case to push forward in front of the right district court, working with potentially sympathetic members of Congress, slowly building on hard-won precedents, and especially not wasting scarce resources on Quixotic experiments.
But I am old, and many of you are young. That is the way of things.
I would be honored to have Gayle standing by my side in any court in the country.
-- Steve
www.singgingtotheplants.com/
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 2:49 PMThis is becoming quite fascinating, along with being an education... Thank you both. -
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 2:57 PMI seem to have gotten in over my head from a legal point of view as my understanding is really limited, but if I can consider you both as friends then I have also grown considerably in my capacity to understand the possibilities due to your contributions.
Thank you both. This issue and these freedoms are deeply important to me and I very much appreciate the way you've opened up the conversation and broadened the scope of my understanding. -
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 4:08 PM"I seem to have gotten in over my head from a legal point of view as my understanding is really limited"
I used a lot of shorthand terms, I guess. For months now I have been immersed in the study of entheogenic case law, have read just about every document in the UDV and Oregon SD cases and everything I can find on other entheogenic cases, because several different groups of people who want to form Ayahuasca churches have been consulting with me about it, so I have been doing research.
When I have time I will try to write something that explains the whole RFRA thing more clearly. However, for the whole background of how RFRA came to be passed and what it means, the book "Religious Freedom and Indian Rights: The Case of Oregon v Smith" is invaluable.
www.amazon.com/Religious-...ref=sr_1_11
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 3:16 PMSteve said:
From my point of view, that means proceeding carefully, picking the right case to push forward in front of the right district court, working with potentially sympathetic members of Congress, slowly building on hard-won precedents, and especially not wasting scarce resources on Quixotic experiments.
It seems to me that the best strategy would be to form a church either from scratch or based on an existing Amazonian institution like Soga del Alma. Then to utilize the medicine in a sacred way, create membership, establish a location, etc., all the things that make up a church in the legal sense. Then continue in practice until/if there was a legal issue created. That would be the time to go to court, a la UDV.
Or am I missing something? -
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 4:28 PM"It seems to me that the best strategy would be to form a church either from scratch or based on an existing Amazonian institution like Soga del Alma. Then to utilize the medicine in a sacred way, create membership, establish a location, etc., all the things that make up a church in the legal sense. Then continue in practice until/if there was a legal issue created. That would be the time to go to court, a la UDV. "
That's... it in a nutshell -- if the idea is to set a wider precedent as opposed to just doing your own work. (Makes it sound so simple.)
Alan is a little controversial, so that could be one reason for starting from scratch.
I am in touch with a number of different groups who are wanting or trying to start Ayahuasca churches and have been asking me for advice (but most of them just want to practice their religion in peace, not go to court and set precedents for others, so bravo to you). So in recent moths I have been immersed in researching US entheogenic case law. I have posted a lot of the most significant documents on the ayahuasca.com forums to help as resources for people interested in doing this. Some key discussion is in this thread about the UDV decision - www.forums.ayahuasca.com/phpbb...ic.php .
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 4:37 PM"
From my point of view, that means proceeding carefully, picking the right case to push forward in front of the right district court, working with potentially sympathetic members of Congress, slowly building on hard-won precedents, and especially not wasting scarce resources on Quixotic experiments. "
Actually, I think the same!
But on the other hand, what you posted about "collateral estoppel" (which I had never heard of before) -- that sounded like great news for our side. I can't even see any downside to it. It means, if I understand correctly, that having failed to prove in two major cases that Ayahuasca causes harm, it's a done deal now, the government can't try that again, which would in turn make future Aya cases a lot easier (for our side). is that a correct understanding? -
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 5:40 PMWhoa, everybody.
Every time I talk about how cautious we need to be, everyone takes that as an indication of imminent success. :-) I guess that is because I am old and you are young.
I used collateral estoppel by way of example. It is a common-law doctrine of narrow scope and limited applicability. I doubt that it would be available to the defense in a criminal prosecution. And, as I have said, I have not researched whether it could be used offensively in seeking an injunction against the DEA.
Collateral estoppel is a tool that you can, perhaps, try to use in some cases. There are many other tools that good lawyers can use to shape the battlefield before trial.
If I could communicate only one thing in this thread, it would be this: There is no such thing as a legal case in the abstract, any more than there can be a battle in the abstract. A lawsuit takes place in a particular venue, under specific and often peculiar laws, with a unique history, and before a judge who is an individual person with pre-existing biases, assumptions, and attitudes, just like any other human being. That is the battlefield that must be shaped. To think otherwise is to think that you can fight a battle and leave out considerations of terrain.
I would guess, for example, that most courts would be skeptical of newly formed churches. But the question always: What will **this** judge think?
Let me put it this way: If you were representing a group of ayahuasca drinkers, would you rather be in front of a judge who is a liberal Presbyterian or a traditional Mormon? Would you just present the same case to both?
I fear I may have wandered. I guess I am passionate about the art of lawyering -- probably because it is so often done so badly. :-) By the way, the Santo Daime case in Oregon was an example of outstanding lawyering by the church's attorneys. They spent, quite literally, years preparing their battleground, and it paid off.
-- Steve
www.singingtotheplants.com/ -
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 6:03 PMNot all of us are all that young.
And thanks for mentioning -- it's not "imminent" success. A precedent-setting case will take years of preparation and commitment. As well as top-quality lawyers. It doesn't just happen.
And with Santo Daime, they not only had the commitment and the excellent lawyer. (And a great judge.) They also have very strong prayers, and very strong spirit help.
I am much more cautious than I may present here. Having consulted in private with several groups that are trying to form churches, I know some important things related to their anticipated legal strategies that I cannot make public, even though it could conceivably help others, because if some other group were to jump on the same points of law and use them badly, it could mess things up.
But it seems that you have a sense of what kinds of mistakes could be made, and what NOT to do, and the more we all know about what not to do, the better.
(I am not a lawyer, btw -- just someone who sometimes researches things obsessively.) -
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Unsu...
Re: appeal of oregon verdict
Fri, September 11, 2009 - 6:07 PMall of our molecules are the same age there steve...
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Re: appeal of oregon verdict
Mon, October 5, 2009 - 4:19 PMJonathan Goldman said last night that the Oregon churches' lawyer, Roy Haber, is on his way to Washington DC to negotiate with the Justice Department so that they might not file this appeal. Here I'd thought the appeal was a blessing in disguise because a victory in the Ninth Circuit Court would extend the precedent to the whole west coast.
The appeal is due to be filed on Dec 7, if the government does decide to file it. It doesn't appear that they are even seeking that the judgment be reversed, only that the ruling be amended so that the DEA can be more closely involved in regulating the supply of Daime sacrament, similar to what they ask in this motion at the end of the trial:
www.bialabate.net/wp-conten...dgment.pdf -
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Re: appeal of oregon verdict
Mon, November 9, 2009 - 11:44 AMI got some clarification of what this appeal is about from talking to someone who is involved. The government has to file its appeal in December (think by Dec 4, not sure) so the situation will be clearer then, but this is the basic situation.
When the UDV won its victory in the Supreme Court, what the decision actually explicitly covered was limited. The Supreme Court decided that the medicine confiscated by the government had to be returned to the UDV, and that the government could not prohibit them from importing the medicine. However, the Supreme Court did not rule about whether the DEA's complicated and expensive system of regulations, designed to regulate multi-million-dollar pharmaceutical giants, could or could not be used to regulate the UDV. Litigation has continued on this question, with the government arguing that the Supreme Court’s decision should be very narrowly interpreted as barring only an outright “ban” on the importation and use of the medicine, and not a prohibition of *any* regulation by the DEA of the UDV’s practice. According to the government, the UDV has in effect won the right to be a legal importer of a controlled substance, and as such may be subject to the extensive regulations that govern the importation of dangerous pharmaceuticals.
The Santo Daime victory, while only covering Oregon, went much further. The Santo Daime was granted not only freedom from outright prohibition, but also from the DEA's complicated system of regulations. They are required to keep the supply of the medicine in an ultra-secure place and keep accounting of how much is used, when, and by how many people, and that is about it as far as regulation.
This sets a precedent that the government does not want to accept. So they are not appealing the whole judgment, but the part of the judgment that says that the Santo Daime does not have to be under the same complicated expensive minute ultra-regulation as a corporation in the business of importing dangerous pharmaceuticals.
The SD lawyer, Roy Haber, went to Washington last month to try to negotiate with the government to drop the appeal, but negotiations got nowhere.
But is it not true that the government is taking the risk of, when they lose, extending the precedent to all the states covered by the Ninth Circuit? So, I asked, is appeal not a blessing in disguise? Yes, I was told, but the Oregon SD would still rather not have to deal with the appeal at all, because it takes a long time, is expensive, and there is always the remote chance of getting an unsympathetic judge. However, worst case scenario, losing the case only means that SD is not legalized in all these other states and that Oregon SD has to deal with a massive regulatory burden. They will not lose their legal medicine. -
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Re: appeal of oregon verdict
Mon, November 9, 2009 - 3:22 PMOne thing I have heard is that the DEA would require each church to keep track not just of how much medicine is imported, used, etc., but the exact number of milligrams of DMT (the controlled substance) being received by the church and consumed by each person. Not such a biggie for a giant pharmaceutical company with labs and staff chemists and a factory popping out identical little pills of identical doses of some synthetic chemical -- but can you imagine the burden on some little group of people, who meet in someone's living room, to get a precise chemical analysis of every batch of a brew made of hand-gathered plants and cooked over an open fire in the jungle?
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Unsu...
Re: appeal of oregon verdict
Thu, September 10, 2009 - 4:16 PMCG i do not have the right to drink legally... that what i meant and you know thats what i meant...
no need to to get hung up on my verbiage...
"I don't think you can make a statement like that Gayle."
and i agree...
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Re: appeal of oregon verdict
Thu, September 10, 2009 - 5:05 PM'I don't think you can make a statement like that Gayle."
What I mean is that, the last thing they want to do is expand the precedent...
Okay. I take that back. They are expanding the precedent by making this appeal. Go figure. -
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Re: appeal of oregon verdict
Thu, September 10, 2009 - 6:01 PMSo, I know of one church in Peru already recognized by the government there that promotes the shamanic (e.g. traditional) use of Ayahuasca. Would it make sense to incorporate a branch of that church in the US and then have members (agreeing to the principals and tenets, of course) join? -
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Re: appeal of oregon verdict
Thu, September 10, 2009 - 6:07 PM>>>I know of one church in Peru already recognized by the government there<<<
I have heard this before, but I am unfamiliar with what this actually means under Peruvian law. Can anyone clarify this for me?
-- Steve
www.singingtotheplants.com/
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Unsu...
Re: appeal of oregon verdict
Thu, September 10, 2009 - 6:08 PMwould that "church" have the money to deal with all of the legal fees? -
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Unsu...
Re: appeal of oregon verdict
Thu, September 10, 2009 - 6:08 PMif we are talkin about soga del alma then I would just ask Alan Steve... -
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Re: appeal of oregon verdict
Thu, September 10, 2009 - 6:21 PMYup. That's what I'm talking about.
I'll point him this way.
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Re: appeal of oregon verdict
Thu, September 10, 2009 - 6:21 PMHow hard should I laugh?
IOW, nope.
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 4:37 AM> would that "church" have the money to deal with all of the legal fees?
I'm guessing there are at least as many people interested in the traditional use of Ayahuasca in the US and willing to donate to such a church, as there have been in the cases of the UDV and Santo Daime... -
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Unsu...
Re: appeal of oregon verdict
Fri, September 11, 2009 - 8:26 AMyou might be onto somthing there... -
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 10:27 AMIt seems to me that enough research has been done by anthropologists and others in academic settings that a case can be made for the legitimacy of shamanic behavior in community as something both historically valid and applicable as a method of spiritual/religious behavior in a modern setting.
If, with all the information available, someone couldn't make an elegant and relevant argument for it having a valuable place in today's world I'd be surprised. Finding recognized shamans to work with initially, recognized in their home countries, and having a program that followed certain guidelines that would satisfy some of the legal requirements doesn't seem to be an impossible task.
It doesn't seem like a new organization would be a problem in terms of it's age or history if you can show that the practice itself is thousands of years old.
If it's ever going to happen though someone is going to have to work their ass off weaving it into reality. -
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 10:36 AMAnd so a seed is planted.
Shall we make it grow? -
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Unsu...
Re: appeal of oregon verdict
Fri, September 11, 2009 - 11:20 AMmy complaining and criticism is generally productive... being a withershin folk helps a bit...
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 11:27 AMIf having prayers for it's success makes a difference you certainly have mine.
I can see something like this Tribe and the associated ayahuasca forums out there as being a wonderful base for the development of the idea. Organizations like MAPS and others, along with the various authors in the field of Shamanism, would all seem to be candidates for helping develop a strategy. I can picture a small center focused on the medicines as having enough legitimacy with the participation of those I mentioned above.
Having one venue operating in a very structured and careful way in as much in harmony with the legal climate as possible could be a start. It's a road, and someone needs to start walking down it, or a seed, that someone or a group of someones needs to nurture.
It seems to me that there would be a lot of support for it, both here and abroad. -
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 3:26 PMJust found this. The last paragraph is particularly interesting:
No Holy Smoke in Arizona
Jacob Sullum | September 11, 2009, 5:27pm
I opened my 2007 Reason article about religious drug use with the case of Dan and Mary Quaintance, the Pima, Arizona, couple who founded the marijuana-venerating Church of Cognizance. Having unsuccessfully tried to fend off federal marijuana charges by citing the Religious Freedom Restoration Act (RFRA), they are currently serving five and two to three years, respectively, in federal prison. Last year I noted that another Church of Cognizance member, Daniel Hardesty, was pursuing a religious freedom defense under Arizona law. This week, the Drug War Chronicle reports, the Arizona Supreme Court rejected his claim.
It was a bit surprising that the court agreed to hear Hardesty's appeal at all, but evidently it wanted to settle the question of whether Arizonans can claim a right to use marijuana as a sacrament, an issue it had never addressed. The details of Hardesty's case made it easy for the court to say no: He was caught with half an ounce of pot in his car, having just tossed a smoldering joint out the window. The court's decision (PDF) highlights the fact that Hardesty claimed a right to "smoke and eat marijuana without limit as to time or place," including "the right to ingest while driving and, presumably, the right to drive while impaired by marijuana."
Hardesty argued that forbidding him to possess marijuana violates Arizona's Free Exercise of Religion Act (FERA). That law, similar to the federal RFRA, allows the state to impose a burden on an individual's exercise of his religion only if it is "the least restrictive means" of furthering a "compelling governmental interest." The state cited two compelling interests in banning marijuana: "preventing the deleterious health effects associated with marijuana use and combating the danger to public safety and welfare that result from trafficking in marijuana." Because "Hardesty claims an unlimited religious right to use marijuana when and where he chooses, and in whatever amounts he sees fit," the court concluded, "in the context of this case, no means less restrictive than a ban will achieve the State's conceded interests."
The court said the Native American Church's peyote rituals, which are protected under federal and state law, differ from Hardesty's marijuana use in two important ways: They are limited to specific times and places, and they involve a drug for which the black market is tiny compared to the marijuana market. Although that second factor might mean that marijuana, unlike peyote or ayahuasca, will never be permitted as a sacrament, the court left the door open to a claim from someone whose religious use of cannabis is more circumscribed. And unlike the state appeals court, it held that FERA can be cited as a defense against drug charges, though whether such a defense will prevail is another matter.
reason.com/blog/show/136034.html -
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Re: appeal of oregon verdict
Fri, September 11, 2009 - 3:55 PMHere is a discussion of this case which includes some points of relevance to possible Ayahuasca cases. -
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Re: appeal of oregon verdict
Sun, September 13, 2009 - 11:04 AMAs a friend of the possibility of ayahuasca shamanism finding a place in our modern world here in the US I'll hold it as a prayer in the work I'm attending today.
I'll dream of it happening and offer my prayers that it find it's way into being for the benefit of all those who would attend if it were available here. -
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Re: appeal of oregon verdict
Sun, September 13, 2009 - 12:28 PM"As a friend of the possibility of ayahuasca shamanism finding a place in our modern world here in the US I'll hold it as a prayer in the work I'm attending today.
I'll dream of it happening and offer my prayers that it find it's way into being for the benefit of all those who would attend if it were available here."
Wow. Yes, thank you. The prayers at those works are very strong, and I can feel the strength of your prayers just reading your words. -
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Re: appeal of oregon verdict
Sun, September 13, 2009 - 7:40 PMWhere's my good friend Rebecca? It says she unsubscribed.
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Re: appeal of oregon verdict
Mon, September 14, 2009 - 2:47 AMAhh, your very welcome Gayle and LLB.
Tonight I rode the whirlwind out beyond the frothy edge of oblivion and pinned my prayers to the wing of something deeply beautiful.
On the way back the medicine said,
"be kind, and leave the rest open,
only just be kind,
and what your kindness can't encompass, leave empty".
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Re: appeal of oregon verdict
Tue, September 15, 2009 - 6:38 PMLLB, there is a branch of the NAC that won a case involving non-native use of peyote in Utah: www.youtube.com/watch -
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This is the maximum depth. Additional responses will not be threaded.Unsu...
Re: appeal of oregon verdict
Tue, September 15, 2009 - 7:30 PMyeah i know about that one mooney is on my freinds list lol...
I am still not sure how far reaching that was though or if it really did all that much good all in all. the goverment has itself one of the most out and out racist laws on peyote one can imagine...
most of the time it is base don blood quantum or what ever the particular tribe requires for membership...
im still not really even sure mooney won that one...
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