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F:Lizcivil Ordersudveqp2 Case 1:00-cv-01647-JAP-RLP Document 86 Filed 02/25/02 Page 1 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO _____________________ O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL (a.k.a. Uniao do Vegetal) (USA) (“UDV-USA”), a New Mexico Corporation on its own behalf and on behalf od all its members in the United States, JEFFREY BRONFMAN, individually and as President of UDV-USA, CHRISTINA BARRETO, individually and as Secretary of UDV-USA, FERNANDO BARRETO, individually and as Treasurer of UDV-USA, CHRISTINE BERMAN, MITCHEL BERMAN, JUSSARA de ALMEIDA DIAS, PATRICIA DOMINGO, DAVID LENDERTS, DAVID MARTIN, MARIA EUGENIA PELAEZ, BRYAN REA, DON ST. JOHN, CARMEN TUCKER, and SOLAR LAW, individually and as members of UDV-USA, Plaintiffs, v. CIV. No. 00-1647 JP/RLP JOHN ASHCROFT, Attorney General of the United States, DONNIE R. MARSHALL, Administrator of the United States Drug Enforcement Administration, PAUL H. O’NEILL, Secretary of the Department of Treasury of the United States, DAVID IGLESIAS, United States Attorney for the District of New Mexico, and JOHN O’TOOLE, Resident Special Agent in Charge of the United States Customs Service Office of Criminal Investigation in Albuquerque, New Mexico, all in their official capacities, Defendants. Case 1:00-cv-01647-JAP-RLP Document 86 Filed 02/25/02 Page 2 of 24 MEMORANDUM OPINION AND ORDER The Plaintiffs seek a preliminary injunction on a number of grounds, including Equal Protection under the Fifth Amendment to the United States Constitution. On January 7, 2002, the Native American Church of Oklahoma, the Native American Church of North America, and the Native American Church of the Kiowa Tribe of the State of Oklahoma filed a Motion to File an Amicus Curiae Brief in Opposition to Plaintiffs’ Application for a Preliminary Injunction (Doc. No. 82). These Native American Church organizations request leave to participate in the briefing of this case with respect to the Plaintiffs’ Equal Protection claim. After carefully considering the parties’ briefs, the arguments and evidence presented by the Plaintiffs and Defendants during the evidentiary hearing that took place from October 22, 2001 to November 2, 2001, and the relevant law, this Court has concluded 1) that the Motion to File an Amicus Curiae brief should be denied; and 2) that the Plaintiffs’ Motion for Preliminary Injunction (Doc. No. 10) should be denied as to their Equal Protection claim. I. BACKGROUND The Plaintiffs in this case are a church, O Centro Espirita Beneficiente Uniao do Vegetal (UDV), and several officials and members of the UDV in the United States. José Gabriel Da Costa, known as Mestre Gabriel within the UDV, founded the church in Brazil in 1961. Although the UDV is a Christian denomination, the church draws on traditional indigenous beliefs and practices in Brazil. Religious ceremonies in the UDV largely center around the consumption of hoasca, a tea brewed from two plants native to the Amazon River Basin. Adherents to the UDV consider hoasca a sacrament. The UDV officially established a branch in the United States in 2 Case 1:00-cv-01647-JAP-RLP Document 86 Filed 02/25/02 Page 3 of 24 1993. Plaintiff Jeffrey Bronfman, as representative mestre and president of the UDV in the United States, leads the church within this country. The U.S. branch of the UDV now numbers about 130 members, and its headquarters are in Santa Fe, New Mexico. This case arises from the United States Customs Service’s seizure in the United States, on May 21, 1999, of a substantial quantity of hoasca tea from the UDV. The United States government has maintained that possession and use of hoasca is illegal under the Controlled Substances Act (CSA), 21 U.S.C. § 801, et seq. Hoasca contains dimethyltryptamine (DMT), a hallucinogenic chemical. The CSA classifies DMT as a “Schedule I” substance and generally bars its use and possession. The government has not filed criminal charges against any UDV members for possessing DMT, but it has threatened prosecution for future possession of hoasca. In response to the government’s position, the UDV has suspended its use of hoasca in the United States. The government concedes, at this stage of litigation, that prohibitions on hoasca use in the United States substantially burden the Plaintiffs’ exercise of their religion. On November 21, 2000, the Plaintiffs filed a Complaint for Declaratory and Injunctive Relief (Doc. No. 1). The Complaint alleges violations of the Religious Freedom Restoration Act, the First Amendment to the United States Constitution, Equal Protection principles, the Fourth Amendment, the Fifth Amendment, the Administrative Procedure Act, and international laws and treaties. The Complaint also asserts that the Controlled Substances Act should not be construed to apply to hoasca. On December 22, 2000, the Plaintiffs filed a Motion for Preliminary Injunction (Doc. No. 10). On October 22 through November 2, 2001, this Court held a hearing on the Plaintiffs’ Motion for Preliminary Injunction. During this hearing, the parties presented arguments and evidence on a number of the issues raised by the Plaintiffs’ motion. 3 Case 1:00-cv-01647-JAP-RLP Document 86 Filed 02/25/02 Page 4 of 24 II. AMICI CURIAE This Memorandum Opinion and Order, the first opinion entered concerning the Plaintiffs’ Motion for Preliminary Injunction, primarily addresses the Plaintiffs’ Equal Protection claim. The Court’s decision to begin with this issue stems in part from the efforts of a group of Native American Church organizations to enter this case as amici curiae. On January 7, 2002, the Native American Church of Oklahoma, the Native American Church of North America, and the Native American Church of the Kiowa Tribe of the State of Oklahoma submitted a Motion to File an Amicus Curiae Brief in Opposition to Plaintiffs’ Application for a Preliminary Injunction (Doc. No. 82). These NAC organizations contend that their participation as amici “would assist the Court in making its decision regarding Plaintiffs’ Motion for Preliminary Injunction with respect to Plaintiffs’ constitutional Equal Protection claim.” (See NAC Motion at 1). The Plaintiffs maintain that the federal government violates Equal Protection principles by granting members of the Native American Church an exemption from prosecution for their ceremonial use of peyote without granting UDV members a comparable exemption for their ceremonial use of hoasca. This Court has decided that the NAC organizations’ motion to file an amicus brief should be denied. First, as the Plaintiffs point out in their Response in Opposition to the NAC organizations’ motion (Doc. No. 84), the request to enter as amici is not timely. Not only have the Plaintiffs and Defendants prepared numerous briefs on the Plaintiffs’ Motion for Preliminary Injunction, over a period of more than a year, the parties also presented evidence and arguments at a lengthy hearing. Allowing amici to step in at this late point would not be appropriate. Second, the Court does not believe that the participation of the NAC organizations in this case would be helpful to the Court. This Court has reached a decision regarding the Plaintiffs’ Motion 4 Case 1:00-cv-01647-JAP-RLP Document 86 Filed 02/25/02 Page 5 of 24 for Preliminary Injunction, as to the Equal Protection claim, without reliance on the NAC organizations’ brief. That decision is set out below. III. PLAINTIFFS’ EQUAL PROTECTION CLAIM A. STANDARD The Tenth Circuit has stated that “[a] movant is entitled to a preliminary injunction if he can establish the following: (1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; and (4) the injunction is not adverse to the public interest.” Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). This Memorandum Opinion and Order considers the Plaintiffs’ likelihood of success on the merits of their Equal Protection claim. This Court recognizes that “[i]f the party seeking the preliminary injunction can establish the last three factors . then the first factor becomes less strict--i.e., instead of showing a substantial likelihood of success, the party need only prove that there are ‘questions going to the merits ... so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.’” Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246-1247 (10th Cir. 2001), quoting Federal Lands Legal Consortium v. United States, 195 F.3d 1190, 1194 (10th Cir.1999). However, even assuming that the Plaintiffs have met the last three elements, it seems appropriate to examine the first element at this time. The Court has conducted an extended evidentiary hearing on the Equal Protection issue, and the parties have indicated that they would present little additional evidence about the issue if a trial on the merits is held. (Tr. at 2034-2035.) In other words, “deliberate investigation” has already 5 Case 1:00-cv-01647-JAP-RLP Document 86 Filed 02/25/02 Page 6 of 24 taken place. B. DISCUSSION The Fourteenth Amendment declares that no state may “deny to any person within its jurisdiction the equal protection of the laws.” Equal Protection standards apply to federal laws through the Fifth Amendment’s due process guarantee. See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n. 2 (1975). The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985), citing Plyler v. Doe, 457 U.S. 202, 216 (1982).
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