The Law of Entheogenic Churches in the United States gives its reader a foundational understanding of the law surrounding the legality of ayahuasca and other entheogenic-based churches in the United States.
The book covers the following topics:
Chapter One: The Religious Freedom And Restoration Act
Chapter Two: Claims and Defenses under the Religious Freedom and Restoration Act: A Case Law Survey
Chapter Three: DEA’s Regulation of Entheogenic Churches
Chapter Four: General Guide to Forming a Non-Profit Church
Chapter Five: Frequently Asked Questions
The Law of Entheogenic Churches in the United States was written in laymen’s terms so the average reader can understand and acquire a foundational understanding of the law in this area.
This book discusses the Supreme Court precedent involving the ayahuasca religion UDV and the Oregon District Court opinion involving the ayahuasca religion of the Santo Daime.
As ayahuasca and other natural entheogenic medicines gain popularity as a religious sacrament, this area of the law will become increasingly relevant.
In this book, author George G. Lake, Esq. imparts the necessary knowledge needed to navigate this area of law.
THE LAW OF ENTHEOGENIC CHURCHES IN THE UNITED STATES
GEORGE G. LAKE. ESQ.
Copyright © George G. Lake, Esq. 2021 All rights reserved.
No part of this book may be used or reproduced in any manner whatsoever without written permission except for brief quotations to be embodied in critical articles or reviews.
Foreword and Acknowledgements…………………………………………….. v
CHAPTER 1 The Religious Freedom and Restoration Act……………. 1
CHAPTER 2 Claims and Defenses Under the Religious Freedom
and Restoration Act: A Case Law Survey……………… 12
CHAPTER 3 DEA’s Regulation of Entheogenic Churches…………… 50
CHAPTER 4 General Guide to forming a non-profit Church………. 65
CHAPTER 5 Frequently Asked Questions……………………………….. 77
Foreword and Acknowledgements
My foray into the law of entheogenic churches began immediately after I published my first book, “Psychedelics in Mental Health Series: Psilocybin” back in June of 2020. The same week I published that book, I was asked about my knowledge of the law concern- ing the legality of entheogenic churches in the United States. Not knowing much, if any, about that specific area of law, I dove head-first into the research. Within a month, I had covered most, if not all the cases and statutes concerning free exercise of religion, especially as it relates to consuming entheogenic sacraments.
Eventually, I was asked to consult several ayahuasca churches on get- ting their paperwork in order so they could go “above board.” Over the span of about six months, I participated in approximately fifteen of these projects. Along the way, I was inspired to create the website http://www.entheoconnect.com, which will provide a worldwide social media platform for those in the entheogen/spirituality community, as well as ceremony and retreat listings in the U.S. and abroad.
Even before I sat down to write my first book, I decided that I would dedicate my life to the widespread legalization and acceptance of entheogens across the world. Seeing the mass decay in mental and spiritual health around the world, I knew these substances could provide the relief that many seek but never find through traditional western medicine. To that end, I have worked non-stop since June 2020 to push the movement ahead.
I see the movement or push towards overall legalization and acceptance of entheogens split into three separate camps: research, decriminalization, and religion. The research community has obviously been flourishing over the last ten years or so, especially regarding psilocybin. Great strides have been made showing psilocybin to be both safe and efficacious. Next, the decriminalization movement, particularly in the U.S., has also made great strides over the last several years getting numerous lo- cal measures passed. Most notably, Decriminalize Nature was able to get a decriminalization measure passed in Washington D.C. in November 2020. For me, this was a great signal that people’s attitudes towards these medicines was starting to shift. Lastly, the religious use of entheogens also plays a significant role in the movement and has made great strides over the last several years. For most, attending an entheogenic ceremony or retreat will be their only way to legally engage these medicines until the laws change.
While I am a subscriber to the religious use of entheogens, I do not under value the importance of the decriminalization movements or the research. As will be discussed later in this book, the research plays a sig- nificant role in Religious Freedom and Restoration Act claims. Every time a clinical dose of psilocybin is administered without incident, it bol- sters a religious adherent’s claims that the sacrament is safe, which factors into a RFRA analysis. Moreover, the decriminalization movement cites to clinical trials in the laws and ordinances they push on local municipal- ities. Therefore, the research is very much the cornerstone of this overall push towards widespread legalization and acceptance of entheogens.
I would like to thank my business partner Hector. When him and I met back in July, it was as if we had known each other our whole lives. Since then, we have grown as close as brothers and have seen each other grow mentally and spiritually since that time. I chose to go into business with Hector because I know that he has the heart and spirit to make a project like EntheoConnect a success.
I would like to thank Kevin Ferry of Ferry Law in Connecticut. Mr. Ferry is one outstanding individual who has supported the EntheoConnect project, no questions asked. When we met at a gathering in Virginia, I knew that he was a very grounded and spiritual man. We are now work- ing on some non-profit projects together and I have no doubt we will be able to positively impact thousands of lives through that work. I look forward to working with you brother. Much Love!!!!
I would like to thank all of the people that run the ceremonies and retreats I have worked with over the last six months. Thank you for put- ting your faith in me. It has been such an honor to be involved in these projects. It is the first time in my life that I have been so closely connect- ed with something much larger than myself. Doing the work for y’all has given me a sense of fulfillment I never had before. At the end of the day, y’all are the real heroes in all of this. And I have no doubt that history will look back at all of us very kindly. Keep fighting the good fight!!!!
I would like to thank my web developers at TCB Solutions in Baton Rouge, Louisiana. Specifically, I would like to think Brad and Tim. I will never forget when I asked Brad to get me a meeting with his boss, Tim, about EntheoConnect. My thoughts were “this guy will never want any- thing to do with this project.” Instead, I was told how interested Tim was and everyone at the company has shown a superior level of commitment since the first day we started running. I look forward to many years of fruitful projects with y’all. Much Love!!!
I want to thank the guys at Curious Chimps podcast. I have been on the show twice since I published my first book. Please keep doing the work you do or as you call it your “labor of love.” These are very special times we are living in and everything you do highlights all the best aspects of these times. I wish y’all the best in the future and I am looking forward to stopping back in early next year after I get this book published. Much Love!!!!!
I would like to thank Jonathan Glazer of the Thank You Plant Medicine Community. I was kind of in my feelings a bit when we met, but quickly connected on a very real level. Shortly thereafter, he had me come on for a live Facebook talk in the Thank You Plant Medicine Facebook group. It was a great talk, and I am grateful for it. I will con- tinue to support the Thank You Plant Medicine Community any way I can. Much Love!!!!
I would like to acknowledge all Facebook group administrators that allow people in this space to advertise and promote. If we view every- thing we do in this space as a movement towards general acceptance and legalization of entheogenic sacraments, then supporting those that stick their neck out and try to make a living in this space is as crucial as lobby- ing the legislature. The more people we can support in this space the bet- ter. The more people who are able to live comfortably, while expending all their efforts into this space, the better off we will be in the long run. Many of these group administrators are enemies of the movement and do not even know it. By shunning those that pour their heart and soul into producing works that strengthen this movement, you are working against everything those of us who care are trying to build. If we cannot support those producers within this community, how do we expect those same people to go out and change the minds of people outside this com- munity? Would a ten-year old kid feel comfortable acting in a school play if their parents told them not to practice or recite their lines at home? Love and support is the name of the game. All I ask is to act consistent with the messages you receive from the plant teachers. Much Love!!!!
I would like to thank Ms. Eva Ars. Ms. Eva is a Russian born medicine woman in Bulgaria. I had been searching for over five years for a balance of feminine energy in my life. I needed someone who under- stood the intricate balance of energy exchanges between the divine feminine and divine masculine. In her I found this person. My life changed
in a very significant way once we started talking and exchanging ener- gies. I look forward to many more years with you in my life!!!! AHO!!!! Much Love!!!!!
One special acknowledgement I would like to make is Ms. Emily Collins with Union Tribe Church in the DC area. She is a very special person and is very committed to this movement. I had the privilege of attending one of her ceremonies just prior to the election this year. It was a very special time, and I am extremely grateful for the opportunity. The ceremony was incredible. I look forward to many more years work- ing in tandem with you to keep pushing this movement along. AHO!!!! Much Love!!!!
The Religious Freedom and Restoration Act
I must begin this book with the following disclaimer: NOTHING IN THIS BOOK IS MEANT TO BE OR SHOULD BE CONSTRUED AS GIVING LEGAL ADVICE TO ANY OF MY READERS; NOR DOES THIS BOOK DOES NOT ESTABLISH A LAWYER- CLIENT RELATIONSHIP BETWEEN MYSELF AND ANY OF MY READERS.
This chapter will discuss the Religious Freedom and Restoration Act of 1993 (“RFRA”) and U.S. Supreme Court precedent both prior and subsequent to passage of the Act. The Religious Freedom and Restoration Act is the cornerstone of free exercise of religion at both the federal and, to a large extent, the state level. Specifically, as it relates to entheogenic churches and retreats, the RFRA provides the primary legal protection. As we will see, the RFRA was passed in response to a case out of Oregon wherein a law was upheld which denied unemployment benefits to a native American man who used peyote as a religious sacrament.
A. Pre-RFRA Case Law
The Religious Freedom and Restoration Act of 1993 was passed by the United States Congress in 1993 as a response to the U.S. Supreme Court’s decision in Employment Division Department of Human Resources of Oregon v. Smith. In Smith, the Supreme Court held the Free Exercise clause of the First Amendment does not prohibit governments from burdening religious practices through generally applicable laws. The Supreme Court rejected the challenge to the Oregon statute at issue, which denied unemployment benefits to drug users, including Native Americans engaged in the sacramental use of peyote.
In a nutshell, the Supreme Court’s decision in Smith was a radical departure from its prior holdings in Wisconsin v. Yoder and Sherbert v. Verner. Under the Yoder regime, a court might well grant a “free exercise” exception to an otherwise illegal religious practice if: (1) the religion was of a respectable vintage; (2) it was recognized as a legitimate faith; (3) the beliefs were sincerely held; (4) the practice which was proscribed by law did not cause others any direct harm; and (5) uniform application of the law was not essential to maintaining public order.
Under the Yoder regime, laws of general applicability were subject to the above-mentioned case-by-case analysis. Laws of general applicability are laws that apply equally to everyone across the board. In other areas of constitutional law, these types of laws are generally presumed to be constitutional. However, according to the Supreme Court’s decision
in Yoder, as it relates to “free exercise” of religion, a case-by-case analysis of the religious beliefs and the government’s interest in enforcing the law at issue were required. As we will see, the RFRA requires a case-by-case analysis very similar to that promulgated in Yoder, even when the challenged law is one of general applicability like the Oregon unemployment law challenged in Smith.
The Supreme Court’s decision in Smith eliminated the prior case- by-case approach required under Yoder. Under Smith, laws of general applicability, which did not target any specific religion, would be held constitutional even if they had secondary effects of burdening religious exercises. Basically, the Oregon unemployment statute which denied benefits to drug users applied to all peoples in the State of Oregon, regardless of their religion, and was therefore constitutional.Thus, the Smith decision represented a radical departure from Yoder and its progeny.
The takeaway here is this: Under Yoder, if a religious exercise was technically illegal, the courts would examine the public interest served by the law and weigh it against the religious practice at issue. Upon balancing, if the religious exercise does not affect or directly harm other people and/or usurp any compelling governmental interest, it was a protected activity. This test would have been applied regardless of whether the law generally applied to all people or if it targeted a particular religious exercise. All laws would undergo the same analysis. However, the Supreme Court’s decision in Smith did away with that analysis all together. Under Smith, generally applicable laws were deemed to be constitutional regardless of its effects on any particular religious exercise; there would be no more case-by-case analysis conducted for laws that were generally applicable. In the next section, we will see how congress reacted to the Supreme Court’s decision in Smith.
B. The Religious Freedom and Restoration Act of 1993
As stated above, the Religious Freedom and Restoration Act of 199321 was passed in direct response to the Supreme Court’s decision in Smith.22 The support in Congress for the RFRA was largely bipartisan. Considering its swift response to the Supreme Court’s decision and the language contained in the statute, Congress clearly disapproved of the result reached in Smith. The first section of the RFRA, entitled “Congressional Findings and Declaration of Purpose” states the following:
- Findings: The Congress finds that—the framers of the Constitution, recognizing free exercise of religion as an unalienable right, se- cured its protection in the First Amendment to the Constitution; laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise; governments should not substantially burden religious exercise without compelling justification; in Employment Division v. Smith, 494 U.S. 872
21 42 U.S.C. § 2000bb et. seq. 22 494 U.S. 872 (1990).
(1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
- the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
- Purposes The purposes of this chapter are—
- to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and,
- to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
This section makes clear Congress was not impressed with the Supreme Court’s decision in Smith and desired to reinstate the Yoder regime. To that end, Congress, through enacting the RFRA, mandated a case-by-case analysis of any law that operates to substantially burden a person’s free exercise of religion, regardless is the law is facially neutral (generally applicable) or not.
The next section of the RFRA lays out the test to be applied by the courts in “free exercise” cases:
- In general: Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b);
- Exception: Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person-
- is in furtherance of a compelling governmental interest; and
- is the least restrictive means of furthering that compelling governmental interest.
- Judicial relief: A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.24
This section of the RFRA lays out the test to be applied by federal courts in determining whether a particular religious exercise is protected from government interference in any given case. Again, this section is basically a codified version of the pre-Smith tests espoused in Yoder and its progeny. As we will see in the next chapter, what constitutes an “exercise of religion” has been defined by the federal courts and in and of itself is a whole other field of inquiry which must be undertaken in appropriate cases.
It is worth noting here that a religious claimant may both assert the RFRA as a claim and a defense. As we will cover in the next chapter on RFRA claims, in most cases involving entheogenic churches, the organizations assert a claim against the government before any criminal charges have been filed or arrests made. In a nutshell, government action, usually through the DEA, comes to a point where the imminent threat of prosecution becomes so great it rises to the level of a “substantial burden” on an individual’s exercise of religion, thereby giving the organization stand- ing to sue the government in federal court under the RFRA.
As to what constitutes a protected “exercise of religion,” RFRA defines that as “the exercise of religion under the First Amendment to the Constitution”. Again, we will delve further into what “the exercise of religion under the First Amendment to the Constitution” means in the next chapter. It is important to know the federal courts have developed workable tests over the years that help to define exactly what exercises of religion are protected by the First Amendment.
The takeaway here is this: Congress did not like the result reached by the Supreme Court in Smith, a case involving the sacramental use of peyote. In response, Congress enacted the RFRA, which mandates all religious exercise cases be examined on a case-by-case basis, regardless of whether the law at issue is facially neutral (generally applicable) or not. This represents prior Supreme Court precedent under the Yoder regime, which predated the Smith decision.
C. The Federal Religious Freedom and Restoration Act does not Apply to the States: City of Boerne v. Flores.26
In 1997, in the seminal case City of Boerne v. Flores, the Supreme Court held the federal Religious Freedom and Restoration Act does not apply to the states. I will forego an extensive and exhaustive review of the constitutional law and principles underlying the rationale in this case to keep this book understandable and relatable to the lay reader. However, it is very important for the reader to understand, especially in the context of entheogenic churches, that the federal RFRA does not apply to state or local authorities. Therefore, whether an entheogenic church will be fully protected will not only depend on the federal RFRA, but also depend on state laws regarding the free exercise of religion. This fact underscores the importance of retaining competent counsel in these areas to assist in drafting church filings, doctrine, and practices.
Luckily, in response to the Supreme Court’s decision in City of Boerne v. Flores, many states adopted their own analogous RFRA statutes. At this time, to the best of my knowledge, 21 states have adopted analogous RFRA statutes, which includes the following:
|Alabama||Ala. Const. Art. I §3.01|
|Arizona||Ariz. Rev. Stat. §41-1493.01|
|Arkansas||2015 SB 975, enacted April 2, 2015|
|Connecticut||Conn. Gen. Stat. §52-571b|
|Florida||Fla. Stat. §76.01, et. seq.|
|Idaho||Idaho Code §73-402|
|Illinois||Ill. Rev. Stat. Ch. 775, §35/1, et. seq.|
|Indiana||2015 SB 101, enacted March 26, 2015; 2015 SB 50, enacted April 2, 2015.|
|Kansas||Kan. Stat. §60-5301, et. seq.|
|Kentucky||Ky. Rev. Stat. §446.350|
|Louisiana||La. Rev. Stat. §13:5231, et. seq.|
|Mississippi||Miss. Code §11-61-1|
|Missouri||Mo. Rev. Stat. §1.302|
|New Mexico||N.M. Stat. §28-22-1, et. seq.|
|Oklahoma||Okla. Stat. tit. 51, §251, et. seq.|
|Pennsylvania||Pa. Stat. tit. 71, §2403|
|Rhode Island||R.I. Gen. Laws §42-80.1-1, et. seq.|
|South Carolina||S.C. Code §1-32-10, et. seq.|
|Tennessee||Tenn. Code §4-1-407|
|Texas||Tex. Civ. Prac. & Remedies Code §110.001, et. seq.|
|Virginia||Va. Code §57-2.02|
Now it is important to remember that just because these states enacted RFRA legislation, many even in direct response to the City of Boerne v. Flores decision, it can not necessarily be inferred their protections would extend as far as the federal RFRA statute. However, it is reasonable to infer, at least to some degree, that these states did intend to extend the same amount of protection, or greater, by enacting their own RFRA statutes.
As we will see in the next chapter, federal case law has supported the sacramental use of ayahuasca as a protected activity pursuant to the federal RFRA statute, in certain instances. In fact, the federal RFRA statute was enacted in response to the Smith decision, which was a case where a Native American man was denied unemployment benefits because of his use of peyote as a religious sacrament. Therefore, there is no doubt Congress at least had entheogenic sacraments in mind when they enacted the federal RFRA in 1993. By extension, it would also be fair to say the states which enacted analogous RFRA statutes, were also aware of the Smith decision and Congress’s swift response in enacting the federal RFRA statute. A valid argument could be made that the states would have specifically excepted entheogenic sacraments from their RFRA statutes, had they not intended to extend religious protection to their use. As we will see, in 2006 the Supreme Court upheld the ceremonial use of ayahuasca as a protected religious activity under the federal RFRA statute. It can be strongly inferred, in my opinion, that any state RFRA statute enacted subsequent to that decision, which doesn’t specifically except entheogenic sacraments from its purview, would include them in appropriate circumstances as a protected activity.
Note on State v. Mack
In State v. Mack, the New Hampshire Supreme Court decided that its freedom of religion constitutional provision required a RFRA-type analysis when laws of general applicability were challenged. In Mack, the defendant was a member of the Oklevueha Native American Church and had been practicing shamanic, earth-based religions for several years. In 2017, the defendant was found in possession of psilocybin mushrooms, which were tucked away in a safe in his home. Later, in April of 2018, he was indicted for possessing the psilocybin mushrooms The trial court conducted a hearing and denied the defendant’s motion to dismiss the indictment pursuant to Part I, Article 5 of the New Hampshire Constitution, which reads as follows:
“Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession, sentiments, or persuasion; provided he doth not disturb the public peace or disturb others in their religious worship.”
The defendant appealed the trial court’s decision. The New Hampshire Supreme Court then had to decide whether the defendant’s actions, in possessing and consuming psilocybin mushrooms in his own home, constituted a disturbance of the public peace. Without going into laborious details about the intricacies of the Court’s analysis, suffice it to say that the New Hampshire Supreme Court decided that its constitution
required an analysis similar to the RFRA, when laws of general applicability were challenged under Article I, Part 5 of the New Hampshire constitution.33
This decision is important for several reasons. First, it showed that state supreme courts are willing to depart from the Supreme Court’s decision in Smith, in favor of a RFRA-type analysis. Second, it showed that sacraments beyond just ayahuasca will be taken seriously and that courts will uphold religious exercises which include consuming such sacraments, in the appropriate circumstances. Lastly, I have a client who runs an ayahuasca retreat in New Hampshire. He and I did a YouTube video on this decision, as it boosted our confidence in the legality of his religious practice, especially at the state level.
It is important to keep in mind as we move forward, that free exercise claims are decided on a case-by-case basis. There is no blanket protection for the sacramental use of entheogenic sacraments. However, as we ex- amine the precedent on this issue, we will be able to discern which facts are important to the courts in deciding these cases. This in turn helps inform us on how to structure entheogenic churches, ceremonies, and retreats in a manner most likely to be protected by the courts under the federal and state RFRA statutes. This chapter was merely the framework from which everything in the subsequent chapters is built.
Claims and Defenses Under the Religious Freedom and Restoration Act:
A Case Law Survey
In this Chapter I will dissect claims and defenses under the Religious Freedom and Restoration Act. Specifically, I will address the federal courts’ analysis of RFRA claims made by ayahuasca churches. The two cases I will address are O Centro Espirita Beneficiente v. Ashcroft (“UDV case”) and Church of Holy Light and Queen v. Mukasey (“Santo Daime case”). In these cases, the federal courts conduct an analysis under the RFRA as applied to the consumption of ayahuasca as a religious sacrament. From these analyses, we can get a feel for what the federal courts will consider in determining whether any specific religious practice incorporating the consumption of entheogens is exempt from the Controlled
Substances Act37 pursuant to the RFRA.
37 21 U.S.C. § 801 et seq.
The first section in this Chapter will examine what constitutes a “religious” practice or exercise under the RFRA. The next two sections will examine the government’s burden in RFRA claims in the context of the two above-mentioned cases. The last section will contain a “takeaway” of what can be gleaned from the courts’ analysis in these two cases.
A. CLAIMANT’S BURDEN UNDER THE RFRA: “A SUBSTANTIAL BURDEN ON A SINCERE RELIGIOUS EXERCISE.”
When asserting a claim or defense under the RFRA, the plaintiff/defendant must first establish the government action has imposed a substantial burden on a sincere exercise of religion. At the outset, I would like to note in the UDV case, the government conceded that the Controlled Substances Act placed a substantial burden on the UDV’s sincere exercise of religion. However, in the Santo Daime case the government did not concede this point and disputed both the sincerity of the church’s religious beliefs and whether their use of sacramental ayahuasca constituted a “religious exercise.” I will cover the district court’s analysis in the Santo Daime case later in this chapter, but suffice it to say for now the district court had no problem finding the church met their burden of proof under the first prong of their RFRA claim.
- What Constitutes “Sincere”.
What constitutes sincerity in the context of a RFRA claim? Unfortunately, there is no “bright line” test to determine whether a religious belief is sincerely held. For the most part, that determination is primarily made through an assessment of the claimant’s credibility. The Fifth Circuit shares this sentiment on a Court’s foray into determining sincerity, “[t] hough the sincerity inquiry is important, it must be handled with a light touch, or ‘judicial shyness.’” “[E]xamin[ing] religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread”; “…claims of sincere religious belief in a particular practice have been accepted on little more than the plaintiff’s credible assertions.”
Unfortunately, in the Santo Daime case the government argued the fact the church conducted ceremonies in secrecy for a period of time, was evidence their consumption of ayahuasca wasn’t a sincere religious exercise.46 As will be discussed in greater detail later in this Chapter, the district court did not buy the government’s argument, as the government had created the conditions which drove the Santo Daime church under- ground for that specific period of time.
I have been made aware of a few different instances where the DEA has sent threatening letters to ayahuasca churches informing them they are not to consume ayahuasca until they are granted a DEA exemption and inviting them to apply for the exemption. However, this is more than likely a ruse to get churches to discontinue their religious practice, so they can later use it as evidence of a lack of sincerity. Whether a pause in a religious practice, due to government coercion, would be dispositive on the issue of sincerity is not clear. However, I believe it is fair to say that if a religious conviction or belief is truly sincere, even government coercion, outside of physical confinement, should not stop the practice. That is just my opinion.
- What makes a belief or practice “religious?”
While there is no “bright line” test to determine what makes a belief or practice “religious,” the federal courts have created a couple different tests to gauge whether the belief or practice at issue is “religious.” The first standard I will discuss was initially promulgated by the district court in U.S. v. Meyers. In Meyers, the district court conducted an exhaustive review of prior case law in order to create a list of the relevant factors that have been considered by courts throughout the years in determining what constitutes a “religion.” As a practical matter, I usually advise my clients to use the Meyers factors when drafting their internal church documents, as it provides a good framework for elucidating the statement of beliefs. However, before I get into the factors, I would like to go over some of the other rules and observations quoted by the district court. First, the district court quotes the following excerpt from the Fifth
Circuit case Theiault v. Carlson:
“While it is difficult for the courts to establish precise standards by which the bona fides of a religion may be judged,[*] such difficulties have proved to be no hindrance to denials of First Amendment protection to so-called religions which tend to mock established institutions and are obviously shams and absurdities and whose members are patently devoid of religious sincerity.”
I quote this because I have seen instances where certain organizations, which use psychedelic or entheogenic sacraments and claiming to be re- ligious, go out of their way to mock other religious institutions and it never bodes well for them in court.
Second, the district court espouses the following two “prudential propositions” which it purportedly used when examining the prior case law:
“The first is that one man’s religion will always be another man’s heresy. The Court will not, therefore, find that a particular set of beliefs is not religious because it disagrees with the beliefs. See Kuch, 288 F. Supp. at 443 (court must not use own moral and ethical standards to determine whether beliefs are “religious”). Nor will the Court find that a particular set of beliefs is not religious because the beliefs are, from either the Court’s or society’s perspective, idiosyncratic, strange, solipsistic, fantastic, or peculiar. See Africa v. Commonwealth,662 F.2d 1025, 1030 (3d Cir. 1981) (judges are not “oracles of theological verity”); Stevens
v. Berger,428 F. Supp. 896, 899 (E.D.N.Y. 1977) (apparently preposterous beliefs can be religious and merit constitutional protection). The second proposition is that if there is any doubt about whether a particular set of beliefs constitutes a religion, the Court will err on the side of freedom and find that the beliefs are a religion. In a country whose founders were animated in large part by a desire for religious liberty, to do otherwise would ignore a venerable (albeit checkered) history of freedom and tolerance.”
As Meyers involved a criminal defendant making a RFRA claim in defense to his conviction for trafficking marijuana, the district court briefly quotes another case, Founding Church of Scientology v. United States, which stated, “Not every enterprise cloaking itself in the name of religion can claim the constitutional protection conferred by that status.
. . . When otherwise proscribed substances are permitted to be used for purposes of worship, worship must be defined.”
In making very clear that the factors enunciated in its decision are not dispositive and will be applied in a manner to include, rather than exclude, beliefs and practices as “religious,” the district court states the following:
“In an attempt to avoid these dangers, this Court has canvassed the cases on religion and catalogued the many factors that the courts have used to determine whether a set of beliefs is “religious” for First Amendment purposes. These factors, as listed below, impose some structure on the word “religion.” The structure necessarily is calico, composed — as it is — of language, history, theology, philosophy, psychology, and law. It is, nonetheless, structure. The Court will use this structure to include, not exclude. By this, the Court means that it will examine Meyers’ beliefs to determine if they fit the factors. To the extent they do, it indicates to the Court that his beliefs are religious. The threshold for inclusion — i.e., that Meyers’ beliefs are religious — is low. This minimal threshold, uncertain though it may be, ensures that the Court errs where it should, on the side of religious freedom. The Court will not, on the other hand, examine Meyers’ beliefs and conclude that they are not religious because they do not fit the factors. Bluntly stated, there is no absolute causal link between the fact that Meyers’ beliefs do not fit the criteria and the conclusion that his beliefs are not religious. “
As we can see here, the factors listed below are more so guideposts than a “bright-line” test as to what beliefs or practices are “religious.” The district court makes clear that even if a set of beliefs do not fit the criteria, does not necessarily mean they are not “religious.” Moreover, the district court states the structure of the factors should be used to include beliefs as religious as opposed to using the structure to exclude. Admittedly, it is not clear whether any one of these factors should receive more weight than the others when the courts analyze a set of beliefs. However, it is fair to say that if a set of beliefs or practices fits into a majority of the categories, it should be considered “religious.”
The factors used by the district court in Meyers to determine whether a set of beliefs are “religious” for purposes of the RFRA are as follows:
- Ultimate Ideas: Religious beliefs often address fundamental questions about life, purpose, and death. As one court has put it, “a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters.” Africa, 662 F.2d at 1032. These matters may include existential matters, such as man’s perception of life; ontological matters, such as man’s sense of being; teleological matters, such as man’s purpose in life; and cosmological matters, such as man’s place in the universe.
- Metaphysical Beliefs: Religious beliefs often are “metaphysical,” that is, they address a reality which transcends the physical and immediately apparent world. Adherents to many religions believe that there is another dimension, place, mode, or temporality, and they often believe that these places are inhabited by spirits, souls, forces, deities, and other sorts of inchoate or intangible entities.
- Moral or Ethical System: Religious beliefs often prescribe a particular manner of acting, or way of life, that is “moral” or “ethical.” In other words, these beliefs often describe certain acts in normative terms, such as “right and wrong,” “good and evil,” or “just and unjust.” The beliefs then proscribe those acts that are “wrong,” “evil,” or “unjust.” A moral or ethical belief structure also may create duties — duties often imposed by some higher power, force, or spirit — that require the believer to abnegate elemental self-interest.
- Comprehensiveness of Beliefs: Another hallmark of “religious” ideas is that they are comprehensive. More often than not, such beliefs provide a telos, an overarching array of beliefs that coalesce to provide the believer with answers to many, if not most, of the problems and concerns that confront humans. In other words, religious beliefs generally are not confined to one question or a single teaching. Africa, 662 F.2d at 1035.
- Accoutrements of Religion: By analogy to many of the established or recognized religions, the presence of the following external signs may indicate that a particular set of beliefs is “religious”:
- Founder, Prophet, or Teacher: Many religions have been wholly founded or significantly influenced by a deity, teacher, seer, or prophet who is considered to be divine, enlightened, gifted, or blessed.
- Important Writings: Most religions embrace seminal, elemental, fundamental, or sacred writings. These writings often include creeds, tenets, precepts, parables, commandments, prayers, scriptures, catechisms, chants, rites, or mantras.
- Gathering Places: Many religions designate particular structures or places as sacred, holy, or significant. These sites often serve as gathering places for believers. They include physical structures, such as churches, mosques, temples, pyramids, synagogues, or shrines; and natural places, such as springs, rivers, forests, plains, or mountains.
- Keepers of Knowledge: Most religions have clergy, ministers, priests, reverends, monks, shamans, teachers, or sages. By virtue of their enlightenment, experience, education, or training, these people are keepers and purveyors of religious knowledge.
- Ceremonies and Rituals: Most religions include some form of ceremony, ritual, liturgy, sacrament, or protocol. These acts, statements, and movements are prescribed by the religion and are imbued with transcendent significance.
- Structure or Organization: Many religions have a congregation or group of believers who are led, supervised, or counseled by a hierarchy of teachers, clergy, sages, priests, etc.
- Holidays: As is etymologically evident, many religions celebrate, observe, or mark “holy,” sacred, or important days, weeks, or months.
- Diet or Fasting: Religions often prescribe or prohibit the eating of certain foods and the drinking of certain liquids on particular days or during particular times.
- Appearance and Clothing: Some religions prescribe the manner in which believers should maintain their physical appearance, and other religions prescribe the type of clothing that believers should wear.
- Propagation: Most religious groups, thinking that they have something worthwhile or essential to offer non-believers, attempt to propagate their views and persuade others of their correctness. This is sometimes called “mission work,” “witnessing,” “converting,” or proselytizing.”
I believe this list of factors is a great guide for drafting a set of beliefs and practices for an entheogenic church. Most clients do not have any trouble laying out beliefs and accoutrements provisions that address most, if not all, of these factors. The district court in Meyers goes on to say that “…no one of these factors is dispositive, and that the factors should been seen as criteria that, if minimally satisfied, counsel the inclusion of beliefs within the term “religion.” While recognizing that many of the factors were compiled while looking at other established religions, it makes clear that courts cannot “…rely solely on established or recognized religions to guide it in determining whether a new or unique set of beliefs warrants inclusion.” As far as what is excluded from being “religious” according to these factors, the district court states, “Purely personal, political, ideological, or secular beliefs probably would not satisfy enough criteria for inclusion.” “Examples of such beliefs are: nihilism, anarchism, pacifism, utopianism, socialism, libertarianism, Marxism, vegetism, and humanism.”
The Meyers factors, again, are merely guideposts in determining whether a set of beliefs qualifies as “religious.” None of the factors are dispositive in and of themselves. This test is more concrete than the “functional” test we will examine in the next subsection. However, I find these factors to be a good guide to use when drafting a statement of beliefs and accoutrements provisions for an entheogenic church. I will cover more about drafting those documents in the Chapter on non-profit churches.
The next standard discussed has been described as a “functional approach” to determining whether a set of beliefs qualifies as “religious.” This standard is followed in the Ninth Circuit and was first promulgated by the United States Supreme Court in United States v. Seeger and later adopt- ed by the Ninth Circuit in United States v. Ward. Under the “functional approach,” the courts analyze, “whether the beliefs professed…are sincerely held and whether they are, in [a claimant’s] own scheme of things, religious.” “’Religious’ beliefs, then, are those that stem from a person’s moral, ethical, or religious beliefs about what is right and wrong’ and are ‘held with the strength of traditional religious convictions.’”
This approach has been called “a generous functional (and even idiosyncratic)” approach to determining religiosity. The test is functional in the sense that, instead of relying on a general definition of religion, it looks to whether a set of beliefs serves the same function as tradition- al religion in an individual’s life. In Hoffman, the government asked the district court in Arizona to use the Meyers approach, to which it declined, noting the approach was discarded by the Ninth Circuit in United States v. Lepp.
The functional approach is focused on what place the beliefs at is- sue hold in relation to the individual claiming them. As opposed to the Meyers factors, this approach does not analyze the beliefs in relation to any other points of reference. Therefore, I venture to say the functional approach is more forgiving in the sense that what might not qualify as religious under the Meyers factors, could qualify under the functional approach.
3. What Constitutes a “substantial” Burden.
While there is no definition of what constitutes a “substantial” burden in the RFRA, the legislative history of the law states the “term ‘substantial burden’ as used in this Act is not intended to be given any broader interpretation than the Supreme Court’s articulation of the concept of substantial burden or religious exercise.” “In the ‘Free Exercise’ context, the Supreme Court has made clear the “substantial burden” hurdle is high and that determining its existence is fact intensive.”
For purposes of RFRA claims in the context of entheogenic churches and religions, know that the Supreme Court generally has found a “substantial burden” where the government action in question placed “substantial pressure on an [religious] adherent to modify his behavior and to violate his beliefs.” In the context of entheogenic churches and religions, this standard should always be met. Under the Controlled Substances Act, those who violate the Act face hefty prison sentences and other harsh penalties. Therefore, the choice for those religious practitioners is either discontinue their sacramental use of entheogens, thereby modifying their behavior and violating their beliefs, or possibly face severe consequences. In the UDV and Santo Daime cases, those churches filed suit as a result of having their sacramental ayahuasca seized. The government action made it impossible for them to practice their religion as the sacramental use of ayahuasca was central to their beliefs and practice. I will discuss this in greater detail later when I cover the current regulatory framework and Arizona Yage Complaint.
Now that we have seen how the courts determine whether a RFRA claimant has met their burden to show that a government action has placed “a substantial burden on a sincere religious exercise,” we will now turn to the other half of the equation: the government’s burden to demonstrate that the application of the burden to the person both (1) furthers a compelling governmental interest and (2) is the least restrictive means of furthering that compelling governmental interest.
B. GOVERNMENT’S BURDEN UNDER THE RFRA: COMPELLING GOVERNMENTAL INTEREST AND
LEAST RESTRICTIVE MEANS.
Once the claimant in a RFRA suit meets their initial burden of show- ing the governmental action substantially burdens a sincere exercise of religion, the burden then shifts to the government to show the applica- tion of the burden to the individual furthers a compelling governmental interest and is the least restrictive means of furthering that compelling interest. In this Section, we will examine this burden in light of two cases involving ayahuasca churches, the UDV and Santo Daime cases.
It is important to remember from the outset that RFRA claims are decided on a case-by case-basis. Therefore, just because the UDV and Santo Daime churches were exempted from the Controlled Substances Act via the RFRA, does not mean that every ayahuasca church will also be excepted from the Controlled Substances Act. However, these cases can provide a point of reference to guide other entheogenic churches in structuring their organization and belief systems to achieve a greater level of potential protection. Therefore, my analysis of these cases will be very fact intensive and I will discuss all arguments and counterarguments made by both the government and the churches.
- O Centro Espirita Benficiente v. Ashcroft (UDV case)
The UDV case I will be referencing here, is the Tenth Circuit case which was decided prior to it eventually making it to the Supreme Court, which affirmed the Tenth Circuit’s decision. While I will cover the Supreme Court case some towards the end of this section, the Tenth Circuit opinion is very detailed and gives an accurate account and analysis of the evidence put forward by both sides during the two-week preliminary injunction hearing in the district court. As such, it provides the most information regarding the “meat and potatoes” of the court’s analysis under RFRA.
Uniao de Vegetal (UDV) is a syncretic religion of Christian theology and indigenous South American beliefs. It was founded in Brazil in 1961 by a rubber-tapper who discovered hoasca (the Portuguese translation of ayahuasca) in the Amazon rainforests. The UDV is a highly structured religion with elected administrative and clerical officials. The UDV use hoasca as a link to divinities, a holy communion, and a cure for physical and psychological ailments. UDV church doctrine dictates members only can perceive and understand God by drinking hoasca. Hoasca is ingested at least twice monthly at guided ceremonies lasting about four hours. These ceremonies include the recitation of sacred law, singing of chants by the leader, question and answer exchanges, and religious teach- ing. The UDV has been in the United States since 1993 and at the time of the UDV opinion (2003) had about 130 members, 30 of which were Brazilian citizens. The court notes they had been granted tax exempt status by the IRS.
On May 21, 1999, United States Customs Service agents seized a shipment of hoasca labeled “tea extract” bound for Jeffery Bronfman and Uniao do Vegetal-United States. Subsequent to the seizure of hoasca, a search was conducted on Bronfman’s residence which resulted in the seizure of thirty gallons of hoasca. The government never filed criminal charges in relation to the seizures and possession of the hoasca but threatened to do so. Consequently, the UDV ceased drinking hoasca in the U.S.
Eventually, UDV’s president of the U.S. chapter, Jeffery Bronfman, and several other church members filed a complaint for declaratory and injunctive relief and a motion for preliminary injunction against the United States Attorney General, United States Attorney for the District of New Mexico, the Drug Enforcement Administration (DEA), the United States Customs Service, and the Department of the Treasury, alleging violation of the First, Fourth, and Fifth Amendments; Equal Protection principles; the Administrative Procedures Act (APA); international laws and treaties; and the Religious Freedom and Restoration Act (RFRA).
As stated earlier, the government in the UDV case conceded the church met its initial burden of showing the government action of confiscating its hoasca imposed a substantial burden on its sincere religious exercise.81 Therefore, the case centered around the government’s attempts to prove it had a compelling governmental interest in enforcing the Controlled Substances Act against the UDV. To that end, the government asserted the following three compelling governmental interests:
- protection of the health and safety of Uniao do Vegetal members;
- potential for diversion of hoasca from the church to recreational users; and (3) compliance with the 1971 United Nations Convention on Psychotropic Substances (Convention).
The Health and Safety of UDV Members
In order to meet their burden of showing a compelling governmental interest, the government attempted to prove that the health and safety of UDV members was at risk by consuming hoasca. The district court required the government prove the consumption of hoasca posed a “serious” health risk to UDV members, which is in line with proving a “compelling” governmental interest.
At the outset, I would like to note the research into the health, safety, and/or efficacy of ayahuasca was in its infancy at the time of this opinion in the early 2000’s. On this point, the Court stated, “The dearth of conclusive research on DMT and hoasca fuels the controversy in this case.” I am assuming because the research was not conclusive in either direction, the government did not want to concede the health and safety argument. As we will see, they attempted to back door other research the Court found only marginally applicable to the sacramental consumption of ayahuasca.
The UDV presented a preliminary study, conducted in 1993 by Charles Grob, which examined fifteen long-term UDV members who drank hoasca for several years against fifteen control subjects who never ingested the tea. After putting the subjects through a series of psychiatric, neuropsychological and physical tests, the results were published in several scientific journals. The results reported indicated an overall positive assessment of the safety of hoasca. Dr. Grob acknowledged the limitations of his study’s small population size, however, he testified that:
“[it] did identify that in a group of randomly collected male subjects who had consumed ayahuasca for many years, entirely within the context of a very tightly controlled syncretic church, there had been no injurious effects caused by their use of ayahuasca. On the contrary, our research team was consistently impressed with the very high functional status of the ayahuasca subjects.”
In response, the government emphasized that DMT’s schedule one listing represented a Congressional finding that the substance “has a high potential for abuse,” no currently accepted safety for use,” and a “lack of accepted safety for use under medical supervision.” They further pointed out methodological limitations in the Grob study such as: small size, male-only subjects, and selection bias.
In an attempt to rebut the results of the Grob study offered by the UDV, the government had Dr. Sandy Gesner, Chief of the Medical Consequences of Drug Abuse at the National Institute of the Center on AIDS and other Medical Consequences of Drug Abuse at the National Institute of Health, testify that, “existing studies have raised red flags regarding potential negative physical and psychological effects of hoasca.” In support of her position, she cited to a study in which two male subjects were injected with DMT; one subject suffered a high rise in blood pressure and the other had a recurrence of depression. The government also introduced information regarding dangerous effects of other hallucinogenic drugs, which Dr. Gesner said raises red flags as to the safety of hoasca.
The UDV countered the government’s evidence by emphasizing the important differences in ceremonial use and reported effects of hoasca. To this end, they had Dr. David Nichols, Professor of Medical Chemistry and Molecular Pharmacology at Purdue University testify that, “[o]rally ingested hoasca produces a less intense, more manageable, and inherently psychologically safer altered state of consciousness.” He further testified that the “set and setting in which individuals takes a hallucinogen are critical in determining the experience.” Dr. Nichols also noted the absence of evidence of flashbacks from hoasca use and the milder intensity and shorter duration of hoasca’s effects compared to those of other hallucinogens. Lastly, he declared the ritual setting of UDV members’ consumption minimizes danger and optimizes safety.
Both the UDV and the government acknowledged the potential dangers associated with ingesting the beta-carbolines in the banisteriopsis. The Court noted that individuals who ingest hoasca while on certain medications, such as anti-depressants, are at an increased risk of developing serotonin syndrome. While the government’s expert, Dr. Gesner, testified that “irreversible” MAO inhibitors may harmfully interact with many medicines, as well as with a chemical found in some common foods; the UDV pointed out that hoasca does not contain any “irreversible” MAOs and that the UDV leadership has addressed the possible danger of adverse drug interactions.
The Court notes the UDV has instituted a system of screening members’ use of medications. Dr. Grob testified that through his teams’ conversations with UDV physicians, all prospective participants in ceremonial hoasca session have been carefully interviewed to rule out the presence of ancillary medications that might induce adverse reactions with hoasca. Moreover, the UDV insisted that adverse drug reactions with hoasca falls within the normal spectrum of concerns.
Government experts highlighted other various dangers associated with the use of hoasca, including the increased risk of psychotic episodes, which Dr. Gesner testified was based on data collected from the medical-scientific department of the Brazilian Uniao do Vegetal. In response, UDV experts stated the link between psychotic disturbances and hoasca is coincidental rather than causal, and the reported, very low, occurrence of psychosis among church members in Brazil is equal or less than the rate in the general population.
In agreeing with the district court that the evidence related to health and safety was “in equipoise” and thereby declaring the government failed to meet its burden under the RFRA, the Circuit Court made some parting notes regarding evidence it found particularly probative:
“Although studies of hoasca are limited, Dr. Grob’s research indicates an overall positive assessment of the health effects of the substance. Dr. Nichols, expert for the UDV, cogently highlighted the differences between the effects of hoasca versus intravenously injected DMT. He further stressed the importance of “set and setting”—for Uniao do Vegetal, a guided, calm, ceremony—in determining the psychological impact of hallucinations.”
The Court then goes on to highlight the fact the government’s burden under the RFRA was to demonstrate a ban on hosasca consumed by the UDV, and not a ban on all hallucinogens in general, promotes a compelling governmental interest in health and safety. Again, this goes to the point I have been making, that RFRA claims are decided on a case-by-case basis. The government wrongfully assumed that general- ized arguments about the dangers of hallucinogens would be germane to overcoming the health and safety burden under the RFRA.
Risk of Diversion to Non-Religious Use
In addition to health and safety of UDV members, the government also advanced the argument, in an effort to show a compelling government interest, that hoasca used by the UDV would be vulnerable to diver- sion. To this end, the government had Terrance Woodworth, Deputy Director of the Drug Enforcement Administration’s Office of Diversion Control testify regarding the factors the agency uses to identify the diversion potential of a controlled substance. Those factors are as follows: the existence of an illicit market, the presence of marketing or publicity, the form of the substance, and the cost and opportunity of diversion.
Applying the factors to hoasca, Mr. Woodworth testified there had been a recent substantial increased interest in hallucinogens in the country. He further noted advertisements for hoasca on the internet and rising consumption of the tea in Europe as evidence of demand in the illicit market for hoasca. According to Mr. Woodworth, the low level of hoasca consumption at that time was attributable to the lack of native plants in the U.S. However, he believed were the UDV allowed to import hoasca the likelihood of diversion would increase. Further, he testified the fact that the hoasca would be imported from Brazil, where hoasca is unregulated, along with the uncooperative relationship between DEA and UDV, suggested that an exemption for sacramental use would result in illegal diversion.
Regarding the abuse potential of hoasca, the government had Dr. Jasinski, Professor of Medicine at the Johns Hopkins School of Medicine testify. He stated that he believed the abuse potential of hoasca was substantial. After noting the typical reinforcing or “euphoric” effects of drugs of abuse were transient alterations in mood, thinking, feeling, and perceptions, he stated that research on intravenously injected DMT and preliminary studies on hoasca indicated they produced euphoric effects. However, he admitted the euphoric effects of hoasca are slower in onset, milder in intensity, and longer in duration.
Dr. Jasinski acknowledged the negative effects of hoasca, nausea and vomiting, may act as a deterrent to some people, but pointed out the percentage of those that suffer these effects are unknown. Regardless, Dr. Jasinski argued the negative effects may not outweigh the positive to the extent necessary to deter use. Finally, Dr. Jasinski testified the pharmacological similarities between LSD and DMT support an inference that hoasca has an abuse potential.
In response, the UDV had Dr. Kleinman, Professor of Policy Studies at the University of California, Los Angeles testify. Dr. Kleinman stated his belief that the negative effects of hoasca and the availability of pharmacologically equivalent substitutes indicated demand for the hoasca would be low. According to Dr. Kleinman, the tea like mixture of hoasca consumed by the UDV would not be an attractive choice for those seeking oral DMT as any mixture containing DMT and a sufficient amounts of an MAOI would suffice. Moreover, plants containing these two alkaloids are available in the U.S., some of which don’t induce vomiting. Therefore, the risk of diversion of UDV hoasca was greatly reduced by other, more desirable alternatives readily available in the U.S.
Next, Dr. Kleinman recounted several factors he believed would counteract hoasca diversion. Those four factors are as follows: (1) UDV in the United States is a very small church and would only import about 3,000 doses per year; (2) the relatively thin market for hoasca would reduce likelihood of diversion; (3) the bulky form of hoasca would deter diversion; and (4) the UDV has strong incentives to keep its hoasca supply from being diverted as the consumption of the tea outside of the ceremonial context is considered sacrilegious.
In the end, the Court did not find the government met its burden to show a compelling governmental interest in preventing the diversion of hoasca for non-religious use. In fact, the Court found the evidence was “virtually balanced” and that the testimony of Dr. Kleinman for the UDV might have even tipped the scales slightly in favor of the UDV.
1971 U.N. Convention on Psychotropic Substances
In its final effort to prove a compelling governmental interest, the government argued that allowing the UDV a religious exemption for the import and sacramental use of hoasca would violate the 1971 U.N. Convention on Psychotropic Substances and undermine the United States’ leader- ship role in curtailing international drug trafficking. In short, the government was not able to meet its burden in these regards, as it only introduced the affidavits of two State Department officials espousing a generalized interest in complying with the U.N. Convention. As with the other generalized, non-case specific arguments advanced by the government, it fell flat on its face. The Court held that the government failed to meet its burden under the RFRA.