A federal judge in California has ruled against a motion from the U.S. Attorney General’s office to dismiss a lawsuit filed by a church that uses the psychedelic brew ayahuasca as a sacrament. The suit was filed last year by the Church of the Celestial Heart after a shipment of ayahuasca to the church was intercepted by law enforcement officials.

The legal action, which names U.S. Attorney General Merrick Garland and other federal officials as defendants in the case, was filed by Jade Osborne, the wife of the Church of the Celestial Heart’s pastor Kai Karrel and the intended recipient of the shipment. After the ayahuasca shipment was intercepted, Osborne was arrested and criminally charged in 2021 by authorities in Tulare County, although prosecutors have not filed formal charges.

Osborne, the church, and additional plaintiffs maintain in the lawsuit filed in April 2023 that the federal government is forcing them to choose between practicing their religion or going against their beliefs to avoid prosecution by law enforcement.

“Ayahuasca is an essential sacrament for Karrel, without which he cannot practice his religion or provide services to the church’s members,” the church writes in its suit, according to a report from Courthouse News Service. “Despite these threats, Karrel intends to continue possessing and using the church’s sacrament — ayahuasca.”

In the legal action, the church is seeking preliminary and permanent injunctions barring Garland and federal officials from prosecuting members of the church for using ayahuasca. The suit also requests attorney’s fees and other forms of relief from the government.

AG Files Motion To Dismiss Case

The attorney general’s office filed a motion to dismiss the case, maintaining that the church did state a claim in its filing and does not have standing to file the suit because the seizure was not an injury caused by the named defendants in the case. Although the Department of Homeland Security seized the shipment of ayahuasca, an official with the Tulare County Sheriff’s Office investigated the case and arrested Osborne. The motion also requested that if the case was not dismissed, it be stayed until the church applies for a religious exemption to the Controlled Substances Act. 

U.S. Magistrate Judge Stanley A. Boone ruled against the attorney general’s office on all counts.

“The court finds plaintiffs have sufficiently alleged a genuine threat of imminent prosecution … and this supports the conclusion that plaintiffs have demonstrated standing,” the judge wrote in his decision.

Boone noted in his decision that church members intend to continue importing, possessing and using ayahuasca because the church cannot function properly without the sacrament. Members of the church also intend to continue using ayahuasca in its rituals, even with the threat of prosecution from federal and local authorities.

“Here, Celestial Heart alleges it has suffered both financial and spiritual loss having its sacrament confiscated and destroyed,” the judge wrote. “That it is substantially burdened by being forced to choose between following the tenets of its religion or being coerced to act contrary to its religious beliefs by the threat of civil or criminal sanctions; and that it intends to continue importing, possessing, and using its sacrament, for without its sacrament, the Church cannot provide essential services.”

Church members say they believe the ayahuasca was destroyed after it was seized. But the judge determined that even if the brew was destroyed, the threat of federal prosecution of church members could be traced back to the federal officials named in the lawsuit.

Boone also ruled against the attorney general’s motion to stay the case to allow the Drug Enforcement Administration to investigate the religious exemption claims made by the church.

Sean T. McAllister, a Denver attorney representing the Church of the Celestial Heart, declined a request from the Courthouse News Service to comment on the legal action.

“Here, Celestial Heart alleges it has suffered both financial and spiritual loss having its sacrament confiscated and destroyed,” Boone wrote. “That it is substantially burdened by being forced to choose between following the tenets of its religion or being coerced to act contrary to its religious beliefs by the threat of civil or criminal sanctions; and that it intends to continue importing, possessing, and using its sacrament, for without its sacrament, the Church cannot provide essential services.”

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A handful of cannabis companies recently initiated a lawsuit with U.S. Attorney General Merrick Garland regarding the negative effects of federal prohibition, which hinders their business. According to the plaintiffs, which includes Massachusetts-based Canna Provisions Inc., Wiseacre Farm, Inc., and Gyasi Sellers, and Illinois-based Verano Holdings Corp., the Controlled Substances Act (CSA) causes harm to their respective businesses and is unconstitutional.

The lawsuit document filed on Oct. 26 refers to a court ruling, Gonzales v. Raich, from nearly 20 years ago. “In 2005, the United States Supreme Court held that because Congress intended to ‘eradicate’ marijuana from interstate commerce, including both economic and noneconomic uses of marijuana, the federal government had a rational and therefore lawful purpose in intruding on the states’ internal regulation of marijuana,” the lawsuit stated. “…This unjustified intrusion of federal power harms Plaintiffs, threatens the communities they serve, and lacks any rational purpose.”

The plaintiffs are represented by law firm Boies Schiller Flexner and Lesser, Newman, Aleo, & Nasser LLP, specifically principal David Boies, who has previously represented clients such as Microsoft, Al Gore, and a wide variety of others since it was founded in 1997.

Boies explained that with more than 38 states legalizing cannabis, the 2005 court case is. “Outdated precedents from decades ago no longer apply—the Supreme Court has since made clear that the federal government lacks the authority to regulate purely intrastate commerce; moreover, the facts on which those precedents are based are no longer true,”

Canna Provisions Inc. offers free training for those interested in a job in the legal cannabis industry, but because it’s illegal under the CSA, it “has been barred by one of the primary career services organizations in Massachusetts, MassHire, from posting jobs or running workshops.” Employees have also had their personal bank accounts closed and mortgages decline due to working “in a lawful intrastate marijuana businesses.”

While Wiseacre Farm, Inc. cultivates legally in Massachusetts, it was barred from leasing more farming land because its activities were deemed illegal under the CSA. “That illegal status renders farmers unwilling to lease their underused farmland to Wiseacre Farm out of fear that having marijuana cultivated on their land will cause them to lose federal agriculture grant money,” the lawsuit explained.

Gyasi Sellers, who is CEO of the delivery service Treevit, delivers to communities that were negatively impacted by the War on Drugs and offers jobs for ex-offenders, but faced many hurdles in order to operate his legitimate business. “These include not being able to obtain loans from the Small Business Administration, which deems his and all other marijuana businesses ‘ineligible for SBA financial assistance,’ regardless of whether they comply with state law,” the document stated.

Finally, Verano Holdings Corp., which is a Canadian-based company that is primarily based in Illinois but also operates in Massachusetts and in other states as well. However, the restrictions of the CSA prevent them from conducting various cultivation, manufacturing, medical, and adult-use licenses. “Because of that illegal status, Verano faces ongoing harms, including that Verano’s Massachusetts retail operations are unable to accept credit cards,” the document stated. “That illegal status also results in Verano having to pay higher insurance premiums and limits Verano in terms of service providers willing to work with the company.”

Following all of these individual experiences with the difficulties of operating a cannabis business under the CSA, the section concluded: “All of these harms, along with numerous other harms to Plaintiffs alleged herein, are caused by the federal government’s unconstitutional ban on cultivating, manufacturing, distributing, or possessing intrastate marijuana.”

In a press statement, Boies explained how federal criminalization of safe cannabis businesses is unfair and denies small businesses the opportunity and services that they should be eligible for. “The federal government lacks authority to prohibit intrastate cannabis commerce,” Boies said. “Outdated precedents from decades ago no longer apply—the Supreme Court has since made clear that the federal government lacks the authority to regulate purely intrastate commerce; moreover, the facts on which those precedents are based are no longer true.”

Verano President Darren Weiss explained their intention to have the CSA ruled unconstitutional. “We are prepared to bring this case all the way to the Supreme Court in order to align federal law with how Congress has acted for years,” Weiss said. “We believe that the Supreme Court will adhere to the core value on which our country was founded and which is central to guaranteeing freedom: that the federal government’s powers are limited.”

Canna Provisions CEO and co-founder, Meg Sanders, also explained their desire for equal treatment as all other Massachusetts-based small businesses.

Many other lawsuits have attempted to challenge or address the CSA, including the previously mentioned 2005 Gonzales v. Raich lawsuit. In May 2022, a Pennsylvania court ruled that cannabis is still a controlled substance, but in October 2022, a Nevada state judge ruled that cannabis should be removed from the state list of controlled substances.

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Will Merrick Garland push, allow, or block progress on federal legalization?

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