## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 12 2004 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL, also known as Uniao do Vegetal (USA), Inc., a New Mexico corporation on its own behalf and on behalf of all its members in the United States; JEFFREY BRONFMAN, individually and as President of UDV-USA; DANIEL TUCKER, individually and as Vice-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, also known as Jussara Almeida Dias; PATRICIA DOMINGO; DAVID LENDERTS; DAVID MARTIN; MARIA EUGENIA PELAEZ; BRYAN REA; DON ST. JOHN; CARMEN TUCKER; SOLAR LAW, individually and as members of UDV-USA, Plaintiffs - Appellees,

v. JOHN ASHCROFT, Attorney General of the United States; ASA HUTCHINSON, Administrator of the United States Drug, Enforcement No. 02-2323-2-

Administration; PAUL H. O'NEILL, Secretary of the Department of Treasury of the United States; DAVID C. IGLESIAS, United States Attorney for the District of New Mexico; DAVID F. FRY, 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 - Appellants,

CHRISTIAN LEGAL SOCIETY; THE NATIONAL ASSOCIATION OF THE EVANGELICALS; CLIFTON KIRKPATRICK, as the Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.); QUEENS FEDERATION OF CHURCHES,

Amicus Curiae.

ON REHEARING EN BANC APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-00-1647 JP/RLP)
Gregory G. Katsas, Deputy Assistant Attorney Genera l (David C. Iglesias, Attorney General, Peter D. Keisler, Assistant Attorney General, Michael Jay Singer, Attorney, Department of Justice and MatthewM. Collette, Attorney, Department of Justice with him of the briefs), of t he Department of Justice, Washington, D.C., for Defendants-Appellants.-3-

John W. Boyd (Nancy Hollander with him on the brief ), of Freedom, Boyd, Daniels, Hollander, Goldberg & Cline, P.A., Albuque rque, New Mexico for Plaintiffs-Appellees. Gregory S. Baylor, Nathan A. Adams, Kimberlee W. Co lby, of Center for Law and Religious Freedom, Christian Legal Society, Ann andale, Virginia, filed an amicus curiae brief on behalf of Plaintiffs-Appelle es.

Before TACHA, Chief Judge , SEYMOUR, PORFILIO, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O’BRIEN, McCONNELL, andTYMKOVICH, Circuit Judges.

PER CURIAM

.

I. This matter is before the en banc court to review issues emanating from the panel opinion in O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,
342 F

. 3d 1170 (10th Cir. 2003). The panel affirmed a pre liminary injunction, granted under the Religious Freedom Restoration Act(“RFRA”), which enjoined the United States from relying on the Controlled Su bstances Act (“CSA”) and the United Nations Convention on Psychotropic Substance s (“Convention”) to prohibit the sacramental use of hoascaby Uniao do Vegetal and its members (collectively “UDV”). This court granted rehearing to review the different standards by which we evaluate the grant of prelimi nary injunctions, and to decide how those standards should be applied in thi s case.1 Hoascais a liquid tea-like mixture made from the plants psychotria viridis

and banisteriposis caapi. These plants are indigen ous to Brazil. Psychotria viridis contains dimethyltryptamine (DMT), which is listed on Schedule I of the CSA and the Convention.

2 This court granted an emergency stay of the prelimi nary injunction pending appeal. See O Centro Espirita v. Ashcroft , 314 F.3d 463 (10th Cir. 2002). -4- II. The underlying facts relating to the parties and th e issues are fully described in the panel opinion and are therefore un necessary to reiterate here. UDV invoked RFRA, 43 U.S.C. § 2000bb-1, to obtain d eclaratory and injunctive relief which would prevent the government from proh ibiting UDV’s importation, possession, and use of hoascafor religious purposes and from attempting to seiz e the substance or prosecute individual UDV members. 1 After an evidentiary hearing, the district court granted UDV’s motion fo r a preliminary injunction pending a decision on the merits. The government appealed that decision, the panel affirmed, and we granted the en banc petition. 2

III. The en banc court is divided over the outcome of this case. N evertheless, a majority of the court has voted to maintain a heigh tened standard for granting any of the three historically disfavored preliminary in junctions. A different majority-5-

has voted to affirm the district court’s entry of apreliminary injunction in this

case. A. Standards for Granting Disfavored Preliminary I njunctions
In SCFC ILC, Inc. v. Visa USA, Inc. , this court identified the following three types of specifically disfavored preliminary injunctions and concluded that a movant must “satisfy an even heavier burden of show ing that the four [preliminary injunction] factors . . . weigh heavil y and compellingly in movant’s favor before such an injunction may be issued”: (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary inj unctions; and (3) preliminary injunctions that afford the movant all the relief t hat it could recover at the conclusion of a full trial on the merits. 936 F.2d 1096, 1098-99 (10th Cir. 1991). With one important alteration, a majority of the en banc court has voted to affirm the core holding of SCFC ILC . Part I of the Opinion of Murphy, J., joined by Ebel, Kelly, Hartz, O’Brien, McConnell, and Tymkovi ch, JJ.; Part I of the Opinion of McConnell, J, joined by Hartz, O’Brien, and Tymkovich, JJ. Thus, if a movant seeks a preliminary injunction that falls into one of the three categories identified in SCFC ILC , the movant must satisfy a heightened burden. The en banc court does, however, jettison that part of SCFC ILCwhich describes the showing the movant must make in such situations as “heavily and compellingly.”
SCFC ILC , 936 F.2d at 1098. Instead, the en banc court holds that courts in this-6-

Circuit must recognize that any preliminary injunct ion fitting within one of the disfavored categories must be more closely scrutini zed to assure that the exigencies of the case support the granting of a re medy that is extraordinary even in the normal course. Furthermore, because a histo rically disfavored preliminary injunction operates outside of the normal parameter s for interim relief, movants seeking such an injunction are not entitled to rely on this Circuit’s modifiedlikelihood-of-success-on-the-merits standard. Inst ead, a party seeking such an injunction must make a strong showing both with reg ard to the likelihood of success on the merits and with regard to the balanc e of harms, and may not rely on our modified likelihood-of-success-on-the-merits standard. B. Grant of Preliminary Injunction in this Case Although the reasons vary, a majority of the en banc court is of the view that the district court’s entry of a preliminary in junction in this case should be affirmed. Part II of Opinion of Seymour, J., joine d by Tacha, C.J., and Porfilio, Henry, Briscoe, Lucero, McConnell, and Tymkovich, J J.; Part II of the Opinion of McConnell, J., joined by Tymkovich, J.

IV. The decision of the United States District Court fo r the District of New Mexico to grant UDV’s request for a preliminary inj unction is hereby-7-

AFFIRMED . The temporary stay of the district court’s preli minary injunction issued by this court pending resolution of this app eal is vacated.No. 02-2323, O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft

MURPHY , Circuit Judge, joined in full by EBEL , KELLY , and O’BRIEN , Circuit Judges, and as to Part I by HARTZ , McCONNELL , and TYMKOVICH , Circuit Judges, concurring in part and dissenting i n part.
I agree with the per curiam opinion that a movant for a preliminary injunction must make a heightened showing when the requested injunction will alter the status quo. As set out more fully below, such an approach is completely consistent with the historic purpose of the prelimi nary injunction. Accordingly, I join parts I, II, and III.A of the per curiam opinion. I must respectfully dissent, however, from the conclusion that O Centro EspiritaBeneficiente Uniao do Vegetal (“UDV”) has sufficiently shown its entitlem ent to a preliminary injunction prohibiting the United States from enfor cing the Controlled Substances Act (“CSA”), 21 U.S.C. § 801 et seq. As a direct result of the preliminary injunction embraced by the majority, the United States is placed in violation of the United Nations Convention on Psychotropic Subst ances, Feb. 21, 1971, 32 U.S.T. 543 (hereinafter the “Convention”). I thus dissent from parts III.B and IV of the per curiam opinion.-2- I. A. A Heightened Showing is Appropriate When the Requ ested Preliminary Injunction Would Alter the Status Quo The Supreme Court has observed “that a preliminary injunction is an extraordinary and drastic remedy, one that should n ot be granted unless the movant, by a clear showing , carries the burden of persuasion.” Mazurek v. Armstrong , 520 U.S. 968, 972 (1997) (per curiam) (quotation omitted); accord SCFC ILC, Inc. v. VISA USA, Inc. , 936 F.2d 1096, 1098 (10th Cir. 1991) (“As a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” (citation omitted)); United States ex rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enter. Mgmt. Co nsultants, Inc. , 883 F.2d 886, 888-89 (10th Cir. 1989) (“Because it constitut es drastic relief to be provided with caution, a preliminary injunction should be gr anted only in cases where the necessity for it is clearly established.”). The Supreme Court has further indicated that the “limited purpose” of a preliminary injunct ion “is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch , 451 U.S. 390, 395 (1981). Accordingly, courts sh ould be hesitant to grant the extraordinary interim relief of a preliminary injunction in any particular case, but especially so when such an inj unction would alter the status quo prior to a trial on the merits.-3-

This court’s precedents are in harmony with the sentiments expressed by the Supreme Court in Mazurek and Camenisch . In particular, this court has identified the following three types of disfavored preliminary injunction and concluded that a movant must make a heightened show ing to demonstrate entitlement to preliminary relief: “(1) a prelimina ry injunction that disturbs the status quo; (2) a preliminary injunction that is ma ndatory as opposed to prohibitory; and (3) a preliminary injunction that affords the movant substantially all the relief he may recover at the conclusion of a full trial on the merits.” SCFC
ILC , 936 F.2d at 1098-99. Because each of these type s of preliminary injunction is at least partially at odds with the historic purpose of the preliminary injunction—the preservation of the status quo pendi ng a trial on the merits—this court has held that to obtain such an injunction th e movant must demonstrate that “on balance, the four [preliminary injunction] fact ors weigh heavily and compellingly in his favor.” Id. at 1099. The en banc court specifically reaffirms the central holding i n SCFC ILC that a movant seeking a preliminary injunction whic h upsets the status quo must satisfy a heightened burden. In advocating the aba ndonment of this requirement, Judge Seymour suggests that requiring a heightened showing when a requested preliminary injunction would alter the status quo i s inconsistent with the need to prevent irreparable harm and is inconsistent with t he approaches taken by other-4-

circuits. Opinion of Seymour, J., at 4-6. Neitherassertion offers a convincing reason for abandoning the well-reasoned approach se t out in SCFC ILC

. It is simply wrong to assert that the application o f heightened scrutiny to preliminary injunctions which alter the status quo is inconsistent with the purpose of preliminary injunctions. The underlying purpose of the preliminary injunction is to “preserve the relative positions of the parti es until a trial on the merits can be held.” Camenisch , 451 U.S. at 395; see also 11A Charles Alan Wright et al., Federal Practice and Procedure § 2947, at 123 (2d e d. 1995) [hereinafter “Wright & Miller”] (noting that the purpose of the prelimin ary injunction is to assure that the non-movant does not take unilateral action whic h would prevent the court from providing effective relief to the movant shoul d the movant prevail on the merits). Although the prevention of harm to the mo vant is certainly a purpose of the preliminary injunction, it is not the paramountpurpose. See Wright & Miller § 2947, at 123 (noting that although the prevention of harm to the movant is an important factor to be considered in deciding wheth er to grant a preliminary injunction, the primary purpose for such an order i s “the need to prevent the judicial process from being rendered futile by defe ndant’s action or refusal to act”). Because a preliminary injunction which alte rs the status quo is generally contrary to this traditional purpose, such an injun ction deserves some form of heightened scrutiny. See id. § 2948, at 133-35 & n.11 (collecting cases for1 See generallyWright & Miller § 2947, at 123. According to Prof essor Wright, The circumstances in which a preliminary injunction may be granted are not prescribed by the Federal Rules. A s a result, the (continued...) -5- proposition that “the purpose of the preliminary in junction is the preservation of the status quo and that an injunction may not issue if it would disturb the status quo”). Such an approach is supported by strong pol icy rationales. Any injury resulting from a preliminary injunction that merely preserves the status quo is not a judicially inflicted injury. I nstead, such injury occurs at the hands of a party or other extrajudicial influence. By contrast, an injury resulting from a preliminary injunction that disturbs the status quo by changing the relationship of the parties is a judicially inflicted injury. It is injury that would not have occurred but for the court’s intervention and one inflicted before a resolution of the merits. Because the issuing court bears extra responsibility should such injury occur, it should correspondinglybe particularly hesitant to grant an injunction altering the status quo unless the movant makes an appropriate showing that the exigencies of the case require ext raordinary interim relief. It may be small consolation should the issuing court u ltimately resolve the merits in favor of the non-moving party; at that point the no n-moving party has often incurred significant costs as a result of abiding b y the improvident preliminary injunction. 1 A plaintiff who was willing to live with the stat us quo before filing1 (...continued)

grant or denial of a preliminary injunction remains a matter for the trial court’s discretion, which is exercised in con formity with historic federal equity practice. Although the fundamental fairness of preventing irremediable harm to a party is an important factor on the preliminary injunction application, the most compel ling reason in favor of entering a Rule 65(a) order is the need to prevent the judicial process from being rendered futile by defe ndant’s action or refusal to act. On the other hand, judicial interv ention before the merits have been finally determined frequently impo ses a burden on defendant that ultimately turns out to have been un justified. Consequently, the preliminary injunction is appropr iate whenever the policy of preserving the court’s power to decide th e case effectively outweighs the risk of imposing an interim restraintbefore it has done so. Id. (footnotes omitted). -6- its complaint should meet a higher standard in orde r to have the court intervene with an injunction that alters the status quo. Jud ge Seymour’s approach, which seeks to elevate the importance of irreparable harm at the expense of the status quo, is inconsistent with the historic underpinning s of the preliminary injunction. Nor is the failure of other courts to adequately di stinguish between mandatory injunctions and injunctions that alter th e status quo a sufficient reason to abandon SCFC ILC. See Opinion of Seymour, J., at 4 & n.1. In asserting that preliminary injunctions which alter the status quo should not be an independent disfavored category, Judge Seymour relies heavily o n the fact that in cataloging the types of disfavored injunctions, no other courthas chosen to specifically distinguish between preliminary injunctions which a lter the status quo and-7-

preliminary injunctions which are mandatory. Id. None of the cases cited by Judge Seymour, however, contain any discussion of this question. Instead, those cases simply note, almost reflexively, that any pre liminary injunction which alters the status quo is a mandatory injunction and, thus, subject to heightened scrutiny. Id. (collecting cases). The reflexive equation of pre liminary injunctions which alter the status quo with mandatory injunctions by the courts cited by Judge Seymour is simply not a compelling justification to abandon the reasoned approach from SCFC ILC

. In any event, it is certainly true that courts have historically applied a more stringent standard to mandatory preliminary injunct ions for the very reason that those injunctions generally do alter the status quo

. See, e.g., In re Microsoft Corp. Antitrust Litig. , 333 F.3d 517, 526 (4th Cir. 2003); Tom Doherty Assocs. v. Saban Entm’t, Inc. , 60 F.3d 27, 34 (2d Cir. 1995); Anderson v. United States , 612 F.2d 1112, 1114 (9th Cir. 1979). In fact, most cou rts decide whether a given preliminary injunction is “mandatory” or “prohibito ry” by determining whether or not it alters the status quo. See, e.g., Tom Doherty Assocs. , 60 F.3d at 34; Acierno v. New Castle County , 40 F.3d 645, 647 (3d Cir. 1994); Stanley v. Univ. of S. Cal. , 13 F.3d 1313, 1319 (9th Cir. 1994); Martinez v. Mathews , 544 F.2d 1233, 1242-43 (5th Cir. 1976). For these courts, then, the question whether an injunction is mandatory or prohibitory is merely a proxy for the more significant-8-

question whether an injunction alters the status qu o. Thus, to the extent these two categories do overlap, it is indeed strange to keep the proxy while jettisoning the underlying consideration giving rise to that proxy. See Opinion of Seymour, J., at 4, 9-10 (advocating the abandonment of heightened s crutiny for injunctions which alter the status quo, while maintaining heightened scrutiny for mandatory injunctions). There is good reason, however, to distinguish betwe en mandatory injunctions and injunctions which alter the status quo and to treat both types as disfavored. As set out above, “[a] preliminary inj unction that alters the status quo goes beyond the traditional purpose for preliminaryinjunctions, which is only to preserve the status quo until a trial on the merits may be had.” SCFC ILC , 936 F.2d at 1099. Although mandatory injunctions also generallyalter the status quo, that is not always the case. It is not at all diff icult to envision situations where a mandatory injunction would preserve the status quo and a prohibitory injunction would alter the status quo. See Friends for All Children, Inc. v. Lockheed Aircraft Corp. , 746 F.2d 816, 830 n.21 (D.C. Cir. 1984) (noting that whether a mandatory or prohibitory injunction will maintain o r alter the status quo depends on whether the status quo is a “condition of action ” or a “condition of rest”). Without regard to whether a mandatory preliminary i njunction alters the status quo, however, it is still appropriate to disfavor s uch injunctions “because they-9-

affirmatively require the nonmovant to act in a particular way, and as a result they place the issuing court in a position where it may have to provide ongoing supervision to assure the nonmovant is abiding by the injunction.” SCFC ILC , 936 F.2d at 1099. Thus, it is simply incorrect to assert that there is perfect overlap between these two categories and that the c oncept of status quo should be folded into the question whether an injunction is m andatory or prohibitory. The fact that other courts have failed to recognize the se subtle distinctions is simply no reason to abandon the three artfully drawn categ ories set out in SCFC ILC

. For these reasons, the court is correct in reaffirm ing the central holding in
SCFC ILCthat a movant seeking a preliminary injunction whi ch upsets the status quo must satisfy a heightened burden. Nevertheless , the decision to jettison
SCFC ILC ’s “heavily and compellingly” language as the artic ulated standard for granting any of the three types of disfavored preli minary injunctions is appropriate. It is enough to note that courts in t his Circuit should recognize that each of the three types of injunction identified ab ove is disfavored and that a request for such an injunction should be even more closely scrutinized to assure that the exigencies of the case support the grantin g of a remedy that is certainly extraordinary. See Enter. Mgmt. Consultants , 883 F.2d at 888 (holding that even a traditional injunction, i.e., an injunction which preserves the status quo, is an “extraordinary” and “drastic” remedy). Furthermore , because a preliminary2 Judge Seymour is simply incorrect in implying that the application of

heightened scrutiny to preliminary injunctions thatalter the status quo is inconsistent with the need to prevent irreparable h arm. Opinion of Seymour, J., at 6-7. Instead, such an approach recognizes that pre liminary injunctions which alter the status quo, an unconventional and histori cally disfavored type of interim relief, are far more likely to impose untoward cost s on the non-moving party. For that reason, and because of the attendant costs imp osed on the judiciary by such preliminary injunctions, it is appropriate to requi re that movants make a heightened showing as a predicate to obtaining a pr eliminary injunction which alters the status quo. Such a system is sufficient ly flexible to allow courts to grant a preliminary injunction which alters the status quo when the harm to the movant is clear, certain, and irreparable; the bala nce of harms undoubtedly tips in favor of the movant; and the movant demonstrates a substantial likelihood of success on the merits. -10- injunction that alters the status quo operates outs ide the historic parameters for such interim relief, movants should not be able to rely on this Circuit’s modifiedlikelihood-of-success-on-the-merits standard. Inst ead, in addition to making a strong showing that the balance of the harms tips i n its favor and that the preliminary injunction is not adverse to the public interest, a movant seeking a preliminary injunction that alters the status quo s hould always have to demonstrate a substantial likelihood of success on the merits. 2 B. The Status Quo in This Case is the Enforcement of the CSA and Compliance with the Convention The status quo in factin this case is the enforcement of the CSA and compliance with the Convention. The record is clea r that both UDV itself and the United States recognized that the importation and c onsumption of hoascaviolated the CSA. UDV made a concerted effort to keep secre t its importation and use of3 These are the two plants utilized to brew hoasca

. -11- hoasca . On the relevant import forms, UDV officials in t he United States generally referred to hoascaas an “herbal tea”; they never called it hoascaor ayahuasca or disclosed that it contained DMT. UDV president Jeffrey Bronfman informed customs brokers that the substance being i mported was an “herbal extract” to be used by UDV members as a “health sup plement.” Furthermore, in an e-mail drafted by Bronfman, he emphasized the ne ed for confidentiality regarding UDV’s “sessions” involving hoasca : “Some people do not yet realize what confidentiality is and how careful we need to be. People should not be talking publicly anywhere about our sessions, where we have them and who attends them.” When UDV attempted to grow psychotr ia viridis and banisteriopsis caapi 3 in the United States, it imported the seeds and pl ants “clandestinely,” in the words used by UDV, and requ ired its members to sign confidentiality agreements to keep their attempts s ecret. All of these actions by UDV demonstrate a recognition that its importation and consumption of hoasca violated the CSA. Likewise, when the United States realized that UDV was importing a preparation which contained DMT, it sei zed that shipment and additional quantities of the preparation found in asearch of Bronfman’s residence. Accordingly, although UDV eventually so ught a preliminary injunction after the seizure of the hoasca , at all times leading up to that event the-12-

record reveals that the status quo was the enforcem ent of the CSA. Where one party, here UDV, intentionally precludes a contest by concealing material information, the status quo must be determined as o f the time all parties knew or should have known all material information. Although recognizing that UDV “acted in a somewhat clandestine manner in the course of importing the hoascaand using it in its religious ceremonies,” Judge Seymour nevertheless asserts that UDV’s importation and use of hoascais still the status quo because UDV’s actions were “pr emised on its firmly held belief that such religious activity was in fact pro tected from government interference by its right to the free exercise of i ts religion.” Opinion of Seymour, J., at 19 n.3. It is odd, indeed, to assume that U DV thought its actions were entirely lawful and protected by the Religious Free dom Restoration Act (“RFRA”) or the First Amendment, in light of the fact that a ll of its actions were taken in secret. In any event, UDV’s reason for doing what it was doing is irrelevant. It simply cannot be the case that a party can establis h the status quo in a given case through secretive or clandestine activity. There i s enough natural incentive to manipulation in events preceding litigation, and in litigation itself, without providing judicial endorsement of surreptitious con duct by wrapping it in a cloak of “status quo.” The “last peaceable uncontested s tatus existing between the parties before the dispute developed,” 11A Wright & Miller § 2948, at 136, is-13-

most surely the open and notorious actions of the p arties before the dispute. Here, it is uncontested that the open and notorious actions of UDV were a facade of compliance with the CSA. Thus, the status quo i n this case is the government’s enforcement of the CSA. What is most strange about the approach advocated b y Judge Seymour is its apparent reliance on the legal rights of the partie s in arriving at the status quo in this case. Although disclaiming such an approach, Opinion of Seymour, J., at 18, Judge Seymour specifically references the parties’ legal rights in determining the status quo in this case. Id. (“[W]e are faced with a conflict between two feder al statutes, RFRA and the CSA, plus an international treaty, which collectively generate important competing status quos.”). If th e status quo is both parties exercising their legal rights, but the mutual and c ontemporaneous exercise of those rights is factually impossible, then the stat us quo must instead be the exercise of legal rights by only one party. Judge Seymour has not cited a single case to support the assertion that status quo is de termined by reference to a party’s legal rights. Furthermore, such an approac h is clearly inconsistent with this Circuit’s historic understanding of what const itutes the status quo. SCFC
ILC , 936 F.2d at 1100 (“The status quo is not defined by the [parties’] existing legal rights ; it is defined by the realityof the existing status and relationships between the parties, regardless of whether the exis ting status and relationships4 Likewise, envision two parties to a long-term contr act. For a number of

years both parties have operated with an identical understanding of a key provision of the contract. Party A suddenly change s course and adopts a different view of the contract. Facing irreparable injury, p arty B brings a declaratory judgment action and seeks a preliminary injunction to preserve the status quo pending resolution of the suit. Under Judge Seymou r’s approach, the parties’ course of conduct would be irrelevant to the questi on of status quo. Instead, the status quo would be determined by the merits of the parties’ legal assertions. That is, if the district court determined on a prel iminary and incomplete record that party A was likely to prevail on the merits, t he status quo would be party A’s revised interpretation of the contract. Such an ap proach is surely at odds with any basic understanding of what constitutes the status quo. -14- may ultimately be found to be in accord or not in a ccord with the parties’ legal rights.”). Finally, such an approach is completely unhinged from the reality of the parties’ extant relationship and from the historic purposes of the preliminary injunction. For instance, under Judge Seymour’s vi ew of what constitutes the status quo, it would not be determinative had the g overnment at first knowingly acquiesced in UDV’s consumption of hoasca , believing that such consumption was protected by RFRA, before eventually changing t ack and deciding to enforce the CSA. Instead, under Judge Seymour’s approach, a relevant consideration for status quo purposes is whether the government was at all times legally entitled to enforce the CSA. 4 This is clearly a question of whether UDV is like ly to prevail on the merits. Thus, if a party is likely to preva il on the merits, Judge Seymour would label that merits analysis the status quo andthen use it a second time to5 As noted in the panel dissent, because the districtcourt did not recognize

that the requested preliminary injunction would cha nge the status quo, it did not subject UDV’s request to any special scrutiny. O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft , 342 F.3d 1170, 1190 (10th Cir. 2003) (Murphy, J., dissenting). The failure of the district court to apply the correct standard in evaluating UDV’s request for a preliminary injuncti on amounts to an abuse of discretion. SCFC ILC, Inc. v. Visa USA, Inc. , 936 F.3d 1096, 1100 (10th Cir. 1991). Nevertheless, because the record on appeal is sufficiently well developed, (continued...) -15- reduce the movant’s burden on the final three preli minary injunction factors. Such an approach lacks logical moorings.
C. Conclusion In sum, a heightened standard is consistent with th e historical underpinnings of the preliminary injunction and is supported by persuasive policy rationales. Furthermore, this court’s delineation in SCFC ILCof three types of disfavored preliminary injunction is well-reasoned and consistent with the historic purpose of the preliminary injunction; SCFC ILCshould not be completely abandoned simply because other courts have chosen adifferent course. The status quo in this case is the government’s enforcement of the CSA and compliance with the Convention. Accordingly, when analyzing whethe r UDV is entitled to its requested preliminary injunction, this court will r ecognize that the requested injunction is disfavored and more closely scrutiniz e the request to assure that the exigencies of the case support the granting of a pa rticularly extraordinary remedy. 55 (...continued)

it is appropriate for this court to determine in th e first instance whether UDV has met the requisite burden. O Centro Espirita , 342 F.3d at 1190 (Murphy, J., dissenting) (citing SCFC ILC , 936 F.2d at 1100). -16- II. Based heavily on the conclusion that UDV has demons trated a substantial likelihood of success on the merits, a majority of the en banc court resolves that the district court did not err in granting UDV a pr eliminary injunction. In contrast to the conclusions of the majority, howeve r, UDV has not demonstrated a substantial likelihood of success on the merits. F irst, RFRA was intended to restore the compelling interest test that existed b efore Employment Division v. Smith , 494 U.S. 872 (1990). 42 U.S.C. § 2000bb(b)(1). Employing that test, courts routinely rejected religious exemptions fromlaws regulating controlled substances and have continued to do so with RFRA. Second, one only need look to the congressional findings set out in the CSA to see that the United States carried its burden of demonstrating that the prohib ition against importing or consuming hoascafurthers its compelling interests in protecting th e health of UDV members and preventing diversion of hoascato non-religious uses. Finally, compliance with the Convention, which results in in ternational cooperation in curtailing illicit drug trafficking, is certainly acompelling interest. The record-17-

further indicates that absent strict compliance wit h the Convention, the United States’ efforts in this regard would be hampered. Quite aside from the question of whether UDV has de monstrated it is substantially likely to prevail on the merits, UDV has not demonstrated its entitlement to a preliminary injunction. In connec tion with the risk to the health of UDV members and the risk to the public from dive rsion of hoasca , the district court found the evidence respectively “in equipoise ” and “virtually balanced.” The district court did not proceed to even address the harm to the government and the public interest resulting from violations of th e Convention necessitated by its injunction. With the evidence in this state, UDV h as not carried its burden of demonstrating that the third and fourth preliminaryinjunction factors—that the threatened injury to it outweighs the injury to the United States under the preliminary injunction and that the injunction is n ot adverse to the public interest—weigh in its favor thereby justifying even a preliminary injunction that does not alter the status quo. Superimposing the m ore appropriate heightened scrutiny for a disfavored injunction altering the s tatus quo upon the evidence in this case renders the preliminary injunction even m ore decidedly erroneous.-18-

A. Substantial Likelihood of Success on the Merits 1. Controlled Substances Act RFRA was never intended to result in the kind of ca se-by-case evaluation of the controlled substances laws, and the scheduli ng decisions made pursuant to those laws, envisioned by the majority. In light o f the specific findings set out in the CSA with regard to the drug at issue here, it i s particularly improper for the court to assume such a function in this case. This is true even though limited religious use of another drug, peyote, has been all owed pursuant to statute, 42 U.S.C. § 1996a, and before that, pursuant to regulation, 21 C.F.R. § 1307.31. Apart from the fact that courts should not direct t he nation’s drug policy, courts simply lack the institutional competence to craft aset of religious exemptions to the uniform enforcement of those laws. In contrastto the majority’s conclusion, RFRA does not compel such an approach. To the extent that RFRA requires the government to prove a compelling governmental interest and least restrictive means c oncerning the ban on DMT, see 42 U.S.C. § 2000bb-1(b), the government need turn o nly to express congressional findings concerning Schedule I drugs. Congress spe cifically found that these drugs have a high potential for abuse, have no curr ently accepted medical use, and are not safe for use under any circumstances. 21 U .S.C. § 801(2) (“The illegal importation, manufacture, distribution, and possess ion and improper use of-19-

controlled substances have a substantial and detrim ental effect on the health and general welfare of the American people.”); id. § 801a(1) (“The Congress has long recognized the danger involved in the manufacture, distribution, and use of certain psychotropic substances . . . , and has pro vided strong and effective legislation to control illicit trafficking and to r egulate legitimate uses of psychotropic substances in this country.”). As to the specific drug at issue here, DMT, Congress has found that it has high potential for abuse and is not safe to consume even under the supervision of medical perso nnel. Id. § 812(b)(1) (setting out findings required for placement of a d rug on Schedule I); id. § 812(c), sched. I(c)(6) (including DMT, dimethyltryptamine, within Schedule I). These congressional findings speak to a need for uniformi ty in administration given the serious problem of drug abuse in the United States. See Smith , 494 U.S. at 905 (O’Connor, J., concurring); United States v. Israel , 317 F.3d 768, 771 (7th Cir. 2003). RFRA ought not result in a case-by-case redetermination of whether these findings are correct. Judge McConnell takes the op posite position—that congressional findings and scheduling (indeed Congr ess scheduled DMT) are not enough—stating “[s]uch generalized statements are o f very limited utility in evaluating the specific dangers of this substance under these circumstances, because the dangers associated with a substance mayvary considerably from-20-

context to context.” Opinion of McConnell, J., at 25. Judge McConnell’s opinion suffers from two serious defects. First, the opinion is simply wrong in asserting that the findings in the CSA are too generalized to have any utility in determin ing whether the use of DMT in a religious setting is dangerous to the health of U DV practitioners. On this point, Congress could not have been more clear. DMT has ahigh potential for abuse and is not safe to consume under any circumstances, even including under the supervision of medical personnel . 21 U.S.C. § 812(b)(1), (c), sched. I(c)(6). Second, under the approach advocated by Judge McCon nell, whether this court is talking about drinking hoascatea (ingesting DMT), smoking marijuana, or shooting heroin (Judge McConnell’s example), the government will be required to investigate religious use and determine whether the health risks or possibility of diversion would outweigh free exercise concerns. Such a reading of RFRA is difficult to reconcile with RFRA’s purpose of merel y reviving the pre- Smith compelling interest test. 42 U.S.C. § 2000bb(b)(1) . Congress viewed that test as applied in prior federal rulings as “a workable tes t for striking sensible balances between religious liberty and competing prior governmental interests.” Id. § 2000bb(a)(5). Employing that test, courts routin ely rejected religious exemptions from laws regulating controlled substanc es. See United States v.
Greene , 892 F.2d 453, 456-57 (6th Cir. 1989); Olsen v. DEA , 878 F.2d 1458,6 Judge McConnell asserts that these precedents provi de no insight into the

proper result in this case because the use of DMT ( presumably only that DMT consumed in the form of hoasca ) is not in widespread use and its sacramental use is “tightly circumscribed.” Opinion of McConnell, J., at 21-22. Judge McConnell’s view of religious freedom under RFRA is novel and problematic. Under his view, small religious groups are free to use “sacramental drugs,” as long as those “sacramental drugs” are esoteric and are not used too frequently. Once the religious group becomes too successful at attracting adherents, its chosen “sacramental drug” becomes popular with the public at large, or it decides that its sacrament must be consumed too frequently, the government’s interest becomes paramount. Unfortunately, he cites nothing from the legislative history of RFRA or from pre- Smith law to support the notion that the government has a lesser interest in regulating the sacramental drug use of small religious groups than it does in regulating the sacramental drug use of larger religious groups. -21- 1462-63 (D.C. Cir. 1989); Olsen v. Iowa , 808 F.2d 652, 653 (8th Cir. 1986); United States v. Rush , 738 F.2d 497, 512-13 (1st Cir. 1984); United States v. Middleton , 690 F.2d 820, 824 (11th Cir. 1982). They have co ntinued to do so with RFRA. See Israel , 317 F.3d at 772; United States v. Brown , No. 95-1616, 1995 WL 732803, at *2 (8th Cir. Dec. 12, 1995) (percuriam); United States v. Jefferson , 175 F. Supp. 2d 1123, 1131 (N.D. Ind. 2001). Tho ugh these cases involve marijuana, the same result should obtain in this case. 6 Judge McConnell’s view of how RFRA operates seems t o overlook events leading up to the passage of RFRA. It is certainly true, as Judge McConnell notes, that RFRA was passed in response to the Supr eme Court’s decision in Smith and that Smith did happen to involve the sacramental use of peyot e. Opinion of McConnell, J., at 21 (“[T]he impetus forenactment of RFRA was the7 The Congressional findings accompanying RFRA provid e as follows:

The Congress finds that— (1) the framers of the Constitution, recognizing fr ee exercise of religion as an unalienable right, secur ed its protection in the First Amendment to the Constituti on; (2) laws “neutral” toward religion may burden relig ious exercise as surely as laws intended to interfere wi th religious exercise; (3) governments should not substantially burden religious exercise without compelling justification ; (4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and (5) the compelling interest test as set forth in pr ior (continued...) -22- Supreme Court’s decision in a case involving the sa cramental use of a controlled substance.”). Judge McConnell is wrong to imply, h owever, that Congress intended to alter the ultimate outcome of that case (states may, consistent with the constitution, prohibit all uses, both religious andnon-religious, of peyote), as opposed to altering the analytical model set out in that case (no right in the Free Exercise Clause to avoid neutral laws of general ap plication). Opinion of McConnell, J., at 21-23. A review of the findings accompanying RFRA makes clear that Congress was concerned with the latter, not the former. 7The7 (...continued) Federal court rulings is a workable test for striki ng sensible balances between religious liberty and competing prior governmental interests. 42 U.S.C. § 2000bb(a). -23- procedural history preceding the enactment of RFRA does not support Judge McConnell’s assertion that this court is free to ig nore the congressional findings in the CSA in resolving UDV’s RFRA claim. Equally unconvincing is Judge McConnell’s attempt t o minimize the government’s interest in the uniform enforcement of the CSA. Unlike compulsory education for an additional two years, the interestin enforcement of the nation’s drug laws as prescribed by Congress is one of the h ighest order. Wisconsin v. Yoder , 406 U.S. 205, 215 (1972) (“The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate cla ims to the free exercise of religion.”). It directly affects the health and sa fety of American citizens. Unlike the protection of bald and golden eagle populations , the regulation of controlled substances can mean the difference between human li fe and death, and a court should not be second-guessing legislative and admin istrative determinations concerning drug scheduling based upon the record we have in this case. See United States v. Szycher , 585 F.2d 443, 444-45 (10th Cir. 1978); see also Touby v.-24-

United States , 500 U.S. 160, 162-163 (1991) (discussing time-con suming procedural requirements involved in drug scheduling ). For these reasons, Judge McConnell’s reliance on Yoderand Hardman is simply misplaced. Opinion of McConnell, J., at 23-24, 44-45. Judge McConnell is likewise wrong to assert that th e Attorney General has the raw power to grant religious exemptions from th e Controlled Substances Act under the guise that it “is consistent with public health and safety.” 21 U.S.C. § 822(d) (waiving registration requirements for certain manufacturers, distributors and dispensers if consistent with public health andsafety); Olsen , 878 F.2d at 1466 app. (DEA Final Order) (“There is no mechanismfor an exemption to scheduling for religious purposes.”). The governme nt’s regulatory exemption for peyote, 21 C.F.R. § 1307.31, later enacted by statu te, 42 U.S.C. § 1996a, was at all times a product of congressional will. See Rush , 738 F.2d at 513 (noting the

“ sui generis legal status of the American Indians”). The panel opinion recognized this when it rejected an equal protection argument that because the Native American Church’s use of peyote is protected, so to o should be the use of hoasca

. See O Centro Espirita Beneficiente Uniao do Vegetalv. Ashcroft , 342 F.3d 1170, 1186 n.4 (10th Cir. 2003). The panel relied upon Peyote Way Church of God v. Thornburgh , 922 F.2d 1210, 1216 (5th Cir. 1991), which held that an exemption for the Native American Church members to use peyot e was rationally related to-25-

the government’s trust responsibility to preserve N ative American culture. To read the exemption for the Native American Church a s an indication that Congress and the Executive have not precluded “a pa rticularized assessment of the risks involved in specific sacramental use” of controlled substances, Opinion of McConnell, J., at 25-27, proves too much—the con curring opinion can point to no other controlled substance receiving like treatm ent. The CSA envisions careful scheduling of substances. See 21 U.S.C. § 811(c) (listing eight factors which Attorney Gene ral must consider before adding or removing a substance from schedules); id. § 812(b) (findings necessary for adding a substance to a schedule); id. § 811(a) (requirement of notice and a hearing before Attorney General may add or remove asubstance from schedule). It also envisions medical and scientific uses of co ntrolled substances in the public interest and consistent with public health and safe ty; “[n]either manufacturing, distribution or dispensing contemplates the possess ion of controlled substances for other than legitimate medical or research purpo ses.” Olsen , 878 F.2d at 1466 app. (DEA Final Order); see also 21 U.S.C. § 823(a)-(b). Finally, the CSA allocates the burden of production in favor of the government: in any proceeding brought by the government under Title 21, the burde n of going forward with evidence of any exemption or exception falls on the person claiming its benefit.8 As noted above, Judge McConnell suggests that it can. According to his

opinion, the strength of the government’s interest in avoiding diversion of a controlled substance and enforcing the CSA will vary under RFRA depending on how esoteric the drug is, how often the drug is tak en as a sacrament, the size of the religious group, and whether the drug is consum ed in a traditional or nontraditional fashion. Opinion of McConnell, J., at 21-22, 27-28. With regard to this particular case, Judge McConnell presumes thatin proscribing DMT Congress was only concerned with it being taken intravenously or being inhaled, not with oral ingestion. Id. at 27. No evidence supports this. In United States v. Green , 548 F.2d 1261 (6th Cir. 1977), a DEA chemist qual ified as an expert witness testified to the hallucinogenic effects of DMT and its similarity in this respect to LSD, its dangerousness, and potential fo r abuse. Id. at 1269; see also People v. Saunders , 543 N.E.2d 1078, 1080 (Ill. App. Ct. 1989) (psych iatrist testimony that DMT is an hallucinogen and similar t o LSD). Though the court reversed the conspiracy to manufacture convictions in Green because it found that such testimony had minimal probative value and was prejudicial concerning the (continued...) -26- 21 U.S.C. § 885(a)(1) (government is not required t o negative any exemption or exception). The careful approach of the CSA should be contraste d with that of this court. Although this court recognizes that “the in terests of the government as well as the more general public are harmed if the g overnment is enjoined from enforcing the CSA against the general importation a nd sale of street drugs, or from complying with the treaty,” it then characteri zes this case as one “about importing and using small quantities of a controlle d substance in the structured atmosphere of a bona fide religious ceremony.” Opi nion of Seymour, J., at 22-23. Can the free exercise of religion under RFRA reallyturn on whether the adherent has a religious affinity for street drugs or more e soteric ones? 88 (...continued)

conspiracy charge, the court noted that “[s]uch fac ts may be highly relevant is assessing the need for controlling the drug.” Green , 548 F.2d at 1270. Other DMT prosecutions may be found in United States v. Ling , 581 F.2d 1118 (4th Cir. 1978); United States v. Noreikis , 481 F.2d 1177 (7th Cir. 1973); United States v. Moore , 452 F.2d 569 (6th Cir. 1971). It is also noteworthy that New Mexico proscribes possession and possession with intent to distribute DMT (dimethyltryptamine). See N.M. Stat. Ann. §§ 30-31-6(C)(6), 30-31-20(B), 30- 31-23(D). -27- In light of the congressional purpose behind RFRA o f reinstating the preSmith compelling interest test, 42 U.S.C. § 2000bb(b)(1) , the routine rejection of religious exemptions from drug laws in the pre- Smith era, and the congressional findings undergirding the placement of DMT among th e most dangerous and addictive of drugs (i.e., Schedule I substances), U DV has failed to demonstrate that it is likely to succeed on the merits of its c laim that RFRA entitles it to freely import and dispense hoasca

. 2. United Nations Convention on Psychotropic Substances The United States argues convincingly that a prelim inary injunction requiring it to violate the Convention could seriou sly impede its ability to gain the cooperation of other nations in controlling the int ernational flow of illegal drugs.
See 21 U.S.C. § 801a(1) (“Abuse of psychotropic substances has become a phenomenon common to many countries . . . and is no t confined to national borders. It is, therefore, essential that the Unit ed States cooperate with other nations in establishing effective controls over int ernational traffic in such9 As was true of the panel majority, Judge Seymour as serts that the

Convention “must be read in light of RFRA and the r eligious use of the controlled substance here.” Opinion of Seymour, J., at 24 & n .5 (citing O Centro Espirita , 342 F.3d at 1183-84). As noted in the panel disse nt, such an assertion could be read for the following two disturbing propositions: (1) the government’s interest in complying with its obligations under the Convent ion is not compelling because these obligations conflict with the government’s ob ligations under RFRA; and (2) because RFRA was enacted after the Convention was r atified, the Convention is nullified to the extent it conflicts with RFRA. O Centro Espirita , 342 F.3d at 1191 n.4 (Murphy, J., dissenting). The dissent further explained why both propositions are incorrect as a matter of law. Id . Unfortunately, Judge Seymour has carried the panel’s error forward, again intimating that the terms of the Convention have somehow been amended by RFRA. For those reasons set out in the panel dissent, Judge Seymour is wrong in assert ing that RFRA has displaced or amended the Convention. Id

. -28- substances.”). 9 The district court erroneously concluded that the Convention did

not cover hoasca . Judge McConnell does not appear to directly addr ess the merits of the district court’s conclusion, instead conclud ing that the government has failed to carry its burden under RFRA of demonstrat ing narrow tailoring. Opinion of McConnell, J., at 29-33. Judge Seymour, on the other hand, takes an entirely different tack. In her separate opinion, she asserts that because the Convention includes a provision allowing “signatorynations to seek an exemption from the treaty for indigenous plants containing pr ohibited substances ‘traditionally used by certain small, clearly deter mined groups in magical or religious rites,’” the government’s “argument that it will be significantly harmed by a preliminary injunction temporarily restraining it from enforcing the treaty-29-

against the UDV does not ring entirely true.” Opin ion of Seymour, J., at 25. The district court, Judge McConnell, and Judge Seymour are all incorrect. For those reasons set out in the panel dissent, hoascais a preparation containing a Schedule I substance covered by the Co nvention. O Centro Espirita , 342 F.3d at 1192-93 (Murphy, J., dissenting). Arti cle 7 of the Convention obligates signatory nations to prohibit all uses of Schedule I substances and to prohibit the import and export of those substances. Convention, supra , at 1, art. 7, 32 U.S.T. 543. The congressional findings in 21 U.S.C. § 801a(1) make clear that international cooperation and compliance with the Convention are essential in providing effective control over the cross-border f low of such substances. In addition, the record contains the declaration of Ro bert E. Dalton, a State Department lawyer for the Treaty Affairs Office. D alton’s declaration asserts that the need to avoid a violation of the Convention is compelling and that a violation of the Convention would undermine the United States ’ role in curtailing illicit drug trafficking. It appears that the Dalton decla ration is unopposed. In light of the plain meaning of the Convention, the congressio nal findings on the importance of cooperation, and the Dalton declarati on, UDV has not demonstrated a substantial likelihood that it will prevail on th e merits of its RFRA claim. In his separate opinion, Judge McConnell asserts th at (1) the government deprived this court of “evidence” necessary to inte rpret the Convention and (2)-30-

the government failed to demonstrate that strictly prohibiting the import and consumption of hoascais the least restrictive means of furthering its i nterest in complying with the Convention. Opinion of McConnel l, J., at 29, 30-33. Judge McConnell’s assertions are flawed in several respec ts. First and foremost, the interpretation of the Conve ntion is a question of law. See, e.g., Ehrlich v. Am. Airlines, Inc. , 360 F.3d 366, 370 (2d Cir. 2004) (holding that proper interpretation of an internati onal treaty is a question of law subject to de novo review); United States v. Garrido-Santana , 360 F.3d 565, 576- 77 (6th Cir. 2004) (same); United States v. Al-Hamdi , 356 F.3d 564, 569 (4th Cir. 2004) (same); Smythe v. United States Parole Comm’n , 312 F.3d 383, 385 (8th Cir. 2002) (same). Here, the district court unequi vocally concluded that the Convention did not apply to hoasca . For those reasons set out in the panel dissent, the district court’s legal conclusion is e rroneous. O Centro Espirita , 342 F.3d at 1192-93 (Murphy, J., dissenting). That the district court did not hold a hearing on this question, does not foreclose this c ourt from recognizing the district court’s legal error. When interpreting a treaty this court must “first look to its terms to determine its meaning.” United States v. Alvarez-Machain , 504 U.S. 655, 663 (1992). As set out in the panel diss ent, and as elaborated supra , the plain language of the Convention makes clear that a ll signatories must prohibit the international trafficking of hoasca

.-31-

Based on its erroneous legal conclusion that the Co nvention did not apply

to hoasca , the district court precluded the government from presenting evidence regarding the Convention at the evidentiary hearing . In a letter to the parties, the district court indicated as follows: “I have review ed the parties’ briefs on [UDV’s] Motion for Preliminary Injunction. I belie ve that it will be necessary to hold an evidentiary hearing on the following factua l issues: 1) the health risks associated with the ceremonial use of hoasca; 2) th e potential for diversion of hoasca to non-ceremonial use . . . .” Of course, a s noted above, whether hoascais covered by the Convention is a question of law for the court to decide, not a question of fact like those questions identified bythe district court in its letter. Thus, it is strange to assert, as does Judge McConn ell, that it would be premature to reach this issue because the district court did not hold an evidentiary hearing on the matter. Opinion of McConnell, J., at 29. Nor is it altogether accurate to assert that it was the defendants who opposed the introduction of evidence on this questi on at the hearing. Id. Judge McConnell asserts that UDV “attempted to present ev idence regarding the interpretation of the Convention by the Internation al Narcotics Control Board [(“INCB”)], the international enforcing agency, includinga letter by the Secretary of the Board stating that hoasca is not controlled under the Convention.” Id. (emphasis added). Judge McConnell makes it appear that UDV sought to produce10 According to Judge McConnell,

The government objected on the ground that “We are now introducing testimony about whether or not ayahuasc a is controlled under the International Convention. That is not on e of the issues in this hearing.” After discussion, the district court forbade the questioning on the subject, and plaintiffs were una ble to introduce evidence on the interpretation of the Convention by the Board. For this Court to attempt to interpret a complex treaty on the basis of its “plain language,” without the benefit of its interp retive history, would be premature.” Opinion of McConnell, J., at 29 (record citation om itted). -32- multiple items of evidence, only one component of w hich was a letter from the Secretary of the INCB. In fact, UDV merely sought to question a witness about the contents of Plaintiff’s Exhibit 54, a letter fr om the Secretary of the INCB. That letter had already been admitted into evidence and used by both UDV and the government in questioning witnesses regarding the efficacy of the control measures for Schedule I and II drugs under the Conv ention. Furthermore, as noted by the government below, there are serious qu estions as to the relevance of the Secretary’s opinion regarding whether hoascais covered by the Convention. Judge McConnell further asserts that based on a narrow objection by the United States, the district court excluded the evid ence, depriving this court of “interpretive history” necessary to a resolution of this appeal. 10 It is far from clear, however, that Plaintiff’s Exhibit 54 is as i mportant as Judge McConnell would assume, since neither party saw fit to includ e it in the record on appeal. Nor is it accurate to assert that the sole basis of the government’s objection to the11 During the discussion on whether the questioning sh ould be allowed,

counsel for the government stated as follows:

Objection, Your Honor. We are now introducing test imony about whether or not ayahuasca is controlled under the International Convention. That is not one of the issue in this h earing.

. . . . Your Honor, the person who introduced that exhibit was plaintiffs’ counsel, who introduced it for the purp ose of talking about the effectiveness of controls. I also was talking about the effectiveness of Schedule I and II controls. I did not talk about the applicability of the treaty to ayahuasca. That is not one of the issues here. That is a legal issue, and that is up to You r Honor to decide. . . .

. . . . Your Honor, we did not just now talk about which su bstances were controlled in the Convention. When I went thr ough this report, it was to rebut statements [plaintiffs’ counsel] ma de from the report yesterday about the effectiveness of the controls. That is the only reason. The reason why we should not be talking about this today is because it is not an opinion of the INCB. The secr etary of the board is not a voting member. The government does not ag ree or accept that the INCB doesn’t control ayahuasca under the C onvention. The INCB does not have the authority to determine what is controlled (continued...) -33- line of questioning was that the district court had not asked the parties to present evidence on the issue. Opinion of McConnell, J., at 29. Instead, the government objected on multiple grounds: (1) the questions wer e beyond the scope of redirect examination; (2) the letter was legally irrelevant; (3) the district court had previously informed the parties that no evidence wo uld be taken on the Convention; and, most importantly, (4) whether hoascais covered by the Convention was a legal question for the court to de cide. 11 Taken in context, then,11 (...continued)

under the Convention. This is an entirely separate issue. It’s a legal issue for another day. And this does not relate to diversion or anything I talked about just now.

12 Even if Judge McConnell were correct that the recor d is too truncated to reach a decision on whether the government has adva nced a compelling interest in complying with the Convention and that prohibition on the import and consumption of hoascais the most narrowly tailored means of advancing t hat compelling interest, however, the more appropriate course of action would be to remand to the district court for further developmen t of the record. -34- it is not appropriate to hold the government respon sible, as does Judge McConnell, for the district court’s failure to hold a hearing on whether compliance with the Convention is a compelling gove rnmental interest. Id. Nor is it appropriate to fault the government for f ailing to demonstrate that strictly prohibiting the importation and consumptio n of DMT, in the form of hoasca , is the least restrictive way to further the gover nment’s interest in complying with the Convention. Opinion of McConnel l, J., at 30. The problem, of course, is that the district court short-circuit ed the government’s ability to present evidence on this particular question when i t concluded that the Convention did not apply to hoasca . Under these circumstances, it seems strange to punish the government for this purported evident iary deficiency. As we have it, the Dalton declaration is the only evidence in the record on the question and is uncontradicted. With the record in this state, UDVhas failed to demonstrate a substantial likelihood of success on the merits. 12-35-

In response, Judge McConnell envisions an elaborate process whereby, to demonstrate narrow tailoring, the government is obl igated to request that DMT be removed from the schedule of drugs covered by the C onvention. Opinion of McConnell, J., at 30-31. That is, until the govern ment seeks to have DMT removed from coverage by the Convention, it cannot demonstrate that “strict” prohibitions against the import of DMT are the leas t restrictive means of advancing its interest in complying with the Conven tion. It is worth noting at the outset that this argument is not advanced on appeal by UDV. In any event, Congress has specifically found that DMT is a highl y dangerous and addictive substance. It is difficult to see how asking that DMT be removed from the schedule of drugs covered by the Convention advance s the government’s interests in any way. To the extent that Judge McConnell is implying that the government could seek an exemption allowing importation into and consumption of DMT in the United States, whether or not that DMT came in the form of hoasca , while the remaining signatories remain bound by the terms of the Convention to prevent international trafficking in DMT, his assertion fin ds absolutely no support in the language of Article 2. There is simply nothing in that particular Article allowing signatory nations to pick and choose which of the S cheduled drugs they will criminalize. It is certainly true that signatory n ations can object to the scheduling of new psychotropic drugs and can ask that drugs al ready scheduled be-36-

reclassified. Opinion of McConnell, J., 30-31. Th ose provisions do not, however, allow for a single nation opt-out; instead , they establish the schedule of drugs that all signatory nations will be obligated to criminalize. It is incongruous to obligate the government to seek to remove DMT fr om the coverage of the Convention in order to demonstrate that its efforts to restrict the importation and consumption of DMT are the least restrictive means of complying with the Convention. Judge Seymour does not endorse the district court’s conclusion that the Convention does not apply to hoasca . Instead, she asserts that the availability of the exemption in Article 32 of the Convention demon strates that no significant harm will flow to the government from the injunctio n. Opinion of Seymour, J., at 24-25; see also Opinion of McConnell, J., at 31-32 (asserting thatthe failure of the government to seek a reservation under Article 32(4) on behalf of UDV demonstrates the government failed to prove that th e strict prohibition against the importation and consumption of hoascais the least restrictive means of furthering its interest in complying with the Convention). Wh at Judges Seymour and McConnell fail to acknowledge, however, is that the exemption set out in Article 32(4) allows signatory nations to make a reservatio n as to all of the provisions of Article 7, except for the provisions of Article 7 prohibiting the international-37-

trafficking of psychotropic substances . Article 32(4) specifically provides as follows:
A State on whose territorythere are plants growing wild which contain psychotropic substances from among those inSchedule I and which are traditionally used by certain small, clea rly determined groups in magical or religious rites, may, at the t ime of signature, ratification or accession, make reservations concer ning these plants, in respect of the provisions of article 7, except for the provisions relating to international trade

. Convention, supra , at 1, art. 32(4), 32 U.S.T. 543 (emphasis added). In light of this very specific language, it is not possible to treat the exemption set out in Article 32 as diminishing the significant injury to the government flowing from an injunction mandating that the government allow t he importation of hoasca

. B. Balance of Harms and Public Interest For those reasons set out above, UDV has not demons trated a substantial likelihood of success on the merits of its RFRA cla im. This is especially true in light of the heightened burden on UDV to demonstrat e its entitlement to a preliminary injunction that upends the status quo. Independent of the question of likelihood of success on the merits, however, UDV h as not demonstrated that its harm outweighs the harm flowing to the government a s a result of the preliminary injunction or that the preliminary injunction is no t adverse to the public interest. RFRA provides that once a person proves that a law substantially burdens the exercise of religion, the government has the bu rden of going forward and of-38-

persuasion in proving that the law furthers a compe lling governmental interest and that the law as applied is the least restrictiv e means of furthering that compelling governmental interest. 42 U.S.C. §§ 200 0bb-1(a), 2000bb-1(b)(1)-(2), 2000bb-2(3). Though this is a demanding test, see City of Boerne v. Flores , 521 U.S. 507, 534 (1997), it seems particularly appropr iate to insist that a movant meet all elements of the preliminary injunction tes t because RFRA goes beyond the protections offered by the First Amendment. See Kikumura v. Hurley , 242 F.3d 950, 955, 962 (10th Cir. 2001) (requiring cons ideration of all preliminary injunction elements with RFRA claim). In other wor ds, RFRA is not the First Amendment and UDV has no valid claim that its FirstAmendment rights are being violated given that the CSA is a neutral law of general applicability. See Smith , 494 U.S. at 885; United States v. Meyers , 95 F.3d 1475, 1481 (10th Cir. 1996). Given evenly balanced evidence concerning t he health risks of DMT usage and its potential diversion, UDV cannot satis fy its burden of showing that its injury outweighs any injury to the government and that an injunction would not be adverse to the public interest. 1. Controlled Substances Act First and foremost, as set out above, Congress has specifically found that the importation and consumption of controlled subst ances is adverse to the public interest. 21 U.S.C. §§ 801(2), 801a(1). Congress has specifically found that the13 Judge Seymour appears to assert that it is improperto rely on these

congressional findings in light of the passage of RFRA. Opinion of Seymour, J., at 27 n.8 (“Judge Murphy relies heavily on Congress ’ specific findings that the importation and consumption of controlled substance s are adverse to the public interest . . . while totally ignoring the immediate and strong reaction Congress had to the Supreme Court’s decision in Employment Division v. Smith , 494 U.S. 872 (1990).”). Judge Seymour’s assertion is flawed. A s the congressional findings accompanying RFRA make clear, what Congress found o ffensive about Smith was its abandonment of the compelling interest test wit h regard to laws neutral to religion. 42 U.S.C. § 2000bb(a). None of the find ings in § 2000bb(a), or any other portion of RFRA, indicate that the interests protected by the CSA are not compelling. In fact, there is no mention at all of the CSA in § 2000bb(a). Judge Seymour has simply failed to explain how the findin gs set out in § 2000bb(a) minimize the magnitude of the interests identified by Congress in enacting the CSA. Because RFRA requires that government conductwhich burdens religion be in furtherance of a compelling governmental inte rest, id. § 2000bb-1(b)(1), and because the congressional findings accompanying the CSA bear on the question whether the governmental interests at issue in this case are compelling, the congressional findings accompanying the CSA are hig hly relevant. -39- drug at issue here, DMT, has high potential for abu se and is not safe to consume even under the supervision of medical personnel. Id. § 812(b)(1), (c), sched. I(c)(6). 13 Against this backdrop, the district court found that the evidence was in equipoise as to the risk of diversion of hoascato non-religious purposes and the danger of health complications flowing from hoascaconsumption by UDV members. As noted above, both Judge Seymour and Ju dge McConnell erroneously rely on this finding to conclude that t he United States has not carried its burden of demonstrating that the restrictions i n the CSA against the importation and consumption of hoascafurther the United States’ compelling14 Judge Seymour seems to take comfort in the fact that the preliminary

injunction only temporarily precludes the government from enforcing the CSA. See Opinion of Seymour, J., at 24. As noted above, ho wever, Congress has specifically found that the consumption of DMT is u nsafe even when consumed under medical supervision and that the drug has a h igh potential for abuse. See 21 U.S.C. § 812(b)(1). UDV could not muster suffic ient evidence to demonstrate that consumption of DMT is safe or that there is no risk of diversion. Although it is true that the preliminary injunction could be qu ickly lifted should the United States prevail on the merits, such a course would n ot remediate any harm that might occur to the members of UDV or the general ci tizenry from diverted hoasca while the preliminary injunction was in effect. Ju dge Seymour’s approach thus seems to wholly discount those risks that inhere inthe preliminary injunction. -40- interests and that, concomitantly, UDV is substanti ally likely to prevail on the merits of its RFRA claim. Opinion of Seymour, J., at 21; Opinion of McConnell, J., at 17-18. The United States, however, has no s uch burden at the third and fourth steps of the preliminary injunction analysis . At these stages, it is UDV that must demonstrate the requested preliminary injuncti on is not adverse to the public interest and its harm outweighs any harm to the gov ernment. Furthermore, because the preliminary injunction UDV is requestin g would upset the status quo, it must show that the exigencies of the case entitl e it to this extraordinary interim relief and that the balance of harms favors the iss uance of an otherwise disfavored interim remedy. In light of the congressional find ings noted above and the equipoised nature of the parties’ evidentiary submi ssions, UDV has not met its burden. 1415 See, e.g., Preliminary Injunction para. 13 (giving UDV right to refuse to

allow inspections of any items, pending a determination by the district court, if UDV concludes such an inspection would violate its right to freedom of association); id. para. 15 (directing United States and UDV to “arri ve at a mutually acceptable means of disposal of any hoascathat must be disposed of”); id. para. 24 (setting out time frames within which Uni ted States must conduct inspections); id. para. 25 (requiring United States to expedite UDV applications to import and distribute hoasca ); id. para. 29 (seriously limiting circumstances under which United States can revoke UDV’s registration t o import and distribute hoasca ); id. para. 35 (requiring United States to designate per son or small group of persons to act as liaison with UDV). -41- The United States suffers irreparable injury when i t is enjoined from enforcing its criminal laws. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox
Co. , 434 U.S. 1345, 1351 (Rehnquist, Circuit Justice 1 977). This injury to the United States, which when coupled with UDV’s failur e of proof on the questions of diversion and danger to UDV members prevents UDVfrom meeting its burden under the third and fourth preliminary injunction f actors, is exacerbated by the burdensome and constant official supervision and ov ersight of UDV’s handling and use of hoascaaffirmatively required by the injunction in this c ase. The district court’s preliminary injunction is eleven p ages long and contains thirty-six paragraphs; it modifies or enjoins enforcement of astaggering number of regulations implementing the CSA, with the result t hat the United States must actually set about to aid UDV in the importation of an unlimited supply of hoasca

. 15 UDV has not carried its burden of demonstrating that its injury, although admittedly irreparable, sufficiently outwe ighs the harm to the government16 In concluding that the injunction in this case is p rohibitory rather than

mandatory, Judge Seymour makes much of the fact that many of the provisions in the preliminary injunction were added at the govern ment’s insistence. Opinion of Seymour, J., at 16-17. This, however, over-simplif ies the procedural history and thereby belies the actual process by which the burd ensome provisions found their way into the district court’s preliminary injunctio n. After concluding that UDV was entitled to an injunction on its RFRA claim, th e district court directed the parties to submit proposed forms of a preliminary i njunction. When the parties were unable to agree as to the form of the prelimin ary injunction, UDV submitted a memorandum on the question. In that memorandum, UDV proposed a limited regulatory scheme different and independent from t he regulations set out in the Code of Federal Regulations governing Schedule I su bstances. In response, the United States asserted that UDV remained bound by applicable regulations relating to the lawful importation and distribution of Schedule I substances because UDV had never lodged a proper legal challenge to those regulations

. The government thus asserted that although UDV had challenged restrictions on its use of hoasca , it had not challenged generally applicable regulations regarding the lawful importation , distribution , and possession of Schedule I substances. Accordingly, the form of the preliminary injunction submitted by the government required UDV to comply with all applicable statutes and regulations to which UDV had failed to lodge a legal challenge . Notably, no provision in the government’s proposed preliminary injunction requir ed the government to engage in a cooperative enterprise with UDV by setting str ict time limits within which the government was obliged to act, required the gov ernment to negotiate with UDV over disposal of hoasca , or required the government to designate a liaison to deal directly with UDV. Accordingly, it is simp ly wrong to assert that it was the government who requested the provisions in the preliminary injunction that it now challenges as burdensome. Furthermore, it is w rong to assert that the preliminary injunction entered by the district court is wholly prohibitory. The provisions identified above are clearly mandatory i n that they require the government to take action outside of the normally applicable regulatory framework for the lawful importation, distribution, and possession of a substance containing DMT. As a consequence, the preliminary injunction constructs a customized regulatory scheme for UDV that differs f rom the regulatory scheme

(continued...) -42- so as to warrant interim relief that alters the status quo pending a determination of the merits. 1616 (...continued)

otherwise applicable to the lawful importation, dis tribution, and possession of Schedule I substances. Accordingly, Judge Seymour is wrong in discounting the magnitude of the harm to the government from the di strict court’s eleven-page, thirty-six-paragraph preliminary injunction. Altho ugh the preliminary injunction at issue here is subject to a heightened standard b ecause it alters the status quo, thus obviating the need to definitively determine w hether the injunction as a whole is mandatory or prohibitory, Judge Seymour ce rtainly errs in discounting the burdens imposed on the government as a result o f the district court’s preliminary injunction. -43- Unfortunately, Judge Seymour’s separate opinion cou ld be read as shifting the burden to the government to prove that its harm flowing from an injunction prohibiting enforcement of the CSA outweighs the harm to UDV and that the preliminary injunction is not adverse to the public interest. Opinion of Seymour, J., at 24 (“As the UDV established to the district court’s satisfaction, neither of the potential harms asserted by the government are more likely than not to occur. Thus, the balance is between actual irreparable har m to plaintiff and potential harm to the government which does not even rise to the level of a preponderance of the evidence.”). The problem with such an appro ach is that even when a requested preliminary injunction does not alter the status quo, the movant has the burden of demonstrating, clearly and unequivocally, that it is entitled to interim relief that is always extraordinary. Dominion Video Satellite, Inc. v. Echostar Satellite Corp. , 356 F.3d 1256, 1260-61 (10th Cir. 2004). Because this particular preliminary injunction does alter the status quo, U DV must make an even more-44-

rigorous showing, as set out above, of its entitlem ent to interim relief. See supra at 9-10. With this in mind, it must be noted that it is UDV that failed to show by a preponderance of the evidence there was no risk of diversion and no risk to the health of UDV members. The government has no such burden of proof at the third and fourth stages of the preliminary injunction ana lysis. To conclude that UDV satisfied its burden defies the record and the dist rict court’s findings that the evidence is in equipoise. Judge Seymour’s discussion of the balancing of the harms flowing from enjoining enforcement of the CSA is similarly uncon vincing. UDV would certainly suffer an irreparable harm, assuming of c ourse that it is likely to succeed on the merits of its RFRA claim. On the other hand , the magnitude of the risk of harm to the government is unquestionably substantia l. Although the harm identified by the government is a risk of diversion and a risk of adverse health consequences to members of UDV or to a member of th e public who obtains diverted hoasca , if the risk comes to fruition the consequences co uld be deadly. As explained above, UDV failed to demonstrate that there is no risk of diversion or of adverse health consequences to UDV members. As the district court’s findings demonstrate, it is just as likely as not t hat hoascawill be diverted and that members of UDV and the public will suffer adverse h ealth consequences. Cf. 21 U.S.C. § 812(b)(1), (c), sched. I(c)(6) (finding th at DMT is unsafe to consume17 Judge McConnell does cite to a number of cases invo lving the deprivation

of a constitutional right. Opinion of McConnell, J ., at 37-38. As noted above, (continued...) -45- even under medical supervision). Both Judge Seymou r and Judge McConnell seriously undervalue the magnitude of the risks ide ntified by the government in concluding that UDV’s actual harm outweighs the ris ks of harm identified by the government. At its base, the concurring opinion of Judge McConn ell would convert RFRA into a 900-pound preliminary injunction gorill a. According to Judge McConnell, the third and fourth preliminary injunct ion factors have no real play when RFRA is involved. Opinion of McConnell, J., at 36-37 (“When the government fails to demonstrate its compelling inte rest in burdening a constitutional right, courts routinely find that, i n the absence of a compelling justification for interference, the balance of harm s and public interest also favor protecting the moving party’s burdened rights.”). Thus, according to Judge McConnell, once a party demonstrates a substantial likelihood of success on the merits in a RFRA case, the inquiry is complete. Id. Other than simply noting that Congress passed RFRA only to restore the compelling interest test from Sherbert
v. Verner , 374 U.S. 398 (1963), Judge McConnell offers no re al support for his implicit proposition that RFRA renders irrelevant e ach of the remaining preliminary injunction factors. 17Judge McConnell thus rewrites RFRA so that it17 (...continued)

both Judges McConnell and Seymour seem to forget th at the right at issue in this case is based on a congressional enactment, not the Constitution. Furthermore, as noted at length above, RFRA must be read in light o f its historical context. RFRA merely restored the law to its pre- Smith state, a state of law under which courts routinely rejected religious exemptions fromgenerally applicable drug laws. -46- would now legislatively overrule decades of prelimi nary injunction jurisprudence, something RFRA does not do expressly. Equally unconvincing is Judge McConnell’s assertionthat equitable considerations that might not carry the day for the government at the likelihood-ofsuccess-on-the-merits stage are rendered irrelevantby RFRA at the balancing-ofharms and public-interest stages. Opinion of McCon nell, J., at 36 (“[T]he dissent attempts to make an end run around RFRA’s reinstate ment of strict scrutiny by repackaging all of the arguments that would be rele vant to the merits (where the presumption of invalidity would clearly apply) as a rguments about the equities (where it is disregarded).”). The preliminary inju nction is, after all, an equitable remedy. Even where a movant demonstrates that it i s substantially likely to prevail on the merits, a showing that UDV has failed to mak e, there may very well be equitable considerations counseling against the granting of extraordinary relief prior to a final determination on the merits. This is just such a case. Without regard to whether UDV is substantially likely to pr evail on the merits, the evidence adduced before the district court raises such serio us questions about the adverse-47-

health effects of hoasca , both as to UDV members and the public at large, a nd about the consequences of forced non-compliance with the Convention that interim equitable relief is not appropriate in this case. Nor does the Supreme Court’s recent decision in Ashcroft v. ACLU , 124 S. Ct. 2783 (2004), support Judge McConnell’s assertio n that equitable considerations are irrelevant under RFRA, once a mo vant has demonstrated a substantial likelihood of success on the merits. See Opinion of McConnell, J., at 38-40. Judge McConnell cites the following passage from Ashcroftin support of his proposition: As mentioned above, there is a serious gap in the e vidence as to the effectiveness of filtering software. . . . For us to assume, without proof, that filters are less effective than COPA wo uld usurp the District Court’s factfinding role. By allowing the preliminary injunction to stand and remanding for trial, we req uire the Government to shoulder its full constitutional burd en of proof respecting the less restrictive alternative argumen t, rather than excuse it from doing so. Opinion of McConnell, J., at 39-40 (quoting Ashcroft , 124 S. Ct. at 2794). Contrary to Judge McConnell’s assertion, this passa ge simply does not relate in any fashion to the equitable process of balancing t he competing harms or examining how a requested injunction would affect t he public interest that occurs at the third and fourth stages of the preliminary i njunction inquiry. Instead, it relates only to the question whether the movants in that case were likely to prevail on the merits. See Ashcroft , 124 S. Ct. at 2791-92 (“As the Government bears the18 That is, whether equitable considerations might occ asionally preclude the

grant of a preliminary injunction even though a mov ant has demonstrated a likelihood of success on the merits. -48- burden of proof on the ultimate question of COPA’s constitutionality, respondents must be deemed likely to prevail unless the Governm ent has shown that respondents’ proposed less restrictive alternatives are less effective than COPA.”). To the extent that there is any meaningful discussi on in Ashcroftof the particular issue before this court, 18 Ashcroftsupports the approach set out in this opinion. In concluding that the preliminary injunc tion should stand under the particular circumstances of that case, the AshcroftCourt noted as follows: [T]he potential harms from reversing the injunction outweigh those of leaving it in place by mistake. Where a prosecutio n is a likely possibility, yet only an affirmative defense is ava ilable, speakers may self-censor rather than risk the perils of trial. There is a potential for extraordinary harm and a serious chill upon protect ed speech. The harm done from letting the injunction stand pending a trial on the merits, in contrast, will not be extensive. No pro secutions have yet been undertaken under the law, so none will be disr upted if the injunction stands. Further, if the injunction is upheld, the Government in the interim can enforce obscenity law s already on the books. Ashcroft , 124 S. Ct. at 2794 (citation omitted). This pass age indicates that “practical” considerations, including consideration s that might not carry the day at the likelihood-of-success-on-the-merits stage, are nevertheless relevant when a court is undertaking a weighing of the equities. Id. In this case, those practical considerations most assuredly counsel against grant ing interim relief to UDV. The-49-

record clearly indicates, and the district court fo und, that it is just as likely as not that UDV members will suffer adverse health consequ ences as a result of the consumption of hoascaand that hoascawill be diverted to the general public. Furthermore, with the preliminary injunction in pla ce, the government is left with no alternative avenues to further the important pub lic safety policies underlying the CSA. This is in stark contrast to the situatio n in Ashcroft , wherein the government could “in the interim [continue to] enfo rce obscenity laws already on the books.” Id. For those reasons set out above, this is clearly one of those cases where equitable considerations weigh heavily agains t the entry of a preliminary injunction, even assuming UDV has demonstrated a su bstantial likelihood of prevailing on the merits. 2. United Nations Convention on Psychotropic Substances As noted above, a preliminary injunction requiring the United States to violate the Convention could seriously impede the g overnment’s ability to gain the cooperation of other nations in controlling the int ernational flow of illegal drugs. 21 U.S.C. § 801a(1) (“Abuse of psychotropic substan ces has become a phenomenon common to many countries . . . and is no t confined to national borders. It is, therefore, essential that the Unit ed States cooperate with other nations in establishing effective controls over int ernational traffic in such substances.”). Furthermore, the only evidence in t he record on this question, the-50-

Dalton declaration, indicates the need to avoid a v iolation that would undermine the United States’ role in curtailing illicit drug trafficking. Without regard to whether the declaration and congr essional findings are sufficient to carry the government’s burden of demo nstrating that absolute compliance with the Convention is the least restric tive means of advancing the government’s compelling interest, the declaration, taken together with the congressional findings, certainly bears on the ques tion of harm to the United States and the adversity of the preliminary injunction to the public interest. These matters were not even addressed by the district cou rt. In light of the declaration, the congressional findings, and the extant status q uo, UDV has simply not carried its burden of demonstrating that its interest in th e use of sacramental hoasca pending the resolution of the merits of its complai nt outweighs the harm resulting to the United States from a court order mandating t hat it violate the Convention. Nor has UDV shown that such an injunction is not ad verse to the public interest.

III. The court correctly reaffirms the central holding i n SCFC ILCthat when a movant is seeking one of the three historically dis favored types of preliminary injunctions, the movant must satisfy a higher burde n. I, therefore, join parts I, II, and III.A of the per curiam opinion.-51-

For those reasons set out above, UDV has failed to make the strong showing necessary to demonstrate its entitlement to a judic ially ordered alteration of the status quo pending the resolution of the merits of this case. First, UDV has not demonstrated a substantial likelihood of success onthe merits. The government’s assertion that the ban on the consumption of DMT/ hoascais necessary to protect the health of UDV members and to prevent diversion of a Schedule I psychotropic drug to the general population is fully supported b y the congressional findings set out in the CSA. 21 U.S.C. §§ 801(2), 801a(1), 812( b)(1), 812(c), sched. I(c)(6). These same congressional findings also demonstrate the need for uniformity in administration of the drug laws. See Smith , 494 U.S. at 905-06 (O’Connor, J., concurring); Israel , 317 F.3d at 771. At the same time, it is clear t hat Congress enacted RFRA to restore the pre- Smith compelling interest test. 42 U.S.C. § 2000bb(a). Prior to Smith , courts routinely rejected religious exemptions fr om laws regulating controlled substances. See supraat 19-20 (setting out pre- and post-RFRA cases rejecting religious exemptions fromneutrally applicable drug laws). There is simply nothing in the legislative history of RFRA to indicate that it was intended to mandate a drug-by-drug, religion -by-religion judicial reexamination of the nation’s drug laws. UDV has f ailed to demonstrate that it is substantially likely to prevail on its claim that RFRA exempts it from the prohibition against the consumption of DMT set out in the CSA. UDV has-52-

likewise failed to demonstrate that it is substanti ally likely to prevail on its RFRA claim, when measured against the government’s inter est in complying with the Convention. Congress specifically found that inter national cooperation is necessary to stem the international flow of psychot ropic drugs. 21 U.S.C. § 801a(1). The Dalton declaration demonstrates that an injunction forcing the United States into non-compliance with the Conventi on could undermine the United States’ efforts to obtain international coop eration to control the crossborder traffic in illegal drugs. Because UDV has f ailed to demonstrate a substantial likelihood of success on the merits, itis not entitled to a preliminary injunction. Even setting aside the question of whether UDV is s ubstantially likely to prevail on the merits, UDV has independently failed to carry its heavy burden of establishing that the balance of harms and the publ ic interest favors the issuance of a preliminary injunction. Setting aside the Conven tion for the moment and considering these factors only in relation to the C SA, UDV failed to establish entitlement to extraordinary interim relief alterin g the status quo. The district court found, as part of its analysis of likelihood of success on the merits, that the evidence regarding risk of diversion and harm to me mbers of UDV was virtually balanced and in equipoise. In other words, the dis trict court found that it is just as likely as not that hoascawill be diverted to the general public and that me mbers of-53-

UDV will suffer harm from the consumption of hoasca . These findings make it clear that UDV failed to muster sufficient evidence to demonstrate that the balance of harms weighs clearly and unequivocally in its favor and that the public interest clearly and unequivocally favors the entry of a pre liminary injunction. The harm to the government and public interest is not, howev er, singularly related to the CSA. Harm to the government and the public interes t resulting from the courtordered violation of the Convention remain unaddres sed by UDV or the district court. Furthermore, both Judge Seymour’s and Judge McConnell’s attempts to minimize the significant harm flowing to the govern ment as a result of its forced non-compliance with the Convention are flawed. Wit h the evidence of the balance of harms and public interest in such a state, UDV h as utterly failed to meet its burden under the third and fourth preliminary injun ction factors. I would reverse the district court’s entry of a pre liminary injunction. Because a majority of the court concludes otherwise , I respectfully dissent from parts III.B and IV of the per curiam opinion.No. 02-2323; O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft

SEYMOUR , Circuit Judge, concurring in part and dissenting in part, joined in full byTACHA , Chief Judge, PORFILIO, HENRY, BRISCOE , andLUCERO , Circuit Judges, and in Part II by McCONNELL and TYMKOVICH , Circuit Judges.
Like a majority of my colleagues, I am persuaded th at the district court did not abuse its discretion in granting the preliminary injunction in this case. I respectfully dissent, however, from the majority’s conclusion that the movant for a preliminary injunction must satisfy a heightened bu rden when the proposed injunction will alter the status quo but the injunc tion is not also mandatory.

I It is well established that “[a] preliminary injunc tion is an extraordinary remedy; it is the exception rather than the rule.” GTE Corp. v. Williams , 731 F.2d 676, 678 (10th Cir. 1984). Its commonly asserted p urpose is to “preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Texas v. Camenisch , 451 U.S. 390, 395 (1981). See also 11A C HARLES A LAN W RIGHT ET AL ., F EDERAL P RACTICE AND P ROCEDURE § 2947 at 123 (2d ed. 1995) (purpose of preliminary injunction is to prevent no n-movant from taking unilateral action which would prevent court from providing rel ief to the movant on the merits).-2-

In making the equitable determination to grant or d eny a preliminary injunction, courts tend to balance a variety of fac tors. We have stated generally that a court will grant preliminary relief only if the plaintiff shows “(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 unde r the preliminary injunction; (4) the injunction is not adverse to the public int erest.” Kikumura v. Hurley , 242 F.3d 950, 955 (10th Cir. 2001). These factors prov ide guideposts for a court in its attempt to minimize any harm that would result from the grant or denial of preliminary relief. The manner by which a court co nsiders the factors, the relative weight given to each, and the standards by which a movant is required to prove them, are driven by the special and unique circumst ances of any given case. As noted by Professor Dobbs: [T]he gist of the standards is probably easy to und erstand in common sense terms even if the expression is imperfect: th e judge should grant or deny preliminary relief with the possibility in mind that an error might cause irreparable loss to either party. Cons equently the judge should attempt to estimate the magnitude of that lo ss on each side and also the risk of error

. D AN B. D OBBS , L AW OF REMEDIES § 2.11(2) at 189 (2d ed. 1993) (emphasis added). American Hosp. Supply Corp. v. Hospital Prods. Ltd. , 780 F.2d 589 (7th Cir. 1986), epitomizes this approach, noting that w hen a district court is-3-

asked to decide whether to grant or deny a prelimin ary injunction [it] must choose the course of action that will minimize the costs of being mistaken. . . . If the judge grants the preli minary injunction to a plaintiff who it later turns out is not entitled to any judicial relief – whose legal rights have not been violated – the jud ge commits a mistake whose gravity is measured by the irreparabl e harm, if any, that the injunction causes to the defendant while i t is in effect. If the judge denies the preliminary injunction to a plaint iff who it later turns out is entitled to judicial relief, the judge commits a mistake whose gravity is measured by the irreparable harm, if any, that the denial of the preliminary injunction does to the pl aintiff. Id. at 593. Due to this inherently fluid, multi-facet ed, and equitable process, we review a district court’s decision to grant or denyinjunctive relief for abuse of discretion. SCFC ILC, Inc. v. Visa USA, Inc. , 936 F.2d 1096, 1098 (10th Cir. 1991). In so doing, we should keep in mind that the district judge had to act in haste, that he had to balance factors which, though they can be related in a neat formula , usually cannot be quantified, and that in dealing with the parties an d their witnesses and counsel in the hectic atmosphere of a preliminary-i njunction proceeding the judge may have developed a feel for the facts and equities that remote appellate judges cannot obtain from a transcript. American Hosp. Supply Corp. , 780 F.2d at 594-95. Thus “it is not enough that we think we would have acted differently in the distri ct judge’s shoes; we must have a strong conviction that he exceeded the permissible bounds of judgment.” Id. at 595.1 I disagree with Judge McConnell’s characterization of the cases I have

cited for the proposition that the other circuits l imit their categories of disfavored injunctions to those which are mandatory and those which provide the movant (continued...) -4- A.
In SCFC ILC , we held that movants requesting certain prelimina ry injunctions must meet a heightened standard insteadof satisfying the ordinary preliminary injunction test. We detailed that a pa rty who seeks an injunction which either changes the status quo, is mandatory r ather than prohibitory, or provides the movant with substantially all the reli ef he would recover after a full trial on the merits, was required to “show that on balance, the four [preliminary injunction] factors weigh heavily and compellingly in his favor.” SCFC ILC, Inc. , 936 F.2d at 1099 (emphasis added). We appear to be the only court which has adopted the specific approach of carving out three distinct categories of disfavored injunctions. Other courts have limited to two cate gories those preliminary injunctions deserving special scrutiny: injunctions which are mandatory or which provide the moving party with all the relief it see ks from a full trial on the merits. See, e.g., In re Microsoft Corp. Antitrust Litig. , 333 F.3d 517, 526 (4th Cir. 2003); Tom Doherty Assocs. v. Saban Entm’t , 60 F.3d 27, 34-35 (2d Cir. 1995); Acierno v. New Castle County , 40 F.3d 645, 653 (3d Cir. 1994); Wetzel v. Edwards , 635 F.2d 283, 286 (4th Cir. 1980); Anderson v. United States , 612 F.2d 1112, 1114-15 (9th Cir. 1980). 1 In order to bring our jurisprudence in closer acc ord with these1 (...continued)

with all the relief afforded on the merits. McConn ell, J., op. at 6 n.4. As noted above, no other circuit follows our approach of ide ntifying three categories of disfavored injunctions. Courts which speak of appl ying some form of heightened standard to preliminary injunctions that alter the status quo specifically define those types of injunctions as mandatory. See Tom Doherty Assocs. v. Saban Entm’t , 60 F.3d 27, 33-34 (speaking broadly about applyin g a heightened standard to preliminary injunctions that alter the status qu o, id. at 33, but then immediately defining with more specificity the two categories o f disfavored injunctions as those which are mandatory, and those which provide all the relief sought on the merits, id. at 34); see also In re Microsoft Corp. Antitrust Litig. , 333 F.3d 517, 526 (4th Cir. 2003) (“Mandatory preliminary injunct ions [generally] do not preserve the status quo . . . .”) (alteration in or iginal); Acierno v. New Castle County , 40 F.3d 645, 653 (3d Cir. 1994) (“A party seeking a mandatory preliminary injunction that will alter the status q uo bears a particularly heavy burden in demonstrating its necessity.”); Wetzel v. Edwards , 635 F.2d 283, 286 (4th Cir. 1980) (“Mandatory preliminary injunctions do not preserve the status quo and normally should be granted only in those ci rcumstances when the exigencies of the situation demand such relief.”); Anderson v. United States , 612 F.2d 1112, 1114-15 (9th Cir. 1980) (“Mandatory prel iminary relief, which goes well beyond simply maintaining the status quo pende nte lite, is particularly disfavored.”) (citations omitted). While Judge McC onnell may disagree with the manner by which I think courts should consider the question of status quo, it cannot be said I am advocating an approach that is discordant from that employed by other courts. To the contrary, by separating ou t and adding injunctions that alter the status quo as a third category of disfavo red injunctions, it is the majority that is out of step. See generally D OUGLASS L AYCOCK , M ODERN A MERICAN REMEDIES 450 (3d ed. 2002); Thomas R. Lee, Preliminary Injunctions and the Status Quo , 58 WASH
. & L EE L. REV . 109 (2001). -5- other circuits, and because I am convinced it will cause less confusion to the parties and the district court, I would limit our h eightened standard to those two categories of preliminary injunctions.2 In the course of deciding whether to grant prelimin ary injunctive relief,

“courts have consistently noted that ‘[b]ecause a s howing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction, the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of a n injunction will be(continued...) -6- In doing so, I do not denigrate the general notion that the purpose of a preliminary injunction is to preserve the status qu o between the parties pending a full trial on the merits. But this general maxim s hould not be taken merely at face value or become a goal in and of itself. Rather, t he very purpose of preserving the status quo by the grant of a preliminary injunction is to prevent irreparable harm pending a trial on the merits. See, e.g., In re Microsoft , 333 F.3d at 525 (“The traditional office of a preliminary injunction is t o protect the status quo and prevent irreparable harm during the pendency of a l awsuit ultimately to preserve the court’s ability to render a meaningful judgmenton the merits.”); Matzke v. Block, 542 F. Supp. 1107, 1113 (D. Kan. 1982) (“The purp ose of a preliminary injunction is two-fold: it protects the plaintiff f rom irreparable injury and it preserves the court’s ability to decide the case on the merits.”); 11A W RIGHT &
M ILLER , § 2947 at 121 (“a preliminary injunction is an in junction that is issued to protect plaintiff from irreparable injury and to pr eserve the court’s power to render a meaningful decision after a trial on the merits”)

. Given the essential role prevention of irreparable harm plays in the grant of preliminary injunctive relief, 2 district courts should consider the question of2 (...continued)

considered.’” Dominion Video Satellite v. EchoStar Satellite Corp

. , 356 F.3d 1256, 1260-61 (10th Cir. 2004) (quoting Reuters Ltd. v. United Press Int’l, Inc. , 903 F.2d 904, 907 (2d Cir. 1990), and listing othercases). Without a showing of irreparable harm, there exists no justification forgranting the extraordinary remedy of injunctive relief prior to trial because any other harm can be compensated for by damages at the end of the trial. -7- altered status quo in light of how it impacts the b alance of harms between the parties and the public interest, as well as conside ring what attendant institutional costs may accompany the grant of such relief. As t he Fifth Circuit has said, “[i]f the currently existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so a s to prevent the injury.” Canal Auth. of the State of Florida v. Callaway , 489 F.2d 567, 576 (5th Cir. 1974) (citations omitted). Other courts echo this refrain, noting that where preserving the status quo will perpetuate harm against the mov ing party, an order altering the status quo may be appropriate. See, e.g., Friends For All Children v. Lockheed Aircraft Corp. , 746 F.2d 816, 830 n.21 (D.C. Cir. 1984); Crowley v. Local No. 82, Furniture & Piano Moving , 679 F.2d 978, 995 (1st Cir. 1982), reversed on other grounds, 476 U.S. 526 (1984); see also 11A W RIGHT & M ILLER§ 2948 at 133-35. For these reasons, “[t]he focus always must be on p revention of injury by a proper order, not merely on preservation of the status quo .” Canal Auth. , 489 F.2d at 576. Thus a court’s examination of the status quo should occur during the process of balancing the various interests and harms among the parties and the public.-8- B. Our circuit currently employs three different stand ards when granting preliminary injunctions. As a base line, we have a rticulated that a party’s right to injunctive relief must be “clear and unequivocal.” See SCFC ILC Inc. , 936 F.2d at 1098 (citing Penn v. San Juan Hosp. , 582 F.2d 1181, 1185 (10th Cir. 1975)). At one end of the spectrum, we have applied SCFC ILC ’s “heavily and compellingly” language to injunctions requiring heightened scruti ny. Id. at 1098-99. At the other end, we have adopted a modified approach for the “likelihood of success on the merits” aspect of the four part preliminary inj unction test for certain circumstances. Under this alternative approach, if the moving party establishes that the last three factors of the test are in its favor, the party may ordinarily satisfy the first factor by “showing that questions going to the merits are so serious, substantial, difficult and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Federal Lands Legal Consortium v. United States , 195 F.3d 1190, 1195 (10th Cir. 1999). Within thi s paradigm, and in accordance with the principle that a preliminary injunction should preserve the parties’ positions to prevent irreparable harm and allow the court to make a meaningful decision on the merits, the court’s focu s properly remains on the balance of relative harms between the parties.-9-

In general, “[e]mphasis on the balance of [irrepara ble harm to plaintiffs and defendants] results in a sliding scale that demands less of a showing of likelihood of success on the merits when the balance of hardsh ips weighs strongly in favor of the plaintiff, and vice versa.” In re Microsoft , 333 F.3d at 526. Thus, the more likely a movant is to succeed on the merits, “the l ess the balance of irreparable harms need favor the [movant’s] position.” Ty, Inc. v. Jones Group, Inc. , 237 F.3d 891, 895 (7th Cir. 2001). And, alternatively, “if there is only slight evidence that plaintiff will be injured in the absence of interlo cutory relief, the showing that he is likely to prevail on the merits is particularly important.” Canal Auth. , 489 F.2d at 576-77. The rationality of this approach is evi dent: where there is a strong indication that the plaintiff is correct on the mer its, the less it is likely that the defendant will be harmed by the issuance of a preli minary injunction; where there is little likelihood a plaintiff will be irreparabl y harmed, preliminary relief is unwarranted unless it is virtually certain plaintif f will win on the merits. Given the special considerations and potential admi nistrative costs at stake when a court issues a mandatory preliminary injunct ion, we should more closely scrutinize whether the irreparable harm to the mova nt substantially outweighs any harm to the non-movant or to the public interest. The movant should clearly show the exigencies of the situation justify the rather unusual injunction. See Tom Doherty Assocs. , 60 F.3d at 34 (“[A] mandatory injunction should i ssue only upon-10-

a clear showing that the moving party is entitled t o the relief requested, or where extreme or very serious damage will result from a d enial or preliminary relief.” (internal quotations omitted)); Anderson , 612 F.2d at 1114 (mandatory preliminary relief justified only where “facts and law clearly favor the moving party” or where “extreme or very serious damage will result”); In re Microsoft , 333 F.3d at 525 (showing for preliminary mandatory relief “must be indisputably clear”); Wetzel , 635 F.2d at 286 (mandatory preliminary injunctions “should be granted only in those circumstances when the exigencies of the situ ation demand such relief”). Although a mandatory injunction should be granted o nly where the moving party makes a strong showing that all the prelimina ry injunction factors weigh in its favor, we should abandon use of the “heavily an d compellingly” language employed in SCFC ILC , see 936 F.2d at 1098-99, which is not used by any othe r circuit. In addition, because a party seeking the grant of a mandatory preliminary injunction must make this stronger showing, the party should not be able to rely on our circuit’s modified likelihood of success on the merits standard, even where the balance of harms favors the movant. Rather, the mo vant for a mandatory preliminary injunction must also establish a substantial likelihood of success on the merits. See Tom Doherty Assocs. , 60 F.3d at 33-34 (party seeking mandatory injunction cannot rely solely on circuit’s relaxed likelihood of success on merits standard); SCFC ILC , 936 F.2d at 1101 n.11 (applicant for disfavored i njunction-11-

unlikely to satisfy higher standard without proving likelihood of success on merits). The same is true for injunctions that provide the m ovant with all the relief that could be obtained at trial. See SCFC ILC , 936 F.2d at 1099 (applying heightened standard to preliminary injunctions thatprovide the movant with all relief that could be obtained at trial). In this c ontext, however, the term “all the relief to which a plaintiff may be en titled” must be supplemented by a further requirement that the effe ct of the order, once complied with, cannot be undone . A heightened standard can thus be justified when the issuance of an injunctio n will render a trial on the merits largely or partly meaningless, eitherbecause of temporal concerns, say, a case involving the live televising of an event scheduled for the day on which preliminary relief i s granted, or because of the nature of the subject of the litigat ion, say, a case involving the disclosure of confidential informatio n. Tom Doherty Assocs. , 60 F.3d at 35 (emphasis added). See Prairie Band of Potawatomi Indians v. Pierce , 253 F.3d 1234, 1249 (10th Cir. 2001) (citing Tom Doherty Assocs. for this proposition). For example, while the pre liminary injunction here may give the UDV all the relief it would obtain after a full trial on the merits, the district court’s order can nonethel ess be “undone” should the UDV ultimately be unsuccessful at trial. This situatio n is clearly different from the examples listed in Tom Doherty Assocs. Moreover, the grant of a preliminary injunction in this case does not “make it difficultor impossible to render a meaningful remedy,” id. , to the government. If the UDV does not prevail at trial,-12-

the government will be able to enforce the CSA agai nst the church and its members and comply with the Convention. In sum, we should limit our categories of injunctio ns requiring greater scrutiny to those which are mandatory or which affo rd the movant all the relief it seeks after a full trial on the merits, and abandon the use of SCFC ILC ’s “heavily and compellingly” language. In addition, a party s eeking an injunction requiring greater scrutiny may not rely on our relaxed “succe ss on the merits” standard but must make a strong showing that it has a likelihoodof success on the merits and that the balance of harms weighs in its favor. How ever, I depart from my colleagues who hold that a heightened standard shou ld always be applied when the injunction will change the status quo. Rather, dis trict courts should assess alteration of the status quo in light of its impacton the balance of harms among the parties and the public interest.

II Turning to the question of whether the district cou rt properly granted the preliminary injunction to the UDV, our court review s the district court’s grant of injunctive relief for abuse of discretion and “exam ine[s] whether the district court committed error of law or relied on clearly erroneo us fact findings.” Walmer v. U.S. Dep’t of Defense , 52 F.3d 851, 854 (10th Cir. 1995). We also give due-13-

deference “to the district court’s evaluation of th e substance and credibility of testimony, affidavits, and other evidence. We will not challenge that evaluation unless it finds no support in the record, deviates from the appropriate legal standard, or follows from a plainly implausible, ir rational or erroneous reading of the record.” United States v. Robinson , 39 F.3d 1115, 1116 (10th Cir. 1994). The district court focused the majority of its anal ysis on whether the UDV could satisfy the likelihood of success on the meri ts prong of the preliminary injunction test. See Kikumura , 242 F.3d at 955 (listing elements of preliminary injunction test)

. Because the government did not dispute for the purp ose of the injunctive proceeding that its enforcement of the C SA and the United Nations Convention on Psychotropic Substances (Convention o r treaty) imposed a substantial burden on the UDV’s sincere exercise of religion, the UDV established

a prima facie case of a RFRA violation. See id. at 960. To undercut this showing of likelihood of success, the government had the bu rden of establishing that “the challenged regulation furthers a compelling interes t in the least restrictive
manner.” See 42 U.S.C. § 2000bb-1(b); United States v. Meyers , 95 F.3d 1475, 1482 (10th Cir. 1996). The government proffered three compelling interests – risks to the health of the UDV members by the use of hoasca , risk of diversion of hoascafor nonreligious purposes, and compliance with the Convent ion. “Believing the-14-

Government’s strongest arguments for prohibiting Un iao do Vegetal’s hoascause to be health and diversion risks, the district court did not ask the parties to present evidence on the Convention at the hearing.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft , 342 F.3d 1170, 1183 (10th Cir. 2003). After exam ining the parties’ evidence on the first two issues, the court found the evidence to be in equipoise for each. The court also decided the tre aty does not cover hoasca . The court therefore concluded the government had “faile d to carry its heavy burden of showing a compelling interest in protecting the hea lth of the UDV members using hoasca or in preventing the diversion of hoasca to illicit use.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft , 282 F. Supp. 2d 1236, 1269 (D.N.M. 2002). Hence, the court ruled the UDV had demonstr ated a substantial likelihood of success on the merits. The district court then turned to the remaining pre liminary injunction factors and determined the UDV satisfied each. The court f ound the UDV established irreparable injury because its right to the free ex ercise of religion was being impaired. With respect to harm to the government a nd the balance of harms, the court held that in balancing the government’s concerns against the injury suffered by the Plaintiffs when they are unable to consume hoas ca in their religious ceremonies, the Court concludes that, in light of the closeness of the parties’ evidence regarding the sa fety of hoasca use and its potential for diversion, the scale tips in the [church’s] favor.-15-

Id. at 1270. The court granted a preliminary injuncti on to the UDV pending a decision on the merits. The government contends that the preliminary injunc tion granted by the district court is mandatory and changes the status quo, and that the district court erred in failing to require the UDV to make a stron ger showing to succeed. I disagree. This case is unique in many respects bec ause it involves a clash between two federal statutes, one based in the First Amendm ent to the Constitution and protecting an individual’s free exercise of religio n and the other serving the important governmental and public interests of prot ecting society against the importation and sale of illegal drugs. This case a lso serves as an example of how challenging it can be to determine whether an injun ction is mandatory as opposed to prohibitory, or whether it alters the status quo

. I am not persuaded the injunction here is mandatory . Rather, it temporarily prohibits the government from treating the UDV’s sa cramental use of hoascaas unlawful under the CSA or the treaty. It also orde rs the government not to intercept or cause to be intercepted shipments of h oasca imported by the UDV for religious use, prosecute or threaten to prosecute the UDV, its members, or bona fide participants in UDV ceremonies for religious use of hoasca, or otherwise interfere with the religious use of hoasca by the UDV, its members, or bona fide participants in UDV ceremonies . . . . Aplt. br., Add. B at 2.-16-

The government contends the injunction is mandatorybecause it includes “36 separate provisions requiring specific affirmat ive action by the government to facilitate the UDV’s use of hoasca.” Aplt. Supp. E n Banc br. at 20. In so arguing, the government fails to acknowledge that the additi onal provisions were added to the injunction by the district court in response to the government’s insistence that the UDV be subject to some form of governmental ove rsight in its importation and use of hoasca . In large measure, the injunction’s terms detail how the UDV must comply with the importation and distribution regulations for controlled substances. The injunction outlines how the regulations should be specifically construed regarding the UDV and lists provisions from which the church should be exempted. The injunction’s terms also make clear t hat while the UDV is required to comply with the regulations, the government cann ot rely on potential technical violations of the regulations by the church, or an overly broad reading of the regulations, to bar the UDV’s importation of hoasca . While the order’s terms do not exactly mirror those proposed to the court by t he government, nor are they nearly as broad as the government might have hoped, they nonetheless are in the injunction because the government demanded the UDV be subject to some form of regulatory control in the course of importing and d istributing hoasca . In this regard, the order’s terms outline how the church mu st comply with the regulations while still protecting the church’s importation and use of its sacrament.-17-

Similarly, while some of the injunction’s provision s mandate that the parties take specific actions, the order is nonetheless pro perly characterized as prohibitory. Read as a whole, the additional terms in the order mandate that the
UDV comply with specific drug importation laws, while t he provisions conversely permit the governmentto perform its regulatory functions with respect t o the importation of controlled substances, up to but notincluding barring the UDV’s use of hoascafor sacramental purposes. However, the overall ef fect of the injunction is to prohibit the government from enfor cing the CSA and the treaty against the UDV. There is no doubt that determining whether an injun ction is mandatory as opposed to prohibitory can be vexing. In Abdul Wali v. Coughlin , the court recognized this difficulty but emphasized that [t]he distinction between mandatory and prohibitoryinjunctions, however, cannot be drawn simply by reference to whe ther or not the status quo is to be maintained or upset. As suggested by the terminology used to describe them, these equitable cousins have been differentiated by examining whether the non-moving party is being ordered to perform an act, or refrain from performi ng. In many instances, this distinction is more semantical than substantive. For to order a party to refrain from performing a given ac t is to limit his ability to perform any alternative act; similarly, an order to perform in a particular manner may be tantamount to a prosc ription against performing in any other. Abdul Wali v. Coughlin , 754 F.2d 1015, 1025-26 (2d Cir. 1985), overruled on other grounds by O’Lone v. Estate of Shabazz , 482 U.S. 342, 349 n.2 (1987). In-18-

determining whether to define the contested injunct ion in the case before it as mandatory or prohibitory, the court in Abdul Walilooked to the gravamen of the plaintiff’s complaint and found it did indeed seek to prohibit action on the part of the defendant, even though one could reasonably arg ue the injunction changed the status quo. Id. at 1026. So too in the case before us. The grava men of the church’s claim is to stop the government from enfor cing the CSA against it and infringing on the use of its sacrament. Read in th is light, the overall tone and intent of the order remains prohibitory because its purpose is to prohibit the government from interfering with the UDV’s religiou s practices. With respect to the question of status quo, it is g enerally described as “the last peaceable uncontested status existing between the parties before the dispute developed.” 11A W RIGHT & M ILLER§ 2948, at 136 n.14 (listing cases). See also Prairie Band of Potawatomi Indians , 253 F.3d at 1249; Dominion Video Satellite, Inc. v. EchoStar Satellite Corp. , 269 F.3d 1149, 1155 (10th Cir. 2001); SCFC ILC,
Inc. , 936 F.2d at 1100 n.8. Here, however, we are face d with a conflict between two federal statutes, RFRA and the CSA, plus an int ernational treaty, which collectively generate important competing status qu os. The status quo for the UDV was that it was practici ng its religion through its importation and use of hoascaat religious ceremonies. I am not suggesting, as Judge Murphy argues, that the status quo is the UDV ’s legal rightpursuant to3 I also disagree with Judge Murphy’s contention thatboth the church and

the government “recognized that the importation and consumption of hoasca violated the CSA,” Murphy, J., opin. at 10, and the refore the status quo was solely the government’s enforcement of the CSA and compliance with the treaty. The UDV may have acted in a somewhat clandestine mannerin the course of importing the hoascaand using it in its religious ceremonies. However , its importation and use of the tea was premised on its firmly held belief that such religious activity was in fact protected from gover nment interference by its right to the free exercise of its religion. -19- RFRA to the free exercise of its religion. Rather, as a matter of fact the church was actively engaged in its religious practices. 3 Status quo for the government immediately prior to this litigation was its enforc ement of the drug laws against the UDV in accordance with the CSA and the Conventi on, which occurred after the government discovered the UDV was importing hoascafor religious purposes and exercised its prosecutorial discretion to stop that importation. We are thus presented with two plausible status q uos, each of them important. Moreover, since both parties contest th e validity of the other’s actions, it is difficult to describe either position as “the last peaceable, uncontested status existing between the parties.” The injunction gran ted by the district court can certainly be read to have altered the status quo fo r the government and thereby caused it harm. Conversely, failure of the court t o grant the injunction would have altered the status quo for the church, causing it h arm. As discussed above, injunctive relief may be warranted where preserving the status quo perpetuates harm against the moving party. See, e.g., Crowley , 679 F.2d at 995 (preliminary-20-

relief appropriate where perpetuation of status quo worked continuing harm to plaintiffs); Canal Auth. , 489 F.2d at 576 (status quo should not be perpetu ated where it causes irreparable harm to one of the part ies); Sluiter v. Blue Cross & Blue Shield of Michigan , 979 F. Supp. 1131, 1136 (E.D. Mich. 1997) (prevention of irreparable harm, rather than maintenance of status quo, should guide court in granting mandatory injunction, especially where pre serving status quo severely threatens lives of movants). And the competing harms that might arise from a change in the status quo can be fully addressed und er the balance of harms and public interest facets of the preliminary injunctio n test. See, e.g., Millennium Restaurants Group, Inc. v. City of Dallas , 181 F. Supp. 2d 659, 667 (N.D. Tex. 2001) (balancing irreparable harm to sexually oriented business’ First Amendment right of free expression against temporary harm to city by virtue of injunction preventing city from revoking license of business); Mediplex of Massachusetts, Inc. v. Shalala , 39 F. Supp. 2d 88, 100-01 (D. Mass. 1999) (prelim inary injunction appropriate, in part, where harm to nursing facility residents arising from government’s intention to close facility outweighed more general harm to government); Canterbury Career School, Inc. v. Riley , 833 F. Supp. 1097, 1105-06 (D.N.J. 1993) (injunction properly issued where pla intiff would suffer loss of federal funding and accreditation as balanced again st more general harm to government).4 I do not, however, include footnote 2 of the panel majority opinion in my

reasoning here. See O Centro Espirita Beneficiente Uniao Do Vegetalv. Ashcroft , 342 F.3d 1170, 1173 n.2 (10th Cir. 2003). The language in that footnote could lead one to conclude that a plaintif f’s initial showing of a prima facie RFRA violation would satisfy the likelihood of suc cess on the merits prong of the preliminary injunction test regardless of th e government’s successful articulation of a restrictively applied compelling interest. Such a conclusion would be incorrect; only an unrebutted prima facie showing could establish the likelihood of success on the merits of a RFRA claim

. See id. at 1179-87 (discussion regarding UDV’s showing likelihood of s uccess on the merits by virtue of government’s failure to establish compell ing interest applied in least restrictive manner). -21- Turning to the district court’s review of the four preliminary injunction factors and giving due deference to its weighing of the evidence, I am convinced for all of the reasons described by the district co urt, see supraat 13-15, and set forth in the panel opinion, O Centro , 342 F.3d at 1179-87, that the court did not abuse its discretion in concluding the UDV has established the first preliminary injunction factor, a substantial likelihood of succ ess on the merits of the case. Id.
at 1187. 4 With respect to irreparable harm, the district co urt, acknowledging its jurisdiction was founded upon RFRA, correctly recog nized that the violation of one’s right to the free exercise of religion necess arily constitutes irreparable harm. See, e.g., Kikumura , 242 F.3d at 963 (“courts have held that a plainti ff satisfies the irreparable harm analysis by alleging a violation o f RFRA”); Jolly v. Coughlin , 76 F.3d 468, 482 (2d Cir. 1996) (“although plaintiff’s free exercise claim is statutory rather than constitutional, the denial of the plain tiff’s right to the free exercise of-22-

his religious beliefs is a harm that cannot be adeq uately compensated monetarily”). The harm to the UDV from being denied the right to the use of a sacrament in its religious services is indisputably irreparable. The district court then balanced the irreparable ha rm to the UDV against the harm the government would suffer from a preliminaryinjunction prohibiting its enforcement of the CSA against the church’s religio us use of a controlled substance, and from its compliance with the Convent ion. As Judge McConnell so aptly observes, one cannot evaluate the balance of harm and public interest factors separately and isolated from Congress’ own balancin g of these factors in RFRA.
See McConnell, J., opin. at 33-36. In RFRA, Congress determined that the balance of equities and public interest should weigh in fav or of the free exercise of religion and that this settled balance should only be disrupted when the government can prove, by specific evidence, that it s interests are compelling and its burdening of religious freedom is as limited as possible. See 42 U.S.C. § 2000bb-1(a)-(b). Certainly the interests of the government as well a s the more general public are harmed if the government is enjoined from enfor cing the CSA against the general importation and sale of street drugs, or fr om complying with the treaty in this regard. But this case is not about enjoining enforcement of the criminal laws against the use and importation of street drugs. R ather, it is about importing and-23-

using small quantities of a controlled substance inthe structured atmosphere of a bona fide religious ceremony. In short, this case is about RFRA and the free exercise of religion, a right protected by the Firs t Amendment to our Constitution. In this context, what must be assessed is not the m ore general harm which would arise if the government were enjoined from prosecut ing the importation and sale of street drugs, but rather the harm resulting from a temporary injunction against prohibiting the controlled use of hoascaby the UDV in its religious ceremonies while the district court decides the issues at a fu ll trial on the merits. As asserted by the government, the relevant harms i n this context are the risk of diversion of hoascato non-religious uses and the health risks to the UDV members who ingest the tea. As the panel opinion e xplained, however, the district court found that the parties’ evidence regarding he alth risks to the UDV members from using hoascaas a sacrament in their religious services was “in equipoise,” and the evidence regarding the risk of diversion to non-ceremonial users was “virtually balanced” or “may even . . . tip the sca le slightly in favor of Plaintiffs’ position.” See O Centro , 342 F.3d at 1179-83 (citing district court and re viewing evidence). I disagree with Judge Murphy’s assertion that becau se plaintiffs have the burden of proof on the preliminary injunction facto rs they necessarily lose if the evidence is in equipoise on the question of harm to the government’s asserted5 As the panel opinion makes clear:

[T]he Supreme Court has directed “that an Act of Co ngress . . . is on a full parity with a treaty, and that when a statut e which is subsequent in time is inconsistent with a treaty, t he statute, to the (continued...) -24- interests. See Murphy, J., opin. at 39-40. As Judge Murphy recog nizes, a plaintiff seeking a preliminary injunction has the burden of showing that the harm to it outweighs any harm to the party to be enjoined or to the pub lic interest. See Kikumura , 242 F.3d at 955. Here the harm to the UDV from b eing denied the right to freely exercise its religion, which under anyone’s measure carries significant weight and is actually occurring , must be measured against the potential risks of diversion of hoascato non-religious uses and harm to the health of church members consuming the hoasca . As the UDV established to the district court’s satisfaction, neither of the potential harm s asserted by the government are more likely than not to occur. Thus, the balance i s between actual irreparable harm to plaintiff and potential harm to the governm ent which does not even rise to the level of a preponderance of the evidence. Likewise, the harm resulting to the government from a violation of the Convention in this context is similar to the harm s uffered as a result of the government’s temporary inability to enforce the CSAagainst the church. As with the CSA, the treaty must be read in light of RFRA a nd the religious use of the controlled substance here. 5 While the general intent of the Convention was to5 (...continued)

extent of conflict, renders the treaty null.” Id. ( quoting Reid v. Covert , 354 U.S. 1, 18) (1957) (plurality opinion)). See also Whitney v. Robertson , 124 U.S. 190, 194 (if treaty and statute conflict , “the one last in date will control the other”). O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft , 342 F.3d 1170, 1183-84 (10th Cir. 2003). -25- prevent the illicit use and trafficking of psychotr opic substances, it recognized that plants containing such substances were often used f or legitimate religious purposes. It therefore permitted signatory nations to seek an exemption from the treaty for indigenous plants containing prohibited substances “traditionally used by certain small, clearly determined groups in magical or religious rites.” See 1971 Convention on Psychotropic Substances, Art. 32(4), 32 U.S.T. 543. Indeed, the United States obtained such an exemption for peyote

. See O Centro , 342 F.3d at
1175-76. In light of the Convention’s acknowledgment that th e use of psychotropic substances in the course of religious rituals may w arrant an exception from the treaty’s terms, as well as the exemption granted to the United States for peyote, the government’s argument that it will be significantlyharmed by a preliminary injunction temporarily restraining it from enforcin g the treaty against the UDV does not ring entirely true. This injunction tempo rarily bars the government in small part from abiding by a treaty which contemplates the religious use of plants6 Lending their voice as amici curiae in support of the UDV’s position are a

variety of other religious organizations. Among th ese groups are the Christian (continued...) -26- containing prohibited substances, in order that the UDV’s exercise of its religious faith may be protected pending a full trial on the merits. Moreover, given the competing status quos represent ed in this case – the church exercising its religion versus the government enforcing the drug laws and complying with the treaty – the district court’s in clusion of the additional terms in the preliminary injunction, in which the governmentis permitted to perform most of its regulatory functions regarding the importati on of this controlled substance, is a reasonable attempt to balance the harms suffer ed by either party until a full trial can be had on the merits. Viewed in this lig ht, and given the conclusion that the UDV has a strong likelihood of succeeding on th e merits of its claim under RFRA, the government’s argument that it would be si gnificantly harmed by a temporary injunction is considerably weakened. With respect to harm to the public interest, there is an important public interest in both the enforcement of our criminal dr ug laws and in compliance with our treaty commitments. But there is an equally st rong public interest in a citizen’s free exercise of religion, a public inter est clearly recognized by Congress when it enacted RFRA and by the signatories to the Convention when they authorized exemptions for religious use of otherwis e prohibited substances. 6 It6 (...continued)

Legal Society, the National Association of Evangeli cals, Clifton Kirkpatrick, as the Stated Clerk of the General Assembly of the Pre sbyterian Church, and the Queens Federation of Churches, Inc. The presence o f these varied groups as advocates for the UDV further highlights the vital public interest in protecting a citizen’s free exercise of religion.

7 The Supreme Court has subsequently found RFRA uncon stitutional as applied to the states. City of Boerne v. Flores , 521 U.S. 507, 519 (1997). However, RFRA is still applicable to the federal go vernment. Kikumura v. Hurley , 242 F.3d 950, 960 (10th Cir. 2001).

8 Judge Murphy relies heavily on Congress’ specific f indings that the

(continued...) -27- cannot go without comment that Congress, in respons e to the Supreme Court’s ruling in Employment Division v. Smith , 492 U.S. 872 (1990), enacted RFRA to overturn the holding in that case. As noted by the panel, the Supreme Court held in Smith that the “Free Exercise Clause of the First Amendm ent did not require the State of Oregon to exempt from its criminal drug laws the sacramental ingestion of peyote by members of the Native American Church.” O Centro , 342 F.3d at 1176 (citing Smith , 492 U.S. at 885-890). According to Smith , “[g]enerally applicable laws . . . . [could] be applied to religious exerci ses regardless of whether the government [demonstrated] a compelling interest” fo r enforcing the law. Id. In response, Congress passed RFRA to restore the compe lling interest test articulated in Sherbert v. Verner , 374 U.S. 398 (1963), and Wisconsin v. Yoder , 406 U.S. 205 (1972). 7Thus, pursuant to RFRA, there is a strong public interest in the free exercise of religion even where that interest may c onflict with the CSA. 88 (...continued)

importation and consumption of controlled substance s are adverse to the public interest, see Murphy, J., opin. at 38-39, while totally ignoring the immediate and strong reaction Congress had to the Supreme Court’s decision in Employment Division v. Smith , 494 U.S. 872 (1990). The Congressional findings accompanying RFRA explicitly state that the framers of the Constitution, recognizing free e xercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution; . . . laws “neutral” toward re ligion may burden religious exercise as surely as laws intended to interfere with religious exercise; . . . [and] governments should not substantially burden religious exercise without compelling justif ication. 42 U.S.C. § 2000bb(a)(1)-(3). Congress went on to express its displeasure with the Supreme Court’s decision in Smith and stated that the compelling interest test set out in Sherbert v. Verner , 374 U.S. 398 (1963), and Wisconsin v. Yoder , 406 U.S. 205 (1972), struck a “sensible balance[] betwe en religious liberty and competing prior governmental interests.” 42 U.S.C. § 2000bb(a)(4)-(5). In making this observation, I do not assert, as Jud ge Murphy suggests, that Congress’ findings in conjunction with its passage of the CSA are totally irrelevant, or that the dissent erred in its refere nce to them. See Murphy, J., opin. at 39 n.13. Rather, it is my position that the fin dings articulated by Congress in the CSA cannot be viewed without reference to Congr ess’ adamant affirmation that the free exercise of religion is an unalienabl e right to be burdened only under the most compelling of government justifications. -28- For all the reasons stated above, even under the he ightened standard affirmed by a majority of this court, the district court did not abuse its discretion in granting the injunction to the church. The court held that in balancing the Government’s concerns [regarding h arm] against the injury suffered by the [church] when [its members are] unable to consume hoasca in their religious ceremonies, this Court concludes that, in light of the closeness of the parties’ evi dence regarding the safety of hoasca use and its potential for diversio n, the scale tips in the [church’s] favor.-29-

O Centro , 282 F. Supp. 2d at 1270. It also noted that by i ssuing the injunction, the public’s interest in the protection of religious fr eedoms would be furthered. Id. The district court’s ruling is appropriate in lightof Congress’ implicit RFRA determination that the harm prevented and public in terest served by protecting a citizen’s free exercise of religion must be given c ontrolling weight, barring the government’s proof, by specific evidence, that its interests are more compelling. Here, the government failed to overcome Congress’ d etermination.1 Judges Seymour and Murphy have each written opinion s that concur in

part of the holding of the en banc court and dissen t from the other part. For (continued...) No. 02-2323, O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft.
McCONNELL , J., joined by TYMKOVICH , J., concurring, and joined by HARTZ , J., and O’BRIEN , J., as to Part I.
This Court has traditionally required a heightened showing for preliminary injunctions in three “disfavored” categories: injun ctions that disturb the status quo, mandatory injunctions, and injunctions that afford the movant substantially all the relief it may recover at the conclusion of a full t rial on the merits. SCFC ILC, Inc. v. Visa USA, Inc. , 936 F.2d 1096, 1098-99 (10th Cir. 1991). We hear d this case en banc to consider whether to jettison the heightened standard for preliminary injunctions that disturb the status quo. A majority of this Court has concluded that there are reasons—not fully accounted for in the ba lance of harms analysis—for courts to disfavor preliminary injunctions that dis turb the status quo, and thus reaffirms our traditional rule (with slight modific ation and clarification). See Opinion of Murphy, J., at 1-10. A different majori ty has concluded that, even under the heightened standard, Appellee O Centro Es pirita Beneficiente Uniao do Vegetal (“UDV”) is entitled to a preliminary injunc tion against enforcement of laws against the possession and use of its sacramental substance, hoasca . Opinion of Seymour, J., at 28. I write separately to expla in why both halves of this holding, in my opinion, are correct. 11 (...continued)

convenience, I will refer to those portions of thes e opinions that dissent from the en banc holding as a “dissent,” and to those portio ns that concur in the holding as a “concurrence.” I join the per curiam opinion in its entirety. I join Part I of Judge Murphy’s separate opinion, and Part II of Jud ge Seymour’s separate opinion, on the understanding that the analysis hol ds “even under the heightened standard affirmed by a majority of this court.” Op inion of Seymour, J., at 28. -2- 1. A Heightened Standard Should Apply to Preliminary Injunctions That Disturb the Status Quo

The Supreme Court has stated that preliminary injun ctions have the “limited purpose” of “merely [preserving] the relative posit ions of the parties until a trial on the merits can be held.” University of Texas v. Camenisch , 451 U.S. 390, 395 (1981). This emphasis on preserving the status quo is not the same as, and cannot be reduced to, minimizing irreparable harm to the p arties during the pendency of litigation, as suggested by the dissent. See Opini on of Seymour, J., at 5-6. At the preliminary injunction stage, before there has been a trial on the merits, the function of the court is not to take whatever steps are necessary to prevent irreparable harm, but primarily to keep things as t hey were, until the court is able to determine the parties’ respective legal rights. That is why, in addition to the four preliminary injunction factors of harm to the movant, balance of harm, public interest, and likelihood of success on the merits, this Court has required district courts to take into account whether preliminary rel ief would preserve or disturb-3-

the status quo. The burden of justifying prelimina ry relief is higher if it would disturb the status quo. SCFC ILC, Inc. , 936 F.2d at 1098-99. There is no reason to think that the “general maxim ” that “the purpose of a preliminary injunction is to preserve the status qu o between the parties pending a full trial on the merits” is one that “should not b e taken merely at face value” or disregarded except insofar as it “impacts the balan ce of harms between the parties and the public interest.” Opinion of Seymour, J., at 6, 7. A judicial version of Hippocrates’ ancient injunction to physicians – ab ove all, to do no harm – counsels against forcing changes before there has b een a determination of the parties’ legal rights. The settled rule of our tra dition is that losses should remain where they fall until an adequate legal or equitabl e justification for shifting them has been demonstrated. Traditional equity practice held that the sole purpose of a preliminary injunction was to preserve the status quo during th e pendency of litigation. See,
e.g. , Farmers’ R.R. Co. v. Reno, Oil Creek & Pithole Ry. Co., 53 Pa. 224 (Pa. 1866) (dissolving an injunction that blocked defend ants from continuing to use certain land in their possession because the sole p urpose of a preliminary injunction is to preserve the status quo); Chicago, St. Paul & Kansas City R.R. Co. v. Kansas City, St. Joseph & Council Bluffs R.R. Co

. , 38 F. 58, 60 (C.C.W.D. Mo. 1889) (noting that a higher standard applies to man datory injunctions that disrupt-4-

the status quo); New Orleans & North Eastern R.R. Co. v. Mississippi, Terre-aux Boeufs & Lake R.R. Co. , 36 La. Ann. 561 (La. 1884) (maintaining an injunc tion insofar as it maintained the status quo, but dissol ving that portion that did not);
Warner Bros. Pictures v. Gittone , 110 F.2d 292, 293 (3d Cir. 1940) (per curiam) (“Irreparable loss resulting from refusal to accordthe plaintiff a new status, as distinguished from interference with rights previou sly enjoyed by him, does not furnish the basis for interlocutory relief.”); Levy v. Rosen , 258 Ill. App. 262 (Ill. App. Ct. 1930) (“An interlocutory order is usually granted to preserve the status
quo , but the order in this appeal did not do that, butchanged the status quo . The entry of such order was clearly erroneous.”); Gill v. Hudspeth County Conservation & Reclamation Dist. No. 1 , 88 S.W.2d 517, 519 (Tex. Civ. App. 1935) (“[T]he court’s discretion should be exercise d against the writ if its issuance would change the status quo.”); Bowling v. Nat’l Convoy & Trucking Co. , 135 So. 541 (Fla. 1931) (“Since the object of a preliminary injunction is to preserve the status quo, the court will not grant such an order where its effect would be to change the status.”); Gates v. Detroit & Mackinac Ry. Co. , 115 N.W. 420, 421 (Mich. 1908) (dissolving that portion of a prelimin ary injunction that went beyond the status quo); Jones v. Dimes , 130 F. 638, 639 (D. Del. 1904) (relaxing the burden on the moving party when the requested injun ction merely maintained the status quo);1 James L. High, A Treatise on the Law of Injunctions (Chicago:2 This, too, is a traditional principle of equity pra ctice. See, e.g., Fredericks

v. Huber , 37 A. 90, 91 (Pa. 1897); Bowling v. Nat’l Convoy & Trucking Co. , 135 So. 541, 544 (Fla. 1931); Bellows v. Ericson , 46 N.W.2d 654, 659 n.9 (Minn. 1951); State ex rel. McKinley Automotive, Inc. v. Oldham , 584 P.2d 741, 743 n.3 (Or. 1978); Weis v. Renbarger , 670 P.2d 609, 611 (Okla. Ct. App. 1983). -5- Callaghan & Co. 1890, 3d ed.) § 4 at 5 (“The sole o bject of an interlocutory injunction is to preserve the subject in controvers y in its then condition, and, without determining any questions of right”). To be sure, it is sometimes necessary to require a party who has recently disturbed the status quo to reverse its actions. S uch an injunction restores, rather than disturbs, the status quo ante, and is thus notan exception to the rule. “Status quo” does not mean the situation existing at the mo ment the law suit is filed, but the “last peaceable uncontested status existing between the parties before the dispute developed.” 11A Charles Alan Wright, Arthu r R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948 (2d ed. 1995). 2 Thus, courts of equity have long issued preliminary injunctions req uiring parties to restore the status quo ante. Shanaman v. Yellow Cab Co ., 421 A.2d 664, 667 (Pa. 1980) (reversing a preliminary injunction because “the pu rpose of a mandatory preliminary injunction is to restore the status quo ” and the injunction actually disrupted that status); Morgan v. Smart , 88 S.W.2d 769, 772 (Tex. Civ. App. 1935) (“[T]here are no real exceptions to the rule that t he status quo will not be disturbed by a preliminary injunction, and when by such an in junction the possession of3 Some states continue to make preservation of the st atus quo a necessary

requirement for all preliminary injunctions. See, e.g. , Postma v. Jack Brown Buick, Inc. , 626 N.E.2d 199, 203 (Ill. 1993) (stating categori cally that “preliminary injunctions are improper where they te nd to change the status quo of the parties rather than preserve it”); County of Richland v. Simpkins , 560 S.E.2d 902, 906 (S.C. Ct. App. 2002) (noting that the sole purpose of a preliminary injunction is to preserve the status quo, and affir ming the denial of an injunction that would change that status).

4 I am puzzled by the dissent’s suggestion that aband oning heightened scrutiny for preliminary injunctions that disturb the status quo would “bring our (continued...) -6- property is properly ordered to be restored it is n ot to disturb the status quo, but to avoid mistaking the true status and to avoid preserving a false one.”). In recent decades, most courts – and all federal co urts of appeal – have come to recognize that there are cases in which pre servation of the status quo may so clearly inflict irreparable harm on the movant, with so little probability of being upheld on the merits, that a preliminary injunction may be appropriate even though it requires a departure from the status quo. See, e.g., Canal Authority v. Callaway , 489 F.2d 567, 576 (5th Cir. 1974). 3 But preliminary injunctions that disturb the status quo, while no longer categorically forbidden , remain disfavored. Only one federal court of appeals has concluded that courts should simply strive to minimize irreparable harm, with no special attention to the status quo, as our dissenters suggest. United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth. , 163 F.3d 341, 348 (6th Cir. 1998); see Opinion of Seymour, J., at 12. 44 (...continued)

jurisprudence in closer accord” with “other circuit s.” Opinion of Seymour, J., at 4-5, citing In re Microsoft Corp. Antitrust Litig. , 333 F.3d 517, 526 (4th Cir. 2003); Tom Doherty Assocs. v. Saban Entm’t , 60 F.3d 27, 34-35 (2d Cir. 1995); Acierno v. New Castle County , 40 F.3d 645, 653 (3d Cir. 1994); Wetzel v. Edwards , 635 F.2d 283, 286 (4th Cir. 1980); Anderson v. United States , 612 F.2d 1112, 1114-15 (9th Cir. 1980). Certainly that is n ot true of the Second Circuit. In the very opinion cited by the dissent, Tom Doherty , the Second Circuit states: [W]e have required the movant to meet a higher stan dard where: (i) an injunction will alter, rather than maintain, the status quo , or (ii) an injunction will provide the movant with substantial ly all the relief sought and that relief cannot be undone even if the defend ant prevails at a trial on the merits. 60 F.3d at 33-34 (emphasis added). The other cited circuits blend the disfavored categories of mandatory injunctions and those that disturb the status quo, but continue to treat the latter as requiring a heighte ned showing. For example, the Third Circuit decision cited by the dissenters hold s as follows: A primary purpose of a preliminary injunction is ma intenance of the status quo until a decision on the merits of a case is ren dered. A mandatory preliminary injunction compelling issuance of a bui lding permit fundamentally alters the status quo. . . . A party seeking a mandatory preliminary injunction that will alter the status q uo bears a particularly heavy burden in demonstrating its necessity .” Acierno v. New Castle County , 40 F.3d at 647, 653 (emphasis added; citation omitted). The other cited cases are to similar effe ct. See Anderson v. United States, 612 F.2d at 1114-15 (“Mandatory preliminary relief , which goes well beyond simply maintaining the status quo pendente l ite, is particularly disfavored, and should not be issued unless the facts and law c learly favor the moving party.”); In re Microsoft Corporation Antitrust Litigation, 333 F.3d at 526 (“Mandatory preliminary injunctions [generally] do not preserve the status quo and normally should be granted only in those circum stances when the exigencies of the situation demand such relief.”), quoting Wetzel v. Edwards, 635 F.2d at 286. -7- There are sound reasons of jurisprudence in supportof the traditional view that preliminary injunctions that disturb the statu s quo require heightened justification. A preliminary injunction of any sort is an “extraordinary” and-8-

“drastic” remedy. See United States ex rel. Potawatomi Indian Tribe v . Enter. Mgmt. Consultants, Inc. , 883 F.2d 886, 888-89 (10th Cir. 1989). Judicial power is inseparably connected with the judicial duty to dec ide cases and controversies by determining the parties’ legal rights and obligatio ns. See Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177 (1803). A preliminary inj unction is remarkable because it imposes a constraint on the enjoined party’s act ions in advance of any such determination. That is, a preliminary injunction f orces a party to act or desist from acting, not because the law requires it, but becaus e the law might require it. This is all the more striking because, given that many p reliminary injunctions must be granted hurriedly and on the basis of very limited evidence, deciding whether to grant a preliminary injunction is normally to make a choice under conditions of grave uncertainty. See Heideman v. South Salt Lake City , 348 F.3d 1182, 1188 (10th Cir. 2003). It is one thing for a court to preserve its power t o grant effectual relief by preventing parties from making unilateral and irrem ediable changes during the course of litigation, and quite another for a courtto force the parties to make significant alterations in their practices before t here has been time for a trial on the merits. See, e.g. , Gittone , 110 F.2d at 293 (“[T]he effect of the preliminary injunction which the court granted was not to prese rve the status quo but rather to alter the prior status of the parties fundamentally . Such an alteration may be-9-

directed only after final hearing.”); In re Marriage of Schwartz , 475 N.E.2d 1077, 1079 (Ill. App. Ct. 1985) (“It is not the purpose o f the preliminary injunction to determine controverted rights or decide the merits of the case. . . . A preliminary injunction is merely provisional in nature, its off ice being merely to preserve the status quo until a final hearing on the merits.”). Moreover, preserving the status quo enables the cou rt to stay relatively neutral in the underlying legal dispute. The restr ictions placed on the parties can be understood as requiring only that they act in a manner consistent with the existence of a good-faith dispute about the relevan t legal entitlements. The moving party is not given any rights, even temporar ily, that would normally be his only if the legal dispute were resolved in his favo r. For example, ownership disputes often raise concerns that the defendant in possession would overuse or waste the property before a complainant could regai n possession through legal proceedings. Under those circumstances, equitable courts regularly enjoin the waste, ordering the defendant to preserve the prope rty in statu quo . The general rule, however, is that except in the most exception al cases, a court of equity cannot go beyond the status quo by putting the moving party into possession of the disputed property, even though, presumably, being d eprived of the interim ability to enjoy the property would often constitute irrepa rable harm. See, e.g. , Farmers’
R.R. Co. , supra ; Morgan v. Smart , 88 S.W.2d 769, 771 (Tex. Civ. App. 1935) (“It-10-

is not the function of a preliminary injunction to transfer the possession of land from one person to another pending an adjudication of the title, except in cases in which the possession has been forcibly or fraudulently obtained . . . [and the injunction is necessary so that] the original statu s of the property [may] be preserved pending the decision of the issue.”), quoting Simms v. Reisner , 134 S.W. 278, 280 (Tex. Civ. App. 1911)

. See generally Mandatory Injunction Prior to Hearing of Case , 15 A.L.R.2d 213, §§ 22-23 (collecting dozens of c ases on this issue). Fundamentally, the reluctance to disturb the status quo prior to trial on the merits is an expression of judicial humility. As J udge Murphy points out, a court bears more direct moral responsibility for harms th at result from its intervention than from its nonintervention, and more direct resp onsibility when it intervenes to change the status quo than when it intervenes to pr eserve it. See Opinion of Murphy, J., at 5. Moreover, like the doctrine of stare decisis , preserving the status quo serves to protect the settled expectations of t he parties. Disrupting the status quo may provide a benefit to one party, but only by depriving the other party of some right he previously enjoyed. Although the harm and the benefit may be of equivalent magnitude on paper, in reality, deprivat ion of a thing already possessed is felt more acutely than lack of a benefit only ho ped for. As the Supreme Court observed in Wygant v. Jackson Bd. of Educ. , 476 U.S. 267, 282-83 (1986),-11-

“[d]enial of a future employment opportunity is notas intrusive as loss of an existing job.” Percipient students of human nature have often made similar observations. David Hume, for example, wrote: Such is the effect of custom, that it not only reco nciles us to any thing we have long enjoy’d, but even gives us an affectio n for it, and makes us prefer it to other objects, which may be more va luable, but are less known to us What has long lain under our eye, and h as often been employ’d to our advantage, thatwe are always the most unwilling to part with; but can easily live without possessions, which we never have enjoy’d, and are not accustom’d to. David Hume, A Treatise of Human Nature , bk. 3, pt. 2, § 3, para. 4 (1739). See also, e.g. , Aristotle, Nichomachean Ethics , bk. IX, ch. 1, at 1164b17-19 (W.D. Ross trans.), in The Basic Works of Aristotle (Richard McKeon ed., 1941) (“For most things are not assessed at the same value by t hose who have them and those who want them; each class values highly what is its own . . . .”). Justice Holmes has justified the doctrine of adverse possession onthese grounds: [T]he foundation of the acquisition of rights by lapse of time is to be looked for in the position of the person who gains them, not in that of the loser. . . . A thing which you have enjoyed an d used as your own for a long time, whether property or an opinion, ta kes root in your being and cannot be torn away without your resentin g the act and trying to defend yourself, however you came by it. The law can ask no better justification than the deepest instincts of man. Oliver Wendell Holmes, Jr., The Path of the Law , 10 Harv. L. Rev. 457, 477 (1897).-12-

Notwithstanding the tendency of those trained in ec onomics to view opportunity costs as equivalent to actual expenditu res, modern social science research has confirmed the reality of “loss aversi on” (the tendency to attach greater value to losses than to foregone gains of e qual amount) and the closely related “endowment effect” (the tendency to value a lready possessed goods more than prospective acquisitions). See, e.g. , Daniel Kahneman, Jack L. Knetsch & Richard H. Thaler, The Endowment Effect, Loss Aversion, and Status Quo Bias , 5 J. Econ. Persp. 193 (1991); Amos Tversky & Daniel Kahneman, Loss Aversion in Riskless Choice: A Reference-Dependent Model , 106 Q.J. Econ. 1039 (1991); Daniel Kahneman et al., Experimental Tests of the Endowment Effect and the Coase Theorem , 98 J. Pol. Econ. 1352 (1990); Jack L. Knetsch & J.A. Sinden, Willingness to Pay and Compensation Demanded: Exper imental Evidence of an Unexpected Disparity in Measures of Value , 99 Q.J. Econ. 507, 512-13 (1984). To take one of many illustrations, one study found that duck hunters would pay, on average, $247 to obtain the privilege of keeping a particular wetland undeveloped, but if they already had the right to block developm ent, they would demand an average of $1,044 to give it up. Judd Hammack & Ga rdner M. Brown, Jr., Waterfowl and Wetlands: Toward Bioeconomic Analysis 26 (1974). Moreover, adverse disruptions in the status quo carry along with them the cost and difficulty associated with adjusting to ch ange. These involve not only-13-

direct transition costs but also the costs associat ed with uncertainty, which manifest themselves in a reluctance to invest human or other capital in an enterprise where the returns could disappear at the drop of a judicial hat. Disruption is expensive. When a court requires a c hange in the status quo only to find that its grant of preliminary relief was mista ken and must be undone, the process is twice as disruptive as when the court pr eserves the status quo on a preliminary basis and later issues a final judgmentrequiring the change. The status quo is also relevant to the credibility of the parties’ claims of irreparable harm. It is difficult to measure irrep arable harm, and either party’s willingness to put up with a situation in the past can serve as an indication that the party’s injury is not as serious as alleged, or that the party has implicitly consented to the supposed injury. See Heideman , 348 F.3d at 1191 (“[T]he City has tolerated nude dancing establishments for many years . . . . This invites skepticism regarding the imperative for immediate implementati on [of a new ordinance].”); Majorica, S.A. v. R.H. Macy & Co. , 762 F.2d 7, 8 (2d Cir. 1985) (noting that while delay alone is not enough to constitute laches, it is ground for doubting a claim of irreparable harm). Plaintiffs, especially, have th e burden of complaining of injuries promptly, before defendants come to rely o n the status quo. “[E]quity aids the vigilant, not those who slumber on their rights .” Allred v. Chynoweth , 990 F.2d 527, 536 n.6 (10th Cir. 1993); Standard Oil Co. of N.M. v. Standard Oil Co.-14-

of Cal. , 56 F.2d 973, 975 (10th Cir.1932); Natural Res. Defendant Council v.
Pena , 147 F.3d 1012, 1026 (D.C. Cir. 1998). Thus, whena plaintiff is complaining of irreparable injury from a long-estab lished state of affairs, a court may naturally ask why, if the injury is so pressing as to warrant preliminary relief, the plaintiff waited so long before bringing a clai m. 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2946, at 113-16 (2d ed. 1995); Edward & John Burke, Ltd. v. Bishop , 144 F. 838, 839 (2d Cir. 1906); Savage v. Port Reading R.R. Co. , 67 A. 436, 438 (N.J. Ch. 1907). The status quo is also a useful reference point bec ause litigants often have incentives to engage in counterproductive strategic behavior. A defendant facing the loss of property, for example, has a natural in centive to extract as much of the value of the land as possible before losing possess ion, even in ways that limit the land’s productivity for years to come. And even wh en doing so produces no advantages to the defendant, it is an unfortunate r eality of human nature that many defendants would prefer to destroy the property in question than to let their adversary have the use of it, both out of spite and as a way of making the resort to the courts less attractive in the first place. Likewise, plaintiffs have incentives to seek injunc tions not only to avert irreparable harm to themselves, but also to impose costs on the other party. This, too, may be done out of spite, or because the highe r the costs to the defendant in-15-

complying, the more pressure he will feel to “barga in desperately to buy his way out of the injunction.” Am. Hosp. Supply Corp. v. Hosp. Prods., Ltd. , 780 F.2d 589, 594 (7th Cir. 1986). A preliminary injunction aims in part at achieving temporary peace between the parties. However, if i t substantially shifts the lines of conflict, it is more likely to function as a weapon in the plaintiff’s arsenal than as a cease-fire. Preserving the last peaceable unc ontested status of the parties maintains a position to which both parties at leasttacitly consented before their dispute, and its concomitant perverse incentives, a rose. Without a heightened standard, these concerns will likely not be given due weight. In the context of the balance of harms ana lysis, it is all too easy to stop at comparing the absolute magnitudes of the parties’ i rreparable harms, without distinguishing between foregone gains and actual lo sses, and without considering whether granting an injunction implicates other ins titutional concerns about the proper role of the courts. Unless the district cou rt self-consciously takes the nature of the injunction into account by applying aheightened standard, the four factors likely will lead to an overconfident approa ch to preliminary relief, increasing the cost and disruption from improvident ly granted preliminary injunctions. A particularly important category of cases where t he status quo will often be determinative of whether a court should provide pre liminary relief is challenges to-16-

the constitutionality of statutes. When a statute is newly enacted, and its enforcement will restrict rights citizens previousl y had exercised and enjoyed, it is not uncommon for district courts to enjoin enforcem ent pending a determination of the merits of the constitutional issue. See, e.g., Eagle Books, Inc. v. Ritchie , 455 F.Supp. 73, 77-78 (D. Utah 1978); Reproductive Services v. Keating , 35 F.Supp.2d 1332, 1337 (N.D. Okla. 1998); ACLU v. Johnson , 194 F.3d 1149, 1152 (10th Cir.1999); Utah Licensed Beverage Ass’n v. Leavitt , 256 F.3d 1061, 1076-77 (10th Cir. 2001); Elam Constr., Inc. v. Reg’l Transp. Dist. , 129 F.3d 1343, 1347-48 (10th Cir. 1997) (per curiam). When a statute has long been on the books and enforced, however, it is exceedingly unusual for a litigant who challenges its constitutionality to obtain (or even to seek) a pre liminary injunction against its continued enforcement. See, e.g. , Walters v. Nat’l Ass’n of Radiation Survivors , 468 U.S. 1323, 1324 (Rehnquist, Circuit Justice 198 4) (“It would take more than the respondents have presented in their response . . . to persuade me that the action of a single District Judge declaring unconstitution al an Act of Congress that has been on the books for more than 120 years should no t be stayed . . . .”). This is not because the balance of harms to the litigants i s different. Presumably, the loss of constitutional rights from enforcement of an old statute is no less harmful or irreparable than from enforcement of a new. The dis sent’s suggested approach of considering the status quo only insofar as it bears on “the process of balancing the-17-

various interests and harms among the parties and the public,” (Opinion of Seymour, J., at 7), without a heightened standard, is thus likely to yield the conclusion that it does not matter whether the stat ute is old or new. That would be a dramatic change in our practice. The reason for weighing the status quo is not to be found in the four preliminary injunction factors . It is rooted, instead, in the institutional concerns we have canvassed above. I thus join in the en banc court’s decision to cont inue to require litigants seeking a preliminary injunction, that would alter the status quo, to meet a heightened burden of justification. II. Does this Preliminary Injunction Satisfy the H eightened Standard? This case satisfies even the heightened standard fo r preliminary injunctions. The applicable statute, the Religious Freedom Resto ration Act, 42 U.S.C. § 2000bb-1(b), sets a most demanding burden of proof for the government: the compelling interest test. The factual findings of the district court, which are not challenged on appeal, make it clear that the govern ment has not and cannot meet that burden on this record, and that the balance of equities is overwhelmingly in favor of the movant. The en banc majority is there fore right, in my opinion, to affirm the district court’s grant of a preliminary injunction. Plaintiffs establish, and the government does not d ispute, that enforcement of the CSA in this context would impose a substanti al burden on a sincere exercise-18-

of religion. It is common ground that such a burde n constitutes irreparable injury. The plaintiffs have thus established a prima facie case (relevant to the probability of success on the merits) and an irreparable injury(relevant to the balance of harms). It is also common ground that the evidenc e at the hearing regarding the government’s assertions of an interest in the health of hoascausers and the prevention of diversion to recreational drug users was in “equipoise” and “virtually balanced.” What is not common ground is the effect of evenly-balanced evidence regarding possible harms from hoascause on UDV’s ultimate likelihood of success on the merits, and on the balancing of t he equities required for the grant of a preliminary injunction.
A The dissent insists that the government is more lik ely to prevail on the merits than is UDV. In Judge Murphy’s formulation, the government’s interest in the uniform enforcement of drug laws and its intere st in full compliance with the obligations imposed by international treaties are s ufficient to meet the compelling interest standard. He is silent on whether, even i f the government’s interests in enforcement and compliance were adjudged compelling , the government has employed the least restrictive means at its disposa l, as RFRA requires. 42 U.S.C. 2000bb-1(b)(2).-19-

The dissent is premised on the view that “RFRA was never intended to result in [a] case-by-case evaluation of the contro lled substances laws, and the scheduling decisions made pursuant to those laws . . . . [i]t is particularly improper for the court to assume such a function in this cas e.” Opinion of Murphy, J., at 18. On the contrary, that is precisely what RFRA instru cts courts to do. The dissent does not make clear whether it interprets RFRA as p recluding “case-by-case evaluation” in all contexts, or whether this is a s pecial rule for controlled substance cases. Neither interpretation is tenable

. In cases where federal law “substantially burdens” the exercise of religion, RFRA requires courts to determine whether “ application of the burden” to a specific “person” is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest . 42 U.S.C. § 2000bb–1(b) (emphasis added). That cannot be done without a ca se-by-case evaluation. “Thus, under RFRA, a court does not consider the . . . reg ulation in its general application, but rather considers whether there is a compelling government reason, advanced in the least restrictive means, to apply t he . . . regulation to the individual claimant.” Kikumura v. Hurley , 242 F.3d 950, 962 (10th Cir. 2001) (Murphy, J.). Accordingly, contrary to the dissent , Congress’s general conclusion that DMT is dangerous in the abstract does not establish that the government has a-20-

compelling interest in prohibiting the consumption of hoascaunder the conditions presented in this case. Nor is there an implied exemption from RFRA in case s involving the controlled substances laws. By its terms, RFRA app lies to “all Federal law, and the implementation of that law, whether statutory o r otherwise, and whether adopted before or after [enactment of RFRA],” unles s the law “explicitly excludes such application by reference to this chapter.” 42 U.S.C. § 2000bb–3(a), (b). The CSA contains no such explicit exception. Judge Murphy argues that “courts simply lack the in stitutional competence to craft a set of religious exemptions to the unifo rm enforcement” of the drug laws. Opinion of Murphy, J., at 18. But the same may be said for application of RFRA to virtually any field of regulation that may conflict with religious exercise. Whatever our justifiably low opinion of our own competence, we are not free to decline to enforce the statute, which necessarily p uts courts in the position of crafting religious exemptions to federal laws that burden religious exercise without sufficient justification. The dissent’s notion that the drug laws are implied ly exempt from RFRA scrutiny is especially surprising in light of the f act that the impetus for enactment of RFRA was the Supreme Court’s decision in a case involving the sacramental use of a controlled substance. See Congressional F indings and Declaration of-21-

Purposes, 42 U.S.C. § 2000bb(a)(4) (criticizing Employment Division v. Smith , 494 U.S. 872 (1990)). It may well be that most examples of enforcement of the drug laws will satisfy strict scrutiny under RFRA, see id . at 903-07 (O’Connor, J., concurring) (applying strict scrutiny to, and uphol ding, the application of Oregon drug laws to the Native American Church’s sacrament al use of peyote), but it can scarcely be clearer that Congress intended such scrutiny to occur. The dissent asserts that courts applying the compel ling interest test both before and after RFRA have “routinely rejected reli gious exemptions from laws regulating controlled substances,” and that “the sa me result should obtain in this case.” Opinion of Murphy., J., at 20–21 (citing ca ses). There is no support in the cases cited, however, for the proposition that any religious use of any drug is outside the scope of RFRA (or, before Smith , free exercise) protection. Four of the five pre-RFRA cases cited involve the same group, the Ethiopian Zion Coptic Church, which advocated the use of marijuana “conti nually all day, through church services, through everything [they] do.” Olsen v. Drug Enforcement Admin. , 878 F.2d 1458, 1459 (D.C. 1989). The constant and unci rcumscribed use of a drug presents different health risks and risks of divers ion than the use of hoasca suggested by UDV. The significance of these differ ences is underscored by the conviction of the Ethiopian Zion Coptic Church for the importation of twenty tons of marijuana. United States v. Rush , 738 F.2d 497, 501 (1st Cir. 1984). The post--22-

RFRA cases cited offer no more support for the prop osition that the findings of the CSA will always outweigh the interest in a particul ar religious use. In U.S. v.
Brown , 1995 WL 732803, *2, for example, the Eighth Circu it found that the “broad use” of marijuana advocated by the church in question, which included supplying the drug to the sick and distributing it to anyone who wished it, including children with parental permission, made a ccommodation impossible. Both the unconstrained character of the proposed us e and the popularity of marijuana affected the outcome in these cases: “the vast difference in demand for marijuana on the one hand and peyote on the other w arranted the DEA’s response [in declining to grant an exception.]” Olsen v. DEA at 1463–64. These cases accordingly provide very little insight into the ap propriate result when the standard required by RFRA is applied to a case involving a t ightly circumscribed use of a drug not in widespread use. Even assuming RFRA’s compelling interest test appli es, the dissent takes the position that “the government need turn only to express congressional findings concerning Schedule I drugs” to satisfy RFRA scruti ny. Opinion of Murphy, J., at 18. The dissent cites no authority for such an app roach, and there is none. Congressional findings are entitled to respect, butthey cannot be conclusive. RFRA requires the governmentto “demonstrate[]” that application of a challenge d federal law to religious exercise satisfies strict scrutiny under RFRA. 42 U.S.C. §-23-

2000bb-1(b). The term “demonstrates” is defined as “meet[ing] the burdens of going forward with the evidence and of persuasion.” Id., § 2000bb-2(3). Obviously, Congress contemplated the introduction o f “evidence” pertaining to the justification of “application” of the law in the pa rticular instance. If such a burden of proof could be satisfied by citing congressional finding in the preambles to statutes, without additional evidence, RFRA challen ges would rarely succeed; congressional findings invariably tout the importan ce of the laws to which they are appended. The dissent points to two such congressional findin gs. First, Congress has made a general finding that the “illegal importatio n . . . and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American peop le.” Opinion of Murphy, J., at 18–19. Second, Congress has placed DMT on the listof Schedule I controlled substances, which implies that it “has high potenti al for abuse and is not safe to consume even under the supervision of medical perso nnel.” Id. These generalized expressions of the government’s interest in prohibi ting hoasca are very similar to the sweeping statements of interest that the Suprem e Court found wanting in Wisconsin v. Yoder , 406 U.S. 205 (1972) – one of the cases to which C ongress referred as illustrating the compelling interest te st it wished to “restore” by means of RFRA. See § 2000bb(b)(1). In that case, the Supreme Court r ejected the State-24-

of Wisconsin’s “contention that its interest in its system of compulsory education is so compelling that even the established religiou s practices of the Amish must give way”: Where fundamental claims of religious freedom are at

stake, however, we cannot accept such a sweeping cl aim; despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote by its requirement for compulsory education to age 16, and the impediment to those objectives that would flow from recognizing the cla imed Amish exemption. 406 U.S. at 221 (emphasis added). A similarly “searching examination” is required here, and can no more be satisfied by quot ation of “sweeping claim[s]” in statutory preambles than it could in Yoder

. If Congress or the executive branch had investigate d the religious use of hoascaand had come to an informed conclusion that the he alth risks or possibility of diversion are sufficient to outweigh free exerci se concerns in this case, that conclusion would be entitled to great weight. But neither branch has done that. The two findings on which the dissent relies addres s the broad question of the dangers of allcontrolled substances, or all Schedule I substance s, in the general run of cases. Such generalized statements are of v ery limited utility in evaluating the specific dangers of this substance under these circumstances, because the dangers associated with a substance may vary consid erably from context to

context.-25-

Congress itself recognized this and gave the Attorn ey General authority to make exemptions from many of the CSA’s requirements :

The Attorney General may, by regulation, waive the requirement for registration of certain manufacture rs, distributors, or dispensers if he finds it consistent with the public health and safety

. 21 U.S.C. § 822(d) (emphasis added). Thus, the CSAitself recognizes that, despite Congress’s general findings about Schedule I substances, it may sometimes be “consistent with the public health and safety” t o exempt certain people from its requirements. Indeed, the government evidently bel ieved this to be true with respect to the Native American Church’s peyote use, since it relied primarily on § 822(d) to authorize its regulation exempting the Native American Church from the
CSA. See 21 C.F.R. § 1307.31 (“The listing of peyote as a co ntrolled substance in Schedule I does not apply to the nondrug use of pey ote in bona fide religious ceremonies of the Native American Church, and membe rs of the Native American Church so using peyote are exempt from registration .” (emphasis added)). Judge Murphy responds that 21 U.S.C. § 822(d) shoul d not be construed as giving the Attorney General authority to exempt rel igious groups other than the Native American Church from registration without sp ecific authorization from Congress, because the “government’s regulatory exemption for peyote . . . was at all times a product of congressional will.” Opinion of Murphy, J., at 24. I think he5 The text and legislative history of the CSA suggestthat Congress meant to

give the Attorney General authority to make other r eligious exemptions. See generally Native American Church v. United States , 468 F. Supp. 1247, 1249-51 (S.D.N.Y. 1979) (recounting the legislative historyof the exemption for the Native American Church). As Judge Murphy notes, Opi nion of Murphy, J., at 24, this precise question was presented in Olsen v. DEA , 878 F.2d 1458 (D.C. Cir. 1989). In that case, now-Justice Ginsburg refused to accept the DEA’s position that it had the authority to exempt the Native Amer ican Church but no other churches, noting that the DEA’s interpretation pref erred one church above others in a way that would raise serious questions concern ing the statute’s constitutionality. See id. at 1461.

-26- is wrong about the scope of the Attorney General’s authority under § 822(d), 5 but that is not the point. Even if in practice the onl y religious exemption authorized by § 822(d) were for the Native American Church, th e plain text of that provision indicates Congress’s belief that at least some use of substances controlled by the Act are “consistent with the public health and safe ty,” despite the generalized congressional finding that any Schedule I substance is not safe to consume even under the supervision of medical personnel. 21 U.S .C. §812(b)(1)(C). More recently, Congress has passed legislation requiring the states to allow the Native American Church to use peyote, a Schedule I substan ce, in religious ceremonies.
See American Indian Religious Freedom Act Amendments of 1994, 42 U.S.C. § 1996a. Congress’s consistent position has been that concerns for religious freedom can sometimes outweigh risks that otherwise justify prohibiting Schedule I substances. Neither Congress nor the Executive h as treated the CSA’s general-27-

findings about Schedule I substances as precluding a particularized assessment of the risks involved in a specific sacramental use. Neither should we. Several factors make hoasca atypical in its likely health consequences. For instance, although DMT is typically taken intraveno usly or inhaled in the nonreligious settings that Congress presumably had in mind when it proscribed the substance, UDV members ingest it orally. There was some evidence at the hearing that the resulting doses are considerably smaller t han typical intravenous or inhaled doses, and there has been very little studyof the effects of orally ingested DMT. Furthermore, the fact that hoascais a relatively uncommon substance used almost exclusively as part of a well-defined religi ous service makes an exemption for bona fide religious purposes less subject to ab use than if the religion required its constant consumption, or if the drug were a mor e widely used substance like marijuana or methamphetamine. Cf. Employment Div. v. Smith , 494 U.S. 872, 913- 14 (1990) (Blackmun, J., dissenting). These and other differences undermine any claim that, in placing DMT on Schedule I, Congress made a factual finding that should control our assessment of the relative dange rousness of hoasca

. Judge Murphy expresses disbelief that a claimant’s rights under RFRA could “turn on whether the adherent has a religious affin ity for street drugs or more esoteric ones.” Opinion of Murphy, J., at 26. Of course it is true that in theory, at least, it is possible to have the same religious in terest in shooting heroin as in-28-

drinking hoasca . But one’s rights under RFRA depend not only on the nature of the religious interest but also on the strength of the government’s opposed interest. Here, the government’s professed interests include avoiding diversion to nonreligious use and ensuring that a multitude of s purious free exercise claims do not hamstring its enforcement efforts. Given those concerns, I do not see why Judge Murphy finds it surprising that the extent of nonreligious use is relevant to the analysis. Indeed, it would be far more surpris ing if the differences between street drugs and more “esoteric” ones were irrelevant

. See Olsen v. DEA , 878 F.2d 1458, 1464 (D.C. Cir. 1989) (R. Ginsburg, J.) (“[W] e rest our decision [not to grant an exemption for religious marijuana consumpt ion] on the immensity of the marijuana control problem in the United States . . . .”). Finally, the dissent also urges that the government ’s interest in strict compliance with the 1971 United Nations Convention on Psychotropic Substances, Feb. 21, 1971, 32 U.S.T. 543 (the “Convention”) is sufficiently compelling to outweigh the burden imposed on UDV. The district c ourt held that the Convention does not apply to the hoasca tea used by UDV. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft , 282 F.Supp.2d 1236, 1269 (D. New Mexico 2002). Judge Murphy categorically asserts the opposite, ba sed on the “plain language of the Convention.” Opinion of Murphy, J., at 30.-29-

To reverse on the basis of the Convention would req uire us to go far beyond what the record can support. After reviewing the i nitial briefs filed by the parties, the district court determined that the government’s strongest grounds for prohibiting UDV from using hoascawere based on concerns about the safety of drinking the tea and the risk of diversion to non-r eligious uses. 282 F. Supp. 2d at 1266. The court therefore limited evidence to thos e issues. Plaintiffs attempted to present evidence regarding the interpretation of th e Convention by the International Narcotics Control Board, the internat ional enforcing agency, including a letter by the Secretary of the Board st ating that hoascais not controlled under the Convention. The government objected on the ground that “We are now introducing testimony about whether or not ayahuasca is controlled under the International Convention. That is not on e of the issues in this hearing.” Supp. App. 1634. After discussion, the district co urt forbade questioning on the subject, and plaintiffs were unable to introduce ev idence on the interpretation of the Convention by the Board. For this Court to att empt to interpret a complex treaty on the basis of its “plain language,” withou t the benefit of its interpretive history, would be premature. More to the point, the government utterly failed to carry its statutory burden (42 U.S.C. § 2000bb-1(b)(2)) of demonstrating that complete prohibition of hoasca is the “least restrictive means” of furthering its interest in compliance with the-30-

Convention, even assuming the Convention applies. Contrary to the dissent, neither the Convention’s terms nor the practice of its interpretation is without flexibility when religious and other constitutional countervailing interests are implicated. For example, the CSA provides a mecha nism by which the government may protest a scheduling decision made u nder Article 2 of the Convention. When the government receives notice of a scheduling decision pursuant to Article 2 of the Convention, if the req uirements demanded are not met by existing controls, the Secretary of State may “a sk for a review by the Economic and Social Council of the United Nations” or “take appropriate action under the Convention to initiate proceedings to remove the dr ug or substance from the schedules under the Convention or to transfer the d rug or substance to a schedule under the Convention different from the one specifi ed in the schedule notice.” 21 U.S.C. § 811(c)(3)(C)(iii) & (iv). Article 2 of th e Convention creates a process for a signatory state to request a reconsideration of a scheduling decision already made, and in considering that request, the Commissi on is permitted to take into account “economic, social, legal, administrative an d other factors it may consider relevant.” Article 2 (1), (5), (6). The availabil ity of these procedures suggests that compliance with the Convention is not wholly i nconsistent with the needs of signatory states to tailor some scheduling decision s to local requirements.6 Peyote use by Native American Church groups within the United States is

permitted by an express reservation to the Conventi on. -31- The Convention allows signatory states at the time of signature, ratification, or accession to make a reservation for indigenous p lants traditionally used by “small, clearly determined groups in magical or rel igious rites.” Article 32(4). To interpret the Convention rigidly, as having no poss ibility of accommodation for new religious groups (or groups newly arriving in the United States), for which no reservation was sought at the time, raises troublin g constitutional concerns of denominational discrimination. See Olsen , 878 F.2d 1461. We should not lightly assume this is the correct interpretation of the Co nvention. In the case of peyote, as the district court pointe d out, 282 F.Supp.2d at 1268, the United States permits the exportation of the substance to Native American Church groups in Canada, despite the fact that exportation of a Schedule I substance for other than scientific or medical pu rposes would appear to violate the Convention. 6 This suggests that, in practice, there is room fo r accommodation of the legitimate needs of religious minority group s. RFRA places the burden on the government to demonstrate that application of the law to the particular religious exercise is the least restrictive means of furthering its interest. As far as the government’ s argument and the record reveal, the government has undertaken no steps to inquire r egarding the status of hoasca-32-

or to work with the Economic and Social Council or the International Narcotics Control Board to find an acceptable accommodation. Rather, it has posited an unrealistically rigid interpretation of the Convent ion, attributed that interpretation to the United Nations, and then pointed to the Unit ed Nations as its excuse for not even making an effort to find a less restrictive ap proach. To be sure, treaty compliance might well implicate governmental interests beyond the health and safety interests considered a bove. For example, if it could be shown that if the United States failed to proscr ibe hoasca , another country would seize upon that as an excuse to refuse to pro scribe another controlled substance of great importance to our national well- being, that might well constitute a compelling interest. But there is no way to know whether that is so without asking. The government submitted the affidavit of one State Department lawyer stating in general terms that noncompliance with th e treaty would interfere with the ability of the United States to demand cooperat ion from other nations. But while some level of deference to Congressional and Executive findings is appropriate in the context of foreign relations, th is affidavit does not provide any information specific enough to be relevant in asses sing the damage that would flow from an exemption for the UDV. Presumably that lawyer did not mean to say that all violations, from the smallest infraction t o blatant disregard for the treaty as-33-

a whole, are equally damaging to the diplomatic int erests of the United States. He made no mention of whether the International Narcot ics Control Board deems hoasca to be within the Convention or whether there may be ways to comply with the Convention without a total ban. Had the govern ment presented an affidavit about the particular harms that this particular inf raction would cause, it might be a different matter. See Ashcroft , 124 S. Ct. at 2794; Sable Communications v. FCC , 492 U.S. 115, 130 (1989) (dismissing conclusory statements that a complete ban on dial-a-porn messages was necessary to protect ch ildren because “the congressional record . . . contain[ed] no evidence as to how effective or ineffective” less restrictive alternatives would be ).
B Even if UDV were likely to prevail on the merits, t he dissent believes this to be one of those rare cases in which the balancing o f the equities would dictate that the injunction not issue. See Opinion of Murphy, J., at 46. The disagreement rests, I think, on whether the statutory policies a nd burdens of proof set forth in RFRA should guide our consideration of each of the four preliminary injunction factors – or are relevant only to the first, the pr obability of success on the merits. I believe Judge Murphy’s dissent is wrong to disreg ard RFRA in balancing the equities. That is not because RFRA implicitly modi fies the standards that apply to preliminary injunctions; I agree the normal standar ds remain in place unless-34-

Congress clearly manifests an intent to modify them

. See Weinberger v. RomeroBarcelo , 456 U.S. 305, 320 (1982). Rather, the point is t hat the normal standards for injunctive relief require courts to weigh the p rivate and public interests in free exercise on the one hand against the government’s i nterests in regulation on the other, and RFRA is relevant to that weighing. When Congress has expressed its view of the proper balance between conflicting stat utory policies, it is incumbent upon the courts to give effect to that view:

‘Balancing the equities’ when considering whether an injunction should issue, is lawyers’ jargon for cho osing between conflicting public interests. When Congres s itself has struck the balance, has defined the weig ht to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion. Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 609-610 (1952) (Frankfurter, J., concurring). By “restor[ing” the compelling interest test of Sherbert v. Verner , 374 U.S. 398 (1963), and Wisconsin v. Yoder , 406 U.S. 205 (1972), 42 U.S.C. § 2000bb(b)(1), RFRA expressed Congress’s judgment th at the free exercise of religion outweighs all but the most compelling gove rnmental interests. See 42 U.S.C. § 2000bb-1; Yoder , 406 U.S. at 215 (“The essence of all that has bee n said and written on the subject is that only those inter ests of the highest order and those not otherwise served can overbalance legitimate cla ims to the free exercise of7 In the free exercise/RFRA context, it is important to note that evidence of

a compelling government interest rebuts the plainti ff’s prima facie case not by disputing the plaintiff’s interest in the religious practice but by outweighing it. Not all burden-shifting regimes share this feature. For instance, in the Title VII context, once a plaintiff is able to show disparate treatment of a similarly situated employee of another race, the burden shifts to the employer to show a nondiscriminatory motive for the differing treatmen t. To the extent that an employer makes such a showing, it does not present considerations that outweigh the plaintiff’s interest in a nondiscriminatory workplace; rather, it undercuts the plaintiff’s claim of discrimination. Thus, if an e mployer’s case for a nondiscriminatory motive is in equipoise, then it f ollows that the plaintiff’s case for discrimination is also in equipoise. In that c ontext, the dissent’s view of the consequences of equipoise as to the government’s sh owing is well-founded; in the RFRA context, it seems mistaken. -35- religion.”). Once the plaintiff has established aprima facie case, RFRA places on the government the burden of demonstrating that app lication of the law is the least restrictive means of furthering its interest. 42 U.S.C. § 2000bb-1(b). 7It is not that RFRA “legislatively overrule[s]” the tradition al principle that the moving party bears the burden of establishing the four pre liminary injunction factors. See Opinion of Murphy, J., at 46. Rather, RFRA speaks to the quality of evidence and nature of the interest that the government must putforward. RFRA makes it clear that only demonstrated interests of a compelling nature are sufficient to justify substantial burdens on religious exercise. Mere “e quipoise” with respect to notnecessarily-compelling governmental interests is no t enough. Thus, the dissent is wrong to assume that, with the evidence of the government’s interest in “equipoise,” the plaintiff “has not carried its burden of-36-

demonstrating that the third and fourth preliminaryinjunction factors . . . weigh in its favor.” See Opinion of Murphy, J., at 17. The government’s ev idence, on this record, demonstrates only that there mightbe some adverse health consequences or risks of diversion associated with UDV’s hoasca consumption. See Gov’t Br. 45 (describing the government’s interest as an interes t in prohibiting substances that are “just as likely to be dangerous as . . . safe”) . But under RFRA, mere possibilities, based on limited evidence supplement ed by speculation, are insufficient to counterbalance the certain burden o n religious practice caused by a flat prohibition on hoasca

. See United States v. Hardman , 297 F.3d 1116, 1130 (10th Cir. 2002) (en banc); Sherbert , 374 U.S. at 407. In effect, the dissent attempts to make an end run around RFRA’s reinstatement of strict scrutiny by repackaging all of the arguments that would be relevant to the merits (where the presumption of in validity would clearly apply) as arguments about the equities (where it is disregard ed). That approach is unprecedented. When the government fails to demons trate its compelling interest in burdening a constitutional right, courts routine ly find that, in the absence of a compelling justification for interference, the bala nce of harms and public interest also favor protecting the moving party’s burdened r ights. See, e.g., Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 576 (2d Cir. 2002) (affirming the grant of a preliminary injunction be cause the City “ ha[d] not-37-

sufficiently shown the existence of a relevant law or policy . . . th at would . . . justify its actions in dispersing the h omeless from the Church’s landings and steps” (emphasis added)); Jolly v. Coughlin , 76 F.3d 468, 482-83 (2d Cir. 1996) (applying a heightened standard but neverthel ess upholding a RFRA-based preliminary injunction because the plaintiff had es tablished a prima facie case and the government had not established that its policy was the least restrictive means of furthering a compelling interest); Eisenberg ex rel. Eisenberg v. Montgomery County Public Schools , 197 F.3d 123, 127 n.11, 133 (4th Cir. 1999) (reve rsing the denial of a preliminary injunction because the scho ol district had not presented evidence sufficient to rebut the strict-scrutiny pr esumption that race-based decisions are invalid). See also Stuart Circle Parish v. Bd. of Zoning Appe als , 946 F. Supp. 1225, 1235-36, 1240 (E.D. Va. 1996) (findi ng that because plaintiffs demonstrated a substantial likelihood of success ontheir RFRA claim, their interest in religious freedom tipped the balance of harms and the public interest in their favor); Luckette v. Lewis , 883 F. Supp. 471, 483 (D. Ariz. 1995) (balance of harms weighed sharply in favor of prisoner given th at his religious exercise was burdened and defendants had not demonstrated a countervailing public interest); Howard v. United States , 864 F. Supp. 1019, 1029 (D. Colo. 1994) (in lightof likelihood of success, public interest in protectin g First Amendment rights outweighed any possible harm to the government); McCormick v. Hirsch , 460 F.8 The dissent argues that the right at issue in this case is statutory, rather

than constitutional, making several of the cases ci ted above inapposite. Opinion of Murphy, J., at 45–46 n.17. But RFRA dictates th at the government must meet the same exacting standard as when it seeks to just ify a burden on a constitutional right. -38- Supp. 1337, 1350 (M.D. Pa. 1978), abrogated on other grounds, see Bakery, Confectionery and Tobacco Workers’ Int’l Union, Loc al 6 v. NLRB , 799 F.Supp. 507, 511 (E.D. Pa. 1992) (“When the protection of F irst Amendment liberties are [sic] involved, little else need be said of balanci ng the public interest, as protection of these rights is the most fundamental. ”). 8 If there was any doubt before, the Supreme Court’s recent opinion in Ashcroft v. ACLU

, 124 S. Ct. 2783 (2004), forecloses the dissent’s approach. Like this case, Ashcroft involved a preliminary injunction in which the meri ts were governed by the compelling interest/least restricti ve means test. The issue there was the constitutionality of the Children’s Online Protection Act, (“COPA”), which requires businesses posting certain sexually explicit content on the web to require viewers to submit information verifying the ir age before they could access the materials. See id. at 2789-90. The main question was whether that mea ns of keeping the content away from children was the leas t restrictive means, as compared with other methods (prominently, making internet filtering programs more readily available to parents). As in our case , there was evidence on both sides, and substantial factual questions remained about the relative effectiveness-39-

of the two alternatives. See id. at 2794. On that record, the Court found that the plaintiffs were likely to succeed primarily because the burden of proof was allocated to the government. See id. at 2791, 2793 (noting that movants had no burden to demonstrate the effectiveness of alternat ive means of serving the government’s interest; the government bore the burd en of proving that other alternatives were less effective than COPA). By the dissent’s logic, the Court should have gone on to reverse the district court’s preliminary injunction on the theory that w ith respect to the balance of harms and public interest prongs, it was not the go vernment but the plaintiffs who bore the burden of proving that the COPA regime was not the least restrictive means of serving the government’s interests. In fa ct the Court did quite the opposite. In affirming the preliminary injunction, the Court had this to say about the equities supporting the injunction: As mentioned above, there is a serious gap in the e vidence as to the effectiveness of filtering software. . . . For us to assume, without proof, that filters are less effective than COPA wo uld usurp the District Court’s factfinding role. By allowing the preliminary injunction to stand and remanding for trial, we req uire the Government to shoulder its full constitutional burd en of proof respecting the less restrictive alternative argumen t, rather than excuse it from doing so. See id. at 2794. The Court thus held that even with regard to the balance of harms, the government must “shoulder its full constitution al burden of proof respecting9 The dissent complains that this passage “does not r elate in any fashion” to

the balance of the harms or public interest factors . Opinion of Murphy, J., at 47. This is not correct. The Court referred to “import ant practical reasons to let the injunction stand pending a full trial on the merits .” The first of these was that “the potential harms from reversing the injunction outweigh those of leaving it in place by mistake.” Ashcroft , 124 S. Ct. at 2794. But the principal point is w hat the Court did notdo – it did not, as Judge Murphy says we should – treat the plaintiffs as not having met their burden of proof on the balances of equities where the same evidence had been held sufficient to establish that they were likely to prevail on the merits under a compelling interest test. -40- the less restrictive alternative argument.” 9 Id. Under controlling Supreme Court precedent, therefore, we cannot “excuse” the govern ment from meeting its burden simply by shifting the analysis from the likelihood of success to the equities.
C Even putting aside any special features of RFRA or strict scrutiny more generally, there is a more basic problem with the d issenters’ approach. While Judge Murphy is correct to insist that UDV carry it s burden with regard to each of the four factors of the preliminary injunction test , he underestimates the significance of the likelihood of success on the re maining factors, thereby misconceiving the relationship between the four pre liminary injunction factors. A primary purpose of the balance-of-harms inquiry is to determine the relative cost of an error favoring one side as compared with an e rror favoring the other. See,
e.g. , Ashcroft , 2004 WL 1439998 at *9 (noting that “the potential harms from reversing the injunction outweigh those of leaving it in place by mistake”); Tri--41-

State Generation & Transmission Ass’n, Inc. v. Shos hone River Power, Inc. , 805 F.2d 351, 358 (10th Cir. 1986) (“In essence, it wou ld be easier to correct a mistake in favor of Tri-State in issuing an injunction than it would be to correct a mistake in favor of Shoshone and Pacific by not issuing it. ”). It follows that the balanceof-harms inquiry depends in part on the merits inqu iry, since the only way of assessing whose harms are likely to be erroneously imposed is to judge them in light of the likelihood of success on the merits. Thus, no matter how great the interim harm to UDV if it is prevented from using hoasca until the final resolution of this case, that harm must be discounted to the e xtent that it is likely that UDV will not ultimately prove entitled to use hoasca ; by the same token, no matter how great the interim harm to the government if it is w rongfully forced to allow the UDV to use and import hoasca , that harm must be discounted by the likelihood that UDV will ultimately prevail. Cf. Opinion of Seymour, J., at 8-9. Although not always explicitly, courts commonly eva luate the balance of harms in light of the likelihood of success. See, e.g. , Abbott Labs. v. Mead Johnson & Co. , 971 F.2d 6, 12 & n.2 (7th Cir. 1992); Star Fuel Marts, LLC v. Sam’s East, Inc. , 362 F.3d 639, 652 (10th Cir. 2004) (downplaying the harm to the defendant because the defendant had not rebutted th e plaintiff’s prima facie case on the merits, and therefore the preliminary injunc tion required the defendant to do no more than it was legally obligated to do). It m ay be possible, as the dissent-42-

suggests, for the harm and public interest factors to favor the party likely to lose on the merits so strongly that the (likely) losing party should succeed at the preliminary injunction stage. Such an outcome is h ighly unlikely, however, when the merits determination hinges on the strength of the governmental interest. In such cases, it is to be expected that the merits an d the balance of equities would overlap. If the government’s interest is not stron g enough to outweigh the plaintiff’s interest in religious exercise for purp oses of the merits, it is highly unlikely to do so for purposes of the balance of ha rms. D Besides insisting that UDV has not met its supposedburden of disproving the government’s interest, Judge Murphy’s dissent a lso suggests several substantive reasons for finding that the balance of harms favors the government. First, he relies on the government’s general intere st in enforcing the law. See Opinion of Murphy, J., at 40–41, quoting New Motor Vehicle Bd. v. Orrin W. Fox
Co. , 434 U.S. 1345, 1351(Rehnquist, Circuit Justice 19 77). However, we must not forget that this case involves the intersection of two Acts of Congress of equal dignity: RFRA and the CSA. As a result, the govern ment’s interest in complying with the law cuts both ways: the government has no less interest in obeying RFRA than it has in enforcing the CSA. Whether the publ ic interest in enforcing the law favors accommodation under RFRA or strict applicati on of the CSA depends on-43-

whether there is a compelling interest that require s strict enforcement of the latter. It would be circular to rely on that interest to es tablish the government’s compelling interest in the first place. The government also stresses its interest in uniform enforcement of the law and avoiding the burdens of case-by-case managementof religious exemptions, raising concerns that if UDV is allowed an exemptio n in this case, it will make enforcement of the CSA (and the Convention) unworkable by encouraging a host of spurious claims for religious drug use. I find the panel opinion’s reasons for skepticism on this front convincing. See O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft , 342 F.3d 1170, 1186 (10th Cir. 2003). In any event, it is most unlikely that those fears will materialize during t he pendency of a preliminary injunction. Assuming the government is entitled to enforce the CSA, a final judgment in its favor will serve as adequate discou ragement for future claims similar to UDV’s. If the government is serious abo ut the dangers, it can always seek expedited treatment of this case on the merits , and prove its case to the district court. Finally, even when the government is able to demons trate a compelling interest under RFRA, it remains necessary to establ ish that there is no other way of furthering that interest that would have less impac t on the religious exercise. See Yoder , 406 U.S. at 215 (requiring the government’s inter est to be one “not-44-

otherwise served”); 42 U.S.C. § 2000bb–1(b)(2). Th us, although the parties spend the bulk of their efforts arguing about whether the government has a compelling interest in prohibiting UDV’s use of hoasca , that is only part of the analysis. In United States v. Hardman , when this Court applied RFRA to a statutory schem e that allowed Native American tribe members to posse ss eagle parts but denied access to other practitioners of Native American re ligion, the Court en banc held that the government could not prevail without prese nting evidence about the effects of alternative, less restrictive approaches on the compelling government interests in question. 297 F.3d at 1132. “[W]e mu st first determine where along [the continuum of policy alternatives] the governme nt’s present solution lies, and where other, less restrictive means would lie.” Id. at 1135. This case, like Hardman , raises the question of why an accommodation analogous to that extended to the Native American C hurch cannot be provided to other religious believers with similar needs. As the panel majority noted, the apparent workability of the accommodation for Nativ e American Church peyote use strongly suggests that a similar exception woul d adequately protect the government’s interests here. See O Centro , 342 F.3d at 1186. The preliminary injunction issued in this case allows the government some degree of control over UDV’s importation, storage, and use of hoasca . At least to some extent, then, the preliminary injunction works a compromise, attempti ng to respond to the-45-

government’s legitimate concerns while still allowi ng UDV to continue its religious activity. It is incumbent on the governm ent to show why no such compromise regime could adequately serve its intere sts.
E All told, this is the unusual case in which the pla intiff not only prevails on each of the four preliminary injunction factors, bu t does so with sufficient clarity that a preliminary injunction is warranted even tho ugh it would disturb the status quo. The dissent does not challenge that the plain tiff would suffer serious and irreparable injury from continued prohibition of it s religious sacrament. With the burden on the government to prove that its interestin enforcing the CSA against religious hoascause is compelling but the evidence in support of t hat interest no better than “in equipoise,” the plaintiff has also demonstrated a likelihood of success on the merits. The same state of the recor d demonstrates conclusively that the plaintiff prevails on the other two factors. W ith a proven interest of high order on one side, and mere uncertainty, or “equipoise,” on the other, the balance of equities is plainly in the plaintiff’s favor. And in light of Congress’s determination that the public interest is served by accommodating the free exercise of religion except in cases of a proven compelling governmental interest, the plaintiff prevails on the “public interest” prong a s well.-46-

In conclusion, courts should issue preliminary inju nctions that disturb the status quo only when the traditional balance is str ongly in the plaintiff’s favor, but on this record, plaintiff UDV has satisfied that de manding test.No. 02-2323; O Centro Esprita Beneficiente Uniao Do Vegetal v. Ashcroft

HARTZ, Circuit Judge, dissenting:

I dissent, with great respect for the opinions thathold otherwise. I join Part I of Judge Murphy’s dissent and Part I of Judge McConnell’s concurrence. I agree that the status quo is an imp ortant consideration and that Judge Murphy has properly analyzed where the status quo lies in this case. I should add, however, that, as with all balancing te sts, our form of words in expressing the test is of minimal utility. Distric t courts will continue to consider the factors we list and reach the result they belie ve to be equitable; and we, observing proper deference, will generally affirm. In applying the balancing test, I believe that the principal reason for reversing the preliminary injunction is the unlikel ihood that UDV will ultimately prevail on the merits. Applying pre-SmithSupreme Court precedent (as RFRA requires), it is likely that the ultimate determination will be that there is a compelling interest in uniform application of the C ontrolled Substances Act. See Employment Div. v. Smith , 494 U.S. 872, 905 (1990) (O’Connor, J., concurrin g). Moreover, it is even more likely to be determined t hat there is a compelling interest in full compliance with the 1971 United Nations Convention on-2-

Psychotropic Substances, which would be violated bypermitting the UDV’s use of hoasca. See O Centro Espirita Beneficiente Uniao De Vegetal v. Ashcroft , 314 F.3d 463 (10th Cir. 2002).