Lead Opinion
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,
II.
The underlying facts relating to the parties and the issues are fully described in the panel opinion and are therefore unnecessary to reiterate here. UDV invoked RFRA, 43 U.S.C. § 2000bb-l, to obtain declaratory and injunctive relief which would prevent the government from prohibiting UDV’s importation, possession, and use of hoasca for religious purposes and from attempting to seize the substance or prosecute individual UDV members.
III.
The en banc court is divided over the outcome of this case. Nevertheless, a majority of the court has voted to maintain a heightened standard for granting any of the three historically disfavored preliminary injunctions. A different majority has voted to affirm the district court’s entry of a preliminary injunction in this case.
A. Standards for Granting Disfavored Preliminary Injunctions
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 showing that the four [preliminary injunction] factors ... weigh heavily and compellingly in movant’s favor before such an injunction may be issued”: (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits.
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 injunction in this case should be affirmed. Part II of Opinion of Seymour, J., joined by Tacha, C.J., and Porfilio, Henry, Bris-coe, Lucero, McConnell, and Tymkovich, JJ.; Part II of the Opinion of McConnell, J., joined by Tymkovich, J.
IV.
The decision of the United States District Court for the District of New Mexico to grant UDV’s request for a preliminary injunction is hereby AFFIRMED. The temporary stay of the district court’s preliminary injunction issued by this court pending resolution of this appeal is vacated.
Notes
. Hoasca is a liquid tea-like mixture made from the plants psychotria viridis and banist-eriposis caapi. These plants are indigenous to Brazil. Psychotria viridis contains dime-thyltryptamine (DMT), which is listed on Schedule I of the CSA and the Convention.
. This court granted an emergency stay of the preliminary injunction pending appeal. See O Centro Espirita v. Ashcroft,
Concurrence in Part
concurring in part and dissenting in 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 preliminary injunction. Accordingly, I join parts I, II, and III.A of the per curiam opinion. I must respectfully dissent, however, from the conclusion that 0 Centro Espirita Benefi-cíente Uniao do Vegetal (“UDV”) has sufficiently shown its entitlement to a preliminary injunction prohibiting the United States from enforcing 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 Substances, 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.
I.
A. A Heightened Showing is Appropriate When the Requested 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 not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong,
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 mov-ant must make a heightened showing to demonstrate entitlement to preliminary relief: “(1) a preliminary injunction that disturbs the status quo; (2) a preliminary injunction that is mandatory 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,
The en banc court specifically reaffirms the central holding in SCFC ILC that a movant seeking a preliminary injunction which upsets the status quo must satisfy a heightened burden. In advocating the abandonment of this requirement, Judge Seymour suggests that requiring a heightened showing when a requested preliminary injunction would alter the status quo is inconsistent with the need to prevent irreparable harm and is inconsistent with the approaches taken by other circuits. Opinion of Seymour, J., at 4-6. Neither assertion offers a convincing reason for abandoning the well-reasoned approach set out in SCFC ILC.
It is simply wrong to assert that the application of 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 parties until a trial on the merits can be held.” Camenisch,
Any injury resulting from a preliminary injunction that merely preserves the status quo is not a judicially inflicted injury. Instead, 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 correspondingly be particularly hesitant to grant an injunction altering the status quo unless the movant makes an appropriate showing that the exigencies of the case require extraordinary interim relief. It may be small consolation should the issuing court ultimately resolve the merits in favor of the non-moving party; at that point the non-moving party has often incurred significant costs as a result of abiding by the improvident preliminary injunction.
Nor is the failure of other courts to adequately distinguish between mandatory injunctions and injunctions that alter the status quo a sufficient reason to abandon SCFC ILC. See Opinion of Seymour, J., at 1000 & n. 1. In asserting that preliminary injunctions which alter the status quo should not be an independent disfavored category, Judge Seymour relies heavily on the fact that in cataloging the types of disfavored injunctions, no other court has chosen to specifically distinguish between preliminary injunctions which alter the status quo and 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 preliminary injunction which alters the status quo is a mandatory injunction and, thus, subject to heightened scrutiny. Id. (collecting eases). The reflexive equation of preliminary 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 prelimi
There is good reason, however, to distinguish between mandatory injunctions and injunctions which alter the status quo and to treat both types as disfavored. As set out above, “[a] preliminary injunction that alters the status quo goes beyond the traditional purpose for preliminary injunctions, which is only to preserve the status quo until a trial on the merits may be had.” SCFC ILC,
For these reasons, the court is correct in reaffirming the central holding in SCFC ILC that a movant seeking a preliminary injunction which upsets the status quo must satisfy a heightened burden. Nevertheless, the decision to jettison SCFC ILC’s “heavily and compellingly” language as the articulated standard for granting any of the three types of disfavored preliminary injunctions is appropriate. It is enough to note that courts in this Circuit should recognize that each of the three types of injunction identified above 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 granting of a remedy that is certainly extraordinary. See Enter. Mgmt. Consultants,
B. The Status Quo in This Case is the Enforcement of the CSA and Compliance with the Convention
The status quo in fact in this case is the enforcement of the CSA and compliance with the Convention. The record is clear that both UDV itself and the United States recognized that the importation and consumption of hoasca violated the CSA. UDV made a concerted effort to keep secret its importation and use of hoasca. On the relevant import forms, UDV officials in the United States generally referred to hoasca as an “herbal tea”; they never called it hoasca or ayahuasca or disclosed that it contained DMT. UDV president Jeffrey Bronfman informed customs brokers that the substance being imported was an “herbal extract” to be used by UDV members as a “health supplement.” Furthermore, in an e-mail drafted by Bronfman, he emphasized the need for confidentiality regarding UDV’s “sessions” involving hoas-ca: “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 psychotria viridis and banisteriopsis caapi
Although recognizing that UDV “acted in a somewhat clandestine manner in the course of importing the hoasca and using it in its religious ceremonies,” Judge Seymour nevertheless asserts that UDV’s importation and use of hoasca is still the status quo because UDV’s actions were “premised on its firmly held belief that such religious activity was in fact protected from government interference by its right to the free exercise of its religion.” Opinion of Seymour, J., at 1007 n. 3. It is odd, indeed, to assume that UDV thought its actions were entirely lawful and protected by the Religious Freedom Restoration Act (“RFRA”) or the First Amendment, in light of the fact that all 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 establish the status quo in a given case through secretive or clandestine activity. There is enough natural incentive to manipulation in events preceding litigation, and in litigation itself, without providing judicial endorsement of surreptitious conduct by wrapping it in a cloak of “status quo.” The “last peaceable uncontested status existing between the parties before the dispute developed,” 11A Wright & Miller § 2948, at 136, is most surely the open and notorious actions of the parties 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 in this case is the government’s enforcement of the CSA.
What is most strange about the approach advocated by Judge Seymour is its apparent reliance on the legal rights of the parties in arriving at the status quo in this case. Although disclaiming such an approach, Opinion of Seymour, J., at 1007, 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 federal statutes, RFRA and the CSA, plus an international treaty, which collectively generate important competing status quos.”). If the status quo is both parties exercising their legal rights, but the mutual and contemporaneous exercise of those rights is factually impossible, then the status 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 determined by reference to a party’s legal rights. Furthermore, such an approach is clearly inconsistent with this Circuit’s historic understanding of what constitutes the status quo. SCFC ILC,
C. Conclusion
In sum, a heightened standard is consistent with the historical underpinnings of the preliminary injunction and is supported by persuasive policy rationales. Furthermore, this court’s delineation in SCFC ILC of three types of disfavored preliminary injunction is well-reasoned and consistent with the historic purpose of the preliminary injunction; SCFC ILC should not be completely abandoned simply because other courts have chosen a different course. The status quo in this case is the government’s enforcement of the CSA and compliance with the Convention. Accordingly, when analyzing whether UDV is entitled to its requested preliminary injunction, this court will recognize that the requested injunction is disfavored and more closely scrutinize the request to assure that the exigencies of the case support the granting of a particularly extraordinary remedy.
II.
Based heavily on the conclusion that UDV has demonstrated 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 preliminary injunction. In contrast to the conclusions of the majority, however, UDV has not demonstrated a substantial likelihood of success on the merits. First, RFRA was intended to restore the compelling interest test that existed before Employment Division v. Smith,
Quite aside from the question of whether UDV has demonstrated it is substantially likely to prevail on the merits, UDV has not demonstrated its entitlement to a preliminary injunction. In connection with the risk to the health of UDV members and the risk to the public from diversion 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 the Convention necessitated by its injunction. With the evidence in this state, UDV has not carried its burden of demonstrating that the third and fourth preliminary injunction factors— that the threatened injury to it outweighs the injury to the United States under the preliminary injunction and that the injunction is not adverse to the public interest— weigh in its favor thereby justifying even a preliminary injunction that does not alter the status quo. Superimposing the more appropriate heightened scrutiny for a disfavored injunction altering the status quo upon the evidence in this case renders the preliminary injunction even more decidedly erroneous.
A. Substantial Likelihood of Success on the Merits
1. Controlled Substances Act
RFRA was never intended to result in the kind of case-by-case evaluation of the controlled substances laws, and the scheduling decisions made pursuant to those laws, envisioned by the majority. In light of the specific findings set out in the CSA with regard to the drug at issue here, it is 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 allowed 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 the nation’s drug policy, courts simply lack the institutional competence to craft a set of religious exemptions to the uniform enforcement of those laws. In contrast to 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 concerning the ban on DMT, see 42 U.S.C. § 2000bb-l(b), the government need turn only to express congressional findings concerning Schedule I drugs. Congress specifically found that these drugs have a high potential for abuse, have no currently accepted medical use, and are not safe for use under any circumstances. 21 U.S.C. § 801(2) (“The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.”); id. § 801a(l) (“The Congress has long recognized the danger involved in the manufacture, distribution, and use of certain psychotropic substances ..., and has provided strong and effective legislation to control illicit trafficking and to regulate 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
RFRA ought not result in a ease-by-case redetermination of whether these findings are correct. Judge McConnell takes the opposite position — ’that congressional findings and scheduling (indeed Congress scheduled DMT) are not enough — stating “[s]uch generalized statements are of very limited utility in evaluating the specific dangers of this substance under these circumstances, because the dangers associated with a substance may vary considerably from 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 determining whether the use of DMT in a religious setting is dangerous to the health of UDV practitioners. On this point, Congress could not have been more clear. DMT has a high 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. 1(c)(6).
Second, under the approach advocated by Judge McConnell, whether this court is talking about drinking hoasca tea (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 lisks or possibility of diversion would outweigh free exercise concerns. Such a reading of RFRA is difficult to reconcile with RFRA’s purpose of merely reviving the pre-Smith compelling interest test. 42 U.S.C. § 2000bb(b)(l). Congress viewed that test as applied in prior federal rulings as “a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” Id. § 2000bb(a)(5). Employing that test, courts routinely rejected religious exemptions from laws regulating controlled substances. See United States v. Greene,
Equally unconvincing is Judge McConnell’s attempt to minimize the govern-merit’s interest in the uniform enforcement of the CSA. Unlike compulsory education for an additional two years, the interest in enforcement of the nation’s drug laws as prescribed by Congress is one of the highest order. Wisconsin v. Yoder,
The CSA envisions careful scheduling of substances. See 21 U.S.C. § 811(e) (listing eight factors which Attorney General 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 a substance from schedule). It also envisions medical and scientific uses of controlled substances in the public interest and consistent with public health and safety; “[njeither manufacturing, distribution or dispensing contemplates the possession of controlled substances for other than legitimate medical or research purposes.” Olsen,
The careful approach of the CSA should be contrasted with that of this court. Although this court recognizes that “the interests of the government as well as the moi'e general public are harmed if the government is enjoined from enforcing the CSA against the general importation and sale of street drugs, or from complying with the tx-eaty,” it then characterizes this case as one “about importing and using small quantities of a controlled substance in the structured atmosphere of a bona fide religious ceremony.” Opinion of Seymour, J., at 1008-1009. Can the free exercise of religion under RFRA really turn on whether the adherent has a religious affinity for street drugs or more esoteric ones?
2. United Nations Convention on Psychotropic Substances
The United States argues convincingly that a preliminary injunction requiring it to violate the Convention could seriously impede its ability to gain the cooperation of other nations in controlling the international flow of illegal drugs. See 21 U.S.C. § 801a(l) (“Abuse of psychotropic substances has become a phenomenon common to many countries ... and is not confined to national borders. It is, therefore, essential that the United States cooperate with other nations in establishing effective controls over international traffic in such substances.”).
For those reasons set out in the panel dissent, hoasca is a preparation containing a Schedule I substance covered by the Convention. O Centro Espirita,
In his separate opinion, Judge McConnell asserts that (1) the government deprived this court of “evidence” necessary to interpret the Convention and (2) the government failed to demonstrate that strictly prohibiting the import and consumption of hoasca is the least restrictive means of furthering its interest in complying with the Convention. Opinion of McConnell, J., at 1024, 1024-1026. Judge McConnell’s assertions are flawed in several respects.
First and foremost, the interpretation of the Convention is a question of law. See, e.g., Ehrlich v. Am. Airlines, Inc.,
Nor is it altogether accurate to assert that it was the defendants who opposed the introduction of evidence on this question at the hearing. Id. Judge McConnell asserts that UDV “attempted to present evidence regarding the interpretation of the Convention by the International Narcotics Control Board [ (“INCB”) ], the international enforcing agency, including a 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 produce multiple items of evidence, only one component of which was a letter from the Secretary of the INCB. In fact, UDV merely sought to question a witness about the contents of Plaintiffs Exhibit 54, a letter from 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 Convention. Furthermore, as noted by the government below, there are serious questions as to the relevance of the Secretary’s opinion regarding whether hoasca is covered by the Convention.
Judge McConnell further asserts that based on a narrow objection by the United States, the district court excluded the evidence, depriving this court of “interpretive history” necessary to a resolution of this appeal.
Nor is it appropriate to fault the government for failing to demonstrate that strictly prohibiting the importation and consumption of DMT, in the form of hoasca, is the least restrictive way to further the government’s interest in complying with the Convention. Opinion of McConnell, J., at 1024. The problem, of course, is that the district court short-circuited the government’s ability to present evidence on this particular question when it concluded that the Convention did not apply to hoas-ca. Under these circumstances, it seems strange to punish the government for this purported evidentiary 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, UDV has faded to demonstrate a substantial likelihood of success on the merits.
In response, Judge McConnell envisions an elaborate process whereby, to demonstrate narrow tailoring, the government is obligated to request that DMT be removed from the schedule of drugs covered by the Convention. Opinion of McConnell, J., at 30-31. That is, until the government seeks to have DMT removed from coverage by the Convention, it cannot demonstrate that “strict” prohibitions against the import of DMT are the least restrictive means of advancing its interest in complying with the Convention. 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 highly dangerous and addictive substance. It is difficult to see how asking that DMT be removed from the schedule of drugs covered by the Convention advances the government’s interests in any
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 demonstrates that no significant harm will flow to the government from the injunction. Opinion of Seymour, J., at 1009-1010; see also Opinion of McConnell, J., at 1024-1025 (asserting that the failure of the government to seek a reservation under Article 32(4) on behalf of UDV demonstrates the government failed to prove that the strict prohibition against the importation and consumption of hoasca is the least restrictive means of furthering its interest in complying with the Convention). What Judges Seymour and McConnell fail to acknowledge, however, is that the exemption set out in Article 32(4) allows signatory nations to make a reservation as to all of the provisions of Article 7, except for the provisions of Article 7 prohibiting the international trafficking of psychotropic substances. Article 32(4) specifically provides as follows:
A State on whose territory there are plants growing wild which contain psychotropic substances from among those in Schedule I and which are traditionally used by certain small, clearly determined groups in magical or religious rites, may, at the time of signature, ratification or accession, make reservations concerning 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 the importation of hoasca.
B. Balance of Harms and Public Interest
For those reasons set out above, UDV has not demonstrated a substantial likelihood of success on the merits of its RFRA claim. This is especially true in light of the heightened burden on UDV to demonstrate its entitlement to a preliminary injunction that upends the status quo. Independent of the question of likelihood of success on the merits, however, UDV has not demonstrated that its harm outweighs the harm flowing to the government as a result of the preliminary injunction or that the preliminary injunction is not 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 substances is adverse to the public interest. 21 U.S.C. §§ 801(2), 801a(l). Congress has specifically found that the drug at issue here, DMT, has high potential for abuse and is not safe to consume even under the supervision of medical personnel. Id. § 812(b)(1), (c), sched. 1(c)(6).
Against this backdrop, the district court found that the evidence was in equipoise as to the risk of diversion of hoasca to nonreligious purposes and the danger of health complications flowing from hoasca consumption by UDV members. As noted above, both Judge Seymour and Judge McConnell erroneously rely on this finding to conclude that the United States has not carried its burden of demonstrating that the restrictions in the CSA against the importation and consumption of hoasca further the United States’ compelling interests and that, concomitantly, UDV is substantially likely to prevail on the merits
The United States suffers irreparable injury when it is enjoined from enforcing its criminal laws. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351,
Judge Seymour’s discussion of the balancing of the harms flowing from enjoining enforcement of the CSA is similarly unconvincing. UDV would certainly suffer an irreparable harm, assuming of course 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 substantial. 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 the public who obtains diverted hoasca, if the risk comes to fruition the consequences could 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 that hoasca will be diverted and that members of UDV and the public will suffer adverse health consequences. Cf. 21 U.S.C. § 812(b)(1), (c), sched. 1(e)(6) (finding that DMT is unsafe to consume even under medical supervision). Both Judge Seymour and Judge McConnell seriously undervalue the magnitude of the risks identified by the government in concluding that UDV’s actual harm outweighs the risks of harm identified by the government.
At its base, the concurring opinion of Judge McConnell would convert RFRA into a 900-pound preliminary injunction gorilla. According to Judge McConnell, the third and fourth preliminary injunction factors have no real play when RFRA is involved. Opinion of McConnell, J., at 1027-1028 (“When the government fails to demonstrate its compelling interest in burdening a constitutional right, courts routinely find that, in the absence of a compelling justification for interference, the balance of harms 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,
Equally unconvincing is Judge McConnell’s assertion that equitable considerations that might not carry the day for the government at the likelihood-of-success-on-the-merits stage are rendered irrelevant by RFRA at the balancing-of-harms and public-interest stages. Opinion of McConnell, J., at 1027 (“[T]he 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 pre
Nor does the Supreme Court’s recent decision in Ashcroft v. ACLU, — U.S. -,
As mentioned above, there is a serious gap in the evidence as to the effectiver ness of filtering software.... For us to assume, without proof, that filters are less effective than COPA would usurp the District Court’s factfinding role. By allowing the preliminary injunction to stand and remanding for trial, we require the Government to shoulder its full constitutional burden of proof respecting the less restrictive alternative argument, rather than excuse it from doing so.
Opinion of McConnell, J., at 1028-1029 (quoting Ashcroft, — U.S. at -,
To the extent that there is any meaningful discussion in Ashcroft of the particular issue before this court,
[T]he potential harms from reversing the injunction outweigh those of leaving it in place by mistake. Where a prosecution is a likely possibility, yet only an affirmative defense is available, speakers may self-censor rather than risk the perils of trial. There is a potential for extraordinary harm and a serious chill upon protected speech. The harm done from letting the injunction stand pending a trial on the merits, in contrast, will not be extensive. No prosecutions haveyet been undertaken under the law, so none will be disrupted if the injunction stands. Further, if the injunction is upheld, the Government in the interim can enforce obscenity laws already on the books.
Ashcroft, — U.S. at -,
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 government’s ability to gain the cooperation of other nations in controlling the international flow of illegal drugs. 21 U.S.C. § 801a(l) (“Abuse of psychotropic substances has become a phenomenon common to many countries ... and is not confined to national borders. It is, therefore, essential that the United States cooperate with other nations in establishing effective controls over international traffic in such substances.”). Furthermore, the only evidence in the record on this question, the Dalton declaration, indicates the need to avoid a violation that would undermine the United States’ role in curtailing illicit drug trafficking.
Without regard to whether the declaration and congressional findings are sufficient to carry the government’s burden of demonstrating that absolute compliance with the Convention is the least restrictive means of advancing the government’s compelling interest, the declaration, taken together with the congressional findings, certainly bears on the question 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 court. In light of the declaration, the congressional findings, and the extant status quo, UDV has simply not carried its burden of demonstrating that its interest in the use of sacramental hoasca pending the resolution of the merits of its complaint outweighs the harm resulting to the United States from a court order mandating that it violate the Convention. Nor has UDV shown that such an injunction is not adverse to the public interest.
III.
The court correctly reaffirms the central holding in SCFC ILC that when a movant is seeking one of the three historically disfavored types of preliminary injunctions, the movant must satisfy a higher burden. I, therefore, join parts I, II, and III.A of the per curiam opinion.
Even setting aside the question of whether UDV is substantially likely to prevail on the merits, UDV has independently failed to carry its heavy burden of establishing that the balance of harms and the public interest favors the issuance of a preliminary injunction. Setting aside the Convention for the moment and considering these factors only in relation to the CSA, UDV failed to establish entitlement to extraordinary interim relief altering 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 members of UDV was virtually balanced and in equipoise. In other words, the district court found that it is just as likely as not that hoasca will be diverted to the general public and that members of 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 preliminary injunction. The harm to the government and public interest is not, however, singularly related to the CSA. Harm to the government and the public interest resulting from the court-ordered violation of the Convention remain unaddressed by UDV or the district court. Furthermore, both Judge Seymour’s and Judge McConnell’s attempts to minimize the significant harm
I would reverse the district court’s entry of a preliminary injunction. Because a majority of the court concludes otherwise, I respectfully dissent from parts III.B and IV of the per curiam opinion.
. See generally Wright & Miller § 2947, at 123. According to Professor Wright,
The circumstances in which a preliminary injunction may be granted are not prescribed by the Federal Rules. As a result, the grant or denial of a preliminary injunction remains a matter for the trial court's discretion, which is exercised in conformity 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 compelling reason in favor of entering a Rule 65(a) order is the need to prevent the judicial process from being rendered futile by defendant's action or refusal to act. On the other hand, judicial intervention before the merits have been finally determined frequently imposes a burden on defendant that ultimately turns out to have been unjustified. Consequently, the preliminary injunction is appropriate whenever the policy of preserving the court's power to decide the case effectively outweighs the risk of imposing an interim restraint before it has done so.
Id. (footnotes omitted).
. Judge Seymour is simply incorrect in implying that the application of heightened scrutiny to preliminary injunctions that alter the status quo is inconsistent with the need to prevent irreparable harm. Opinion of Seymour, J., at 6-7. Instead, such an approach recognizes that preliminary injunctions which alter the status quo, an unconventional and historically disfavored type of interim relief, are far more likely to impose untoward costs on the non-moving party. For that reason, and because of the attendant costs imposed on the judiciary by such preliminary injunctions, it is appropriate to require that movants make a heightened showing as a predicate to obtaining a preliminary injunction which alters the status quo. Such a system is sufficiently 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 balance of harms undoubtedly tips in favor of the movant; and the movant demonstrates a substantial likelihood of success on the merits.
. These are the two plants utilized to brew hoasca.
. Likewise, envision two parties to a long-term contract. For a number of years both parties have operated with an identical understanding of a key provision of the contract. Party A suddenly changes course and adopts a different view of the contract. Facing irreparable injury, party B brings a declaratory judgment action and seeks a preliminary injunction to preserve the status quo pending resolution of the suit. Under Judge Seymour's approach, the parties' course of conduct would be irrelevant to the question 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 preliminary and incomplete record that party A was likely to prevail on the merits, the status quo would be party A’s revised interpretation of the contract. Such an approach is surely at odds with any basic understanding of what constitutes the status quo.
. As noted in the panel dissent, because the district court did not recognize that the requested preliminary injunction would change the status quo, it did not subject UDV’s request to any special scrutiny. O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft,
. Judge McConnell asserts that these precedents provide 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-
. The Congressional findings accompanying RFRA provide as follows:
The Congress finds that—
(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
(2) laws "neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling justification;
(4) in Employment Division v. Smith,494 U.S. 872 ,110 S.Ct. 1595 ,108 L.Ed.2d 876 (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 prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
42 U.S.C. § 2000bb(a).
. 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
. As was true of the panel majority, Judge Seymour asserts that the Convention "must be read in light of RFRA and the religious use of the controlled substance here.” Opinion of Seymour, J., at 1009 & n. 5 (citing O Centro Espirita,
. According to Judge McConnell,
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 one of the issues in this hearing.” After discussion, the district court forbade the questioning on the subject, and plaintiffs were unable 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 interpretive history, would be premature.”
Opinion of McConnell, J., at 1024 (record citation omitted).
. During the discussion on whether the questioning should be allowed, counsel for the government stated as follows:
Objection, Your Honor. We are now introducing testimony about whether or not ayahuasca is controlled under the International Convention. That is not one of the issue in this hearing.
Your Honor, the person who introduced that exhibit was plaintiffs' counsel, who introduced it for the purpose 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 Your Honor to decide....
Your Honor, we did not just now talk about which substances were controlled in the Convention. When I went through this report, it was to rebut statements [plaintiffs’ counsel] made 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 secretary of the board is not a voting member. The government does not agree or accept that the INCB doesn't control ayahuasca under the Convention. The INCB does not have the authority to determine what is controlled 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.
. Even if Judge McConnell were correct that the record is too truncated to reach a decision on whether the government has advanced a compelling interest in complying with the Convention and that prohibition on the import and consumption of hoasca is the most narrowly tailored means of advancing that compelling interest, however, the more appropriate course of action would be to remand to the district court for further development of the record.
. Judge Seymour appears to assert that it is improper to rely on these congressional findings in light of the passage of RFRA. Opinion of Seymour, J., at 1011 n. 8 ("Judge Murphy relies heavily on Congress' specific findings that the importation and consumption of controlled substances 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,
. 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 1009. As noted above, however, Congress has specifically found that the consumption of DMT is unsafe even when consumed under medical supervision and that the drug has a high potential for abuse. See 21 U.S.C. § 812(b)(1). UDV could not muster sufficient 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 quickly lifted should the United States prevail on the merits, such a course would not remediate any harm that might occur to the members of UDV or the general citizenry from diverted hoasca while the preliminary injunction was in effect. Judge Seymour’s approach thus seems to wholly discount those risks that inhere in the preliminary injunction.
. 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 "arrive at a mutually acceptable means of disposal of any hoas-ca that must be disposed of”); id. para. 24 (setting out time frames within which United 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 to import and distribute hoasca); id. para. 35 (requiring United States to designate person or small group of persons to act as liaison with UDV).
.In concluding that the injunction in this case is prohibitory rather than mandatory, Judge Seymour makes much of the fact that many of the provisions in the preliminary injunction were added at the government's insistence. Opinion of Seymour, J., at 16-17. This, however, over-simplifies the procedural history and thereby belies the actual process
. Judge McConnell does cite to a number of cases involving the deprivation of a constitutional right. Opinion of McConnell, J., at 1027-1028. As noted above, both Judges McConnell and Seymour seem to forget that the right at issue in this case is based on a congressional enactment, not the Constitu-lion. Furthermore, as noted at length above, RFRA must be read in light of its historical context. RFRA merely restored the law to its pre-Smith state, a state of law under which courts routinely rejected religious exemptions from generally applicable drug laws.
. That is, whether equitable considerations might occasionally preclude the grant of a preliminary injunction even though a movant has demonstrated a likelihood of success on the merits.
Concurrence in Part
concurring in part and dissenting in part,
Like a majority of my colleagues, I am persuaded that 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 burden when the proposed injunction will alter the status quo but the injunction is not also mandatory.
I
It is well established that “[a] preliminary injunction is an extraordinary remedy; it is the exception rather than the rule.” GTE Corp. v. Williams,
In making the equitable determination to grant or deny a preliminary injunction, courts tend to balance a variety of factors. 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 under the preliminary injunction; (4) the injunction is not adverse to the public interest.” Kikumura v. Hurley,
As noted by Professor Dobbs:
[T]he gist of the standards is probably easy to understand, in common sense terms even if the expression is imperfect: the judge should grant or deny preliminary relief with the possibility in mind that an error might cause irreparable loss to either party. Consequently the judge should attempt to estimate the magnitude of that loss on each side and also the risk of error.
Dan B. Dobbs, Law of Remedies § 2.11(2) at 189 (2d ed.1993) (emphasis added). American Hosp. Supply Corp. v. Hospital Prods. Ltd.,
asked to decide whether to grant or deny a preliminary injunction [it] must choose the course of action that will minimize the costs of being mistaken.... If the judge grants the preliminary injunction to a plaintiff who it later turns out is not entitled to any judicial relief — whose legal rights have not been violated — the judge commits a mistake whose gravity is measured by the irreparable harm, if any, that the injunction causes to the defendant while it is in effect. If the judge denies the preliminary injunction to a plaintiff 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 plaintiff.
Id. at 593. Due to this inherently fluid, multi-faceted, and equitable process, we review a district court’s decision to grant or deny injunctive relief for abuse of discretion. SCFC ILC, Inc. v. Visa USA, Inc.,
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 and their witnesses and counsel in the hectic atmosphere of a preliminary-injunction 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.,
A.
In SCFC ILC, we held that movants requesting certain preliminary injunctions must meet a heightened standard instead of satisfying the ordinary preliminary injunction test. We detailed that a party who seeks an injunction which either changes the status quo, is mandatory rather than prohibitory, or provides the mov-ant with substantially all the relief 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.,
In doing so, I do not denigrate the general notion that the purpose of a preliminary injunction is to preserve the status quo between the parties pending a full trial on the merits. But this general maxim should not be taken merely at face value or become a goal in and of itself. Rather, the 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,
Given the essential role prevention of irreparable harm plays in the grant of preliminary injunctive relief,
B.
Our circuit currently employs three different standards when granting preliminary injunctions. As a base line, we have articulated that a party’s right to injunc-tive relief must be “clear and unequivocal.” See SCFC ILC Inc.,
In general, “[ejmphasis on the balance of [irreparable 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 hardships weighs strongly in favor of the plaintiff, and vice versa.” In re Microsoft,
Given the special considerations and potential administrative costs at stake when
Although a mandatory injunction should be granted only where the moving party makes a strong showing that all the preliminary injunction factors weigh in its favor, we should abandon use of the “heavily and compellingly” language employed in SCFC ILC, see
The same is true for injunctions that provide the movant with all the relief that could be obtained at trial. See SCFC ILC,
term “all the relief to which a plaintiff may be entitled” must be supplemented by a further requirement that the effect of the order, once complied with, cannot be undone. A heightened standard can thus be justified when the issuance of an injunction will render a trial on the merits largely or partly meaningless, either because of temporal concerns, say, a case involving the live televising of an event scheduled for the day on which preliminary relief is granted, or because of the nature of the subject of the litigation, say, a ease involving the disclosure of confidential information.
Tom Doherty Assocs.,
In sum, we should limit our categories of injunctions requiring greater scrutiny to those which are mandatory or which afford 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 seeking an injunction requiring greater scrutiny may not rely on our relaxed “success on the merits” standard but must make a strong showing that it has a likelihood of success on the merits and that the balance of harms weighs in its favor. However, I depart from my colleagues who hold that a heightened standard should always be applied when the injunction will change the status quo. Rather, district courts should assess alteration of the status quo in light of its impact on the balance of harms among the parties and the public interest.
II
Turning to the question of whether the district court properly granted the preliminary injunction to the UDV, our court reviews the district court’s grant of injunc-tive relief for abuse of discretion and “ex-aminéis] whether the district court committed error of law or relied on clearly erroneous fact findings.” Walmer v. U.S. Dep’t of Defense,
The district court focused the majority of its analysis on whether the UDV could satisfy the likelihood of success on the merits prong of the preliminary injunction test. See Kikumura,
The government proffered three compelling interests — risks to the health of the UDV members by the use of hoasca, risk of diversion of hoasca for non-religious purposes, and compliance with the Convention. “Believing the Government’s strongest arguments for prohibiting Uniao do Vegetal’s hoasca use 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,
The district court then turned to the remaining preliminary injunction factors and determined the UDV satisfied each. The court found the UDV established irreparable injury because its right to the free exercise of religion was being impaired. With respect to harm to the government and 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 hoasca in their religious ceremonies, the Court concludes that, in light of the closeness of the parties’ evidence regarding the safety of hoasca use and its potential for diversion, the scale tips in the [church’s] favor.
Id. at 1270. The court granted a preliminary injunction to the UDV pending a decision on the merits.
The government contends that the preliminary injunction 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 stronger showing to succeed. I disagree. This case is unique in many respects because it involves a clash between two federal statutes, one based in the First Amendment to the Constitution and protecting an individual’s free exercise of religion and the other serving the important governmental and public interests of protecting society against the importation and sale of illegal drugs. This case also serves as an example of how challenging it can be to determine whether an injunction 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 sacramental use of hoasca as unlawful under the CSA or the treaty. It also orders the government not to
intercept or cause to be intercepted shipments of hoasca 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.
The government contends the injunction is mandatory because it includes “36 separate provisions requiring specific affirmative action by the government to facilitate the UDV’s use of hoasca.” Aplt. Supp. En Banc br. at 20. In so arguing, the government fails to acknowledge that the additional 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 oversight 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 that while the UDV is required to comply with the regulations, the government cannot 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 the government,
Similarly, while some of the injunction’s provisions mandate that the parties take specific actions, the order is nonetheless properly characterized as prohibitory. Read as a whole, the additional terms in the order mandate that the UDV comply with specific drug importation laws, while the provisions conversely permit the government to perform its regulatory functions with respect to the importation of controlled substances, up to but not including barring the UDV’s use of hoasca for sacramental purposes. However, the overall effect of the injunction is to prohibit the government from enforcing the CSA and the treaty against the UDV.
There is no doubt that determining whether an injunction 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 prohibitory injunctions, however, cannot be drawn simply by reference to whether 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 performing. In many instances, this distinction is more semantical than substantive. For to order a party to refrain from performing a given act is to limit his ability to perform any alternative act; similarly, an order to perform in a particular manner may be tantamount to a proscription against performing in any other.
Abdul Wali v. Coughlin,
With respect to the question of status quo, it is generally described as “the last peaceable uncontested status existing between the parties before the dispute developed.” 11A Wright & Miller § 2948, at 136 n. 14 (listing cases). See also Prairie Band of Potawatomi Indians,
The status quo for the UDV was that it was practicing its religion through its importation and use of hoasca at religious
We are thus presented with two plausible status quos, each of them important. Moreover, since both parties contest the 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 granted by the district court can certainly be read to have altered the status quo for the government and thereby caused it harm. Conversely, failure of the court to grant the injunction would have altered the status quo for the church, causing it harm. As discussed above, injunctive relief may be warranted where preserving the status quo perpetuates harm against the moving party. See, e.g., Crowley,
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 court, see supra at 13-15, and set forth in the panel opinion, O Centro,
The district court then balanced the irreparable harm to the UDV against the harm the government would suffer from a preliminary injunction prohibiting its enforcement of the CSA against the church’s religious use of a controlled substance, and from its compliance with the Convention. As Judge McConnell so aptly observes, one cannot evaluate the balance of harm and public interest factors separately and isolated from Congress’ own balancing of these factors in RFRA. See McConnell, J., opin. at 1025-1027. In RFRA, Congress determined that the balance of equities and public interest should weigh in favor of the free exercise of religion and that this settled balance should only be disrupted when the government can prove, by specific evidence, that its interests are compelling and its burdening of religious freedom is as limited as possible. See 42 U.S.C. § 2000bb-l(a)-(b).
Certainly the interests of the government as well as the more general public are harmed if the government is enjoined from enforcing the CSA against the general importation and sale of street drugs, or from 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. Rather, it is about importing and using small quantities of a controlled substance in the 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 First Amendment to our Constitution. In this context, what must be assessed is not the more general harm which would arise if the government were enjoined from prosecuting the importation and sale of street drugs, but rather the harm resulting from a temporary injunction against prohibiting the controlled use of hoasca by the UDV in its religious ceremonies while the district court decides the issues at a full trial on the merits.
As asserted by the government, the relevant harms in this context are the risk of diversion of hoasca to non-religious uses and the health risks to the UDV members
I disagree with Judge Murphy’s assertion that because plaintiffs have the burden of proof on the preliminary injunction factors they necessarily lose if the evidence is in equipoise on the question of harm to the government’s asserted interests. See Murphy, J., opin. at 1028-1029. As Judge Murphy recognizes, 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 public interest. See Kikumura,
Likewise, the harm resulting to the government from a violation of the Convention in this context is similar to the harm suffered as a result of the government’s temporary inability to enforce the CSA against the church. As with the CSA, the treaty must be read in light of RFRA and the religious use of the controlled substance here.
In light of the Convention’s acknowledgment that the use of psychotropic substances in the course of religious rituals may warrant 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 significantly harmed by a preliminary injunction temporarily restraining it from enforcing the treaty against the UDV does not ring entirely true. This injunction temporarily bars the government in small part
Moreover, given the competing status quos represented in this case — the church exercising its religion versus the government enforcing the drug laws and complying with the treaty- — the district court’s inclusion of the additional terms in the preliminary injunction, in which the government is permitted to perform most of its regulatory functions regarding the importation of this controlled substance, is a reasonable attempt to balance the harms suffered by either party until a full trial can be had on the merits. Viewed in this light, and given the conclusion that the UDV has a strong likelihood of succeeding on the merits of its claim under RFRA, the government’s argument that it would be significantly 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 drug laws and in compliance with our treaty commitments. But there is an equally strong public interest in a citizen’s free exercise of religion, a public interest clearly recognized by Congress when it enacted RFRA and by the signatories to the Convention when they authorized exemptions for religious use of otherwise prohibited substances.
in balancing the Government’s concerns [regarding harm] 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’ evidence regarding the safety of hoasca use and its potential for diversion, the scale tips in the [church’s] favor.
O Centro,
. I disagree with Judge McConnell's characterization of the cases I have cited for the proposition that the other circuits limit their categories of disfavored injunctions to those which are mandatory and those which provide the movant with all the relief afforded on the merits. McConnell, J., op. at 1014 n. 4. As noted above, no other circuit follows our approach of identifying three categories of disfavored injunctions. Courts which speak of applying 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,
. In the course of deciding whether to grant preliminary injunctive relief, "courts have consistently noted that '[b]ecause a showing 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 an injunction will be considered.' ” Dominion Video Satellite v. Echostar Satellite Corp.,
. I also disagree with Judge Murphy's contention that both the church and the government “recognized that the importation and consumption of hoasca violated the CSA,” Murphy, J., opin. at 980, and therefore 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 manner in the course of importing the hoasca and 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 government interference by its right to the free exercise of its religion.
. I do not, however, include footnote 2 of the panel majority opinion in my reasoning here. See O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,
. As the panel opinion makes clear:
[T]he Supreme Court has directed "that an Act of Congress ... is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute, to the extent of conflict, renders the treaty null." Id. (quoting Reid v. Covert,354 U.S. 1 , 18, 77 ,S.Ct. 1222,1 L.Ed.2d 1148 (1957) (plurality opinion)). See also Whitney v. Robertson,124 U.S. 190 , 194,8 S.Ct. 456 ,31 L.Ed. 386 (if treaty and statute conflict, "the one last in date will control the other”).
O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,
. Lending their voice as amici curiae in support of the UDV's position are a variety of other religious organizations. Among these groups are the Christian Legal Society, the National Association of Evangelicals, Clifton Kirkpatrick, as the Stated Clerk of the General Assembly of the Presbyterian Church, and the Queens Federation of Churches, Inc. The presence of these varied groups as advocates for the UDV further highlights the vital public interest in protecting a citizen’s free exercise of religion.
. The Supreme Court has subsequently found RFRA unconstitutional as applied to the states. City of Boerne v. Flores,
.Judge Murphy relies heavily on Congress' specific findings that the importation and consumption of controlled substances are adverse to the public interest, see Murphy, J., opin. at 992-993, while totally ignoring the immediate and strong reaction Congress had to the Supreme Court's decision in Employment Division v. Smith,
the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution; ... laws "neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise; ... [and] governments should not substantially burden religious exercise without compelling justification.
42 U.S.C. § 2000bb(a)(l)-(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,
In making this observation, I do not assert, as Judge Murphy suggests, that Congress’ findings in conjunction with its passage of the CSA are totally irrelevant, or that the dissent erred in its reference to them. See Murphy, J., opin. at 992 n. 13. Rather, it is my position that the findings articulated by Congress in the CSA cannot be viewed without reference to Congress' adamant affirmation that the free exercise of religion is an unalienable right to be burdened only under the most compelling of government justifications.
Concurrence Opinion
This Court has traditionally required a heightened showing for preliminary injunctions in three “disfavored” categories: injunctions 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 trial on the merits. SCFC ILC, Inc. v. Visa USA Inc.,
1. A Heightened Standard Should Apply to Preliminary Injunctions That Disturb the Status Quo
The Supreme Court has stated that preliminary injunctions have the “limited purpose” of “merely [preserving] the relative positions of the parties until a trial on the merits can be held.” University of Texas v. Camenisch,
There is no reason to think that the “general maxim” that “the purpose of a preliminary injunction is to preserve the status quo between the parties pending a full trial on the merits” is one that “should not be taken merely at face value” or disregarded except insofar as it “impacts the balance of harms between the parties and the public interest.” Opinion of Seymour, J., at 1002, 1003. A judicial version of Hippocrates’ ancient injunction to physicians — above all, to do no harm — counsels against forcing changes before there has been a determination of the parties’ legal rights. The settled rule of our tradition is that losses should remain where they fall until an adequate legal or equitable 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 the pendency of litigation. See, e.g., Farmers’ R.R. Co. v. Reno, Oil Creek & Pithole Ry. Co.,
To be sure, it is sometimes necessary to require a party who has recently disturbed the status quo to reverse its actions. Such an injunction restores, rather than disturbs, the status quo ante, and is thus not an exception to the rule. “Status quo” does not mean the situation existing at the moment the law suit is filed, but the “last peaceable uncontested status existing between the parties before the dispute developed.” 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948 (2d ed.1995).
In recent decades, most courts — and all federal courts of appeal — have come to recognize that there are cases in which preservation 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,
There are sound reasons of jurisprudence in support of the traditional view that preliminary injunctions that disturb the status quo require heightened justification. A preliminary injunction of any sort is an “extraordinary” and “drastic” remedy. See United States ex rel. Potawatomi Indian Tribe v. Enter. Mgmt. Consultants, Inc.,
It is one thing for a court to preserve its power to grant effectual relief by preventing parties from making unilateral and irremediable changes during the course of litigation, and quite another for a court to force the parties to make significant alterations in their practices before there has been time for a trial on the merits. See, e.g., Gittone,
Moreover, preserving the status quo enables the court to stay relatively neutral in the underlying legal dispute. The restrictions 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 relevant legal entitlements. The moving party is not given any rights, even temporarily, that would normally be his only if the legal dispute were resolved in his favor. For example, ownership disputes often raise concerns that the defendant in possession would overuse or waste the property before a complainant could regain possession through legal proceedings. Under those circumstances, equitable courts regularly enjoin the waste, ordering the defendant to preserve the property in statu quo. The general rule, however, is that except in the most exceptional 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 deprived of the interim ability to enjoy the property would often constitute irreparable harm. See, e.g., Farmers’ R.R. Co., supra; Morgan v. Smart,
Fundamentally, the reluctance to disturb the status quo prior to trial on the merits is an expression of judicial humility. As Judge Murphy points out, a court bears more direct moral responsibility for harms that result from its intervention than from its nonintervention, and more direct responsibility when it intervenes to change the status quo than when it intervenes to preserve it. See Opinion of Murphy, J., at 978. Moreover, like the doctrine of stare decisis, preserving the status quo serves to protect the settled expectations of the parties. Disrupting the status quo may provide a benefit to one party, but only by
Such is the effect of custom, that it not only reconciles us to any thing we have long enjoy’d, but even gives us an affection for it, and makes us prefer it to other objects, which may be more valuable, but are less known to us. What has long lain under our eye, and has often been employ’d to our advantage, that we 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 1164M7-19 (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 those 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 on these grounds:
[Tjhe 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 and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting 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).
Notwithstanding the tendency of those trained in economics to view opportunity costs as equivalent to actual expenditures, modern social science research has confirmed the reality of “loss aversion” (the tendency to attach greater value to losses than to foregone gains of equal amount) and the closely related “endowment effect” (the tendency to value already 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. Sin-den, Willingness to Pay and Compensation Demanded: Experimental 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 development, they would demand an average of $1,044 to give it up. Judd Ham-mack & Gardner 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 change. These involve not only direct
The status quo is also relevant to the credibility of the parties’ claims of irreparable harm. It is difficult to measure irreparable 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,
The status quo is also a useful reference point because litigants often have incentives to engage in counterproductive strategic behavior. A defendant facing the loss of property, for example, has a natural incentive to extract as much of the value of the land as possible before losing possession, even in ways that limit the land’s productivity for years to come. And even when doing so produces no advantages to the defendant, it is an unfortunate reality 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 injunctions 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 higher the costs to the defendant in complying, the more pressure he will feel to “bargain desperately to buy his way out of the injunction.” Am. Hosp. Supply Corp. v. Hosp. Prods., Ltd.,
A particularly important category of cases where the status quo will often be determinative of whether a court should provide preliminary relief is challenges to the constitutionality of statutes. When a statute is newly enacted, and its enforcement will restrict rights citizens previously had exercised and enjoyed, it is not uncommon for district courts to enjoin enforcement pending a determination of the merits of the constitutional issue. See, e.g., Eagle Books, Inc. v. Ritchie,
I thus join in the en banc court’s decision to continue 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 Heightened Standard?
This case satisfies even the heightened standard for preliminary injunctions. The applicable statute, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-l(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 government has not and cannot meet that burden on this record, and that the balance of equities is
Plaintiffs establish, and the government does not dispute, that enforcement of the CSA in this context would impose a substantial burden on a sincere exercise of religion. It is common ground that such a burden constitutes irreparable injury. The plaintiffs have thus established a pri-ma 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 evidence at the hearing regarding the government’s assertions of an interest in the health of hoasca users 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 hoasca use on UDVs ultimate likelihood of success on the merits, and on the balancing of the equities required for the grant of a preliminary injunction.
A
The dissent insists that the government is more likely 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 interest in full compliance with the obligations imposed by international treaties are sufficient to meet the compelling interest standard. He is silent on whether, even if the government’s interests in enforcement and compliance were adjudged compelling, the government has employed the least restrictive means at its disposal, as RFRA requires. 42 U.S.C.2000bb-l(b)(2).
The dissent is premised on the view that “RFRA was never intended to result in [a] case-by-case evaluation of the controlled 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 case.” Opinion of Murphy, J., at 18. On the contrary, that is precisely what RFRA instructs courts to do. The dissent does not make clear whether it interprets RFRA as precluding “case-by-ease evaluation” in all contexts, or whether this is a special 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-l(b) (emphasis added). That cannot be done without a case-by-case evaluation. “Thus, under RFRA, a court does not consider the ... regulation in its general application, but rather considers whether there is a compelling government reason, advanced in the least restrictive means, to apply the ... regulation to the individual claimant.” Kikumura v. Hurley,
Nor is there an implied exemption from RFRA in cases involving the controlled substances laws. By its terms, RFRA applies to “all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [enactment of RFRA],” unless the law “explicitly excludes such application by reference to this chapter.” 42 U.S.C.
Judge Murphy argues that “courts simply lack the institutional competence to craft a set of religious exemptions to the uniform enforcement” of the drug laws. Opinion of Murphy, J., at 983. 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 puts 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 impliedly exempt from RFRA scrutiny is especially surprising in light of the fact 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 Findings and Declaration of Purposes, 42 U.S.C. § 2000bb(a)(4) (criticizing Employment Division v. Smith,
The dissent asserts that courts applying the compelling interest test both before and after RFRA have “routinely rejected religious exemptions from laws regulating controlled substances,” and that “the same result should obtain in this case.” Opinion of Murphy., J., at 984-985 (citing cases). 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 “continually all day, through church services, through everything [they] do.” Olsen v. Drug Enforcement Admin.,
Even assuming RFRA’s compelling interest test applies, the dissent takes the position that “the government need turn
The dissent points to two such congressional findings. First, Congress has made a general finding that the “illegal importation ... and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.” Opinion of Murphy, J., at 983-984. Second, Congress has placed DMT on the list of Schedule I controlled substances, which implies that it “has high potential for abuse and is not safe to consume even under the supervision of medical personnel.” Id. These generalized expressions of the government’s interest in prohibiting hoasca are very similar to the sweeping statements of interest that the Supreme Court found wanting in Wisconsin v. Yoder,
Where fundamental claims of religious freedom are at stake, however, we cannot accept such a sweeping claim; 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 claimed Amish exemption.
406 U.S. at 221 ,92 S.Ct. 1526 (emphasis added). A similarly “searching examination” is required here, and can no more be satisfied by quotation of “sweeping claim[s]” in statutory preambles than it could in Yoder.
If Congress or the executive branch had investigated the religious use of hoasca and had come to an informed conclusion that the health risks or possibility of diversion are sufficient to outweigh free exercise 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 address the broad question of the dangers of all controlled substances, or all Schedule I substances, in the general run of cases. Such generalized statements are of very limited utility in evaluating the specific dangers of this substance under these circumstances, because the dangers associated with a substance may vary considerably from context to context.
Congress itself recognized this and gave the Attorney 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 manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety.
21 U.S.C. § 822(d) (emphasis added). Thus, the CSA itself recognizes that, despite Congress’s general findings about Schedule I substances, it may sometimes be “consistent with the public health and safety” to exempt certain people from its requirements. Indeed, the government evidently believed 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 controlled substance in Schedule I does not apply to the non-drug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration.” (emphasis added)).
Judge Murphy responds that 21 U.S.C. § 822(d) should not be construed as giving the Attorney General authority to exempt religious groups other than the Native American Church from registration without specific 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 he is wrong about the scope of the Attorney General’s authority under § 822(d),
Several factors make hoasca atypical in its likely health consequences. For instance, although DMT is typically taken intravenously 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 than typical intravenous or inhaled
Judge Murphy expresses disbelief that a claimant’s rights under RFRA could “turn on whether the adherent has a religious affinity for street drugs or more esoteric ones.” Opinion of Murphy, J., at 987. Of course it is true that in theory, at least, it is possible to have the same religious interest in shooting heroin as in 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 spurious 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 surprising if the differences between street drugs and more “esoteric” ones were irrelevant. See Olsen v. DEA,
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 court held that the Convention does not apply to the hoasca tea used by UDV. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,
To reverse on the basis of the Convention would require us to go far beyond what the record can support. After reviewing the initial briefs filed by the parties, the district court determined that the government’s strongest grounds for prohibiting UDV from using hoasca were based on concerns about the safety of drinking the tea and the risk of diversion to non-religious uses.
More to the point, the government utterly failed to carry its statutory burden (42 U.S.C. § 2000bb-l(b)(2)) of demonstrating that complete prohibition of hoasca is the “least restrictive means” of furthering its interest in compliance with the 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 mechanism by which the government may protest a scheduling decision made under Article 2 of the Convention. When the government receives notice of a scheduling decision pursuant to Article 2 of the Convention, if the requirements demanded are not met by existing controls, the Secretary of State may “ask 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 drug or substance from the schedules under the Convention or to transfer the drug or substance to a schedule under the Convention different from the one specified in the schedule notice.” 21 U.S.C. § 811 (c)(3)(C)(iii) & (iv). Article 2 of the Convention creates a process for a signatory state to request a reconsideration of a scheduling decision already made, and in considering that request, the Commission is permitted to take into account “economic, social, legal, administrative and other factors it may consider relevant.” Article 2(1), (5), (6). The availability of these procedures suggests that compliance with the Convention is not wholly inconsistent with the needs of signatory states to tailor some scheduling decisions to local requirements.
The Convention allows signatory states at the time of signature, ratification, or accession to make a reservation for indigenous plants traditionally used by “small, clearly determined groups in magical or religious rites.” Article 32(4). To interpret the Convention rigidly, as having no possibility of accommodation for new religious groups (or groups newly arriving in the United States), for which no reservation was sought at the time, raises troubling constitutional concerns of denominational discrimination. See Olsen, 878 F.2d at 1461. We should not lightly assume this is the correct interpretation of the Convention.
In the case of peyote, as the district court pointed out,
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 regarding the status of hoasca or to
To be sure, treaty compliance might well implicate governmental interests beyond the health and safety interests considered above. For example, if it could be shown that if the United States failed to proscribe hoasca, another country would seize upon that as an excuse to refuse to proscribe 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 the treaty would interfere with the ability of the United States to demand cooperation from other nations. But while some level of deference to Congressional and Executive findings is appropriate in the context of foreign relations, this affidavit does not provide any information specific enough to be relevant in assessing 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 to blatant disregard for the treaty as a whole, are equally damaging to the diplomatic interests of the United States. He made no mention of whether the International Narcotics 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 government presented an affidavit about the particular harms that this particular infraction would cause, it might be a different matter. See Ashcroft, — U.S. at -,
B
Even if UDV were likely to prevail on the merits, the dissent believes this to be one of those rare cases in which the balancing of the equities would dictate that the injunction not issue. See Opinion of Murphy, J., at 996. The disagreement rests, I think, on whether the statutory policies and 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 probability of success on the merits. I believe Judge Murphy’s dissent is wrong to disregard RFRA in balancing the equities. That is not because RFRA implicitly modifies the standards that apply to preliminary injunctions; I agree the normal standards remain in place unless Congress clearly manifests an intent to modify them. See Weinberger v. Romero-Barcelo,
‘Balancing the equities’ when considering whether an injunction should issue, is lawyers’ jargon for choosing between conflicting public interests. When Congress itself has struck the balance, has defined the weight 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,
By “restor[ing]” the compelling interest test of Sherbert v. Verner,
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 demonstrating that the third and fourth preliminary injunction factors ... weigh in its favor.” See Opinion of Murphy, J., at 983. The government’s evidence, on this record, demonstrates only that there might be 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 interest in prohibiting substances that are “just as likely to be dangerous as ... safe”). But under RFRA, mere possibilities, based on limited evidence supplemented by speculation, are insufficient to counterbalance the certain burden on religious practice caused by a flat prohibition on hoasca. See United States v. Hardman,
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 invalidity would clearly apply) as arguments about the equities (where it is disregarded). That approach is unprecedented. When the government fails to demonstrate its compelling interest in burdening a constitutional right, courts routinely find that, in the absence of a compelling justification for interference, the balance of harms and public interest also favor protecting the moving party’s burdened rights. See, e.g., Fifth Ave. Presbyterian Church v. City of New York,
If there was any doubt before, the Supreme Court’s recent opinion in Ashcroft v. ACLU, — U.S. -,
By the dissent’s logic, the Court should have gone on to reverse the district court’s preliminary injunction on the theory that with respect to the balance of harms and public interest prongs, it was not the government 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 fact 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 evidence as to the effectiveness of filtering software.... For us to assume, without proof, that filters are less effective than COPA would usurp the District Court’s factfinding role. By allowing the preliminary injunction to stand and remanding for trial, we require the Government to shoulder its full constitutional burden of proof respecting the less restrictive alternative argument, 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 constitutional burden of proof respecting the less restrictive alternative argument.”
C
Even putting aside any special features of RFRA or strict scrutiny more generally, there is a more basic problem with the dissenters’ approach. While Judge Murphy is correct to insist that UDV carry its 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 remaining factors, thereby misconceiving the relationship between the four preliminary 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 error favoring the other. See, e.g., Ashcroft, — U.S. -at -,
Although not always explicitly, courts commonly evaluate the balance of harms in light of the likelihood of success. See, e.g., Abbott Labs. v. Mead Johnson & Co.,
D
Besides insisting that UDV has not met its supposed burden of disproving the government’s interest, Judge Murphy’s dissent also suggests several substantive reasons for finding that the balance of harms favors the government. First, he relies on the government’s general interest in enforcing the law. See Opinion of Murphy, J., at 993-994, quoting New Motor Vehicle Bd. v. Orrin W. Fox Co.,
The government also stresses its interest in uniform enforcement of the law and avoiding the burdens of case-by-case management of religious exemptions, raising concerns that if UDV is allowed an exemption in this case, it will make enforcement of the CSA (and the Convention) unworkable by encouraging a host of spurious
Finally, even when the government is able to demonstrate a compelling interest under RFRA, it remains necessary to establish that there is no other way of furthering that interest that would have less impact on the religious exercise. See Yoder,
This case, like Hardman, raises the question of why an accommodation analogous to that extended to the Native American Church cannot be provided to other religious believers with similar needs. As the panel majority noted, the apparent workability of the accommodation for Native American Church peyote use strongly suggests that a similar exception would adequately protect the government’s interests here. See O Centro,
E
All told, this is the unusual case in which the plaintiff not only prevails on each of the four preliminary injunction factors, but does so with sufficient clarity that a preliminary injunction is warranted even though it would disturb the status quo. The dissent does not challenge that the plaintiff would suffer serious and irreparable injury from continued prohibition of its religious sacrament. With the burden on the government to prove that its interest in enforcing the CSA against religious hoasca use is compelling but the evidence in support of that interest no better than “in equipoise,” the plaintiff has also demonstrated a likelihood of success on the merits. The same state of the record demonstrates conclusively that the plaintiff prevails on the other two factors. With a proven interest of high order on one side, and mere uncertainty, or “equipoise,” on
In conclusion, courts should issue preliminary injunctions that disturb the status quo only when the traditional balance is strongly in the plaintiffs favor, but on this record, plaintiff UDV has satisfied that demanding test.
. Judges Seymour and Murphy have each written opinions that concur in part of the holding of the en banc court and dissent from the other part. For convenience, I will refer to those portions of these opinions that dissent from the en banc holding as a "dissent,” and to those portions that concur in the holding as a "concurrence.” I join the per cu-riam opinion in its entirety. I join Part I of Judge Murphy’s separate opinion, and Part II of Judge Seymour’s separate opinion, on the understanding that the analysis holds "even under the heightened standard affirmed by a majority of this court.” Opinion of Seymour, J., at 1011.
. This, too, is a traditional principle of equity practice. See, e.g., Fredericks v. Huber,
. Some states continue to make preservation of the status quo a necessary requirement for all preliminary injunctions. See, e.g., Postma
. I am puzzled by the dissent’s suggestion that abandoning heightened scrutiny for preliminary injunctions that disturb the status quo would "bring our jurisprudence in closer accord” with "other circuits.” Opinion of Seymour, J., at 1000-1001 citing In re Microsoft Corp. Antitrust Litig.,
[W]e have required the movant to meet a higher standard where: (i) an injunction will alter, rather than maintain, the status quo, or (ii) an injunction will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits.
A primary purpose of a preliminary injunction is maintenance of the status quo until a decision on the merits of a case is rendered. A mandatory preliminary injunction compelling issuance of a building permit fundamentally alters the status quo.... A party seeking a mandatory preliminary injunction that will alter the status quo bears a particularly heavy burden in demonstrating its necessity."
Acierno v. New Castle County,
. The text and legislative history of the CSA suggest that Congress meant to give the Attorney General authority to make other religious exemptions. See generally Native American Church v. United States,
. Peyote use by Native American Church groups within the United States is permitted by an express reservation to the Convention.
. In the free exercise/RFRA context, it is important to note that evidence of a compelling government interest rebuts the plaintiffs pri-ma 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 treatment. To the extent that an employer makes such a showing, it does not present considerations that outweigh the plaintiffs interest in a nondiscriminatory workplace; rather, it undercuts the plaintiff's claim of discrimination. Thus, if an employer’s case for a nondiscriminatoiy motive is in equipoise, then it follows that the plaintiff's case for discrimination is also in equipoise. In that context, the dissent’s view of the consequences of equipoise as to the government’s showing is well-founded; in the RFRA context, it seems mistaken.
. The dissent argues that the right at issue in this case is statutory, rather than constitutional, making several of the cases cited above inapposite. Opinion of Murphy, J., at 995 n. 17. But RFRA dictates that the government must meet the same exacting standard as when it seeks to justify a burden on a constitutional right.
. The dissent complains that this passage "does not relate in any fashion” to the balance of the harms or public interest factors. Opinion of Murphy, J., at 997. This is not correct. The Court referred to "important 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, - U.S. at -,
Dissenting Opinion
dissenting:
I dissent, with great respect for the opinions that hold 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 important 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 tests, our form of words in expressing the test is of minimal utility. District courts will continue to consider the factors we list and reach the result they believe 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 unlikelihood that UDV will ultimately prevail on the merits. Applying pre-Smith Supreme 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 Controlled Substances Act. See Employment Div. v. Smith,