|  Members
of the ayahuasca-using religious group known as the Uniao Do Vegetal (UDV),
won a major legal victory on Monday (August 12, 2002), when a federal court ruled
that the group’s use of ayahuasca was likely protected under the Religious
Freedom Restoration Act (RFRA). Ayahuasca (also known as hoasca) is a visionary
tea that serves as the sacrament of the UDV religion. In May 1999, US Customs
agents seized several bottles of ayahuasca imported from Brazil for use by members
of UDV's US Branch headquartered in Santa Fe, New Mexico.
According to the
US government, ayahuasca is an illegal controlled substance in the same class
as LSD, because it contains dimethyltryptamine (DMT) a “hallucinogenic”
drug under the US Controlled Substance Act (CSA). In Brazil, ayahuasca is legal
and is expressly recognized as the sacrament of several Brazilian-based churches,
including the UDV. After seizing the tea, the US government failed to file
criminal charges but refused to return the tea to the UDV. As a result, the UDV
filed a lawsuit alleging that the government’s seizure and continued holding
of its sacrament was unconstitutional and also violated the Religious Freedom
Restoration Act as well as international laws and treaties. In Monday’s
61-page ruling, Judge James Parker of the United States District Court for the
District of New Mexico, found that although the government’s actions did
not violate the UDV’s free exercise rights under the First Amendment, the
seizure of the church’s sacrament appears to have been in violation of the
Religious Freedom Restoration Act, a federal law passed by Congress in 1993 for
the purpose of providing greater protection to religious free exercise than even
the First Amendment (which had been significantly watered-down by a 1990 United
States Supreme Court decision. See, Employment Division, Dept. of Human Resources
of Oregon v. Smith, 494 U.S. 872 (1990)). Judge Parker found that the “Government
has not shown that applying the [Controlled Substance Act’s] CSA’s prohibition
on DMT to the UDV’s use of hoasca furthers a compelling interest. This Court
cannot find, based on the evidence presented by the parties, that the government
has proven that hoasca poses a serious health risk to members of the UDV who drink
the tea in a ceremonial setting. Further, the Government has not shown that permitting
members of the UDV to consume hoasca would lead to significant diversion of the
substance to non-religious use.” (Opinion, p. 32.) Judge Parker’s
opinion is unique and interesting for its detailed examination of DMT, although
his conclusions on some of these matters seem erroneous. (The Center for Cognitive
Liberty & Ethics, of which the author is legal counsel, provided legal research
assistance to the UDV arguing that neither the plants that comprise ayahuasca,
nor the tea itself, are controlled substances.) Judge Parker’s opinion
is the first from a federal district court to discuss such things as DMT-containing
Phalaris grass (“Individuals with phalaris [sic] grass in their lawns may
possess DMT in some sense. However, if there are no indications that the people
with phalaris lawns are consuming the grass, law enforcement might legitimately
choose not to prosecute…”), and the natural occurrence of DMT in the
human brain (“The Plaintiffs observe that many plants and animals, including
humans, contain DMT; and the Plaintiffs imply that because the CSA cannot be read
to ban humans, that the statute must apply only to synthetic DMT. [But,] [s]imply
because banning humans would be absurd does not mean that banning any non-synthetic
DMT found elsewhere would be absurd”). Judge Parker also discusses Dr. Rick
Strassman’s study in which DMT was administered intravenously to volunteers. In
a lengthy section of his opinion, Judge Parker considered extensive evidence of
whether UDV members use of ayahuasca carries medical risk. On this issue, Judge
Parker found that the evidence presented by the UDV and the government concerning
the health risks to UDV members was “essentially, in equipoise.” Because
the government bore the burden of proof on the issue, Judge Parker found that
the government had not proved that the use of ayahuasca in the context of a UDV
ceremony was harmful to members. Finally, Judge Parker found that the government
had not established that preventing the UDV from using ayahuasca was required
pursuant to US obligations under the 1971 Convention on Psychotropic Substances. A
hearing is scheduled in the case for August 19, 2002, to determine the details
of the preliminary injunction protecting the UDV’s use of ayahuasca. Richard
Glen Boire
is legal counsel for the Center for Cognitive
Liberty & Ethics.
Web site: www.cognitiveliberty.org
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