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Federal Court Rules in Favor of
Ayahuasca-using Church

Richard Glen Boire

Members of the ayahuasca-using religious group known as the Uniao do Vegetal (UDV), won a major legal victory on 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 the 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 “hal-lucinogenic” Schedule I 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 the ayahuasca sacrament was unconstitutional, violated the Religious Freedom Restoration Act, and international laws and treaties.

In the 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 (RFRA). The RFRA is 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 US 872 (1990).) Judge Parker found:

Government has not shown that applying the [Controlled Substance Act’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 (Unaio do Vegetal v. John Ashcroft, 1647 JF/RLF(2002) Opinion, p. 32).

Judge Parker’s opinion is unique and quite interesting for its detailed examination of DMT, although his conclusions on some of these matters seem erroneous.1 Judge Parker’s opinion is the first from a federal district court to discuss such things as DMT-containing Phalaris grass:

During the hearing, the Plaintiffs presented evidence showing that certain plants growing in this country, including phalaris grass, contain DMT. The Plantiffs’ evidence included a document showing that the United States Department of Agriculture even recommends using one kind of phalaris for erosion control. The Plaintiffs appear to argue that if people are allowed to grow phalaris grass for nonreligious reasons, while the UDV’s supply of hoasca is confiscated, this Court should conclude that the federal government must be discriminating against the Plantiffs on the basis of religion. The Court does not believe that the evidence about phalaris would necessarily lead to that conclusion. Individuals with phalaris 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, for reasons other than that the grass is being used for the secular purpose of having a lawn. Federal law enforcement entities might prioritize focusing on the UDV’s hoasca use not because the use is religious, but instead because UDV members make much more extensive use of hoasca by personally ingesting it than a person with a phalaris lawn makes the grass. Before their tea was confiscated, UDV officials regularly distributed the tea to church members for consumption.

Some evidence presented at the hearing suggested that non-religious consumption of plants containing DMT does take place in the United States. This evidence included materials taken from the internet—advertisements for plants containing DMT and testimonials from people claiming to have used teas similar to hoasca.

Judge Parker also addressed 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,] simply because banning humans would be absurd does not mean that banning any non-synthetic DMT found elsewhere would be absurd.

Judge Parker also discussed Dr. Rick Strassman’s

study in which DMT was administered intravenously to volunteers.2

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 in accordance with to US obligations under the 1971 Convention on Psychotropic Substances.

Further hearings are scheduled to determine the details of the preliminary injunction protecting the UDV’s use of ayahuasca.

Notes

1. The Center for Cognitive Liberty & Ethics provided legal research assistance to the UDV arguing that neither the plants that comprise ayahuasca, nor the tea itself, are controlled substances. Judge Parker rejected this argument, finding that “The Court is constrained to conclude that hoasca tea...constitutes a ‘material, compound, mixture, or preparation which contains any quantity’ of DMT, within the plain meaning of the [CSA].”

2. A report of one of Dr. Rick Strassman’s DMT experiments can be found online at:

http://65.18.176.18/news-letters/v03n1/03107dmt.html

Dr. Strassman’s Web site can be accessed at:

http://www.rickstrassman.com 

Judge James Parker’s decision can be read online at: http://www.cognitiveliberty.org/pdf/udv_decision.pdf