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
