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August 13, 2002

See: UDV case index

Federal Court Rules in Favor of Ayahuasca-using Church
By Richard Glen Boire

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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