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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