As of November 16, 2010, the criminal charges against Taita Juan have been dropped. Within the next couple of days, the court will begin the process of transferring Taita Juan out of prison to the immigration authorities who will make arrangements for his return to Colombia.

On Tuesday, October 19, 2010, the Indigenous Colombian healer was detained in the Houston International Airport. He was formally arrested by ICE (Immigration and Customs Enforcement) for possession of his traditional medicine Ayahuasca.

Taita Juan Agreda Chindoy is an indigenous Cametsa traditional healer from the Sibundoy Valley in the Alto Putumayo of Colombia. In addition to being recognized by the Colombian Ministry of Health, he is a recognized lineage holder of traditional Amazonian medicine and an established healer and leader in his community.

According to a report from Caracol Radio, one of the main radio networks in Colombia,”a Federal Court ruled his release when his attorney showed that Yage (ayahuasca) is a medicinal plant used by indigenous as traditional medicine, and does not generate dependency”.

Among Agreda’s legal defense team is Nancy Hollander. Nancy was the lead attorney that was successful before the Supreme Court in granting the UDV church legal authorization for the religious use of ayahuasca.

Support came from around the world as many people came to Juan’s side, both physically and spiritually, including reports that Colombian embassy officials visited Juan last week, reportedly offering their support. Indigenous rights groups, human rights organizations and networks of the vast ayahuasca community are also among those who came to his aid.

More than €1800 gathered from fundraising initiatives in Europe has been presented to Juan’s family who are “overwhelmed with joy”. The Free Taita Juan campaign raised over $14,000 for his legal defense.

Received 9 June 2006; accepted 1 November 2006. Available online 4 December 2006.

International Journal of Drug Policy 19 (2008) 297–303

Homepage (www.kentupper.com)

Abstract

Ayahuasca is a tea made from two plants native to the Amazon, Banisteriopsis caapi and Psychotria viridis, which, respectively, contain the psychoactive chemicals harmala alkaloids and dimethyltryptamine. The tea has been used by indigenous peoples in countries such as Brazil, Ecuador and Peru for medicinal, spiritual and cultural purposes since pre-Columbian times. In the 20th century, ayahuasca spread beyond its native habitat and has been incorporated into syncretistic practices that are being adopted by non-indigenous peoples in modern Western contexts. Ayahuasca’s globalization in the past few decades has led to a number of legal cases which pit religious freedom against national drug control laws. This paper explores some of the philosophical and policy implications of contemporary ayahuasca use. It addresses the issue of the social construction of ayahuasca as a medicine, a sacrament and a “plant teacher.” Issues of harm reduction with respect to ayahuasca use are explored, but so too is the corollary notion of “benefit maximization.”

Keywords: Ayahuasca; Entheogen; Hallucinogen; Religious freedom; Benefit maximization

Introduction

In February 2006, the United States Supreme Court ruled that religious freedom may trump U.S. drug laws with respect to the ceremonial use of ayahuasca, a tea indigenous to the Amazon and long revered by its peoples (Hollman, 2006). The case of Gonzales v. O Centro Espirita Beneficente União do Vegetal (UDV) addressed the question of whether ‘hoasca,’ which contains the Schedule I substance dimethyltryptamine, could legally be consumed as a sacrament by the Brazilian-based UDV church according to the provisions of the Religious Freedom Restoration Act (RFRA). Passed by Congress in 1993 in response to the question of whether the Native American Church had the freedom to use ceremonially the scheduled drug peyote, the RFRA established that the limits of drug laws in the United States were at the boundaries of religious liberty.

The U.S. ayahuasca case is just one of several similar ones in countries such as Australia, Italy, the Netherlands and Spain. The issues raised by these court actions centre not only on religious freedom, but also on the substance in question: ayahuasca. Although somewhat obscure in pantheon of psychoactive substances, ayahuasca has begun to thrive beyond the Amazon. Practitioners, policy-makers and researchers face significant challenges in responding to psychoactive substance use that resists traditional conceptualizations and categorizations of illegal drug “abuse.” In this article, I briefly describe ayahuasca, its effects and its traditional and contemporary uses. I next explore some philosophical and policy issues raised by the “globalization” of ayahuasca, the burgeoning world-wide interest in and use of the tea. This discussion leads to a questioning of the deficit model of drug use implicit in the term “harm reduction” with respect to ayahuasca, which arguably warrants a re-framing such that policy discussions address the corollary concept of “benefit maximization.”

Ayahuasca and its effects

“Ayahuasca” is a word from the language of the Quechua people, a group indigenous to the Amazonian regions of Peru and Ecuador (Metzner, 1999). Translating as “vine of the soul,” ayahuasca refers both to Banisteriopsis caapi, a liana found in Western parts of the Amazon basin, and to a decoction prepared from B. caapi that typically contains other admixture plants. One of the most common admixtures to the ayahuasca tea is the leaf of Psychotria viridis, a plant from the coffee family. To avoid confusion, in this article the plant will be referred to by its botanical name, B. caapi, and the common tea preparation of the combination of B. caapi and P. viridis simply as ayahuasca.

The synergy between the respective psychoactive chemicals in B. caapi and in P. viridis is a remarkable pharmacokinetic interaction. The B. caapi vine contains harmala alkaloids, such as harmine and tetrahydroharmine, which are short-acting reversible monoamine oxidase (MAO) inhibitors. MAO inhibitors are a pharmacological class of antidepressant chemicals that function by preventing the breakdown of the monoamine neurotransmitters in the brain (Julien, 1998). P. viridis contains dimethyltryptamine, or DMT, a potent hallucinogen which is active when taken parenterally, but not orally (Shulgin, 1976). This is because the gastrointestinal tract also contains the enzyme monoamine oxidase, which metabolizes orally ingested DMT long before it can reach the brain. However, when DMT is ingested in conjunction with an MAO inhibitor – as is the case with the ayahuasca tea – its immediate metabolism is delayed, thus enabling it to reach the brain (McKenna & Towers, 1984; Ott, 1999). From a biomedical perspective, then, ayahuasca’s unique effects are a function of the combination of DMT and the potentiating psychoactive harmala alkaloids ([Callaway et al., 1999] and [McKenna et al., 1984]). In contrast, the explanation of ayahuasca’s effects by Amazonian indigenous peoples reflects a paradigm involving spiritual domains and supernatural forces, an account corroborated if not validated by the phenomenology of the ayahuasca experience.

The extensive range of ayahuasca preparations in the pharmacopoeias of different indigenous peoples throughout the Amazon region indicates that its use long predates first contact with Europeans. The variety of names given to B. caapi, such as yagé, caapi, natem, oni, nishi, also suggests widespread historic use (Luna, 1986). However, the legacy of colonialism in South America, as with so many other parts of the world, has irredeemably impacted indigenous peoples and their traditions, including cosmologies in which ayahuasca has played a central role (Whitten, 1981). Colonial and religious authorities tended to condemn ayahuasca shamanism as diabolical and discouraged its practice ([Taussig, 1986] and [Vickers, 1981]). Nevertheless, the ritual use of ayahuasca among indigenous peoples of the Amazon continues to the present day, albeit with varying degrees of Christian syncretism through past and present influence of missionaries in the region (Luna, 1986). Likewise, cross-cultural transfer of ayahuasca healing knowledge among indigenous peoples and to non-indigenous people continues to occur ([Gray, 1997], [Luna, 2003] and [Pollock, 2004]); this includes mestizo vegetalistas who offer alternative health treatments to urban dwellers in countries such as Peru (Dobkin de Rios, 1973).

The specifics of traditional Amazonian ayahuasca practices – as with the name for the tea itself – vary across different cultural groups, but there are some common elements, most notably a ceremonial context for its consumption. Rituals are conducted by an experienced healer, or ayahuascero, who has undergone many years of training to become adept in administering the brew. Preparation for this role includes long periods of isolation, sexual abstinence and adherence to strict dietary taboos involving certain foods or meats. Some of these behavioural directives apply also to participants in the ritual who will drink, as they risk invoking untoward spiritual forces if these are violated. Rituals invariably incorporate chanting or singing of icaros – special songs through which healing, divination or connecting with spirits may be effected – and often include an accompanying use of other sacred plants, such as tobacco ([Demange, 2002] and [Luna, 1986]). In many respects, ayahuasca is a paradigmatic entheogen, or psychoactive substance used for spiritual purposes (Ruck, Bigwood, Staples, Ott, & Wasson, 1979; Tupper, 2002).

Ayahuasca’s psychoactive effects are qualitatively similar to those of other drugs from the same pharmacological class, such as LSD and psilocybin, yet they are also phenomenologically unique. The effects generally begin 30–40 min after ingestion, peak by about 2 h and have completely subsided by 6 h (Riba et al., 2003). Ayahuasca produces moderate cardiovascular stimulation, including moderate increases in heart rate and diastolic blood pressure (Riba et al., 2003). Users report sensations of visual or auditory stimulation, synaesthesia, psychological introspection and strong emotional feelings ranging from occasional sadness or fear to elation, illumination and gratitude (Shanon, 2002). The tea itself has a bitter taste and cannot be described as pleasant to drink. Emesis, or vomiting, is not uncommon during the ayahuasca experience, an effect which is generally regarded as a spiritual or physical cleanse.

The long-term effects of ayahuasca on regular drinkers have not yet been well studied by medical scientists, as the tea has remained relatively obscure until the last few decades of the 20th century. Preliminary small-scale investigation on members of Brazilian ayahuasca churches suggests that the tea is not physiologically or psychologically harmful when used in ceremonial contexts (Barbosa, Giglio, & Dalglarrondo, 2005; [Callaway et al., 1999] and [Grob et al., 1996]; Riba & Barbanoj, 2005). Shanon (2002) has analysed the phenomenology of the ayahuasca experience from the perspective of cognitive psychology, work that suggests many avenues of future psychological research. Evidence for ayahuasca dependence is lacking; indeed, some have suggested ceremonial ayahuasca use may have therapeutic applications as an adjunct to treatment for addictions ([Mabit, 2002], [McKenna, 2004] and [Winkelman, 2001]).

Contemporary ayahuasca uses

In addition to continued ayahuasca use among traditional indigenous and mestizo denizens of the Amazon, other types of ayahuasca practices have arisen in modern times. The inevitable mixing of indigenous and dominator cultures in South America over time has resulted in hybridities of ayahuasca use that continue to evolve through the forces of globalization. Brazil has been the source of several syncretistic religious movements that combine elements of indigenous ayahuasca use, African spiritualism and Christian liturgy. These include the Santo Daime, founded in the 1930s by Raimundo Irineu Serra; the União do Vegetal, founded in 1961 by José Gabriel da Costa; and the Barquinha, a group, which split from the Santo Daime in 1945 (MacRae, 2004). As with traditional indigenous ayahuasca practices, these modern groups incorporate a strong ritual context in their uses of ayahuasca. Towards the end of the 20th century, chapters of the Santo Daime and the União do Vegetal started to be established beyond Brazilian borders, in such countries as in Australia, Canada, France, Germany, Japan, the Netherlands, Spain and the United States.

The Santo Daime is both the oldest and the most internationally active of the syncretistic Brazilian ayahuasca churches. Its origins trace back to the 1920s, when its founder – a Brazilian rubber tapper named Raimundo Irineu Serra or Mestre Irineu – encountered the tea through contact with Amazonian indigenous peoples in remote forests of the Brazilian frontier state of Acre (Alverga, 1999). The Santo Daime remained obscure and geographically isolated in the rural Amazon for many decades. However, when Mestre Irineu died in 1971, the church split into several different factions, one of which – the Eclectic Center of the Universal Flowing Light, or CEFLURIS – has been central in the Santo Daime’s subsequent expansion (MacRae, 2004). From the 1970s, CEFLURIS has attracted middle-class Brazilians and international visitors to its rituals and established chapters in urban Brazilian centres and more recently overseas (MacRae, 1998). After a period of legal vicissitudes, in which the status of ayahuasca was uncertain, the Brazilian government in 1991 determined that the benefits of its ritual use outweighed any potential risks and recognized the rights to sacramental use of the tea by groups such as the Santo Daime and the UDV.

As a result of expansion into countries unprepared for the policy conundrums posed by non-indigenous entheogenic substance use, the Santo Daime and its adherents have faced legal action in several different countries in the past decade, including the Netherlands, Spain and Italy. In the Netherlands, as with the UDV case in the United States discussed above, the courts ruled in favour of religious freedom and the Santo Daime was granted the right to use its sacrament legally in Holland (Adelaars, 2001). In Canada, a chapter of the Santo Daime in the province of Quebec has applied for an exemption to the Canadian Controlled Drugs and Substances Act in hope of obviating a costly legal battle; the Canadian government is still considering the application (J.W. Rochester, personal communication, February 7, 2006). These cases epitomize the struggle between groups seeking the legitimation of the sacramental use of ayahuasca and governments in liberal democratic states endeavouring to uphold both religious freedom and punitive drug laws.

The forces of information and communications technology have also provided avenues for the expansion of use of ayahuasca-like preparations. A quick Internet search results in scores hits for websites selling live cuttings or dried samples of B. caapi, P. viridis and numerous other plants, such as Mimosa hostilis and Peganum harmala, that are botanical sources for dimethyltryptamine and harmala alkaloids. The Internet also abounds with information (and misinformation) about how to prepare ayahuasca-like brews and “trip reports” of first-hand accounts of experiences individuals have had with these ([Bogenschutz, 2000] and [Halpern and Pope, 2001]). Predictably, some amateur psychonauts or self-styled kitchen shamans have harmed themselves through experimenting with ayahuasca analogues in recreational contexts (Brush, Bird, & Boyer, 2003; Sklerov, Levine, Moore, King, & Fowler, 2005). However, it should be noted that reported adverse outcomes are extremely rare and have been sequelae to uncontrolled use of non-traditional preparations (Callaway et al., 2006).

Ayahuasca tourism has also become a cultural phenomenon in the Amazon at the turn of the 21st century. With growing awareness of ayahuasca in developed Northern countries has come the concomitant desire among some to seek “authentic” ayahuasca experiences in countries such as Peru, Ecuador and Brazil ([Dobkin de Rios, 1994] and [Winkelman, 2005]). The effects of ayahuasca tourism on both the local people and the economies of these regions are open to interpretation, but are significant and continuing to grow. Some indigenous healers in the Amazon have expressed concern about the ill-trained or manipulative locals who may exploit naïve or undiscerning travellers and potentially cause inadvertent harm through careless administration of ayahuasca (Dobkin de Rios, 2005).

The expansion of ayahuasca use can be expected to continue as public awareness of the tea grows and as it becomes further available both through commercial sales and through spiritual communities. Accounts of ayahuasca experiences and the tea’s purported spiritual and health benefits are beginning to appear in mainstream English news media stories ([Creedon, 2001], [Montgomery, 2001] and [Salak, 2006]). Some of the effects of ayahuasca – for example, its tendency to provoke vomiting and its sometimes heavy emotional and psychological effects – may discourage casual experimentation. However, its relative obscurity and lack of negative associations from the demonizing of such hallucinogens as LSD, psilocybin and peyote in the late 1960s and early 1970s, as well as growing interest in alternative medicines and therapeutic practices, may increase ayahuasca’s uptake among the general public. Thus, ayahuasca presents unexpected challenges to judicial systems and policy-makers, who struggle to balance tensions between criminal justice, public health and human rights interests.

Constructing ayahuasca—ontology

One of the conundrums ayahuasca presents for contemporary drug policy is ontological. Ontology is a branch of metaphysics that involves the philosophical analysis of existence and the categorization of reality. Modern drug laws and policies are ontologically predicated on a mechanistic view of the universe, as they are socio-political extensions of the modernist project of scientific materialism. According to this view, drugs and their effects can be wholly explained by the sciences of biochemistry and psychopharmacology. Reinarman and Levine (1997) identify this as pharmacological determinism, the belief that a drug’s effects are caused solely by its pharmacological properties, irrespective of psychological idiosyncrasies or social context. However, a constructivist perspective acknowledges that beyond this, drugs are powerful cultural constructs. The effects they produce on human consciousness and behaviour are functions not just of their biochemistry, but also of the rich symbolic and social meanings they are given.

From a constructivist perspective, drugs cannot be fully understood merely by analyzing their chemical structures and how these interact with neurophysiological systems. One needs to consider also the meanings underlying their growth, production, preparation, consumption and categorization, all of which can vary across cultures and over time. For example, the concept of “medicine” is a cultural construction that in contemporary Western societies is given meaning through the powerful institutions of medical practitioners and systems. Particular substances are deemed medicines not by any properties inherent in them, but by virtue of their being blessed as such by members of powerful professional classes (i.e. physicians and pharmacists). Lysergic acid diethylamide (LSD) had this blessing in the 1950s and early 1960s, when it was considered a promising psychiatric medication, but was quickly delegitimized when its non-medical use became headline news and the subject of moral panic ([Dyck, 2005], [Littlefield, 2002] and [Sessa, 2005]). Alcohol was also once deemed a medicine, whereas today in most societies it is a recreational (or sometimes ceremonial) substance, except in some Muslim states, where it is a dangerous prohibited drug ([Baashar, 1981] and [Heron, 2003]). Indeed, the common phrase “alcohol and drugs” betrays a lingering implicit ontological commitment to the notion that alcohol is something other than a drug.

Ayahuasca quintessentially defies the simplistic categorization of being merely a “drug”—or, in the terminology of the U.S. National Institute on Drug Abuse, a “drug of abuse.” Indeed, ayahuasca has been culturally constructed by its various users as a medicine, a sacrament and a “plant teacher.” In the Amazon, ayahuasca is considered a master plant, both a diagnostic tool and a force for healing ([Demange, 2002] and [Luna, 1984]). Along with tobacco, it is one of the most important substances in the pharmacopoeias of Amazonian folk healers (Bennett, 1992). Yet ayahuasca has also come to be culturally constructed as a sacrament by religions such as the Santo Daime and the UDV. For their adherents, the tea is considered a divine gift allowing contact with forces and energies from which humans are ordinarily cut off in our quotidian lives. And ayahuasca is quintessentially a “plant teacher,” a natural divinatory mechanism that can provide esoteric knowledge to adepts skilled in negotiating its remarkable effects. These conceptualizations pose a challenge to modern Western drug policies and laws, which are premised on a rationalist/positivist ontology that constructs psychoactive substances essentially as chemicals and their effects as simply mechanistic.

Ayahuasca, globalization and public policy

The policy implications of contemporary ayahuasca practices can be usefully explored by regarding them as a cultural manifestation of globalization. By the term globalization, I refer to the economic, political, technological and cultural transactions and integrations resulting from the increased ease of movement for people, goods and ideas at the turn of the 21st century. As Collier and Ong (2005) observe, “[g]lobal phenomena … have a distinctive capacity for decontextualization and recontextualization, abstractability and movement, across diverse social and cultural situation and spheres of life” (p. 11). Thomas (2005) cites the resurgence of religion – including the spread of new religious movements and cultural and religious pluralism – as one of the “megatrends” of the 21st century. In response, states and faith communities alike “are being forced more than ever before, to define, defend or redefine the social boundaries between the sacred and the profane in the face of modernization and globalization” (Thomas, 2005, p. 26). The evolving spiritual practices whose nexus is the ayahuasca tea exemplify well these trends and tensions of globalization.

Ayahuasca has begun its ascendancy into popular global consciousness at a time of unprecedented interpersonal and intercultural knowledge exchange. One issue this raises is that of cultural appropriation. I would be remiss not to acknowledge humbly that ayahuasca is an exemplar of indigenous knowledge, a shamanic technology or cognitive tool that has long been what may best be described as intellectual property of the native peoples of the Amazon. Accordingly, its commodification, commercialization and secularization are concerning trends. The issue of intellectual property came to public attention in the 1990s when representatives of Amazonian tribes formally protested against the U.S. patent office, which had naïvely granted a patent on ayahuasca to an American pharmaceutical entrepreneur—it was subsequently rescinded (Fecteau, 2001). However, dismissing the growth of interest in ayahuasca as merely appropriation is somewhat simplistic. The genesis of the Brazilian ayahuasca churches – which are in many respects primary drivers of ayahuasca’s globalization – was arguably a by-product of cross-cultural fertilization (MacRae, 2004). There is also reason to believe that, in the age of wikis, file-sharing and the open source movement, the concept of intellectual property is rapidly becoming a quaint anachronism, a development that concerns corporations and academics as much as it does indigenous peoples.

Curiously, in the 1960s, ayahuasca largely stayed off the Western cultural radar despite increased popular interest in visionary plants such as peyote and psilocybin mushrooms. Unlike only a few decades ago, however, the collective mindscape of the early 21st century is being expanded and shaped by revolutionary information and communications technologies (Friedman, 2005). Thus, insofar as ayahuasca is being variously and simultaneously culturally constructed in the (post)modern world, novel forces are at play. For example, authorities whose interests might be served by the dissemination of inaccurate or deprecatory representations of ayahuasca – as they have been countless times in the past for other illegal drugs – are hard-pressed to challenge the size and scope of factual information easily available to the lay public. The use of the Internet by ayahuasca aficionados allows for a diversity of thought and expression about the tea and its effects that poses significant challenges to policy-makers.

It is my contention that the policy issues presented by contemporary ayahuasca practices are not easily dealt with from the traditional framing of modern drug policies. Schön (1993) proposes that the framing of policy solutions for social issues is constrained by underlying, often implicit, “generative” metaphors. With respect to non-medical psychoactive substance use, two dominant constructions of the problem are identified by Marlatt (1996): drug use as a moral issue and drug use as a disease. The first constructs some drugs as intrinsically malevolent, imbuing them with agency and the power to override human free will. Implicit in this “malevolent agents” metaphor is the notion that people who use drugs are wicked and need to be punished; it is this generative metaphor that underpins the global regime of prohibition of (some) drugs. The second dominant metaphor constructs psychoactive substances as pathogens. This metaphor has become the predominant one in the field of public health, where it is prevalent in the discourses of treatment and prevention. With the “pathogens” metaphor, drug use is constructed as a disease against which youth need to be inoculated and for which people who use need to be treated.

The two dominant metaphors underlying current drug policies – “malevolent agents” and “pathogens” – are particularly unhelpful in framing policies with respect to entheogenic substance use. Ayahuasca’s long tradition of uses as a medicine, sacrament and plant teacher poses a challenge to such simplistic metaphorical categorizations. Rather, I submit that a shift to a generative metaphor of drugs as “tools” offers a much more nuanced way of conceiving of the risks and benefits posed by ayahuasca practices. Rather than essentializing psychoactive substances as inherently dangerous, to regard them as tools – ancient technologies for altering consciousness ([Eliade, 1964] and [Winkelman, 2000]) – allows for a realistic assessment of their potential benefits and harms according to who uses them, in what contexts and for what purposes. To be sure, as with the use of any tool, there are risks associated with ayahuasca use, especially for those who are not prepared for its effects or who treat it as a toy. However, both traditional and contemporary ceremonial ayahuasca practices suggest benefits that the tool metaphor better accounts for in terms of policy considerations.

The philosophy of harm reduction is also further illuminated by a shift to the generative metaphor of drugs as tools. To the extent that policy-makers or practitioners emphasize a behaviour’s potential risks, the harm reduction policy approach is justified. However, the tool metaphor for psychoactive substances warrants a corollary notion of “benefit maximization,” the other side of the harm reduction coin. Instead of approaching drug policy from a deficit perspective – implied by the “malevolent agents” and “pathogens” metaphors – the tool metaphor opens discursive avenues for realistic policy considerations of benefits as well as harms. Although harm reduction has been a valuable concept in challenging abstinence-based approaches to non-medical drug use and shifting policy to a more humane public health perspective, its limitations become apparent with the “drugs as tools” generative metaphor. Along these lines, the Health Officers Council of British Columbia (2005) has incorporated the concept of beneficial substance use in a recent policy discussion paper arguing for government regulation of currently illegal drugs; the paper explicitly makes reference to ceremonial use of ayahuasca (p. 5).

A traditional harm reduction approach to ayahuasca would emphasize similar general types of cautions as those for LSD, psilocybin or other psychedelic drugs. These include knowing and trusting the source of the substance, controlling set and setting (e.g. psychological preparation and physical surroundings), having a “sitter” who can be mindful of safety, not driving or engaging in other risky activities while under the influence, and discouraging use by individuals with underlying psychiatric disorders. It would also include specific cautions regarding diet and combining medications. The MAO-inhibitor effects of harmala alkaloids in the ayahuasca tea warrant dietary restrictions for foods containing the monoamine compound tyramine. Tyramine eaten in combination with MAO inhibitor drugs may result in hypertensive crisis. Likewise, selective serotonin reuptake inhibitors can have potentially harmful interactions with MAO inhibitors, so people taking these kinds of medications are advised to avoid ayahuasca (Callaway & Grob, 1998). Interestingly, indigenous ayahuasca practices in the Amazon also universally incorporate strict dietary and behavioural protocols (Andritzky, 1989).

A benefit maximization approach to ayahuasca use, by contrast, would involve the creation of policies to provide legitimate access to ayahuasca in ceremonial settings. This process would include considering a variety of policy levers at the disposal of public health authorities to ensure the minimization of risk (Haden, 2004). Such an approach might begin with the formalization of the harm reduction protocols listed above. It might also include enacting provisions to ensure ayahuasceros or spiritual leaders are skilled and competent in leading rituals (either through self-regulation or certification), inspecting and licensing facilities or centres where ayahuasca ceremonies are conducted, and regulating production of the tea to ensure it conforms to specified purity or potency (as is currently done in some countries with other natural health products). A benefit maximization approach would certainly entail further research into both the short- and long-term effects of ayahuasca and the social practices in which it is used, which may in turn provide further policy direction.

Conclusion

The growing interest in and use of ayahuasca by modern non-indigenous peoples poses significant conceptual challenges regarding drugs and drug policies. Ayahuasca has a rich history of use as a medicine, sacrament and plant teacher, cultural constructions that do not readily fit contemporary drug policy frames. The globalization of ayahuasca in the latter part of the 20th and the early 21st centuries is a phenomenon that demands reconsideration of some of the metaphysical and sociological presuppositions of contemporary drug policies. Already several legal cases have opened the door to granting religious freedom to the ceremonial use of ayahuasca. Accordingly, policy-makers would be well advised to consider other policy tools than criminalization to balance the competing interests of criminal justice, public health and human rights. With respect to harm reduction theory, the contemporary uses of ayahuasca lend weight to the corollary notion of benefit maximization.

References

Adelaars, 2001 Adelaars, A. (2001, 21 April). Court case in Holland against the use of ayahuasca by the Dutch Santo Daime Church [Retrieved May 24, 2006 from: http://www.sciencedirect.com/science?_ob=RedirectURL&_method=externObjLink&_locator=url&_cdi=6106&_plusSign=%2B&_targetURL=http%253A%252F%252Fwww.santodaime.org%252Fcommunity%252Fnews%252F2105_holland.htm].

Alverga, 1999 A.P. Alverga, Forest of visions: Ayahuasca, Amazonian spirituality, and the Santo Daime tradition, Park Street Press, Rochester, VT (1999).

Andritzky, 1989 W. Andritzky, Sociopsychotherapeutic functions of ayahuasca healing in Amazonia, Journal of Psychoactive Drugs 21 (1) (1989), pp. 77–89. View Record in Scopus Cited By in Scopus (10)

Baashar, 1981 T. Baashar, The use of drugs in the Islamic world, British Journal of Addiction 76 (3) (1981), pp. 233–243.

Barbosa et al., 2005 P.C.R. Barbosa, J.S. Giglio and P. Dalgalarrondo, Altered states of consciousness and short-term psychological after-effects induced by the first time ritual use of ayahuasca in an urban context in Brazil, Journal of Psychoactive Drugs 37 (2) (2005), pp. 193–201. View Record in Scopus Cited By in Scopus (6)

Bennett, 1992 B.C. Bennett, Hallucinogenic plants of the Shuar and related indigenous groups in Amazonian Ecuador and Peru, Brittonia 44 (4) (1992), pp. 483–493. Full Text via CrossRef View Record in Scopus Cited By in Scopus (8)

Bogenschutz, 2000 M.P. Bogenschutz, Drug information libraries on the Internet, Journal of Psychoactive Drugs 32 (3) (2000), pp. 249–258. View Record in Scopus Cited By in Scopus (8)

Brush et al., 2004 D.E. Brush, S.B. Bird and E.W. Boyer, Monoamine oxidase inhibitor poisoning resulting from Internet misinformation on illicit substances, Journal of Toxicology: Clinical Toxicology 42 (2) (2004), pp. 191–195. View Record in Scopus Cited By in Scopus (15)

Callaway et al., 1999 J.C. Callaway, D.J. McKenna, C.S. Grob, G.S. Brito, L.P. Raymon and R.E. Poland et al., Pharmacokinetics of hoasca alkaloids in healthy humans, Journal of Ethnopharmacology 65 (1999), pp. 243–256. Article PDF (180 K) View Record in Scopus Cited By in Scopus (42)

Callaway and Grob, 1998 J.C. Callaway and C.S. Grob, Ayahuasca preparations and serotonin reuptake inhibitors: A potential combination for severe adverse reactions, Journal of Psychoactive Drugs 30 (4) (1998), pp. 367–369. View Record in Scopus Cited By in Scopus (22)

Callaway et al., 2006 J.C. Callaway, C.S. Grob, D.J. McKenna, D.E. Nichols, A. Shulgin and K.W. Tupper, A demand for clarity regarding a case report on the ingestion of 5-methoxy-N,N-dimethyltryptamine (5-MeO-DMT) in an ayahuasca preparation, Journal of Analytical Toxicology 30 (6) (2006), pp. 406–407 [Letter to the editor]. View Record in Scopus Cited By in Scopus (2)

Collier and Ong, 2005 S.J. Collier and A. Ong, Global assemblages, anthropological problems. In: A. Ong and S.J. Collier, Editors, Global assemblages: Technology, politics and ethics as anthropological problems, Blackwell Publishing, Oxford (2005), pp. 2–21.

Creedon, 2001 Creedon, J. (2001, September/October). Ayahuasca: Sacred tea from the Amazon. Utne Reader (pp. 56–60).

Demange, 2002 Demange, F. (2002). Amazonian vegetalismo: A study of the healing power of chants in Tarapoto, Peru. Unpublished Masters thesis. London, England: University of East London.

Dobkin de Rios, 1973 M. Dobkin de Rios, Curing with ayahuasca in an urban slum. In: M. Harner, Editor, Hallucinogens and shamanism, Oxford University Press, Oxford (1973), pp. 67–85.

Dobkin de Rios, 1994 M. Dobkin de Rios, Drug tourism in the Amazon, Anthropology of Consciousness 5 (1) (1994), pp. 16–19.

Dobkin de Rios, 2005 M. Dobkin de Rios, Interview with Guillermo Arrévalo, a Shipibo urban shaman, by Roger Rumrrill, Journal of Psychoactive Drugs 37 (2) (2005), pp. 203–207.

Dyck, 2005 E. Dyck, Flashback: Psychiatric experimentation with LSD in historical perspective, Canadian Journal of Psychiatry 50 (7) (2005), pp. 381–388. View Record in Scopus Cited By in Scopus (5)

Eliade, 1964 Eliade, M. (1964). Shamanism: Archaic techniques of ecstasy (W.R. Trask, Trans.). New York: Pantheon Books.

Fecteau, 2001 L.M. Fecteau, The ayahuasca patent revocation: Raising questions about current US patent policy, Boston College Third World Law Journal 69 (2001), pp. 74–75.

Friedman, 2005 Friedman, T. L. (2005). The world is flat: A brief history of the twenty-first century. Farrar, Straus and Giroux.

Gray, 1997 A. Gray, The last shaman: Change in an Amazonian community, Berghahn Books, Providence, RI (1997).

Grob et al., 1996 C.S. Grob, D.J. McKenna, J.C. Callaway, G.C. Brito, E.S. Neves and G. Oberlander et al., Human psychopharmacology of hoasca, a plant hallucinogen used in ritual context in Brazil, The Journal of Nervous and Mental Disease 184 (2) (1996), pp. 86–94. Full Text via CrossRef View Record in Scopus Cited By in Scopus (44)

Haden, 2004 M. Haden, Regulation of illegal drugs: An exploration of public health tools, International Journal of Drug Policy 15 (4) (2004), pp. 225–230. Article PDF (77 K) View Record in Scopus Cited By in Scopus (5)

Halpern and Pope, 2001 J.H. Halpern and H.G. Pope, Hallucinogens on the Internet: A vast new source of underground drug information, American Journal of Psychiatry 158 (3) (2001), pp. 481–483. Full Text via CrossRef View Record in Scopus Cited By in Scopus (37)

Health Officers Council of British Columbia, 2005 Health Officers Council of British Columbia (2005). A public health approach to drug control in Canada [Retrieved May 24, 2006 from: http://www.sciencedirect.com/science?_ob=RedirectURL&_method=externObjLink&_locator=url&_cdi=6106&_plusSign=%2B&_targetURL=http%253A%252F%252Fwww.csdp.org%252Fresearch%252Fbchoc.pdf].

Heron, 2003 C. Heron, Booze: A distilled history, Between the Lines, Toronto (2003).

Hollman, 2006 Hollman, K. H. (2006, March/April). Quiet case may have far-reaching impact. Liberty Magazine [Retrieved May 24, 2006 from: http://www.sciencedirect.com/science?_ob=RedirectURL&_method=externObjLink&_locator=url&_cdi=6106&_plusSign=%2B&_targetURL=http%253A%252F%252Fwww.libertymagazine.org%252Farticle%252Farticleview%252F562%252F1%252F89%252F].

Julien, 1998 R.M. Julien, A primer of drug action: A concise, non-technical guide to the actions, uses, and side effects of psychoactive drugs (8th ed.), W.H. Freeman & Company, Portland, OR (1998).

Littlefield, 2002 Littlefield, C. (Director) (2002). Hofmann’s potion [Motion picture documentary]. Canada: National Film Board of Canada.

Luna, 1984 L.E. Luna, The concept of plants as teachers among four mestizo shamans of Iquitos, northeastern Peru, Journal of Ethnopharmacology 11 (2) (1984), pp. 135–156. Abstract PDF (1856 K) View Record in Scopus Cited By in Scopus (13)

Luna, 1986 L.E. Luna, Vegetalismo: Shamanism among the Mestizo population of the Peruvian Amazon, Acta Universitatis Stockholmiensis, Stockholm (1986).

Luna, 2003 L.E. Luna, Ayahuasca: Shamanism shared across cultures, Cultural Survival Quarterly 27 (2) (2003) [Retrieved April 15, 2006, from: http://www.sciencedirect.com/science?_ob=RedirectURL&_method=externObjLink&_locator=url&_cdi=6106&_plusSign=%2B&_targetURL=http%253A%252F%252F209.200.101.189%252Fpublications%252FCSQ%252Fcsq-article.cfm%253Fid%253D1659].

Mabit, 2002 J. Mabit, Blending traditions: Using indigenous medicinal knowledge to treat drug addiction, MAPS Bulletin 12 (2) (2002), pp. 25–32 [Retrieved April 18, 2006, from: http://www.sciencedirect.com/science?_ob=RedirectURL&_method=externObjLink&_locator=url&_cdi=6106&_plusSign=%2B&_targetURL=http%253A%252F%252Fwww.maps.org%252Fnews-letters%252Fv12n2%252F12225mab.pdf].

MacRae, 1998 E. MacRae, Santo Daime and Santa Maria—The licit ritual use of ayahuasca and the illicit use of cannabis in a Brazilian Amazonian religion, International Journal of Drug Policy 9 (5) (1998), pp. 325–338. Article PDF (103 K) View Record in Scopus Cited By in Scopus (1)

MacRae, 2004 E. MacRae, The ritual use of ayahuasca by three Brazilian religions. In: R. Coomber and N. South, Editors, Drug use and cultural contexts ’beyond the West’: Tradition, change and post-colonialism, Free Association Books, UK (2004), pp. 27–45.

Marlatt, 1996 G.A. Marlatt, Harm reduction: Come as you are, Addictive Behaviors 21 (6) (1996), pp. 779–788. Article PDF (950 K) View Record in Scopus Cited By in Scopus (65)

McKenna, 2004 D.J. McKenna, Clinical investigations of the therapeutic potential of ayahuasca: Rationale and regulatory challenges, Pharmacology & Therapeutics 102 (2004), pp. 111–129. Article PDF (432 K) View Record in Scopus Cited By in Scopus (19)

McKenna and Towers, 1984 D.J. McKenna and G.H.N. Towers, Biochemistry and pharmacology of tryptamines and beta-carbolines: A minireview, Journal of Psychoactive Drugs 16 (4) (1984), pp. 347–358. View Record in Scopus Cited By in Scopus (31)

McKenna et al., 1984 D.J. McKenna, G.H.N. Towers and F. Abbot, Monoamine oxidase inhibitors in South American hallucinogenic plants: Tryptamine and β-carboline constituents of ayahuasca, Journal of Ethnopharmacology 10 (2) (1984), pp. 195–223. Abstract PDF (2316 K) View Record in Scopus Cited By in Scopus (55)

Metzner, 1999 R. Metzner, Introduction: Amazonian vine of visions. In: R. Metzner, Editor, Ayahuasca: Hallucinogens, consciousness, and the spirit of nature, Thunder’s Mouth Press, New York (1999), pp. 1–45.

Montgomery, 2001 Montgomery, C. (2001, 10 February). High tea. The Vancouver Sun.

Ott, 1999 J. Ott, Pharmahuasca: Human pharmacology of oral DMT plus harmine, Journal of Psychoactive Drugs 31 (2) (1999), pp. 171–177. View Record in Scopus Cited By in Scopus (25)

Pollock, 2004 D. Pollock, Siblings and sorcerers: The paradox of kinship among the Kulina. In: N.L. Whitehead and R. Wright, Editors, Darkness and secrecy: The anthropology of assault sorcery and witchcraft in Amazonia, Duke University Press, Durham, NC (2004).

Reinarman and Levine, 1997 C. Reinarman and H.G. Levine, Crack in America: Demon drugs and social justice, University of California Press, Berkeley (1997).

Riba and Barbanoj, 2005 J. Riba and M.J. Barbanoj, Bringing ayahuasca to the clinical research laboratory, Journal of Psychoactive Drugs 37 (2) (2005), pp. 219–230. View Record in Scopus Cited By in Scopus (5)

Riba et al., 2003 J. Riba, M. Valle, G. Urbano, M. Yritia, A. Morte and M.J. Barbanoj, Human pharmacology of Ayahuasca: Subjective and cardiovascular effects, monoamine metabolite excretion, and pharmacokinetics, Journal of Pharmacology and Experimental Therapeutics 306 (1) (2003), pp. 73–83. Full Text via CrossRef View Record in Scopus Cited By in Scopus (29)

Ruck et al., 1979 C. Ruck, J. Bigwood, D. Staples, J. Ott and R.G. Wasson, Entheogens, The Journal of Psychedelic Drugs 11 (1–2) (1979), pp. 145–146. View Record in Scopus Cited By in Scopus (18)

Salak, 2006 K. Salak, Peru: Hell and back, National Geographic Adventure (2006) [Retrieved April 13, 2006 from: http://www.sciencedirect.com/science?_ob=RedirectURL&_method=externObjLink&_locator=url&_cdi=6106&_plusSign=%2B&_targetURL=http%253A%252F%252Fwww.nationalgeographic.com%252Fadventure%252F0603%252Ffeatures%252Fperu.html].

Schön, 1993 D.A. Schön, Generative metaphor: A perspective on problem-setting in social policy. In: A. Ortony, Editor, Metaphor and thought (2nd ed.), Cambridge University Press, Cambridge (1993), pp. 137–163.

Sessa, 2005 B. Sessa, Can psychedelics have a role in psychiatry once again?, British Journal of Psychiatry 186 (6) (2005), pp. 457–458. Full Text via CrossRef View Record in Scopus Cited By in Scopus (12)

Shanon, 2002 B. Shanon, The antipodes of the mind: Charting the phenomenology of the ayahuasca experience, Oxford University Press, Oxford (2002).

Shulgin, 1976 A. Shulgin, Profiles of psychedelic drugs. I. DMT, Journal of Psychedelic Drugs 8 (2) (1976), pp. 167–168.

Sklerov et al., 2005 J. Sklerov, B. Levine, K.A. Moore, T. King and D. Fowler, A fatal intoxication following the ingestion of 5-methoxy-N,N-dimethyltryptamine in an ayahuasca preparation, Journal of Analytical Toxicology 29 (8) (2005), pp. 838–841. View Record in Scopus Cited By in Scopus (10)

Taussig, 1986 M.T. Taussig, Shamanism, colonialism, and the wild man: A study in terror and healing, University of Chicago Press, Chicago (1986).

Thomas, 2005 S.M. Thomas, The global resurgence of religion and the transformation of international relations: The struggle for the soul of the twenty-first century, Palgrave MacMillan (2005).

Tupper, 2002 K.W. Tupper, Entheogens and existential intelligence: The use of plant teachers as cognitive tools, Canadian Journal of Education 27 (4) (2002), pp. 499–516. Full Text via CrossRef View Record in Scopus Cited By in Scopus (4)

Vickers, 1981 W.T. Vickers, Ideation as adaptation: Traditional belief and modern intervention in Siona-Secoya religion. In: N.E. Whitten, Editor, Cultural transformations and ethnicity in modern Ecuador, University of Illinois Press, Urbana, IL (1981), pp. 705–730.

Whitten, 1981 N.E. Whitten, Amazonia today at the base of the Andes: An ethnic interface in ecological, social and ideological perspectives. In: N.E. Whitten, Editor, Cultural transformations and ethnicity in modern Ecuador, University of Illinois Press, Urbana, IL (1981), pp. 121–161.

Winkelman, 2000 M. Winkelman, Shamanism: The neural ecology of consciousness and healing, Bergin & Garvey, Westport, CT (2000).

Winkelman, 2001 M. Winkelman, Alternative and traditional medicine approaches for substance abuse programs: A shamanic perspective, International Journal of Drug Policy 12 (4) (2001), pp. 337–351. Article PDF (107 K) View Record in Scopus Cited By in Scopus (4)

Winkelman, 2005 M. Winkelman, Drug tourism or spiritual healing?: Ayahuasca seekers in Amazonia, Journal of Psychoactive Drugs 37 (2) (2005), pp. 209–218. View Record in Scopus Cited By in Scopus (6)

Since the Brazil-based church União do Vegetal won its US Supreme Court case in early 2006, a number of internauts interested in ayahuasca have assumed that the case is over and the UDV’s situation has been stabilized. In fact, as Steve Beyer has pointed out, “the case is not over. All that has been litigated is the propriety of the initial preliminary injunction” that New Mexico District Court Judge James Parker issued back in 2002 (http://singingtotheplants.blogspot.com/2008/01/ayahuasca-in-supreme-court.html).

Since the Supreme Court’s ruling the case has returned to New Mexico for further litigation. The government has been arguing that the Supreme Court’s de cision should be very narrowly interpreted as barring only an outright “ban” on the importation and use of ayahuasca, and not a prohibition of any regulation by the DEA of the UDV’s practice. According to the government, the UDV has in effect won the right to be a legal importer of a controlled substance, and as such may be subject to the extensive regulations that govern the importation of dangerous pharmaceuticals.
In September 2007 the UDV filed an amended, eight-count complaint in the New Mexico court. This complaint alleged that the government could not legally ban0Athe UDV’s use of ayahuasca, and also that it could not apply the regulations of the Controlled Substances Act (CSA) to the group for various reasons. The government moved to dismiss the complaint, alleging that the District Court lacked jurisdiction over the UDV’s RFRA claims. Instead, the government argued, the UDV should apply to the DEA for exemptions from any CSA regulations that it felt should not apply; if these exemptions were not granted, then the UDV should have recourse to the Washington, DC Court of Appeals.

Judge Parker has so far responded to the government’s motion in piecemeal fashion. In June 2008 he issued a judgment granting the motion to dismiss three of the UDV’s eight counts (those based on free exercise, equal protection, and international20law arguments that the government could not enforce CSA regulations against the UDV). A few days later, Parker issued another memorandum denying the government’s motion with respect to the UDV’s first count, which argued that an outright ban on the use of hoasca would violate the Religious Freedom Restoration Act (RFRA). Most recently, at the beginning of August 2008, Parker granted dismissal of three more of the UDV’s arguments against the application of the CSA to their use of ayahuasca (these were arguments that the CSA was not intended to cover religious practice; that it amounted in this case to a prohibited “standardless licensing scheme”; and that application of the regulations would illegal lyentangle” the government in the UDV’s religion).

This decision leaves two counts of the UDV’s amended complaint intact: the first count, which Parker refused to dismiss, and which holds that “banning the UDV’s sacramental use of Hoasca [ayahuasca] violates RFRA” and count three, on which he has yet to rule, and which alleges that application of the CSA’s regulatory scheme to the UDV violates RFRA. The third count, however, would seem to be dead in the water, since in discussing another of the counts Parker disagreed with the UDV’s assertion that the court had previously ruled that the DEA “does not have the authority to place conditions or limits on [the UDV's] right to freely exercise their religion.”

If dismissal of the third count is ultimately granted or if judgment on it is deferred as “unripe” because the government has not yet said which CSA regulations it would attempt to enforce against the UDV, that leaves only the first count of the complaint against an outright ban intact. The UDV’s worry seems to be that the government, having lost in court on their most straightforward arguments about ayahuasca’s supposed dangers, is now determined to entomb the group’s religious practice in a mire of regulations and harassment on technicalities. Judge Parker’s rejection of the government’s attempts to relocate the site of negotiation about which CSA regulations ought to apply to its home turf, however, seems to me (as a layperson, admittedly) to signal a determination to work out a settlement in the District Court.

As Judge Parker pointed out in the August memorandum, the fact is that the UDV is “currently permitted to import and use hoasca consistent with the terms of the preliminary injunction,” which struck a compromise between the UDV’s desire to be free of regulation and the stipulations of the CSA with respect to licensed importers of controlled substances. At this point the most likely scenario may be that the preliminary injunction becomes permanent. This would be good news for the UDV—if not exactly what they hoped for, at least a solution they can live with, as they have done for the last three years. It would not seem to bode=2 0so well for other ayahuasca-using groups and individuals in the United States, who might look with dismay on the difficult road the UDV has travelled to reach this point and wonder whether they have the wherewithal to travel a similar path.

While it is apparently legal in the United States to possess the ayahuasca vine and its β-carboline constituents, it is clearly illegal to possess DMT, or any plants, such as chacruna, that contain DMT. Under Chapter 13 of the Controlled Substances Act, DMT is classified as a Schedule I drug, meaning the Drug Enforcement Administration has found that it has a high potential for abuse, has no currently accepted medical use in treatment in the United States, and lacks accepted safety for use under medical supervision. A person who manufactures, distributes, or dispenses DMT, or possesses DMT with intent to manufacture, distribute, or dispense it, “shall be sentenced to a term of imprisonment of not more than 20 years.” Both the plant chacruna, and the ayahuasca drink that contains chacruna, have been held to fall within the scope of this prohibition.

So what happened with the União do Vegetal in the Supreme Court two years ago? A little legal history may be helpful.

On November 9, 1924, a Native American of the Crow tribe named Big Sheep was charged with the crime of unlawfully having peyote in his possession. The court refused to allow him to testify in his defense that he was a member in good standing of the Native American Church, or that members of that church used peyote “for sacramental purposes only in the worship of God according to their belief and interpretation of the Holy Bible, and according to the dictates of their conscience.” In remanding the case for further proceedings at the trial level, the Supreme Court of Montana noted that the Montana Constitution guaranteed the “free exercise and enjoyment of religious profession and worship,” but pointedly observed that the liberty of conscience thus secured did not “justify practices inconsistent with the good order, peace, or safety of the state, or opposed to the civil authority thereof.”

There was absolutely nothing remarkable about that observation. The religion clause of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Yet legislatures make laws all the time which can, under some circumstances, burden the free exercise of religion — laws against murder, for example, that implicitly prohibit human sacrifice. At the time of Big Sheep, the leading precedent in this area was Reynolds v. United States (1878), in which the United States Supreme Court had ruled that the Mormon religious practice of polygamy was not protected by the free exercise clause of the First Amendment — indeed, that the First Amendment offered no protection to any religious act that contravened generally applicable legislation. While Mormons were free to believe that polygamy was a religious duty, they just could not practice it — not because they were Mormons, but because no one could practice it.

This line of reasoning continued to be the model for First Amendment free exercise jurisprudence. In Prince v. Massachusetts (1944), the Court held that a woman was subject to prosecution for violating the child labor laws when she brought her nine-year-old niece with her to sell religious literature on a street corner; in Braunfeld v. Brown (1961), the Court upheld Sunday closing laws as applied to Orthodox Jewish businessmen who closed their shops on Saturday, rejecting the argument that forcing them to close their shops on a second day unduly burdened their religious practice.

However, beginning in 1963, the Court signaled a new approach to First Amendment religious issues. In Sherbert v. Verner (1963), the Court held that a state could not simply deny unemployment compensation to a person whose unavailability for Saturday employment was religiously motivated. Rather, the state had to show a “compelling state interest” for its refusal to grant a religious exception to the regulation. The Court said that “no showing merely of a rational relationship to some colorable state interest would suffice.” Only the gravest abuses, which endangered “paramount interests,” would allow the state substantially to infringe the free exercise of religion. And the Court followed up this new approach in Wisconsin v. Yoder (1972), holding that the state interest in compulsory education was not sufficient to justify the state forcing Amish families, against their religious principles, to educate their children beyond the eighth grade.

This new model of interpretation was first applied to peyote — by a state court, not a federal court — in People v. Woody (1964). The California Supreme Court, following the 1963 decision of the United States Supreme Court, overturned the conviction of several Navajo members of the Native American Church for possession of peyote. The court found that the state had not met its burden of demonstrating a “compelling state interest” to justify refusing a religious exemption to its drug laws.

The effect of this case was predictable. Soon people were lined up at the courthouse doors seeking religious exemptions for drug use — the Neo-American Church, the Church of the Awakening, the Native American Church of New York, and a whole slew of criminal defendants claiming that the marijuana for which they had been arrested was for use in their religious practice.

Not one of these claims for religious exemption for drug use was successful. Of all these claimants, only the Native American Church was able to establish a religious exemption to enforcement of generally applicable drug laws — and sometimes not even then. As late as 1975, an Oregon Appellate Court refused to find that the religious interests of the Native American Church outweighed legislative concern for “the health and safety of the people.”

Finally, in 1990, the United States Supreme Court slammed the door on the whole process.

Alfred Smith and Galen Black had worked as counselors for a private drug rehabilitation organization. They were also both members of the Native American Church, and they were fired from their jobs because they had ingested peyote for sacramental purposes at a church ceremony. When they applied for unemployment compensation, they were determined to be ineligible for benefits because they had been discharged for work-related misconduct. Both the Oregon Court of Appeals and the Oregon Supreme Court, following then-existing United States Supreme Court precedent, concluded two things — first, that the religiously inspired use of peyote fell within the prohibition of the Oregon statute, which “makes no exception for the sacramental use” of the drug; but, second, that such a prohibition was not valid under the Free Exercise Clause. Therefore, the State could not deny unemployment benefits to the respondents for having engaged in that practice.

So far, so good. But the United States Supreme Court reversed the Oregon Supreme Court — and, although the Court struggled to deny it, its own earlier precedents — and held that there was simply no religious exemption from laws of general applicability. As the Court put it:

To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” — permitting him, by virtue of his beliefs, “to become a law unto himself” — contradicts both constitutional tradition and common sense.

Many commentators were surprised by what they perceived to be a sudden reversal of course by the Supreme Court. There was a perception that the Court, in jettisoning the requirement that the state show a compelling interest before abridging a religious practice, had abandoned marginal and quirky religions to majoritarian tyranny, in contravention of the spirit of the First Amendment. In response, Congress passed the Religious Freedom Restoration Act (1993) (RFRA) — note the provocative title — which in effect enacted Sherbert into law.

RFRA (pronounced refra) prohibits government from imposing a substantial burden on a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the government can demonstrate that the burden is, first, in furtherance of a compelling governmental interest, and, second, the least restrictive means of furthering that interest. RFRA’s mandate applies to any branch of federal or state government, to all officials, and to anyone acting under color of law. The law is intended to apply to all federal and state law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the date of RFRA’s enactment.

The passage of RFRA was the legal equivalent of Congress poking a sharp stick into the Supreme Court’s eye, and the Court responded accordingly. In City of Boerne v. Flores (1997), the Court held that RFRA was unconstitutional as applied to state and local governments.

The Court found that RFRA was a considerable congressional intrusion into traditional state and local prerogatives and general authority to regulate for the health and welfare of their citizens, and was not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion. So, as of now, the protections of RFRA run against only the federal government, and do not temper the burdening of religious practices by the application of generally applicable state and local laws. If a Rastafarian is arrested for cultivating ganja in Topeka, Kansas, no matter how sincere his religious motivation may be, RFRA offers no protection.

The União do Vegetal (UDV) is a Brazilian new religious movement which utilizes the ayahuasca drink — which the UDV calls hoasca — in its church services. In 1999, federal agents raided the New Mexico home of a UDV church member who had three drums of ayahuasca. The officials seized the ayahuasca and threatened prosecution for possession of material prohibited by the federal Controlled Substances Act. In response, the church sued the U.S. Attorney General and other federal law enforcement officials, contending that the application of the federal drug laws to the religious use of ayahuasca violated the Religious Freedom Restoration Act.

Although RFRA had been declared unconstitutional as applied to states and municipalities, it was still binding on the federal government. And the UDV was not being prosecuted under the drug laws of any state; rather, its ayahuasca had been seized by the United States, and the UDV argued that the federal government could not articulate a compelling state interest in preventing its religious use of ayahuasca. The UDV sought an injunction requiring the federal government to give the church its ayahuasca back.

The UDV had two important advantages. First, the UDV looks very much like a church of the sort with which an American court would be familiar — regularly scheduled ceremonies, a hierarchical structure, sober and orderly churchgoers, and a theology recognizably akin to that of Christianity. Indeed, a formal psychiatric study introduced at trial showed that long-term members of the UDV who consumed ayahuasca at least two times a month in religious rituals were, among other things, more reflective, loyal, stoic, slow-tempered, frugal, orderly, and persistent compared to controls. The ayahuasca-using participants also differed from the controls in being more confident, relaxed, optimistic, carefree, uninhibited, outgoing, and energetic, and with higher scores on traits of hyperthymia and cheerfulness. Significantly, on neuropsychological testing the UDV group demonstrated significantly higher scores on measures of concentration and short-term memory.

The second advantage was arguably even more important than the first. The president of the UDV in the United States was Jeffrey Bronfman, who is, unfortunately for the government, an heir to the Seagram’s whiskey fortune — the word bronfman means whiskey man in Yiddish — and second cousin to the profoundly well-connected Edgar Bronfman Jr., Chairman and CEO of Warner Music, among other things. Jeffrey Bronfman was a wealthy man in a powerful family, and he had the commitment and the resources to fight the seizure all the way to the United States Supreme Court.

And to the Supreme Court the case duly went, after both the trial court and the U.S. Court of Appeals for the 10th Circuit handed victories to the UDV, first by issuing a preliminary injunction against the U.S. Attorney General, the DEA, and other government agencies, requiring them to return the ayahuasca that had been seized from the group, and then by upholding the issuance of the injunction. On February 21, 2006, in a unanimous ruling, Justice John G. Roberts Jr. affirmed the trial court’s preliminary injunction preventing the federal government from enforcing a ban on the UDV’s sacramental use of ayahuasca. The Court held that the government had simply failed to demonstrate a compelling state interest in preventing the 130 or so American members of the UDV from practicing their religion.

Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue. Applying that test, we conclude that the courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV’s sacramental use of hoasca.

Of course, the case is not over. All that has been litigated is the propriety of the initial preliminary injunction. There may yet be a trial, although the chances of an ultimate government victory over UDV appear to be slim.

Steve Beyer’s blog Singing to the Plants is at www.singingtotheplants.blogspot.com