By Steve Beyer
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
I for one am really praying that ayahausca becomes a legal sacrament in the USA, this could change our country in many many positive ways.
The medicine moves in mysterious ways. Ayahuasca works on many levels simultaneously. Just as the medicine cleanses an individual by exposing darkness and ushering enlightenment, ayahuasca has begun to work within the legal system of America. The medicine acts on behalf of truth to reveal deception and manipulation. I am reassured by ayahuasca’s willingness to engage. The truth shall prevail. The light will continue to reveal the inconsistencies embedded within the justice system. Freedom for the individual to choose ancient methods of consciousness awakening shall be granted. Cultivate faith in the medicines. No doubt the universe is unfolding as it should.
it’ll be a cold day in u know where before the control freaks in washington or any other state or local government allow us to ingest anything they don’t want us to ingest. it’s not for the “safety of the public” they do this. it’s that as long as it’s kept illegal they can process people like cord wood in and out of their institutions and the money to arrest, incarcerate, probate, and parole will continue to grease palms day after day. america is slowly becoming a police state day by day. The few that have $$$ can get out of trouble whereas those who are without it are at the mercy of creteans.
well…………………………………….if LIGHT truly does overcome darkness then the basic freedom to find the
Light shall be protected and those that are in darkness shall become the Light.
anyway lots of love peace joy
I just added you to my Google News Reader. Keep up the good work. Look forward to reading more from you in the future.
It is Completely legal in all states to own any dmt containing plant. Extracting dmt from plants is illegal. Trying to brew Ayahuasca is Illegal. One could purchase Psychotria Viridis from Ebay.
I would not bet my liberty on this. US courts have consistently taken the position that a Schedule I controlled substance is prohibited in any form, including as a “natural” substance such as a plant. If I am mistaken, and you know of a court that has held otherwise, please let me know. The fact that chacruna is available online in relatively small amounts — and I agree that it is — does not mean that it is legal, just that nobody is bothering to do anything about it.
Thank you Steve for the very enlightening description of the history of the religion clause of the First Amendment and how that has been interpreted by the Supreme Court through the years especially in arguments about the limits of religious practices when they get cross ways with US law that “burden” the free exercise. I do think though that some very important distinctions are generally being missed in this ongoing argument.
To make my case on this I need to posit some things that seem basic.
1. The universal human right to Freedom of Belief (or Consciousness) is absolute (inalienable) and can in no way be restricted by any government or society anywhere. This is cognitive liberty, freedom of belief or consciousness. While this is not explicitly stated in the Bill of Rights it is the basic statement of the Universal Declaration of Human Rights, and is in truth what free society is all about. The First Amendment in its entirety seeks to protect by codifying and sanctifying the social practices that are essential to freedom of thought, namely religious belief and practice, freedom of speech, press and assembly. It is telling that these essential or primary freedoms are put together under the same protective shelter.
2. Freedom of expression (practice) of belief, speech, press and assembly however, are not absolute. In general, freedom of religious practice or expression (as well as Speech and Press and assembly) must be given the greatest possible latitude by free societies.
3. The First Amendment freedoms practice are (or should be) also unrestricted insofar as the action of persons practicing their religion does not directly and substantially harm others.
I believe these three statements are relatively non-controversial. Government entities that object to this or that religious speech, press, assembly) practice normally do so under color of maintaining the “good order of the state”. The fact that the state may, in principle, passe any law and define the “good order” as the universal obeying of that law begs the question. It would be absurd to for instance make a law banning the press and call printing a newspaper disruptive of the good order per se.
So the argument really is not ostensively about internal freedoms of thought, it is about peoples actions in society. The government does not claim to care so much about what you think (as opposed to the sporadic but real Inquisitions that very much care) as what you do. I am personally however of the opinion that power controllers care very much about what we think and believe because thought leads to action or the lack thereof. I will return to this later.
Religious practice, as well as press, assembly and speech , itself falls under two headings: primary and secondary practices. I will hereafter focus on Religion.
It is essential to make a distinction between primary and secondary religious practices. Primary religious practices include the religious rituals, teaching, education and practices that are aimed at communicating the religious ideal to the practitioners of the religion, and this especially includes those rituals in which the religionists contact and communicate directly with the Divine or their Ideal. This is often called prayer, meditation, religious ritual, communion and so on. Primary Religious practices include all of the means by which the fundamental religious ideal or truth or core experience is contacted and communicated to oneself.
Secondary religious practices are those in which the religious ideals, state of being or consciousness are put into action in various ways that express and strengthen them in the lives of the religionists. These include the range of practices from applying virtues such as charity, compassion and non-violence to particular communicative and symbolic lifestyle choices such as dress codes, and personal ornamentation, and in the cases above choosing the day of Sabbath, number of wives, food prohibitions and so on.
The reason it is important to make this distinction precisely goes to how the law or state can treat religious practices. The barrier to prohibiting (“burdening” in the euphemistic legal term) primary religious practices should and must be set very much higher than the barrier to burdening secondary religious practices. It is one thing to outlaw polygamy as a religious practice in the interest of the public good but it is quite another to prevent the printing of the sacred book of Mormon, or outlawing Mormon prayer assemblies, or outlawing Mormon sermons in the public good (as they all may lead to the belief in the practice of polygamy).
Polygamy represents a secondary religious practice to (some) Mormons. Their faith and practice of their core religious rituals are not essentially dependent on this. The rights to Print and disseminate their sacred texts, their rights to assemble, to communicate their beliefs and participate in the religious services that connect them directly to the spiritual realities of their faith are Primary religious practices precisely because they are together essential to the existence of Mormonism (or any other ism).
When we don’t understand the distinction between Primary and secondary religious practices we invite trouble from the state that may correctly be trying to protect the public good from harmful practices (polygamy in my facile real world example). Without the distinction, when the first barrier is easily breached then the legal principle of breaching the barrier is validated.
Of the two forms of religious expression, primary religious practices are very close to being absolute rights in free societies as long as those practices are not directly and seriously harmful to others human rights. Examples of severe abuse in this area are probably so rare as to be hypothetical. Religionists may not, for example, murder people as part of a primary religious ritual even though their right to believe in the practice is absolute.
The question of whether persons should be allowed to engage in practices that have a potential or possible physical or psychological harm to the religious participants themselves is more difficult. Risks are inherent in everything we do (or don’t do) in life. As we continually make choices as to relative risks to rewards people constantly do things that are to some extent dangerous. Almost all sports (which are normally enjoyed for less personally urgent and core belief reasons than religious rituals) carry real physical risk. All medicines and medical procedures carry risk. Driving to work involves risk. Proscription of primary religious practices under the excuse that there is some possible risk to the participant is actually thinly veiled judgment that the religion is worthless (or evil) and is an attempt to deny the practice of that religion. Because direct attack on religion is illegal and politically incorrect often the ubiquitous and dubious doctrine of governmental paternalism is used as a cover and justification for such attacks.
Primary religious practices that are actually and grossly physically harmful to religious practitioners are very rare. Some self-flagellation practices come to mind. Some monks of some religions practice partial finger removal (mutilation) as a religious dedication ritual. Others fast for long periods or follow strict diets or very long meditation or prayer regimes. As repelling and irrational as some of these practices may seem to many people, the importance and sanctity of the unfettered rights to primary religious practice by informed and consenting parties are usually protected even here as otherwise we begin sliding down a very slippery slope towards religious intolerance towards all.
A Sacrament is a visible form of an invisible or inner spiritual grace. A Sacramental is a physical object used as sacred means to aid the seeker to communicate with the sacred. Use of sacramental means of communication with the sacred has been a widespread and essential component in religious rituals worldwide stretching back into prehistory.
The use of otherwise proscribed chemical substances used as sacramental means to communicate with the sacred in religious ritual is a clear example of a primary religious practice that is manifestly not harmful to third parties civil and human rights. The primary reason for proscription of Entheogens in modern society is clearly their consciousness changing properties rather than potential physical harm to the religionist. The severe and actual harm that society imposes onto those who practice their religion in this way is incomparably greater than the theoretical or possible harm of the freely practiced religious ritual is to the individual and clearly demonstrates government’s real intent.
In the many cases in which the sacramental is a chemical, either natural or manmade, the making (or transubstantiation or consecration) of the sacramental into a Sacrament is partially due to the knowledge of chemical’s ability to help induce the core religious experience, and partially upon the corresponding intent of the participant. A substance or object is transformed into a sacrament by the mind and spirit and intent of the person who uses it or dedicates it thusly. Proscription of the use of religious sacraments by government is tantamount to directly denying the right of those religious practitioners to practice their religion and thereby denying access to the essential state of consciousness that is aimed at by and is the core religious experience of the religion.
Such efforts, which are really attempts to organize society through one dominating religious or socio-political culture, are counterproductive in all societies, but especially in free societies that value religious freedom and human rights. Cultural multiplicity is the norm of modern free societies. Individual citizens cannot help but be more supportive of a society or government that protects their right to practice their religion and honors their cultural practices rather than spending billions to hunt them down, imprison and destroy their lives and families under the guise of acting in their best interests and using their own tax money to do so.
Ranting aside, The government in their ongoing attempts to deny the Ayahuascan’s access to the Primary practice of their religion is tearing down a much higher moral and legal barrier set up to protect them from overt religious persecution. I have read the amicus briefs for the UDV petition and the support for the real principals involved which I tried to illuminate here are extremely encouraging to the future of the right to religious freedom in America. There was no ganging up on a competing religion in evidence, much to the contrary. The putting the denial of the sue of religious sacramental in primary religious rituals and worship is very much more destructive to society than the protection of that right in unusual circumstances can ever due even if the use of Ayahuasca is harmful which it evidently is not.
Thank you for sharing your knowledge on this Steve!
I follow your work with great interest and gratitude. I am a friend of Fred Smith who I beleive you’ve met.
I have a question. I am undergoing chemotherapy for lymphoma. I have the opportunity to drink the tea and would like to know your opinion on drinking the tea while on chemo? I have found remarkable little info on this. I have been living with lymphoma for 8 years now and in my own experience have had remarkable insights into my journey to wellness through the medicine. I would appreciate your opinion.
all the best,
Thank you for the kind words about my work. Please convey my very warmest regards to Fred.
I am sorry to hear that you have lymphoma, and I hope that the chemotherapy is not too exhausting and is making you better. Please remember that I am absolutely in no way a clinician and can offer you no medical opinions. I have no idea whether combining ayahuasca with chemotherapy is a good idea or a bad idea. I would suspect that it is a bad idea, based almost entirely on the thought the interaction of the two might be detrimental to your recovery. It seems to me that the first job right now is to get better from the lymphoma, and you might want to avoid anything that might interfere with that.
I have no way to balance the potential benefits of your healing insights from ayahuasca over against its possible risk to your recovery. That weighing is something you have to do yourself, preferably in consultation with your physician. I think you have to tell your physician about ayahuasca, its ingredients, and its effects in a very open manner, even if you feel that he or she would disapprove. Your physician can then do whatever medical research is possible, and the two of you can come up with a plan of action together. Perhaps you can discuss and weigh alternative sources of healing insight, including such practices as meditation or healing ceremonies without ayahuasca.
I wish you all blessings on your journey to health.
The ruling in the Native American Church of NY case stated that the worship of Peyote as a Deity, outweighed the US government’s “compelling interest”. It was not an unsuccessful case.
In fact, the Native American Church of NY was the 1st non-native church to receive this ruling.
“If the words ‘life, liberty, and the pursuit of happiness’ don’t include the right to experiment with your own consciousness, then the Declaration of Independence isn’t worth the hemp it was written on”
Could anyone tell me where can I find a religious group in NY which practices the use of Ayahuasca? I am Brazilian and I just got back from Brazil and I have been using Ayhahuasca for a couple of months. It’s a great medice tool. And it is being changing my life.
Where can one find said tea? I am very interested in practicing União do Vegetal. I am having trouble finding information on the topic. Please email me the information. I live in Mn, and have found no organization here following that practice.
The reason the DMT is outlawed is not safety but effect it has on people.
The government and the system doesn’t like when people become enlightened.
The want you to remain productive member of society:
Get a job, buy a house, pay taxes, buy stuff and get deeper in debt.
They want you to stay in rat race until you die.
Strange that people live in US like they never going to die – so caught they are chasing material goods.
It’s very interesting and informative to read all these comments, especially about the guy connected to Seagram’s who opposed legal approval-I forget the exact facts. It’s late, I’m exhausted. What I can say for certain from my experience is this incredible gift from the jungles of South America, and the thousands of years old healing tradition is truly a Medecine with a limitless ability to heal anything-mental, emotional, spiritual, physical, as long as it is administered by a qualified ayahuascaro. For those wanting to find this medicine, pray, pray, pray with all your heart to Grandmother Yahe to find you. Keep holding this intention and never give up and keep praying to all the Holy Deities you hold most sacred beseeching them to answer your deepest hearts desire. Never give up. Read everything you can find about the Medecine. Now is the time for Grandmother to bring healing and enlightenment to the earth in Her Great Time of Need.
This article is great but could really benefit from legal citations. There are loads of quotes with no source. For instance, what is the Oregon Appellate Court decision in 1975 that refused NAC exemption on the grounds of the police power?