Singing to the Plants: A Guide to Mestizo Shamanism in the Upper Amazon (68 page)

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 lawsand 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. "15

Finally, in 1ggo, the U.S. 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 U.S. 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.,'

Peyote Exemptions

After Woody, twenty-three states carved out exemptions forth e Native American
Church, both judicially and legislatively.' In addition, the National Conference of
Commissioners on Uniform State Laws urged states adopting the Uniform Controlled Substances Act to include exemptions for the Native American Church
similar to those of the federal government.

Moreover, the Drug Enforcement Administration promulgated a regulation
exempting "the nondrug use of peyote in bona fide religious ceremonies of
the Native American Church" from the operation of the Controlled Substances
Act .3 In 1994, in light of the holding in Employment Division v. Smith, Congress
amended the American Indian Religious Freedom Act to provide that "the use,
possession, or transportation of peyote by an Indian for bona fide traditional
ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State."4

NOTES

1. For example, State v. Whittingham, 19 Ariz. App. 27, 504 Red 560 (1973), cert.
denied, 417 U.S. 946 (1974); Whitehorn v. State, 561 Red 539 (0kla. Crim. App.
1977). For example, Ariz. Rev. Stat. Ann. 13-34o2(B)(1)-(3)(1989); N.M. Stat. Ann.
30-31-6(D) (Supp.1989); Colo. Rev. Stat. 12-22-317(3) (1990); Mont. Rev. Codes
Ann. §94-35-123 (1947); Kan. Stat. Ann. 65-4116(c)(8) (1985); Utah Code Ann. 5837-3(3) (1986).

2. Uniform Controlled Substances Act (1994) §204, "Comment."

3. 21 CFR 1307.31(1993).

4. 42 USC 1996a (1994).

So far, so good. But the U.S. Supreme Court reversed the Oregon Supreme
Court-and, although the Court struggled to deny it, itself-and held that
there was simply no religious exemption from laws of general applicability:
"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."I7

Many commentators were surprised by what they perceived to be a sudden
reversal of course by the Supreme Court.'8 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, in 1993 Congress passed the Religious Freedom Restoration Act (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.19 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 ofreligion. So, as ofnow, 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.20

The Uniao do Vegetal Case

The Uniao do Vegetal (uDV) is a Brazilian new religious movement that utilizes the ayahuasca drink-which the UDV calls hoasca-in its church services.
In iggg, federal agents raided the New Mexico home of a UDV church member who had three drums ofayahuasca. 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 ofayahuasca 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 ofayahuasca. 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 familiarregularly scheduled ceremonies, a hierarchical structure, sober and orderly
churchgoers, and a theology recognizably akin to that of Christianity.21 Moreover, a formal psychiatric study introduced at trial showed significant differences between long-term members of the UDV who consumed ayahuasca at
least two times a month in religious rituals and demographically matched
controls who had never consumed ayahuasca-and not in the direction of
dysfunction. Personality testing instruments showed UDV members to be
more reflective, rigid, loyal, stoic, slow tempered, frugal, orderly, and persistent, with higher scores on measures of social desirability and emotional maturity than the controls. The ayahuasca-using participants also differed from
the controls in being more confident, relaxed, optimistic, carefree, uninhibited, outgoing, and energetic, with higher scores on traits of hyperthymia,
cheerfulness, stubbornness, and overconfidence. Significantly, on neuropsychological testing the UDV group demonstrated significantly higher scores on
measures ofconcentration and short-term memory, despite the fact that many
ayahuasca users reported significant psychiatric and substance abuse histories prior to their church membership.22

Now, there are certainly some problems with this study. UDV worship is
a structured and stable environment. Participants remain seated, with long
periods of silence during which they seek self-knowledge through mental concentration, aided by ayahuasca.13 The ayahuasca-using participants
had to have been members of UDV for at least ten years, with at least twicemonthly-that is, highly regular-attendance at these services. Thus, the
ayahuasca users may have been preselected for personality traits of stability,
persistence, and orderliness; self-reports of prior mental health problems
by church converts may be viewed with some level of skepticism. Moreover,
while subjects and controls were matched for age, ethnicity, marital status,
and level of education, there was apparently no attempt made to control for
regular churchgoing, a measure on which the ayahuasca users were preselected for perfect scores and which may well be correlated with personality traits
for which they also scored high. Still, the study certainly gave no grounds to
believe that long-term UDV church membership, along with concomitant
twice-monthly drinking ofayahuasca, had caused any personality or cognitive
detriment to its members.

Back in the Trial Court

So the parties are back before Judge James A. Parker in the U.S. District Courtin
New Mexico. The preliminary injunction issued by Judge Parker in 2002-having
been first stayed by the Tenth Circuit and then upheld by the Tenth Circuit and
the Supreme Court-is, for now, effectively the charter under which the Uniao do
Vegetal (uDV) may import and use the ayahuasca drink.'That preliminary injunction incorporated, at the request of the government, and after lengthy negotiations, thirty-six conditions intended to prevent the diversion of the ayahuasca
drink to illegal nonreligious uses, and thus gave the government a significant
role in regulating its importation; for example, while the government cannot
limit the amount of ayahuasca imported, the Drug Enforcement Administration
(DEA) can require the UDV to supply the social security numbers of anyone handling the ayahuasca drink outside of religious ceremonies.

The government now argues that the Supreme Court decided just one thingthat the UDV has the legal right to import and distribute a Class I controlled substance, subject to all the pertinent DEA regulations and licensing requirements,
unless and until the DEA grants a discretionary exemption. The UDV challenges
any such government oversight, claiming that it unduly burdens its religious
practices in violation of the Religious Freedom Restoration Act. The government
says that the New Mexico court has no jurisdiction to hear that challenge because the U Dv has failed to apply for an administrative waiver from those regulations under 21 C.F.R. §1307.3, the denial of which must be appealed to the D.C.
Court of Appeals-and, indeed, is arguing against regulations that have not yet
even been imposed .3

Presumably the district court wants to work out a reasonable and workable
set of rules, involving record keeping, secure storage, and limitations on distribution, balancing government concerns over against the UDV's claim that its religious practice is unduly burdened by intrusive government supervision. Indeed,
the Tenth Circuit has already noted two things. First, religious accommodations
should avoid "burdensome and constant official supervision and management."4 Second, in this case, "extensive judicial and administrative oversight"
of the handling and use of the ayahuasca drink would likely be necessary to
allow the UDV to practice its religion "while respecting the public interest in preventing the diversion of DMT and protecting the public health and safety."5 The
tension between these two statements remains unaddressed.

On March 8, 2009, U.S. District Judge Owen M. Panner followed the UDV precedent in finding that the Religious Freedom Restoration Act protects the use of
ayahuasca as a sacrament by two Santo Daime churches in Oregon. Judge Panner entered a permanent injunction barring the government from penalizing the
church for its ayahuasca use, and setting forth rules regarding importation, storage, and record keeping. The court specifically enjoined the government from
requiring the churches "to conform their conduct to any regulations except as
set forth" in the injunction itself. As of this writing, it is unknown whether the
government will appeal.6

NOTES

1. 0 Centro Espirito Beneficiente Uniao do Vegetal v. Ashcroft, 314 F.3d 463 (loth Cir.
2002, emergency motion for stay pending appeal); 0 Centro Espirito Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (loth Cir. 2004, rehearing en banc),
p. 976; Gonzales v. 0 Centro Espirito Beneficente Uniao do Vegetal, 546 U.S. 418
(2006).

2. 0 Centro Espirito Beneficiente Uniao do Vegetal v. Ashcroft (2002), p. 467.

3. 0 Centro Espirito Beneficiente Uniao do Vegetal v. Mukosey, CIV. No. 00-1647 JP/
RLP, Defendants' Motion to Dismiss (D. N. M. November 21, 2007), pp. 10-28; 0
Centro Espirito Beneficiente Uniao do Vegetal v. Mukasey, CIV. No. 00-1647 JP/
RLP, Plaintiffs' Response to Defendants' Motion to Dismiss (D. N. M. February 22,
2008); 0 Centro Espirito Beneficiente Uniao do Vegetal v. Mukasey, CIV. No. oo1647 JP/RLP, slip op. (D. N. M. June 19, 2008, order denying defendant's motion to
dismiss Count 1), pp. 3-4.

4. Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989), pp. 1462-1463; 0 Centro Espirito Beneficiente Uniao do Vegetal v. Ashcroft (2002), p. 467.

5. 0 Centro Espirito Beneficiente Uniao do Vegetal v. Ashcroft (2002), p. 467.

6. Church of the Holy Light of the Queen v. Mukasey, No. CV o8-3095-PA, Slip op. (D.
Or. March 9, 2009).

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
and second cousin to the profoundly well-connected Edgar Bronfman Jr.,
chairman and CEO of Warner Music, among other things. Jeffrey Bronfman
had the commitment and the resources to fight the seizure all the way to the
U.S. Supreme Court.