Spiritual Highs and Legal Blows

The power and peril of religious exemptions from drug prohibition

On February 22, 2006, U.S. Border Patrol agents noticed a minivan and a sedan traveling close together on Interstate 10 near Lordsburg, New Mexico. After going east for about 10 miles, the two drivers turned onto New Mexico Highway 113, traveling south, then turned around and headed north, moving in tandem. Based on “a totality of the circumstances,” the agents pulled over both vehicles. The minivan was occupied by Dan and Mary Quaintance, a middle-aged couple from Pima, Arizona. Timothy Kripner, a 23-year-old from Tucson, was driving the sedan, a rented Chrysler 300 in which the agents found 172 pounds of marijuana in three plastic-wrapped bundles, two in the trunk and one in the backseat. Kripner also was carrying a walkie-talkie, which he apparently had been using to communicate with the Quaintances on the road, and a certificate, signed by Dan Quaintance, identifying him as a “courier” for the Pima-based Church of Cognizance. “I am the head of my church,” Dan Quaintance declared, “and I have the right to have that marijuana.”

That remains to be seen, although the initial signs are not promising. In late December a federal judge rejected the Quaintances’ claim that, because cannabis is their church’s sacrament, their right to possess it is protected by the Religious Freedom Restoration Act (RFRA). They were scheduled to be tried in May at the federal courthouse in Albuquerque on marijuana charges that carry penalties of up to 40 years in prison. But their religious freedom claim, which the judge considered for several months after oral arguments last August, was by no means frivolous. The Quaintances were arrested just a week before the U.S. Supreme Court unanimously ruled that RFRA protects the American branch of the Brazil-based Uniao do Vegetal (UDV) from government interference with its rituals despite the fact that the group’s sacramental tea contains the otherwise illegal psychedelic drug dimethyltryptamine (DMT). If UDV deserves an exemption from the Controlled Substances Act, why not the Church of Cognizance?

Answering that question is no simple matter. It requires considering not only the Quaintances’ sincerity but the nature of religion and the aims of the war on drugs. Pleas for tolerance from groups like the Church of Cognizance, pleas that will be heard more and more in the wake of the UDV ruling, pose an obvious challenge to drug warriors who claim to value religious freedom. But they also pose a challenge to critics of the war on drugs. It’s not clear how the demand for protection of psychoactive sacraments will affect the broader cause of drug policy reform, a cause these religious groups do not necessarily support. Meanwhile, vetting their claims involves an unseemly official inquisition into people’s most heartfelt beliefs, aimed at distinguishing real religions from phony ones. Even if some groups manage to pass the test, the victory for freedom of conscience is mixed, since the flip side of granting exemptions to people who consume controlled substances for religious reasons is that other drug users are punished, in effect, for having the wrong beliefs.

Tea Breaks and Peyote Privileges
One reason to hope the UDV case will undermine the war on drugs is that the Bush administration clearly feared it would. After customs agents seized UDV’s sacramental tea in 1999, the group filed a lawsuit asking for it back and seeking a protective injunction under RFRA, which requires strict scrutiny of government actions that impinge on religious freedom. The church won the argument every step of the way. In 2002 a federal judge in New Mexico, where UDV’s American branch is based, issued a preliminary injunction telling the government to stop harassing the church, an order that was upheld by a three-judge panel of the U.S. Court of Appeals for the 10th Circuit in 2003 and by the entire court in 2004. The supposedly faith-friendly Bush administration, parting company with religious conservatives who supported UDV, refused to leave the tiny sect alone until the Supreme Court insisted that it do so.

That attitude stands in sharp contrast with government policy in Brazil, where Uniao do Vegetal (Portuguese for “Union of the Plants”) was founded in 1961 by a rubber tapper named Jose Gabriel da Costa. Working in the Amazon, Gabriel encountered natives who introduced him to the mysteries of ayahuasca (also called hoasca and yagé), a tea typically made with Psychotria viridis leaves, which contain DMT, and the Banisteriopsis caapi vine, which contains chemicals that make the DMT orally active by preventing enzymes from breaking it down before it can reach the bloodstream. Amazonian tribes have used the tea—whose name means “vine of the soul,” “vine of the dead,” or “vision vine” in Quechuan—for thousands of years as a means of divine communion and a cure for physical and spiritual ills. Gabriel combined the ritual use of ayahuasca with Christian theology and an emphasis on living in harmony with nature. UDV holds that “ecology and spirituality are indivisible” and describes itself as “a religion based on the superior Christian values of love and fraternity among men, in full communion with Nature through the tea Hoasca, a vehicle synchronising it with the Divinity.” The group’s ayahuasca ceremonies, which usually are held a few times a month and last several hours, feature chanting, singing, discussion of Gabriel’s teachings, and long periods of silent introspection.

In Brazil, where the church has about 10,000 members, the government somehow has managed to tolerate all of this for nearly half a century, exempting UDV’s ceremonial use of hoasca from the country’s drug laws. According to a seven-year Brazilian government investigation of religious ayahuasca use, completed in 1992, “The followers of the sects appear to be calm and happy people. Many of them attribute family reunification, regained interest in their jobs, finding themselves and God, etc., to their religion and the tea.…The ritual use of the tea does not appear to be disruptive or to have adverse effects upon the social interactions of the sects’ followers. To the contrary, it appears to orient them towards seeking social contentment in an orderly and productive way.” But in the U.S., where the UDV church has attracted about 140 members since the American branch was founded in 1993, the federal government acted as if letting them drink ayahuasca would mean the collapse of drug prohibition. “The Government’s argument,” observed Chief Justice John Roberts, “echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.”

This position was especially puzzling because the U.S. government has long permitted the ceremonial consumption of peyote, cactus buttons that contain mescaline, by members of the Native American Church. Like UDV, the Native American Church combines Christianity with indigenous beliefs and rituals, but it’s much larger, claiming hundreds of thousands of members in North America. Church members credit the ceremonial use of peyote with curbing alcoholism, reducing domestic violence, and promoting community, and the federal government seems to agree that its effects have been positive. UDV repeatedly cited the peyote precedent in pressing its RFRA claim, and the Bush administration was never able to explain satisfactorily why it could accommodate one group but not the other. The best it could do was refer to the federal government’s “special trust relationship” with the nominally sovereign Indian tribes.

That relationship is the legal rationale for the American Indian Religious Freedom Act of 1978, which protects “the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians.” In 1994 Congress amended the law to specifically include “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,” which had been protected by federal regulations since 1965. It’s a remarkable law, not only extending special privileges to a particular church but creating a racial requirement for exercising those privileges, in apparent violation of the First Amendment’s ban on “an establishment of religion” and the right to equal protection of the laws.

“The courts have justified that time and time again by saying that it’s not a racial or an ethnic thing,” says Richard Glen Boire, an attorney specializing in drug law and a senior fellow at the Center for Cognitive Liberty and Ethics. “What it’s about is that the United States has always had a unique relationship to Indian tribes because of the history of the United States.…That’s what courts for decades used to say: Hey, the Native American Church gets to do this because, essentially, we’ve stripped them of everything else about their Native Americanness, and we’re not going to take this religion away from them.” In other words: Sorry about the genocide; have some peyote.

Earl Arkinson, former president of the Native American Church of North America, an umbrella organization for peyote groups, says the American Indian Religious Freedom Act simply recognizes the right of the continent’s indigenous people to continue practicing the rituals they observed long before Europeans arrived. Although the syncretistic practices of the Native American Church developed in the late 19th century and the church itself was not established until 1918, the ritual use of peyote dates back thousands of years in Mexico. “This medicine was here before Columbus came here,” Arkinson says. “It’s been here 10,000 years.…It’s even older than Catholic religion. The natives always used it as a medicine.”

‘Each Religion Needs to Stand on Its Own’
Whatever the justification for the American Indian Religious Freedom Act, members of the Native American Church also can claim protection under RFRA, which was written with them in mind. Congress passed RFRA in response to Employment Division v. Smith, a 1990 ruling in which the U.S. Supreme Court said “neutral laws of general applicability” do not violate the First Amendment’s guarantee of religious freedom simply because they make it difficult or impossible for people to practice their religion. The case involved two Oregon members of the Native American Church, Alfred Smith and Galen Black, who were fired from their jobs as drug counselors because of their peyote use. When they applied for unemployment compensation, the state of Oregon­ turned them down, concluding they had been fired for cause. In rejecting Smith and Black’s claim that the denial of benefits violated the First Amendment, the Supreme Court repudiated the test it had previously applied to government actions that impose a substantial burden on religious freedom, under which they had to be the least restrictive means of serving a compelling state interest. RFRA, which had overwhelming support from religious groups across the political spectrum and was approved by Congress almost unanimously, re-established the “compelling interest” test.

In 1997 the Supreme Court ruled that Congress did not have the authority to impose this requirement on the states, but it is still binding on the federal government. And given RFRA’s provenance, there’s no question Congress wanted it to protect Native Americans’ religious use of peyote. That’s why the Bush administration’s invocation of the U.S. government’s special relationship with Indian tribes was a red herring in the UDV case. Unlike the American Indian Religious Freedom Act, RFRA clearly applies to the Native American Church but also is clearly not limited to it. The law gives any religious group whose practices are barred by the government the right to demand a justification. No one disputed that UDV members were sincere, that their religion was authentic, and that the government was imposing a substantial burden on their freedom to practice it by treating their sacrament as contraband. Under RFRA, the Bush administration therefore had to show that depriving UDV of its tea was the least restrictive means of serving a compelling state interest.

It did not even come close. UDV presented expert testimony that the hazards of ayahuasca use as practiced by the church were minimal. It also emphasized that the risk of diversion to nonreligious use was extremely low—not only because the church guards its sacrament but because there’s not much interest in recreational use of ayahuasca, which tastes bad, causes vomiting and diarrhea, and may lead to disturbing visions. (Recreational use of peyote is rare for similar reasons.) In the end, the government’s argument came down to the one mocked by Chief Justice Roberts: that prohibition admits no exceptions, a position refuted not only by the federal peyote policy but by the continued legality of sacramental wine during alcohol prohibition.

Contrary to the Bush administration’s fears, the UDV decision does not mean the government will have to make an exception for everyone who claims to have had a spiritual epiphany after dropping acid or smoking pot. (See “Looking for God in All the Wrong Places,” page 50.) It does not even necessarily mean that groups similar to UDV will be protected by RFRA. Consider Santo Daime (“Holy Give Me”), another religion founded by a Brazilian rubber tapper that incorporates Christian beliefs and uses ayahuasca in its rituals. Santo Daime is three decades older than UDV, but it has a reputation for being looser and more open, which are not positive qualities from the perspective of a government determined to maintain tight control of drug use. Another potentially problematic aspect of the church is that in Brazil it uses marijuana (known as Santa Maria) as well as ayahuasca in its rituals, a practice American and Dutch churches have abandoned to avoid controversy.

Although still small compared to the Native American Church, Santo Daime has considerably more followers than UDV does. Solid numbers are hard to come by, but there are several Santo Daime churches in the U.S., including branches in California, Oregon, and Hawaii. According to the Dutch researcher Hans Ossebard, “the modern use of ayahuasca as a sacrament of Santo Daime in the United States and Europe has involved thousands of persons,” which suggests the religion has hundreds of followers, at least, in the U.S.

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