Spiritual Highs and Legal Blows

The power and peril of religious exemptions from drug prohibition

Jacob Sullum from the June 2007 issue

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That anxiety was evident in a September 2005 article in Indian Country Today, a leading Native American newspaper, that grouped UDV with James “Flaming Eagle” Mooney, a self-identified medicine man in Utah whose peyote rituals were open to people of all racial backgrounds. The Native American Church of North America rejected Mooney and his followers, saying they were not members of recognized Indian tribes. But in 2004 the Utah Supreme Court unanimously dismissed state drug charges against Mooney and his wife, ruling that the state Controlled Substances Act incorporates the federal exemption for religious use of peyote. Contrary to the DEA’s interpretation, and despite the law’s references to “Indian[s],” the court also concluded that the exemption applies to all Native American Church members (which Mooney and his followers claimed to be), regardless of their ancestry. Mooney and his wife were later arrested on federal drug charges, but those were dropped after the U.S. Supreme Court’s UDV ruling. “These court cases are as unfortunate as they are dangerous,” said the unsigned article in Indian Country Today, which complained that UDV’s lawsuit was “dragging the long-fought-for understanding of the peyote church into a self-serving court battle for the new syncretic religion.”

Because of this attitude, the national leaders of a once-persecuted minority religion with strange drug rites—the very religion whose legal defeat gave rise to RFRA in the first place—were, if anything, rooting against UDV, while mainstream groups such as the Baptist Joint Committee, the National Council of Presbyterian Churches, the National Association of Evangelicals, and the American Jewish Committee were filing briefs on its behalf. These groups believed an important principle was at stake. “There’s probably a nagging fear on any religious person’s part that if the government can forbid a particular aspect of the exercise of religion on the grounds that it’s socially undesirable, that’s a bad precedent and carries a potential threat to them,” says John Boyd, one of UDV’s lawyers.

But he adds that it’s a mistake to assume “they had to think of this in terms of how their ox was being gored. Most of them thought about it in purely abstract terms of ‘we’re in favor of religious freedom.’ ” The Indian leaders who decided not to support the lawsuit, by contrast, “felt that if the UDV were successful, it could jeopardize the Native American Church’s status,” Boyd says. “I always felt quite strongly that they were wrong to feel that way and they were wrong to take that position.”
But there is more to the Native American Church’s stance than anxiety about losing its privileges. Explaining how UDV’s situation differs from the Native American Church’s, Arkinson says “they were using that [ayahuasca] as a drug.” By contrast, he says, peyote is “not a drug to the Native American population. It’s a medicine.” Similarly, the Native American Church of Strawberry Plains, Tennessee, says on its website that “peyote is not used to obtain ‘visions’ but to open portals to Reality.”

The Native American Church is not alone in distinguishing between its psychoactive sacrament and the chemically identical “controlled substances” banned by state and federal law. “Because drug use itself remains so powerfully stigmatized in our society,” says Eric Sterling, “churches are loath to see their worship in any way linked to the stereotypical antisocial drug-using behavior.” UDV’s website, for instance, says “the hallucinations characteristic of LSD and recreational drug use do not occur within the religious context at issue in this case. The effect of drinking the tea for the UDV members is an enhanced state of spiritual awareness.” When I refer to UDV ceremonies as “drug rituals,” John Boyd objects. “This is a sacrament that has been used in religious ceremonies for thousands of years,” he says. “There may be some naturally occurring DMT in their religious sacrament, [but] they don’t think of it as a drug ritual.”

Roy Haber offers a similar correction on behalf of the Santo Daime church he represents. “When these psychedelic plants are used in rituals, they’re not drugs,” he says. “This is not a drug use.” Haber likens the ceremony to transubstantiation in Catholic Communion. “For the Santo Daime,” he says, “the belief is that when the leaf and the vine are brewed together, there’s a point in time where they coalesce…and the Daime is born. It’s believed that Jesus is in the tea.”

It’s certainly true, as scholars such as Norman Zinberg and Andrew Weil have been pointing out for decades, that context shapes the experiences of drug users, especially in the case of psychedelics. The same drug can be used for radically different purposes, and the user’s intent, expectations, and environment make a big difference. Furthermore, each religious group determines for itself what its rituals mean; outsiders won’t get anywhere by arguing that Jesus isn’t really in the tea. Yet by insisting that they are not taking drugs, these groups create a false distinction that calls into question the relevance of their struggle to the broader cause of drug policy reform. From their perspective, their quest for religious freedom is not even a drug policy issue. “They’re trying to fundamentally divorce themselves from pharmacological reality,” says Rick Doblin, president of the Multidisciplinary Association for Psychedelic Studies. “What they’re trying to do is to say that our drugs are somehow not drugs. They’re trying to make this fundamentally incorrect and fallacious argument that their substances are sacraments, unlike LSD, and it’s just completely and totally bogus. The visions can be very similar.”

Just Say Know
Another potential concern for opponents of the war on drugs is that permitting the religious use of otherwise illegal substances, like permitting the medical use of marijuana, helps prohibitionists look humane and may reduce the pressure for reform. Both kinds of exceptions also reinforce the idea that you need a special, officially approved reason to use these substances, which is a far cry from being sovereign over your own body and mind. And just as medical exemptions force the government to define disease (even if only by deferring to government-licensed physicians), religious exemptions require the government to decide what counts as a religion, which means investigating people’s beliefs and giving some a higher legal status than others. Still, assuming inconsistent injustice is better than injustice uniformly applied, it surely counts as an improvement when at least some people who use politically incorrect drugs do not thereby risk arrest and punishment.

Graham Boyd, director of the Drug Law Reform Project at the American Civil Liberties Union, says the question of how religious use of controlled substances affects drug policy “would be viewed by most people who are engaged in this debate [as] beside the point, in the sense that most of the religious organizations, including those that use drugs for their own religious purposes, don’t see this as a fight about broader drug policy issues. These really are folks who have sincere religious beliefs and want to be left alone.” At the same time, he adds, “whenever the courts and the media and the public are able to have a conversation about drugs that is not framed in the usual terms of ‘how long should we lock people up?’…it brings reason and rationality to a subject that is usually much more about fear and untruths.”

Despite his objections to the anti-drug rhetoric of UDV and the Native American Church, Rick Doblin also is hopeful that legal protection for their rituals will help undermine drug prohibition. “People have had massive propaganda for decades about the dangers of these drugs,” he says. Religious use of psychoactive substances such as peyote or ayahuasca “suggests that people can take this powerful drug and end up better people for it. How is that possible with what’s supposedly a bad drug? You are helping to normalize the use of the drug, you’re helping to show the people it has benefits, and you’re reducing the effectiveness of the propaganda.” r

Senior Editor Jacob Sullum is the author of Saying Yes: In Defense of Drug Use (Tarcher/Penguin).

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