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Sacramental plant use wins in US Supreme Court case PDF Print E-mail
Written by Omar Figueroa   
Feds told drug prohibition can accomidate religious use

The US Supreme Court ruled Feb. 21 that the federal government couldn’t prohibit a “religious sect with origins in the Amazon Rainforest” from receiving “communion by drinking a sacramental tea, brewed from plants unique to the region, that contains a hallucinogen regulated under the Controlled Substances Act.” The entheogen drug in question is DMT (dimethyltryptamine), a Schedule I substance reputed to be one of the most potent psychedelics on Earth.

    Since cannabis is also classified under federal law as a Schedule I controlled substance, this opinion opens the door to a viable religious defense to federal marijuana charges. Given prior federal case law approving the religious possession and use of ganja by Rastafarians, the prospects are excellent for the recognition of cannabis as a sacrament under federal law.

    In this landmark case, the High Court upheld lower court findings that the government failed to demonstrate a compelling interest in forbidding members of O Centro Espírita Beneficente União do Vegetal (UDV), a Christian Spiritist sect based in Brazil with an American branch of approximately 130 individuals, from importing, distributing, and using sacramental ayahuasca or hoasca tea. The primary active ingredient in hoasca tea is DMT. The opinion was authored by Chief Justice John Roberts and was unanimous; however, Samuel Alito, Bush’s latest appointee and the rookie justice on the court, did not participate in the decision because he took his seat on the bench after the case was argued. Roberts noted that a big factor in the court’s decision was that the government conceded that UDV’s use of the sacramental tea was a sincere exercise of religion.

    The case dates back to 1999, when U.S. Customs inspectors intercepted a shipment to the American UDV containing three drums of hoasca. A subsequent investigation revealed that the UDV had received 14 prior shipments of hoasca. The inspectors confiscated the intercepted shipment and threatened the UDV with prosecution. UDV sued to block the threatened criminal prosecution, invoking the Religious Freedom Restoration Act of 1993 (RFRA), which prohibits the federal government from substantially burdening a person’s free exercise of religion unless necessary to further “a compelling governmental interest” and utilizing “the least restrictive means” of doing so.

    The Bush administration claimed its blanket prohibition did not conflict with RFRA because of three supposedly compelling governmental interests: protecting the health of UDV members, preventing the diversion of DMT from church to recreational users, and complying with the 1971 UN Convention on Psychotropic Substances. The administration was so desperate it resorted to the argument that there was no way to possibly accommodate the religious use of hoasca because otherwise the US would be violating its UN treaty obligations!

    The Court rejected all of the administration’s arguments. In his opinion, Roberts wrote that everything the government said about the DMT in hoasca also applies to the mescaline in peyote, which Native Americans have been allowed to use in religious ceremonies:

    Everything the Government says about the DMT in hoasca — that, as a Schedule I substance, Congress has determined that it “has a high potential for abuse,” “has no currently accepted medical use,” and has “a lack of accepted safety for use ... under medical supervision,” 21 U.S.C. §812(b)(1) — applies in equal measure to the mescaline in peyote, yet both the Executive and Congress itself have decreed an exception from the Controlled Substances Act for Native American religious use of peyote. If such use is permitted in the face of the congressional findings in §812(b)(1) for hundreds of thousands of Native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs.

The same can be argued for THC and cannabis: it is difficult to see how congressional findings alone can preclude any consideration of a peyote or DMT-like exception for members of a cannabis church who want to practice their religion. Notably, the court stated that a litigant who wants to invoke RFRA bears the burden of showing that the application of the Controlled Substances Act would (1) substantially burden (2) a sincere (3) religious exercise. Only time will tell how federal RFRA jurisprudence will evolve, but one thing is clear: there is much to look forward to.

* Figueroa is an attorney at the Pier 5 Law Firm in San Francisco.

 
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