Tripping on Tea

By Jacob Sullum, Reason. Posted April 26, 2005.

Never mind the vomiting. For members of O Centro Espirita Beneficiente Uniao do Vegetal, drinking ayahuasca, a foul-tasting psychedelic tea brewed from two Amazonian plants, involves four hours of recitation, chanting, questions and answers, and religious instruction.

That may help explain why the church has only 130 or so followers in the U.S., despite the drug trips at the center of its rituals. But the federal government does not want to take the chance that Uniao do Vegetal, a synthesis of Christianity and indigenous South American beliefs that originated in Brazil, will do for ayahuasca what Timothy Leary did for LSD.

So in 1999, after intercepting a shipment of ayahuasca extract bound for Uniao do Vegetal's U.S. headquarters in Santa Fe, customs agents searched the home of the group's president, Jeffrey Bronfman, and seized 30 gallons of the tea. In a case the U.S. Supreme Court recently agreed to hear, the group's members are demanding that the government stop harassing them and start respecting their religious practices.

The Customs Service and the Drug Enforcement Administration say ayahuasca is illegal because it contains dimethyltryptamine (DMT), which is banned by the Controlled Substances Act. Uniao do Vegetal members say their use of ayahuasca is protected by the Religious Freedom Restoration Act (RFRA), which prohibits the government from imposing a "substantial burden" on the free exercise of religion unless it is "the least restrictive means of furthering [a] compelling governmental interest."

In 2002 a federal judge, concluding that Uniao do Vegetal was likely to win this argument, issued a preliminary injunction barring the government from interfering with the church's rites. A three-judge panel of the U.S. Court of Appeals for the 10th Circuit upheld the injunction in 2003, and last year the full appeals court concurred.

For the Bush administration, which is big on religion but down on drugs, this case ought to pose a dilemma. RFRA, passed in 1993 with strong support from religious conservatives, was aimed at maximizing religious liberty by requiring the government to meet a stringent test when it prevents people of faith from acting on their beliefs.

The law was a response to a 1990 decision in which the Supreme Court ruled that the First Amendment's guarantee of religious freedom does not require the government to tolerate the peyote rituals of the Native American Church. While the First Amendment bars the government from deliberately targeting a specific religion, the Court said, it does not require exemptions from "neutral laws of general applicability" that happen to interfere with religious practices.

"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'...contradicts both constitutional tradition and common sense," wrote Justice Antonin Scalia for the majority. "Any society adopting such a decision would be courting anarchy."

Notwithstanding Scalia's warning, Congress passed RFRA with the intent of restoring the "compelling interest" test the Court had applied before the peyote case. Although the Court ruled in 1997 that RFRA was unconstitutional as applied to the states, it still binds the federal government.

In a 2002 case that foreshadowed Uniao do Vegetal's fight for the right to drink ayahuasca, the U.S. Court of Appeals for the 9th Circuit suggested that RFRA might protect possession (but not distribution) of marijuana by Rastafarians. No doubt that possibility gives drug warriors nightmares in which everyone arrested on marijuana charges claims to consider the plant a sacrament.

Yet it's not as if the idea of exempting religious groups from drug bans is unthinkable. The Volstead Act allowed Jews and Catholics to continue drinking wine as part of their rituals, and the federal government (like many states) lets members of the Native American Church eat peyote, the very practice that gave rise to the Supreme Court's abandonment of the "compelling interest" test. It's hard to see why ayahuasca rituals, which are officially pemitted in Brazil, are less tolerable.

Still, Scalia had a point: Religious beliefs cannot be a license to break the law. The government would never allow a religious group to commit murder because its god demanded human sacrifices. Then again, preventing murder is a pretty compelling interest, part of government's central mission to protect people from aggression.

A good rule of thumb might be that when a religious group can reasonably demand an exemption from a law, it's the law rather than the group that deserves scrutiny.

Jacob Sullum is a senior editor at Reason and the author of "For Your Own Good: The Anti-Smoking Crusade and the Tyranny of Public Health" (Free Press) and "Saying Yes: In Defense of Drug Use" (Tarcher/Putnam).