June 1, 2007 - Reason Magazine (US) Spiritual Highs And Legal Blows The Power And Peril Of Religious Exemptions From Drug Prohibition By Jacob Sullum

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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 yage), 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,") 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.

Roy Haber, an attorney for the Santo Daime church in Oregon, says the federal government seized one of the group's tea shipments around the same time UDV's ayahuasca was confiscated, but since then there have been no prosecutions and no further interceptions. In 2000 Haber successfully petitioned the Oregon Board of Pharmacy for an exemption from state drug laws covering Santo Daime rituals. "It seems apparent to the board," it said, "that the sacramental use of the Santo Daime tea in the context of a bona fide religious ceremony by practitioners of the Santo Daime religion as described does not constitute abuse of a controlled substance." This was a striking turnaround for a state that back in the 1980s still viewed the use of peyote by members of the Native American Church as a crime, a position that gave rise to the Supreme Court's Smith decision, which in turn prompted Congress to pass RFRA. Haber believes RFRA protects Santo Daime as well as UDV from federal harassment, but so far that proposition has not been tested in court, and it is not a foregone conclusion. As Haber notes, "Each religion needs to stand on its own."

By Their Suits Ye Shall Know Them

Dan and Mary Quaintance's Church of Cognizance did not, in U.S. District Judge Judith Herrera's view. Members of the church revere cannabis as both a sacrament and a deity, identifying it with the Zoroastrian haoma and the Vedic soma. Their credo: "With good thoughts, good words, and good deeds, we honor Marijuana as the teacher, the provider and protector." The group is loosely organized, operating out of "monasteries" in members' homes; it claims 130 or so members, about 50 of whom live in Arizona.

In rejecting the Quaintances' argument that their church's marijuana use should be protected by RFRA, Herrera applied a test established by the U.S. Court of Appeals for the 10th Circuit (which includes New Mexico) in the 1996 decision U.S. v. Meyers. That case involved David Meyers, the founder of the Church of Marijuana, who claimed RFRA protected him from prosecution on federal drug charges. Without questioning his sincerity, the district court concluded that what Meyers considered a religion -- focusing on the medical, psychological, and social benefits of marijuana -- was actually "a philosophy or way of life." It drew this distinction based on five factors: "ultimate ideas," "metaphysical beliefs," "moral or ethical system," "comprehensiveness of beliefs," and "accoutrements of religion." The last category includes Judeo-Christian hallmarks such as prophets, sacred texts, gathering places, keepers of knowledge, ceremonies and rituals, organization, holidays, dietary rules and fasts, special clothing, and proselytizing.

The court cautioned that "no one of these factors is dispositive" and that judges "cannot rely solely on established or recognized religions in determining whether a new and unique set of beliefs warrants inclusion" in RFRA's protection. Yet these criteria, which the 10th Circuit accepted when it upheld the lower court's ruling, create an unmistakable bias in favor of religions with familiar features. They allow a judge to decide that a spiritual system that seems bizarre or unsatisfying is not really a religion at all. According to Herrera, the Church of Cognizance scores a bit higher on the Meyers test than the Church of Marijuana did, but it is still not elaborate, sophisticated, or comprehensive enough to qualify as a religion.

Herrera went further, questioning whether the Quaintances truly believed what they claimed to believe. "The evidence indicates that Defendants adopted their 'religious' belief in cannabis as a sacrament and a deity in order to justify their lifestyle choice to use marijuana," she wrote. "The Court concludes that Defendants do not sincerely hold a belief that marijuana is a sacrament and a deity. Defendants cannot avoid prosecution for illegal conduct simply by transforming their lifestyle choice into a 'religion.' "

Herrera may be right that the Quaintances were only in it for the pot. But if so, they went out of their way to call attention to themselves for no apparent reason. After Dan Quaintance founded the church in 1991, he filed a "declaration of religious sentiment" with the Graham County Recorder's Office, launched a website, and openly discussed his beliefs. Local authorities were aware of the Quaintances' religious practices but never took action against them, seeing no evidence of drug trafficking. The quantities of marijuana involved in their case and in the prosecution of another church member who was arrested in Missouri a week before they were pulled over in New Mexico -- 172 and 338 pounds, respectively -- are large for recreational smoking but not out of the question for the uses to which Church of Cognizance members put the plant. Marc Robert, a federal public defender representing Dan Quaintance, says that in addition to consuming cannabis in a ceremonial haoma beverage, church members use it in salves and anointing oil. Dan Quaintance estimated that each member requires 20 pounds a year, close to an ounce a day.

That may seem improbable, but so is the idea that the Quaintances, with their modest home, chronic car troubles, and spartan lifestyle, were professional pot dealers. And it is hard to question Dan Quaintance's sincerity after reading his testimony about the spiritual journey, featuring the avid study of ancient texts in dead languages, that led him to found the church. In disjointed but enthusiastic detail, he describes how analyzing and comparing passages in the Bible, the Zoroastrian Avesta, and the Hindu Rig Veda convinced him cannabis is a holy plant. But all of this is beside the point if, as Herrera concluded, the Quaintances' beliefs, no matter how sincerely held, do not constitute a religion. "She doesn't fully understand our doctrine," Dan Quaintance complained to the Arizona Daily Star after Herrera's decision.

A Hindu And A Rastafarian Walk Into A Bar

In addition to ruling on what is and what is not a religion, judges in cases like these are called upon to decide which aspects of a particular religion are central and which are dispensable. Back in 1967, for instance, the psychedelic guru Timothy Leary appealed his conviction on federal marijuana charges, arguing that he had a First Amendment right to use cannabis as a member of the Brahmakrishna sect of Hinduism. (At the time the federal courts were applying the "compelling interest" test that the Supreme Court renounced in Smith and RFRA re-established.) "The Hindu sect in India of which [Leary] became a member uses marihuana for religious illumination and meditation," the U.S. Court of Appeals for the 5th Circuit conceded. It noted testimony in which an American Hindu monk said "marihuana plays a very important part in the rituals" of the sect. But the monk "admitted that he was partially able to achieve and practice his religious beliefs in the Hindu sect without the use of marihuana." Because marijuana was hard to get in the U.S., "he [was] forced to use other psychedelic drugs [which, unlike marijuana, were still legal in the early 1960s] in conjunction with meditation and prayer."

Based mainly on that admission, the 5th Circuit concluded that marijuana was not essential to Leary's religion, so he did not have a First Amendment right to smoke it. "There is no evidence in this case that the use of marihuana is a formal requisite of the practice of Hinduism," the court said. In any event, "it would be difficult to imagine the harm which would result if the criminal statutes against marihuana were nullified as to those who claim the right to possess and traffic in this drug for religious purposes. For all practical purposes the anti-marihuana laws would be meaningless, and enforcement impossible."

This concern seems to be the main reason the courts have almost uniformly rejected the argument that the religious use of marijuana should be protected, whether by the First Amendment or by RFRA. Unlike peyote or ayahuasca, marijuana is widely popular, and the government does not want the burden of preventing diversion or of distinguishing between sincerely religious users and fakers.

Carl Olsen's unsuccessful quest for official tolerance illustrates the problem. Beginning in 1983, Olsen, a priest of the Ethiopian Zion Coptic Church, repeatedly asked the Drug Enforcement Administration (DEA) for a religious freedom exemption from the Controlled Substances Act covering the sacramental use of marijuana by members of his sect. Followers of the church, which originated in Jamaica and identifies itself as Christian, consider the black nationalist Marcus Garvey a prophet, see themselves as descendants of the Israelites, and believe the Bible repeatedly refers to marijuana (ganja), which they identify with "the eucharistic spiritual body and blood of Christ." The DEA ignored Olsen's request for accommodation of his church's ganja ceremonies until a federal court ordered it to respond. "In view of the immensity of the marijuana abuse problem in the United States and the magnitude of the criminal activity surrounding the production and trafficking in this substance," said DEA Administrator John Lawn, "the interest of the Ethiopian Zion Coptic Church in the ceremonial use of marijuana is outweighed by the compelling government interest in controlling the use and illegal distribution of marijuana in the United States."

Olsen went back to the courts, arguing that the DEA had not adequately explained its denial of his petition. When the case was remanded so the DEA could try again, he offered to observe several restrictions aimed at assuaging the agency's concerns: Marijuana would be used only during the church's three-hour Saturday night prayer service, and the participants, limited to adult members who had undergone the church's confession ritual, would remain at the meeting place until eight hours after the ceremony. The DEA responded that "such restrictions could not be monitored or enforced without significant intrusion by the Government into the religious practices of the Church. The monitoring of such restrictions would be extremely burdensome on an agency which is charged with enforcement of a very comprehensive drug law." No doubt the DEA was sincere in wanting to avoid the hassle of keeping an eye on Olsen's church, but its concern about government interference with the group's religious practices is hard to take seriously, since the alternative to supervision was prohibition. The U.S. Court of Appeals for the D.C. Circuit nonetheless upheld the DEA's decision.

Because of this history, it was startling when the U.S. Court of Appeals for the 9th Circuit suggested that RFRA might protect ganja use by Rastafarians. Like the Ethiopian Zion Coptic Church, the Rastafari movement, which has some 1 million followers worldwide and perhaps 5,000 in the U.S., originated in Jamaica and follows the teachings of Marcus Garvey. Rastafarians believe the late Ethiopian Emperor Haile Selassie I (a.k.a. Ras Tafari Makonnen) was the personification of God and consider ganja a holy source of wisdom. The 9th Circuit decision, handed down in 2002, involved a Rastafarian named Benny Toves Guerrero who was arrested at the Guam International Airport with five ounces of marijuana and 10 grams of marijuana seeds. Although the Supreme Court has said RFRA is not binding on state governments, the 9th Circuit concluded that it does apply within "the federal realm," including U.S. territories such as Guam. But the court ruled that the statute did not bar prosecution of Guerrero for bringing marijuana into Guam, since "we are satisfied that Rastafarianism does not require importation of a controlled substance." That much was consistent with previous rulings by the 9th Circuit and other federal courts involving marijuana smuggling by Rastafarians. At the same time, the court implied that prosecution for simple possession might be a different matter.

Our Drugs Are Not Drugs

Meanwhile, the Native American Church of North America, the one group you might think would be cheering on sects seeking permission to use their sacred substances, has reacted to such cases with skepticism and fear, if not outright hostility. Earl Arkinson, who was the church's national president during the Uniao do Vegetal litigation, says his organization (which does not include all Native American peyote churches) decided not to support UDV, partly because it worried about jeopardizing its own protected status. Among other things, UDV argued that it was wrong to suppress its rituals while tolerating the Native American Church's. In theory, one way of resolving the inconsistency would have been to eliminate the Native American Church's privilege rather than extending it to other religions.

"If whites make an establishment claim, the church's fear is that [the American Indian Religious Freedom Act] would be struck down," says Eric Sterling, president of the Criminal Justice Policy Foundation, who after the Smith ruling in 1990 helped organize the push for statutory protection of peyote rituals. "Generally, the Indians are very fearful that white people will endanger their religious freedom by their promiscuous claim that their drug use is religious and entitled to the same protection that the Native American sacramental use of peyote has been given."

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 upUKP'...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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