TEA BREAK

SHOULD DRUG LAWS MAKE EXCEPTIONS FOR SPIRITUAL HIGHS?

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.