SPIRITUAL HIGHS AND LEGAL BLOWS

The Power And Peril Of Religious Exemptions From Drug Prohibition

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," page
50.) 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).