October 2005 • Anthropology News

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V I E W S O N P O L I C Y

Religious Freedom on TrialMATTHEW MEYER

U VIRGINIA

This fall, the US Supreme Court willclarify the scope of an important reli-gious freedom law when it decideswhether the US branch of a Brazilianchurch that uses a psychoactivesacrament in its rituals may continueto import and consume the drink.The case pits the centerpiece of theUS war on drugs, the 1970Controlled Substances Act, againstthe Religious Freedom RestorationAct, passed by Congress in 1993.

The União do Vegetal (UDV) is aBrazilian religion founded by anAmazonian rubber tapper in 1961,but its sacrament, a decoctionknown as hoasca or ayahuasca, has alengthy history of ritual use amongindigenous and mestizo people inthe upper Amazon. The Americanbranch of the church, the UDV-USA, was incorporated in 1993 andhas about 140 members.

One of the two plant compo-nents of hoasca, the leaf ofPsychotria viridis, contains DMT(dimethyltryptamine), which isclassified as a Schedule I hallucino-gen by the Controlled SubstancesAct. Schedule I drugs are consideredunsafe even under medical supervi-sion, although this legislationempowers the Attorney General toadd, remove or change the schedul-ing of a drug. The Justice Depart-ment has argued that hoasca cancause psychosis, would likely bediverted to non-religious use, and isillegal under the UN Convention onPsychotropic Substances. Lawyersfor the UDV contend that hoascadoes not present health risks as usedin the church’s rituals, and that it isnot regulated through the conven-tion. The Brazilian government hasrecognized the legality of religioususe of hoasca since 1986.

In 1999, federal agents intercepteda shipment of hoasca bound for theUDV-USA administrative offices inSanta Fe. Although no arrests weremade, the government refused toreturn the confiscated hoasca. TheUDV sued in 2000, asking a NewMexico District Court to declare thegovernment’s actions an illegalinfringement of its free exercise ofreligion under the Religious FreedomRestoration Act. Mainstream reli-gious groups, including evangelicalChristian and Catholic organiza-

tions, filed friend-of-the-court briefsin the UDV’s favor.

Religious FreedomRestoration ActThe Religious Freedom RestorationAct (RFRA) was passed in 1993 fol-lowing the Supreme Court’s ruling inEmployment Division v Smith (1990),another case challenging US druglaws. In that case, involving NativeAmerican peyote use, the Courtdeclared that laws which burden reli-gious practice do not violate the “freeexercise” clause of the First Amend-ment if they are not specificallydirected at a religion. A coalition ofreligious advocacy groups, wary ofthe implications of such a precedent,pressed Congress to pass legislationto compel the government to justifyrestrictions on religious freedom.

exemption for Native AmericanChurch peyote use dates to 1965under federal law, and the 1994American Indian Religious FreedomAct Amendments extended protec-tion to members of federally recog-nized tribes under state law. (TheAAA supported these amendmentsthrough a resolution.)

The growing body of anthropo-logical work on the several Brazilianchurches that use hoasca has hadlittle role in the case, partly becausethe government has not contestedthat the UDV is a bona fide religionbased on traditional Amazonianpractices. A biomedical study of theUDV in Brazil, however, did play amajor role in the court’s evaluationof hoasca’s relative safety, and testi-

União do Vegetal (UDV) temple in São Paulo, Brazil. The UDV is a Brazilian reli-gion founded by an Amazonian rubber tapper in 1961 and is now involved in acourt case concerning the use of its sacrament. Image courtesy of udvusa.com

mony drawing on this research hasstressed the importance of the con-trolled ritual context in minimizingrisks associated with UDV use of thepsychoactive sacrament.

Preliminary InjunctionIn 2002 a District Court judge agreedwith the UDV that the governmenthad failed to meet its burden underthe Religious Freedom RestorationAct and granted a preliminaryinjunction allowing the UDV toresume its religious practice, sus-pended since the 1999 seizure.

The injunction went into effectin December 2004, after two sepa-rate Court of Appeals panels upheldthe District Court’s judgment man-dating that the Drug EnforcementAdministration issue a license tothe UDV to import hoasca. Sincethat time the UDV has resumed itsbimonthly services with hoasca, inwhich church bylaws are read and

members may intone eso-teric chants and engagethe ceremony’s leader inquestion-and-answer ses-sions about church teachings.

But this March the Bush adminis-tration, acting through the SolicitorGeneral’s office, persuaded theSupreme Court to review the case,alleging that the preliminary injunc-tion “has forced the United Statesinto ongoing violation of an inter-national treaty and to open its bor-ders and its communities to theimportation, distribution and use ofa dangerous, mind-altering hallu-cinogen,” and that permitting it tostand “threatens to inflict irreparableharm on international cooperationin combating transnational nar-cotics trafficking.”

Attorneys for both sides will pres-ent oral arguments November 1, and

a decision is expected sometimebefore the Court’s summer recess.The preliminary injunction willremain in place pending the Court’sdecision. Should the UDV lose thecase and seek legislative reliefthrough Congress, anthropologicalknowledge that has been largelyignored in the courts of law maybecome crucial evidence in the courtof public opinion, just as authorita-tive statements about the antiquityand authenticity of Native Americanpeyote use were decisive in swayingperceptions of the American IndianReligious Freedom Act Amendmentsin the 1990s.

The case is Gonzales v O CentroEspirita, No 04-1084. �AN

Matthew Meyer (mdmeyer@virginia.edu)is a PhD candidate in socioculturalanthropology at the University of Virginia.He has written in greater detail about thiscase at www.neip.info.

V I E W S O N P O L I C Y

Under the act passed, any federallaw that “substantially burdens” reli-gious practice must serve a “com-pelling” government interest (suchas providing for public health, edu-cation or proper taxation), and mustdo so in the “least restrictive means”possible. A key issue in the UDV casehas been the degree to which theReligious Freedom Restoration Actauthorizes the courts to examine theparticular use made of hoasca by theUDV to determine if it poses signifi-cant risks to public health or a sub-stantial likelihood of diversion tonon-religious use. Lawyers for theUDV have argued that the lawrequires the government to provethat it has a compelling interest inprohibiting the UDV from usinghoasca in its rituals, and not just inenforcing controlled substances lawsin general. The Justice Departmenthas contended that hoasca is danger-ous and subject to abuse, and thatRFRA does not permit “judicial sec-ond-guessing of congressional find-ings concerning Schedule I drugs.”

The UDV has repeatedly assertedthat its situation is analogous toNative American Church use of pey-ote, also a Schedule I drug, and thatit should be treated similarly. Thegovernment counters that the situa-tions are not comparable becauseNative Americans’ “trust relation-ship” with the federal governmentmandates the preservation of indige-nous culture and allows differentlegal treatment for Indians. The