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AYAHUASCA, RELIGION AND THE U.S. SUPREME COURT: CULTURAL
CONTEXT AND IMPLICATIONS OF A LEGAL DISPUTE
/
Alberto Groisman, Ph.D.
Arizona State University, Tempe
Universidade Federal de Santa Catarina,
Florianópolis
Marlene Dobkin de Rios, Ph.D.
University of California, Irvine
Introduction
The effects of ayahuasca in human beings have been regarded by researchers, shamans,
followers of religious groups, occasional users, and also by governmental authorities, as
having “religious”, ‘therapeutic”, “spiritual”, and “constructive” qualities. Ayahuasca
has also been called a “sacrament” and considered by indigenous populations to
comprise “plant teachers”. It has been considered harmful only in peculiar and extreme
situations, such as when ingested in excessive quantities, or when used in combination
with other substances, such as with monoamine oxidase (MAO) inhibitors like Prozac
and fermented dairy products. In North America and European countries, however,
the effects of ayahuasca are presumed to primarily reflect one of its compounds, DMT
(5,5,N,N dimethyltryptamine), which is classified as a “Schedule I” drug. This is
construed as making ayahuasca illegal, reflecting a repressive attitude that has
characterized the 20th century drug laws, and especially in the last decades in what has
been called the “Drug War” (see Boire, this volume).
In contrast to this generally repressive attitude and re-affirming the general treatment
which has been granted to the ritual-religious use of peyote in the United States (also
see Feeney, this volume), in the Fall of 2005, the U.S. Supreme Court in Gonzalez v. O
Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. (2006), ruled that the Brazilian
religious organization with branches in the United States would be allowed to ingest
ayahuasca, even though it contains DMT. The tea—hoasca or ayahuasca-is used by the
União do Vegetal as a sacrament in its religious rituals and has legal protections in
Brazil. In this case, the U.S. Government initially refused to allow the ayahuasca
through customs, seizing and threatening to destroy it. As a result, the UDV filed a
federal lawsuit against the Attorney General to compel the government to return the
hoasca and to allow the UDV to import and use the tea in their religious ceremonies.
The District Court of New Mexico granted a preliminary injunction to UDV.
In this chapter, we examine from different perspectives the process and reasoning of the
Supreme Court Justices in allowing this psychedelic brew to have legitimate and
protected religious use, a phenomenon with important precedent for the future of
sacramental psychoactives use.
Additionally, we examine the history of ayahuasca use in Brazil, as it progressed
from indigenous Amazonian use for healing and shamanic activities to sacramental
1
use among several religious and New Age religious groups in that country. The
Supreme Court’s decision has been one with potentially important significance for
minority religious groups in America whose practices clash with the nation’s drug laws.
This paper shows how these activities may be afforded protection from government
oppression under statutes protecting religious liberty. We also provide a broader
examination of the context in which the decisions of the US Supreme Court are
involved and interpretive approach to the implications of its deliberations.
Ayahuasca and Religion in Brazilian Society
The legal status of substances such as Ayahuasca is becoming increasingly
important as the high court’s positioning may establish borders between what is,
and what is not acceptable legally, and as a consequence, socially and
culturally. An acceptance criterion was established for social and legal status of
ayahuasca use in Brazil and therefore for the ayahuasca religions originating in
Brazil over the last decades. Based on the claims of followers of these
religions and also occasional ritual participants and authorities, ayahuasca is
associated with religious, spirituality-focused, therapeutic and socially
constructive experiences. Therefore, the history of the incorporation of ayahuasca
into Brazilian society is useful for understanding the UDV conviction to fight
for its acceptance in the U.S.
In the Brazilian Amazon ayahuasca has been used in the context of
Indian societies and in later periods among the non-indigenous population,
generally in locations remote from urban areas. Ayahuasca use has been
configured by particular cosmologies and practices, most of them regarded as ritual or
religious, which were based on shamanistic knowledge about the use of plants.
In this context, the knowledge and the prerogative of the ritual
administration, and in some cases the use of ayahuasca itself, was reserved for experts
alone.
The best-known area where the non-indigenous organized religious use
of ayahuasca emerged in Brazil is the state of Acre, in southwest Amazonia, at
the border of Bolivia and Peru. In the populated area of Rio Branco, the
capital of Acre, ayahuasca use has been highly influenced by 'institutionalizing'
religious ideologies, such as Christianity and particularly initiation-focused spiritualist
schools such as Esoterism and Kardecism. The religious systems which emerged from
the beginning of the 20th Century at that region have been called Brazilian Ayahuasca
Religions (Labate & Araújo 2004). In this sense, the expression Brazilian Ayahuasca
Religions have been widely used to identify groups of people/religious organizations
primordially set in Brazilian territory, who use a ritual preparation of the plants
Banisteriopsis caapi and Psychotria viridis in rituals, which most known identification
is ayahuasca, despite the fact that in these groups is re-named according cosmo-
ideological reasons, as daime, hoasca, and vegetal.
The three more visible Ayahuasca-using religious systems which emerged in Brazil in
the 20th Century and which can be recognized today are (1) Santo Daime, that from
more early foundation - by Raimundo Irineu Serra, probably between the 1920s and the
1930s, in which the beverage is called daime (MacRae 1992; Soibelman 1995;
Groisman 1999); (2) Barquinha, founded by Daniel Pereira de Mattos still in the 1950s,
2
from an experience he had with his uncle’s, Irineu Serra, daime, and which inspired him
to start his own group (Araújo 1999); and (3) União do Vegetal, founded in the early
1960s, by José Gabriel da Costa, who, according his followers have learned to use
ayahuasca alone and among the caboclo population at the borders with Bolivia and Peru
(Henman 1985; Brissac 1999).
One can argue that these spiritualist schools, by means of personal or institutional
affiliation, significantly influenced the shift from a small-scale individually-organized
session that characterized mestizo use in Peru and Bolivia (Dobkin de Rios 1972; Luna
1986) to a collective-institutional-focused organization of ayahuasca-using groups in
Brazil.
Influenced by the so-called New Age Movement (Heelas 1996), in Central Brazil, there
are religious and non-religious ayahuasca-using based groups in both rural and urban
zones. Their forms of organization may be seen as ideologically connected to a
phenomenon that been called “new religious consciousness” (Soares 1990), which in
addition to spiritualism, includes environmentalism as its more substantial ideological
appeal. The followers in the urban areas are in general middle class civil servants,
therapists, micro entrepreneurs, military personnel and intellectuals, in groups such as
Santo Daime, União do Vegetal and Barquinha. In these settings, pychotherapeutic and
spiritualist approaches are combined with doctrinaire principles in a more specific and
pragmatic form. This can involve for example middle-class people searching for
spiritual development or self-knowledge or/and drug addicts in search of treatment with
ayahuasca, an increasing trend since the end of the 1990s (Rose 2005).
In sum, although cosmological systems motivated by ayahuasca experience have
general religious significance in South America, in Brazil the religious character of the
experience is emphasized. Perhaps it would be more precise to say that it was in the
Brazilian context that 'religious use' became a 'native' form of the definition of
ayahuasca experience, and an important element for the construction of the identity of
Brazilian ayahuasqueros (healers and others who are regular ayahuasca users).
Moreover, it is the religiously-motivated approach which has been an effective basis for
legitimization, establishing a sort of 'social control' on ayahuasca use through an
informal assumption that non-religious use may not be an 'authentic' sacrament.
The Brazilian Religious Context
A definition of what we may call the “Brazilian Religious Context” has been a
challenge for researchers. Hess, for example, considered Brazil a “laboratory of
religious complexity (…)”, which has “(…) two major poles – one represented by the
Catholic church and the other by the popular religions of African origin-with a number
of other positions in between…the two poles are the product of Brazil’s colonial legacy
of racism and slavery, and in this sense the religious playing field is already structured
by a more general and historically rooted hegemony.” (Hess 1995: 180). The
Catholicism brought by the Portuguese colonialists to Brazil became a dominant and
hegemonic religion, cultivated by powerful landlords, and later by economic elites, as
the 'official' religion. In this way, Catholicism was legitimized as a religion as a space
where social differences did not exist, where “the poor could share with the rich”, where
“in the eyes of God everyone is equal”. The utopia of such an open religious path is
regarded as responsible for establishing a basis for the emergence of what has been
3
called a different “Brazilian” “style of spirituality” (Carvalho 1994)
The hegemony of the 'official' Roman Catholic Church established in colonial times is
still evident, but over time a significant place was granted in the socio-cultural and
political context to Popular Catholicism (a sort of reaction to Institutionalized
Catholicism) and to the emerging Protestantism (basically for the so-called Neo-
Pentecostal religions). In this dynamic, “local” interpretations and practices of
Christianity increased, developed in many regions of the country.
Beyond this process of re-interpretation, Carpenter and Roof (1995) noted
for example that, in the 1980s, a significant decline in the Brazilian Catholic population
was detected. The situation was characterized by what the authors define as a “Roman
Catholic Center with an Effervescent Periphery” (1995: 47). At the end of the 1990s,
this “periphery” was more than “effervescent,” and those that significantly increased
their presence in the Brazilian religious context included: Evangelical Protestant
churches, best known as neo-pentecostalism; the European - but locally adapted
Kardecismo; and the Afro-Brazilian religions. In sum, a “religious way of life” is an
important part of Brazilian context and identity construction. As Bastide (1978) had
described, the pluralistic religious scene is occupied by different and “interpenetrated”
forms of religiosity.
Hess points out that Brazil can be compared only with the United States and Canada in
terms of its continental proportions, regional contrasts, demographic diversity, and
economic divisions (Hess 1995). Thus, locality and diversity are important conditions
for religious choice. Catholicism is included in what Hess calls an “ideological arena”
(Hess 1991), in which, religion, science, medicine, social science, and political
ideology, at both the national and the international level, struggle to construct
hegemony. In this context, different religious systems also dispute the interest of
potential members and more than “faith” is relevant to maintaining prestige and social
acceptance. Therefore, the other levels of social relations have to be addressed by
religious institutions to construct a legitimized place in the society.
This social-political dynamic had also triggered another phenomenon which has been
called by Brazilian religious context researchers trânsito religioso (literally “religious
transit”). The expression synthesizes the phenomenon of the almost freely accepted
movement among different religious systems that a Brazilian citizen can be involved in
simultaneously. In discussing what may be the fundamental cultural background for this
sort of “transit”, Brandão (1994) points out that in Brazil, each religious system, each
institution which produces “religious significance” does not want to claim to have the
“whole truth”. They all may focus on a “meaning exchange”. Therefore, despite the fact
that the Catholic church is hegemonic, there is an intense movement of followers
between different religious systems. In this sense, it is possible to see a person from a
Catholic background, who today attends a mass with the family, praying for God to give
him health and prosperity, and who tomorrow may attend a Umbanda ritual, dancing
under the control of an African divinity, or incorporating a spirit of a Caboclo, or of a
Pomba-Gira, or of a Preto Velho, and giving/obtaining spiritual advice for finding a
lover or money.
The Brazilian Cultural Context and the UDV
4
The União do Vegetal, founded as we mentioned already in 1962 by José Gabriel da
Costa, as it has been argued by Sergio Brissac (1999), should be viewed as part of the
Brazilian “religious panorama”, fundamentally to ritualize the frontiers between
personal/daily life and the individuals’ experience with ayahuasca.
An extensive study of the historical trajectories of the so-called Brazilian Ayahuasca
Religions in this sense shows systematically this religious trend of encapsulating the
states of mind and body provided by the substance as part of a “religious experience” as
opposed to simply “getting high.”
A very brief approach to Brazilian forms of religious expression on another hand can
illustrate that in Brazil the ayahuasca-using organized groups formulated different ritual
systems to develop their activities and to be part of this religious panorama.
Consequently, since its earliest introduction to non-indigenous settings, cosmological
ideologies based on foreign spiritualist traditions such as Christianity, Kardecism,
Theosophy and Afro-Brazilian religions were associated with ayahuasca use.
The Brazilian anthropologist, Roberto Da Matta has argued that “cultural consistency”
in the form of an aggregating ideological force was applied to diverse migratory groups
in an extensive territorial occupation since all of Brazil was colonized initially by the
Portuguese. In that sense, Portuguese colonialist ideology was mainly focused on the
“transfer” and reproduction of social-cultural controlling features from the host country
to the colony.
As DaMatta showed (1974) as soon as the Portuguese invaded what was to be Brazilian
territory, they consistently tried to make it an “Immense Portugal”. Therefore,
Portuguese social and legal structures were applied by colonial administrators to the
colony. Throughout history, a highly hierarchical society was constituted, based on an
extensive and extended chain, in which even the personal treatment of a common citizen
provided to, or by, a state authority was regulated and bureaucratically established.
Although today, the imported social structure is no longer central to the Brazilian elites,
its “cultural effects” have been reported as far as it concerns the reaction of oppressed
populations. Therefore, the reaction to this system was configured by a permanent
motivation to transgress limits and regulations which were considered to characterize
the Brazilian cultural context as an expression of a constant “dyonisian” character in a
changing social-cultural environment. In addition, if we transpose this argument to
religious life in Brazil, actually it is possible to find elements in many of the Brazilian
religious systems that refer to “paths” and “beings” who are in mediatory and transitive
status. This suggests that, an in daily life typical of highly hierarchical structured
society, the oppressed may seek “another place” to work out mediation, ambiguity and,
fundamentally, existential negotiation. And this place may be called a “spiritual
plane,” “spiritual world,” or “world of spirits”.
This evaluation of a permanently changing/mediating cultural conduct may be actually
challenged and shared by what we can find on “the other side of the coin”, or in the
rigid and conservative style found among some segments of Brazilian society. In an
ambiguous way, the life styles that originated from populations with so-called middle-
class background incorporate - at least in the members’ discourses - the idea of “order
and hierarchy.”
This reflects the colonizers’ expectation on how the colonial population should behave.
Among this segment of the Brazilian population, conservative values and hierarchical
5
structures are highly regarded, military organization is adopted, even regarding how a
psychoactive-substance is to be used by a religious group. The UDV paradoxically has
appropriated conservative values which emphasize a general “State-enforcing” attitude
configured in political investment in legalization and public acceptance of their own
religious practices. In addition, the UDV publicly accuses another Brazilian ayahuasca
religions of using “illegal” drugs, as in the case of the Santo Daime group, which has
traditionally included cannabis as a sacramental plant along with ayahuasca in its
pantheon.
It was this general conservative attitude of the UDV which stimulated Anthony Henman
(Henman 1985) in one of the first academic works published about UDV outside Brazil
to call the organization “authoritarian”. In concluding, we can think about the Brazilian
cultural context as sympathetic to both innovative and conservative forms of religion,
including those that use “hallucinogenic” drugs basically as a cultural strategy to
provide ways to prevent unilateral dominance, and furthermore, to be efficacious in
meeting the needs of their adherents.
The legal status of ayahuasca and its derivatives in Brazil
The use of ayahuasca is not completely “legal” in Brazil. Similar to what has happened
in the US, official permission was granted by Brazilian governmental agencies
exclusively for the ritual-religious use of substance. Historically, the process of
establishing the legal status of ayahuasca in Brazil was much influenced by the
existence of active ritual-religious ayahuasca using groups such as Alto Santo (the first
and still existent center founded in Brazil in the beginning of the 20th Century) Santo
Daime-CEFLURIS, UDV and Barquinha. In the 1970s and 1980s, after a long term
informal tolerance of local ayahuasca-using groups, Brazilian authorities, reacting
against the national expansion of these groups, started a campaign to include ayahuasca
and the plants with which it is combined on the Controlled Drugs List - DIMED. The
authorities’ claims went to the Conselho Federal de Entorpecentes (CONFEN) (later
replaced by the Conselho Nacional de Drogas), the governmental agency responsible for
controlling the production, distribution and consumption of drugs in Brazil. The agency
placed the plants on the list, but after reactions from religious groups, they appointed
several expert commissions. The first, in 1986, reported its conclusions, recommending
the exclusion of the plants from the list, which was established by the Resolução do
Conselho Federal de Entorpecentes - CONFEN, n° 06, de 04.02.1986. The two other
commissions, in 1987 and 1992, confirmed the decision. In 2004, the Resolução n° 5
CONAD, (of 11.04.2004) consolidated the previous decisions and established the
procedures for the permanent legalization of the ritual-religious use of ayahuasca in
Brazil.
Religion and the U.S. Supreme Court
A controversial issue, the theme of religious liberty, has been central in the debate about
the U.S. Constitution’s regulations in the U.S. Supreme Court. In examining the text of
the U.S. Constitution First Amendment, one may realize that writers were concerned
with controlling the elites’ power – represented by the State – to rule the consciousness
of others. This concern was fundamentally derived from a reaction to centuries of
religious-based oppression and political domination. The concern with the controlling
6
power of the state and its agents to rule individual consciousness is clear. However, in
searching for the implications of the text itself, its contents suggest that it intends to
establish a circumstantial “accommodation” in case of divergence and dispute. In sum,
the motivations of governmental politics and agendas may first attempt to prevent
controversies, but finally, to create given facts for a subsequent court dispute.
Pohlman’s (2004) compilation of cases concerning constitutional debates in the U.S.
points out that: “religious freedom in the United States is based upon two constitutional
principles that pose difficult problems of interpretation because they are in tension with
one another. The First Amendment prohibits the federal government from promulgating
any law ‘respecting an establishment of religion’ or ‘prohibiting the free exercise
thereof.” (Pohlman 2004: 249). In this context, the author asks: “Is a tax on church
property an illegitimate burden upon religion prohibited by the ‘free exercise’ clause or
is a religious exemption from the tax an illegitimate ‘establishment’ of religion?”
(Ibid.). In this simple question, Pohlman summarizes the “legal problem” of legal text
interpretations and decisions, as an absolute lack of self-evidence in many legal
systems. Pohlman also addresses the semantic tensions raised by different
interpretations of the text of laws. Interestingly, the dynamics of law or of legal
judgment processes meets the same problems generated by religious practices
throughout history. In sum, as in theological discussion, judicial debate is also
concerned with the best meanings for the adoption of regulatory texts, such as
constitutional ones. An eloquent example of this tension can be found in the First
Amendment text itself, from which one may ask: “what does it mean for government to
“abridge” free speech?”
Another researcher who also has analyzed the U.S. Supreme Court approach to the
religious freedom disputes was Carolyn Long (2000), who examined perspectives of the
controversial peyote-related legal case Employment Division of Oregon v. Smith, 494
VS. 872 (1990). Long takes as a principle that: “… during the sixty years of the
Supreme Court's free exercise (of religion) jurisprudence, the definition and application
of the free exercise clause as a protector of religious conduct had not progressed a great
deal …” (Long 2000:52). In following, Long discusses relevant issues from the First
Amendment related decisions of the U.S. Supreme Court involving similar cases in light
of the fact that when more than one constitutional issue is articulated the court may
pronounce itself in more favorable terms. Interestingly, the manner in which the case
was appealed to the Court had a direct effect on how the Supreme Court framed the
First Amendment issue in each case and the outcome of the decision: “Cases involving
multiple First Amendment guarantees were successful, and those appealed only under
the free exercise clause were unsuccessful” (Long 2000: 51).
Analyzing the Supreme Court decisions in its historical trajectory, Long observes that
the attorneys’ strategies in cases involving the First Amendment on the religion free
exercise appeal were consistently more successful when articulating the argument with
other constitutional guarantees. Another relevant issue is the compelling interest test
created to establish a parameter of evidence the consistency of governmental claims on
religious freedom-associated disputes.
“The contemporary treatment of religious related clauses was set up by the
constitutional standard promulgated in the case known as Sherbert v. Verner, in 1963,
when the U.S. Supreme Court adopted definitively the application of a compelling
interest (…)” (Long 2000: 52).
7
U.S. Supreme Court Deliberation in Gonzalez v. O Centro Espirita
Beneficente Uniao do Vegetal
In this section, we do not provide a full legal analysis, but rather look at key issues. The
U.S. government accepted that the UDV was a genuine religious organization with a
sincere use of hoasca for religious purposes. Evidence was marshalled by the UDV
lawyers to show long-term religious use of ayahuasca in the Amazon region for
millennia. The U.S. government’s concern, rather, was that the tea used as a sacrament
has as one of its constituents, dimethyltryptamine (DMT), a Schedule I drug. This was
prohibited by the Federal Controlled Substances Act and considered to constitute a
harm/danger that over-rides individual religious rights. The UDV countered with their
argument that the Religious Freedom Restoration Act (RFRA) of l993 allowed them to
use the hoasca because it was an essential sacrament in their religious rituals and that
the seizure of 30 kgs. of the hoasca tea was a violation of the religious rights of the
UDV members.
There were two appeals by the government after the UDV obtained favorable
rulings of the preliminary injunction. First, the U.S. government was given an
emergency stay while their request was reviewed; then it was followed by an
appeal to the U.S. Supreme Court. In March 2005, the Supreme Court heard arguments
by both sides. On February 2l, 2006, in a unanimous opinion authored by the new Chief
Justice Roberts, the court ruled in favor of the UDV. The reasoning was that the RFRA
passed by Congress allowed the federal courts to determine on a case-by-case basis if a
federal law placed a burden on a religious practice. The drug property of the mixture
was not itself sufficient grounds to deny the UDV’s religious practices. The burden fell
on the government to prove that the UDV ‘s religious use of hoasca was outweighed by
the danger of the DMT. The government made three arguments to ban all use of
hoasca, including UDV religious use. First, they argued that it was necessary to protect
the health and safety of the UDV members, l30 of them in New Mexico. Secondly, they
argued that the ban was necessary to prevent the illegal diversion of ayahuasca outside
of the UDV church. They finally cited the international drug control
treaty, the l97l Convention of Psychotropic Substances, which required the U.S. to
prohibit all use of DMT, even the trace amounts found in the hoasca tea used by the
UDV (see Boire, this volume).
The first two interests—health of UDV members and the prevention of diversion—were
seen to be a “wash” with both sides’ arguments canceling each other out. The
government argued that DMT was unsafe and that hoasca could be diverted. The UDV
on the other hand had evidence to show that the tea was quite safe, and no actual
diversion had occurred in the past. Evidence from the Native American Church’s safe
use of peyote, also a Schedule I drug, was introduced and the hundreds of thousands of
individuals who took the substance in a religious setting without problems was cited.
Thus, the government didn’t meet its burden of proof to justify the specific harm
entailed.
Finally, in reference to the l97l Convention of Psychotropic Substances that required the
U.S. to ban all use and importation of DMT, the UDV argued that it did not apply since
the DMT was in plant form, which was not covered by the convention. The Supreme
Court found the argument to be spurious because while the method of preparation may
8
not be advanced, consisting only of a simmering brew, the tea nonetheless qualified as a
preparation under the Convention. But in ruling in favor of the UDV, the Court argued
that the government failed to present any evidence to show how that exemption for the
UDV would frustrate the government’s international duties under the Convention. The
Court noted that the UDV, as a religious organization, uses its hoasca sacraments very
carefully. It monitors its members health and there is a very small number of adherents
in the U.S. As Boire (this volume) points out, this is the first entheogen case to reach the
Supreme Court after the findings in Department of Human Resources of Oregon v.
Smith, when the Court found that the First Amendment’s free exercise clause did not
protect the use of peyote by the Native American Church. Subsequently, Congress has
reiterated the importance of the free exercise of religion when it enacted the Religious
Freedom Restoration Act. In the future, the RFRA will have to be applied to relevant
situations on a case-by-case basis, as specifics of religious practices involved will be
examined, along with the details of the entheogen in question and particular reasons and
evidence the U.S. government presents regarding why no accommodation is possible.
Jeffrey Bronfman, the chief Mestre, or religious leader of the UDV in the United States
has argued that the case is unique in many respects because it involves a clash between
two federal statues, one based in the First Amendment to the Constitution and
protecting an individual’s free exercise of religion, and the other serving the important
governmental and public interests of protecting society against the abuse of drugs.
Richey, in an article for the Christian Science Monitor (2006) wrote that the RFRA
requires the federal government to justify any measure that substantially burdens a
person’s ability to practice his/her religion. This finding is a robust defense of religious
liberty and the individual’s ability to practice his faith free of government interference.
It supports the use of drugs or any other material substances as an aid or pathway to
spirituality or a greater understanding of the divine.
Legal decisions as cultural devices
The contents and forms of UDV-USA legal case arguments and their relationships with
empirical knowledge reveal and situate political aspirations, expectations, and
subjective concerns held by representative agents of the State, the groups involved, and
of other interested parties to the UDV-USA case. These include the US Supreme Court
magistrates, regarding: (1) what they think about the accepted knowledge on the effects
of the use of psychoactive substances for individuals and groups; (2) how these agents
in the context of these disputes evaluate the consequences of the regulatory texts in face
of empirical knowledge produced by researchers; and, (3) which may be the parameters
established for understanding the mechanisms used as fundamentals to assure the rights,
the integrity and well-being of users associated with the ceremonial-religious ingestion
of psychoactive substances.
Analysis of the legal debate regarding the religious use of psychoactive substances in
the UDV-USA case reveals the influence of the State in configuring religious practices.
When legal concerns are added to the general attitude among religious followers, it is of
considerable importance that adherents may modify routines to satisfy the new
requirements. This includes, for example to limiting access to those who would be able
to use the ayahuasca for therapeutic purposes. Or it might include limiting the religious
use to those for whom it is “medically safe”, even though it is a sacrament to be
generally used by religious adherents.
9
A religious group that uses a sacramental-divinatory psychoactive substance necessarily
implies expression of self and models of being that are negotiated with followers. In this
aspect, forms and processes of negotiation are triggered by the trial itself. The
negotiation, and its implications, when lacking fruition may provoke conflict. The
contents of this conflict, when motivated by inconsistent governmental action, are based
mainly in an emphasis on the role of the state as a simple regulatory agency, e.g., the
state agents, as drugs control agencies, or repressive agencies, are activated by a
superficial conception of the related phenomena. In other words, the investigation may
be carried out only to produce evidence of pre-conceived “potential” and even
hypothetical harm.
The cases of peyote and ayahuasca in the U.S. appear to be good examples of a
conflictive attitude in this matter. An examination of the implications of permission and/
or prohibition contributes to the competence of the State in preparing and substantiating
itself for deliberate action on the legality and the legitimacy of these religious practices.
Both the explicit and implicit vision expressed in the texts of official agents concerning
the use of these psychoactive substances to modify states of consciousness, have been
motivated mainly by a narrow view that mechanically associates “drugs, crime and
illness”. This produces and infuses an existent semantic field as Umberto Eco (1976)
has called a specific and historically configured articulation of ideas and key-words
which may constitute a supposedly logical framework to provide sense to thought and
attitude. This framework as applied by the social actors involved may consequently
produce expressions of rejection and conflict. In cases such as those related to so-called
drug abuse, relations of conflict have been contemporarily established at a generalized
level. Authorities have been motivated by quantitative data, with a strong “medicalized”
influence from epidemiology. Therefore, the evidence to sustain a recommendation for
the proscription of substances is produced in clinical/hospital-like contexts, with
synthesized samples of the substances. The empirical basis for the U.S. government’s
argument against the use of ayahuasca from DMT’s focused on research that is typical
and paradigmatic to understand the issue we raise here.
In the semantic field created by previously defined and repressive attitude, ayahuasca -
called by religious users a “sacrament” - may be called “drug”; its transportation from
where it is prepared to where it will be use in worship may be called “trafficking”; and,
its effects - recognized by adepts as “divinatory”, “therapeutic” or oracular - may be
regarded as “hallucinatory”, “risky” and/or harmful to health.
Therefore, in a context of arguments regarding the supposedly and potentially harmful
effects of ayahuasca, an eventual permission to use the substance might be associated
automatically with anti-drugs policies. It is likely that this attitude may prevent the
expansion of the knowledge about social and cultural effects of the use of these kind of
substances, at least in a religious-ritually controlled context.
Implications of the UDV-USA case
The UDV-USA case has opened a very significant space for the debate on the so-called
constructive, beneficial, or ritually controlled use of psychoactive substances in non-
medical contexts. Furthermore the U.S. Supreme Court decision on Feb 21 2006 shows
that it considered seriously recommendations like those that made by Calabrese in his
10
analysis of the outcomes of already mentioned Employment Division of Oregon v.
Smith, 494 VS. 872 (1990) peyote use related case: this was fundamentally, to treat
consistently, and also not ethnocentrically, such legal disputes (Calabrese 2001). The
serious consideration by the U.S. Supreme Court justices was demonstrated in a very
cautious and skeptical position when confronted with superficial arguments not very
well sustained by evidence. In the UDV case, there was a slightly different attitude
in which the justices demonstrated care in accepting official arguments.
The most visible impact of the U.S. Supreme Court’s decision is its referendum on the
historically controversial permission for the use of peyote in a ritual-religious setting
within the Native American Church. While having avoided establishing a definitive
permissive status for any religious use of psychoactive substances, the Supreme Court
may have sealed its position about inconsistent arguments on the “risk and prejudice” of
using any kind or quantity of a psychoactive substance.
The following sections analyses some of the cultural, legal and political implications of
the Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S case and US
Supreme Court decision which go beyond those already mentioned by Boire (this
volume).
Culture and Sovereignty
Theories on cultural “modeling” (Geertz 1973) and/or cultural-focused phenomenology
(Winkelman 1996; Csordas 1994), have had a fundamental place in the debate on the
relationships between humans and humans, and humans and planetary “natural”
resources, among which are included psychoactive plants. Therefore, it is relevant here
to note the remark made by Boire (2006) that “the Supreme Court rejected the finding
by the District Court, explaining, Hoasca is a solution or mixture containing DMT; the
fact that it is made by the simple process of brewing plants in water, as opposed to some
more advanced method, does not change that. The tea plainly qualifies as a preparation
under the Convention” (2006:20).
This quote by Boire from the Supreme Court decision text, implies a culture theory
discussion which shows a lack of consideration to what classic sociologistsi have
pointed systematically out - namely that ritual is a form of social-cultural saturation of
people and things, and also contemporary researchers, like Norman Zinberg (1984), for
example, and his set and setting analysis model have also affirmed.
Therefore, if the “preparation” here would simply be to put the plants together and
simmer them, we would agree with the court’s reasoning. However, if we
consider from a sociological as well as phenomenological positions that a “religious”
use and context is justified and applied, (as was granted to peyote ritual religious use by
Native American Church participants), it is consequent to accept that a “ritual-religious”
preparation may also “socially and culturally saturate the substance”.
The legal debate in the UDV-USA case shows how cultural concerns may have a
profound impact in establishing limits and permissions for accepted social practices as
they emerge in an urban-industrial society and are “globalized” and regulated by written
laws. A great deal of discussion was carried out between judges and attorneys to figure
out the acceptable extensions of the limits of sovereignty established by the
11
International Treaties signed by U.S. Governments across time and Constitutional valid
legislation. In addition, the Supreme Court Justices duely considered the precedence of
the 1976 versus that of the 1987 international treaties on control of drugs, and the
legislation triggered by the First Amendment, which was in 1994 consolidated by the
Religious Freedom Restoration Act.
Furthermore, the concept of sovereignty was also called upon when the U.S. attorney
argued that if ayahuasca religions come from another country, that country’s
government should be responsible for, and called upon to control its expansion. These
debates became so intense in the hearing of November 2005 that in more than one
passage the U.S. Government attorney mentioned the intention of proposing to “other
countries” to change their general attitude in relation to drugs, suggesting that there may
be initiatives from the US Government to press the Brazilian Government to block
ayahuasca exportation.
Impressively, it is relevant to report that in the months after the U.S. Supreme Court
decision, the Brazilian Government formed a high profile “task force” for monitoring
and establishing rules and legislation for the ritual use of ayahuasca.
Finally, in the hearing of November 1, 2005, one of the main discussions was based on
the historic and doctrinaire trajectory of the U.S. Supreme Court decisions on the issue
of “Religious Freedom”. The implicit “tradition” of the court decisions suggested an
“internal” debate among Justices, and, on the other hand, updating their approach to
analyzing which forms of cultural life would be acceptable. The case debate evidences
the weight that the jurisprudential tradition of U.S. law has in defining what can be
called “legally acceptable.” This may become at last highly influential on the social or
cultural acceptance and/or social or cultural “tolerance of practices”, implying
relationships of law and politics with religion.
Religion, Law and Politics
Associated with the legal dynamics of the UDV-USA as well as with Western legal
tradition are other issues raised eloquently about the forms of communication
established by the legal debate. The secularized and simplifying “idiom” of the legal
system and the National state is the communication form established as the basis for the
unfolding debate. In this sense, a religious group might have to reject its own
particularly divinatory language, as well as sometimes its native, traditional,
cosmological points of view in order to have its arguments accepted or at least
interpreted by the Court protagonists, including their own legal representatives. This
establishes a very tricky paradox, as a religious group or a citizen has the right to
“believe and practice” its religion.
When referring to it, however, a secular translation may apply in order to establish
appropriate legal communication. This is what happened in Brazil in the 1980s
(Groisman 2000), when Santo Daime and União do Vegetal were subject to
investigation. The Brazilian government appointed a high-profile experts’ commission,
including military, psychological, anthropological, and sociological professionals to
visit ayahuasca religious centers in situ. Some of the participants of the commission
participated in rituals and also ingested the substance, some of them reported officially
their view on its “personal and social beneficial effects”. This procedure involved a
12
different approach, and at least, a culturally influenced style of conducting arguments,
as the commission appointment was a result of requests from the religious groups
themselves.
Those official testimonies may appear inconsequential to those who have ingested the
beverage in a ritual context and hopeless to think about the experience exclusively from
a “legal” point of view, as so many complex aspects of human life may be involved in
the event. It is this complexity which may have challenged and also confused public
authorities, stimulating them to reify, the impact of the ritual-religious use of ayahuasca
– as well as of other similar substances such as peyote – as “drug abuse”. Actually, it is
not new in human history to reduce to “superstition” or “savagery” those qualities
which Western culture is not able to comprehend.
The special political status which was granted to Native American Church members was
another issue raised by the Supreme Court decision. Why was it not applied to UDV
members? To say that “Indian background” justifies an exception may be paradoxical if
we consider any arguments based on biochemical grounds.
Finally, we may notice that some issues may still remain obscure in the trial debate on
the UDV-USA case, In many passages, it is not clear who is the “defendant”—whether
it is a human being who was involved with an alleged criminal act, or if the “defendant”
is actually the substance itself, (which appears to be in the discourse), as having a sort of
uncontrolled power to harm. The implication of this aspect of the debate is that it
implicitly does not recognize any harmful effects of a substance (at least in most of the
substances used by human beings) as a consequence of the form in which is used.
Conclusions
In this work we have laid out for the reader a most important legal finding by the U.S.
Supreme Court, permitting a religious group originating in Brazil but located as well in
the United States - the União do Vegetal - to use the plant hallucinogen, ayahuasca, as a
sacrament in its religious rituals. This mixture of plant hallucinogens in the sacrament
are derived from the Amazon and have a long history of spiritual and religious use
among indigenous peoples, among mestizo healers throughout the Amazonian countries
of Brazil, Peru, Colombia and Bolivia, and since the l920s, among new religions, and
since the 1960s as with the UDV.
We trace this process of change both historically, anthropologically and linguistically
and provide a vision of the future where we anticipate that the principles of religious
freedom will trump those of political definitions of illicit acts and substances.
“Hallucinogenic” use to access spiritual realms must be distinguished from the use of
substances to deaden pain and anguish or to provide hedonistic experiences.
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i For example Durkheim (1965[1915]), and more contemporarily anthropologists such as Mary Douglas (1970 [1966]),
