A Victory for Santo Daime

On March 18, 2009, United States District Judge Owen M. Panner found that the Religious Freedom Restoration Act protects the Santo Daime's use of ayahuasca as a sacrament of their church. The court was guided by the unanimous decision of the United States Supreme Court in the very similar União do Vegetal case in 2006, and concluded that RFRA requires that — subject to reasonable restrictions — the plaintiff church be allowed to import and drink ayahuasca for their religious ceremonies.

The suit was brought by the Church of the Holy Light of the Queen in Ashland, Oregon, led by padrinho Jonathan Goldman, a student of Santo Daime for twenty-one years, who had traveled frequently to Brazil to receive instruction from church leaders, and learned Portuguese in order to understand the hymns that constitute church doctrine. Joining in the suit was a separate church in Portland, called Céu da Divina Rosa, Church of the Divine Rose, and its leader Alexandra Bliss Yeager, as well as several individual members of both churches.

Goldman had been arrested and the church's supply of ayahuasca seized by federal agents in1999. Counsel for the plaintiffs in the lawsuit attempted to negotiate an agreement with the Department of Justice, which refused to consider a religious exemption for the church. On the other hand, in 2000, the Oregon Board of Pharmacy determined that the religious use of ayahuasca by the Church of the Holy Light of the Queen was a "non-drug" use, and therefore not subject to state drug laws and regulations. Since that time, ayahuasca has had a status in Oregon law similar to that of peyote when used as a sacrament by the Native American Church.

Following Goldman's arrest, the plaintiffs continued to practice their religion in secret. In 2006, after the Supreme Court handed down its decision in the União do Vegetal case, the plaintiffs commissioned a study of Church of the Holy Light of the Queen members by psychiatrist John H. Halpern, who had written extensively on the use and abuse of hallucinogenic drugs, including a paper on the long-term health of members of the Native American Church who consume peyote as a sacrament — a study we have discussed here.

In 2008, armed with the results of that study and the earlier ruling of the Supreme Court, plaintiffs brought suit in federal court, seeking an injunction that would allow them to use ayahuasca as a central sacrament of their religious practice.

Judge Panner's opinion provides a scholarly and sympathetic account of Santo Daime history and doctrine in general, and of the practices of the Church of the Holy Light of the Queen in particular — their careful records of ayahuasca purchase and use, their screening procedures for new members, their use of medical questionnaires, their "controlled and supportive religious ceremony," their security procedures for storing and distributing ayahuasca.

The court was less sympathetic to the claims of the government, particularly its scientific case concerning purported short- and long-term effects of ayahuasca use. "I find studies of LSD and pure injected DMT," the court wrote, "are only marginally relevant in evaluating the risks of consuming Daime tea in a religious ceremony."

The court was also unimpressed with the government's other arguments. For example, the government asserted a compelling interest in preventing the diversion of ayahuasca to recreational users. "The government has not presented evidence that there is a significant market for Daime tea," the court wrote. "The government also has not presented evidence that plaintiffs have allowed the diversion of a single drop of Daime tea. This is an issue best addressed through reasonable guidelines for storing and inventorying plaintiffs' supply of Daime tea."

The court closely followed the legal reasoning of the Supreme Court in the União do Vegetal case, and similarly found that the government had failed to establish either a compelling state interest in forbidding the use of ayahuasca by the church, or that "outright prohibition of the Daime tea is the least restrictive means of furthering its interests." On those grounds the court found that the plaintiffs were entitled to the requested injunction under the Religious Freedom Restoration Act.

The entire opinion is cogent, clear, sensible, and well worth reading as a road map for the litigation of similar cases in the future.

Ordinarily, we could now expect a long, expensive, exhausting slog to the Supreme Court. But it may be worth noting that, on the same day as Judge Panner issued his opinion, U.S. Attorney General Eric H. Holder Jr. told reporters that the current administration would effectively end the earlier policy of frequent raids on distributors of medical marijuana. He said that the Justice Department's enforcement policy would now be restricted to traffickers who falsely masqueraded as medical dispensaries and "use medical marijuana laws as a shield."

It is not at all clear whether this might signal a change in administration policy toward the use of ayahausca by such entities as the Santo Daime church. Commenting on this case, Mark Kleiman, a nationally recognized expert in the field of crime and drug policy, suggests that the simplest approach would be for the Attorney General to tell the DEA Administrator to draft and publish in the Federal Register a set of procedures and criteria to deal with cases such as this in the future.

We will see.