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Sacramental plant use wins in US Supreme Court case |
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Written by Omar Figueroa
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Thursday, 30 March 2006 |
Feds told drug prohibition can accomidate religious use
The US Supreme Court ruled Feb. 21 that the federal government
couldn’t prohibit a “religious sect with origins in the Amazon
Rainforest” from receiving “communion by drinking a sacramental tea,
brewed from plants unique to the region, that contains a hallucinogen
regulated under the Controlled Substances Act.” The entheogen drug in
question is DMT (dimethyltryptamine), a Schedule I substance reputed to
be one of the most potent psychedelics on Earth.
Since cannabis is also classified under federal law
as a Schedule I controlled substance, this opinion opens the door to a
viable religious defense to federal marijuana charges. Given prior
federal case law approving the religious possession and use of ganja by
Rastafarians, the prospects are excellent for the recognition of
cannabis as a sacrament under federal law.
In this landmark case, the High Court upheld lower
court findings that the government failed to demonstrate a compelling
interest in forbidding members of O Centro Esp?rita Beneficente União
do Vegetal (UDV), a Christian Spiritist sect based in Brazil with an
American branch of approximately 130 individuals, from importing,
distributing, and using sacramental ayahuasca or hoasca tea. The
primary active ingredient in hoasca tea is DMT. The opinion was
authored by Chief Justice John Roberts and was unanimous; however,
Samuel Alito, Bush’s latest appointee and the rookie justice on the
court, did not participate in the decision because he took his seat on
the bench after the case was argued. Roberts noted that a big factor in
the court’s decision was that the government conceded that UDV’s use of
the sacramental tea was a sincere exercise of religion.
The case dates back to 1999, when U.S. Customs
inspectors intercepted a shipment to the American UDV containing three
drums of hoasca. A subsequent investigation revealed that the UDV had
received 14 prior shipments of hoasca. The inspectors confiscated the
intercepted shipment and threatened the UDV with prosecution. UDV sued
to block the threatened criminal prosecution, invoking the Religious
Freedom Restoration Act of 1993 (RFRA), which prohibits the federal
government from substantially burdening a person’s free exercise of
religion unless necessary to further “a compelling governmental
interest” and utilizing “the least restrictive means” of doing so.
The Bush administration claimed its blanket
prohibition did not conflict with RFRA because of three supposedly
compelling governmental interests: protecting the health of UDV
members, preventing the diversion of DMT from church to recreational
users, and complying with the 1971 UN Convention on Psychotropic
Substances. The administration was so desperate it resorted to the
argument that there was no way to possibly accommodate the religious
use of hoasca because otherwise the US would be violating its UN treaty
obligations!
The Court rejected all of the administration’s
arguments. In his opinion, Roberts wrote that everything the government
said about the DMT in hoasca also applies to the mescaline in peyote,
which Native Americans have been allowed to use in religious ceremonies:
Everything the Government says about the DMT in
hoasca — that, as a Schedule I substance, Congress has determined that
it “has a high potential for abuse,” “has no currently accepted medical
use,” and has “a lack of accepted safety for use ... under medical
supervision,” 21 U.S.C. §812(b)(1) — applies in equal measure to the
mescaline in peyote, yet both the Executive and Congress itself have
decreed an exception from the Controlled Substances Act for Native
American religious use of peyote. If such use is permitted in the face
of the congressional findings in §812(b)(1) for hundreds of thousands
of Native Americans practicing their faith, it is difficult to see how
those same findings alone can preclude any consideration of a similar
exception for the 130 or so American members of the UDV who want to
practice theirs.
The same can be argued for THC and cannabis: it is difficult to see how
congressional findings alone can preclude any consideration of a peyote
or DMT-like exception for members of a cannabis church who want to
practice their religion. Notably, the court stated that a litigant who
wants to invoke RFRA bears the burden of showing that the application
of the Controlled Substances Act would (1) substantially burden (2) a
sincere (3) religious exercise. Only time will tell how federal RFRA
jurisprudence will evolve, but one thing is clear: there is much to
look forward to.
* Figueroa is an attorney at the Pier 5 Law Firm in San Francisco.
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Omar Figueroa |
| About the author: |
| CONSTITUTIONAL & CRIMINAL DEFENSE LAWYER
My practice is focused on representing non-violent human beings facing charges in juvenile, state and federal courts, specializing in medical marijuana, cannabis cultivation, and cybercrime cases.
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Last Updated ( Tuesday, 08 August 2006 )
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