Another court win for another ayahuasca church

This time it’s the Santo Daime in Oregon. What will Holder do now?

Another Federal district court has ruled in favor of another church that uses the DMT-bearing brew called ayahuasca .

This time the case is in Oregon and involves a branch of the Santo Daime, one of the two large religious organizations with Brazilian government permission to use the “tea.” The previous case was in New Mexico, and involved a branch of the UdV, the other major Brazilian church that uses ayahuasca.*

In the Oregon case, Judge Owen Panner has issued a permanent injunction, and a very clearly-reasoned opinion to go with it. (It’s as good a statement of the facts as I’ve seen.) That doesn’t quite end matters; the church and the DEA still have to work out a regulatory process to prevent diversion, and the Justice Department could still choose to appeal.

In the New Mexico case, the government appealed the preliminary injunction all the way up to the Supreme Court, which affirmed 8-0. But so far the government has insisted on its right to have a full-dress trial on a permanent injunction, even after the week-long hearing on the preliminary injunction and three rounds of appellate briefs and arguments (a three-judge panel of the 10th Circuit, an en banc, and then the Supreme Court).

In both cases, the government’s arguments amounted to “OOOOGA BUGGA! DRUGS!!!!” Neither court was having any, thanks. Without evidence of either physical or psychological harm or of diversion to non-religious use, the judges refused to suppress religious exercise on the basis of merely speculative harm. These were not Constitutional cases under the Free Exercise clause, but statutory-interpretation cases under the Religious Freedom Restoration Act. In the New Mexico case, but apparently not in the Oregon case, the Justice Department argued that the government was bound by treaty obligations to ban any non-medical use of DMT, the one hallucinogen known to be produced within the brain itself.

Now the new leadership at DoJ faces a question. The government can appeal the Oregon ruling and continue to fight the New Mexico case, and do the same with every religious body that comes forward to ask permission to used a controlled-substance sacrament. As a practical matter, that would mean that only well-financed churches had any chance of winning recognition; these are expensive cases, albeit the churches can recover their attorneys’ fees at the end of they win. Or the Attorney General could tell the DEA Administrator to draft, and publish in the Federal Register, a set of procedures and criteria to deal with such cases in the future. (The Supreme Court ruling makes it clear that RFRA provides ample statutory authority for issuing such regulations.) It’s an interesting test of Eric Holder’s skill, and I’ll be interested to see how he handles it.

* Conflict of interest statement: I was an expert witness (about the risks of diversion) for the church in the New Mexico case, and might still be called to testify again.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: