Friday, 5 February 2016

Can all hallucinate drugs be banned in the USA?  

In 1999, U. S. Customs agents seized over 30 gallons of hoasca (ayahuasca) tea which was shipped to a branch of the Brazilian church, (UDV) Unison do Vegetal in Santa Fe, New Mexico  

The tea is used as a traditional spiritual medicine in ceremonies among the Indigenous peoples of Amazonian Peru. People who have consumed ayahuasca have reported having spiritual revelations regarding their purpose on earth, the true nature of the universe as well as deep insight into how to be the best person they possibly can. A few deaths due to participation in the consumption of Ayahuasca have been reported. The deaths may be due to pre-existing heart conditions, as Ayahuasca may increase pulse rates and blood pressure, or interaction with other medicines taken, such as antidepressants. It also brings on psychedelic effects such as visual and auditory stimulation which is probably the reason why it was banned in the United States.         

When my wife and I traveled around Peru in 2005, we were always served tea made from the leaves of the coca plant grown in South America. Cocaine is also derived from those leaves.  The finest restaurants and hotels serve that kind of tea if you wish to have it with your meal. The reason why it is necessary for you to drink that tea is that it acclimatizes you for when you are climbing up or even living in high mountains of Peru and for this reason, it is not illegal to be served the tea or to drink it. I should point out however that the tea isn’t’ strong enough to cause anyone to hallucinate.  

The church in Santa Fe sued the federal government for the return of the tea. The government's central argument in response with the suit was that the uniform application of the Controlled Substances Act (CSA) does not allow for exceptions for that particular substance in this particular case.

 Seagram heir, Jeffrey Bronfman representing the church argued that the seizure was illegal, and sought to ensure future importation of the tea for religious use. The United States District Court for New Mexico agreed and issued a preliminary injunction under the Religious Freedom Restoration Act (RFRA) prohibiting US Customs agents from seizing further shipments directed to the church.          

 The government appealed to the Tenth Circuit Appeals Court which in turn upheld the previous ruling, which so the government then appealed the decision to the Supreme Court of the United States.

As it worked its way through the appellate courts, the Supreme Court lifted a stay in December 2004 thereby permitting the church to use hoasca for their Christmas services.                                                                                         

Chief Justice John Roberts wrote the opinion for a unanimous Court of eight justices. The Court found that the government was unable to detail the government's compelling interest in barring religious usage of hoasca when applying strict scrutiny as the RFRA demands of such regulations.

 The Supreme Court found that hoasca is covered under the 1971 United Nations Convention on Psychotropic Substances, which is implemented by the US Controlled Substance Act. However, because the government had failed to submit any evidence on the international consequences of granting an exemption to CSA enforcement by allowing UDV to practice its religion, the Court ruled that it had failed to meet its burden on this point. The Supreme Court ruled that the government failed to demonstrate a compelling interest in applying the Controlled Substances Act to the UDV's sacramental use of the tea.     

The ruling upheld a preliminary injunction allowing the church to use the tea pending a lower court trial on a permanent injunction, during which the government will have the opportunity to present further evidence consistent with the Supreme Court's ruling.

The ruling is not binding on every state in the USA.  The Act was amended in 2003 to only include the federal government and its entities, such as Puerto Rico and the District of Columbia. A number of states have passed their own version of the RFRA, applying the same rule to the laws of their own state.

Twenty individual states have passed State Religious Freedom Restoration Acts that apply to state governments and local municipalities.

What about the right of Native Indians in the United States being able to use Peyote as part of their religious ceremonies?  In a blow to Native Americans whose religious traditions predate the U.S. Constitution. The Supreme Court ruled 6-3 on April 17, 1990 that there is no constitutional right to use peyote as part of religious rituals. Peyote, which contains the hallucinogenic drug mescaline, is a central part of Indian religious ritual. Nevertheless, the federal government and 23 states permit peyote to be used for that purpose.

The Supreme Court case involved two Oregon men, Galen W. Black and Alfred C. Smith, who were denied unemployment benefits after they were fired from their jobs at a drug and alcohol rehabilitation program. They were fired because they ingested peyote at a ceremony of the Native American Church, of which they were members.

In rejecting the men's claim that Oregon's law barring peyote use under all circumstances violates their religious freedom, Justice Antonin Scalia, in writing for the majority, said that the First Amendment freedom of religion does not allow individuals to break the law: "We have never held that an individual's beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate." He said it would be "courting anarchy" to create exceptions every time a religious group claims that a law infringes on its practices.

The dissenting justices, William J. Brennan Jr., Thurgood Marshall, and Harry A. Blackmun, called the decision sweeping and a wholesale overturning of settled law concerning the religion clauses in the US Constitution. The three dissenters were joined by Justice Sandra Day O'Connor in one aspect of their opinion. The four agreed that the majority's approach dramatically departs from well-settled First Amendment jurisprudence and is incompatible with our America’s fundamental commitment to individual religious liberty.

They added that a law that prohibits certain conduct—conduct that happens to be an act of worship for someone. manifestly does prohibit that person's free exercise of his 9r her religion. Although Justice O'Connor concurred with this aspect of the minority opinion, she felt that the state of Oregon did have a compelling interest in curbing drug use, and therefore voted with the majority.

Justice Blackmun disagreed with Justice O’Connor’ view and said that the Oregon law was not supported by a compelling government interest. His view was that Peyote simply is not a popular drug since its distribution for use in religious rituals has nothing to do with the vast and violent traffic in illegal narcotics that plagues the United States. In fact, between 1980 and 1987, only 19.4 pounds of peyote were seized by federal authorities, compared to more than 15 million pounds of marijuana during the same period. Blackmun argued that a single exemption for the religious use of peyote by Native Americans was constitutionally required.

Although the decision dealt specifically with one kind of religious ritual, such as eating peyote as a religious rite among members of the Native American Church, the Court's decision had sweeping implications for other church/state cases.

Other religious rituals, such as the consumption of wine by minors as part of Jewish and Christian tradition; the Amish's refusal to use reflectors on their horse-drawn vehicles; religions whose theology requires abortion in some circumstances; religions, such as Christian Scientists, who withhold medical care from their children; or religions that advocate severe physical punishment as a method for raising children, will no doubt be affected by the Court's decision—although the latter concession is frowned upon nowadays and can bring severe consequences on anyone who chastises children in this manner. 

The Old Order Amish, in their desire to avoid the modern world as much as possible, travel in black horse-drawn buggies. They have traditionally refused to obey a state law which requires slow-moving vehicles to be marked with red reflector triangles. In 1988, Minnesota tried and convicted the Amish for failure to obey the law.

Using the peyote decision as its precedent, on April 23, 1990, the US Supreme Court set aside a Minnesota State Supreme Court decision that exempted the Amish from compliance with a highway safety law. The State Supreme Court had said that the state had placed an unconstitutional burden on the free exercise of religion.

The state then appealed to the Supreme Court. The state was represented by the Minnesota Civil Liberties Union. The US Supreme Court deferred action on the Minnesota case until it decided the peyote case, then issued no opinion. Instead, the Court voted 7-2 to order the Minnesota court to reconsider the Amish case, in light of the US Supreme Court ruling on peyote. In the peyote case, the US Supreme Court ruled that a State doesn't need compelling interest before it enforces its criminal laws in a way that puts a burden on particular religious groups. The door had then been left wide open for the Minnesota court to reverse itself in its case against the Amish.

The peyote ruling strengthen the power of prosecutors to pursue criminal child abuse charges against parents who, for religious reasons, withhold medical care from their children or use severe physical punishment on their children.

Over the years we have seen changes in the laws that appear to be for the betterment of a nation’s citizens. Marijuana is now readily used as a means of medical treatment however, I don’t see it being used for religious purposes nor do I see heroin or cocaine being used for religious purposes. But then, anything is possible as we have seen with respect to ayahuasca and peyote being recognized as part of religious ceremonies. 

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