DEA - The DEA v. Religion v. Psychedelics
A group of defendants recently took on the federal government to protect their rights of using the psychedelic ayahuasca in their religious ceremonies. But things didn’t go their way.
The case involved the seizure of ayahuasca and the arrest of members of the North American Association of Visionary Churches (NAAVC), a California non-profit interdenominational association of visionary churches; and Arizona Yage Assembly (AYA), another California non-profit church.
Opposing them according to their original complaint filed May 5, 2020, were defendants William Barr on behalf of the Department of Justice (DOJ); Uttam Dhillon on behalf of the Drug Enforcement Administration (DEA); Chad F. Wolf on behalf of the Department of Homeland Security (DHS); Mark A. Morgan on behalf of Customs and Border Protection; and Thomas Prevoznik , deputy assistant administrator of the DEA Department of Diversion Control.
And.. the United States of America.
According to court documents (case 3:20-cv-03098-WHO), here is what happened: On April 22, 2020, NAAVC and AYA were notified that their joint property, a container of ayahuasca ordered for the use of NAAVC and AYA, had been seized by DHS during the customs process. Three other shipments of ayahuasca were allegedly seized by DHS between April and December 2020.
This was an outrageous act, the AYA lawyer said in the complaint because organizers and members of the churches believe that the experience of communion through ayahuasca is “the receipt of Divine Love and wisdom by the congregation.”
Lawyers said that the administration of sacramental ayahuasca to congregants is protected as free exercise, but that it is “burdened by the proscriptions of the controlled substances act (CSA) and the DEA’s denial of regulatory services to visionary churches; and that the DEA is required to issue a certificate of exemption to AYA, to grant it a DEA number, and to “provide it with all regulatory services necessary to allow the importation and dispensing of ayahuasca to its congregation.”
But the DEA, as usual, is a hard nut to crack. It has a policy of denying regulatory services to visionary churches and refusing all requested religious exemptions from the CSA until and unless compelled by court order—which has happened separately with two Brazilian churches using ayahuasca, according to the complaint.
The DEA doesn’t seem interested in working with churches for the specific needs of religious ceremonies. It has guidance for such a thing, but there are legal trapdoors in it for the organizations who go through that guidance, the AYA/NAAVC lawyers allege.
DEA’s reports to oversight agencies show no staffing expenditures for employees to consider the needs of churches and religious persons seeking exemptions from the CSA on religious grounds. DEA has no individuals uniquely tasked with evaluating requests for exemptions from the CSA on religious grounds, the complaint noted.
NAAVC and AYA attorneys tried using the first amendment and American history, citing that “diversity of religion gave fertile soil to an attitude of tolerance that, aided by the effort of principled advocates within the religious and legal communities, ripened into the commitment to universal religious freedom that the nation now embraces,” adding that “religious expression, like secular expression, is accorded the highest level of Constitutional protection.”
When DHS seized their ayahuasca shipments, it caused the parties to “suffer the seizure of sacramental ayahuasca destined for sharing with congregations in free exercise of their right to practice visionary communion in sacred ceremony,” the complaint stated. “The dangers of seizures of the sacrament, invasion of religious services, and arrest of church leaders and congregants are clear and present dangers to the visionary church community,” according to the complaint as outlined in court documents.
What really happened, they explained, was classic enforcement overreach by the DEA against churches entitled to exemption. After all, ayahuasca is an herbal preparation that is not listed as a drug of abuse in the 2020 DEA resource guide “Drugs of Abuse.”
The church’s complaint reminded both parties that the courts have recognized that ayahuasca is almost exclusively consumed in religious ceremonies. “Visionary churches whose sacrament is ayahuasca are using a sacrament that in itself affirms their claim of religious sincerity. The very activity of drinking ayahuasca confirms their religious intent, because it is a demanding visionary experience that delivers rewards commensurate with sincerity.”
Plus, as the churchs’ lawyers pointed out, the DEA had a peyote regulatory system that was devised exclusively for the benefit of the Native American Church (NAC). The DEA established the peyote regulatory system pursuant to statutory authorization. Why not ayahuasca?
The DEA regulatory regime covers the distribution of peyote from its sole point of origin in Texas, where “peyoteros” registered with the DEA collect the sacred cactus and may lawfully deliver it to any Native American who presents a “Certificate of Indian Blood.”
Neither the Native American Church nor its branch churches register with the DEA, and the last DEA registrant to handle a peyote button in the supply chain is the DEA-licensed peyotero. The NAC and its congregants are not subject to DEA registration or any other regulatory requirements.
So is the DEA saying: Peyote good, ayahuasca bad?
Bottom line: Without ayahuasca, AYA does not have a religious practice to share, and AYA congregants are unable to practice their religion, the complaint stated. The CSA effectively coerces the AYA and NAAVC to act contrary to their religious beliefs by the threat of criminal sanctions. The complaint added that the potential for prosecution under the CSA “places substantial pressure on AYA, its founder, and the congregation to modify their behavior and violate their beliefs, forcing them to choose between either abandoning religious principle or risking criminal prosecution.”
- Sounds like a reasonable case from the point of view of AYA and NAAVC.
But later, as an amended complaint made its way through the district court of the Northern District of California, then got transferred to the District of Arizona, Senior District Judge Roslyn Silver dismissed most of the claims brought against federal and local law enforcement by religious organizations that use ayahuasca in their ceremonies, finding among other things that the plaintiffs haven’t suffered a legal wrong necessary for their Administrative Procedure Act (APA) claim. The APA outlines rulemaking procedures, addresses other agency actions such as issuance of policy statements, licenses, and permits, and provides standards for judicial review if a person has been adversely affected or aggrieved by an agency action.
Additionally, the DEA guidance issue became a sort of deal-breaker. Judge Silver found that the DEA guidance does not require the churches to do anything, or prevent them from doing anything, and therefore has not caused an actual or imminent injury. That’s not what the AYA/NAAVC lawyers thought in their original complaint filing. “The DEA’s use of the guidance as a ruse to present the appearance of a legitimate path for visionary churches to obtain regulatory services was an act of conscious indifference that caused compensable injury to the civil rights of plaintiffs.”
The DEA claims the churches lost their case due to procedural error on the part of the churches; the churches say that the DEA is sidestepping its role in regulating and managing the use of ayahuasca in religious ceremonies, and appears to be holding onto obstacles for any U.S. church to legally use ayahuasca.
This case helps illustrate, once again, that reforms are needed at the DEA to handle psychedelics, as they work through clinical trials, get regulatory help from the FDA, and continue to be a legal part of certain indigenous religious ceremonies dating back hundreds if not thousands of years.
It may take some time. In fact, right now, the DEA is blocking access to psilocybin for terminal cancer patients, and advocates are planning protests May 9 at the DEA headquarters in Washington, D.C., citing the Right to Try Act that allows terminally ill patients to seek drug treatments.