The Religious Freedom Restoration Act, the DEA Exemption Process, and Ayahuasca Healings

• The Religious Freedom Restoration Act, the DEA Exemption Process, and Ayahuasca Healings

By Gayle Highpine (*) written especially for BIA LABATE, a blog (**)

 

This article is part of the series of controversies raised by the Ayahuasca Healing Retreats (see here, here, here and here.)

 

Ayahuasca Healings USAhas suspended their Ayahuasca ceremonies — just for a “few weeks,” until they confirm their legality with the DEA, according to co-owner Trinity de Guzman. AH refuses to give refunds to anyone who had reserved a retreat; but that is another discussion, happening elsewhere in social media. This article is about the DEA exemption process, RFRA, and AH’s lack of understanding of the process.

Only weeks ago before, Trinity de Guzman was still declaring to the world that AH’s legality was a done deal:

As for our legality, yes, we will keep saying we are legal. Why? Not because we have a Court Ruling, but because the laws of the land say we are legal. I know this is something we can go back and forth about all day, but that’s not where I am going to spend any energy. I will say it once here. We are legal because of the laws of the land. To me, the Churches of Santo Daime & the UDV aren’t legal because they won the court cases – it’s the other way around. They were legal, and they won those court cases, BECAUSE they were legal.

This is false. It is a misunderstanding of the process that the UDV and Santo Daime went through. There is a fundamental misunderstanding of the Religious Freedom Restoration Act (RFRA) and of the RFRA exemption procedure, and of the process of getting a RFRA exemption from the DEA.

The First Amendment and RFRA

The First Amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

There are two clauses to this:

1) “no law respecting an establishment of religion”

2) “no law… prohibiting the free exercise thereof”

The first clause is known as the establishment clause, the second as the free exercise clause. The establishment clause is interpreted as meaning that the government cannot show favoritism to any religion or give special privileges to any religion. The free exercise clause is interpreted as meaning that the government cannot interfere with religious practice.

The establishment clause and the free exercise clause can come into conflict when a particular religion’s practices conflict with “generally applicable laws.” On the one hand, allowing a special exception could be interpreted as giving special privileges to a particular religion, violating the establishment clause; on the other hand, not allowing the special exception could interfere with the free exercise of religion and violate the free exercise clause. Over the decades, the courts have seesawed between which of these clauses gets priority.

In the Smith vs State of Oregon peyote case of 1988, the Supreme Court gave priority to the establishment clause over the free exercise clause, ruling that allowing Klamath tribal member Al Smith the right to use peyote would be favoritism or special privilege for his religion. But the ruling — written by Justice Scalia — swung so far in the direction of the establishment clause that it alarmed religious groups across the country. The ruling potentially opened the door for the government to pass a “generally applicable law” that, for example, would prohibit the wearing of hijabs or skullcaps and refuse to allow religious exceptions, since that would be giving special privileges to particular religions. (As far-fetched as such a law might sound, there have, in fact, been cases in which teachers have been forbidden to wear religious headgear in the classroom.)

An unprecedented coalition of practically every religious group in the country, across the religious and political spectrums, came together to push for the passage of RFRA, and RFRA was overwhelmingly passed by Congress. It has been modified through subsequent case rulings. RFRA mandates only the federal government, not state governments, but some states have passed state RFRAs.

RFRA mandates that courts give the free exercise clause priority over the establishment clause. In other words, the principle of no interference with religious freedom gets priority over the principle of no special privileges for a particular religion if certain guidelines are met. RFRA spells out those guidelines.

People in the entheogenic community tend to think that RFRA is all about entheogens — and indeed, it began with an entheogen case — but there are countless issues that it also applies to, from the refusal of medical treatment for children to the refusal to remove a burqa for a passport photo, from animal sacrifice to the right not to work on the Sabbath, from religious-based conscientious objection to military service to the prohibition of polygamy, and from the right of Jewish prisoners to kosher foods to the destruction of Native American sacred sites by logging and mining. In the most famous RFRA case in recent years, Burwell v Hobby Lobby, the Supreme Court decided that corporations (which, legally considered as “people,” can now hold religious beliefs) can refuse to cover contraceptives in employee health plans on religious grounds; it is only a matter of time before the Supreme Court has to decide a case on whether businesses can refuse to serve gays and lesbians for religious reasons.

Potential RFRA issues are endless; not only could laws against many otherwise illegal activities, such as polygamy, potentially be challenged on religious grounds, but anyone could invent a “religion” and claim that almost any behavior is religiously mandated. For example, after successful suits were brought by prisoners asking for kosher or halal foods to accommodate their religion, other prisoners brought suit claiming that they belonged to a church that required them to eat steak every day and that this had to be accommodated by the prison as well. They lost, because the court decided that did not meet the guidelines for a RFRA exemption.

Contrary to widespread belief, the courts do not legalize specific entheogens such as ayahuasca for religious use. They give exemptions to specific groups on a case by case basis. To claim a RFRA exemption, a person or group must prove they have:

(1) A religious belief

(2) which is sincere

(3) and the exercise of which has been substantially “burdened” by the law in question.

Then the burden of proof shifts to the government to show that:

(1) It has a “compelling interest” in burdening the religious practice, and

(2) It has only burdened the practice in the least restrictive way possible.

Note that, contrary to popular belief, a “church” or religious organization is not necessary for a RFRA exemption. Let’s look at what each of these factors mean, as developed in entheogenic case law.

“Religious”: What makes a belief “religious” has never been defined by the courts, but there are criteria the courts use to distinguish “religious” from “philosophical” and “psychological” beliefs.

In the case US v Meyers, a man named Matthew Meyers appealed a conviction for growing and selling marijuana on religious grounds. Meyers testified that he was the founder and Reverend of the Church of Marijuana and that it was his sincere belief that his religion commanded him to use, possess, grow, and distribute marijuana for the good of mankind and the planet Earth. The appeals court rejected the claim that the Church of Marijuana was a religion because its doctrine began and ended with its’ belief about marijuana, lacking “ultimate ideas” addressing “fundamental questions about the meaning and purpose of life”; “metaphysical beliefs” of a “transcendental” nature; “organized moral and ethical codes”; “comprehensiveness of beliefs”; and “accoutrements of religion,” such as sacred writings or teachings, clergy or keepers of knowledge, ceremonies, and rituals. Although there is still no formal legal definition of religion, these criteria, known as the “Meyers factors,” have been used as a guideline by the courts ever since.

There is no court precedent for courts including altered states of consciousness, heightened awareness, healing, clairvoyant experiences, or vibrational attunement in their definition of religion. The courts look for systematic beliefs and systematic practice of those beliefs, not beliefs made up extemporaneously.

“Sincere” means that a religion is not just made up to get around the law. People on entheogen forums sometimes suggest creating a church in order to get around anti-drug laws, but such efforts are as transparent to the courts as they are to anyone else.

“Burdened,” as the meaning has developed in entheogenic case law, means that the law or government’s action prevents or impedes the practice of the religion.

At the first stage, the burden of proof is on the religious practitioner to prove the legitimacy of their claim, with these three elements. Once they have proved this to the satisfaction of the court, the burden of proof shifts to the government, to show its “compelling interest” and that it is using the “least restrictive means.”

“Compelling interest” means that the government must show an actual, compelling reason for the law, and for disallowing the requested exception.

“Least restrictive” means just what it sounds like, that the government must achieve its ends with the minimum restriction possible.

In the UDV case, the government did not contest the UDV’s status as a religion, nor the UDV members’ sincerity, nor the fact that their sacrament is essential to their practice. The entire argument in the UDV case was over two compelling interests presented by the government: that an exception to the law would endanger health and safety, and that an exception to the law would present a danger of diversion to the black market.

The admission that the UDV was a legitimate religion and their practice was sincere was one of the fundamental reasons the government lost that case; so they are not likely to concede that point again. In the Santo Daime case, the government did challenge the religious legitimacy of the church. But they failed to convince the judge of their position, because the Daime submitted enough evidence that it it was a sincere religion, and the judge ruled in the Daime’s favor on this point.

So, like the UDV case, the Santo Daime case then hinged on the government’s two “compelling interests” — public health and safety, and diversion to the black market.   And these are the compelling interests that groups seeking RFRA exemptions will have to address.

The DEA Exemption Process

We fully expect that AHNAC will receive the government’s blessing in the form of an official recognition that AHNAC qualifies for exemption under the RFRA. We also feel confident that we will receive that blessing in a matter of weeks. — Trinity de Guzman

Ever since the UDV and Santo Daime set court precedents for religious exemptions for entheogen use, the DEA has put in place a procedure for religious groups to apply for religious freedom exemptions under RFRA.

But that procedure is not (contrary to what Trinity says) a simple matter that takes a few weeks. The process can take a year or more. During that period, the applicant is forbidden to use the sacrament in question.

The DEA approaches the exemption applications like a court making a decision. It employs the Meyers factors (see above) and examines the religion closely. They gather evidence, including research on the internet, study it carefully, and ask many followup questions of the applicant. Eventually, they issue an opinion which is very much like a court opinion, full of citations and careful analysis and explanations of their reasoning.

The reason that the DEA takes such care is that someone turned down by the DEA can appeal to the district court, which will look at the DEA’s opinion exactly as it would look at an opinion issued by a lower court. If the district court finds the DEA’s decision to be legally unsupported, it can overturn the DEA’s decision. So far, although numerous cannabis churches have been turned down since RFRA was passed, this has never happened.

The DEA seeks only to fulfill its legal obligations under existing court precedent. A group that doesn’t fall under existing precedent will not get an exemption through the DEA. They will have to go to court. RFRA decisions in recent years have given wider and wider latitude to religious rights. And the liberalizing public attitudes toward cannabis, and widespread legalization of medical and even recreational use of cannabis, might bode favorably for cannabis churches that go to court. But if a cannabis church or an ayahuasca retreat center or shamanic circle or other practice wants a religious freedom exemption, they will have to bring it to court and establish precedent. DEA exemptions will not be granted for anyone who falls outside of existing court precedent.

Once a group has obtained a religious freedom exemption for their entheogenic sacrament, they don’t have the liberty to use it freely any way they want to. Their sacrament is overseen by the DEA’s Office of Diversion Control. This is the department of the DEA that oversees doctors, pharmacies, and pharmaceutical companies that import, process, manufacture and/or distribute controlled substances. Just as pharmacies are responsible for keeping records of all drugs like oxycontin that have a demand on the black market — how much comes in and how much goes out, on what dates, how many doses are distributed to how many people, etc. — the legal ayahuasca churches are required to keep records of how much ayahuasca was received, how many people drank how much ayahuasca on which dates, etc., and keep those records for the government to inspect.

Ayahuasca Healings and its parent organization the Oklevueha Native American Church (ONAC) have spread the fiction that exemption is all about membership in a religious organization that has gained an exemption. In the UDV and Santo Daime court cases, the issue of membership did not even come up. One does not have to be a member of the UDV or SD to attend their ceremonies; guests are allowed to participate. Nor do members of the UDV or SD have the legal right to drink ayahuasca in any other venue. The courts did not legalize UDV and SD members to do whatever they wanted; they legalized UDV and SD practicebecause these practices were evidently safe.

Nor, contrary to widespread misinformation, do courts legalize particular entheogens for religious use; they give exemptions, on a case by case basis, to specific groups that prevail according to RFRA guidelines. (Peyote’s unique and complex legal status has come through the executive and legislative branches, not the courts.)

Now, let us examine these factors and case law in entheogenic RFRA cases as they apply to Ayahuasca Healings.

“Religious”

AH calls itself a Native American Church; in fact, its formal name appears to be now AHNAC, or Ayahuasca Healings Native American Church. Yet, there is practically nothing about their practice that resembles the Native American Church, or that has any Native American character at all. Their web page contains some copy-pasted statements about Native American spirituality provided by ONAC, but, beyond a few things like faux-Plains Indians sweat lodges and tipis for volunteers to sleep in, there is very little that is Native American about this “Native American Church.”

This brings up the first problem with AH’s claim to be a religion. While churches are permitted to own businesses, a church that looks, to a court, as though it is a business can run into difficulties. This is one problem with Ayahuasca Healings’ claim to be a religion.

To Trinity, money-making marketing strategies and spirituality seem to be one and the same. Notwithstanding its no-refund policy on “donations to our church,” Ayahuasca Healings seems to have been conceived as a business from the beginning.

Before even opening, AH had a business plan to expand to open 30 or 50 centers around the country within twenty years (the number is 30 or 50 on different pages on their site). It was poised to become the “Wal-mart” of ayahuasca, in the words of one ex-employee. AH started pre-selling ceremonies before even moving in or building anything. Before they had even opened, AH began an aggressive marketing campaign, and not only on social media such as Facebook. A web search for “first legal public ayahuasca church” turns up dozens of articles on dozens of sites credulously repeating AH’s claim to be a “public legal ayahuasca church”; Ayahuasca Healings even made its way onto tourism-oriented and consumer-oriented sites like travelandleisure.com and foodandwine.com. AH was soon reportedly receiving about 100 email inquiries per day.

AH distinguished itself from other legal ayahuasca churches (both genuinely legal ones, like UDV and Santo Daime, and faux-legal ONAC-affiliated churches) by calling itself “public.” That is to say, unlike other churches, which had stable, ongoing fellowships, AH was openly soliciting the public to come for a one-shot experience. Given the growing media attention to ayahuasca, the potential market for ayahuasca retreats in the USA is enormous, and only the hurdle of illegality had stood in the way of tapping this huge market. With ONAC claiming a special exclusive privilege to confer legality, AH would not only able to operate ayahuasca retreats legally, but would be protected from non-ONAC competitors in the market.

Trinity de Guzman’s background is not in spirituality or religion but in online marketing. In his pre-AH days, he marketed his “impressive history in the advertising world” and vast experience in brand building and video, email and social media marketing (all of which he has used in the marketing of Ayahuasca Healings). As an “emotional response online marketer” he was able “to make any campaign we choose to undertake wildly successful.” He sold a course called “You have a millionaire mind,” using neuro-linguistically programmed positive affirmations. His course “Get Your Girlfriend Back” offered “psychological tricks” and “psychological secrets so powerful” that once you “understand the psychological triggers” and the “core psychology behind attraction” you can “easily make her attracted to you again”; and “the reason this works so effectively and powerfully” is that “attraction isn’t a choice, it’s a response.”

Psychological triggers are his stock in trade. “You can manifest the life of your dreams” is powerful bait, not a religious teaching. Who wouldn’t want to live like Trinity, traveling the world skiing and surfing and having adventures? If he has any metaphysical beliefs, they appear to be “The Secret,” the New Age version of prosperity gospel, which uses the “law of attraction” and the “art of manifestation.” In fact, Trinity claims that he has “mastered the Art of Manifestation, and [I] can now, literally, turn any thought I want into a physical reality.” In early 2016, Trinity sent out a survey to the several thousand people on his mailing list, asking them:

Please describe the picture of the ideal life that you are striving for, and wanting to create. Why is this important to you? Why do you want this type of life? (Please be as detailed as possible. All that you share here will really help us serve you so much more powerfully. The more we understand exactly what you want in life, the more we can help make that journey for you as easy as possible. Together!)… What is the single biggest obstacle between you and this life you want? What fears do you have that are preventing you from achieving this?

Followed by:

Approximately what is your average monthly income? (Please share this information honestly, as this will really help us to understand you & our community, especially in regards to how we price anything or request for donations).

As Hamilton Hudson wrote:

The website is a lead generation factory collecting email addresses. The multi-step marketing process of “10-step email series Ayahuasca Survival Guide, submit an application, do a 30 minute phone interview, wait for a callback in 1-2 weeks to give you the news you’ve been approved” can have the unfortunate effect of entrapping customers in commitment-to-buy. This is Sales 101 (I shamelessly sold a crowdsourced Google AdWords service for a year and received a crash course in boiler-room-style tactics). It exploits people.

As for the 30-minute phone interviews, several ex-employees who had helped to conduct them testified in a private letter:

Trinity’s “approval and interview process” is little more than a “hard sell” internet-based marketing consultation. It is more designed to get people to donate heavily to the organization than it is for screening for more serious, underlying psychological conditions that could result in severely negative interactions when working with Ayahuasca.

Another private letter from a former employee says,

When Trinity trained me in the screening process for ceremony participants, I was shocked — the process is heavily marketing-based, and the training consisted mostly of listening to hours of lectures by Lee McIntyre, a self-made millionaire and marketing expert, who offers such services as webinars and “Mastermind” sessions, all for a hefty fee.

The screening process for prospective ceremony participants is… mainly about psychologically baiting people into feeling comfortable with such a hefty “donation.”  As he artfully says, “[If you feel you don’t have enough money to afford this, it’s] not your fault though. We grew up in a society that constantly teaches us we are inadequate…And that inadequacy, that lack of self-worth, conscious or not, is at the root of why so many people struggle financially.  And it’s finally time to clean it up. Let go of that deep-rooted belief.  If this is the position you’re in, then there is even more reason for you to do everything you can to bring the money together….If $1000 is a lot to you right now, then that discomfort of making that donation is already the start of your healing.”  At least one applicant claimed that the one thousand he donated to Ayahuasca Healings in order to attend a retreat was was pretty much all he had to his name.

AH’s appearance to be more a business than a religion is one problem they may have.

A second problem they may have is that AH does not pass the Meyers factors: ultimate ideas, moral codes, comprehensiveness of beliefs. While they offer “life coaching” and encourage people to practice yoga, there is nothing comprehensive or of a transcendent nature.

What if their retreat uses “shamanism”? Does that make it religious?

Well, Ayahuasca Healings is modeled on Peruvian ayahuasca retreats. Peruvian Ayahuasca retreats are businesses and don’t pretend to be churches; they don’t need to because they are already legal. Amazonian ayahuasca shamans consider themselves as practicing a profession, not a religion.

So would shamanism be legally considered a religion by the US courts? While there are shamanic religions, tremendously varied, among traditional cultures throughout the world, the question of whether an abstract shamanism (when the word is used to refer to anything other than the religion of Siberian peoples like the Tungus and Evenk) is a religion has never been tested in court. And even if a traditional ayahuasca shaman could be said to be practicing his religion, the question would remain open whether people who visit a retreat to drink ayahuasca with him are practicing their religion.

These kinds of issues are not going to be decided by the DEA. The “religion of shamanism” issue is outside of court precedent, and the DEA does not go any further than existing court precedent. This is another reason why AH’s claim to be a religion may be considered weak by the DEA.

“Sincere”

The “sincerity” question basically asks whether the applicant is claiming to be “religious” or a “church” in order to get around the law.

Ayahuasca Healings is modeled on the Peruvian ayahuasca retreats. Those Peruvian retreats consider themselves to be healing centers, not churches. AH ceremonies are vaguely modeled on Amazonian ayahuasca shamanism. But Ayahuasca shamanism in the Amazon is considered a healing profession, not a religion.

The question will arise: why did AH decide to call their retreats a “church” and their organization a “religion”? In fact, even after Ayahuasca Retreats USA (their original name) affiliated with ONAC and renamed themselves Ayahuasca Healings Native American Church, at first the word “church” appeared only in their name and almost nowhere else in their marketing. It was not until the end of 2015, when he realized that he was going to have to market himself to the DEA, that Trinity began to lavishly sprinkle his PR with words like “religion,” “faith” and “church.” This will all be apparent to the government’s lawyers.

But AH is not just a church, it is a Native American Church. The Oklevueha Native American Church (ONAC), which has been repudiated by the real NACs, but which was legally

considered NAC by the Utah Supreme Court, has given AH the authorization to call themselves NAC. In fact, AH is now officially called AHNAC, Ayahuasca Healings Native American Church. Trinity de Guzman is of Filipino heritage and Marc Kumooja “One Who Flies Eagle with Condor and Hummingbird Together” Shackman comes from England, but they happily proclaim, “We are all Native American.” Yet, there is almost nothing Native American or NAC about the AHNAC, beyond a few copy-pasted pieces about Native American spirituality on its web page and their faux Plains Indian-style sweat lodges. In fact, AH’s basic orientation—the New Age “manifestation gospel” that focuses on “me-me-me”—is in conflict with Native American tribal values, showing no real understanding of any Native American religion or spirituality. There is no reason to think that AH would ever have decided to call themselves a “Native American Church” had they had not fallen for the ONAC claim that affiliating with ONAC and calling themselves a Native American Church would make them legal.

The commercialization of Native religion is blasphemy to the Native world, but it is a blasphemy that the Native American community has had to endure; so is the distortion of Native teachings to fit New Age ideas, such as the “prosperity gospel” about “manifesting your personal dreams” that is being dressed in faux Native American garb.

In addition to the “donation” requested for the retreat, participants at AH retreats are required to buy memberships in the “Ayahuasca Healings Native American Church.” These memberships supposedly make it legal for them to drink ayahuasca. But there are no requirements or questions about religious motivations in order to join the religion. (Quite the contrary; as noted above, people who can afford the hefty donations are given a hard sell, with no religious questions at all.) Unless one considers the “life coaching” that AH is preparing to offer to be somehow religious, people who buy memberships in the church are given no religious teachings, nor any specific guidance about how to continue to follow their new religion after they leave—even though, in order to participate in their new religion for perhaps one week out of their life, they have bought a lifetime membership.

These are some of the grounds upon which the government could challenge the sincerity of this “religion.”

“Burdened”

At the end of the day, do you want Ayahuasca? Or do you want the peace, liberation, freedom, love, and long-term way of living, in alignment with your true purpose & service to the world? We know it’s the latter. So look at the money you have donated, as a massive investment towards YOURSELF. We will support you in ways that you have never been supported before. And this money you have donated, will be one of the greatest gifts, you could have ever given yourself. We are offering, and delivering, a coaching program, or more so, a Global Healing Community, that will be worth the money you have donated, and so much more. Stay tuned, to realize how much this will really serve you.

So says Trinity, in explaining why they are refusing refunds. But the more he says that Ayahuasca is not essential to their mission, the weaker becomes their RFRA claim. 

“Compelling Interest”

The government, on its side, is required to present “compelling interest” (a good reason for having the law and for refusing the exemption).   In entheogen RFRA cases, the compelling interest presented by the government has been twofold:

1) the substance in question is dangerous to health and safety

2) allowing religious groups to use the substance presents the risk of “diversion” of the substance to the black market

Safety

In an entheogenic RFRA case, the courts and the DEA begin with the premise that a drug is dangerous if it is in Schedule 1, and the government’s compelling interest in protecting public health and safety means it must proscribe the substance.

In the UDV case, the government tried to present evidence around the issue of safety and raised other “health concerns” as well. However, the UDV had counterarguments for everything presented, including expert testimony from eminent scholars and physicians in the UDV’s own medical and scientific studies department. The court ruled that the evidence on health and safety was in “equipoise,” and since the burden of proof for this was on the government, the UDV prevailed on the question.

Safety is not an issue that can be taken for granted or ignored. Administered by skilled therapists or healers, ayahuasca can be powerfully beneficial for a wide range of psychological problems. The potential benefits of this brew for helping people to deal with depression, drug addiction, trauma, and so on are enormous. But a medicine that can work so powerfully for psychological healing can, like a surgeon’s scalpel, be dangerous in incompetent hands.

The publicity given to ayahuasca’s therapeutic powers in recent years has caused a huge surge of interest among desperate people seeking to heal PTSD and trauma, depressed people and suicidal people, people with drug addictions and people with schizophrenia or other mental illnesses. In fact, AH’s own web page offers ayahuasca as a help for “Isolation/Loneliness, Depression, Drug / Alcohol Addictions, Suicidal Thoughts, PTSD.” Ayahuasca indeed can be used by skilled therapists as a powerful tool to help people with many of these problems, but some problems, such as bipolar disorder, can be worsened with ayahuasca use, and other problems might be helped with skilled hands but can be made worse in an unskilled setting, especially in a large group ceremony. But there are no hints of caution on AH’s web page. Nor is there any sense of the heavy responsibility of leading ceremonies for others, especially in large groups.

In South America, ayahuasqueros train and apprentice for years or decades — at least they are supposed to; but, with the recent ayahuasca tourism boom, there are no legal controls to prevent unqualified and unscrupulous people from cashing in, sometimes with tragic results.

AH is led by inexperienced neophytes who have been drinking ayahuasca for only a couple of years. Trinity apparently only started drinking ayahuasca in 2014 (mainly in Cuzco, spending little to no time in the jungles where ayahuasca is native) and neither he nor his business partner, Marc Kumooja One-Who-Flies-Eagle–with–Condor–and–Hummingbird-Together Shackman, who is actually in charge of the ceremonies at AH, have had training or apprenticeship in ayahuasca.

But they don’t seem to think that that matters, and AH’s long-term plan to open 30 or 50 centers around the US (the number is different in different spots on their web page) shows how low AH’s bar is for ceremonial leaders. New Age “shamans” are plentiful in the US, and so are people who can lead an ayahuasca ceremony by singing lovely songs when everything is smooth sailing; but there are very few around who are equipped to handle serious problems that may arise during ceremony. That ability requires firm grounding.

Moreover, AH conflates religion and therapy. While healing is a part of many religions, legally, therapy and religion are treated as separate paths. Furthermore, presenting a physical substance as a “healing medicine” potentially brings a group under the jurisdiction of the Food and Drug Administration (FDA) in addition to the DEA, and there are no religious exemption precedents under the FDA, which treats “medicines” as purely medical.

Healing with ayahuasca is not the same as “visualizing your ideal life.” People who are struggling with PTSD and heroin addiction don’t need to fantasize about their ideal future life in a tropical paradise, they need to struggle with their real gritty problems in the here and now.

Trinity shows the denial of reality, the ungroundedness, and the self-absorption that seem to come from living within the mindset of “The Secret” art of manifestation. The fact that Trinity has managed to live for so long in a fantasy world where he insisted that AH was “absolutely” legal, despite the straightforward facts and evidence, illustrates this lack of grounding in the real world.

But the leaders of an ayahuasca retreat must be the mostgrounded. Leaders who are in denial of reality and anything “negative” will not be able to provide support for people in crisis.

In fact, Ayahuasca Healings appears to take this powerful medicine very lightly. AH invites people with PTSD and suicidal thoughts to come, but shows no awareness of the potential of the medicine to worsen such problems if administered without skill, especially in a large group setting.   This is reflective of the alarming inexperience of the people who run AH.

AH’s own ex-employees who were trained to interview prospective clients were not even taught about how to screen people with problems, only to manipulate people to donate money and sign up.

Many people in the ayahuasca community, including researchers, therapists, and experienced ceremonial leaders, have expressed alarm that AH is treating this powerful medicine so lightly.   In fact, AH compares ayahuasca with yoga and meditation: “We truly believe that Ayahuasca is going to be as common a language as Yoga and Meditation one day very soon.” But yoga and meditation can be used casually with no risk of negative consequences. Such statements reveal the alarming lack of experience and lack of knowledge about the responsibility they plan to undertake.

But Trinity is deaf to concerns, and refuses to learn from much more experienced people, because he knows their motivations: “[The] reason people will still say this isn’t legal is because: People don’t want this happening. It’s simple. Our world is just starting to really be ready for this depth and level of Spiritual Awakening for the masses. But there are so many people, organizations, and energies that are out there that want the world to stay asleep. Stay stuck in the system, stay stuck in the same daily grind, the Monday to Friday work trap, and the same repetitive unfulfilled day again and again. So many energies are in the world that feed off of the suffering and misery of our humanity.” The response is to “send them love,” but never to listen – something that doesn’t bode well for a healer. A “healer” who can’t deal with any reality he doesn’t like, but simply denies that it exists, will not likely be able to support someone in crisis, or even recognize when a crisis is happening.

UDV and Santo Daime prevailed on the safety issue because of their long histories and track records in Brazil, their obviously disciplined practices, and the fact that the government could not present evidence that contradicted their claim that, as they practiced it, ayahuasca was safe. AH has no track record of safety to point to; and in fact, there are serious reasons to challenge their safety. Therefore, AH is unlikely to prevail on the safety issue.

Diversion

The issue of possible diversion to the black market is the government’s other “compelling interest.” Diversion would certainly be a serious concern with AH’s parent organization, Oklevueha Native American Church (ONAC).   ONAC authorizes its members, scattered throughout the country, to use “any earth-based sacrament” in any manner they want, with no real oversight, as long as it is “ceremonial and with intention.” Their only restriction is that members are not to serve any sacrament to a non-ONAC member — but they can sell or give their sacraments to anyone who simply buys an ONAC membership. In Florida, the owner of a medical marijuana dispensary has declared it an ONAC church and sells non-medical marijuana to any customer who buys a membership. In Michigan, an ONAC “medicine man” was sentenced to federal prison in early 2016 for growing hundreds of marijuana plants. He had thought that his sales were legal because his customers had bought memberships in his ONAC branch church.

ONAC has no rule about physical security of the sacraments in their branch churches. And, even if ONAC were to add such a rule, they would have no way to enforce it. That is one of the reasons that affiliation with ONAC affords no legal protection for its branch churches, and can not; each group must apply for an exemption one at a time and must make its own case for protection against diversion.

To protect against diversion, an exempt church must keep their sacrament under secure lock and key; must have ceremonies with a definite beginning and end, not allowing the sacrament to be consumed outside of ceremony; and must keep careful records of how much sacrament comes in and out and how many people consume it on what dates. Ayahuasca Healings say that they keep the ayahuasca and San Pedro cactus they use under secure lock and key. They also presumably keep records of their retreat guests, retreat dates, etc. Although their parent organization, ONAC, would fail on the diversion issue, the diversion issue may be the only factor which would favor AH getting a RFRA exemption.

A Word About ONAC, Ayahuasca Healings’ Parent Organization

ONAC, the Utah-based Oklevueha Native American Church, is AH’s parent organization, and affiliation with them may be a kiss of death for an ayahuasca church. Other ayahuasca circles and churches—actual groups with stable fellowships—have affiliated with ONAC and officially become ONAC branch churches in the belief that this made them legal. In reality, not only is it unnecessary to have a formally organized church in order to apply for a religious exemption, but affiliation with ONAC could actually hurt an ayahuasca church’s chances for gaining an exemption. As discussed before, “sincerity” in this context means “not made up to get around the law.” An ONAC affiliation hands the government strong grounds to challenge an ayahuasca church’s religious sincerity, since obviously an ayahuasca church does not become an ONAC branch for religious reasons; its sole reason for affiliating with ONAC is to gain the fictive legality that ONAC offers, and it would be difficult for members to maintain anything else under cross-examination.

ONAC publicly advertises that anyone who buys a membership from them is exempt from the Controlled Substances Act with regard to all “earth-based sacraments.” This is unequivocally false.

The legitimate Native American Churches have denounced ONAC’s claim that marijuana and other “earth-based sacraments” are or can be NAC sacraments. But apparently they have not yet heard about other claims that ONAC makes in the name of the Native American Church. They seem not to have heard yet that not only does ONAC claim, in the name of NAC, that all its members have the the legal right to use marijuana, ayahuasca, psilocybin, etc., but ONAC members can use them any way they come up with, as long as “the user considers it to be ceremonial and with intention.” They seem not to have heard yet that ONAC sells memberships online to people they have never shared ceremony with, never even met. For $200, anyone can call themselves a Native American Church member, regardless of whether or not they have ever participated in a real NAC ceremony or have any knowledge of Native culture (beyond perhaps New Age pop versions of Native culture). They seem not to have heard yet that one can become a “medicine person” by filling out a form, paying ONAC $1000, and receiving a laminated card certifying that one is a medicine man or woman. They seem not to have heard yet that by assembling three people and paying a fee of several thousand dollars (reportedly $7000) anyone can set up their own “Native American Church” (that is, a branch of ONAC), and then they purportedly have the legal right to serve otherwise illegal entheogens to others, as long as everyone who partakes is also a “Native American Church member” (holder of an ONAC card).

The only guideline that members are expected to follow for their use of their sacraments is that “Medicines must always be used in a way the user considers to be ceremonial and with intention, whenever possible in consultation with a medicine person or branch leader.” The ability of ONAC “medicine persons” or branch leaders to offer wisdom and guidance may be questioned; both statuses are up for purchase, and little qualification or background is required. As noted above, an ONAC “medicine person” gets that title by paying $1000 to ONAC and receiving a card to prove their status. (Genuine Native American medicine people don’t call themselves by such titles, they are recognized as such by the community.)

ONAC’s claims are based on the mistaken idea that simply being a member of a church that has gained a religious exemption gives special legal privileges to use substances that are illegal for others in any venue that one wishes. In reality, membership in a church or other organization is irrelevant to the issue of religious exemptions. The issue of membership never came up in the UDV and SD court cases. One does not have to be a member of those churches to participate in their ceremonies. Nor do members of the UDV and SD have the legal right to drink ayahuasca in any venue but the ceremonies of the church that has gained the exemption.

The only legal context in which membership in a church is a factor in the right to use an entheogen is in three state laws governing peyote, and only one of those three state laws resemble what ONAC claims is the law of the land. In Kansas, peyote is legal for NAC members — but only in NAC ceremonies. In Texas, peyote is legal only for NAC members, in or out of NAC ceremony — but they must be of Native American heritage. In Wyoming alone, peyote is legal for NAC members of any race, and not necessarily in NAC ceremony. That Wyoming law, which pertains to peyote only, is the only law in the country that resembles the law that ONAC insists pertains to all entheogenic sacraments everywhere in the USA.

Ayahuasca Healings requires participants to buy memberships that supposedly make it legal for them to drink ayahuasca; they have inherited ONAC’s folly that membership in a church conveys some special legal privilege. But, in fact, the issue of membership did not even come up in the UDV and Santo Daime court cases. As noted above, one does not have to be a UDV or Santo Daime member to participate in UDV or Santo Daime ceremonies; nor do members of the churches that have gained exemption have the legal right to drink ayahuasca in any other venue. The courts did not legalize UDV and SD members to do whatever they wanted; they legalized UDV and SD practice as, evidently, safe.

Public Policy

When courts make decisions that set precedent, a major consideration is what the impact of the precedent will be; whether it will lead to good public policy. There could be a question about whether it would be good public policy to open up the right to pour ayahuasca, in exchange for hefty “donations,” to anyone who decides to set up their own ayahuasca church, regardless of their qualifications or lack thereof, and to advertise freely on the internet, where people can make limitless claims about whatever they are selling.

In the beginning, I had thought that Trinity and company were merely naïve and unqualified neophytes who didn’t realize how common it is for people in the early stages of the ayahuasca path to go through a phase of feeling that one has received a messianic call. But the more research I did around AH, the less innocent it seemed. It seemed less and less like sweet naivete and more like deliberate manipulation.

Ayahuasca is not subject to recreational use or abuse because it is not a pleasant experience, not an escape, and definitely not addictive. People who seek it are drawn to it because of its potential for helping healing emotional problems, and physical ailments connected to those emotional problems. But desperate people seeking help can be easy prey for exploitation and manipulation by unscrupulous or simply incompetent operators. Ayahuasca can make people deeply suggestible; that is one of the reasons for its healing potential. A person who leads ayahuasca ceremonies must have a high degree of both competence and integrity. And leading large groups safely requires extraordinary levels of competence. Putting oneself in the wrong hands in an ayahuasca ceremony is akin to submitting to brain surgery by an amateur operator, or, worse, a scam artist, or worse yet, an abuser. While individuals who take responsibility for their own self-therapy under ayahuasca are unlikely to do serious psychological harm to themselves, when people under the influence of ayahuasca trustingly place themselves in the hands of a group leader, the potential for abuse by manipulators is high, and being manipulated or taken advantage of while under the influence of ayahuasca can traumatize a person, or compound existing trauma. Opening the legal door for any charismatic manipulator to start a “church” and legally serve ayahuasca to all and sundry would be dangerous public policy.

Ayahuasca has legitimate therapeutic use, but it has a potential for abuse as well; not so much by individual users as by ceremonial leaders who are incompetent, unscrupulous. narcissistic or messianic. There have already been many reports of South American ayahuasca shamans taking sexual advantage of female clients still under the influence of the medicine. And we have seen the development of abusive cult-like groups such as “Ayahuasca Planet,” a group spreading through Europe through the multi-level marketing model, led by the notorious Alberto Varela, who has left many of his followers seriously traumatized. As ayahuasca spreads increasingly around the world, we may see more and more cult leaders discovering its potential.

There should be a path for exemption not only for legitimate ayahuasca religions, but for therapy and research to develop that therapy. The problems and mindset of people in modern industrialized society are very different from those of the people in the indigenous forest cultures where ayahuasca originated, and indigenous wisdom can be blended with modern psychological science to develop effective forms of therapy adapted to people from the modern world. There may, in the future, be professional associations that can certify ayahuasca therapists for competence and integrity, like the professional associations that license doctors, lawyers, and other skilled professionals.

The fact that so many informed people in the ayahuasca community who know ayahuasca’s powerful potential for psychological healing and spiritual development have reacted in alarm to Ayahuasca Healings should raise a red flag about them. If the DEA or the courts study AH closely, they are unlikely to decide that they qualify for a RFRA exemption.

(*) Gayle Highpine is a free-lance researcher, editor, and translator. She can be contacted at gaylehighpine@yahoo.com.