Justice Kagan’s Bad Ayahuasca Trip

In Employment Division v. Smith, a Native American used peyote as part of a religious ritual. This is not a recreational drug that people get addicted to. Rather, it is a very strong drug that causes hallucinations. And from what I’ve heard, it has serious side effects. Some years ago, one of my students had tried it as part of a religious ritual. He described the ritual as meaningful, but said the peyote was extremely unpleasant, and he could not stop vomiting. But I take it as a testament to faith that people endure through a ritual, even when it has unpleasant side effects.

While most students are familiar with Smith, far fewer people remember Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006). This was Chief Justice Roberts’s first majority opinion on the Court. Here, a sect from the Amazon rainforest used hoasca, also known as ayahuasca, as part of a religious ritual. The group argued that under RFRA, they should receive an exemption from the enforcement of the Controlled Substances Act. Hoasca is similar to the peyote at issue in Smith. Indeed, the Court found that because an exemption was granted for peyote, a similar exemption should be grated for hoasca.

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.

I hadn’t given much thought to hoasca until oral argument in Hemani on Monday. Justice Kagan raised a hypothetical about whether a user of hoasca could be subject to a categorial bar on firearm ownership.

JUSTICE KAGAN: Suppose, Ms. Murphy, Congress tomorrow says, you know, we’re afraid that this Controlled Substances Act is not really doing it for us in this area, so we’re going to come up with a list of particular drugs that we — we want to be able to take away people’s guns. And the first on that list — I’m going to say I don’t know a lot about this drug, I’m assuming you don’t know a lot about this drug, so what I’m going to tell you about this drug let’s just assume is the truth about this drug. So it’s — the drug is Ayahuasca, and it’s a very, very, very intense hallucinogen, and the — the episode lasts a very long time. But it’s not, let’s say, an addictive drug. You know, you can choose when to take it. But, when you’re in its grip, like, you basically — reality dissolves, all right? And I’m assuming that Congress has a good reason for saying, when reality dissolves, you don’t want guns around. So — but that to me, when you give the description of the historical analogue, to me, that’s going to fail your test. Should it fail your test?

It does not seem that Justice Barrett was familiar with hoasca, the drug at issue in O Centro:

JUSTICE BARRETT: I was just going to give you a variation of Justice Kagan’s hypothetical. I have never heard of the drug that she was — is that real? Okay.

(Laughter.)

Justice Kagan’s hypothetical was very difficult because there is both a religious liberty issue and a Second Amendment issue. If the religious liberty claim is asserted under the Free Exercise Clause, we may get to the “hybrid” right formulation that Justice Scalia described in Smith. In other words, the Free Exercise Clause would reinforce the Second Amendment clause. How would this work? The government would be banning people of this sect from using this controlled substance, and then would be banning those who use this drug for religious reasons from having a firearm. The government might simultaneously violate the First and Second Amendment.

The issue becomes a bit clearer under RFRA. The Court already ruled in O Centro that those who use Ayahuasca should receive an exemption from the Controlled Substances Act, as the ban is not the “least restrictive means.” I am not entirely sure how RFRA would interact with Section 922 in light of the Second Amendment. But at a broad level, I don’t think a person could be disarmed for engaging in a religious sacrament.

I don’t think this question is easy, but my tentative conclusion is that the ayahausca ban would fail the historical tradition test.

Of course, there is still the question of sincerity. I tend to think that people who belong to this sect, and take a drug that has such severe side effects, can make the case that they have a sincerely held religious belief. I also think this sect is an actual religion, and not a faith manufactured for purposes of litigation like the Church of Marijuana or something to that effect.