The reclassification by the TGA in 2023 of psilocybin and MDMA as prescribable medicines has made Australia an international pioneer in psychedelic medicine. However, psychedelics before their medicinal use have been used by indigenous people for religious purposes for thousands of years. Given now that these once-sacred substances are enshrined in law as medicine, could they not also be revisited as religious sacraments?
This is not a new frontier, in the United States, psychedelics have been legally used in certain religious contexts primarily through exemptions granted under the Religious Freedom Restoration Act (RFRA) and court rulings. Two notable cases involve the Native American Church and the União do Vegetal (UDV).
- Native American Church:
- Peyote: This church uses peyote, a cactus containing the psychedelic compound mescaline, as a sacrament in its religious ceremonies.
- Legal Exemption: In 1994, the U.S. Congress amended the American Indian Religious Freedom Act to specifically allow the use of peyote in religious ceremonies by Native Americans, despite its classification as a Schedule I controlled substance.
- União do Vegetal (UDV):
- Ayahuasca: The UDV uses ayahuasca, a brew containing the psychedelic compound DMT, as a sacrament in its religious practices.
- Supreme Court Ruling: In 2006, the U.S. Supreme Court ruled unanimously in Gonzales v. O Centro Espírita Beneficente União do Vegetal that the UDV could legally use ayahuasca under the RFRA. The Court found that the government had not demonstrated a compelling interest in banning the religious use of ayahuasca that outweighed the UDV’s religious freedom rights.
These legal recognitions affirmed that, under specific conditions, religious groups in the U.S. can use certain psychedelics in their practices, provided they can demonstrate that these substances are integral to their religious rituals and that their use does not pose significant public health or safety risks.
Could a similar thing be done in Australia?
Australia’s religious freedom clause, enshrined in Section 116 of the Australian Constitution is similar to its US Constitution counterpart and similarly protects the free exercise of religion. With approximately 51,000 Brazilians living in Australia, Santo Daime has arguably the most members in Australia of any psychedelic religion. If you are unfamiliar with Santo Daime, they are a religious group that uses ayahuasca, a psychoactive brew, as a sacrament in their religious ceremonies. This leads to the big question of this article.
Can Santo Daime members in Australia legally use Ayahuasca?
Well, the only way to answer this question is to have a look at a few legal interpretations and precedents, summarised in short below…
Legal Background and Considerations
- Section 116 of the Australian Constitution:
- This section ensures that the Commonwealth cannot make any law prohibiting the free exercise of any religion.
- However, this protection is not absolute and must be balanced against other laws, including those related to public health and safety.
- Controlled Substances:
- Ayahuasca contains DMT, a substance classified as a controlled drug under Australian law.
- The possession, use, and distribution of DMT are strictly regulated, and its use is generally prohibited outside of specific medical or research contexts.
- Previous Cases and Precedents:
- There have been legal challenges in various countries regarding the use of ayahuasca for religious purposes.
- In the United States, for example, the Supreme Court ruled in favor of the União do Vegetal (another religious group using ayahuasca) under the Religious Freedom Restoration Act. However, Australian law does not have a directly comparable statute.
- Potential Legal Pathways:
- Santo Daime members in Australia could potentially argue that their religious freedom is being infringed upon by laws prohibiting ayahuasca.
- They would need to demonstrate that the use of ayahuasca is a central and indispensable part of their religious practice.
- They would also need to address concerns related to public health and safety, showing that their use of ayahuasca can be safely regulated within their religious ceremonies.
- Regulatory and Social Context:
- Australian authorities might be concerned about the broader implications of allowing a controlled substance to be used for religious purposes.
- Any legal challenge would likely need to navigate complex regulatory and social considerations, including public perceptions of drug use and the potential for misuse.
While Australia’s religious freedom clause provides a basis for Santo Daime members to argue for their right to use ayahuasca, the success of such a claim would depend on numerous legal, regulatory, and social factors. Given the strict controls on substances like DMT, any legal challenge would be complex and would require a careful balancing of religious rights and public health concerns.
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