Ayahuasca and Religious Freedom in the Dutch Courts: from Tolerance to Intolerance

What’s the legal situation of ayahuasca in the Netherlands? What do the Dutch courts decide in terms of religious freedom? In early 2018, a Dutch court ruled on whether applying the drug laws that prohibit activities surrounding DMT to the ayahuasca usage of members of the Santo Daime church amount to an unjustifiable breach of their right to religious freedom, as protected under Article 9 of the European Convention on Human Rights (ECLI: NL: GHAMS: 2018: 689).

The Santo Daime view ayahuasca (daime) as a sacrament that enables communion with the divine, and it plays an integral role in their religious ceremonies. While the court accepted that prohibiting the church from drinking ayahuasca did breach their religious freedom, it concluded that this was justified on the grounds of protecting public health.

Before analyzing this decision, it’s necessary to sketch in a little background context. Ayahuasca is not covered within global drug prohibition, so whether or not its use is criminalized in different nations is at their discretion. In essence, it tends to come down to whether or not the courts reduce a religious or ceremonial practice down to the brew that’s imbibed as part of it, and, further, whether or not they conflate ayahuasca with its psychoactive component, DMT, which is illegal under both international drug law and, accordingly, most countries’ domestic drug laws.

Until recently, Holland was a sterling example of a nation that had taken a more sophisticated approach (details about ayahuasca legality in the Netherlands are available in our legal map). In an earlier case known as Fijneman, the argument that the prohibitions on DMT should not apply to the Santo Daime’s use of ayahuasca was accepted, with the court being of the opinion that “in the defendant’s case the statutory prohibition against possessing, supplying and distributing DMT … as a result of which she cannot receive the most important sacrament of her religion during the worship service, constitutes such a serious infringement of her religious freedom that this infringement cannot be regarded as being necessary in a democratic society” (Case number: 13/067455-99, District Court of Amsterdam, 21 May 2001 – documents available online here).

Ayahuasca and the Dutch courts

In the more recent decision, as noted above, the court was of the opinion that, whilst prohibiting the Santo Daime from drinking ayahuasca indubitably affects their right to religious freedom, it’s nonetheless legally justifiable on the grounds that it posits a public health risk. Such risks had been properly assessed in Fijneman, where the court was of the view that “drinking ayahuasca in the religious context of the Santo Daime church does not involve any appreciable risks to public health,” with an outcome in which the right to religious freedom trumped any negligible risk.

In coming to the opposite conclusion in this latest ruling, the court didn’t root its decision in an assessment of the relevant scientific literature, but, rather, assumed public health to be under threat by virtue of the fact that DMT is contained within prohibitive drug legislation. This decision is deeply problematic and makes the mistake outlined above of conflating DMT and ayahuasca − commendably avoided in Fijneman – and operates on the (often erroneous) assumption that drug prohibition is itself based on a scientific assessment of harm.

Human rights protections ought to be taken seriously. If the court is taking this position, they need to substantiate it with hard evidence of direct applicability to the case in hand: namely, that the use of ayahuasca in the controlled environment of a church setting produces a public health risk. Otherwise, the decision is rooted in supposition that engagement with the scientific evidence on the minimal risks of harm − and, indeed, the benefits of ayahuasca − would swiftly prove to be spurious. This constitutes a descent in to an unacceptably circular style of reasoning: ergo, that ayahuasca must be harmful because it’s illegal. Not only are all aspects of this assertion highly questionable, but, further, such an approach defangs human rights protections: by definition, all criminal laws that are challenged on human rights grounds involve activities that are unlawful.

It seems important to try to understand why there’s been this change of direction in the Dutch courts. There are clues to this scattered throughout the judgement, many of which point to an overarching concern that, since Fijneman, ayahuasca has become exponentially more popular, both inside and outside of the church context: in effect, she has become a victim of her own success. Thus, a concern that religious exemptions might seep out and thereby undermine prohibition − absent in Fijneman − has found a foothold here. As a legal justification for impinging upon people’s rights, this is unconvincing. The law is fundamentally concerned with drawing lines between acceptable and unacceptable behavior: it is always the case that these lines might be crossed and that is why the criminal law exists.

Relatedly, the court expressed a (purely speculative) concern that people might be motivated to attend the church for the sole purpose of drinking ayahuasca, absent an interest in the spiritual aspect of it, a worry that would only appear to make sense to someone who’s never drunk ayahuasca.

Ayahuasca in the Netherlands

The court was also perturbed about ayahuasca being distributed by non-medical professionals. This exposes the reality that drug policy has always been rooted in a tussle for power, with the inception of prohibition (not coincidentally) coinciding with the rise of the medical profession and, with it, the view that only certain authority figures should be able to give out drugs. There is a clash of narratives at play here, with the Santo Daime rejecting the label of drug, but, rather, viewing ayahuasca as a sacrament rightly served in a religious context. The lack of compatibility between these two world views is illustrated further by the court’s concern with the effects of ayahuasca, such as that it can cause nausea, evidencing a complete lack of understanding of its purgative function, welcomed by many of those who drink it in the service of shedding limiting beliefs.

Further, the court expressed its anxiety that people with mental health issues that could potentially be worsened by ayahuasca might lie about them in order to be able to partake. While opinions differ with regards to which psychological conditions ought to bar one from drinking ayahuasca, most people accept that it is not for everyone, particularly those inclined to psychosis. However, the solution to this genuine issue is not to infringe upon the religious freedoms of all of those who might benefit spiritually from the brew, but, rather, to develop more robust screening practices. Similar concerns were raised about problems emerging post-ceremony: whilst, again, issues concerning integration are real, they seem inapposite in this instance, given the communal nature of these churches and point to the need for developing best practices rather than criminalization.

Notably, there is heavy reliance throughout the judgement on a previous adverse ruling on ayahuasca handed down by the European Court of Human Rights (Fränklin-Beentjes and Ceflu-Luz da Floresta v. Netherlands, 2014) where it was found that a general ban on ayahuasca (again, conflated with DMT) does not constitute an unjustified restriction on the freedom of religion. There was also an appeal to the authority of international law, particularly misguided given that ayahuasca categorically does not fall under this system. This decision is especially disappointing given that the Dutch have long been known for having one of the most liberal drug policies in the world (although it’s worth noting that this does not make it especially liberal, given the constraints of global prohibition).

Santo Daime in Holland

Of course, those in the Santo Daime —and many beyond— do not see ayahuasca as a drug so this can be conceptualized more as a failing of the longstanding Dutch commitment to pluralism: to creating a democracy that leaves space for many different lifestyles to flourish, in the interests both of individual human rights and out of recognition that allowing for such diversity will ultimately benefit broader society.

That a progressive, forwards-thinking nation has reached such a decision on ayahuasca is troubling, not only for the religious groups on whom it has a catastrophic effect in that they can no longer worship without fear of prosecution, but for drinkers of ayahuasca everywhere. The Santo Daime are in the process of appealing to the Dutch Supreme Court where it is hoped that this retrogressive decision will be reversed.

Charlotte Walsh, LLB, MPhil, is a law lecturer at Leicester University in the United Kingdom and a member of the ADF Steering Committee.

Categories: NEWS , Ayahuasca , ADF
Tags: Ayahuasca Defense Fund , Netherlands , ayahuasca

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