Three Federal Court Decisions That Affect Churches With Sacramental Ayahuasca: Soul Quest Church of Mother Earth, Iowaska Church of Healing, and Church of the Celestial Heart
Photo: Manuel Medir
A Legal and Spiritual Consideration of the Law Respecting Ayahuasca Medicine Circles
By Ronald W. McNutt, attorney at law, January 29, 2024
Administrative Factfinding, Preclusion Effect, and the Soul Quest Case
The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(c) provides: “A person whose religious exercise has been burdened in violation of [the Religious Freedom Restoration Act] may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” The Act defines “government” to include agencies, departments, officials, and persons acting under color of federal law. 42 U.S.C. § 2000bb-2(1). It prohibits federal agencies from burdening the free exercise of sincerely-held religious practices and beliefs unless the agency can show that the burden advances a compelling state interest in the least restrictive way.
A recent decision considering a claim for religious use of psychedelics as exempt from the application of the Controlled Substances Act reveals a complicated administrative barrier and process. A federal appeals court required the findings and conclusions of the Drug Enforcement Administration to be reviewed under the administrative review, giving effect to its denial of exemption, and not conducting a case-by-case review as anticipated by the Religious Freedom Restoration Act. In Soul Quest Church of Mother Earth, et. al. v. Attorney General, United States of America, et. al., Case №6:20-cv-701-WBB-DCI (11th Cir. Dec. 18, 2023), the U.S. Court of Appeals for the Eleventh Circuit, in a published opinion, denied the appeal by an ayahuasca church in Florida from the denial of a religious exemption to the Controlled Substances Act, 21 U.S.C. §§ 801–901.
Soul Quest’s Interaction with the Drug Enforcement Administration
Soul Quest Church of Mother Earth, an ayahuasca church incorporated as a nonprofit corporation, stated on an internet website in 2016 that it had an exemption for its ayahuasca ceremonies under the Free Exercise Clause. The Drug Enforcement Administration sent a warning letter and a 2016 Religious Freedom Restoration Act agency guidance for a two-step process. The guidelines stated that for a religious organization or person to show its rights to sincere religious exercise of religion were substantially burdened by government regulation, and to show entitlement to religious use of psychedelics, it had to show the nature of the religion, each practice that involves the use, manufacture, or handling of the controlled substance it will use, and the amounts, conditions, and locations of the possession, distribution, and handling.
The Eleventh Circuit focused on the fact that Soul Quest sought registration to permit use, possession, distribution, and handling of ayahuasca. (Eleventh Circuit, slip op. at 35). The Drug Enforcement Agency communications had prompted Soul Quest to file a petition for an exemption in 2017. Soul Quest submitted information to the Drug Enforcement Administration regarding the beliefs of the church, the role of ayahuasca in its ceremonies, the practices of the organization, the storage, handling, and usage practices, and the leadership structure of Soul Quest. The agency did not respond to the petition for three years, while Soul Quest continued holding regular ceremonies with ayahuasca.
Soul Quest then filed a complaint for declaratory and injunctive relief along with a motion for a preliminary injunction. The Drug Enforcement Agency then requested more information about the organization, its beliefs, the practices for safeguarding, recordkeeping, and dispensing the sacramental ayahuasca, and stated that it needed to conduct an inspection and interviews to reach its decision. The parties, in June 2020, agreed to a stay of litigation pending a final decision. After further investigation, the agency issued a letter of denial concluding that Soul Quest was not a sincere religious practice. The leadership at Soul Quest had the impression that the purpose of its investigation was to accomplish a settlement. In April 2021, however, the Drug Enforcement Administration issued an adverse decision on the application for exemption.
Denial by the Drug Enforcement Administration
The Drug Enforcement Administration took the position that it had the authority to render final determinations on petitions for religious exemptions pursuant to a memorandum of the Attorney General, “Federal Protections for Religious Liberty,” and documentation and guidance under the Controlled Substances Act. It asserted a compelling state interest in prohibiting the church’s use of ayahuasca to maintain safety and prevent diversion. The Eleventh Circuit opinion stated, “The agency concluded that the church had not met its burden under RFRA to show that its members’ beliefs were sincerely held that its use of ayahuasca was part of a religious exercise.” (Id., slip op. at 4). This placed the burden of proof on the applicant to show an exemption from the Controlled Substances Act. The agency stated that its denial was “a final determination under 21 U.S.C. § 877.” (Id.).
The denial concluded that interviews with individual leaders and attendees were inconsistent about the religious basis for serving ayahuasca, and that there were assertions of self-help and therapeutic reasons for its use. The agency found inadequate religious commitment to a coherent religious practice by participants. (Id., slip op. at 18). The Drug Enforcement Agency letter to Soul Quest identified a somewhat loose affiliation and the occurrence of isolated instances of participation to determine that it had a secular purpose. The Drug Enforcement Administration also discounted the legitimacy of Soul Quest as a legitimate religion because it had an open approach to participation. It noted that some participants may follow up periodically with ceremonies and attend integration calls held on the internet regularly, while others may attend a single weekend ceremony.
Participants were screened for medical and contraindicated medicines, but were not required to state a commitment to the church. Evidence of beneficial health effects and mental health benefits were used against Soul Quest to undermine its arguments for religious sincerity. It referred to statements “including ‘transformational coaching services’ intended to support recovery from addictions, post-traumatic stress disorder (PTSD), and other conditions” on its website, along with statements that, “[a]yahuasca is used primarily as a medicine … It is a natural remedy for depression, anxiety, posttraumatic stress, anxiety, drug addiction, and it also releases emotional blocks.” The Eleventh Circuit observed that there was evidence of a lack of safeguards from a wrongful death lawsuit alleging a delay in calling emergency personnel after an individual experienced a medical crisis after taking kambo, a bloodborne substance derived from a frog, due to excessive water consumption.
The district court noted that the agency found inconsistency among its leadership with respect to a creed or set of religious beliefs because of a varying emphasis among its leaders on a document, The Ayahuasca Manifesto. The Drug Enforcement Administration concluded that Soul Quest’s leadership described a flexible approach to spiritual belief, with non-dual understandings about the creative source and religious experience. The agency identified Soul Quest’s original affiliation with the Oklevueha Native American Church, and sourcing from an entity, Waking Herbs, which was not registered with the Drug Enforcement Administration. It also identified an issue with its corporate structure, with a for-profit entity, Soul Quest Natural Healing Center, receiving significant portions of its receipts. The Drug Enforcement Administration considered these factors to detract from Soul Quest being considered a church or entity entitled to constitutional protection.
The Appeals
Soul Quest did not pursue an appeal the Drug Enforcement Administration’s decision within thirty days of the April 16, 2021, denial of its application. It maintained that the Religious Freedom Restoration Act mandated there be a judicial process and that it should not be forced to accept the agency decision. The Department of Justice filed a motion to dismiss. Soul Quest’s attorneys amended their complaint to assert that the process violated the Religious Freedom Restoration Act by purporting to decide important First Amendment determinations about constitutional rights that prohibited sacramental use of ayahuasca. Soul Quest challenged the legitimacy of the Drug Enforcement Administration process, making determinations about the sincerity of the staff, adherents, and participants to support the denial of exemption. The amendment was followed by a second motion to dismiss, asserting that the administrative process was preclusive and that its exclusive appeal was under the administrative procedures process to the court of appeals. The district court granted the motion to dismiss in December 2021.
There were two separate appeals. The appeal that was dispositive involved the ultimate issue whether the administrative decision required an appeal within thirty days under an administrative appeals process that entails deference to the agency’s findings. The Eleventh Circuit Court of Appeals agreed with the government’s position that the appeals court did not have jurisdiction because the appeal was late because Soul Quest had not appealed the Drug Enforcement Administration’s decision within thirty days of the denial of its application. Soul Quest instead took the position that the final decision did not take place until the March 4, 2022, order of the U.S. District Court for the Middle District of Florida, which held that it no longer had jurisdiction.
The Eleventh Circuit Decision
The U.S. Court of Appeals for the Eleventh Circuit did not recognize Soul Quest’s claim on appeal as a private right of action under the Religious Freedom Restoration Act. The court’s opinion interpreted the Drug Enforcement Administration’s process of considering the request for a religious freedom exemption, which it requested Soul Quest to pursue, as a decision under the Controlled Substances Act. Over a vigorous dissent, the Eleventh Circuit majority opinion affirmed the district court’s dismissal for lack of subject matter jurisdiction by concluding that the Drug Enforcement Administration’s April 2021 adverse decision was a resolution under the control and enforcement subchapter of the Controlled Substances Act. The majority determined there was no avenue for review because it had no subject matter jurisdiction.
The court held that the Drug Enforcement Administration’s rejection of Soul Quest’s religious-based exemption was a final administrative factfinding process. The court affirmed the district court’s conclusion that it had been a final determination of the agency under 21 U.S.C. § 877(4), which necessitated an appeal to the court of appeals either in the Eleventh Circuit where the church was located, or in the Circuit Court of Appeals for the District of Columbia, within that thirty-day period. This conclusion in the majority’s holding left Soul Quest with no opportunity to review its claims under the Religious Freedom Restoration Act, because it had not appealed the Drug Enforcement Administration’s April 2021 letter of adverse decision on its request for exemption from the Controlled Substances Act to the court of appeals within thirty days.
The majority opinion held that Soul Quest was seeking appellate review of an agency decision under the Controlled Substances Act rather than the Religious Freedom Restoration Act, and it was out of time and there was no subject matter jurisdiction. Under the Eleventh Circuit’s view, had Soul Quest brought a timely appeal, the court of appeals, under 21 U.S.C. § 877, would have had subject matter jurisdiction, (opinion at 37), however, that would have limited Soul Quest only a “right to judicial review” for the appeals court to determine whether the Drug Enforcement Administration, as the designee of the attorney general, made findings of fact that were supported by substantial evidence. See, 21 U.S.C. § 877.
The opinion took the constitutional protection issue away from judicial determination, and viewed invoking the petition for religious-based exemption process left Soul Quest limited to agency factfinding to be reviewed under a deferential standard of court review, with the agency findings being deemed to be conclusive if supported by substantial evidence. However, the court of appeals concluded that this appeal of a final agency decision was not appealed in time.
Soul Quest sought appellate review of the substantive conclusions that it did not demonstrate a substantial burden on sincere religious beliefs to support ayahuasca’s sacramental role and the Drug Enforcement Administration’s separate conclusion that even if it had done so, prohibition under the Controlled Substances Act was the least restrictive means of furthering compelling state interests in public safety and preventing diversion of ayahuasca to others. Soul Quest argued that the Drug Enforcement Administration’s decision was under the Religious Freedom Restoration Act, that the agency did not have authority under the Controlled Substances Act to adjudicate rights to religious exemptions, and that it was entitled to judicial considerations of the religious exemption claim.
The Drug Enforcement Administration took the position that it was empowered to render final determinations on petitions for religious exemptions pursuant to a memorandum of the Attorney General, “Federal Protections for Religious Liberty,” and documentation and guidance under the Controlled Substances Act. In August 2016, the agency notified Soul Quest “that it may qualify for an exemption based on RFRA,” the Religious Freedom Restoration Act, and had attached the memorandum and invited Soul Quest to petition for a religious-based exemption under the balancing approach that the courts are supposed to follow. The dissent emphasized that these contacts demonstrated that the agency was undertaking to make decisions under the Religious Freedom Restoration Act.
Although Soul Quest challenged the agency’s lack of rulemaking authority, the challenge was not raised in the district court, and was deemed to be waived. (Opinion at 38–39, n. 4). Soul Quest had attempted to raise constitutional objections before the district court after the denial of its petition for exemption, but the appeals court stated that it deemed these to be an impermissible collateral challenge to an agency order. (Id. at 37). The majority regarded the agency’s findings under the Religious Freedom Restoration Act to be part of a two-part process, with a petition for exemption, which, if granted, would allow it to apply for a certificate of registration, and that these were bound up under the Controlled Substances Act. The dissent argued vigorously that the first part, the petition, was determined under the Religious Freedom Restoration Act, and was subject to full review. The dissent stressed that the agency’s denial had nothing to do with registration, which was for industrial, scientific, and medical purposes under 21 U.S.C. § 823 (b). It stated that the denial of the petition for exemption had nothing to do with the Controlled Substances Act, and everything to do with the Religious Freedom Restoration Act, which provides the sole basis for exemption. (Dissenting opinion at 18).
Soul Quest argued that the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 requires exclusive review of religious exemption claims in a “judicial proceeding,” and it challenged the agency’s authority to adjudicate religious freedom claims. (Id., slip op. at 23). The court of appeals rejected Soul Quest’s argument that the Religious Freedom Restoration Act overrides the presumed authority of the Drug Enforcement Administration to make the critical decisions involving the freedom of religion. Soul Quest contended that the Drug Enforcement Administration review process was void of substance and that it made conclusory decisions to reject the application for exemption from the Controlled Substances Act when it had endeavored to satisfy everything that the agency had required. It stressed that the agency had not complied with the notice and public comments prerequisites necessary for rulemaking authority.
Soul Quest stressed, and the Eleventh Circuit agreed, that the Controlled Substances Act, 21 U.S.C. § 801 et seq., does not have provisions about religious exemptions, and it did not specifically authorize the Drug Enforcement Administration to perform a legal analysis under the Religious Freedom Restoration Act and make final determinations about whether there is a compelling governmental interest sufficient to justify a substantial burden on religion, and whether that interest is furthered in the least restrictive means available to do so. (Id., slip op. at 31). The court seemed eager to defer to the agency and involve it in decision making, and reached conclusions that increased the powers and the role of the agency.
The court of appeals held that the power to issue exemptions needed to be reconciled with the duty to strike balances on a case-by-case basis, and that the constitutional inquiry was “inescapably intertwined with” the control and enforcement determinations under the Controlled Substances Act. (Id., slip op. at 6, 24). The denial of an exemption, the court held, precluded Soul Quest from applying for registration for exemption. (Id., slip op. at 27).
The court of appeals held that it did not have jurisdiction, stating, “Soul Quest did not seek a waiver of any provision. Therefore, Soul Quest’s only avenue for lawfully handling ayahuasca was registration via the petition for a religious exemption.” (Id., slip op. at 27). Seeking a certificate of registration was required by the Drug Enforcement Administration to import, manufacture, and handle ayahuasca, and the denial constituted a decision under the Controlled Substances Act. (Id., slip op. at 27, 32).
There are some unfortunate facts that played a role in the adverse decision in this case. The church has many aspects of a retreat center, and it has served people from all religious traditions. The opinion of the Eleventh Circuit could have an unfortunate impact the future of ayahuasca and plant medicine access in ceremonial settings if the expansion of the powers of the Drug Enforcement Administration is perpetuated in later cases.
Soul Quest’s agreement to apply to the Drug Enforcement Administration for the religious exemption to the Controlled Substances Act placed it in within a skeptical and complex regulatory scheme. The agency took on the role of investigator and factfinder, to make the delicate balancing inquiries anticipated by the Free Exercise of Religion Clause and intended for the courts under the Religious Freedom Restoration Act. The process developed into an implicit exhaustion of administrative remedies process that after a three-year delay, concluded with administrative findings deemed a final agency decision. The Eleventh Circuit’s majority opinion did not appear concerned with Soul Quest’s argument the process was further compromised by the absence of authority to make such weighty legality decisions because it has not adopted rules and regulations for its enforcement powers to make decisions protected by the Religious Freedom Restoration Act.
Arizona Litigation Concerning Religious Use of Ayahuasca
In March 2023, U.S. District Court Judge Susan Bolton allowed a claim by the Church of the Eagle and the Condor in Phoenix to move forward, rejecting the Drug Enforcement Administration’s motion to dismiss the case. A Freedom of Information Act (FOIA) request in the Church of the Eagle and Condor, which is set for trial, which revealed the Drug Enforcement Administration’s resistance to recognizing positive benefits of ayahuasca. The recent revelation in the Freedom of Information Act action by Chacruna Institute for Psychedelic Plant Medicines and others that showed that the Drug Enforcement Administration basically declines to recognize religious protection for ayahuasca seems to elucidate the folly of bestowing that kind of authority on the agency. The Drug Enforcement Administration’s risk assessment was obtained in Freedom of Information Act litigation and it was revealed to be not amenable to recognizing ayahuasca as valid for ceremonial usage regardless of measures for harm reduction and prevention of diversion. The Drug Enforcement Administration presents an online exemption application under the Religious Freedom Restoration Act for ayahuasca churches, but it is vague, leads to routine denials, and is not a good approach for seeking to enforce First Amendment rights. The D.E.A. has a particularly restrictive approach and views ayahuasca as unsafe.
Attorneys are well advised to foster transparency by regulatory authorities by submitting requests under state and federal Freedom of Information Act laws. The Freedom of Information Act (FOIA) system is not always effective or functional, but FOIA requests require little effort and lawyers can gain much from such requests. There is no cost to make them and requests can be submitted online. They can be narrowly tailored to specific information, which can speed the time for response.
The Arizona Yagé Assembly, the North American Association of Visionary Churches, the Vine of Light Church in Phoenix and other ayahuasca churches and individual leaders, along with their founder and director, Scott Stanley, filed suit against federal agencies in 2020. The churches challenged seizures of their ayahuasca, and sought constitutional protection for religious ayahuasca ceremonies and protection of the right to import their sacramental plant medicine from Peru. They did not file administrative applications for exemption with the Drug Enforcement Administration. They argued that that agency does not grant exemptions unless required to do so by the courts and that it had continuously refused to recognize an exemption for religious use of ayahuasca, viewing it as being completely prohibited by the Controlled Substances Act. Instead, they proceeded to court and named the agency among other defendants. After a March 2022 order dismissing most of the claims, the plaintiffs filed an amended complaint. On May 4, 2023, U.S. District Court Judge Roslyn Silver ruled that the case can move forward to a determination of their legal rights. Charles Carreon, general counsel for the North American Association of Visionary Churches and the attorney for Arizona Yage Assembly, has urged other entheogenic churches to follow suit and bring similar litigation.
An Overview of Church of the Celestial Heart v. Garland, (E.D. Cal. January 9, 2024)
The Religious Freedom Restoration Act appears to give the courts the authority to perform the delicate balancing of interests, with formal proof standards. The act of pursuing an administrative exemption with the Drug Enforcement Administration has led some courts to find that the agency becomes the authority to make freedom of religion decisions, and that its findings are subject to limited review. Recent court decisions have shown that the courts are receiving pressure to shift factfinding determinations under the Religious Freedom Restoration Act to the Drug Enforcement Administration.
On January 9, 2024, attorneys Jack Silver and Sean McAllister, representing an ayahuasca church in California called Church of the Celestial Heart, succeeded in defending a motion to dismiss filed by government defendants that sought to limit the church and its leaders to decision making by the Drug Enforcement Administration. The federal district court ruled that the federal government was not entitled to require parties to pursue redress in the Drug Enforcement Administration’s administrative system. The court rejected the agency’s claim that it should exercise the power to perform the balancing-of-interests analysis under the Religious Freedom Restoration Act, rather than the courts.
In Church of the Celestial Heart v. Garland, a U.S. magistrate judge in California denied a federal government motion to dismiss a complaint by an ayahuasca church called Church of the Celestial Heart. The suit challenged the seizure, on August 13, 2021, of a shipment of its ayahuasca by the Department of Homeland Security, which was presumably destroyed. It alleged that this was followed by contacting the local county sheriff, which conducted an online investigation. This led to local authorities arresting and filing charges for violation of California law against Jade Osborne that year, and she was held until she posted bond. The suit alleged that these enforcement actions had been undertaken without researching whether they were importing the ayahuasca for religious purposes. (Opinion at 4).
The lawsuit was filed in April 2023, and named the attorney general and other federal officials, the administrator of the Drug Enforcement Agency, the Secretary of the Department of Homeland Security, and the Secretary of Customs and Border Patrol. The suit alleged a chilling effect from the parties’ fear of persecution for exercising their religious beliefs. The parties brought their complaint under Religious Freedom Restoration Act 42 U.S.C. §§ 2000bb-1(c) and 2000bb (4), for declaratory and injunctive relief, asserting the right to freely exercise their religion using an ayahuasca sacrament.
The Religious Freedom Restoration Act precludes the federal government from substantially burdening a person’s exercise of religion unless it shows that the burden is in furtherance of a compelling state interest and is the least restrictive means of furthering that compelling state interest. 42 U.S.C. §§ 2000bb-1(a) and (b). Id. at 9 (citing Holt v. Hobbs, 574 U.S. 352, 357 (2015)).
The Claims for Relief
The court in Church of the Celestial Heart v. Garland addressed complex challenges to the standing of the church and the plaintiffs, its lead pastor, or padrinho, Kai Karrel, Jade Osborne, the church pastor’s wife who also was a lead pastor or madrinha, Daniel Pozas, a member, board representative, and lead guardian, and Sara Mintzer, a practicing healer who was initiated in 2022. The court considered the sufficiency of the allegations to state a justiciable case, accepting the allegations as true for purposes, the standard for considering the motion to rule on whether the parties had standing and a viable cause of action.
The Church of the Celestial Heart is an independent ayahuasca church inspired by Santo Daime, but with teachings from more than a single tradition. It was intended to be open to English-speaking participants. Padrinho Kai Karrel had had a spiritist background. He had studied in the line of Barquinha, and was initiated in that Brazilian ayahuasca tradition. Madrinha Jade Osborne had been a member for five years. The church and individual plaintiffs alleged that partaking of Daime or ayahuasca is an essential and basic part of their faith, a foundational sacrament. (Opinion at 3). They shared tenets that they were part of an ancient tradition dating back 2000 years, that the drink was sacred divine sacrament, that it contained and embodied the spirit of Mother Earth, and that it allowed them to have communion with astral spirits and reconnect with the Great Spirit.
The Church of the Celestial Heart plaintiffs alleged that threats of civil and criminal penalties were an impermissible burden on their freedom of religion. The plaintiffs claimed that the threat of enforcement impinged their freedom to have access to an essential sacrament. They alleged that these actions violated the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-1(a), providing the federal government shall not substantially burden a person’s exercise of religion unless it shows the burden is in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that compelling interest. (Opinion at 9) (citing Holt v. Hobbs, 574 U.S. 352 357 (2015)).
A Department of Homeland Security agent, Jim Johnson, had contacted officials with the Tulare County Sheriff’s Department to inform them about the seizure of the package and that it contained ayahuasca. (Opinion at 4 and 23, n. 4). The complaint alleged that such enforcement actions and seizure were part of a pattern or strategy by Customs and Border Patrol, a subdivision of the Department of Homeland Security, to inhibit access and practice of ayahuasca religion. The plaintiffs alleged that there had been a part of a pattern of incidents with such seizures of plant medicine followed by collaboration with local law enforcements, and investigations, arrests, and prosecutions under state law. The suit alleged that this had been continuing since 2000, with encounters in Arizona, California, Florida, Michigan, New Mexico, New York, Oregon, Tennessee, and Texas. (Opinion at 5).
The plaintiffs stated that the church will continue to follow its tenets and not be coerced to abandon their beliefs; that it will continue to import, possess, and partake of its sacrament. (Opinion at 5–6).
The Government’s Motions to Dismiss
On July 17, 2023, the federal government defendants filed a motion to dismiss, and the case was referred to the magistrate. The federal government moved to dismiss under Rule 12 (b)(1), of the Federal Rules of Civil Procedure, asserting that the plaintiffs did not have standing, that there was not an actual case or controversy on which to base remedial action by the court, absence of jurisdiction. The defendants also filed a motion to dismiss the complaint under Rule 12(b)(6), for failure to state a claim upon which relief may be granted. The standard under Rule 12(b)(6) requires that the party defending the motion must plead enough facts to state a claim that is plausible on its face, with sufficient allegations of facts to give notice and plausibly suggest an entitlement to relief. (Opinion at 8–9 (citations omitted).
The federal government asserted that the plaintiffs, an ayahuasca church and its leaders, did not have standing because the seizure was done by parties not named in the lawsuit and the prosecution, which had not been further pursued, was undertaken by local county officials. The court discussed the law of standing, stating that it is like the issue of ripeness — inquiring whether there is a harm matured sufficiently to warrant judicial intervention, and there is a definite and concrete case or controversy.
The government asserted that it had never prosecuted the plaintiff church leaders for using ayahuasca, or threatened to do so. The court stated that in a pre-enforcement claim with no actual complaint, seizure, or other enforcement measure, the plaintiffs would have to allege a genuine threat of imminent persecution. The Church of the Celestial Heart court cited a pre-enforcement case, Thomas v. Anchorage Equal Rights Commission case, the court had required a showing of: 1) an injury in fact that was actual or imminent; 2) a causal connection between the conduct of the defendant and the injury to the plaintiff; and 3) it must be likely and not speculative that the claimant would obtain redress.
The government defendants in the Church of the Celestial Heart v. Garland case argued that the prospect of actual prosecution was unlikely, stating that there was no allegation of previous prosecutions for consuming ayahuasca, while the complaint alleged that “religious adherents have been consuming ayahuasca in the United States for the last fifty years.” (Order at 17). They argued that a single incident of past harm does not support standing for prospective relief, particularly an injunction to address threats of future harm. Id. The court held that the plaintiffs had sufficiently alleged injury, “both financially and spiritually, resulting from the loss of their sacrament and because of Defendants’ continued denial of Plaintiffs’ right to obtain, possess, and use it; and without their sacrament, Plaintiffs cannot practice their religion and Celestial Heart cannot perform essential services.” (Opinion at 17–18).
Sufficiency of Allegations Based on Past Enforcement
The court relied on a prior Ninth Circuit case, Oklevueha Native American Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 834 (9th Cir. 2012) (Oklevueha I), to hold that the seizure of ayahuasca by federal actors was actual enforcement action. This was a critical factor in favor of its conclusion that there was standing. (Opinion at 18, 20). It noted, however, that in Oklevueha I, the court had proceeded to perform an analysis of the pre-enforcement criteria.
The magistrate noted that prosecutorial discretion does not allow threatened prosecutions that create a chilling effect on constitutional rights. (Opinion at 11). When a plaintiff has alleged the intention to engage in conduct that is arguably constitutionally protected, and it is proscribed and subject to a credible threat of prosecution, the court held, one should not be required to await and undergo a criminal prosecution in order to seek relief. (Opinion at 14) (citing Oklevueha I, 676 F.3d 829, 835 (9th Cir. 2012).
The Church of the Celestial Heart v. Garland court discussed several other recent cases in support of its holding that the pleadings supported the plaintiffs’ standing and stated a claim upon which relief can be granted, but it held that Oklevueha I was the most pertinent and instructive case with respect to the standing issue. In Oklevueha I, the Ninth Circuit held that the Oklevueha Native American Church of Hawaii had standing to seek a legal remedy under the Religious Freedom Restoration Act when its ceremonial cannabis had been seized by federal authorities. In that case, the district court had considered principles favoring standing in a pre-enforcement context, including the likelihood of future prosecution. (Opinion at 17–18).
Holding that the actual enforcement action was sufficient of itself, the Ninth Circuit held that the district court’s focus on future prosecution was unnecessary, stating that claims are ripe due to the enforcement and seizure that already had taken place, and that a definite and concrete dispute about the lawfulness was present. (Opinion at 20–21) (citing Oklevueha I, 676 F.3d at 836–37). Because the church had been subject to enforcement of the Controlled Substances Act by the federal defendants, by seizing cannabis that was part of its sacramental practice, it had not been necessary for the Oklevueha Native American Church of Hawaii to show a danger of injury or a history of enforcement of the Controlled Substances Act. (Opinion at 21) (citing Oklevueha I, 676 F.3d at 836–37). Thus, a definite and concrete dispute about the lawfulness was before the court and the claims were ripe due to the seizure that already had occurred. (Opinion at 21). A nonspeculative case and controversy existed regarding the right to possess and consume ayahuasca for religious reasons.
Analysis Based on Pre-Enforcement Standards for Standing
The Church of the Celestial Heart court stated that in a pre-enforcement claim with no actual complaint, seizure, or other enforcement measure, the plaintiffs would have to allege a genuine threat of imminent persecution. (Opinion at 20) (citing Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1139 (9th Cir. 2000). The Church of the Celestial Heart court observed that in the Thomas case, because no enforcement action had occurred, the court had required allegations to show a genuine threat of prosecution and consideration of the three factors. (Church of the Celestial Heart opinion at 20) (citing Thomas v. Anchorage Equal Rights Commission, 220 F.3d at 1139).
Although it had found sufficient allegations to find standing based on actual enforcement action, it proceeded to examine the criteria for standing in the pre-enforcement context. The court observed that in the pre-enforcement context, for there to be an actual or imminent injury to support standing, there must be sufficient allegations to show a causal connection between the conduct and the injury, and that it must be likely and not speculative that the claimant will obtain redress. The court noted that the Oklevueha Native American Church of Hawaii court had found standing when there was enforcement activity, the seizure of marijuana intended for sacramental purposes, but nevertheless proceeded to consider the pre-enforcement criteria under the Thomas standards. Oklevueha I, 676 F.3d at 833–34, 836–37. To find a definite and concrete case or controversy that will afford standing to a party, the complaint had to identify a harm that advanced to a level to warrant judicial intervention. Oklevueha I, 676 F.3d at 835 (quotation omitted).
The district court in Church of the Celestial Heart v. Garland held that in pre-enforcement cases, the court would need to find allegations sufficient to show a genuine threat of imminent prosecution, with three elements for inquiry: 1) did the plaintiffs articulate a concrete plan to violate the law? 2) Did the government give a specific warning or threat to initiate proceedings? 3) was there a history of past prosecution or enforcement? (Opinion at 14) (citing Oklevueha I, 676 F.3d at 835 (quoting Thomas, 220 F.3d at 1139)).
The government defendants did not dispute the allegation that the plaintiffs had a specific plan to participate in the conduct that the Drug Enforcement Administration considered to be in violation of the Controlled Substances Ac. (Opinion at 15). In Oklevueha I, the court did not have allegations of the government warning or threatening to initiate proceedings, but alleged that the controlled substance was a sacrament that was seized, and the plaintiffs feared for their ability to cultivate, consume, or possess the marijuana for religious purposes. Oklevueha I, 676 F.3d at 833. The district court upheld the claim for return and compensation under the Religious Freedom Restoration Act, but denied the pre-enforcement claims for ripeness. The Ninth Circuit had reversed the dismissal of the institutional plaintiff claims and the claims for prospective relief. It held that the district court’s requirement of allegations to support threat of future prosecution was not appropriate because injurious enforcement had already occurred. It was not necessary to show danger of injury or a history of past prosecution or enforcement when the Controlled Substances Act already was enforced against the plaintiffs. Oklevueha I, 676 F.3d at 836–37. The district court in Church of the Celestial Heart held that the allegations supported a “nonspeculative” case and controversy affecting the plaintiffs’ right to possess and consume ayahuasca for religious reasons. (Opinion at 22).
The government defendants disputed that there was a sufficient allegation of a threat of imminent prosecution. The motion to dismiss disputed that the federal defendants had “communicated a specific warning or threat to initiate proceedings.” The magistrate judge held that the plaintiffs made sufficient allegation that there was a genuine threat of imminent prosecution, and that the prosecution and enforcement activities, the seizure, and the threat of general enforcement were “fairly traceable” to the named federal officials. (Opinion at 25, 30). The opinion noted that the Celestial Heart Church was a nonprofit corporation, and had been a legal entity, as an unincorporated nonprofit before the seizure in August 2021.
The Church of the Celestial Heart v. Garland court discussed two decisions in the case of plaintiffs in churches in Arizona who alleged federal government actors seized shipments of ayahuasca from Peru that were intended for religious ceremonies, Arizona Yage Assembly v. Garland, 595 F. Supp. 3d 869 (D. Ariz. 2022) (AYA v. Garland I); and Arizona Yage Assembly v. Garland, 2023 WL 3246927, (D. Ariz. May 4, 2023) (“AYA v. Garland II”). In AYA v. Garland I, the court had dismissed the plaintiffs’ claims under the Religious Freedom Restoration Act.
In AYA v. Garland I, the court held, “Although Federal Defendants have seized Plaintiffs’ ayahuasca in the past, the Court characterizes the injunction Plaintiffs seek as a pre-enforcement injunction because the Oklevueha I court did so in a factually analogous situation.” 595 F. Supp.3d 869, 882 n. 11, (citing Oklevueha I, 676 F.3d at 835). There was a delay pending the Supreme Court’s decision in Tanzin v. Tanvir, __ U.S. ___, 141 S.Ct. 486, 208 L.Ed.2d 295 (2020), which held that money damages are available under the Religious Freedom Restoration Act against federal officials sued in their individual capacities. AYA v. Garland I, 595 F. Supp. 3d at 876.
Following a series of amendments to the complaint and motions to dismiss, the court in AYA v. Garland II held that the fifth amended complaint’s allegations that the plaintiff Arizona Yage Assembly was holding meetings bi-monthly and planned to do so for the foreseeable future, were “sufficient, taken as true, to allege a concrete plan” to violate the Controlled Substances Act.” (AYA v. Garland II). The court in AYA v. Garland II also held that allegations against the Drug Enforcement Agency were sufficient to state a claim for relief because the Controlled Substances Act was enforced by different agencies of the federal government. The agencies’ actions were intertwined, the court held; the Drug Enforcement Agency would enforce the law by granting or denying permits to import controlled substances, without which the Customs and Border Patrol or Department of Homeland Security, or both, would seize packages and that the agency defendants could not avoid accountability for enforcing the law by claiming to enforce only one segment of it. AYA v. Garland II, 2023 WL 3246927, at *3.
The Church of the Celestial Heart v. Garland court held that the seizure was “fairly traceable” to the challenged actions of the defendants for purposed of the motion to dismiss. (Opinion at 25). It observed that the Controlled Substances Act operates through multiple agencies, and that it had been enforced against the plaintiffs even without a prosecution.
The court observed that the Celestial Heart plaintiffs alleged that ayahuasca is an essential sacrament for each of them, needed for their practice of their religion, and that there was a threat of coercion from the arrest of one of its leaders. (Opinion at 34). The church alleged financial and spiritual loss from confiscation and destruction of its sacramental ayahuasca, and that it placed a burden on the church, placing tension between following the tenets of the religion and the pressure from facing the prospect of civil and criminal penalties. (Opinion at 34). The church sought prospective relief that would benefit its members. The court found sufficient allegations to support organizational standing, noting that in Oklevueha I, the court upheld organizational standing based on the allegations that the members used marijuana as a regular, that it was the sole purpose of the organization, and that it was seeking relief to protect the members’ ability to observe an integral part of their religious practice.
Plaintiffs Stated Claims Upon Which Relief Could be Granted for Violations of the Religious Freedom Restoration Act, and They Were Not Required to Exhaustion of Administrative Remedies to Address the Alleged Violations
The court held that having alleged a sincere religious practice employing ayahuasca sacramentally which was substantially burdened by application of the Controlled Substances Act the plaintiffs sufficiently alleged a prima facie case of violation of their religious liberty protection under the Religious Freedom Restoration Act. (Opinion at 36). There was a substantial burden from having to choose between following the tenets of their faith and facing coercive consequences. (Opinion at 37).
The federal government also moved the court for a stay to require the plaintiffs to seek a religious exemption in an administrative proceeding with the Drug Enforcement Administration. (Opinion at 9). The Drug Enforcement Administration urged the court to require administrative factfinding as a prerequisite to court adjudication of these claims, and in the alternative requested the court to exercise its discretion to allow the agency to balance public safety and diversion concerns with the religious liberty interests. The defendants contended that the agency had the expertise to make findings and investigate the governmental interests.
The government argued that the agency should have the prerogative, in the first instance, to examine the religious freedom claims, perform the appropriate balancing of interests to decide whether public safety interests outweigh the burden on religious practices, prepare a record, and maintain an independent administrative system for churches seeking redress. It urged the court to decline review until after the plaintiffs had sought an exemption to give the Drug Enforcement Administration the opportunity in the first instance to evaluate their eligibility for a religious exemption from application of the Controlled Substances Act. (Opinion at 30–31).
After the decision in Gonzales v. O Centro Espirita Beneficiente Unaio do Vegetal, 546 U.S. 418 (2006), the Drug Enforcement Administration developed a separate religious exemption process. (Opinion at 12). Then it offered an on-line guidance first issued in 2009, and which was updated in 2020. It is titled, the Drug Enforcement Administration Diversion Control Division, Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act Pursuant to the Religious Freedom Restoration Act. The factors include the risk of harm, the adequacy of safeguards to address concerns about diversion.
The court observed that the Drug Enforcement Administration had been delegated authority under the Controlled Substances Act to register applicants to import, distribute, and dispense Schedule I controlled substances when consistent with the public interest. 21 U.S.C. § 823(b); 21 C.F.R.§ 1301.31 (giving the authority of the attorney general to the Drug Enforcement Administration). The federal government defendants argued that registration is required for each importation and to handle a controlled substance for religious purposes to assure safety. (Opinion at 12). The government sought very specific information regarding the acquisition, use, possession, and storage of ayahuasca by the Church of the Celestial Heart. It proposed to address each alleged religious practice.
The court held that the Religious Freedom Restoration Act provides that a person “burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. 42 U.S.C. §§ 2000bb-1(c). The claim or defense protects against federal government agencies from substantially burdening a person’s exercise of religion unless it shows that the burden is in furtherance of a compelling state interest and is the least restrictive means of furthering that compelling state interest. 42 U.S.C. §§ 2000bb-1(b). Opinion at 36). A cause of action would not be dismissed simply because the religious practices with ayahuasca were ongoing, when there were enforcement actions including arrest and seizure due to the actions of the federal defendants.
The defendants asserted that the complaint did not allege a claim upon which relief could be granted because it had an avenue to pursue through the Drug Enforcement Administration’s religious exemption process. They argued that the failure to apply for an exemption compromised their claims and that they should be required to allege that the administrative process burdened a sincere exercise of religion. The court noted that the plaintiffs were not challenging the exemption system, but alleged that they should not be required “to endure the DEA’s significantly more restrictive exemption process,” as well as the confiscation and prohibition of their conduct. (Opinion at 25). The court found that the plaintiffs were not required to address burdens of an administrative process when the allegations showed burdens on their religious practices including the government’s prohibition of ayahuasca as a sacrament. (Opinion at 41). to consider the risks of harm when considered with the organization’s proposed safeguards.
The court relied on several cases, including Oklevueha I — Oklevueha Native American Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 838 (9th Cir. 2012); and AYA v. Garland II — Arizona Yage Assembly v. Garland, 2023 WL 3246927, (D. Ariz. May 4, 2023), to support its rejection of the argument. In Oklevueha I, the court declined the invitation “to read an exhaustion requirement into RFRA where the statute contains no such condition, …and the Supreme Court has not imposed one.” The Oklevueha I court had noted that the Supreme Court had not required pursuing an exemption from the agency in the O Centro case. It also stressed that the Religious Freedom Restoration Act plainly contemplates that courts would recognize exceptions to the Controlled Substances Act.
The court noted that the AYA v. Garland II and other courts, including Church of the Eagle & the Condor v. Garland, №2:22-cv-1004-SRB, at 6 n. 4 (D. Ariz. June 9, 2022), had rejected similar arguments that plaintiffs had to seek and exemption under the Guidance. (Opinion at 31). The court distinguished the decision in Soul Quest where the plaintiffs pursued the Drug Enforcement directed the ayahuasca church plaintiffs to petition for a religious exemption from the Controlled Substances Act and they had done so, and their petition was denied.
The plaintiffs stressed that two courts had granted relief under the Religious Freedom Restoration Act. In addition to the Supreme Court’s 2006 decision in O Centro, in 2009, the United States District Court in Church of the Holy Light of the Queen v. Mukasey, 615 F. Supp. 2d 1210,
1219 (D. Or. 2009), vacated sub nom. Church of Holy Light of Queen v. Holder, 443 F. App’x
302 (9th Cir. 2011) (to limit scope of injunction).
The court stated that agency consideration was not necessary to generate a record and to reach a proper decision. (Opinion at 45). The court also relied on cases holding that congressional intent to require exhaustion of administrative remedies is necessary to require exhaustion of administrative remedies.
The court declined the defendants’ request for a stay to allow for the plaintiffs to engage with the administrative process. They argued that the court had discretion to stay proceedings for agency findings even where exhaustion of remedies was not required under the law, citing McCarthy v. Madigan, 503 U.S. 140, 144 (1992). (Opinion at 44). The court stated that it did not view the Drug Enforcement Administration Guidance document “as a significant administrative scheme in the overall context. (Opinion at 45). It relied on language in the Religious Freedom Restoration Act places decision making responsibility in the courts, as well as the decision in Oklevueha I, as particularly instructive. The court agreed with the argument of the plaintiffs that government agencies should not be allowed to regulate religion or other fundamental rights, or “chaos would inevitably ensue.” (Opinion at 46) (quoting opposition memorandum).
The court held that if it were to require the plaintiffs to proceed before the Drug Enforcement Administration’s administrative process as the government was urging, by pursuing an application for an exemption from the Controlled Substances Act, the church would lose the option to have preliminary relief. (Opinion at 47). It could be restricted in holding its ceremonies because parties seeking religious exemptions were precluded by law from using prohibited substances, like ayahuasca, until they obtain an exemption and proceed with registration.
The court held that the Drug Enforcement Administration exemption process may preclude claimants from that form of protection available in court under the Religious Freedom Restoration Act. (Opinion at 46–47) (citing DEA Guidance at 2: “Activity Prohibited Until Final Determination. No petitioner may engage in any activity prohibited under the Controlled Substances Act or its regulations unless the petition has been granted and the petitioner has applied for and received a DEA Certificate of Registration.”). The court also observed that the guidance allows the agency to suspend or revoke protection by suspension or revocation, “without detailed separate guidelines or specific protections except for aversion to general principles.” (Opinion at 47).
The Iowaska Church of Healing case
The Religious Freedom Restoration Act often is being applied or administered in the first instance by the Drug Enforcement Administration. In many cases, it has been positioned as being a prerequisite for exhaustion of administrative remedies with preclusive factfinding. However, there are no agency rules to guide its review and determinations, creating challenges for accountability and fair treatment of the communities seeking responsible and fruitful access to entheogens or plant medicines.
The role of the Drug Enforcement Administration in insinuating itself into controversies involving religious protection, when it has not adopted rules and has taken a prohibitionist approach, is a serious impediment to legitimate protection for religious use of psychedelics. The costs and burdens of litigation impose a harsh barrier to protections available through judicial review. Certain branches of Santo Damie and União do Vegetal have achieved legal protection, and there was a settlement that permitted the Church of the Holy Light of the Queen in Oregon, but there remains strenuous opposition from the Drug Enforcement Administration. Ecumenical psychedelic retreat centers are becoming more and more abundant in South America and around the world. Some are affiliated with indigenous traditions that are very different from the outlook and ideas that are familiar to Americans and comfortable for them. Very few of the many groups that meet in the United States affirmatively engage in litigation to establish the legality of their conduct.
In Iowaska Church of Healing v. United States, the church, a nonprofit religious corporation organized under the laws of Iowa, brought a federal lawsuit after the Internal Revenue Service denied its application for tax exempt status. The Iowaska Church filed a Form 1013 application for tax exemption on January 10, 2019, and applied for an exemption from the Controlled Substances Act that same year with the Drug Enforcement Administration.
The U.S. District Court for the District of Columbia in the Iowaska Church of Healing v. United States, case, issued a restrictive opinion. The Iowaska district court considered the claim that the denial of its tax-exempt status infringed its rights under the Religious Freedom Restoration Act, and dismissed the case based on a perceived lack of standing, holding that the absence of an exemption left it without the requisite legal status. Matt stated that the DEA promotes its claims of authority to decide religious exemption claims under RFRA, but that has shown itself to be an unresponsive agency without appropriate rules for making decisions about these important First Amendment rights. Matt stated that the DEA has no rules or formal process for considering such exemptions, and it sits on applications without taking any action. He argued that rules are required under federal law, and they are needed for guidance of the agency and for affected individuals and applicants.
The district court relied upon the DEA RFRA guidance as if it had the force and effect of law. In Iowaska Church of Healing v. United States, the church, a nonprofit religious corporation organized under the laws of Iowa, brought a federal lawsuit after the Internal Revenue Service denied its application for tax exempt status. The Iowaska Church filed a Form 1013 application for tax exemption on January 10, 2019, and applied for an exemption from the Controlled Substances Act that same year with the Drug Enforcement Administration.
The church had about twenty members and was led by designated healers. One of its tenets stated that ayahuasca was a sacrament that offered spiritual growth, although it had discontinued using ayahuasca while its application with the Drug Enforcement Administration was pending. There was a $ 333 charge per ceremony fee in 2019, and the church had a $ 60 membership fee. There was evidence that the services involved prayers, music, singing, reflections, and readings from the Ayahuasca Manifesto and The Universal Laws of Respect.
The ayahuasca church in the Iowaska case had waited two years for a Drug Enforcement Administration decision on its exemption from the Controlled Substances Act without a response. The Drug Enforcement Administration had not acted on the application, and the Internal Revenue Service had issued a proposed adverse determination letter finding the Iowaska Church to be disqualified under 26 U.S.C. § 501 ©(3). The parties filed cross-motions for summary judgment and the U.S. District Court for the District of Columbia.
The decision in Iowaska Church of Healing held that the absence of an exemption from the Controlled Substances Act that legalizes the primary or substantial purpose of the organization established a failure to meet the organizational test. The district court in Iowaska Church of Healing found that the injury, the burden on the religious practice, was not traceable to the denial by the Internal Revenue Service but to the inaction of the Drug Enforcement Administration. The court reasoned that a substantial part of the church’s activities were not activities done in furtherance of an exempt purpose because consuming ayahuasca was a substantial non-exempt purpose. On page 8, the court held: “Absent a CSA [Controlled Substances Act] exemption, plaintiff’s primary activities therefor amount to the illegal distribution and promotion of a controlled substance, a non-exempt purpose.”
The court stressed that courts strictly construe tax exemption claims and applications and that under the statute, organizations must be organized and operate for tax-exempt purposes, namely religious purposes, and that no earnings can be derived by an individual or shareholder, no attempts to influence legislation or participate in political campaigns, and its exemption-related activities must not violate public policy. The court also held that the church lacked standing because the injury was not traceable to the denial by the Internal Revenue Service but to the inaction of the Drug Enforcement Administration.
An amicus brief was filed in the Iowaska Church of Healing case by Matt Zorn, Rebecca Lee Whiting, and Allison Hoots, on behalf of by Chacruna Institute for Psychedelic Plant Medicines and the Sacred Plant Alliance, which challenged the necessity of invoking the Drug Enforcement Administration’s administrative process for deciding exemptions from the Controlled Substances Act, and the potential preclusive effect of that process in later court adjudications. It reveals convincingly that the procedurally and substantively complex process is inadequate under the Religious Freedom Restoration Act. The denial of tax-exempt status by the Internal Revenue Service due to the Drug Enforcement Administration’s failure to review its request for exemptions from the Controlled Substances Act for religious use of psychedelics clearly fails to recognize and protect religious conduct like a judicial proceeding would.
Even if there were authority for the Drug Enforcement Administration to assume responsibility for reviewing exemption claims under RFRA, it must follow rules to exercise this authority. There is a statute that gives the U.S. attorney general authority to come up with rules, which a court could apply to decisions under RFRA. Rulemaking requires notice and comments from the public and interested parties, and that addressing comments would provide visibility. The amicus brief points out that the Drug Enforcement Administration has, since 2008, posted guidance for Religious Freedom Restoration Act applications for exemption, purporting to have a formal role in making these exemption decisions. It has, however, resisted passage of actual rules for implementation. When a proposal for rules went to the Office of Management and Budget, the OMB identified a fiscal impact that apparently was substantial, and the DEA never followed through with rulemaking.
The Drug Enforcement Administration is likely to have a continuing role in reviewing Religious Freedom Restoration Act applications for Controlled Substances Act exemptions, even though it is reluctant and seems to resist taking on responsibility for deciding religious liberty matters. Nevertheless, the courts appear willing, if not anxious, to find ways to shift responsibility to the DEA in the first instance to decide religious liberty questions. Courts would need to present themselves at the correct forum as an alternative, and accept this responsibility and exert the power to make these decisions.
While religious communities are not an enforcement priority of the Drug Enforcement Administration, the courts and the Drug Enforcement Administration seem to desire traditions with recognizable congregations, traditions, leadership structures, and belief systems. This can be challenging for entheogenic churches to demonstrate, but it could be helpful to build traditions during this period of relatively little enforcement. The DEA may wish to avoid lawsuits. A high volume of lawsuits, attorneys can bring a sense of urgency and pressure the agency to create rules that are more amenable to allowing psychedelics in religious settings. The DEA is vulnerable to challenges when its decisions are made without appropriate rules for making such important decisions about fundamental First Amendment rights. Yet the DEA promotes its claims of authority under RFRA.
In the Iowaska Church of Healing opinion, the court distinguished the Supreme Court’s decision in Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006), because that case involved a religion that is a “long-standing Brazilian Christian Spiritist” religion, and the government in that case had conceded that applying the Controlled Substances Act substantially burdened a sincere exercise of religion. Therefore, the government had had to meet the burden to show that application of the CSA could not make an accommodation with a least restrictive means of advancing its compelling state interest. The court, on page 9, held that it cannot show a sincere religious exercise of religion without getting an exemption from the DEA. It characterized this as the “flaw” in the reasoning of the Iowaska Church of Healing in relying on the O Centro case. On page 10, the court stated that until it obtains a CSA exemption, its promotion and use of ayahuasca remained illegal.
In Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006), the Supreme Court upheld the right of practitioners in the branch of the União do Vegetal church in New Mexico to use ayahuasca as a sacrament under the free exercise of religion clause of the first amendment. The Court held that the “compelling state interest” balancing analysis is required for scrutiny of laws that burden religious liberty under the Religious Freedom Restoration Act. The Court held that, “Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.” Id., at 439. The state interest in regulation was not deemed to be sufficient to burden the right to religious experience due to practices that helped minimize the potential for harm in supportive settings.
Stepping Forward in the Current Legal Landscape
Legalization measures to allow natural plant and fungi psychedelics are becoming more common as government authorization of MDMA-assisted and psilocybin-assisted psychotherapy is becoming likely in the next two to four years, and plant medicine circles have proliferated and bona fide ayahuasca religions have received constitutional protection. While many advocates pursue a medical model for psychedelic experience, such as veteran programs and the and psychotherapy programs seeking approval by the FDA, the groundswell of decriminalization and de-prioritization of enforcement shows the likely expansion of access beyond the psychotherapeutic context.
Dr. William Richards, a clinical psychologist who was at the forefront of the original psychedelic research, wrote in his 2016 book, Sacred Knowledge, Psychedelics and Religious Experiences, that he believes that future historians will be surprised or incredulous that our society has had such fear of conscious exploration that people would be held subject to criminal sanctions for consuming natural products such as psychedelic mushrooms. Id. at 177.
Dr. Dennis McKenna, a plant pharmacologist and author, and a leading expert on psychedelics and consciousness, wrote a chapter in the textbook, The Handbook of Medical Hallucinogens, p. 41 (C. Grob, J. Grigsby, ed., 2021), titled “Plants for the People.” He reviewed the history of the original psychedelic era and the incongruous laws that resulted in criminalizing these substances. He proposed making natural substances legal internationally for religious use. “Codify into law the principle that plants (and fungi and other biologically active organisms) are not ‘drugs’ in their natural form, and thus should not be regulated. When psychoactive substances are extracted from their natural sources, purified, and concentrated, they are then ‘drugs’ and should be appropriately regulated as such.” He also advised that biomedicine would benefit society by integrating psychedelic healing and restructure therapeutic support protocols using shamanic learning. This could open a door to more compassionate medicine and help people develop resilience and feel greater gratitude and enthusiasm, willing to accept personal responsibility, and adopt healthy attitudes.
The Religious Freedom Restoration Act limits the power of the federal government, but it does not limit state law enforcement. The Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997) ruled that the Religious Freedom Restoration Act was unconstitutional as applied to states. While state constitutional protections are not required to apply the Sherbert v. Verner and Religious Freedom Restoration Act protections, they are free to do so, and even afford greater protection for the religious use of psychedelics than the United States Constitution. Municipalities and states can direct the law enforcement priorities of their respective jurisdictions, and, to some extent, local law enforcement officials may do so as well. Local district attorneys have wide discretion and may exercise the power to set priorities for prosecution. State laws, however, may offer much broader protection than federal law.
Provisions adopted in various states and cities that are sometimes described as decriminalization measures are “deprioritizing” measures. In 2019 Denver decriminalized the use of psilocybin mushrooms by citizen referendum. Oakland California’s city council passed an ordinance to direct law enforcement to stop investigating and prosecuting individuals for using or possessing drugs sourced from plants, cacti, and mushrooms that contain the mescaline or psilocybin. A 2020 resolution by Santa Cruz made investigation and arrest for “the adult possession, use or cultivation of psychoactive plants and fungi” a low-priority infraction by law enforcement.
In the District of Columbia, a 2020 measure made enforcement of laws prohibiting psilocybin, ayahuasca, and mescaline-containing plants the lowest law enforcement priority. Ann Arbor, Michigan deprioritized enforcement of local laws punishing use and possession of entheogenic plants and compounds in 2020. In 2021, Detroit’s Proposal E made enforcement of laws prohibiting all entheogenic plants the lowest priority of law enforcement. Somerville, Northampton, and Cambridge, Massachusetts adopted similar measures in 2021, following a grow, gather, and gift model, stating that deprioritizing enforcement of laws regarding possession and use of psychedelic mushrooms and entheogenic plants should be the lowest law enforcement priority, and discouraging use of city funds to punish such non-commercial use of these substances. In 2023, Portland, Maine deprioritized law enforcement of laws regulating psychedelic plants and fungi such as psilocybin, San Pedro, and plants containing DMT.
The Oregon psilocybin program, is regulated by the newly-created Oregon Psilocybin Services, a subdivision of the Oregon Health Authority Public Health Division’s Center for Health Protection. Oregon Psilocybin Services began awarding licenses in early 2023. The Oregon psilocybin program does not require a licensed psychotherapist, but facilitators must complete a state certification program. Adults can receive the services outside of a medical model, unlike the FDA-approval process for the new drug application by MAPS for MDMA, or the Compass Pathways psilocybin-assisted psychotherapy patented process proceeding through clinical trials.
Under the Colorado Natural Medicine Health Act, access to psilocybin-containing mushrooms will be regulated by a new Division of Natural Medicine, organized under the Department of Revenue. The Colorado Natural Medicine Advisory Board is responsible for recommending regulations for the healing centers for supported adult use of psilocybin. The amended law establishes a twelve-by-twelve-foot area allotted for individuals to be able to grow protected plants or fungi, and there are provisions that prevent counties from prohibiting the personal use provisions or restrict the amount of growing space. While advertising is prohibited, compensation for services to provide information and education for associated will apparently be permissible.
Spiritual use is not prohibited so long as facilitators make it clear that they are not certified practitioners under the Natural Medicine Health Act. The regulations will affect access and cost as well as the extent of oversight, accountability, and aspects of medicalization and opportunity for ceremonial uses. The panel later will decide how to implement adult use provisions and which other plant-based psychedelic substances will be added to the program. The first licenses for administering psilocybin are expected to be awarded in mid-2025. The Division will begin discussions about adding additional psychedelic medicines, including mescaline (not including peyote), ibogaine, and DMT beginning in 2026. When Colorado’s Natural Medicine Health Act completes forming regulatory measures and is in operation, it may be an effective model for other states.
A proposal for decriminalization of natural psychedelics, California Senate Bill 58, was vetoed by Governor Newsome, who proposed more research and study of the supported adult use model. Massachusetts has a proposed voter initiative, under review by the state’s secretary of state, which could require legislative action subject to procedural requirements. It is called The Natural Psychedelic Substances Act. It proposes to establish a new approach to natural psychedelic substances establishing “regulated access for adults 21 years of age and older” to natural psychedelic substances “that show therapeutic or spiritual potential to increase well-being and life satisfaction and improve mental health.” It has a separate provision proposing to remove criminal penalties for production and use of natural psychedelic substances by adults 21 years of age and older. The initiative would allow use and possession of set amounts of active psychedelics, one gram of DMT, 18 grams of mescaline other than from peyote, 30 grams of ibogaine, and one gram each of psilocybin, and psilocin.
Advocating Broader and More Inclusive Perspectives to Ceremonial Plant Medicine Practices
The American judicial system is inhibited by unfamiliarity with religious traditions using psychedelics. The United States’ initial experience with psychedelics like LSD, mescaline, and psilocybin, involved abuses and missteps, when people in very vulnerable states of consciousness had the experience in an inappropriate context and suffered adverse consequences, and because of the insights that led to challenges to mainstream society’s expectations of social conformity. North American and European experience faces the problem of an absence of accepted psychedelic spiritual traditions.
Natural medicines that provide psychedelic experiences are in plants and fungi that occur naturally. It is common to many Indigenous traditions in South America and elsewhere for a group of participants to partake of a natural psychedelic plant or mushroom, typically for healing or in hopes of improving hunting or one’s misfortune. Past civilizations, like the Greeks at Eleusis, employed a sacramental libation that would provide contact with the numinous and reveal secrets that sustained their faith in the eternal renewal under the spiritual direction of Demeter, goddess of the harvest.
Authoritarian structures eliminated psychedelic practices in ancient Greece and Europe, and throughout the colonial empires in the Americas and Africa. North American religious institutions have been at the forefront of efforts to suppress and eliminate the longstanding traditions in Central and South America. Traditions in other countries that go back centuries or longer have survived only by withstanding extreme persecution and resentment by established religious and governmental authority. They have preserved ancient wisdom of the power of natural medicines that mainstream American culture did not understand or properly respect. In the United States, American Indians established noble traditions with peyote providing a way for higher knowledge. The religions that gained legal protection in Brazil did not receive the government’s respect when they first started to meet.
Beneficial effects have been identified in research settings with psychotherapy, to improve mental health and for emotional healing purposes, as well as for ordinary people. The psychedelic experience can provide a sense of greater aliveness and motivation through restorative insights that bring about gratitude, love, forgiveness, and compassion. It creates the potential to bring about a clarity of awareness about one’s own experience and motivations, and exposing one to truths about one’s past actions and experiences that can enhance insight and motivation for transformation.
In an appropriate context, the psychedelic experience can lead to a clarity of awareness about one’s own experience and motivations, exposing one to truths about one’s past actions and experiences that can enhance gratitude and forgiveness. People will have an opportunity to shed layers of resistance and deepen understanding and compassion, for oneself and for others, and other opportunities for personal transformation due to a mysterious neuroplasticity process that can reveal unfamiliar types of awareness. It can motivate the inner work to transform in more engaging and positive ways. Careful, deliberate, and informed preparation and oversight can help mitigate risks and provide a safe container for an inward healing process that can afford people with a deepened sense of connection with nature, community, the ground of being, and contact with the numinous.
Opposition by mainstream religions and legal authorities, and the social stigma associated with drug culture and psychedelics, have prevented the formation of social groups and organizations that would have developed naturally to provide practices and social reinforcement for safer practices and risk reduction. Courts have played the predominant role in a prohibitionist approach that has resulted in ordinary people having no legal access to psychedelics.
As knowledge has grown with experience, people have learned more from Indigenous perspectives in South America, as well as the practices from clinical studies and international participation in plant medicine retreats. Americans are supporting greater access to natural medicines for healing of trauma and for spiritual exploration. Legal protections are likely to expand and incorporate celebratory and exploratory adult use of psychedelic medicines, as well as a broader category of spiritual exploration that would not depend on insincere presentation or cultural appropriation of another society’s traditions.
There has been pressure to limit their use to a medical context, which appears to be financially prohibitive for most people and restricts access to people presenting themselves as having a mental health pathology. Some of the other challenges to having a more universal, experience-based religion that incorporates psychedelic substances include improper or corrupt motivations by leaders, inadequate preparation or exploitation of vulnerable participants in a hyper-suggestible mental and emotional state, incompetency in administration of the sacraments or in addressing uncomfortable or hazardous reactions, factionalism, divisiveness, envy, and misunderstanding between leaders, an absence of reverence for the medicines, and disrespect of the viewpoints and experience of other participants.
As states and localities expand access for healthy adults, programs for adult use in non-clinical settings will continue and evolve. Risk mitigation practices with informed consent for voluntary participation with disclosures of risks, and accountability for best practices, will contribute to reaching the greatest potential for psychedelics. Individuals, organizations, churches, and medicine circles will continue to adopt sustainable harm reduction practices. Colorado’s program will be a fine example of the guidelines most beneficial to employ in providing a safe container. It is already contributing experience and understanding, with appreciation and respect for Indigenous psychedelic plant and fungi practices for healing and spiritual experiences.
Disenchantment with mainstream religious institutions can help reveal beneficial and more holistic theologies from other traditional frameworks, and open worldviews to incorporate new ideas and realizations drawn from individual and community experience. As Americans are moving away from organized religion or becoming more entrenched in religious institutions that are firmly opposed to ceremonial use of entheogens, a crosscurrent of influences is likely to inform a more universal spiritual message consistent with the experience of an unfolding psychedelic journey.
Psychedelic group and individual settings for healthy adults are likely to evolve and develop with myriad influences, reaching in differing directions and coalescing sometimes when their ways find common ground. The attendees who are drawn to such facilities are likely to include people from different faith traditions, and many nonreligious people who are seeking a spiritual experience. They may not have developed a clear theology or adopted set of practices to guide them along a spiritual path. They may be seeking healing from a deep trauma or grief, in need of spiritual healing but feeling lost and in need of direction.
The psychedelic journey is considered a nonspecific amplifier of awareness, and there are challenges and unpredictable potentials for transformation in a form of critical period after the experience. People will have an opportunity to shed layers of resistance and deepen understanding and compassion for oneself and for others, and other opportunities for personal transformation due to a mysterious neuroplasticity process that can reveal unfamiliar types of awareness.
The courts will likely encounter a developing faith evolving from experience with psychedelics that is the most inclusive and true to the visionary experience of the individual. Ideas from core shamanism, the paths of righteous conduct from Buddhism, Christianity, Islam, Hinduism, and Indigenous traditions are likely to evolve toward a more open and universal set of principles and guidelines. Traditions that may unfold from the experience would be expected to incorporate phenomenology, or actual experience from the psychedelic journeys, and animism, an appreciation of the aliveness and agency of animals, places, and spirit beings.
The Indigenous traditions in the Americas can provide an appropriate context and example of the psychedelic experience for people descended from other traditions, as can the culture and experience of Black Americans. Practitioners may incorporate traditional South American elements with elements from other traditions, not unlike the Brazilian ayahuasca churches and the Native American Church, which succeeded in earning legal protection for their practices, and the Church of the Awakening, which did not receive legal protection at a time of great suspicion of entheogenic churches. Environmental stewardship and trauma-informed understandings from psychotherapy and self-help traditions can be incorporated into orientation and integration sessions in group settings providing safe containers for celebratory and exploratory uses.
The courts need to develop sensitivity and willingness to protect religious access to sacramental plant medicine. Americans are recognizing an innate right to careful and reverent access to psychedelics, particularly in their natural forms. A full understanding of spiritual experience with the psychedelics cannot be limited to traditional expectations for established religions. Judicial protection for the free exercise of religious use of psychedelics will benefit society when it appreciates the phenomenon of an experience that tends to lead to the spiritual experience. The courts should not insist on specific sets of beliefs or a rigid or fundamentalist viewpoint particular to a distinct religious tradition. The religious protection under the laws and constitution should, in proper circumstances, extend to accommodate a spiritual group retreat setting with careful leadership that would include multiple spiritual frameworks and world views, including the visionary experiences of participants that align with moral precepts and principles of spiritual growth and self-discipline.
