Religious Use of Psychedelics

Ron McNutt (July 2022)

Religion has had a central role in creating expectations and attitudes about psychedelics, whether they are used, and how they should be used. European religions imposed on the New World set about to eradicate longstanding indigenous traditions using naturally-occurring plants and fungi for the life-changing psychedelic experiences they would evoke. Unlike the many indigenous cultures they encountered, where these psychedelics have been respected and utilized as part of the traditions for acculturation, socialization, and initiation into the beliefs and priorities of their societies, the western societies had not developed or had lost the traditions for careful incorporation of psychedelic experience. Western culture had a stressful encounter with psychedelic experiences and reacted in strong opposition with its legal system and institutions. It has struggled to develop religious attitudes and traditions that make appropriate space for these experiences, although efforts are underway to create practices and communities that are aligned with values of continuity, sustainability, spiritual growth, and healing for the betterment of society and its individual members.

Western society relies on laws and regulations, and the communities and institutions that make sacramental use of psychedelics are at an intersection with that tradition for regulation of behavior. Governments have been reacting based upon cultural fears and misunderstandings about psychedelics, and are now in the process of reckoning with rich traditions of dynamic religious groups making beneficial use of their sacred plant medicines, while science, propelled by private philanthropy by wealthy benefactors and energetic advocates, are making celebrated discoveries about the effects of psychedelics and their potential to produce healthy and beneficial benefits for people when used carefully and with adequate preparation.

In assessing what level of protection to extend to religious use of psychedelics, society applies an evolving understanding of the meaning and place of religion. Religion is a set of beliefs and practices observed by a community that sheds light on perspectives about consequences for actions such as rewards and punishments, understandings about ways of appropriate interaction with the world, the outlook toward the world and others, and understanding the meaning of death. Societies that have employed ceremonial use of psychedelics as part of their cultural traditions have guarded these practices with ceremony and restrictions that reinforce the potential for transformation and minimize the dangers posed by these powerful substances. Because the breakthroughs that are associated with mystical and meaningful experiences often come in association with terrifying and disrupting thoughts and emotions, preparation and careful guidance have long been maintained as essential to these experiences.

The ritual pilgrimages of the ancient Greeks in Eleusis, which took place from 1600 B.C. to 392 C.E., were part of an annual festival led by or hierophants or priests that celebrated the myth of Demeter and Persephone. The culmination of the Mystery was “an overwhelming vision of spiritual presences demonstrating the relationship of the living and the dead.” The libation that was central to the visionary experience, the Kykeon, was guarded in secrecy, and the rituals were restricted to the once in a lifetime ceremony available as part of a pilgrimage restricted to individuals who had not committed a murder. There was absolute prohibition on revealing or profaning the sacrament, which research by Albert Hofmann, Carl Ruck, and R. Gordon Wasson have determined to be a substance containing lysergic acid amides derived from ergot.

In the New World, psychedelics have been at the deep center of community spiritual understandings since before the Europeans arrived. The major psychedelics, psilocybin, peyote, ayahuasca, San Pedro, ololiuqui, and yopo, were held in the highest esteem by the native peoples, used for healing, divination, and cultural incorporation in rites of passage. Columbus and his legions encountered widespread use of a psychedelic snuff, cohoba, used throughout the Caribbean, and which was in use in Central America, and continues to be in use in South America.

The colonial powers persecuted the use of plant hallucinogens in the New World, where the Spanish encountered many traditions and cultures that used psychedelic plants. The Holy Inquisition of Mexico issued a proclamation in 1616 ordering the persecution and excommunication of those who would be under the influence of, “herbs and roots with which they lose and confound their senses, and the illusions and fantastic representations they have, judge and proclaim afterwards as revelation, or true notice of things to come…” Indians and Spanish would face flogging or execution for using herbs and roots to “lose and confound their senses,” claim to receive revelations, or receive knowledge of the future.

Indians and Spanish would face flogging or execution for using herbs and roots to “lose and confound their senses,” claim to receive revelations, or receive knowledge of the future. The severe repression of the Inquisition led to the traditions of use of plant hallucinogens becoming obscured in secrecy to outsiders. So complete was the repression he use of psilocybin mushrooms and the DMT-containing snuff now known as yopo were forgotten completely by European culture until they were rediscovered. Ethnobotanists including W. E. Safford who first identified the psychedelic snuff, now called yopo, Anadenanthera peregrina in 1916. The American public learned of the revelation of the sacred mushroom ceremony when Gordon Wasson and photographer Allan Richardson revealed a June 1955 velada or sacred mushroom ceremony led by Maria Sabina in a Life magazine article in 1957. The longstanding stigma associated with these plants and fungi has persisted to the present time, and has manifested in restrictive laws and biases that assume that “authentic” religious traditions do not employ them for spiritual purposes.

Psychedelics alter perception of sensory information — our thoughts, our emotions, and our interpretations of memories and sensations. They can facilitate an emotional release and a new level of acceptance, a rebirth experience of spiritual awakening. It can come in the form of a near-death experience that yields to a non-dual experience of unity and oneness, and a transpersonal identity with nature and the universe. The early phase can be chaotic and persist in confusion, especially about one’s self-image and relation to the reality of every day. This is usually followed by an integration phase, a synthesis of the threads of thoughts coalescing, and an uplifting afterglow. This brings an opportunity for transformation, greater aliveness, and deeper soul connection. An awakening with psychedelics can break barriers of self-imposed limitations and facilitate a transformation of how we see ourselves as part of creation, as an actor in the social systems in which we participate. It can present an invitation, an opening, to new traditions, and a loosening of the ways we identify with our cultural heritage and upbringing.

Some cases considering protection and regulation of religious activity:

State laws were enacted, along with federal laws to limit the widespread use of opiates and cocaine products that took place after the Civil War, and to address the deleterious effects of alcohol. The Harrison Narcotics Act in 1914 was a federal law with enforcement of taxation and criminal penalties administered by the Department of the Treasury to regulate opiates and cocaine, which had become a public concern by that time. Some of the support for the legislation was from appeals directed to racial bias, which were unfounded. The law allowed doctors to prescribe the drugs but they were forbidden to prescribe them to known addicts.

Formal regulation of medicine began in the United States with the Pure Food & Drug Act of 1906, which prohibited adulteration and mislabeling of foods and drugs. Many patent medicines had been falsely labeled and had had undisclosed ingredients. The Eighteenth Amendment was adopted in 1919, banning the sale, transport, manufacture or consumption of alcohol, and was enforced by the Volstead Act. Prior to that time, several states had adopted laws prohibiting use and distribution of alcohol.

The Federal Bureau of Narcotics was established in 1930, and in 1937, the Marihuana Tax Act was enacted. Before that time, there was not much concern about marijuana use before 1920, perhaps because it was used by classes of people that did not attract the attention of the institutions, government, media, and public. In 1969, the Marihuana Tax Act was declared unconstitutional by the U.S. Supreme Court when it overturned a portion of the conviction of Timothy Leary.

The First Amendment has a provision that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Fourteenth Amendment prohibits state action that impinges on constitutional rights, such as the First Amendment’s protection of the free exercise of religion. It was given greater vitality to protect against activities of state and local governments until the era of the Warren Court in the 1960s. The Free Exercise of Religion provision of the United States Constitution, and comparable provisions of the various state constitutions, protect religious ceremonies, and they play a role in defending against prosecutions and in impact litigation to establish the scope of protection for specific religious activities.

From the time of the 1878 decision in Reynolds v. United States, 98 U.S. 145, 164 (1878), the Supreme Court rejected the claim that religious belief can excuse practices, such as polygamy, that are contrary to generally applicable legislation or appear to defy common sense. The Court cited a speech by Thomas Jefferson indicating his belief that legislation can regulate religious actions, but not beliefs. Id., at 164.

In Cantwell v. Connecticut, 310 U.S. 296 (1940), the Court overturned a conviction of a Jehovah’s Witness for solicitation for religious purposes, holding that general legislation could not forbid a person’s right to preach. The Court held that “the power to regulate must not be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.” Id., at 304. The Court that state action could not “unduly infringe” on religious activity, and would need to have a reasonable basis for regulation, such as a clear and present danger of a riot, disorder, interference with traffic, or other immediate threat to public safety, peace, or order. Id., at 308.

The Supreme Court, in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1942), held that mandatory flag salutes were unconstitutional as applied to children whose religious beliefs forbade saluting to the flag as a “graven image,” in contravention of the Ten Commandments. The Court held that a regulation impinging on a fundamental right needed to be justified by more than mere rational basis, such as ordinary social and economic legislation. Free exercise guarantees, the Court held, were “susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. Id., at 639. The Court stressed that there was no interference with other individuals’ rights or a showing of a clear and present danger to justify the regulation. The Court upheld a conviction in a separate case involving a parent whose child violated a statute forbidding children from selling literature in public places. Prince v. Massachusetts, 321 U.S. 158 (1944).

In evaluating whether a statute or ordinance poses an impermissible burden on religious freedom, the Court in United States v. Ballard, 322 U.S. 78, (1944), held that a court is not free to evaluate or consider the authenticity of religious beliefs, but only whether the individual sincerely holds the beliefs. The Court stressed that the framers of the Constitution intended the Constitution to embrace the widest possible toleration of conflicting views. Id., at 87. The Court’s analysis of constitutional protection will consider the extent of the burden imposed upon religious beliefs. In Braunfeld v. Brown, 366 U.S. 599 (1961), for example, the Court sustained legislation requiring businesses to remain closed on Sundays, despite the challenge of Orthodox Jewish business owners, because it found the restrictions posed an indirect economic burden on their religious practices. Id., at 601. The Court balanced the state interest in providing a uniform day of rest against the burden that it deemed to be incidental. It concluded that the law would be upheld because it made the practices more expensive to observe, but did not require the elimination of their Sabbath observance. Id., at 605.

In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Supreme Court developed a balancing test for constitutional protection, weighing a compelling state interest against the extent of the burden it placed on religious activity. There, the Court held that South Carolina’s actions in denying unemployment compensation benefits to a Seventh Day Adventist who had refused to work on Saturdays was an unconstitutional burden on her freedom to exercise her religion. The state had determined that she had refused to accept available work “without good cause.” Id. at 400–01. The court held that legislation had conditioned her receipt of benefits on a violation of a principle of her religion, id. at 406, and that actions by the government that burden religion must be justified by serving a compelling state interest. Id. at 403. The Court rejected the state’s claim that it had a sufficiently compelling state interest in guarding against fraudulent claims of freedom to avoid Saturday work. Id. at 407. The Court held: “It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, ‘[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.’” Id. at 406 (quoting Thomas v. Collins, 323 516, 530 (1945)). The Court stressed that cases that sustained statutes despite a burden placed on religion have involved activities that “invariably posed some substantial threat to public safety, peace, or order.” Id. at 403 (citing Reynolds and Prince).

The Court in Sherbert v. Verner held that the state did not satisfy its obligation to present evidence of a compelling interest in regulation by expressing “speculative fears of fraudulent religious claims.” Id. at 407. Because of this failing, the Court did not proceed to inquiring whether the state could achieve its goals by less restrictive alternative means. Id. The Court held that if it had found the state had a compelling state interest, it would have required the state to show that “no alternative forms of regulation would combat the abuse without infringing First Amendment Rights.” Id. at 407. The Court observed that the state could continue be pursue the interest in denying unmeritorious claims after a grant of the religious exemption in that case. Id. at 407.

The Supreme Court in Wisconsin v. Yoder, 406 U.S. 205 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), applied the Sherbert v. Verner balancing interest test to hold that members of the Amish faith could not be forced by legislation requiring compulsory public or private education through age sixteen. Members of the community had been convicted under a state law for home schooling their children in violation of compulsory education attendance laws. The parents testified that they believed that salvation required living in a church community apart from worldly influences and competitiveness, and that high school attendance presented a serious barrier to the need for socialization into the religious community, the values of an agrarian community, that valued manual work and rejected modern technology. Id., at 211–12.

The Yoder Court rejected the argument that conduct that is based on religious belief is outside the protection of the Free Exercise Clause. Id., at 219. The Court stated that conduct it subject to regulation, although certain areas of protected conduct are beyond state regulation. Id., at 220. The protected tradition of the Amish parties was based on “deep religious conviction” shared by an organized religious group, and was “intimately related” to the group’s lifestyle. Id. at 216. The Amish had an identifiable religious sect that was three hundred years old, and which had a record of good citizenship. Id. at 235. It stressed that an idiosyncratic way of life that does not interfere with other rights or interests could not be condemned merely because it is different. Id. at 224.

Because the statute placed a burden on religious rights, and not mere secular or philosophical preferences or beliefs, it had to have more than a “reasonable relation” to a state interest to be sustained as a constitutional practice. Id. at 233. The Court stated: “The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. Id., at 215.

The Yoder Court considered favorably the traditional nature of the religious beliefs and practices in its consideration. Yoder, 406 U.S. at 235–36. It weighed heavily the long history of the religion and evidence of its legitimate faith and the sincerely-held beliefs in favor of the parents, while finding that home schooling children did not cause others any direct harm. The Court concluded that uniform application of the state law was not essential to maintaining public order. Id. The Court held that the Amish community was a “highly successful unit within society,” and that the children were well prepared for their lifestyle. Id., at 222–23. They satisfied all the interests the state had advanced in support of its legislation. Id., at 235. The state had failed to present a compelling interest to justify the burden on their religion posed by it.

In Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981), the claimant, who worked in a steel fabrication facility, was a Jehovah’s Witness who declined a position for religious reasons and he was denied unemployment compensation benefits. Although it was not a central tenet to his faith tradition, when he was assigned to a position to fabricate military equipment, turrets for armored tanks, he declined because his religious beliefs prevented him from producing war materials, and there were no other positions in the company that did not involve production of weapons. The Indiana Supreme Court had affirmed the denial of his claim by the administrative government, and overturned an appellate decision that was favorable to the employee. The Indiana Supreme Court held that his objection was more a “personal philosophical choice” than a religious belief, and he did not show good cause to refuse work as required to receive unemployment benefits. See, id. at 713.

The Thomas v. Review Board Court recognized that determining whether a religious belief is motivating conduct is a delicate question. Id. at 714. The claimant believed that even though another Jehovah’s witness at the factory disagreed about whether their faith prohibited fabrication of military equipment, and the claimant expressed his position in a general way that it was too close to the process of manufacturing military equipment, he had a genuine and sincere religious motivation. Religious beliefs need not be acceptable, logical, consistent, or comprehensible to others, the Court held, in order to be entitled to First Amendment protection. Id. at 714. The Court held, “Courts should not undertake to dissect religious beliefs because the believer admits that he is ‘struggling’ with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.” Id. at 715. The Court noted that there was a fairly typical faith disagreement between the claimant and his coworker of the same faith about religious objections to the work assignment, and held that, “the guarantee of free exercise is not limited to beliefs which are shared by all members of the religious sect.” Id. at 715–16.

The Court found that the denial of state unemployment compensation benefits imposed a burden on religious choices, and that even though it was an indirect burden, it was a substantial infringement on the free exercise of religion. Id. at 717–18. It would only be justifiable if the state could demonstrate that it was the least restrictive alternative to achieving some compelling state interest. Id. at 718. The state identified an interest in avoiding widespread unemployment by people who quit their jobs for personal reasons, and another interest in avoiding having employers delving into the religious beliefs of job applicants. Id. at 718–19. Neither argument was deemed to be sufficiently compelling to justify the burden on his religious liberty. There were not likely to be many religious claims of the sort under review, the Court held, and it was skeptical that many employers would begin inquiring into the religious beliefs of applicants for jobs. Id. at 720. sources to determining whether

Legal Protection for the Native American Church of North America:

Peyote has been used as a sacramental medicine by indigenous people for centuries in Mexico and the southernmost United States. Articles in the Journal of Ethnopharmacology in 2005 and in The Lancet in 2002 revealed that a team of scientists proved that Native Americans used peyote as long as 5700 years ago. They did a chemical analysis of two dried peyote buttons in the collection of the Witte Museum in San Antonio thought to be from the Shumla Cave number five on the Rio Grande. Using radiocarbon dating and alkaloid analysis, their age was identified as being between 3780 to 3660 B.C. The analysis found alkaloids of mescaline. Some samples from an archeological site in Coahuila, Mexico showed peyote with radiocarbon testing dated to 810 to 1070 C.E., about 1000 years old. The Wixarica people, or Huichols of Mexico, practice the oldest current tradition of religious usage of peyote, preceding the Spanish conquest.

Peyote has been embraced as a spiritual medicine that brought healing and salvation to American Indians beginning in the late 1800s and is at the center of The Native American Church of North America. The ceremonies are specially called, usually on a Saturday from sunset to sunrise in a tepee or hogan. The ceremony can be called by a sponsor for an important occasion like a birth or an anniversary, or for holidays, but usually for healing. Ceremonies vary between tribes, but there is drumming with a water drum, a fire chief who brings water at midnight, and people offer songs and prayers of devotion and supplication seeking blessings from God. After taking peyote those assembled are led to the peyote road where visions pass between God and the participants. and having sustaining visions and love that draws the community together. People in the circle take turns offering four songs under the guidance of the roadman, a guide to encourage their minds to see the spirit and lead to sustaining visions and love that draws the community together.

Quanah Parker, the last chief of the Comanche, and a principal founder of the Native American Church, became a road chief for peyote, bringing it to many tribes in the 1880s and later. He regarded peyote as a sacrament to be taken with water. He composed songs for singing in the ceremonies. The Kiowa-Comanche ceremony is the prototype for peyote ceremonies of the plains Indians. Peyote use spread from the north of Mexico to Texas and the plains by the Kiowa and Comanche tribes after they visited Mexican tribes, the Carrizo, Tonkawa, Lipan, and Mescalero. They became the primary leaders of the spread of peyote through the plains along with the Caddo. State laws were enacted in many states in opposition to peyote rituals, many such laws were passed in the 1920s. In 1908, Quanah Parker testified before the Oklahoma legislature, a year after two Indians were prosecuted under an 1899 law against peyote, and the law was repealed. Chief Parker did not adopt Christianity and he was respected as a leader. He is quoted as saying, “We do not go into ceremony to talk about God. We go into ceremony to talk with God.”

In 1922, there were about 13,300 ceremonial peyote users. Members will seek to eat as many as 25 to 30 of so, maybe 20 buttons if they are green, although some members state they have eaten 50 or more peyote buttons in a ceremony. The medicine was inexpensive and $ 2.50 could buy 1000 peyote buttons in Laredo and Nuevo Laredo, Mexico at that time. An anthropologist from the Smithsonian institution, James Mooney, traveled to Indian Territory, present day Oklahoma, in 1891. He was impressed with the tradition, which he praised in his writings, and he participated in its ceremonies. In 1918, he encouraged the leaders, called road men or road chiefs, to assemble and incorporate and write a charter. They told legends about peyote discovery by a woman who was in labor, lost in the desert, and hungry, and a voice told her to eat it, and she was relieved and gave birth. John Wilson, who was part Caddo, was initiated into the peyote religion in the 1880s and he became a roadman. He introduced many Indians to the ceremony. He added elements to the moon-shaped altar and emphasized Christian aspects to the ceremony. Most tribes retained the traditional small moon altar of the Kiowa Comanche tradition.

In 1993, when a leader of the Native American Church, Reuben Snake, died, there were an estimated 250,000 members. He had led a coalition of Indian groups that succeeded in advocating for national protection of the religion. Presently, peyote has become scarce, and groups such as the Native American Conservation Initiative are organized to establish habitat and protect the sacrament’s availability. 21 C.F.R section 166.3 ©(3) states that listing peyote as a prohibited substance under the Controlled Substances Act of 1970 does not apply to bona fide religious ceremonies of the Native American Church.

In State v. Big Sheep, 75 Mont. 219, 243 P. 1067 (1926), the court denied protection from the peyote laws of Montana, holding that the law had a secular purpose and that there was not any exemption for the religious use of peyote. In 1947, the prohibition was overturned by statute, and the Native American Church was chartered in Montana.

In Flagstaff, Arizona, a member of the Navaho branch of the Native American Church, Mary Attakai, was prosecuted for peyote possession. On July 26, 1960, the Superior Court of Maricopa County granted an exemption and found her prosecution unconstitutional under the fourteenth amendment. №4098, cited in People v. Crawford, 69 Misc. 2d 500, 328 N.Y.S.2d 747 (dist. Ct. 1972). The court heard testimony from anthropologists and psychologists, Omer C. Stewart, Dr. B.E. Gorton, and Dr. P.H. Hoch. The trial court noted the solemn ritual and the value of the sacrament for reinforcing ethical values, including family responsibilities, and imparting uplifting experiences. In recognizing her right to use peyote in worship, the court noted that there were 225,000 members of the Native American Church, that peyote is not habit forming, and that its use is essential to practice of the religion.

In People v. Woody, 61 Cal. 2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964), the California Supreme Court reversed the convictions under state law of members of the Native American Church for possession of peyote. The court noted that the church had articles of incorporation that included: “That we further pledge ourselves to work for unity with the sacramental use of peyote and its religious use.” In finding an undue burden was placed upon their freedom to exercise their religion, the court stressed that the adherents were sincere and that the peyote was central to the religion. Peyote was the “sine qua non” of their faith and the “sole means by which the defendants are able to experience their religion.” Id., 61 Cal.2d at 725, 394 P.2d. at 820, 40 Cal. Rptr. at 76. The court in striking down the application of the law, stated that its enforcement by barring the use of peyote would “remove the theological heart” of the religion. Id., 394 P.2d. at 818. The court emphasized the sincerity of the participants and noted that the Indians would pray to peyote. The California Supreme Court noted that the use of peyote for the members “incorporates the essence of the religious experience,” and that the liberty interest weighed heavily in favor of protection, while there was only a slight danger to law enforcement interests. Id., 394 P.2d. at 821.

A companion case to the Woody decision, In re Grady, 61 Cal. 2d 887, 394 P.2d 728, 39 Cal. Rptr. 912 (1964), vacated the conviction of a non-Indian person for possession of peyote, and remanded the case for a determination whether he had an honest and good faith belief that peyote gave him direct contact with God. The court stated that People v. Woody had determined that the state could not prohibit the use of peyote in connection with a bona fide practice of a religious belief.

In State v. Bullard, 267 N.C. 599, 148 S.E.2d 565 (1966), the Supreme Court of North Carolina upheld convictions of a member of the Neo-American Church for possession of peyote and Marijuana. The court rejected testimony that these substances were deemed to be essential to their religious meetings, that their services included singing, prayers, and whistling, and that the adherents regarded the peyote and marijuana as sacraments that incarnated the Spirit of God. The court expressed doubts about the validity of the religious claims and suspected them to be a ploy to avoid prosecution The court held that even if the petitioner’s claims were sincere, the First Amendment did not authorize commission of acts that threatened public safety, morals, peace, and order. The court’s inquiry was highly critical of the claims, stating that the experience was a hallucinatory set of symptoms similar to schizophrenia. It stated that arguments for protection of such practices, “in the guise of religion,” was a “position which cannot not be sustained in law nor in morals.”

In State v. Whittingham, 19 Ariz. App. 27, 504 P.2d 950 (Ariz. App.1973); Whitehorn v. State, 561 P.2d 539 (Okla. Crim. App.1977), the courts held laws forbidding the use of psychedelics impermissibly infringed on the rights of members of the Native American Church to use of peyote during religious ceremonies.

Scientific understanding of psychedelics and the first psychedelic era in the United States:

Peyote was widely known to be used by Mexican Indians, and contains a psychedelic alkaloid, mescaline, which was discovered by Arthur Heffter, who isolated it in 1897. It was synthesized in 1919. It was not until the discovery of LSD, a synthetic derivative of the fungus ergot, in 1943, that the European and North American world started becoming familiar with psychedelics. This encounter was substantially increased after the revelation of traditional use of psilocybin mushrooms in 1957. The many varieties of psilocybin-containing mushrooms were part of a larger religion that was suppressed and persecuted by the colonial powers, and were rediscovered in a remote part of the western Sierra Madre mountains in the mid-1950s. They were used for divination by devout Mexican Indians who incorporated Christian practices into their nighttime vigils.

Dr. Humphry Osmond was a psychiatrist who was a pioneer and an innovator in the field of psychedelic-assisted psychotherapy. He invented the term psychedelic, meaning mind-manifesting from the Latin words for “mind” and “clear” or “visible.” In 1953, Dr. Osmond conducted successful research with psychedelics, first with mescaline and then with LSD. Dr. Osmond employed psychedelic therapy in in the 1950s and 1960. This was the technique employed by Al Hubbard and which Dr. Osmond popularized, using an overwhelming experience using high dosage of LSD on one or two occasions, supervised but without associated therapy, to stimulate transcendence or ego dissolution using music and sound to detach one’s senses. His research revealed the benefits of psychedelics for existential anxiety at end-of-life care and for alcohol use disorder.

The late 1950s and early 1960s were a time of active psychedelic therapy and experimentations. Aldous Huxley, his friend Al Hubbard, and psychiatrists Sidney Cohen, Oscar Janigar, A. Wesley Mitford, and Arthur Chandler, who formed the Beverly Hills Psychiatric Institute with radiologist Mortimer Hartman (who was the LSD therapist of actor Cary Grant and many others), were active in the field of psychedelic research or therapy. By 1959, Hubbard stated that he had led 1700 LSD sessions and he had contributed to an LSD therapy manual that came into use that year. Hubbard worked together with Myron Stolaroff, Willis Harman, Charles and Ethel Savage, and James Fadiman, in providing sessions at The International Foundation for Advanced Study in Menlo Park. Hubbard worked together with Myron Stolaroff, Willis Harman, Charles and Ethel Savage, and James Fadiman, in providing sessions at The International Foundation for Advanced Study in Menlo Park. Aldous Huxley became his friend and colleague. He had a full mystical experience on LSD with psychedelic assisted therapy in 1960. His influential books and articles and popular lectures about psychedelics and related subjects, like eastern mysticism, clairvoyance, and transpersonal experience, opened America up to serious consideration that psychedelics can provide meaningful and transformative experiences.

The Josiah Macy Foundation was a sponsor of conferences in 1955 and 1959 that showcased work on psychedelics. Years later, John Marks revealed in his 1979 book, The Search for the Manchurian Candidate, that the CIA was using organizations like the Macy Foundation and others in the scientific community to do unethical research using psychedelics in mind control. In 1959, the term psychedelic became the term in use, although hallucinogen is the medical term in common usage.

The Good Friday experiment on April 20, 1962, organized by Walter Pahnke, a Ph.D. student at Harvard University, was the most significant studies of the Harvard Psilocybin Project. It showed that synthetic psilocybin can facilitate experiences of mysticism in people disposed toward spirituality when used in a conducive setting. There was wide access to psilocybin and LSD for use in research and in therapy in the early 1960s. There had been over one thousand publications presenting encouraging results, and by the late 1960s, about 40,000 people had participated in LSD therapy in well-funded studies with very capable staff. It was the subject of six international conferences.

Religion scholar Huston Smith, along with Ralph Metzner and other members of the Harvard Psilocybin Project, began publication of The Psychedelic Review, which was in publication for ten years. Prof. Smith came to agree with Aldous Huxley that psychedelic experiences closely corresponded with spontaneous mystical experiences in the world religions, like near-death or sudden feelings of belonging. He cited studies showing one-quarter to one-third of ordinary population and three-quarters of people with a religious inclination would have mystical experiences with psychedelic-assisted therapy.

Psychiatrist Stanislav Grof had a career in Czechoslovakia and, beginning in 1967, in the United States that included supervising over 3000 sessions with patients using psychedelics. He used both psychedelic therapy, which involved one or two heavy-dose intense sessions, and psycholytic therapy, which involved a series of moderate dose administrations. Dr. Grof found that people’s initial experiences with psychedelic-assisted therapy were extremely unpredictable, with personal experiences on a sensory, emotional level and processing memories. In later stages, however, something universal about the human experience confronting death would be revealed. Virtually all the subjects in the intense form of psychedelic therapy experienced death and rebirth in some form. People would see beyond this lifetime to an understanding about the soul journey that would be liberating and healing. Becoming convinced that death is followed by rebirth, and having other experiences in the transpersonal realm, brought an enormous potential to heal human anxiety, spur inner transformation, relieve people of a sense of isolation, and connect them with the collective psyche of humanity.

At the symposium, LSD: Problem Child and Wonder Drug, held in Basel, Switzerland, from January 13 to 15, 2006, to celebrate Albert Hofmann’s discovery of LSD on his 100th birthday, Dr. Hofmann stated of LSD: “It is a tool to turn us into what it is in us to be. It should be integrated in a reasonable way by society to prevent its misuse.” Dr. Hofmann said that psychedelics should be approached with respect and reverence, that they may provide a key to the subconscious, but that spiritual strength is needed to handle and integrate the powerful experiences.

Legal reaction to the use of psychedelics and claims that they generated religious and mystical experiences:

Western culture had a challenging reaction to the way the hallucinogens came to assume a central role in a movement that began to question many of the basic values and precepts of mainstream Euro-American culture. With an absence of established traditions and practices employing caution and promotion of careful direction, casual use of psychedelics led to adverse reactions, controversial behavior and tragic events as well as misunderstandings and fearful reactions to the transformation of young people who became skeptical of society’s emphasis on competition and traditional concepts of success.

California and the federal government pursued charges against Timothy Leary for possession of marijuana and he defended against the charges based upon religious belief, citing a conversion to a sect of Hinduism after a religious experience on psilocybin. In Leary v. United States, 383 F.2d 851 (5th Cir. 1967), reversed on other grounds, 395 U.S. 6 (1969, the Fifth Circuit Court of Appeals rejected his arguments, finding that the use of marijuana was not universal to all Hindus, and that the state interest in protecting the public from the dangers of drugs predominated over his beliefs. A challenge to the Marihuana Tax Act for violation of the privilege against self-incrimination was upheld by the Supreme Court. He was convicted of marijuana possession. He escaped from prison and lived as a fugitive and in exile before serving three years in prison from 1973 to 1976.

In United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968), the U.S. District Court for the District of Columbia denied motions to dismiss indictments for possession and transfer of marijuana and peyote and sale of LSD by a member of the Neo-American Church. The defendant offered evidence that some individuals using LSD and marijuana under controlled conditions had mystical experiences, as did Mexican Indians who used psychedelic pants and fungi as part of their religious traditions. The defendant also showed results from the Harvard Psilocybin Project that 25 to 90 percent of partakers of psilocybin had religious experiences, and were especially likely to have religious experiences if they were religiously oriented. Id. at 444. The court examined whether the laws against the use and possession of these substances placed a burden on religion, and observed that it would not permit its own moral standards to “determine the religious implications” of the beliefs of the member of the religion, but held that it must determine whether the practices were a guise for “antisocial behavior.” Id. at 443. The court held that to be entitled to immunity from prosecution, the members needed to demonstrate adherence to ethical standards and a spiritual discipline. Id. at 444. It declined to rule that the group was a religion because there was no evidence of a belief in a supreme being, no ritual or tenets to guide them, and there was a “catechism” that mocked established religion and contained irreverent expressions. Id. at 444–45. The court heled that even if it were a “religion,” its free exercise claim would not be sustained if a state interest were frustrated in a significant way by recognizing it. Id. at 445. The court accepted the government’s contentions of the harmfulness of allowing these practices, such as having a situation that would lead to heroin use and an anticipated breakdown of society. Id. at 445–46.

Appellate decisions in California rejected claims for marijuana possession based on the free exercise clause by distinguishing the Woody decision on the basis that it was not indispensable to the practices of religion and that it was not an object of worship itself. E.g., People v. Werber, 19 Cal. App.3d 598, 97 Cal. Rptr. 150, 156 (1971); People v. Collins, 273 Cal. App.2d 486, 78 Cal. Rptr. 151 (1969).

The major psychedelics became illegal nationwide by October 1968. In 1970, the Federal Controlled Substances Act, was enacted, and it gave authority to the Food and Drug Administration to create schedules for criminal sanctions for the use and possession of psychoactive drugs and substances. See 21 U.S.C. §§ 841(a)(1), 811–821. After it was enacted, and under its authority, LSD, mescaline, peyote, and psilocybin mushrooms have been placed in the highly restricted Schedule I as having no medical potential and being subject to abuse and presenting grave dangers. The substances listed in Schedule I of the Controlled Substances Act are subject to an outright ban on all importation and use unless this is pursuant to strictly regulated research projects. See, 21 U.S.C. §§ 823, 960(a)(1). Sections 841 and 844 of the Controlled Substances Act set out criminal penalties for possessing or dispensing these substances The Single Convention, an international treaty, applied similar restrictions throughout the world. As authorizations for research with psychedelic substances ended, scientific research and psychedelic-assisted psychotherapy came to an end by 1977, here in the United States and in Europe and other countries.

Psilocybin and the major psychedelics remain in the most restricted category today under the UN Convention on Psychotropic Substances, the US 1970 Controlled Substances Act and the 1971 UK Misuse of Drugs Act, among others. The Vienna Convention on Psychotropic Substances, a 1971 agreement, suggested a scheduling system for all 131 agreeing countries to follow, classifying drugs into categories of harm. The various countries enacted laws controlling psychotropic substances as part of the agreement. The Vienna Convention was directed toward the manufacturing of synthetic substances. Many, but not all countries have applied it broadly to psilocybin, mescaline-containing cactus plants, and the plants composing the natural psychedelic ayahuasca. The indigenous traditions are protected in Mexico under the Vienna Convention treaty.

An initiative to establish a church with sacramental use of psychedelics:

The Church of the Awakening is discussed by John Aiken, M.D. in his book Explorations in Awareness: Finding God by Meditating with Entheogens, and in an article in the 1970 book Psychedelics, edited by Aaronson and Osmond. Two osteopathic physicians, John and Louise Aiken, founded the church as a fellowship for spiritual evolution and growth. Dr. John Aiken wrote that they began meetings in Socorro, New Mexico, where they lived and were active in the community and the Presbyterian Church. The Aikens’ two adult sons both had died in tragic accidents, and they sought a deeper understanding of the true nature of existence than physical existence, a universal, omnipresent, and omnipotent reality.

At first, they explored paranormal activity, deep meditation and prayer, to promote enhancement of growth in love and understanding, and the concurrent diminution of egotism and selfishness. Aaronson and Osmond at 178. They learned about psychedelics and were able to obtain peyote from the Rio Grande Valley, and later they also employed mescaline as one of their sacraments. They found that these substances, when used with reverence and careful preparation on an occasional basis, never more frequently that every three months. They incorporated the Church of the Awakening on October 14, 1963.

One aspect of their practices was to observe proper and respectful sacramental use of peyote, which they regarded as an agent that aided their search for the spiritual meaning of life. They did not have a specific body of doctrine, and were focused more on experience that on beliefs. The psychedelic sacraments were administered to prepared and qualified individuals by trained monitors and ministers. Dr. Aiken wrote that it could induce mystical experience, and was of value in a search for meaning. Their intention was to begin an entry to deeper purpose, opening to a pathway of personal growth employing various means, with an emphasis on individual efforts to meet challenges and develop inner life. They maintained that the bona fide ceremonial use of peyote and mescaline should be equally available to individuals not of American Indian origin.

In Kennedy v. Bureau of Narcotics and Dangerous Drugs, 459 F.2d 415 (9th Cir. 1972), the court considered the Church of the Awakening’s appeal of a denial of an exemption from anti-peyote laws by the Bureau of Narcotics and Dangerous Drugs. The government conceded that the Church of the Awakening was a bona fide religious organization, sincere in its beliefs, that used peyote in ceremonies. Id. at 416–17. The church would carefully screen prospective members to assure their sincerity and commitment, and to minimize the danger of adverse reactions and misuse.

The government denied the Church of the Awakening’s allegations that the church had been denied due process when it had been denied the protection afforded to the Native American Church. The government argued that the peyote sacrament was not as central to its worship as it was for the Native American Church. Id. at 416. The court rejected the distinctions for the classifications were arbitrary and violated due process. Id. at 417. It concluded, however, that the proposed exemption would have the same “constitutional infirmity” of arbitrariness, and it refused to recognize one. Id. at 417. The Court observed that the only issue before it was the constitutionality of the exemption regulation, not whether the use of peyote by any church is protected. Id. A concurring opinion would have found the distinction constitutional because it gave weight to the exercise of a police power, the fact that it was not restricted to people of Indian ancestry like the Native American Church, and because the church did not regard peyote an object of worship, but a means of worship. Id. at 418.

Courts became restrictive in the descriptions of protection. For example. In People v. Crawford, 69 Misc. 2d 500, 328 N.Y.S.2d 747 (Dist. Ct. 1972), aff’d, 41 A.S.2d 1021, 340 N.Y.S2d 848 (1973), the court authorized criminal charges for possession of marijuana and LSD for members of the Missionaries of the New Truth. The court distinguished the Woody case, which had found constitutional protection, stating that peyote was an object of worship for them and that banning its use would virtually inhibit the religion. Id. 328 N.Y.S.2d at 751. The court cited some appellate decisions from California that did not find a burden on religion unless the regulated practice was indispensable to the religion. The court also observed that the membership did not have an actual religious ceremony when using these substances, and that there was loose oversight concerning the acceptance of members and maintenance of membership rolls. Id. 328 N.Y.S.2d at 755.

A limited and skeptical approach to constitutional protection in the United States for religious use of entheogens or psychedelics may have been part of a reaction to the social upheaval that led to the “culture wars” of the 1960s and 1980s, a reaction to the Anti-War Movement and the Civil Rights Movement. A veil of silence in research descended over the role of hallucinogen research in psychiatry, and there was little discussion about the merits of this research for 25 years, except for some brave souls willing to be marginalized in their careers.

During this time, psychedelics became a more obscure social influence and were less available to underground explorers. However, Terence and Dennis McKenna authored the successful small book called Psilocybin: Magic Mushroom Grower’s Guide, in 1975. It instructed people how to grow mycelium in rye grain. It was published in Berkeley under pseudonyms. Dr. McKenna states that it provided a reliable method for cultivating psilocybin mushrooms at home and brought psilocybin to many people. It may have paved the way for the Psychedelic Renaissance.

The Supreme Court rejects precedent and abandons constitutional protection for religious use of psychedelics:

The Supreme Court refused to afford first amendment protection for use of peyote as a sacrament in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595 (1990). Two members of the Native American Church of North America brought appeals when they had been disqualified from receiving unemployment compensation benefits. Alfred Smith and Galen Black were employed as drug rehabilitation counselors by a nonprofit organization with a policy requiring complete abstinence from alcohol and illegal drugs, or any use of prescribed drugs in a non-prescribed manner.

The Oregon Supreme Court held that the denial of unemployment benefits to Black and Smith because of their use of peyote in religious ceremonies violated the first amendment. The case had been remanded to the Oregon Supreme Court for a decision whether the sacramental use of peyote was illegal under Oregon law. The court held that it was illegal but that the prohibition was invalid under the Free Exercise Clause. The financial burden to the state and the illegality of possessing and ingesting peyote under state law were not significant enough interests of the state to outweigh the burden on the individuals’ fundamental rights.

The court relied on two Supreme Court decisions to find that the State had not demonstrated a compelling state interest that would justify denying the benefits: Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (Seventh-Day Adventist whose beliefs prevented her from working on Saturdays could not be denied benefits for unemployment when she lost her job for that reason) and Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (Jehovah’s Witness who quit his job due to transfer to a department that manufactured munitions was entitled to unemployment benefits even though not all adherents to his religion did not view their faith as forbidding such work). Black v. Employment Division, 307 Or. 68, 72–73, 763 P.2d 146, 148. The state action substantially burdened their freedom to exercise their religion, and was an unconstitutional in light of the state’s failure to demonstrate a compelling interest justifying the infringement.

The Supreme Court majority opinion, a 6–3 ruling by Justice Scalia, held that the Free Exercise Clause of the U.S. Constitution could not be applied to invalidate laws that are considered neutral and generally applicable. The majority of justices found that the state’s criminal prohibition of use of peyote was a legitimate basis for prosecuting and otherwise burdening the sincere religious conduct. This represented a departure from the traditional protection of activity, even when it is declared to be criminal conduct, when it unduly intrudes upon a fundamental right, such as the right to freedom of worship and religious observance.

In the dissenting opinion of Justice Blackmun, the minority emphasized the traditional requirement in constitutional cases that a reviewing court strictly scrutinize any state action that unduly intrudes on a fundamental right, and that the state’s action was unjustified. The minority recognized that in enforcing prohibition the state was advancing an interest “in refusing to make an exception for the religious, ceremonial use of peyote.” Id. at 910. The judges in both the majority and in the dissent recognized that peyote had an important role in the religion, although the dissent did not require the usage of the sacrament to be central to the religion in order to be afforded constitutional protection.

The dissenting opinion in Smith noted that studies and treatises, and previous court decisions had identified the beneficial role of peyote, including strengthening the members’ sense of purpose and their community standing. The dissent stressed that peyote offered an essential ritual of their religion and that “the peyote plant embodies their deity, and eating it is as act of worship and communion.” It offered healing of body, mind and spirit, a means to communicate with the Great Spirit, and was a teacher which “teaches the way to spiritual life through living in harmony and balance with the forces of creation.” Id. at 919 (quoting O. Stewart, Peyote Religion 327–330 (1987)).

The dissenting opinion in Smith emphasized the “carefully circumscribed ritual context in which respondents used peyote,” which was “far removed from the irresponsible and unrestricted recreational use of unlawful drugs.” Id. at 913. It carefully distinguished its use from the state’s purported interest in abolishing drug trafficking. The dissenting opinion observed that the sincerity of the adherents had never been at issue. The state had not prosecuted the individuals and most states, and society in general, had chosen to protect the use of peyote by the Native American Church. It noted that the Drug Enforcement Administration exempted the Native American Church from the application of Schedule I drug laws and registration requirements for use of peyote, and that the state offered “no evidence that the religious use of peyote has ever harmed anyone.” Id. at 911–12.

Several states had provided exemptions from anti-peyote laws. Twelve of the seventeen states that had anti-peyote laws in 1970 provided exemptions for members of the Native American Church. W. Labarre, The Peyote Cult 265 (4th ed. 1970). After the adverse decision in Employment Division v. Smith, the Native American Church of North America received protection by an act of Congress to use and possess peyote for its religious ceremonies. Prior to the Black and Smith cases, federal law had exempted practices of the Native American Church from the peyote laws by federal regulation. 21 C.F.R § 1307.31 (1981). The American Indian Religious Freedom Act Amendments of 1994 were adopted to protect the rights of American Indians to use and possess peyote for traditional Indian religious ceremonies. 42 U.S.C. § 1996a.

Post-Religious Freedom Restoration Act consideration of constitutional protection for religious use of psychedelics:

The Congress in 1993 responded by legislatively overturning the diminished constitutional scrutiny adopted in Employment Division v. Smith decision by enacting of the Religious Freedom Restoration Act (RFRA). This law overturned the abandonment of the balancing test and restored the previous higher level of scrutiny to laws that burden religious exercise. It restored the constitutional scrutiny established under Sherbert v. Verner and Wisconsin v. Yoder. The act stated expressly that this was its intention.

42 U.S.C. § 2000bb-1 provides, in section (a), “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).” Section (b) states, “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person- (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

In United States v. Meyers, 95 F.3d 1475, 1482–84 (10th Cir. 1996), the court affirmed a conviction for two counts involving federal conspiracy charges for sales of marijuana. The defendant had a daily practice of smoking ten to twelve joints or marijuana cigarettes and he had a substantial interstate marijuana distribution enterprise. In 906 F. Supp. 1494 (D. Wyo. 1995), the Meyers district court had rejected a religious exemption for the defendant, which he asserted under the free exercise of religion clause. Meyers testified regarding the belief system of The Church of Marijuana, which he had founded in 1973, as a defense to a practice of selling and shipping large quantities of marijuana in a series of transactions. In denying a religious exemption, the courts did not question the sincerity of the defendant. The court of appeals held that the threshold for establishing the religious nature of his beliefs was low. Meyers, 95 F.3d at 1483–84. The court of appeals upheld the convictions and affirmed the trial court’s conclusion that a secular purpose motivated the defendant’s behavior.

The trial court in Meyers held that the defendant did not meet specified criteria that the court identified for a legal definition for protection religious conduct. The criteria are now frequently referred to as “Myers factors.” Meyers, 906 F. Supp. at 1508. The court concluded that his use of marijuana filled a secular, rather than a religious purpose, and was not protected under the free exercise of religion clause. The court found that the defendant had produced no writings or other documents evidencing the belief system of the church, and that he did not show that it had a central text that its members would rely on for their ideology. He did not identify a concern with “ultimate issues,” like the meaning of life and death, that concerned the church or were addressed by a theology. He referred to the plant as a medicine and testified that its use cured him of bipolar mood disorder. The Myers factors identified by the district court were adopted and approved by the court of appeals on appeal, 95 F.3d at 1484. The factors are as follows:

1. Ultimate Ideas: Religious beliefs often address fundamental questions about life, purpose, and death. As one court has put it, “a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters.” Africa v. Commonwealth, 662 F.2d 1025, 1032 (3d Cir.1981). These matters may include existential matters, such as man’s perception of life; ontological matters, such as man’s sense of being; teleological matters, such as man’s purpose in life; and cosmological matters, such as man’s place in the universe.

2. Metaphysical Beliefs: Religious beliefs often are “metaphysical,” that is, they address a reality which transcends the physical and immediately apparent world. Adherents to many religions believe that there is another dimension, place, mode, or temporality, and they often believe that these places are inhabited by spirits, souls, forces, deities, and other sorts of inchoate or intangible entities.

3. Moral or Ethical System: Religious beliefs often prescribe a particular manner of acting, or way of life, that is “moral” or “ethical.” In other words, these beliefs often describe certain acts in normative terms, such as “right and wrong,” “good and evil,” or “just and unjust.” The beliefs then proscribe those acts that are “wrong,” “evil,” or “unjust.” A moral or ethical belief structure also may create duties often imposed by some higher power, force, or spirit that require the believer to abnegate elemental self-interest.

4. Comprehensiveness of Beliefs: Another hallmark of “religious” ideas is that they are comprehensive. More often than not, such beliefs provide a telos, an overarching array of beliefs that coalesce to provide the believer with answers to many, if not most, of the problems and concerns that confront humans. In other words, religious beliefs generally are not confined to one question or a single teaching. Africa v. Commonwealth, 662 F.2d 1025, 1035 (3d Cir.1981).

5. Accoutrements of Religion: By analogy to many of the established or recognized religions, the presence of the following external signs may indicate that a particular set of beliefs is “religious”:

a. Founder, Prophet, or Teacher: Many religions have been wholly founded or significantly influenced by a deity, teacher, seer, or prophet who is considered to be divine, enlightened, gifted, or blessed.

b. Important Writings: Most religions embrace seminal, elemental, fundamental, or sacred writings. These writings often include creeds, tenets, precepts, parables, commandments, prayers, scriptures, catechisms, chants, rites, or mantras.

c. Gathering Places: Many religions designate particular structures or places as sacred, holy, or significant. These sites often serve as gathering places for believers. They include physical structures, such as churches, mosques, temples, pyramids, synagogues, or shrines; and natural places, such as springs, rivers, forests, plains, or mountains.

d. Keepers of Knowledge: Most religions have clergy, ministers, priests, reverends, monks, shamans, teachers, or sages. By virtue of their enlightenment, experience, education, or training, these people are keepers and purveyors of religious knowledge.

e. Ceremonies and Rituals: Most religions include some form of ceremony, ritual, liturgy, sacrament, or protocol. These acts, statements, and movements are prescribed by the religion and are imbued with transcendent significance.

f. Structure or Organization: Many religions have a congregation or group of believers who are led, supervised, or counseled by a hierarchy of teachers, clergy, sages, priests, etc.

g. Holidays: As is etymologically evident, many religions celebrate, observe, or mark “holy,” sacred, or important days, weeks, or months.

h. Diet or Fasting: Religions often prescribe or prohibit the eating of certain foods and the drinking of certain liquids on particular days or during particular times.

i. Appearance and Clothing: Some religions prescribe the manner in which believers should maintain their physical appearance, and other religions prescribe the type of clothing that believers should wear.

j. Propagation: Most religious groups, thinking that they have something worthwhile or essential to offer non-believers, attempt to propagate their views and persuade others of their correctness. This is sometimes called “mission work,” “witnessing,” “converting,” or proselytizing.

United States v. Meyers, 906 F. Supp. at 1502–1503.

The district court made an interesting observation about a belated contention by Meyers that his practice was a Christian faith:

Had Meyers asserted that the Church of Marijuana was a Christian sect, and that his beliefs were related to Christianity, this Court probably would have been compelled to conclude that his beliefs were religious. Under these hypothetical circumstances, Meyers would have been able to fit his beliefs into a tradition that is indisputably religious. If Meyers had linked his beliefs to Christianity, the Court could not have inquired into the orthodoxy or propriety of his beliefs, no matter how foreign they might be to the Christian tradition. Ballard, 322 U.S. at 87, 64 S. Ct. at 886 (courts cannot assess validity of beliefs); Teterud v. Burns, 522 F.2d 357, 360 (8th Cir.1975) (courts cannot determine religious orthodoxy). Had Meyers sincerely made such a connection, he would have been able to purchase “religious” status for his beliefs by coattailing on Christianity. Unfortunately for Meyers, he made no such connection.

Instead, Meyers presented the Church of Marijuana as a “stand alone” religion. He did not testify that it was a Christian church or sect. Meyers had nearly finished testifying about his beliefs and “religion” when, under questioning from the Court about his ultimate beliefs, he mentioned that he was a Christian. After asserting that other church members also were Christians and that they believed in God, Meyers never mentioned Christianity again. He did not claim that any of his beliefs were based on Christianity, or that any of his beliefs were related to Christianity. Meyers did not assert, as did the defendant in United States v. Sams, 980 F.2d 740 (9th Cir.1992) (unpublished disposition), that the Christian God condoned and encouraged man to grow and use marijuana, or “herb” as it is referred to in Genesis 1:29 and 1 Corinthians 10:1. Meyers did not cite any Christian texts, refer to any Christian doctrines, or discuss any Christian teachings in support of his beliefs. The Court cannot, therefore, conclude that his marijuana smoking is rooted, let alone “deeply rooted,” in Christian religious belief. Teterud, 522 F.2d at 360.

Id. at 1508–09.

In O Centro Espirita Benficiente v. Ashcroft, 342 F.3d 1170, 1182 (10th Cir. 2003), the appeals court considered an equal protection of the law challenge by an ayahuasca church. The court held that there was not an obligation under the equal protection of the law provision of the Fourteenth Amendment to treat the ayahuasca religion Uniao do Vegetal religion the same way as the Native American Church. It noted that Uniao do Vegetal has been officially in the United States since 1993, when its highest official visited and founded a branch in Santa Fe, New Mexico, subordinate to the Brasilia headquarters. The court left open an opportunity for an additional challenge to enforcement.

United States v. Quaintance, 471 F.Supp.2d 1153, 1174 (D.N.M. 2006), the court rejected a Religious Freedom Restoration Act First Amendment claim by individuals asserting protection under the free exercise of religion clause who were charged with conspiracy to distribute fifty kilograms of marijuana. The court applied the Meyers factors and noted that evidence that the defendants had used cocaine recreationally in addition to their purported sacramental use of marijuana undermined their claims of sincerity. The court also considered evidence that showed their church had no longstanding set of religious beliefs and seemed to have contrived principles on an ad hoc basis to defend themselves from prosecution. There was also an absence of evidence of a ceremony or ritual associated with membership in the organization. Also, the large quantity of marijuana and the efforts of the individuals to derive financial gain from its distribution were cited as factors leading to the conclusion that their activities were not sincerely religions and the religious use argument was offered as a pretext to use controlled substances in a non-religious manner.

União do Vegetal in the United States:

Jose Gabriel da Costa, known as Mestre Gabriel, was the founder of Centro Espirita Beneficente União do Vegetal, the largest, most organized, and most recent of the three main ayahuasca churches in Brazil. União do Vegetal means “union of the plants” in Portuguese, and is a reference to the two plants, the ayahuasca vine and the DMT-containing leaf, which combine to create its powerful effect. He had inspired ayahuasca visions in an experience on April 1, 1959. His religion incorporated influences from Catholicism and the Umbanda tradition, of southeastern Brazil, an African-Brazilian religion that he had actively practiced before. He developed devotional songs and practices. His vision drew on deeper mysteries that he felt had been lost and rediscovered from lost traditions. União do Vegetal also drew on a Kardecist spritism tradition that held that spirits of the dead, and psychic and magnetic forces, would intervene in the events on earth, and had teachings about reincarnation.

In 1988, União do Vegetal (UDV) began in the United States with a session in the mountains of Colorado with a small group of people, some of whom are still UDV members today. By 2017, there were 500 members in the United States, according to one of the captions posted online by the organization. The ayahuasca churches in Brazil have achieved a credible reputation that led to the government of Brazil establishing legally-protected status for ritual use of ayahuasca in 1987. After a comprehensive seven-year study, the Brazilian Federal Narcotics Council made the following conclusions about União do Vegetal members: “The followers of the sect appear to be calm and happy people. Many of them attribute family reunification, regained interest in their jobs, finding themselves and God, etc., to their religion and the tea…The ritual use of the tea does not appear to be disruptive or to have adverse effects upon the social interactions of the sects’ followers. To the contrary, it appears to orient them towards seeking social contentment in an orderly and productive way.”

The Hoasca Project, which involved scientists including Charles Grob and Dennis McKenna, who are active with the Heffter Research Institute, conducted a scientific study of União do Vegetal members in Manaus, Brazil and showed that ayahuasca has positive effects on health and healing psychiatric disorders. This research resulted in scientific papers in 1994 and 1996 to consider whether ayahuasca could be used safely in a supportive community. The scientists compared fifteen active long-term members of União do Vegetal who had participated for at least ten years in ayahuasca ceremonies with a control sample of people who were similar in other ways but had not had exposure to ayahuasca or been involved in that type of church. The União do Vegetal members stated in the screening process that their previous behavior had been improved. About three-fourths had used alcohol, one-half had smoked cigarettes, one-third had committed violent, and one-fourth had used stimulants, and all of them had discontinued that behavior. They also showed more reflective personalities, greater persistence, and orderly, self-controlled, and frugal behavior compared with the control group. The ayahuasca users also scored higher on emotional maturity and social desirability scores. They were more harm-avoidant, confident, relaxed, cheerful, and optimistic than the control subjects and appeared to show better powers of concentration according to the study.

The example set by the people of the ayahuasca churches in Brazil helped bring about legal protection them in Brazil. Research in Brazil helped the court find that ayahuasca did not present so great a potential for harm in the United States that it could be prohibited from being used as a religious sacrament. The Gonzales v. União do Vegetal decision recognized constitutional protection for an ayahuasca religion. The Court applied the provisions of the Religious Freedom Restoration Act to apply the constitutional analysis as provided in the pre-Black line cases statute, restoring Sherbert v. Verner, and Wisconsin v. Yoder standards to recognize religious protection for a plant medicine ceremonial tradition from Brazil with religious use of ayahuasca, called “hoasca” by the church protected in the decision.

A district court in New Mexico had granted a preliminary injunction forbidding the government from enforcing the Controlled Substances Act to interfere with the importation and use of ayahuasca by the União do Vegetal. A chapter with about 300 members had had a shipment of three drums of ayahuasca seized by the United States Customs in 1999. The church filed for a preliminary injunction stating that there was no compelling state interest to justify preventing members from importing and drinking their sacramental tea. The court found the members’ exercise of religion was sincere and that it was substantially burdened by the federal government, which had failed to show that prohibition of its use was narrowly tailored to meet state interests or represented the least restrictive means or option for promoting interests in safety.

The district court had found the church, which it described as a “highly structured organization with elected administrative and clerical officials,” had made a prima facie showing under the Religious Freedom Restoration Act standard that it was entitled to protection with proof of a substantial burden imposed by the federal government on a sincere exercise of religion. This showing had shifted the burden of persuasion to the federal government to establish that its burdensome actions furthered a compelling interest in the least restrictive manner. The district court rejected the proffered governmental interests as insufficient justifications. The court concluded that the protection of the health and safety of União do Vegetal members did not preponderate in favor of the government because the health evidence was equally balanced. Similarly, the interest in preventing potential for diversion from the church to recreational users was insufficient because the evidence was equally balanced. Finally, its purported interest in compliance with the 1971 United Nations Convention on Psychotropic Substances (opened for signature Feb. 21, 1971, 1019 U.N.T.S. 175 and ratified by the United States in 1980), was insufficient to meet the government’s “onerous burden” under the act.

The trial court heard testimony about research with ayahuasca from the eminent psychiatrist, Charles Grob, who testified on behalf of the church. It also received testimony from the eminent pharmacologist and chemist, Dr. David Nichols, who testified about the effects of drinking their sacramental brew. Their testimony was sufficient to show that there was relatively low danger that it could trigger psychotic episodes, particularly under the practices employed by the church. The court of appeals found that this factor did not weigh in favor of the government, nor did its interest in preventing diversion of ayahuasca for nonreligious uses. The church imported the prepared brew from church officials in Brazil, and because it was a small church, and would only import about 3,000 doses per year from Brazil. The district court’s preliminary injunction required the church to import ayahuasca using permits and to comply with requirements for storage and safekeeping.

This protection of their religious use of ayahuasca was upheld in O Centro Espirita Beneficiente v. Ashcroft, 342 F.3d 1170 (10th Cir. 2003), and this was affirmed by a majority of the Tenth Circuit sitting en banc, 389 F.3d 973 (2004). The court of appeals held that the Religious Freedom Restoration Act was intended to restore the constitutional precedent prior to the Black decision, and it concluded that because the United Nations treaty was intended to protect religious practices like those of the União do Vegetal religion, it was unnecessary to determine whether it even reached the consumption of ayahuasca.

After being without the sacrament and using only drinking water for five years, the União do Vegetal church won a favorable result from the Supreme Court in 2006. The U.S. Supreme Court rendered a unanimous (8–0) 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), which 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. The Gonzales Court stated that the União do Vegetal church had shown a substantial burden to a sincere exercise of religion, which shifted the burden to the government, under the Religious Freedom Restoration Act, to demonstrate that the application of the burden to the União do Vegetal church would, more likely than not, be justified by the asserted compelling interest. The parties agreed to the sincerity of the church and that the evidence of health and safety were in “equipoise” between the parties, and it held that the federal government had failed to demonstrate a compelling interest in prohibiting that use under the Controlled Substances Act.

Placement of DMT, an active ingredient of ayahuasca, on Schedule I did not relieve the government of the obligation to satisfy its burden under the Religious Freedom Restoration Act on a case-by-case basis. Id. at 430–31, 436. The Court held that the government had to address the balancing of interests in the particular case with respect to the litigants themselves, and not in general terms. Id. The Controlled Substances Act had provisions authorizing certain exemptions by the attorney general, one of which was extended to the Native American Church to use peyote as a sacrament. Id. at 430–31. The government in the O Centro case argued that an exception to the Controlled Substances Act could be made for peyote but not for ayahuasca. The Court dispensed with this argument, holding that the authenticity of religious practices can be determined on a case-by-case basis. The court of appeals had observed that the relatively unproblematic usage of peyote by the Native American Church supported application of religious protection, holding that “the relatively unproblematic state of peyote regulation and use belies the Government’s claimed need for constant official supervision of Uniao do Vegetal’s hoasca consumption.” O Centro Espirita Beneficiente v. Ashcroft, 342 F.3d 1170, 1186 (10th Cir. 2003). The Supreme Court concurred with this reasoning in its opinion. O Centro Espirita Beneficente União do Vegetal, 546 U.S. at 433–35.

Rejecting one of the findings of the district court, the Supreme Court held that found that ayahuasca is covered under the 1971 United Nations Convention on Psychotropic Substances which is implemented by the Controlled Substances Act. Id., 546 U.S. at 437–38. The Court discussed provisions in the Convention that indicated it applied to preparations, solutions, and mixtures from plants containing DMT or other psychedelics as well as the substances themselves. Id. The Court identified ambiguous and inconsistent language within the convention that had convinced the district court that a tea made from plants is a naturally occurring material. Id., at 437 (citing U. N. Commentary on the Convention on Psychotropic Substances 387, 385 (1976)). The Court noted that the government had not submitted evidence on the international consequences of granting an exemption from the Controlled Substances Act for the church to practice its religion, and it held that the government had failed to meet its burden to demonstrate a compelling interest in applying the Controlled Substances Act to the União do Vegetal ‘s sacramental use of the tea. Id. at 437–38. Following the remand to the district court for consideration of a permanent injunction, the parties reached a settlement that has allowed the União do Vegetal branch to continue using ayahuasca as a religious sacrament.

The Santo Daime case:

Church of the Holy Light of Queen v. Mukasey, 615 F.Supp.2d 1210 (D. Or. 2009), represents another successful victory for two ayahuasca churches, American branches of successors of the Santo Daime religion, the oldest of the Brazilian ayahuasca religions. The litigation resulted in the district court entering a permanent injunction to allow the two Santo Daime, branches to import and use ayahuasca, called Daime by the churches. The Church of Holy Light of Queen was a small community in Oregon with about 80 members using two locations. The leader, or padrinho, Jonathan Goldman, was deemed to be sincere and he had learned Portuguese and many of the precepts and principles of the Brazilian religion over almost 20 years, and he had been authorized to establish the branch in 1993 by the Santo Daime organization. The court also considered claims of a Portland branch with 25 members, Céu da Divina Rosa, or Church of the Divine Rose, and found that its leader and adherents were sincere as well.

Santo Daime incorporates religious traditions from Brazil. It is a tradition that was founded by Raimundo Irineu Serra, known as Mestre Irineu. He was inspired to form the religion Santo Daime, after a transformative experience when he was working as a rubber tapper in western Brazil near Bolizia around 1930. He was initiated into the mysteries of ayahuasca by indigenous shamans in the upper Amazon near the border with Bolivia. He had a series of visions and revelations that included a vision of the Divine Mother who identified herself as “the queen of the forest,” and he recognized her as the Universal goddess.

The church he formed combined the medicine practice with African, Christian and folk traditions with teachings about reincarnation and karma and Christian theology. Traditionally, there are services that include 132 hymns attributed to him. The ceremonies are called trabalhos or “works” and are organized rituals of different kinds, some contemplative, called concentrations, sitting upright quietly. The “hymnals” or dance ceremonies, have worshippers sing and dance for up to twelve hours, as the hymns guide the journeys. Services are dedicated to healing and promote personal responsibility, a wholesome lifestyle, love of nature, humility, fraternity and purity of heart.

Mr. Goldman was arrested in 1999 and the church’s Daime tea was seized. The church began practicing its ceremonies in secret to avoid interference, and filed an injunctive and declaratory action in 2008 following the O Centro decision by the Supreme Court. They offered evidence including expert testimony that their sacrament had benefits that helped members with problems such as addiction and had a low incidence of causing mental health problems, like transient psychosis. The plaintiffs offered into evidence a study of members of the Church of the Holy Light of Queen in 2006 by a psychiatrist, Dr. John Halpern, which showed social and health benefits overall from the use of ayahuasca. Careful screening and selection of participants through a sponsorship system and an orientation program and regular participation requirements were practices the court recognized as signs of sincerity and careful preparation.

The court credited Mr. Goldman’s testimony that taking the ayahuasca tea is “an arduous path that is not suitable for most people. In its screening process, CHLQ attempts to select only those who are serious about the Santo Daime religion, and to turn away would-be recreational users or thrill-seekers.” Id. at 1216. The Daime also was used only in the regular worship services that members are required to attend three of four times per month. Id. at 1216–17. The court noted, “In Brazil, thousands of people consume hoasca or Daime tea several times each month. The government of Brazil would not allow the UDV and Santo Daime churches to operate if there was evidence that Daime tea or hoasca was killing church members.” Id. at 1218.

The court found the plaintiffs sustained their burden of persuasion, that they were sincere in their religion, and that the ceremonial use of the Daime tea is essential to their religion. Id. at 1219.

The court found that the adherents viewed ayahuasca tea as a sacrament with the presence of the blood of Christ and that it was essential to their survival as a church. Id. at 1213. The Court held: “To paraphrase the California Supreme Court’s observation about the role of peyote in the Native American Church, the ceremonial use of Daime tea is ‘the sine qua non of [plaintiffs’] faith. It is the sole means by which [plaintiffs] are able to experience their religion; without [Daime tea], [plaintiffs] cannot practice their faith.’” Id., 615 F. Supp. at 1219, (quoting People v. Woody, 61 Cal. 2d 716, 725, 40 Cal. Rptr. 69, 394 P.2d 813, 820 (1964)). The court rejected the argument that their practicing of religion in secret indicated a lack of sincerity. It found that the government failed to show interests in protecting the health of members and prohibiting diversion would justify prohibiting their religious observance. The government also failed to show that prohibition was the least restrictive means to address these concerns. It emphasized the ritual context and the careful storage and maintenance of the medicine and the absence of documentation of any harmful experiences involving the churches. Id. at 1220–21.

In an unpublished decision after additional litigation about the scope of the injunction regulating the church, Church of the Holy Light of Queen v. Holder, 443 Fed. Appx. 302, 2011 U.S. App. Lexis 14710 (9th Cir. 2014), the U.S. Court of Appeals for the Ninth Circuit held it was entitled to attorney fees from the government as a prevailing party to enforce provisions of the Religious Freedom Restoration Act.

Scientific, social, and legal developments since the O Centro case:

As the analysis in the O Centro União do Vegetal case shows, experience and clinical studies demonstrating benefits of psychedelics can increase favorable attitudes toward protecting religious use of psychedelics and make the arguments that state or federal prohibition is necessary and represents a compelling state interest in health and safety. Research is proving the benefit of psychedelics in helping relieve treatment resistant depression and post-traumatic stress disorder and promoting spiritual experiences that ease the fear of death. The scientific studies clearly show the benefits of psychedelic-induced mystical experiences and meaningful, spiritually significant experiences with enduring effects on ordinary people.

The psychedelic experience can bring an intensity of introspection and examination that inspires a deep conviction, confidence, and appreciation of oneself and close ones. There may be an encounter with fear, remorse, and trauma, which are brought to awareness as part of an inner process of opening and shedding resistance and isolation or dependency on others for approval. People can overcome resistance and face trauma in healing ways that enhance creativity and engagement, and may have mystical experiences that are very transformative and bring positive life changes. The experiences can improve interpersonal closeness, increase gratitude, life meaning or purpose, and forgiveness, and relieve anxiety about death and social expectations, and enhance religious faith and coping ability.

An article in July of 2006 by Dr. Griffiths and researchers, William A. Richards, U. McCann, and Robert Jesse, was published in the journal Psychopharmacology and was a major breakthrough in showing the benefits of psychedelic therapy. The article was titled “Psilocybin Can Occasion Mystical-Type Experiences Having Substantial and Sustained Personal Meaning and Spiritual Significance.” The results showed that 58 % of the active participants had had a complete mystical experience. After two months, two-thirds of volunteers said that the psilocybin session was the most, or one of the five most spiritually significant experiences of their lives. At 14 months afterward, 58 % stated that it was among the most meaningful, and 67 % said it was among the most spiritually significant experiences of their lives. People who have break-through experiences and mystical insights have beneficial health impacts and improvements in outlook.

The Heffter Research Institute and other organizations have helped fund several projects with synthetic psilocybin to help explore the potential of psychedelic-mediated spiritual experience for healing and wellbeing. The Beckley Foundation has sponsored research at Imperial College London. Beginning in 2009, the Imperial College psilocybin research has continued, and shows outstanding success in treatment of patients with severe depression who had shown little to no improvement from traditional treatment.

From 2007 to the present time, Dr. Roland Griffiths, director of the Johns Hopkins Center for Psychedelic and Consciousness Research, has helped lea several successful studies into the effects of psilocybin with anxiety in cases of life-threatening cancer illness, showing a majority had reductions of anxiety and depression. Presently, there are ongoing studies with psilocybin for religious professionals, to understand mystical experience and its enduring effects on attitude, behavior, and vocation, led by Dr. Stephen Ross of N.Y.U. School of Medicine and Dr. Griffiths.

The psilocybin experience provided sustained death acceptance, life meaning, optimism, and quality of life. The best measures were from those reporting mystical-type experiences. Seventy percent stated it was the most or among the five most significant spiritual experiences of their lives and 67 % reported that it was the most or among the five most personally meaningful experiences of their lives. In 2011, Dr. Griffths led a study with volunteers who rated the psilocybin experience as having substantial personal and religious significance. The results correlated with sustained positive changes in their attitudes, moods, and behavior. After two months, the active subjects had better scores on neuroticism, extroversion, openness, agreeableness, and conscientiousness. One year later, the participants still reported having more openness in their lives. In 2014, his study showed that mystical experiences with psilocybin had a very positive effect with tobacco cessation after psilocybin induced mystical experiences. The experiences provided the volunteers with persistently reduced craving for and temptation to use tobacco.

In 2016, Dr. Griffiths led a study that showed that psilocybin assisted therapy showed sustained improvements for several months for a small sample of patients with cancer-related psychiatric distress. In 2018, Dr. Griffiths announced the results of a double-blind study with 75 volunteers who maintained a meditation or spiritual practice. They used sessions of low and high doses with moderate to strong support after they initiated their spiritual practices. There were outstanding and persisting results after six months in the areas of closeness, gratitude, life meaning, forgiveness, daily spiritual experiences, and positive changes in attitude, mood, and behavior. Extremely successful results with double-blind experiments using psilocybin-assisted therapy have been published, for tobacco addiction, led by Matt Johnson, cocaine addiction in Birmingham, Alabama, with cluster headaches, and obsessive-compulsive disorder. The recent announcements of effective research with psilocybin, including the Usona Institute project with multi-site phase 2 clinical trials underway for studying treatment of major depressive disorder at several locations in the United States is one example of the blooming of potential.

Application of best practices and harm reduction can enhance arguments for protection of plant medicine ceremonies:

Since the time it was decided, in 2006, many more initiatives in the United States have appeared, seeking to gain protection for religious use of psychedelics, and lawyers and academic professionals have differed in their conclusions about the extent of its impact. Decisions concerning religious use of plant medicines have imposed an expectation from discussions about the burden on the religious practices which is not present in the cases involving other religious practices, that there be a uniform theology that places a sacramental psychedelic as central or indispensable and even occupies the place of the deity. At the same time, these decisions create an expectation of a longstanding religious tradition. For mainstream Christians, Moslems, Buddhists, Hindus, Jews, Sikhs, and Jains, this is an unrealistic expectation and it is inconsistent with the purpose of constitutional protection for religious activity. Religious diversity and creative, interfaith evolution and adaptability could be recognized as a beneficial fruit of the psychedelic experience, a combination of reverence with a non-dual, unitary appreciation of the nature of Spirit. As traditional religions recognize and incorporate these perspectives into their communities and organizations, they may see greater participation and vitality, and begin to engage in advocacy and other efforts to create opportunities for religious use of psychedelics.

The courts appear to be more attracted to the familiar types of ceremonies, although the decisions emphasize that it is the sincerity of the adherents that is a principal area of focus, along with a showing of low risk of harm. The courts considering protection of religious practices with psychedelics as sacraments are more favorably disposed toward recognizing and protecting such religious liberty interests when the groups and institutions are able to show that no social problems and costs to society from these practices outweigh the liberty interests. A ceremonial context for psychedelic usage as a sacrament, combined with implementation of harm reduction strategies, will help produce benefits such as strengthening the members’ sense of purpose and their social responsibility that will be more likely to receive constitutional protection.

Greater protection for sincere religious practices using psychedelics is likely through court decisions, state and federal legislation, and local ordinances as scientific research and legal psychedelic assisted psychotherapy yield results showing spiritual transformation and other benefits, particularly with psilocybin, which is very safe from a physiological standpoint. Because psilocybin is even less dangerous than ayahuasca, because it does not have the monoamine oxidase inhibiting components, and because it is being incorporated into a great many successful studies, its use for religious purposes is like to increase in the future, along with the religious use of ayahuasca in the United States.

The Chacruna Best Practices Guide:

Attorney Allison Hoots, who is of counsel in Plant Medicine Law Group LLP, and Chacruna Institute for Psychedelic Plant Medicines, is the principal author of the 2021 Guide to RFRA and Best Practices for Psychedelic Plant Medicine Churches. The guide is available as an online source: https://chacruna.net/guide_rfra_best_practices_psychedelic_churches

It is a valuable resource for plant medicine practitioners and attorneys who advise individual clients and organizations about religious protection for making use of psychedelics for spiritual and religious purposes. The safety of the congregation and the secure keeping of the plant medicine sacraments are the primary objectives. The article states the recommendations for practices that would be favorable to sustaining greater protection and proof of harm reduction. These practices are measures that also protect the members of the congregations: health screening of congregants in advance of each ceremony; informed consent describing sacrament and any contraindications; emergency procedure, training, and equipment; providing integrative spiritual support subsequent to the ceremony; and; having experienced church leaders and assistants.

Ms. Hoots describes the administrative process for petitioning the Drug Enforcement Administration for an exemption under the restored First Amendment Protection. The article advises that organizations should be skeptical about resorting to the process. This process of seeking D.E.A. approval as an option was presented when the DEA published its “Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act Pursuant to the Religious Freedom Restoration Act” in January 2009. The article states that the DEA has consistently denied application. In only two cases, where the organization proceeded with litigation, did the DEA grant exemptions. The article also recommends caution because of commitments and oversight burdens. The screening process is very intrusive because it involves stating under oath that one will be receiving controlled substances, and promising that during review, the organization would not use the plant psychedelics that allegedly are illegal.

Using the best practices gleaned from the decisions involving religious liberty and use of psychedelics and plant medicines will increase the prospects of a successful defense under the laws of the states and the federal government. A small scale for group activities, a loyal group of congregants and adherents, strong and clear leadership, a coherent set of beliefs and practices directed toward worship of a higher power, respect for the sacramental substance, and pursuit of greater purpose and spiritual relationships, including commitment in family and community relations, are beneficial for showing sincerity and bona fide religious activity. Other examples of positive characteristics that could be persuasive in arguments for protection may include evidence showing social contributions made by the organization and its members, good character among the members, modest financial expectations, and a history of upright behavior by its leaders within society, will go a long way toward withstanding government scrutiny and pressure. Falling short at the first instance, however, ought not to preclude later efforts to come within the expectations of the law if the organization pursues remedial actions or is able to show a material change of circumstances.

The retreat center model and the Soul Quest case:

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.

The expectations of the courts that a sacramental plant medicine should be a central component for the religion, an indispensable aspect for it to gather and exist, make it challenging for individuals in established religions to avail themselves of protection under the free exercise of religion clause. As various organizations, churches, and medicine circles place central influence on plant medicines and adopt sustainable harm reduction practices, it could help engender greater understanding and acceptance in government and society for these initiatives to enhance opportunity for deep spiritual experiences.

Dr. William Richards, who has been involved in research involving psychedelics in psychotherapy since the mid-1960s, wrote that he believes that spiritual retreats using plant medicines would be a good option for Americans who wish to deepen their inner knowledge and draw benefit from the promising medicine traditions: “One may hope that continuing respectful and responsible attitudes toward these sacramental substances will gradually lead to them becoming legally accessible in the United States and elsewhere in other contexts where serious religious intent prevails. Perhaps the next step would be to extend legal authorization to retreat and research centers, staffed by professionals with both medical and religious training, who understand the art of wisely administering these substances to those who wish to receive them. Such centers could also provide individual and group support for the integration of psychedelic experiences. Although it may be a long time before psychedelic sacraments are incorporated into worship experiences in the churches, synagogues, mosques, and temples of major religious organizations, present religious leaders from diverse faith backgrounds could be supportive of such centers for research and retreat.” W. Richards, Sacred Knowledge, Psychedelics and Religious Experiences, at 177.

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 (M.D. Fla. Apr. 22, 2020), which is now on appeal to the U.S. Court of Appeals for the Eleventh Circuit, an ayahuasca church incorporated as a nonprofit corporation petitioned to have its ceremonies protected under the Free Exercise Clause. During the pendency of the proceedings, it sought the approval of the Drug Enforcement Administration (D.E.A.), which took a very lengthy time to reach its decision. After delay and prompting by the court, it issued a letter of denial, concluding that Soul Quest is not a sincere religious practice, citing interviews with individual leaders and members in support of its conclusion. It 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 D.E.A. letter to Soul Quest identified a somewhat loose affiliation and the occurrence of isolated instances of participation to determine it had a secular purpose. It noted that some participants may follow up periodically with ceremonies, and attend integration calls held on the internet regularly, others may attend a single time. 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.

Similarly, its leadership described a flexible approach to spiritual belief, and non-dual understandings about, and experience of the creative source, was considered by the agency to detract from it being considered a church or entity entitled to constitutional protection. There were problems identified with a prior affiliation with the Oklevueha Native American Church, and sourcing from an entity, Waking Herbs, which was not registered with the D.E.A. These problems were identified as supporting a compelling governmental interest to justify the burden on the practices of Soul Quest.

The D.E.A. also discounted the legitimacy of Soul Quest as a legitimate religion because it had an open approach to participation. 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 refereed 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.”

State law protection, statutory initiatives, and ordinances:

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.

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.

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.

In 2019, Denver became the first U.S. city to decriminalize psychedelic mushrooms, followed by Oakland and Santa Cruz in California, which decriminalized all entheogenic plants. In September of 2020, the Ann Arbor, Michigan City Council voted unanimously in favor of a resolution declaring psychedelic plants and fungi the city’s lowest law enforcement priority. The move means that authorities will not investigate and arrest anyone for planting, cultivating, buying, transporting, distributing, engaging in practices with or possessing entheogenic plants or plant compounds. Similar measures have passed in Cambridge and Somerville, Massachusetts. California is in the process of removing state criminal sanctions against natural psychedelic substances.

Several municipalities have enacted provisions in ordinances, sometimes through voter initiatives, to withhold law enforcement resources from enforcement of laws punishing religious use of psychedelics. Oakland and Denver have had success in passing ordinances to remove enforcement of restrictions on psilocybin under state law, while remaining schedule I controlled substances under federal law.

Oregon’s Measure 109, which passed in a November 2020 election, legalizes use of psilocybin mushrooms in a supervised therapeutic setting under state law. Washington and Colorado are considering similar initiatives to implement programs for legalizing adult use of plant and fungi psychedelics.