The Law of Religious Freedom for Ceremonial Use of Psychedelics
Ronald W. McNutt, attorney, January 2024.
This is a very active time for the law affecting psychedelic substances and many forms of easing restrictions and enthusiasm for wider access to psychedelics have appeared recently. There is a wide demand for the supported adult use programs for psilocybin mushrooms in Oregon, decriminalization of natural psychedelics in Colorado, a new drug application with the Food and Drug Administration for MDMA, successful psilocybin-assisted psychotherapy trials also appearing to progress significantly toward approval in a couple of years. Science, propelled by philanthropy from benefactors and energetic advocates, has been documenting 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. There are many influential advocates for veterans to have expanded access to psychedelics to address trauma, and there is bipartisan support for more studies to be conducted.
Up to the mid-1990s, the court decisions had seemed to progress toward requiring a narrowly tailored compelling state interest to justify an imposition on religious freedom, even the use of a psychedelic-containing plant or fungi. The Supreme Court, in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595 (1990), then abdicated a role in protecting religious use of peyote, leaving no constitutional protection for religious use of psychedelics until the Religious Freedom Restoration Act. The act was a response to bipartisan and religious community efforts to restore the previous level of protection under the free exercise of religion clause for religious conduct even when it could be deemed criminal. However, the courts have shown resistance to applying principles of protection for the free exercise of religion when they are reviewing ceremonial use of psychedelics, and they have sought to shift responsibility for such protection to the Drug Enforcement Administration.
Social and Judicial Resistance to Protection of the Right to Exercise Religion that Incorporates Psychedelics
The courts of the United States have reflected western culture’s opposition to traditions that have made use of visionary plants and fungi. European powers and their religious institutions played a central role in efforts to eradicate longstanding indigenous traditions in the New World that used naturally-occurring plants and fungi to evoke life-changing psychedelic experiences. These indigenous traditions incorporated psychedelic substances into their cultural experience, as spiritual sacraments, medicines, and part of a world view and traditions for acculturation, socialization, and initiation into the beliefs and priorities of their societies.
Western culture had a stressful encounter with psychedelic experiences and reacted in strong opposition with its legal system and institutions. These extremely negative attitudes toward psychedelics, brought to Central and South America during colonization by European powers, have continued to influence society. Despite the presence of some traditions of religious groups making beneficial use of psychedelic plant medicines, antipathy to psychedelics was exacerbated during 1960s and 1970s. There was a very strong social and legal reaction to the widespread use of psychedelics by young people in a society that was unfamiliar with the nature of these substances. There were instances of scandal, crime, abuse, and even more significantly, it was a time of social transformation and questioning power dynamics.
A limited and skeptical approach to constitutional protection in the United States for religious use of psychedelics came with society’s hostile reaction in opposition 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.
Psychedelics went underground in America except for the Native American Church, which has a sacramental practice based on peyote, which its adherents honor and regard with reverence and respect. Otherwise, there was no type of spiritual context for Psychedelics that the courts would protect under the free exercise of religion clause. This changed significantly after successful research in clinical studies and a 2006 decision by the Supreme Court, applying the Religious Freedom Restoration Act.
The communities and institutions that make sacramental use of psychedelics are at an intersection with that judicial tradition of resistance and discomfort with religious traditions with psychedelic practices. There are established religions and practices using ayahuasca in South America that have expanded to spiritual communities in the United States. People who gather for ceremonies using plant medicines and other psychedelics have an uncertain and changing set of legal principles to consider when adopting harm reduction and other measures to meet appropriate expectations for the free exercise of religion. Misunderstandings about psychedelics have been countered by great amounts of research about their potential to open spiritual and healing experiences with long term benefits. In North American society, there is greater interest and acceptance for psilocybin and natural psychedelics.
As society increases its understanding about how psychedelics can be employed to stimulate spiritual experiences, individually and collectively, it is still struggling to develop religious attitudes and traditions that make appropriate space for the psychedelic experiences that people, in increasing numbers, are seeking for healing and betterment. Perhaps a better legal climate has come about due to the many ways in which familiarity and experience combine. Efforts are underway in many communities to create practices and communities that minimize risks and are aligned with values of continuity, sustainability, spiritual growth, and healing, for society and individual members.
The Meaning of Religion and How it Applies to Psychedelics
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.
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. These combined experiences bring an opportunity for transformation, greater aliveness, and deeper soul connection. Dr. Gul Dolen, a neuroscientist, has described this as a critical period, like childhood, when there is a window for openness and learning, and overcoming trauma-based reactions. 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.
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 and fungi. 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, that the uses of psilocybin mushrooms and the DMT-containing snuff, now known as yopo, which were so visible during early colonialism, were forgotten completely by European culture until they were rediscovered. Ethnobotanist W. E. Safford first identified the psychedelic contained in yopo, Anadenanthera peregrina, as DMT 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.
Cases and Laws 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 stated that cases that upheld statutes that burdened religion had 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 is 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 favorably weighed the traditional nature of the religious 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. Although another Jehovah’s witness at the factory disagreed about whether their faith prohibited fabrication of military equipment, the claimant had a genuine and sincere religious motivation and felt that being so close to the process of manufacturing military equipment violated his religious beliefs. Religious beliefs need not be acceptable, logical, consistent, or comprehensible to others, the Court held, 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 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 Research with Psychedelics and the First “Psychedelic Era” in the United States
Peyote 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. A tradition endured in a remote part of the western Sierra Madre mountains, not known to the American public until the mid-1950s. They were used for divination by devout Mexican Indians who incorporated Christian practices into their nighttime vigils.
Dr. Humphry Osmond, a psychiatrist who was a pioneer and an innovator in the field of psychedelic-assisted psychotherapy, invented the term psychedelic. It means mind-manifesting from the Latin words for “mind” and “clear” or “visible.” Dr. Osmond conducted successful research with psychedelics for therapy, first with mescaline and then with LSD, in the 1950s and 1960s in Saskatchewan. Dr. Osmond used a technique employed by Al Hubbard which would evoke an overwhelming experience using high dosage of LSD, with eye shades and headphones on a soft couch, 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, and inspired use of the Hubbard techniques providing an optimal set and setting.
The late 1950s and early 1960s were a time of active psychedelic therapy and experimentations. Illustrious people were active in the field of psychedelic research or therapy, such as 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). By 1959, Al 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. Aldous Huxley, who became Hubbard’s friend and colleague, 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’s adverse reaction to psychedelics included deep suspicion of clams that it brought about genuine religious experiences. An older generation also was uncomfortable with 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, some casual use of psychedelics led to adverse reactions, controversial behavior, and tragic events. This created 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 United States v. Kuch court held that to be entitled to exemption 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 Controlled Substances Act
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 in the United States, Europe, and other countries. Psilocybin and the major psychedelics remain in the most restricted category today under the United Nations Convention on Psychotropic Substances, the Controlled Substances Act, and the 1971 United Kingdom Misuse of Drugs Act, and other laws from that time. 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.
The Church of the Awakening, Establishing a Church With Sacramental Use of Psychedelics
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, John Aiken, M.D. describes The Church of the Awakening. Dr. John Aiken and Dr. Louise Aiken, a married couple who were osteopathic physicians, founded the church as a fellowship for spiritual evolution and growth in Socorro, New Mexico. They were active in that community and a local Presbyterian Church. After 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. (Psychedelics, at 178). They learned about psychedelics and they were able to obtain peyote from the Rio Grande Valley. Later, they also employed mescaline as one of their sacraments, and 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 recognized that the distinctions between the religions seemed to be arbitrary but concluded that the proposed exemption for the Church of the Awakening 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.
Other courts became restrictive in their review and requirements for claims of religious protection after the enactment of the Controlled Substances Act. 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.
The Supreme Court 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 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 opinion 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 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.
The courts would employ strict scrutiny constitutional review, which was more promising and less complex, before 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). Congress had to reinvigorate free exercise of religion review after the Department of Human Resources of Oregon v. Smith decision, by enacting the Religious Freedom Restoration Act. To complicate matters further, perhaps intentionally, the DEA insinuated itself into reviewing requests for exemptions with an inadequate process that fails due process.
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.
Religious use of Psychedelics After the Religious Freedom Restoration Act
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.
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 members. 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 convince the government to extend legal protection to them. 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.
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 União do Vegetal religion the same way as the Native American Church. It noted that União 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.
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 União do Vegetal 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.
Evidence including declarations of members described the visions from the brew to afford perception of God and promote independent thinking, good health, and careful behavior. The sacrament was an experience that was described as life-affirming, an experience of divine reality that promoted integrity and a sense of duty and discipline. The trial court heard testimony about research with ayahuasca from the eminent psychiatrist, Charles Grob, who testified on behalf of the church. He introduced the results of the 1993 investigation, the Hoasca Project. Dr. Marlene Dobkin de Rios submitted a declaration, in 2000, about her fieldwork among the Amazon area mestizo healers. She wrote about the União do Vegetal tradition had roots from spiritism and Afro-Brazilian traditions, that it had in place leadership in boards with increasing authority over church matters, and a progression of responsibility among members. Dr. Dobkin de Rios concluded from her research that the church had an influence on its members to impart moral behavior and responsibility, family and community values, and redemption and personal change. The ceremonies or services she had observed involved prayers and lengthy silences among the seated members, and lessons on light and force coming through the services.
Dr. Huston Smith, in his declaration, also submitted in 2000, said that the União do Vegetal had the indicia of established religions, like Christianity, which he noted also was syncretic, incorporating other traditions. He stated that the União do Vegetal has a metaphysical philosophy about the origin and purpose of life, with teachings and precepts, a church structure, an inspired message from its founding, tithing, ceremonies, rituals shared in communities, and holiday. The court also received testimony from the 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 União do Vegetal church.
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 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 Smith v. Gonzales decision. The court of appeals found that this safety consideration factor did not weigh in favor of the government, nor did its interest in preventing diversion of ayahuasca for nonreligious uses. 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 a 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 União 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 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.
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. 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 Bolivia 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 Santo Daime 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
The conclusions in the O Centro União do Vegetal case show that the testimony of relatively safe use, combined scientific findings in clinical studies that demonstrated some benefits of the ceremonial psychedelic use, helped support protection. The benefits were not deemed to be so outweighed by any dangers of misuse or adverse consequences that the intrusion on the religious use of ayahuasca would be permitted under the standards restored by the Religious Freedom Restoration Act.
Favorable examples of the people and organizations employing psychedelic sacramental practices can increase favorable attitudes toward protecting religious use of psychedelics. It will diminish the power of arguments that state or federal prohibition is necessary and represents a compelling state interest in health and safety. The scientific studies clearly show the benefits of psychedelic-induced mystical experiences and meaningful, spiritually significant experiences with enduring effects on ordinary people. Because psilocybin is being shown to be safe when used with proper settings and preparation, and because it is being incorporated into a great many successful studies, its use for religious purposes is like to increase in the future. There are numerous churches and medicine circles that use ayahuasca which seek to obtain religious protection for ayahuasca in the United States, which can present some dangers because it has potent monoamine oxidase inhibiting components,
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 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 the late Dr. Roland Griffiths, the initial director of the Johns Hopkins Center for Psychedelic and Consciousness Research, and researchers, William A. Richards, U. McCann, and Robert Jesse, was published in the journal Psychopharmacology and was a 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. 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. The Beckley Foundation has sponsored psilocybin research at Imperial College London. It has had outstanding success in treatment of patients with severe depression who had shown little to no improvement from traditional treatment. 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.
Subsequent studies at Johns Hopkins showed volunteers who rated the psilocybin experience as having substantial personal and religious significance with resulting sustained positive changes in their attitudes, moods, and behavior. One year later, the participants still reported having more openness in their lives. In 2014, a study by Dr. Griffiths 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 Dr. Matthew Johnson at Johns Hopkins, with cocaine addiction treatment by Dr. Peter Hendricks in Birmingham, Alabama. There have been successful results in psilocybin research for treatment of cluster headaches and obsessive-compulsive disorder. There have been recent extensive phase 2 clinical trials for with psilocybin in a Usona Institute research project at several locations in the United States underway for treatment of major depressive disorder.
Application of best practices and harm reduction can enhance arguments for protection of plant medicine ceremonies
Since the 2006 Gonzales v. União do Vegetal Supreme Court decision, the United States has seen other institutions seek to gain protection for religious use of psychedelics. Lawyers and academic professionals have differed in their conclusions about the extent of protection that will be forthcoming, and what type of practices would receive approval. Decisions concerning religious use of plant medicines could require something like a traditional church, with a history, a creed and liturgy, with other traditional indications of stability and integrity. Decisions could recognize a broader outlook on what is religious, permitting an individual to have one’s own practice, like the Jehovah’s Witness plaintiff in the Thomas case.
Wary courts and enforcement institutions may continue to impose rigid expectations drawn from discussions in court opinions to attempt to justify broad government power to burden or prohibit psychedelic religious practices. Previous cases have created requirements that appear to be imposed to restrict religious use of psychedelics that are not presented in the cases involving other religious practices. Past examples from court decisions create an expectation of a longstanding religious tradition, or insist that there be a uniform theology that places a sacramental psychedelic as central or indispensable, or even occupies the place of the deity. 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. 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.
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.
Religious diversity and creative, interfaith evolution and adaptability should be recognized by the courts 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 Chacruna Best Practices Guide:
Attorney Allison Hoots is the principal author of a very informative guide for plant medicine practitioners for the Chacruna Institute for Psychedelic Plant Medicines, an educational and advocacy group that supports informed and respectful practices and the traditions of the medicine guardians. of the 2021 Guide to RFRA and Best Practices for Psychedelic Plant Medicine Churches: 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 after 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 from South and Central America
Ecumenical psychedelic retreat centers have become increasingly abundant in South America, Central 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.
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. Very few of the many groups that meet in the United States affirmatively engage in litigation to establish the legality of their conduct. Being active, while not obvious or obtrusive could nevertheless establish a tradition more like the institutions that have gained protection and like the Brazilian churches that ultimately obtained protection for use of ayahuasca in that country.
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.
Administrative Factfinding, Preclusion Effect, and the Soul Quest Case
The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(c) provides: “A person whose religious exercise has been burdened in violation of [the Religious Freedom Restoration Act] may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” The Act defines “government” to include agencies, departments, officials, and persons acting under color of federal law. 42 U.S.C. § 2000bb-2(1). It prohibits federal agencies from burdening the free exercise of sincerely-held religious practices and beliefs unless the agency can show that the burden advances a compelling state interest in the least restrictive way.
A recent decision considering a claim for religious use of psychedelics as exempt from the application of the Controlled Substances Act reveals a complicated administrative barrier and process. A federal appeals court required the findings and conclusions of the Drug Enforcement Administration to be reviewed under the administrative review, giving effect to its denial of exemption, and not conducting a case-by-case review as anticipated by the Religious Freedom Restoration Act. In Soul Quest Church of Mother Earth, et. al. v. Attorney General, United States of America, et. al., Case №6:20-cv-701-WBB-DCI (11th Cir. Dec. 18, 2023), the U.S. Court of Appeals for the Eleventh Circuit, in a published opinion, denied the appeal by an ayahuasca church in Florida from the denial of a religious exemption to the Controlled Substances Act, 21 U.S.C. §§ 801–901.
Soul Quest’s Interaction with the Drug Enforcement Administration
Soul Quest Church of Mother Earth, an ayahuasca church incorporated as a nonprofit corporation, stated on an internet website that it had an exemption for its ayahuasca ceremonies under the Free Exercise Clause. The Drug Enforcement Administration sent a warning letter to Soul Quest in August 2016, and invited Soul Quest to petition for a religious-based exemption. It notified Soul Quest “that it may qualify for an exemption based on RFRA,” the Religious Freedom Restoration Act. It attached a memorandum, the 2016 version of a Religious Freedom Restoration Act agency guidance for the two-step process to balance interests that the courts are supposed to follow under the Religious Freedom Restoration Act.
The Drug Enforcement Administration has, since 2008, posted on the internet guidance for Religious Freedom Restoration Act. The guidelines stated that for a religious organization or person to show its rights to sincere religious exercise of religion were substantially burdened by government regulation, and to show entitlement to religious use of psychedelics, it had to show the nature of the religion, each practice that involves the use, manufacture, or handling of the controlled substance it will use, and the amounts, conditions, and locations of the possession, distribution, and handling.
The Eleventh Circuit focused on the fact that Soul Quest sought registration to permit use, possession, distribution, and handling of ayahuasca. (Eleventh Circuit, slip op. at 35). The Drug Enforcement Agency communications had prompted Soul Quest to file a petition for an exemption in 2017. Soul Quest submitted information to the Drug Enforcement Administration regarding the beliefs of the church, the role of ayahuasca in its ceremonies, the practices of the organization, the storage, handling, and usage practices, and the leadership structure of Soul Quest. The agency did not respond to the petition for three years, while Soul Quest continued holding regular ceremonies with ayahuasca.
Soul Quest then filed a complaint for declaratory and injunctive relief along with a motion for a preliminary injunction. The Drug Enforcement Agency then requested more information about the organization, its beliefs, the practices for safeguarding, recordkeeping, and dispensing the sacramental ayahuasca, and stated that it needed to conduct an inspection and interviews to reach its decision. The parties, in June 2020, agreed to a stay of litigation pending a final decision. After further investigation, the agency issued a letter of denial concluding that Soul Quest was not a sincere religious practice. The leadership at Soul Quest had the impression that the purpose of its investigation was to accomplish a settlement. In April 2021, however, the Drug Enforcement Administration issued an adverse decision on the application for exemption.
Denial by the Drug Enforcement Administration
The Drug Enforcement Administration took the position that it had the authority to render final determinations on petitions for religious exemptions pursuant to a memorandum of the Attorney General, “Federal Protections for Religious Liberty,” and documentation and guidance under the Controlled Substances Act.
The Drug Enforcement Administration asserted a compelling state interest in prohibiting the church’s use of ayahuasca to maintain safety and prevent diversion. The Eleventh Circuit opinion stated, “The agency concluded that the church had not met its burden under RFRA to show that its members’ beliefs were sincerely held that its use of ayahuasca was part of a religious exercise.” (Id., slip op. at 4). This placed the burden of proof on the applicant to show an exemption from the Controlled Substances Act. The agency stated that its denial was “a final determination under 21 U.S.C. § 877.” (Id.).
The denial concluded that interviews with individual leaders and attendees were inconsistent about the religious basis for serving ayahuasca, and that there were assertions of self-help and therapeutic reasons for its use. The agency found inadequate religious commitment to a coherent religious practice by participants. (Id., slip op. at 18). The Drug Enforcement Agency letter to Soul Quest identified a somewhat loose affiliation and the occurrence of isolated instances of participation to determine that it had a secular purpose. The Drug Enforcement Administration also discounted the legitimacy of Soul Quest as a legitimate religion because it had an open approach to participation. It noted that some participants may follow up periodically with ceremonies and attend integration calls held on the internet regularly, while others may attend a single weekend ceremony.
Participants were screened for medical and contraindicated medicines, but were not required to state a commitment to the church. Evidence of beneficial health effects and mental health benefits were used against Soul Quest to undermine its arguments for religious sincerity. It referred to statements “including ‘transformational coaching services’ intended to support recovery from addictions, post-traumatic stress disorder (PTSD), and other conditions” on its website, along with statements that, “[a]yahuasca is used primarily as a medicine … It is a natural remedy for depression, anxiety, posttraumatic stress, anxiety, drug addiction, and it also releases emotional blocks.” The Eleventh Circuit observed that there was evidence of a lack of safeguards from a wrongful death lawsuit alleging a delay in calling emergency personnel after an individual experienced a medical crisis after taking kambo, a bloodborne substance derived from a frog, due to excessive water consumption.
The district court noted that the agency found inconsistency among its leadership with respect to a creed or set of religious beliefs because of a varying emphasis among its leaders on a document, The Ayahuasca Manifesto. The Drug Enforcement Administration concluded that Soul Quest’s leadership described a flexible approach to spiritual belief, with non-dual understandings about the creative source and religious experience. The agency identified Soul Quest’s original affiliation with the Oklevueha Native American Church, and sourcing from an entity, Waking Herbs, which was not registered with the Drug Enforcement Administration. It also identified an issue with its corporate structure, with a for-profit entity, Soul Quest Natural Healing Center, receiving significant portions of its receipts. The Drug Enforcement Administration considered these factors to detract from Soul Quest being considered a church or entity entitled to constitutional protection.
The Appeals
Soul Quest did not pursue an appeal from the Drug Enforcement Administration’s decision within thirty days of the April 16, 2021, denial of its application. It maintained that the Religious Freedom Restoration Act mandated there be a judicial process and that it should not be forced to accept the agency decision. The Department of Justice filed a motion to dismiss. Soul Quest’s attorneys amended their complaint to assert that the process violated the Religious Freedom Restoration Act by purporting to decide important First Amendment determinations about constitutional rights that prohibited sacramental use of ayahuasca. Soul Quest challenged the legitimacy of the Drug Enforcement Administration process, making determinations about the sincerity of the staff, adherents, and participants to support the denial of exemption. The amendment was followed by a second motion to dismiss, asserting that the administrative process was preclusive and that its exclusive appeal was under the administrative procedures process to the court of appeals. The district court granted the motion to dismiss in December 2021.
There were two separate appeals. The appeal that was dispositive involved the ultimate issue whether the administrative decision required an appeal within thirty days under an administrative appeals process that entails deference to the agency’s findings. The Eleventh Circuit Court of Appeals agreed with the government’s position that the appeals court did not have jurisdiction because the appeal was late because Soul Quest had not appealed the Drug Enforcement Administration’s decision within thirty days of the denial of its application. Soul Quest instead took the position that the final decision did not take place until the March 4, 2022, order of the U.S. District Court for the Middle District of Florida, which held that it no longer had jurisdiction.
The Eleventh Circuit Decision
The U.S. Court of Appeals for the Eleventh Circuit did not recognize Soul Quest’s claim on appeal as a private right of action under the Religious Freedom Restoration Act. The court’s opinion interpreted the Drug Enforcement Administration’s process of considering the request for a religious freedom exemption, which it requested Soul Quest to pursue, as a decision under the Controlled Substances Act. Over a vigorous dissent, the Eleventh Circuit majority opinion affirmed the district court’s dismissal for lack of subject matter jurisdiction by concluding that the Drug Enforcement Administration’s April 2021 adverse decision was a resolution under the control and enforcement subchapter of the Controlled Substances Act. The majority determined there was no avenue for review because it had no subject matter jurisdiction.
The court held that the Drug Enforcement Administration’s rejection of Soul Quest’s religious-based exemption was a final administrative factfinding process. The court affirmed the district court’s conclusion that it had been a final determination of the agency under 21 U.S.C. § 877(4), which necessitated an appeal to the court of appeals, either in the Eleventh Circuit where the church was located, or in the Circuit Court of Appeals for the District of Columbia, within that thirty-day period. This conclusion in the majority’s holding left Soul Quest with no opportunity to review its claims under the Religious Freedom Restoration Act, because it had not appealed the Drug Enforcement Administration’s April 2021 letter of adverse decision on its request for exemption from the Controlled Substances Act to the court of appeals within thirty days.
The majority opinion held that Soul Quest was seeking appellate review of an agency decision under the Controlled Substances Act rather than the Religious Freedom Restoration Act, that it was out of time, and therefore there was no subject matter jurisdiction. Under the Eleventh Circuit’s view, had Soul Quest brought a timely appeal, the court of appeals, under 21 U.S.C. § 877, would have had subject matter jurisdiction, (opinion at 37), however, that would have limited Soul Quest only a “right to judicial review” for the appeals court to determine whether the Drug Enforcement Administration, as the designee of the attorney general, made findings of fact that were supported by substantial evidence. See, 21 U.S.C. § 877.
The majority regarded the agency’s findings under the Religious Freedom Restoration Act to be part of a two-part process, with a petition for exemption, which, if granted, would allow it to apply for a certificate of registration, and that these were bound up under the Controlled Substances Act. The opinion took the constitutional protection issue away from judicial determination, and viewed invoking the petition for religious-based exemption process left Soul Quest limited to agency factfinding to be reviewed under a deferential standard of court review, with the agency findings being deemed to be conclusive if supported by substantial evidence. However, the court of appeals concluded that this appeal of a final agency decision was not appealed in time.
Soul Quest sought appellate review of the substantive conclusions that it did not demonstrate a substantial burden on sincere religious beliefs to support ayahuasca’s sacramental role and the Drug Enforcement Administration’s separate conclusion that even if it had done so, prohibition under the Controlled Substances Act was the least restrictive means of furthering compelling state interests in public safety and preventing diversion of ayahuasca to others. Soul Quest argued that the Drug Enforcement Administration’s decision was under the Religious Freedom Restoration Act, that the agency did not have authority under the Controlled Substances Act to adjudicate rights to religious exemptions, and that it was entitled to judicial considerations of the religious exemption claim.
Although Soul Quest challenged the agency’s lack of rulemaking authority, the challenge was not raised in the district court, and was deemed to be waived. (Opinion at 38–39, n. 4). Soul Quest had attempted to raise constitutional objections before the district court after the denial of its petition for exemption, but the appeals court stated that it deemed these to be an impermissible collateral challenge to an agency order. (Id. at 37).
The dissent argued that the petition was determined under the Religious Freedom Restoration Act and was subject to full review. The dissent concluded that the agency’s denial had nothing to do with registration, which was for industrial, scientific, and medical purposes under 21 U.S.C. § 823 (b). It stated that the denial of the petition for exemption had nothing to do with the Controlled Substances Act, and everything to do with the Religious Freedom Restoration Act, which provides the sole basis for exemption. (Dissenting opinion at 18).
Soul Quest argued that the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 requires exclusive review of religious exemption claims in a “judicial proceeding,” and it challenged the agency’s authority to adjudicate religious freedom claims. (Id., slip op. at 23). It stressed that the agency had not complied with the notice and public comments prerequisites necessary for rulemaking authority. Soul Quest contended that the Drug Enforcement Administration review process was void of substance and that it made conclusory decisions to reject the application for exemption from the Controlled Substances Act when it had endeavored to satisfy everything that the agency had required.
Soul Quest stressed, and the Eleventh Circuit agreed, that the Controlled Substances Act, 21 U.S.C. § 801 et seq., does not have provisions about religious exemptions, and it did not specifically authorize the Drug Enforcement Administration to perform a legal analysis under the Religious Freedom Restoration Act and make final determinations. The Religious Freedom Restoration Act anticipates judicial decisions about whether there is a compelling governmental interest sufficient to justify a substantial burden on religion, and whether that interest is furthered in the least restrictive means available to do so. (Id., slip op. at 31).
The court of appeals rejected Soul Quest’s argument that the Religious Freedom Restoration Act overrides the presumed authority of the Drug Enforcement Administration to make the critical decisions involving the freedom of religion. The court of appeals held that the power to issue exemptions needed to be reconciled with the duty to strike balances on a case-by-case basis, and that the constitutional inquiry was “inescapably intertwined with” the control and enforcement determinations under the Controlled Substances Act. (Id., slip op. at 6, 24). The denial of an exemption, the court held, precluded Soul Quest from applying for registration for exemption. (Id., slip op. at 27).
The court of appeals held that it did not have jurisdiction, stating, “Soul Quest did not seek a waiver of any provision. Therefore, Soul Quest’s only avenue for lawfully handling ayahuasca was registration via the petition for a religious exemption.” (Id., slip op. at 27). Seeking a certificate of registration was required by the Drug Enforcement Administration to import, manufacture, and handle ayahuasca, and the denial constituted a decision under the Controlled Substances Act. (Id., slip op. at 27, 32). The dissent emphasized that the various contacts demonstrated that the agency was undertaking to make decisions under the Religious Freedom Restoration Act.
The court seemed eager to defer to the agency and involve it in decision making, and reached conclusions that increased the powers and the role of the agency. There are some challenging facts that played a role in the adverse decision in this case and the determination that Soul Quest did not establish a substantial burden on sincere religious beliefs. The church has many aspects of a retreat center like the many ecumenical retreat centers in South America, and it has served people from all religious traditions. The opinion of the Eleventh Circuit could have an unfortunate impact the future of ayahuasca and plant medicine access in ceremonial settings if the expansion of the powers of the Drug Enforcement Administration is perpetuated in later cases.
Soul Quest’s agreement to apply to the Drug Enforcement Administration for the religious exemption to the Controlled Substances Act placed it in within a skeptical and complex regulatory scheme. The agency took on the role of investigator and factfinder, to make the delicate balancing inquiries anticipated by the Free Exercise of Religion Clause and intended for the courts under the Religious Freedom Restoration Act. The process developed into an implicit exhaustion of administrative remedies process that after a three-year delay, concluded with administrative findings deemed a final agency decision. The Eleventh Circuit’s majority opinion did not appear concerned with Soul Quest’s argument the process was further compromised by the absence of authority to make such weighty legality decisions because it has not adopted rules and regulations for its enforcement powers to make decisions protected by the Religious Freedom Restoration Act.
Arizona Litigation Concerning Religious Use of Ayahuasca
In March 2023, U.S. District Court Judge Susan Bolton allowed a claim by the Church of the Eagle and the Condor in Phoenix to move forward, rejecting the Drug Enforcement Administration’s motion to dismiss the case. The court upheld the claim under the Religious Freedom Restoration Act and declined the government defendants’ motion for a stay. The case is set for trial.
A Freedom of Information Act (FOIA) request in the Church of the Eagle and Condor, revealed the Drug Enforcement Administration’s resistance to recognizing positive benefits of ayahuasca. The recent revelation in the Freedom of Information Act action by Chacruna Institute for Psychedelic Plant Medicines and others that showed that the Drug Enforcement Administration basically declines to recognize religious protection for ayahuasca seems to elucidate the folly of bestowing that kind of authority on the agency. The Drug Enforcement Administration’s risk assessment was obtained in Freedom of Information Act litigation and it was revealed to be not amenable to recognizing ayahuasca as valid for ceremonial usage regardless of measures for harm reduction and prevention of diversion.
The Drug Enforcement Administration presents an online exemption application under the Religious Freedom Restoration Act for ayahuasca churches, but it is vague, leads to routine denials, and is not a good approach for seeking to enforce First Amendment rights. The D.E.A. has a particularly restrictive approach and views ayahuasca as unsafe.
Attorneys are well advised to foster transparency by regulatory authorities by submitting requests under state and federal Freedom of Information Act laws. The Freedom of Information Act (FOIA) system is not always effective or functional, but FOIA requests require little effort and lawyers can gain much from such requests. There is no cost to make them and requests can be submitted online. They can be narrowly tailored to specific information, which can speed the time for response.
The Arizona Yagé Assembly, the North American Association of Visionary Churches, the Vine of Light Church in Phoenix and other ayahuasca churches and individual leaders, along with their founder and director, Scott Stanley, filed suit against federal agencies in 2020. The churches challenged seizures of their ayahuasca. They also sought constitutional protection for ayahuasca religious ceremonies and protection of the right to import their sacramental plant medicine from Peru. They did not file administrative applications for exemption with the Drug Enforcement Administration. They argued that that agency does not grant exemptions unless required to do so by the courts and that it had continuously refused to recognize an exemption for religious use of ayahuasca, viewing it as being completely prohibited by the Controlled Substances Act. Instead, they proceeded to court and named the agency among other defendants.
After a March 2022 order dismissing most of the claims, the plaintiffs filed an amended complaint. On May 4, 2023, U.S. District Court Judge Roslyn Silver ruled that the case can move forward to a determination of their legal rights. Charles Carreon, general counsel for the North American Association of Visionary Churches and the attorney for Arizona Yage Assembly, has urged other entheogenic churches to follow suit and bring similar litigation.
An Overview of Church of the Celestial Heart v. Garland, (E.D. Cal. January 9, 2024)
The Religious Freedom Restoration Act appears to give the courts the authority to perform the delicate balancing of interests, with formal proof standards. The act of pursuing an administrative exemption with the Drug Enforcement Administration has led some courts to find that the agency becomes the authority to make freedom of religion decisions, and that its findings are subject to limited review. Recent court decisions have shown that the courts are receiving pressure to shift factfinding determinations under the Religious Freedom Restoration Act to the Drug Enforcement Administration.
On January 9, 2024, attorneys Jack Silver and Sean McAllister, representing an ayahuasca church in California called Church of the Celestial Heart, succeeded in defending a motion to dismiss filed by government defendants that sought to limit the church and its leaders to decision making by the Drug Enforcement Administration. The federal district court ruled that the federal government was not entitled to require parties to pursue redress in the Drug Enforcement Administration’s administrative system. The court rejected the agency’s claim that it should exercise the power to perform the balancing-of-interests analysis under the Religious Freedom Restoration Act, rather than the courts.
In Church of the Celestial Heart v. Garland, a U.S. magistrate judge in California denied a federal government motion to dismiss a complaint by an ayahuasca church called Church of the Celestial Heart. The suit challenged the seizure, on August 13, 2021, of a shipment of its ayahuasca by the Department of Homeland Security, which was presumably destroyed. It alleged that this was followed by contacting the local county sheriff, which conducted an online investigation. This led to local authorities arresting and filing charges for violation of California law against Jade Osborne that year, and she was held until she posted bond. The suit alleged that these enforcement actions had been undertaken without researching whether they were importing the ayahuasca for religious purposes. (Opinion at 4).
The lawsuit was filed in April 2023, and named the attorney general and other federal officials, the administrator of the Drug Enforcement Agency, the Secretary of the Department of Homeland Security, and the Secretary of Customs and Border Patrol. The suit alleged a chilling effect from the parties’ fear of persecution for exercising their religious beliefs. The parties brought their complaint under Religious Freedom Restoration Act 42 U.S.C. §§ 2000bb-1(c) and 2000bb (4), for declaratory and injunctive relief, asserting the right to freely exercise their religion using an ayahuasca sacrament.
The Religious Freedom Restoration Act precludes the federal government from substantially burdening a person’s exercise of religion unless it shows that the burden is in furtherance of a compelling state interest and is the least restrictive means of furthering that compelling state interest. 42 U.S.C. §§ 2000bb-1(a) and (b). Id. at 9 (citing Holt v. Hobbs, 574 U.S. 352, 357 (2015)).
The Claims for Relief
The court in Church of the Celestial Heart v. Garland addressed complex challenges to the standing of the church and the plaintiffs, its lead pastor, or padrinho, Kai Karrel, Jade Osborne, the church pastor’s wife who also was a lead pastor or madrinha, Daniel Pozas, a member, board representative, and lead guardian, and Sara Mintzer, a practicing healer who was initiated in 2022. The court considered the sufficiency of the allegations to state a justiciable case, accepting the allegations as true for purposes, the standard for considering the motion to rule on whether the parties had standing and a viable cause of action.
The Church of the Celestial Heart is an independent ayahuasca church inspired by Santo Daime, but with teachings from more than a single tradition. It was intended to be open to English-speaking participants. Padrinho Kai Karrel had had a spiritist background. He had studied in the line of Barquinha, and was initiated in that Brazilian ayahuasca tradition. Madrinha Jade Osborne had been a member for five years. The church and individual plaintiffs alleged that partaking of Daime or ayahuasca is an essential and basic part of their faith, a foundational sacrament. (Opinion at 3). They shared tenets that they were part of an ancient tradition dating back 2000 years, that the drink was sacred divine sacrament, that it contained and embodied the spirit of Mother Earth, and that it allowed them to have communion with astral spirits and reconnect with the Great Spirit.
The Church of the Celestial Heart plaintiffs alleged that threats of civil and criminal penalties were an impermissible burden on their freedom of religion. The plaintiffs claimed that the threat of enforcement impinged their freedom to have access to an essential sacrament. They alleged that these actions violated the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-1(a), providing the federal government shall not substantially burden a person’s exercise of religion unless it shows the burden is in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that compelling interest. (Opinion at 9) (citing Holt v. Hobbs, 574 U.S. 352 357 (2015)).
A Department of Homeland Security agent, Jim Johnson, had contacted officials with the Tulare County Sheriff’s Department to inform them about the seizure of the package and that it contained ayahuasca. (Opinion at 4 and 23, n. 4). The complaint alleged that such enforcement actions and seizure were part of a pattern or strategy by Customs and Border Patrol, a subdivision of the Department of Homeland Security, to inhibit access and practice of ayahuasca religion. The plaintiffs alleged that there had been a part of a pattern of incidents with such seizures of plant medicine followed by collaboration with local law enforcements, and investigations, arrests, and prosecutions under state law. The suit alleged that this had been continuing since 2000, with encounters in Arizona, California, Florida, Michigan, New Mexico, New York, Oregon, Tennessee, and Texas. (Opinion at 5).
The plaintiffs stated that the church will continue to follow its tenets and not be coerced to abandon their beliefs; that it will continue to import, possess, and partake of its sacrament. (Opinion at 5–6).
The Government’s Motions to Dismiss
On July 17, 2023, the federal government defendants filed a motion to dismiss, and the case was referred to the magistrate. The federal government moved to dismiss under Rule 12 (b)(1), of the Federal Rules of Civil Procedure, asserting that the plaintiffs did not have standing, that there was not an actual case or controversy on which to base remedial action by the court, absence of jurisdiction. The defendants also filed a motion to dismiss the complaint under Rule 12(b)(6), for failure to state a claim upon which relief may be granted. The standard under Rule 12(b)(6) requires that the party defending the motion must plead enough facts to state a claim that is plausible on its face, with sufficient allegations of facts to give notice and plausibly suggest an entitlement to relief. (Opinion at 8–9 (citations omitted).
The federal government asserted that the plaintiffs, an ayahuasca church and its leaders, did not have standing because the seizure was done by parties not named in the lawsuit and the prosecution, which had not been further pursued, was undertaken by local county officials. The court discussed the law of standing, stating that it is like the issue of ripeness — inquiring whether there is a harm matured sufficiently to warrant judicial intervention, and there is a definite and concrete case or controversy.
The government asserted that it had never prosecuted the plaintiff church leaders for using ayahuasca, or threatened to do so. The court stated that in a pre-enforcement claim with no actual complaint, seizure, or other enforcement measure, the plaintiffs would have to allege a genuine threat of imminent persecution. The Church of the Celestial Heart court cited a pre-enforcement case, Thomas v. Anchorage Equal Rights Commission case, the court had required a showing of: 1) an injury in fact that was actual or imminent; 2) a causal connection between the conduct of the defendant and the injury to the plaintiff; and 3) it must be likely and not speculative that the claimant would obtain redress.
The government defendants in the Church of the Celestial Heart v. Garland case argued that the prospect of actual prosecution was unlikely, stating that there was no allegation of previous prosecutions for consuming ayahuasca, while the complaint alleged that “religious adherents have been consuming ayahuasca in the United States for the last fifty years.” (Order at 17). They argued that a single incident of past harm does not support standing for prospective relief, particularly an injunction to address threats of future harm. Id. The court held that the plaintiffs had sufficiently alleged injury, “both financially and spiritually, resulting from the loss of their sacrament and because of Defendants’ continued denial of Plaintiffs’ right to obtain, possess, and use it; and without their sacrament, Plaintiffs cannot practice their religion and Celestial Heart cannot perform essential services.” (Opinion at 17–18).
Sufficiency of Allegations Based on Past Enforcement
The court relied on a prior Ninth Circuit case, Oklevueha Native American Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 834 (9th Cir. 2012) (Oklevueha I), to hold that the seizure of ayahuasca by federal actors was actual enforcement action. This was a critical factor in favor of its conclusion that there was standing. (Opinion at 18, 20). It noted, however, that in Oklevueha I, the court had proceeded to perform an analysis of the pre-enforcement criteria.
The magistrate noted that prosecutorial discretion does not allow threatened prosecutions that create a chilling effect on constitutional rights. (Opinion at 11). When a plaintiff has alleged the intention to engage in conduct that is arguably constitutionally protected, and it is proscribed and subject to a credible threat of prosecution, the court held, one should not be required to await and undergo a criminal prosecution in order to seek relief. (Opinion at 14) (citing Oklevueha I, 676 F.3d 829, 835 (9th Cir. 2012).
The Church of the Celestial Heart v. Garland court discussed several other recent cases in support of its holding that the pleadings supported the plaintiffs’ standing and stated a claim upon which relief can be granted, but it held that Oklevueha I was the most pertinent and instructive case with respect to the standing issue. In Oklevueha I, the Ninth Circuit held that the Oklevueha Native American Church of Hawaii had standing to seek a legal remedy under the Religious Freedom Restoration Act when its ceremonial cannabis had been seized by federal authorities. In that case, the district court had considered principles favoring standing in a pre-enforcement context, including the likelihood of future prosecution. (Opinion at 17–18).
Holding that the actual enforcement action was sufficient of itself, the Ninth Circuit held that the district court’s focus on future prosecution was unnecessary, stating that claims are ripe due to the enforcement and seizure that already had taken place, and that a definite and concrete dispute about the lawfulness was present. (Opinion at 20–21) (citing Oklevueha I, 676 F.3d at 836–37). Because the church had been subject to enforcement of the Controlled Substances Act by the federal defendants, by seizing cannabis that was part of its sacramental practice, it had not been necessary for the Oklevueha Native American Church of Hawaii to show a danger of injury or a history of enforcement of the Controlled Substances Act. (Opinion at 21) (citing Oklevueha I, 676 F.3d at 836–37). Thus, a definite and concrete dispute about the lawfulness was before the court and the claims were ripe due to the seizure that already had occurred. (Opinion at 21). A nonspeculative case and controversy existed regarding the right to possess and consume ayahuasca for religious reasons.
Analysis Based on Pre-Enforcement Standards for Standing
The Church of the Celestial Heart court stated that in a pre-enforcement claim with no actual complaint, seizure, or other enforcement measure, the plaintiffs would have to allege a genuine threat of imminent persecution. (Opinion at 20) (citing Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1139 (9th Cir. 2000). The Church of the Celestial Heart court observed that in the Thomas case, because no enforcement action had occurred, the court had required allegations to show a genuine threat of prosecution and consideration of the three factors. (Church of the Celestial Heart opinion at 20) (citing Thomas v. Anchorage Equal Rights Commission, 220 F.3d at 1139).
Although it had found sufficient allegations to find standing based on actual enforcement action, it proceeded to examine the criteria for standing in the pre-enforcement context. The court observed that in the pre-enforcement context, for there to be an actual or imminent injury to support standing, there must be sufficient allegations to show a causal connection between the conduct and the injury, and that it must be likely and not speculative that the claimant will obtain redress. The court noted that the Oklevueha Native American Church of Hawaii court had found standing when there was enforcement activity, the seizure of marijuana intended for sacramental purposes, but nevertheless proceeded to consider the pre-enforcement criteria under the Thomas standards. Oklevueha I, 676 F.3d at 833–34, 836–37. To find a definite and concrete case or controversy that will afford standing to a party, the complaint had to identify a harm that advanced to a level to warrant judicial intervention. Oklevueha I, 676 F.3d at 835 (quotation omitted).
The district court in Church of the Celestial Heart v. Garland held that in pre-enforcement cases, the court would need to find allegations sufficient to show a genuine threat of imminent prosecution, with three elements for inquiry: 1) did the plaintiffs articulate a concrete plan to violate the law? 2) Did the government give a specific warning or threat to initiate proceedings? 3) was there a history of past prosecution or enforcement? (Opinion at 14) (citing Oklevueha I, 676 F.3d at 835 (quoting Thomas, 220 F.3d at 1139)).
The government defendants did not dispute the allegation that the plaintiffs had a specific plan to participate in the conduct that the Drug Enforcement Administration considered to be in violation of the Controlled Substances Ac. (Opinion at 15). In Oklevueha I, the court did not have allegations of the government warning or threatening to initiate proceedings, but alleged that the controlled substance was a sacrament that was seized, and the plaintiffs feared for their ability to cultivate, consume, or possess the marijuana for religious purposes. Oklevueha I, 676 F.3d at 833. The district court upheld the claim for return and compensation under the Religious Freedom Restoration Act, but denied the pre-enforcement claims for ripeness. The Ninth Circuit had reversed the dismissal of the institutional plaintiff claims and the claims for prospective relief. It held that the district court’s requirement of allegations to support threat of future prosecution was not appropriate because injurious enforcement had already occurred. It was not necessary to show danger of injury or a history of past prosecution or enforcement when the Controlled Substances Act already was enforced against the plaintiffs. Oklevueha I, 676 F.3d at 836–37. The district court in Church of the Celestial Heart held that the allegations supported a “nonspeculative” case and controversy affecting the plaintiffs’ right to possess and consume ayahuasca for religious reasons. (Opinion at 22).
The government defendants disputed that there was a sufficient allegation of a threat of imminent prosecution. The motion to dismiss disputed that the federal defendants had “communicated a specific warning or threat to initiate proceedings.” The magistrate judge held that the plaintiffs made sufficient allegation that there was a genuine threat of imminent prosecution, and that the prosecution and enforcement activities, the seizure, and the threat of general enforcement were “fairly traceable” to the named federal officials. (Opinion at 25, 30). The opinion noted that the Celestial Heart Church was a nonprofit corporation, and had been a legal entity, as an unincorporated nonprofit before the seizure in August 2021.
The Church of the Celestial Heart v. Garland court discussed two decisions in the case of plaintiffs in churches in Arizona who alleged federal government actors seized shipments of ayahuasca from Peru that were intended for religious ceremonies, Arizona Yagé Assembly v. Garland, 595 F. Supp. 3d 869 (D. Ariz. 2022) (AYA v. Garland I); and Arizona Yagé Assembly v. Garland, 2023 WL 3246927, (D. Ariz. May 4, 2023) (“AYA v. Garland II”). In AYA v. Garland I, the court had dismissed the plaintiffs’ claims under the Religious Freedom Restoration Act.
In AYA v. Garland I, the court held, “Although Federal Defendants have seized Plaintiffs’ ayahuasca in the past, the Court characterizes the injunction Plaintiffs seek as a pre-enforcement injunction because the Oklevueha I court did so in a factually analogous situation.” 595 F. Supp.3d 869, 882 n. 11, (citing Oklevueha I, 676 F.3d at 835). There was a delay pending the Supreme Court’s decision in Tanzin v. Tanvir, __ U.S. ___, 141 S.Ct. 486, 208 L.Ed.2d 295 (2020), which held that money damages are available under the Religious Freedom Restoration Act against federal officials sued in their individual capacities. AYA v. Garland I, 595 F. Supp. 3d at 876.
Following a series of amendments to the complaint and motions to dismiss, the court in AYA v. Garland II held that the fifth amended complaint’s allegations that the plaintiff Arizona Yage Assembly was holding meetings bi-monthly and planned to do so for the foreseeable future, were “sufficient, taken as true, to allege a concrete plan” to violate the Controlled Substances Act.” (AYA v. Garland II). The court in AYA v. Garland II also held that allegations against the Drug Enforcement Agency were sufficient to state a claim for relief because the Controlled Substances Act was enforced by different agencies of the federal government. The agencies’ actions were intertwined, the court held; the Drug Enforcement Agency would enforce the law by granting or denying permits to import controlled substances, without which the Customs and Border Patrol or Department of Homeland Security, or both, would seize packages and that the agency defendants could not avoid accountability for enforcing the law by claiming to enforce only one segment of it. AYA v. Garland II, 2023 WL 3246927, at *3.
The Church of the Celestial Heart v. Garland court held that the seizure was “fairly traceable” to the challenged actions of the defendants for purposed of the motion to dismiss. (Opinion at 25). It observed that the Controlled Substances Act operates through multiple agencies, and that it had been enforced against the plaintiffs even without a prosecution.
The court observed that the Celestial Heart plaintiffs alleged that ayahuasca is an essential sacrament for each of them, needed for their practice of their religion, and that there was a threat of coercion from the arrest of one of its leaders. (Opinion at 34). The church alleged financial and spiritual loss from confiscation and destruction of its sacramental ayahuasca, and that it placed a burden on the church, placing tension between following the tenets of the religion and the pressure from facing the prospect of civil and criminal penalties. (Opinion at 34). The church sought prospective relief that would benefit its members. The court found sufficient allegations to support organizational standing, noting that in Oklevueha I, the court upheld organizational standing based on the allegations that the members used marijuana as a regular, that it was the sole purpose of the organization, and that it was seeking relief to protect the members’ ability to observe an integral part of their religious practice.
Plaintiffs Stated Claims Upon Which Relief Could be Granted for Violations of the Religious Freedom Restoration Act, and They Were Not Required to Exhaustion of Administrative Remedies to Address the Alleged Violations
The court held that having alleged a sincere religious practice employing ayahuasca sacramentally which was substantially burdened by application of the Controlled Substances Act the plaintiffs sufficiently alleged a prima facie case of violation of their religious liberty protection under the Religious Freedom Restoration Act. (Opinion at 36). There was a substantial burden from having to choose between following the tenets of their faith and facing coercive consequences. (Opinion at 37).
The federal government also moved the court for a stay to require the plaintiffs to seek a religious exemption in an administrative proceeding with the Drug Enforcement Administration. (Opinion at 9). The Drug Enforcement Administration urged the court to require administrative factfinding as a prerequisite to court adjudication of these claims, and in the alternative requested the court to exercise its discretion to allow the agency to balance public safety and diversion concerns with the religious liberty interests. The defendants contended that the agency had the expertise to make findings and investigate the governmental interests.
The government argued that the agency should have the prerogative, in the first instance, to examine the religious freedom claims, perform the appropriate balancing of interests to decide whether public safety interests outweigh the burden on religious practices, prepare a record, and maintain an independent administrative system for churches seeking redress. It urged the court to decline review until after the plaintiffs had sought an exemption to give the Drug Enforcement Administration the opportunity in the first instance to evaluate their eligibility for a religious exemption from application of the Controlled Substances Act. (Opinion at 30–31).
After the decision in Gonzales v. O Centro Espirita Beneficiente União do Vegetal, 546 U.S. 418 (2006), the Drug Enforcement Administration developed a separate religious exemption process. (Opinion at 12). Then it offered an on-line guidance first issued in 2009, and which was updated in 2020. It is titled, the Drug Enforcement Administration Diversion Control Division, Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act Pursuant to the Religious Freedom Restoration Act. The factors include the risk of harm, the adequacy of safeguards to address concerns about diversion.
The court observed that the Drug Enforcement Administration had been delegated authority under the Controlled Substances Act to register applicants to import, distribute, and dispense Schedule I controlled substances when consistent with the public interest. 21 U.S.C. § 823(b); 21 C.F.R.§ 1301.31 (giving the authority of the attorney general to the Drug Enforcement Administration). The federal government defendants argued that registration is required for each importation and to handle a controlled substance for religious purposes to assure safety. (Opinion at 12). The government sought very specific information regarding the acquisition, use, possession, and storage of ayahuasca by the Church of the Celestial Heart. It proposed to address each alleged religious practice.
The court held that the Religious Freedom Restoration Act provides that a person “burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. 42 U.S.C. §§ 2000bb-1(c). The claim or defense protects against federal government agencies from substantially burdening a person’s exercise of religion unless it shows that the burden is in furtherance of a compelling state interest and is the least restrictive means of furthering that compelling state interest. 42 U.S.C. §§ 2000bb-1(b). Opinion at 36). A cause of action would not be dismissed simply because the religious practices with ayahuasca were ongoing, when there were enforcement actions including arrest and seizure due to the actions of the federal defendants.
The defendants asserted that the complaint did not allege a claim upon which relief could be granted because it had an avenue to pursue through the Drug Enforcement Administration’s religious exemption process. They argued that the failure to apply for an exemption compromised their claims and that they should be required to allege that the administrative process burdened a sincere exercise of religion. The court noted that the plaintiffs were not challenging the exemption system, but alleged that they should not be required “to endure the DEA’s significantly more restrictive exemption process,” as well as the confiscation and prohibition of their conduct. (Opinion at 25). The court found that the plaintiffs were not required to address burdens of an administrative process when the allegations showed burdens on their religious practices including the government’s prohibition of ayahuasca as a sacrament. (Opinion at 41). to consider the risks of harm when considered with the organization’s proposed safeguards.
The court relied on several cases, including Oklevueha I — Oklevueha Native American Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 838 (9th Cir. 2012); and AYA v. Garland II — Arizona Yage Assembly v. Garland, 2023 WL 3246927, (D. Ariz. May 4, 2023), to support its rejection of the argument. In Oklevueha I, the court declined the invitation “to read an exhaustion requirement into RFRA where the statute contains no such condition, …and the Supreme Court has not imposed one.” The Oklevueha I court had noted that the Supreme Court had not required pursuing an exemption from the agency in the O Centro case. It also stressed that the Religious Freedom Restoration Act plainly contemplates that courts would recognize exceptions to the Controlled Substances Act.
The court noted that the AYA v. Garland II and other courts, including Church of the Eagle & the Condor v. Garland, №2:22-cv-1004-SRB, at 6 n. 4 (D. Ariz. June 9, 2022), had rejected similar arguments that plaintiffs had to seek and exemption under the Guidance. (Opinion at 31). The court distinguished the decision in Soul Quest where the plaintiffs pursued the Drug Enforcement directed the ayahuasca church plaintiffs to petition for a religious exemption from the Controlled Substances Act and they had done so, and their petition was denied.
The plaintiffs stressed that two courts had granted relief under the Religious Freedom Restoration Act: the Supreme Court’s 2006 decision in O Centro, and the United States District Court in Church of the Holy Light of the Queen v. Mukasey, 615 F. Supp. 2d 1210,
1219 (D. Or. 2009), vacated sub nom. Church of Holy Light of Queen v. Holder, 443 F. App’x
302 (9th Cir. 2011) (to limit scope of injunction).
The court stated that agency consideration was not necessary to generate a record and to reach a proper decision. (Opinion at 45). The court also relied on cases holding that congressional intent to require exhaustion of administrative remedies is necessary to require exhaustion of administrative remedies.
The court declined the defendants’ request for a stay to allow for the plaintiffs to engage with the administrative process. They argued that the court had discretion to stay proceedings for agency findings even where exhaustion of remedies was not required under the law, citing McCarthy v. Madigan, 503 U.S. 140, 144 (1992). (Opinion at 44). The court stated that it did not view the Drug Enforcement Administration Guidance document “as a significant administrative scheme in the overall context. (Opinion at 45). It relied on language in the Religious Freedom Restoration Act places decision making responsibility in the courts, as well as the decision in Oklevueha I, as particularly instructive. The court agreed with the argument of the plaintiffs that government agencies should not be allowed to regulate religion or other fundamental rights, or “chaos would inevitably ensue.” (Opinion at 46) (quoting opposition memorandum).
The court held that if it were to require the plaintiffs to proceed before the Drug Enforcement Administration’s administrative process as the government was urging, by pursuing an application for an exemption from the Controlled Substances Act, the church would lose the option to have preliminary relief. (Opinion at 47). It could be restricted in holding its ceremonies because parties seeking religious exemptions were precluded by law from using prohibited substances, like ayahuasca, until they obtain an exemption and proceed with registration.
The court held that the Drug Enforcement Administration exemption process may preclude claimants from that form of protection available in court under the Religious Freedom Restoration Act. (Opinion at 46–47) (citing DEA Guidance at 2: “Activity Prohibited Until Final Determination. No petitioner may engage in any activity prohibited under the Controlled Substances Act or its regulations unless the petition has been granted and the petitioner has applied for and received a DEA Certificate of Registration.”). The court also observed that the guidance allows the agency to suspend or revoke protection by suspension or revocation, “without detailed separate guidelines or specific protections except for aversion to general principles.” (Opinion at 47).
The Iowaska Church of Healing case
The Religious Freedom Restoration Act often is being applied or administered in the first instance by the Drug Enforcement Administration. In many cases, it has been positioned as being a prerequisite for exhaustion of administrative remedies with preclusive factfinding. However, there are no agency rules to guide its review and determinations, creating challenges for accountability and fair treatment of the communities seeking responsible and fruitful access to entheogens or plant medicines.
The role of the Drug Enforcement Administration in insinuating itself into controversies involving religious protection, when it has not adopted rules and has taken a prohibitionist approach, is a serious impediment to legitimate protection for religious use of psychedelics. The costs and burdens of litigation impose a harsh barrier to protections available through judicial review. Certain branches of Santo Damie and União do Vegetal have achieved legal protection, and there was a settlement that permitted the Church of the Holy Light of the Queen in Oregon, but there remains strenuous opposition from the Drug Enforcement Administration. Ecumenical psychedelic retreat centers are becoming more and more abundant in South America and around the world. Some are affiliated with indigenous traditions that are very different from the outlook and ideas that are familiar to Americans and comfortable for them. Very few of the many groups that meet in the United States affirmatively engage in litigation to establish the legality of their conduct.
In Iowaska Church of Healing v. United States, the church, a nonprofit religious corporation organized under the laws of Iowa, brought a federal lawsuit after the Internal Revenue Service denied its application for tax exempt status. The Iowaska Church filed a Form 1013 application for tax exemption on January 10, 2019, and applied for a religious exemption from the Controlled Substances Act that same year with the Drug Enforcement Administration.
The U.S. District Court for the District of Columbia issued a restrictive opinion on March 31, 2023, which is on appeal. The Iowaska district court considered the claim that the denial of its tax-exempt status infringed its rights under the Religious Freedom Restoration Act, and dismissed the case based on a perceived lack of standing, holding that the absence of an exemption left it without the requisite legal status.
The Iowaska Church had about twenty members and was led by designated healers. One of its tenets stated that ayahuasca was a sacrament that offered spiritual growth, although it had discontinued using ayahuasca while its application with the Drug Enforcement Administration was pending. There was a $ 333 charge per ceremony fee in 2019, and the church had a $ 60 membership fee. There was evidence that the services involved prayers, music, singing, reflections, and readings from the Ayahuasca Manifesto and The Universal Laws of Respect.
The church had waited two years for a Drug Enforcement Administration decision on its exemption from the Controlled Substances Act without a response. The Drug Enforcement Administration had not acted on the application, and the Internal Revenue Service had issued a proposed adverse determination letter finding the Iowaska Church to be disqualified under 26 U.S.C. § 501 ©(3). The parties filed cross-motions for summary judgment in the U.S. District Court for the District of Columbia.
The decision in Iowaska Church of Healing held that the absence of an exemption from the Controlled Substances Act that legalizes the primary or substantial purpose of the organization established a failure to meet the organizational test. The district court in Iowaska Church of Healing found that the injury, the burden on the religious practice, was not traceable to the denial by the Internal Revenue Service but to the inaction of the Drug Enforcement Administration. The court reasoned that a substantial part of the church’s activities were not activities done in furtherance of an exempt purpose because consuming ayahuasca was a substantial non-exempt purpose. On page 8, the court held: “Absent a CSA [Controlled Substances Act] exemption, plaintiff’s primary activities therefor amount to the illegal distribution and promotion of a controlled substance, a non-exempt purpose.”
The court stressed that courts strictly construe tax exemption claims and applications and that under the statute, organizations must be organized and operate for tax-exempt purposes, namely religious purposes, and that no earnings can be derived by an individual or shareholder, no attempts to influence legislation or participate in political campaigns, and its exemption-related activities must not violate public policy. The court also held that the church lacked standing because the injury was not traceable to the denial by the Internal Revenue Service but to the inaction of the Drug Enforcement Administration.
An amicus brief was filed in the Iowaska Church of Healing case by Matt Zorn, Rebecca Lee Whiting, and Allison Hoots, on behalf of by Chacruna Institute for Psychedelic Plant Medicines and the Sacred Plant Alliance, which challenged the necessity of invoking the Drug Enforcement Administration’s administrative process for deciding exemptions from the Controlled Substances Act, and the potential preclusive effect of that process in later court adjudications. It reveals convincingly that the procedurally and substantively complex process is inadequate under the Religious Freedom Restoration Act. The denial of tax-exempt status by the Internal Revenue Service due to the Drug Enforcement Administration’s failure to review its request for exemptions from the Controlled Substances Act for religious use of psychedelics clearly fails to recognize and protect religious conduct like a judicial proceeding would.
Even if there were authority for the Drug Enforcement Administration to assume responsibility for reviewing exemption claims under RFRA, it must follow rules to exercise this authority. There is a statute that gives the U.S. attorney general authority to come up with rules, which a court could apply to decisions under RFRA. Rulemaking requires notice and comments from the public and interested parties, and that addressing comments would provide visibility. The amicus brief points out that the Drug Enforcement Administration has, since 2008, posted guidance for Religious Freedom Restoration Act applications for exemption, purporting to have a formal role in making these exemption decisions. It has, however, resisted passage of actual rules for implementation. When a proposal for rules went to the Office of Management and Budget, the OMB identified a fiscal impact that apparently was substantial, and the DEA never followed through with rulemaking.
The Drug Enforcement Administration is likely to have a continuing role in reviewing Religious Freedom Restoration Act applications for Controlled Substances Act exemptions, even though it is reluctant and seems to resist taking on responsibility for deciding religious liberty matters. Nevertheless, the courts appear willing, if not anxious, to find ways to shift responsibility to the DEA in the first instance to decide religious liberty questions. Courts would need to present themselves at the correct forum as an alternative, and accept this responsibility and exert the power to make these decisions.
While religious communities are not an enforcement priority of the Drug Enforcement Administration, the courts and the Drug Enforcement Administration seem to desire traditions with recognizable congregations, traditions, leadership structures, and belief systems. This can be challenging for entheogenic churches to demonstrate, but it could be helpful to build traditions during this period of relatively little enforcement. The DEA may wish to avoid lawsuits. A high volume of lawsuits, attorneys can bring a sense of urgency and pressure the agency to create rules that are more amenable to allowing psychedelics in religious settings. The DEA is vulnerable to challenges when its decisions are made without appropriate rules for making such important decisions about fundamental First Amendment rights. Yet the DEA promotes its claims of authority under RFRA.
In the Iowaska Church of Healing opinion, the court distinguished the Supreme Court’s decision in Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006), because that case involved a religion that is a “long-standing Brazilian Christian Spiritist” religion, and the government in that case had conceded that applying the Controlled Substances Act substantially burdened a sincere exercise of religion. Therefore, the government had had to meet the burden to show that application of the CSA could not make an accommodation with a least restrictive means of advancing its compelling state interest. The court, on page 9, held that it cannot show a sincere religious exercise of religion without getting an exemption from the DEA. It characterized this as the “flaw” in the reasoning of the Iowaska Church of Healing in relying on the O Centro case. On page 10, the court stated that until it obtains a CSA exemption, its promotion and use of ayahuasca remained illegal.
In Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006), the Supreme Court upheld the right of practitioners in the branch of the União do Vegetal church in New Mexico to use ayahuasca as a sacrament under the free exercise of religion clause of the first amendment. The Court held that the “compelling state interest” balancing analysis is required for scrutiny of laws that burden religious liberty under the Religious Freedom Restoration Act. The Court held that, “Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.” Id., at 439. The state interest in regulation was not deemed to be sufficient to burden the right to religious experience due to practices that helped minimize the potential for harm in supportive settings.
Stepping Forward in the Current Legal Landscape
Legalization measures to allow natural plant and fungi psychedelics are becoming more common as government authorization of MDMA-assisted and psilocybin-assisted psychotherapy is becoming likely in the next two to four years, and plant medicine circles have proliferated and bona fide ayahuasca religions have received constitutional protection. While many advocates pursue a medical model for psychedelic experience, such as veteran programs and the and psychotherapy programs seeking approval by the FDA, the groundswell of decriminalization and de-prioritization of enforcement shows the likely expansion of access beyond the psychotherapeutic context.
Dr. William Richards, a clinical psychologist who was at the forefront of the original psychedelic research, wrote in his 2016 book, Sacred Knowledge, Psychedelics and Religious Experiences, that he believes that future historians will be surprised or incredulous that our society has had such fear of conscious exploration that people would be held subject to criminal sanctions for consuming natural products such as psychedelic mushrooms. Id. at 177.
Dr. Dennis McKenna, a plant pharmacologist and author, and a leading expert on psychedelics and consciousness, wrote a chapter in the textbook, The Handbook of Medical Hallucinogens, p. 41 (C. Grob, J. Grigsby, ed., 2021), titled “Plants for the People.” He reviewed the history of the original psychedelic era and the incongruous laws that resulted in criminalizing these substances. He proposed making natural substances legal internationally for religious use. “Codify into law the principle that plants (and fungi and other biologically active organisms) are not ‘drugs’ in their natural form, and thus should not be regulated. When psychoactive substances are extracted from their natural sources, purified, and concentrated, they are then ‘drugs’ and should be appropriately regulated as such.” He also advised that biomedicine would benefit society by integrating psychedelic healing and restructure therapeutic support protocols using shamanic learning. This could open a door to more compassionate medicine and help people develop resilience and feel greater gratitude and enthusiasm, willing to accept personal responsibility, and adopt healthy attitudes.
The Religious Freedom Restoration Act limits the power of the federal government, but it does not limit state law enforcement. The Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997) ruled that the Religious Freedom Restoration Act was unconstitutional as applied to states. While state constitutional protections are not required to apply the Sherbert v. Verner and Religious Freedom Restoration Act protections, they are free to do so, and even afford greater protection for the religious use of psychedelics than the United States Constitution. Municipalities and states can direct the law enforcement priorities of their respective jurisdictions, and, to some extent, local law enforcement officials may do so as well. Local district attorneys have wide discretion and may exercise the power to set priorities for prosecution. State laws, however, may offer much broader protection than federal law.
Provisions adopted in various states and cities that are sometimes described as decriminalization measures are “deprioritizing” measures. In 2019 Denver decriminalized the use of psilocybin mushrooms by citizen referendum. Oakland California’s city council passed an ordinance to direct law enforcement to stop investigating and prosecuting individuals for using or possessing drugs sourced from plants, cacti, and mushrooms that contain the mescaline or psilocybin. A 2020 resolution by Santa Cruz made investigation and arrest for “the adult possession, use or cultivation of psychoactive plants and fungi” a low-priority infraction by law enforcement.
In the District of Columbia, a 2020 measure made enforcement of laws prohibiting psilocybin, ayahuasca, and mescaline-containing plants the lowest law enforcement priority. Ann Arbor, Michigan deprioritized enforcement of local laws punishing use and possession of entheogenic plants and compounds in 2020. In 2021, Detroit’s Proposal E made enforcement of laws prohibiting all entheogenic plants the lowest priority of law enforcement. Somerville, Northampton, and Cambridge, Massachusetts adopted similar measures in 2021, following a grow, gather, and gift model, stating that deprioritizing enforcement of laws regarding possession and use of psychedelic mushrooms and entheogenic plants should be the lowest law enforcement priority, and discouraging use of city funds to punish such non-commercial use of these substances. In 2023, Portland, Maine deprioritized law enforcement of laws regulating psychedelic plants and fungi such as psilocybin, San Pedro, and plants containing DMT.
The Oregon psilocybin program, is regulated by the newly-created Oregon Psilocybin Services, a subdivision of the Oregon Health Authority Public Health Division’s Center for Health Protection. Oregon Psilocybin Services began awarding licenses in early 2023. The Oregon psilocybin program does not require a licensed psychotherapist, but facilitators must complete a state certification program. Adults can receive the services outside of a medical model, unlike the FDA-approval process for the new drug application by MAPS for MDMA, or the Compass Pathways psilocybin-assisted psychotherapy patented process proceeding through clinical trials.
Under the Colorado Natural Medicine Health Act, access to psilocybin-containing mushrooms will be regulated by a new Division of Natural Medicine, organized under the Department of Revenue. The Colorado Natural Medicine Advisory Board is responsible for recommending regulations for the healing centers for supported adult use of psilocybin. The amended law establishes a twelve-by-twelve-foot area allotted for individuals to be able to grow protected plants or fungi, and there are provisions that prevent counties from prohibiting the personal use provisions or restrict the amount of growing space. While advertising is prohibited, compensation for services to provide information and education for associated will apparently be permissible.
Spiritual use is not prohibited so long as facilitators make it clear that they are not certified practitioners under the Natural Medicine Health Act. The regulations will affect access and cost as well as the extent of oversight, accountability, and aspects of medicalization and opportunity for ceremonial uses. The panel later will decide how to implement adult use provisions and which other plant-based psychedelic substances will be added to the program. The first licenses for administering psilocybin are expected to be awarded in mid-2025. The Division will begin discussions about adding additional psychedelic medicines, including mescaline (not including peyote), ibogaine, and DMT beginning in 2026. When Colorado’s Natural Medicine Health Act completes forming regulatory measures and is in operation, it may be an effective model for other states.
A proposal for decriminalization of natural psychedelics, California Senate Bill 58, was vetoed by Governor Newsome, who proposed more research and study of the supported adult use model. Massachusetts has a proposed voter initiative, under review by the state’s secretary of state, which could require legislative action subject to procedural requirements. It is called The Natural Psychedelic Substances Act. It proposes to establish a new approach to natural psychedelic substances establishing “regulated access for adults 21 years of age and older” to natural psychedelic substances “that show therapeutic or spiritual potential to increase well-being and life satisfaction and improve mental health.” It has a separate provision proposing to remove criminal penalties for production and use of natural psychedelic substances by adults 21 years of age and older. The initiative would allow use and possession of set amounts of active psychedelics, one gram of DMT, 18 grams of mescaline other than from peyote, 30 grams of ibogaine, and one gram each of psilocybin, and psilocin.
Advocating Broader and More Inclusive Perspectives to Ceremonial Plant Medicine Practices
The American judicial system is inhibited by unfamiliarity with religious traditions using psychedelics. The United States’ initial experience with psychedelics like LSD, mescaline, and psilocybin, involved abuses and missteps, when people in very vulnerable states of consciousness had the experience in an inappropriate context and suffered adverse consequences, and because of the insights that led to challenges to mainstream society’s expectations of social conformity. North American and European experience faces the problem of an absence of accepted psychedelic spiritual traditions.
Natural medicines that provide psychedelic experiences are in plants and fungi that occur naturally. It is common to many Indigenous traditions in South America and elsewhere for a group of participants to partake of a natural psychedelic plant or mushroom, typically for healing or in hopes of improving hunting or one’s misfortune. Past civilizations, like the Greeks at Eleusis, employed a sacramental libation that would provide contact with the numinous and reveal secrets that sustained their faith in the eternal renewal under the spiritual direction of Demeter, goddess of the harvest.
Authoritarian structures eliminated psychedelic practices in ancient Greece and Europe, and throughout the colonial empires in the Americas and Africa. North American religious institutions have been at the forefront of efforts to suppress and eliminate the longstanding traditions in Central and South America. Traditions in other countries that go back centuries or longer have survived only by withstanding extreme persecution and resentment by established religious and governmental authority. They have preserved ancient wisdom of the power of natural medicines that mainstream American culture did not understand or properly respect. In the United States, American Indians established noble traditions with peyote providing a way for higher knowledge. The religions that gained legal protection in Brazil did not receive the government’s respect when they first started to meet.
Beneficial effects have been identified in research settings with psychotherapy, to improve mental health and for emotional healing purposes, as well as for ordinary people. The psychedelic experience can provide a sense of greater aliveness and motivation through restorative insights that bring about gratitude, love, forgiveness, and compassion. It creates the potential to bring about a clarity of awareness about one’s own experience and motivations, and exposing one to truths about one’s past actions and experiences that can enhance insight and motivation for transformation.
In an appropriate context, the psychedelic experience can lead to a clarity of awareness about one’s own experience and motivations, exposing one to truths about one’s past actions and experiences that can enhance gratitude and forgiveness. People will have an opportunity to shed layers of resistance and deepen understanding and compassion, for oneself and for others, and other opportunities for personal transformation due to a mysterious neuroplasticity process that can reveal unfamiliar types of awareness. It can motivate the inner work to transform in more engaging and positive ways. Careful, deliberate, and informed preparation and oversight can help mitigate risks and provide a safe container for an inward healing process that can afford people with a deepened sense of connection with nature, community, the ground of being, and contact with the numinous.
Opposition by mainstream religions and legal authorities, and the social stigma associated with drug culture and psychedelics, have prevented the formation of social groups and organizations that would have developed naturally to provide practices and social reinforcement for safer practices and risk reduction. Courts have played the predominant role in a prohibitionist approach that has resulted in ordinary people having no legal access to psychedelics.
As knowledge has grown with experience, people have learned more from Indigenous perspectives in South America, as well as the practices from clinical studies and international participation in plant medicine retreats. Americans are supporting greater access to natural medicines for healing of trauma and for spiritual exploration. Legal protections are likely to expand and incorporate celebratory and exploratory adult use of psychedelic medicines, as well as a broader category of spiritual exploration that would not depend on insincere presentation or cultural appropriation of another society’s traditions.
There has been pressure to limit their use to a medical context, which appears to be financially prohibitive for most people and restricts access to people presenting themselves as having a mental health pathology. Some of the other challenges to having a more universal, experience-based religion that incorporates psychedelic substances include improper or corrupt motivations by leaders, inadequate preparation or exploitation of vulnerable participants in a hyper-suggestible mental and emotional state, incompetency in administration of the sacraments or in addressing uncomfortable or hazardous reactions, factionalism, divisiveness, envy, and misunderstanding between leaders, an absence of reverence for the medicines, and disrespect of the viewpoints and experience of other participants.
As states and localities expand access for healthy adults, programs for adult use in non-clinical settings will continue and evolve. Risk mitigation practices with informed consent for voluntary participation with disclosures of risks, and accountability for best practices, will contribute to reaching the greatest potential for psychedelics. Individuals, organizations, churches, and medicine circles will continue to adopt sustainable harm reduction practices. Colorado’s program will be a fine example of the guidelines most beneficial to employ in providing a safe container. It is already contributing experience and understanding, with appreciation and respect for Indigenous psychedelic plant and fungi practices for healing and spiritual experiences.
Disenchantment with mainstream religious institutions can help reveal beneficial and more holistic theologies from other traditional frameworks, and open worldviews to incorporate new ideas and realizations drawn from individual and community experience. As Americans are moving away from organized religion or becoming more entrenched in religious institutions that are firmly opposed to ceremonial use of entheogens, a crosscurrent of influences is likely to inform a more universal spiritual message consistent with the experience of an unfolding psychedelic journey.
Psychedelic group and individual settings for healthy adults are likely to evolve and develop with myriad influences, reaching in differing directions and coalescing sometimes when their ways find common ground. The attendees who are drawn to such facilities are likely to include people from different faith traditions, and many nonreligious people who are seeking a spiritual experience. They may not have developed a clear theology or adopted set of practices to guide them along a spiritual path. They may be seeking healing from a deep trauma or grief, in need of spiritual healing but feeling lost and in need of direction.
The psychedelic journey is considered a nonspecific amplifier of awareness, and there are challenges and unpredictable potentials for transformation in a form of critical period after the experience. People will have an opportunity to shed layers of resistance and deepen understanding and compassion for oneself and for others, and other opportunities for personal transformation due to a mysterious neuroplasticity process that can reveal unfamiliar types of awareness.
The courts will likely encounter a developing faith evolving from experience with psychedelics that is the most inclusive and true to the visionary experience of the individual. Ideas from core shamanism, the paths of righteous conduct from Buddhism, Christianity, Islam, Hinduism, and Indigenous traditions are likely to evolve toward a more open and universal set of principles and guidelines. Traditions that may unfold from the experience would be expected to incorporate phenomenology, or actual experience from the psychedelic journeys, and animism, an appreciation of the aliveness and agency of animals, places, and spirit beings.
The Indigenous traditions in the Americas can provide an appropriate context and example of the psychedelic experience for people descended from other traditions, as can the culture and experience of Black Americans. Practitioners may incorporate traditional South American elements with elements from other traditions, not unlike the Brazilian ayahuasca churches and the Native American Church, which succeeded in earning legal protection for their practices, and the Church of the Awakening, which did not receive legal protection at a time of great suspicion of entheogenic churches. Environmental stewardship and trauma-informed understandings from psychotherapy and self-help traditions can be incorporated into orientation and integration sessions in group settings providing safe containers for celebratory and exploratory uses.
The courts need to develop sensitivity and willingness to protect religious access to sacramental plant medicine. Americans are recognizing an innate right to careful and reverent access to psychedelics, particularly in their natural forms. A full understanding of spiritual experience with the psychedelics cannot be limited to traditional expectations for established religions. Judicial protection for the free exercise of religious use of psychedelics will benefit society when it appreciates the phenomenon of an experience that tends to lead to the spiritual experience. The courts should not insist on specific sets of beliefs or a rigid or fundamentalist viewpoint particular to a distinct religious tradition. The religious protection under the laws and constitution should, in proper circumstances, extend to accommodate a spiritual group retreat setting with careful leadership that would include multiple spiritual frameworks and world views, including the visionary experiences of participants that align with moral precepts and principles of spiritual growth and self-discipline.
