In the past decade, clinical research has been the vanguard of the psychedelic renaissance. But in recent years, many have sought to widen another pathway for legal psychedelic use: religion. Under the auspices of religious freedom laws like the Religious Freedom for Restoration Act (RFRA), many psychedelic users across the nation have taken to forming churches in hopes that religious freedom laws will provide refuge from national and local drug laws.
Use of entheogenic substances in religious or spiritual worship is, of course, not new. Not even close. Indigenous peoples have used entheogenic plants for millennia, long before the idea of a War on Drugs preoccupied public consciousness. What is new, however—and what has been rapidly accelerating—has been use under a claim of right: that freedom laws provide a shield against the War on Drugs. Hence, a “Mushroom Rabbi” grows “ceremonial psilocybin” for his congregation, and weekend ayahuasca retreats are publicized on the internet.
This is an untested and highly uncertain area of law. Law is inherently uncertain, but typically, after a short period of application, courts formulate precedents and agencies promulgate regulations to concretize and refine the law and guide the regulated public. For a variety of reasons, this has not happened yet with RFRA and psychedelic use, despite the fact that the law has been around since 1993. For this reason, in November, 2021 Chacruna published the Guide to RFRA and Best Practices for Psychedelic Plant Medicine Churches to fill this gap, which is a good start.
What Is RFRA?
Congress enacted the Religious Freedom for Restoration Act to protect those engaged in sincere religious exercise from government laws. According to the statute, the federal government shall not substantially burden a person’s “exercise of religion” unless the government shows that that application of the burden to the person furthers a “compelling governmental interest” and is the “least restrictive means of furthering that compelling governmental interest.”
All this leaves a lot open to interpretation. For example, what is “religious exercise” or an “exercise of religion”? What makes a government interest “compelling”? Strong precedents to answer these questions in the context of entheogenic plant use are sparing—most past cases present bad facts and therefore are not benchmarks to rely upon.
Our two best data points are cases involving the Brazilian ayahuasca churches, União do Vegetal and Santo Daime, which are both recognized as legal religions by the Brazilian government. In these cases, the religious adherents successfully defeated DEA’s claim that prohibiting use of ayahuasca as a sacrament was the least restrictive means of furthering a compelling government interest in preventing abuse and diversion. The UDV case made it all the way up to the Supreme Court, where the Court unanimously held that DEA could not categorically prohibit the UDV church’s bona fide religious use of ayahuasca.
Does the UDV Case Set a Meaningful Precedent?
This case is often seen as a talisman for endorsing entheogenic churches. Certainly, the case holds that RFRA forbids DEA from categorically prohibiting religious use of entheogens. But those marching down the RFRA path for entheogenic use must be careful not to put too much stock in this holding. Even after the Supreme Court weighed in, the full extent to which RFRA provides a federal defense to enforcement of the Controlled Substances Act (CSA) isn’t that clear.
For starters, in UDV, the Supreme Court did not conclude that DEA could not restrict use of the ayahuasca or any other drug. Nor did it say that DEA could not require adherents to comply with severe restrictions before accessing entheogenic plants. All it said was that a categorical prohibition of ayahuasca use for religious purposes substantially burdened religious exercise. Nothing in that holding forbids DEA from regulating ayahuasca use. And indeed, today, while both churches use ayahuasca, they both operate in view of DEA and comply with regulations.
Hence, shortly after UDV, DEA issued “non-binding guidance” on how a church can petition the agency for a religious exemption. A petition may include a written statement and supporting documents, and, according to the guidance, “should provide as much information as he/she deems necessary to demonstrate that application of the Controlled Substances Act to the party’s activity would (1) be a substantial burden on (2) his/her sincere (3) religious exercise.”
Problems with the DEA RFRA Process
Critics of this guidance point out that this process is deeply flawed. Among other things, it states that “no petitioner may engage in any activity prohibited under the Controlled Substances Act or its regulations unless [a] petition has been granted.” It thus appears the DEA requires an adherent to stop bona fide religious exercise with a controlled substance as a condition to obtaining an exemption to use the controlled substance. Also, the DEA does not process these petitions in a timely manner. Whether and to what extent an adherent seeking RFRA protection must comply with this non-binding guidance, or a petitioning process, remains to be seen and is currently being tested in the courts.
I suspect if UDV and Santo Daime were relitigated today, the DEA would point to this exemption process, which did not exist in 2006, and argue it is the “least restrictive means” to further its interest in preventing abuse and diversion. The DEA appears to be taking this position in some cases, such as in the Arizona Yagé case where the DEA argued that “the pre-registration prohibition on dangerous Schedule I substances like ayahuasca is necessary to protect health and safety.” And perhaps, unlike the case with the categorical ban, the DEA’s new position might very well pass RFRA muster.
The Future of RFRA
What does this mean for policy makers and the community?
First, neither RFRA nor UDV establish a risk-free blank check for churches to use entheogens free from DEA interference or the exemption process. Even if the very guidance the DEA identifies as the “least restrictive means” is flawed, it distinguishes the current situation from that of twenty years ago. A court could thus reasonably conclude that the DEA can restrict use subject to its process, and that churches that do not follow the process have no viable RFRA defense.
Second, the community and policy makers should press the DEA to put forward a clear, formal program that does not itself burden religious exercise. Almost two years ago, in litigation, the DEA stated it was putting forward formal rules to govern RFRA petitions. In Spring 2021, the Office of Management and Budget similarly indicated that the DEA would be issuing proposed rules to govern RFRA petitions on its regulatory agenda. Those rules have yet to appear.
Given the rise of religious exemptions and the inherent difficulties in having law enforcement adjudicate exemptions and the multiagency import of religious exemptions to the CSA or other statutes, one solution policymakers might consider is the formation of a small independent commission or agency to adjudicate religious exemptions to regulations. Independent agencies exist outside the federal executive departments, such as the Department of Justice. An independent body could review exemption petitions and give them the individualized treatment they need. Moving the process to a channel outside of a law enforcement agency would solve many of the problems with the current paradigm. Unlike the DEA, the independent commission would be focused solely on these petitions and would not have competing priorities, which would help them to process petitions in a timely manner.