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As Plant-Medicine Churches Grow, Legal Questions Linger

As Plant-Medicine Churches Grow, Legal Questions Linger

Rabbi Benjamin Gorelick is the founder and spiritual leader of the Sacred Tribe, a community of Jewish seekers in Denver that grows its own psilocybin mushrooms for use in religious ceremonies. He calls himself “the mushroom rabbi,” but law enforcement authorities are treating him as a drug dealer. Police raided Sacred Tribe in January and charged Gorelick with suspicion of possession with intent to manufacture or distribute a controlled substance, a first-degree felony that carries a minimum sentence of eight years in prison. 

The Hummingbird Church, by contrast, has built cooperative relationships with local authorities since it began providing ayahuasca in spiritual ceremonies held in Joshua Tree, California in 2018. Police from a multi-agency task force once served a no-knock warrant on a church member’s home, confiscating psilocybin mushrooms and cannabis plants, but no charges were filed. The church website invites those seeking healing to apply to join a ceremony, but warns: “If you are looking for just a psychedelic experience, you are in the wrong place. Our ceremonies are sacred and deeply spiritual.” So far, they’ve been left alone, says Courtney Close, a founder of the church.

Psychedelics have been used in religious ceremonies for years–thousands of years, actually. Some lawyers say their use in a church setting is protected by the First Amendment, which guarantees freedom of worship, and by a federal law called the Religious Freedom Restoration Act, which was enacted by Congress and signed by President Clinton in 1993 after lobbying by leaders of the Native American Church, which uses peyote in their ceremonies, with support from mainstream religious groups. 

 “You don’t have to ask the government if you can practice your religion,” declares George Lake, a lawyer and author of a self-published book called The Law of Entheogenic Churches in the United States. 

Other lawyers urge caution. “This area is rife with legal risks,” says Allison Hoots, who wrote a detailed Guide to RFRA and Best Practices for Plant Medicine Churches for the nonprofit Chacruna Institute. Hoots, who represents churches as part of her practice with the Plant Medicine Law Group, says: “Almost every church that I work with is underground.” She advises them to think twice before surfacing.

The stakes are high, and not just for today’s churches and their members. While no one is keeping count of the churches that use psychedelics in their ceremonies, in part because so many remain underground, there’s little doubt that the number is growing. So is the number of cases moving through state and federal courts that will delineate the legal landscape. 

The big question: If it turns out that churches can use psychedelics in their sacred ceremonies with little or no fear of arrest or prosecution, could the constitutional protection of religious freedom open the door to make psychedelics widely available to all who seek them?

A Murky Legal Landscape 

These days, psychedelics appear to be poised to enter the mainstream through one or more paths: Medicalization as the FDA approves their prescription. Decriminalization as cities and states act to end the war on drugs. Right-to-try laws that give sick people access to psychoactive substances. And, of course, the religious route, as places of worship offer psychedelics to their flocks. Each of those paths will require a good deal of lawyering–that’s the world we live in–but none is as legally murky as the religious route.

At the heart of the uncertainty about the religious use of psychedelics is RFRA, the controversial federal statute that has been used, most famously, by religious conservatives to claim they are exempt from federal anti-discrimination laws or to argue that they should not have to provide contraceptive services to their employees or customers. For example, the private company Hobby Lobby, citing RFRA argued successfully before the Supreme Court that the company could not be compelled to provide its workers health coverage for contraception because of the owners’ religious objections to abortion.

Plant medicine churches that want to use the religious freedom act as a shield against arrest or prosecution have to meet specific criteria laid out in the law and in prior cases. Specifically, they need to show that the government’s enforcement of drug laws would “substantially burden” their religious practices, which grow out of “sincerely-held beliefs.” It’s up to the courts and to government agencies to define religion, to decide what constitutes a substantial burden and to judge whether the beliefs of practitioners are sincerely held.

“RFRA claims are decided on a case-by-case basis,” writes George Lake in his book about churches and psychedelics.“There is no blanket protection for the sacramental use of entheogenic sacraments.” 

Perhaps surprisingly, along with the Native American Church, just two plant medicine churches in the U.S. have clearly established their legal rights under RFRA. The Centro Espírita Beneficente União do Vegetal (UDV) and the Santo Daime churches have much in common: Both use ayahuasca as a sacrament, both blend indigenous practices with Christian beliefs and both are well-established, having operated for decades inside and outside the U.S. Yet both cases required protracted litigation, even after the government acknowledged that the churches were, in fact, engaged in the exercise of religion.

The UDV case went all the way up to the U.S. Supreme Court, which decided in 2006 that the government failed to prove that it had a compelling interest in regulating the church’s use of ayahuasca. It was cited as precedent in the Santo Daime case, where the government tried but failed to show that ayahuasca presented health or safety risks to church members or that it would be diverted to people outside the church. In 2009, a U.S. District Court judge in Oregon ordered that the Santo Daime group in Ashland, the Church of the Holy Light of the Queen, “be allowed to import and drink Daime tea for their religious ceremonies, subject to reasonable restrictions.” (Other Santo Daime churches have not won the same legal rights in court.)

As the government was losing those two cases, who should step in but the Drug Enforcement Administration? In 2009, the DEA posted a document online offering “guidance” to parties seeking religious exemptions from federal drug laws. (A revised version is here.) It laid out in some detail the information required of churches, including “the amounts, conditions, and locations of its anticipated manufacture, distribution, dispensing, importation, exportation, use or possession” of controlled substances. It also warned applicants not to “engage in any activity prohibited under the Controlled Substances Act” until their petition is granted.

The DEA offered no assurances that the information disclosed wouldn’t be used to incriminate the plant medicine church. “It’s not very wise to turn yourself over to a biased examination from the DEA,” says Sean McAllister, chair of the board and former general counsel at Chacruna. George Lake goes further, describing the DEA guidance as “prior restraint on the exercise of religion.” What’s more, no law gives the agency the authority to investigate religious claims. “All that process is unconstitutional and a sham,” he says.

Churches that sought DEA’s permission to dispense psychedelics have not fared well, to say the least. In a critique of the DEA’s authority for Chacruna, Martha Hartney, an attorney, says no church has been granted a religious exemption by filing with the DEA.

The case of the Soul Quest Ayahuasca Church of Mother Earth, which is based in Orlando, FL, is illustrative. In 2017, at the invitation of the DEA, Soul Quest petitioned the agency for a religious exemption, relying on the precedents set by the UDV and Santo Daime decisions. The DEA did not respond for three years, at which point Soul Quest asked a federal judge to compel the DEA to act. 

Not until April, 2021, after interviewing leaders and visiting the church, did the DEA deny the petition, for a variety of reasons. It said that Soul Quest is not truly a church but a healing or wellness center, noting that the church describes ayahuasca on its website as “a natural remedy for depression, anxiety, post traumatic stress, anxiety, drug addiction, and it also releases emotional blocks.” Church members didn’t necessarily attend regularly, the DEA noted. (Of course, that’s true of many churches.) The agency concluded that “membership in Soul Quest appears to be a purely pro forma matter to obtain access to ayahuasca, rather than an expression of sincere religious devotion.” 

Soul Quest has had other problems, too. The estate of a 22-year-old man named Brandon Begley, who died after becoming violently ill during a retreat, has sued the church. So did Kevin Rupchand, a Canadian man who claims that he had a seizure during a retreat and was not given suitable medical care. A trial in the Begley case has been scheduled for next March; court records indicate that the Rupchand lawsuit was settled in February. Soul Quest declined comment but it has previously denied wrongdoing, saying it has medical staff on site. 

“They Know the Sheriff”

Perhaps surprisingly, given its visibility, Soul Quest continues to offer ayahuasca retreats nearly every weekend. “We work well with our community,” says a church insider, who asked not to be identified because of the pending court case. “We’ve had judges, lawyers, doctors and military people” at ceremonies. 

Other churches, too, are open about their practices, with few if any repercussions. 

“In large cities like New York and LA, there are ceremonies using ayahuasca or psilocybin every weekend,” says McAllister. “The relationship with local law enforcement is critical.” 

The same is true in smaller cities and rural areas. The Universal Shamans of the New Tomorrow Church in Huntsville, TX, has been operating above ground for years. “They know the sheriff, and the sheriff knows them,” says George Lake, who has advised the church. Some plant-medicine churches have built close ties with military veterans, and offer special ceremonies designed for them.

Suzi Kalypso, the priestess and founder of the Temple of Eden, a church in southern California, has held ceremonies for about 1,000 people in the last three years, she estimates. Temple of Eden offers people 5-MEO-DMT, an entheogen derived from the venom of the Sonoran Desert toad. Asked if police had visited the church, Kalypso replied: “If they have, I didn’t know they were police.” 

See Also

Several cases that are winding their way through the courts may bring more clarity to the legal status of plant-medicine churches. Soul Quest has appealed the DEA’s denial of its petition for an exemption from the Controlled Substances Act. Rabbi Gorelick says he is ready for his day in court and has faith in the law.

Meanwhile, two Arizona ayahuasca churches–the Arizona Yage Assembly, which holds ceremonies in a yurt in the desert near Tucson, and the Phoenix-based Church of the Eagle and the Condor–have separately sued the federal government to challenge the DEA process and establish their right to import and use ayahuasca for religious purposes.

The Arizona Yage complaint says that the DEA guidelines represent an unconstitutional prior restraint on the exercise of religion, impose a large and useless financial burden on churches and violate the Fifth Amendment prohibition of self-incrimination. The church filed its suit after shipments of ayahuasca were seized and destroyed by the Department of Homeland Security in 2020. In July, lawyers for both sides told a federal judge that they are engaged in “positive and amicable discussions” that could lead to a settlement of the case.

The Church of the Eagle and the Condor complaint says, among other things, that there is no evidence that the DMT contained in ayahuasca has any potential for abuse and that ayahuasca is not known to be used recreationally. 

“The Church believes that ayahuasca is a profound and primary voice of Mother Nature and Divinity,” the complaint says. “The Church protects its sacrament from sacrilege, from desecration and from diversion.”

The church had a shipment of ayahuasca seized by the U.S. Customs and Border Patrol in 2020. In response to a Freedom of Information request from the church, the agency said it has seized hundreds of shipments of a substance believed to be ayahuasca.

Fear of a Backlash 

It’s impossible to know how these cases will turn out, but a couple of things have become clear from conversations with lawyers and church leaders. First, interest in plant-medicine churches is growing fast. Lawyer Allison Hoots says new clients reach out to her all the time. “The number of people who are willing and excited to try psychedelics is expanding,” she says. Second, these churches have no choice but to work under a cloud. They may be able to win over local police who decide they have better things to do than crack down on people who are seeking healing or meaning through psychedelics. But there’s always the threat of federal action.

Matt Zorn, a Houston-based lawyer who has frequently tangled with the DEA, says the growth of plant-based churches could spur a backlash. Writing in Lucid News, Zorn recently urged psychedelic churches not to rely on RFRA.

“Just wait until there are thousands of psychedelic churches around,” he says. “If the DEA really wanted to go to the mat on this, I don’t know if they would lose. Certainly in front of the right judge they wouldn’t.”

By contrast, Ian Benouis, a lawyer and combat veteran, says plant-medicine churches have become a vital channel to get help to people in need. Benouis served in Operation Just Cause, the U.S. invasion of Panama that unseated General Manuel Noriega, who was wanted for drug trafficking and racketeering charges. He has taken hundreds of veterans to Mexico and Peru to be treated with plant medicines.

“It’s not sustainable or affordable to go south,” Benouis says. “The churches are the only way to get the medicines out to people who need them in a timely way. They’re a way to fight the drug war and take back our rights.”

Image: Upslon

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