I recently wrote a post detailing the long history of religious exemptions from the Federal Controlled Substances Act (CSA). In this post, I'll provide a brief overview of the hoops that religious organizations have to jump through.
Religious organizations that use psychedelics for religious purposes and want to comply with US law are forced to petition the US Drug Enforcement Administration (DEA). The petition procedure is set out in a series of preliminary guidelines published by the DEA (Interim Guidelines).
Before I explain what the preliminary guidelines require, it's important to note that they may not have been around for very long. As mentioned in my last post on the subject, the Arizona Yagé Congregation and the North American Association of Visionary Churches sued the federal government earlier this year over the provisional guidelines because the provisional guidelines are illegal for a number of reasons (I have the Suspect analyzed) legality of preliminary guidelines in an article posted here). In this case, the plaintiffs were denied a number of important decisions on largely procedural grounds. However, if they are successful, the interim guidelines may no longer apply.
In addition, in the Arizona Yagé case, the DEA found that it was working on substantive regulations to regulate the process of applying for religious exemptions. Obviously, if such regulations are ever passed, they will replace the interim guidelines, but it is unclear when they will be released for public comment or what they will contain. I can imagine the DEA being sued about this too.
Currently, the preliminary guidelines are virtually the only way psychedelics can be used for religious purposes and have the assurance that the federal government will approve them. But getting such an exception is incredibly complicated. I'm going to talk about some of the bigger ticket benchmarks that petitioners have to meet (note, however, that the list is not exhaustive and the DEA could always come back and ask for more and more).
To start with, petitioners are required to provide detailed information explaining what their group's religious beliefs are and why the use of a controlled substance is part of that religious belief. This means that the DEA is given the opportunity to officially assess whether it considers a religious belief to be legitimate. The DEA hasn't really given clear guidelines on what it means to be a sincere religious belief, but it basically has a unilateral decision-making power here. This means that it will be an uphill battle to convince the DEA of the threshold question of whether the use is even compatible with any religious belief.
A religious exemption petitioner must also explain how he will manufacture, distribute, dispose of, import, use etc. this controlled substance. The DEA is clearly concerned that controlled substances could be diverted or illegally sold and requires very precise information and compliance with other similar DEA rules regarding the storage or transport of a controlled substance. For the average person, this can be extremely difficult to formulate and will almost certainly require lawyers. Note that if a petitioner also wants exemptions from storage, labeling, or other rules, the preliminary guidelines say they can apply for those exemptions separately, but the DEA knows … good luck.
A very problematic problem for many religious groups is that they have to identify the place of their proposed use / manufacture / distribution / etc. Plaintiffs in the Arizona Yagé case said they were searched by local law enforcement after the case was filed. It is not inconceivable that law enforcement could do the same for petitioners for religious exemptions, especially if they are actively using psychedelics or making a psychedelic in the field before approval by the DEA (which is not provided under the preliminary guidelines).
Assuming a petitioner could get the DEA to sign a petition (and according to many sources there is a relatively small chance of doing so), they would still have to worry about compliance with state law. This may not be an easy task either, since psychedelics are banned in all states. So filing a petition is not the end of the road and may offer very limited protection. Even petitioners who receive petitions may find themselves on the other side of state law if they break state laws.
Overall, there is a long history of exceptions for various psychedelics in the US. Just because there are exceptions doesn't mean they're easy to come by, and the federal government is scrutinizing claims made by religious groups that they don't think it's legitimate (whether or not it is constitutionally justified). If religious groups do not solicit a petition and do not meet specific state requirements, there is a great risk for federal and state enforcement as well as for criminal sanctions.
Note: For quotes on my article on DEA meddling in religious exceptions cited above, the suggested quote is: Griffen Thorne, How the DEA Disrupts Religious Use of Psychedelics, JURIST – Professional Comment, Oct 12, 2020, https: / /www.jurist .org / Comment / 2020/10 / Griffen-Thorne-Dea-Religion /.