For thousands of years, groups of people around the world have consumed psychedelic (also known as entheogenic) plants as part of religious practices. In the twentieth century, many of these religious practices were banned by international treaties such as the Single Convention on Narcotic Drugs of 1961 and the Convention on Psychotropic Substances of 1971. These practices were further constrained when the signatories to these treaties created domestic laws implementing the law, such as the Federal Controlled Substances Act (“CSA”) in the United States.
In general, federal law regards psychedelics as just as illegal and dangerous as heroin, and makes even simple research into psychedelics extremely difficult. It may therefore come as a surprise that there are a multitude of legal exemptions from the CSA for users of psychedelics who do so for religious purposes. This post examines the history of religious exemptions from the CSA.
The CSA and psychedelics
The CSA was signed by Richard Nixon in 1970 – at the height of the anti-war and hippie movements, when hallucinogenic substances were considered extremely dangerous by the federal government. These substances quickly topped the government's list of hazards. Psychedelic plants and chemicals like psilocybin (the hallucinogenic material in certain mushrooms), peyote, ibogaine, dimethyltryptamine ("DMT", a naturally occurring substance in ayahuasca), and many others were listed in Appendix I of the CSA.
Schedule I listing was significant. According to the CSA (and regulations below), List I substances have high potential for abuse, no currently accepted US medical use in treatment, and a lack of accepted safety for use under medical supervision. For reference, Appendix I contains heroin. Other drugs like opium, cocaine, crystal meth, fentanyl, and anabolic steroids have a lower CSA schedule. As a result, it is classified as less harmful by the federal government and has higher medicinal value than hallucinogens.
The consequences of listing a drug in Appendix I mean that it is infinitely more difficult to research or make available than drugs on lower CSA schedules that can often be administered or prescribed by doctors. Getting the government approved to test even substances controlled by Schedule I requires a Herculean effort and extreme amounts of money.
Peyote exceptions to the CSA
On December 22, 1981, Assistant Attorney General Theodore B. Olsen issued a memorandum to the United States Drug Enforcement Administration ("DEA") entitled "Memorandum Opinion for the Chief Counsel, Drug Enforcement Administration" (the "Olsen Memo") . The Olsen memo discussed peyote bans in the CSA and attempts by the government to provide exemptions from those bans for members of the Native American Church ("NAC") who used peyote in religious ceremonies.
Shortly after the CSA came into effect, the Bureau of Narcotics and Dangerous Drugs issued implementing regulations for the CSA, including the following exception for peyote (the "Peyote Regulation"):
The Appendix I listing of peyote as a controlled substance does not apply to the non-medicinal use of peyote in bona fide Native American Church religious ceremonies, and members of the Native American Church who use peyote are exempt from registration. However, anyone who makes or distributes peyote to the Native American Church must register annually and meet all other legal requirements.
The Olsen Memo concluded that the exemption from the peyote regulation could not be limited to the NAC, nor did it open the door to a right to religious use of peyote – religious groups with genuine peyote use could seek cover the exception, although the authors of the Olsen Memo believed that there were no such other groups.
The main focus of the Olsen memo was to determine whether the Peyote Regulation is constitutional under the Free Exercise and Settlement Clauses of the First Amendment. While the authors felt that NAC was a religion whose use of peyote was an institutional and central feature of its religion, they commented on whether the prohibition of the use of peyote was the least restrictive means of preventing the compulsory Government goals to prevent harm to achieve members of NAC and third parties, and to promote compliance by others with the law. Therefore, the Olsen Memo could not conclusively establish that NAC members were free to use peyote for religious purposes.
Since the Olsen Memo did not come to a strong conclusion on the free exercise clause, it analyzed whether the exemption from the Peyote Ordinance would violate the establishment clause – which requires that a law have a secular purpose, a primary effect that is the Religion neither supports nor inhibits, and its application does not lead to an excessive intertwining of government and religion. After analyzing a number of cases that did not support a firm conclusion by the establishment clause, the Olsen memo concluded that the government is free to take action to protect the peyote use of NAC without the establishment Violating clause.
Labor Department, Oregon Human Resources Department
The Peyote Regulation mandates that peyote uses are required to comply with all other laws, including state laws. Not all states have exemptions from illegal peyote uses leading to the 1990 United States Supreme Court case, Employment Division, Department of Human Resources of Oregon v Smith, 494 US 872. In Smith, two men were fired for using peyote – an illegal substance in Oregon – denied unemployment benefits due to being fired for misconduct. After a round in the United States Supreme Court and subsequent trial in the Oregon Supreme Court to determine whether Oregon law does indeed prohibit peyote, the United States Supreme Court retried the charges.
Smith asked whether the Oregon criminal law applicable to the two men violated the free exercise clause. The court found that this was not the case. It characterized Oregon Law as a neutral law of general applicability, meaning that it applies to all people equally. The fact that in some cases this can adversely affect the religious practices of a few people was not enough to prohibit the application of the law. Overall, laws of general applicability that violated the religious practices of a small group of people did not necessarily violate the First Amendment. In particular, Smith did not find the peyote regulation illegal.
That being said, Oregon was the state that took the Smith case to the U.S. Supreme Court twice to avoid benefits being paid to men who had used peyote. Now it could be the first state to legalize psilocybin.
Religious Freedom Restoration Act 1993
Smith set off red flags for religious groups who wanted the opportunity to question "neutral" "general applicability" laws that, when applied to them, violated religious freedoms. As a result, Congress passed the aptly named Restoration of Religious Freedom Act of 1993 ("RFRA"). The goal of RFRA was to restore previous tests used to assess laws and "to give entitlement or defense to persons whose religious practice is severely burdened by the government" by applying neutral laws of general applicability. RFRA was not explicitly aimed at peyote users or the NAC, but would later provide broad support for the religious use of hallucinogens.
Amendments to the American Indian Religious Freedom Act of 1994
In 1994, Congress passed an act called the American Indian Religious Freedom Act Amendments of 1994 (the "1994 Amendment"). PL 103-344 (October 6, 1994). The 1994 statement citing Smith stated that the use, possession, and transportation of peyote by Indians for bona fide traditional ceremonial purposes were considered lawful and could not be banned by any state or federal government. However, the 1994 amendment explicitly allowed the DEA to retain the authority to provide "appropriate regulation and registration" to people who grow, harvest and distribute peyote.
Gonzales versus O Centro Espirita Beneficente Uniao do Vegetal
In 2006 the US Supreme Court ruled that Gonzales v O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418. In Gonzales, the religious group O Centro Espirita Beneficente Uniã do Vegetal ("UDV") attempted a plant containing DMT (what ) to import the dish referred to as "Hoasca"), and shipments were confiscated. UDV sued and requested an order that the CSA's motion for UDV's sacramental use of the plant would violate RFRA. The court agreed.
Under RFRA, the government would have to show a "compelling interest" in banning the import and use of the substance (the same pre-Smith standard that RFRA revived). The court had found that the interests of the government and the UDV were roughly the same and that the federal government had consequently not shown an overriding interest. In particular, the court was swayed by the fact that the CSA allows certain exemptions when it is compatible with public health and safety, and even cited the peyote exemption.
There were two important food stalls from Gonzales. First, the Court designed the RFRA test to assess whether the CSA (1) would place a significant burden on a sincere (3) religious practice (2). This wasn't the first time this test has been done, but it does make it clear that the government has some margin of maneuver to impose burdens and gives the government the discretion to determine if something is a religious exercise and if it is righteous is.
Second, the lower court had issued an injunction requiring the UDV to obtain federal approval to import the plant matter, and the Supreme Court cited the CSA's requirements to obtain certain registrations. Similar requirements as discussed above were imposed in the Peyote Regulation and 1994 amendment. Presumably, these requirements justified the DEA to incriminate these religious exemptions.
DEA Interim Guidelines
After the Gonzeles case, the DEA issued provisional guidelines in 2009 that require the CSA to apply for religious exceptions ("Interim Guidelines", updated 2018). The provisional guidelines require the submission of numerous categories of documents and information, and essentially require applicants to demonstrate that they have a sincere religious belief in order to obtain exemptions. The provisional guidelines were challenged by religious groups only a few months ago, and in this case the DEA produced evidence claiming it was formally seeking religious exemption regulations. The preliminary guidelines have not yet been changed and it is unclear what they will look like at this point. For religious organizations that want to use psychedelics, this is the only federal standard so far.
The law on religious exceptions is changing. For more information, see the law Law Blog.