Religion Freedom and Protection
This article is for general educational purposes and does not constitute legal advice. Do not rely or act on the basis of the information provided below. It is necessary to seek qualified legal counsel specific to any situation and jurisdiction.
The following is a summary from a talk by Allison Hoots, Esq given at Horizons 2024 titled “The legalities of religious use of psychedelics in the US"
In recent years, the medical model has reigned supreme over dialogue, legislation, and funding of psychedelics in the US. And yet, there exists another uniquely American route to the legal use of psychedelics: religious practice, protected by the First Amendment. A patchwork of federal legislation and judicial precedents, including the unanimous UDV vs. USA Supreme Court ruling in 2006, uphold the ability to use psychedelics within sincere religious contexts. However, the existing legal affirmations were very hard-won for their petitioners, and there exists much gray area in determining to whom and how they apply, and much risk for group seeking clarity.
In this video, we will consider the legal relationship between religious freedom and spiritual practices that use psychedelics.
Overview
In the U.S., religious freedom offers a narrow but vital path for those seeking to use psychedelic substances as part of bona fide spiritual practices. Federal and state laws, notably the Religious Freedom Restoration Act (RFRA), provide a legal framework that can, under strict conditions, protect the sacramental use of controlled substances. Yet this path is neither smooth nor guaranteed.
Why Religion Matters
Legal Protections: Courts, referencing the First Amendment and RFRA, scrutinize whether a group’s practice is genuinely religious.
First Amendment: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof ..”
Religious Freedom Restoration Act of 1993: Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except when the law is in the furtherance of a compelling governmental interest and is the least restrictive means of doing so. (42 U.S. Code Section 2000bb-1)
Sincerity vs. Substance: Judges often focus more on the sincerity of belief than the specific doctrine. “Sincerity” generally means the group or individual isn’t concocting beliefs merely to skirt drug laws.
Communal Structure: A communal setting, formal ceremony, and shared doctrine often carry more weight than an individual’s lone pursuit of spiritual revelation.
RFRA & Strict Scrutiny
Governmental Burden: If the law substantially burdens a genuine religious practice, the government must prove it has a compelling interest (e.g., public safety) a'nd is using the least restrictive means to address that interest.
“Substantial Burden”: from RFRA, the concept means the laws impact ones ability to practice their religion. There are two primary views based on the federal circuit courts. (Note: California and Nevada are in the 9th Circuit Court)
Minority view: Most strict = Force choice between religious beliefs/practices or compliance with the law. Religous significance is not enough, it must be religious compelled. Circuits 3rd, 4th, 9th, DC
Majority view: Direct restraint on religious exercise that is religiously-motivated or significant. Circuits: 1st, 2nd, 5th, 6th, 7th, 8th, 10th, 11th.
Geographic boundaries of US Federal Court of Appeals and US District Courts
Compelling Interests: Authorities typically argue health risks and potential diversion to non-religious use. Mitigating those fears through careful protocols can shift the balance in your favor.
Strict Scrutiny:
Claim to or defense of right to religious exercise of: substantial burden through acts or laws, exercise of religion, sincerity
Burden shifts to government to demonstrate: compelling government interest; least restrictive means
Proving “Religion”
Comprehensive Beliefs: Courts look for an overarching worldview: Does your group address fundamental questions, engage in communal rituals, and exhibit core ethical tenets?
External Hallmarks: While not mandatory, having recognizable features like ceremonies, leadership roles, and sacred texts—or at least a coherent set of spiritual teachings—can reinforce your church’s credibility.
Minimizing Risk
Screening & Safety: Research (e.g., Griffiths et al., 2006, on the importance of set and setting) underlines thorough health screenings, informed consent, and integration support for participants.
Secure Storage & Recordkeeping: Maintain rigorous logs of incoming and used substances. Restricted access reduces the government’s worry about “diversion” for non-spiritual use.
Community Education: Honest discussion of potential dangers fosters trust and dampens suspicion of recreational or profit-driven motives.
Navigating the DEA & Courts
Petition Process: The DEA created a formal petition mechanism to request religious exemptions, yet the process is vague and can take years.
Legal Precedents: Cases like Gonzales v. O Centro (2006) and recent settlements spotlight best practices: robust safety measures, non-commercial sourcing, and transparent religious doctrine.
Affirmative Defense: If your group faces a legal challenge, RFRA can serve as an affirmative defense—provided you convincingly show “sincerity,” “religious exercise,” and minimized risks.
Practical Steps to Starting a Psychedelic Church
Clarify Beliefs: Develop a theology or spiritual framework that’s coherent and comprehensive. This isn’t about window dressing. Document core teachings, rituals, and worldview.
Form a Community: Gather like-minded individuals with regular ceremonies, shared doctrines, and a communal sense of purpose.
Develop Safety Protocols: Implement health screenings, contraindication checks, secure storage, detailed recordkeeping, and post-ceremony support. These measures show you’re serious about participant well-being.
Establish Governance: Consider a nonprofit structure, board oversight, and clear policies on donations, leadership roles, and ethical codes. Public accountability curbs abuse and bolsters credibility.
Document Everything: Keep thorough records of ceremonies, sacramental substance sources, and membership. A paper trail builds your case for sincerity and operational diligence.
Legal Counsel & Ongoing Advice: Partner with an attorney versed in RFRA and Controlled Substances Act nuances. The law varies by jurisdiction, so expert guidance is crucial.
Concluding Thoughts
Psychedelics can illuminate life’s biggest questions—but in the eyes of the law, your spiritual quest needs concrete, organized structure. Show thoroughness: a detailed belief system, well-planned ceremonies, and genuine community bonds. For the Tahoe Psychedelic Society, this means stepping beyond casual gatherings and forging a cohesive spiritual framework. With careful design, rigorous safety practices, and consistent legal advice, you stand a better chance of safeguarding your sacramental work under federal and state protections.
Remember: the government wants to see earnest faith, meticulous caution, and minimal potential for misuse. If your vision aligns with these demands, you may well continue exploring the frontiers of consciousness under the shelter of religious liberty.
References for Further Reading
U.S. Supreme Court: Gonzales v. O Centro Espirita Beneficente União do Vegetal (2006).
Federal “RFRA” Statute (1993). wikipedia
