It’s Time for an Association of Visionary Churches to Stand Up and Claim the Religious Freedom To Which They Are Entitled
Ten years ago, the Supreme Court granted one Ayahuasca church an exemption from Federal drug laws , allowing its practitioners to legally trip in church — but what about the rest of us?
The UDV Decision Under RFRA: A Promising Beginning
The growth of churches using psychedelic sacraments has grown immensely since 2006, when the Supreme Court ruled that, under the First Amendment, the União do Vegetal (the UDV) was entitled to an exemption from the Controlled Substances Act (CSA), that makes it illegal to import or distribute any substance containing dimethyltryptamine (DMT), a component of the UDV’s sacramental drink. The UDV’s victory was made possible by Congress’s enactment of a law that “restored” First Amendment protections for religions, reversing a mean-spirited decision authored by the late Justice Scalia. The statute was thus dubbed the Religious Freedom Restoration Act (RFRA), and Justice Roberts’ decision in the UDV case radically altered the landscape of US law, leading many to believe that the promised land of free exercise for psychedelic sacraments had been reached. However, those optimists had not fully reckoned with the commitment of the Drug Enforcement Administration (DEA) to maintain their tight control over the use of psychoactive substances.
The Daime Decision: The DEA Loses Round Two
In 2009, the Santo Daime (the Daime) was compelled to file a RFRA lawsuit in Oregon District Court after the DEA seized a drum of Ayahuasca from a church leader’s home and threatened him with prosecution if the church didn’t abandon its religious practices. District Court Judge Owen Panner, who had represented Native American tribes before his elevation to the bench, rejected the DEA’s contentions root and branch. Judge Panner’s opinion found the Daime’s religious practices to be genuine, physically and psychologically safe, and worthy of protection under the First Amendment. Like the UDV, the Daime was granted a RFRA exemption from the CSA.
Because the DEA was the defendant in both the UDV case and the Daime case, after the churches prevailed, they entered into settlement negotiations with the DEA to determine how they would import and distribute their sacramental ayahuasca. The UDV settlement required the church to unravel a lot of red tape to get their sacrament to their congregation. Not much is publicly known about the Daime settlement, but it seems to be a simpler arrangement.
The DEA’s Guidance: A Mirage of Religious Freedom
In 2009 the DEA published a document that we’ll refer to as the “Guidance,”[1] establishing how churches could file a Petition for Exemption (PRE) from the CSA with the DEA. During the ten years since the Guidance was issued, most churches have assumed that in order to obtain an exemption from the CSA under RFRA, they needed to follow the Guidance protocol and submit a PRE to the DEA. Some lawyers have assumed that the Guidance established a required procedure for churches seeking an exemption, and therefore, churches were required to exhaust that administrative remedy before filing a RFRA lawsuit. Due to the extensive disclosure of potentially incriminating information required to file a PRE, only two visionary churches have submitted PRE’s, and they were both filed only after the DEA contacted the churches and “suggested” the submission. The two PRE’s that were filed have never been processed by the DEA.
A Thorough Legal Analysis Concludes that The Guidance Unconstitutionally Interferes With Freedom of Religion and Is Vulnerable to Legal Challenge
The author of this proposal is an attorney with thirty years in practice, a former Oregon prosecutor and Federal Public Defender, who currently serves as General Counsel for a visionary church that uses Ayahuasca as its sacrament. About a year ago, in consultation with two other lawyers, he began a program of research into the law applicable to the Guidance, and wrote three papers that discuss the legal issues extensively.[2] The papers have also been reviewed by a range of professionals who provided critiques and suggestions to produce what is believed to be a reliable legal conclusion that the Guidance was issued in violation of the Administrative Procedure Act, is unconstitutional, and is vulnerable to legal challenge.
The Primary Legal Defects of the Guidance
There are several serious legal defects in the system established by the Guidance. The chief constitutional defects are violations of the Fifth Amendment protection against compelled self-incrimination, and the First Amendment right of free exercise. Additionally, there are violations of the Administrative Procedure Act. Some of the violations are more serious than others, but in the opinion of the author, all are worthy of challenge. To enumerate them briefly, they are:
1. The Guidance Compels Self-Incrimination: The Guidance requires church leaders to make statements under oath in a PRE that could provide probable cause to arrest the individual who signed the PRE, and to issue search warrants of the places where sacramental controlled substances are kept or distributed. A properly-completed PRE would provide a roadmap for prosecution of church members for conspiracy to distribute controlled substances.
2. The Guidance Suspends the Right to Partake of the Sacrament: The Guidance requires any church that submits a PRE to stop administering any sacrament to its followers that is a controlled substance. This forces a church to trade off the free exercise rights of its members for the hope of attaining legal status. Ironically, by not using its sacramental controlled substance for an extended period of time, an applicant church undercuts its contention that psychedelic communion is essential to its religious path, and that laws forbidding use of the sacrament substantially burden its right to free exercise of religion.
3. The Guidance Requires Submitters to Undertake a Risk of Perjury: Someone must sign the PRE under penalty of perjury, because an organization cannot take the oath. Making a false statement in a PRE would violate 18 USC § 1001, that establishes a five-year maximum sentence for making a false statement in a federal proceeding. Perjury charges could be premised on material omissions, or if some members of the church failed to keep the promise to abstain from taking the psychedelic sacrament.
4. The Guidance Allows Unlimited Scope to Requests for Further Information: The Guidance gives the DEA carte blanche to request any additional information, at any time after submission of the PRE, from an applicant church. Several precedents hold that a government agency can refuse to grant a license to an applicant that refuses to provide requested information. Thus, the Guidance provides a foolproof pretext for the DEA to refuse to grant an exemption to an applicant simply by requesting “additional” incriminating information.
5. The Guidance Allows the DEA an Indefinite Period for Processing the PRE: Nothing in the Guidance indicates how long the DEA will take to review a PRE. One group has had its PRE pending for nearly three years, with no action taken yet.
6. The DEA Uses the Guidance as a Cover for Issuing Investigative Demands: On at least two occasions, the DEA has sent a visionary church an “invitation to submit a PRE,” that has been treated by these churches as a de facto investigative demand (Ayahuasca Healings and Soulquest). These “invitations” have circulated through the visionary church community as ominous portents, with every church’s leadership asking themselves whether they will be the next to receive “an offer they can’t refuse.”
7. The Guidance Was Issued Without Notice and Opportunity for Public Comment: The Guidance was never published in the Federal Register and was issued without any formal notice of rulemaking or opportunity for public comment. Because the Guidance establishes regulations that have a legislative effect, imposing additional restraints on religious groups that go beyond those authorized by Congress, the DEA should have given notice of its intent to issue regulations and given the affected churches an opportunity to submit comments, as it does when it proposes to add a new drug to the list of controlled substances.[3]
An Unlikely Friend Hands Visionary Churches a Gift
On May 4, 2017, President Donald Trump issued Executive Order # 13798, entitled “Promoting Free Speech and Religious Liberty,” for reasons having nothing to do with the needs of churches that make sacramental use of controlled substances.[4] Attorney General Jeff Sessions then issued a Memorandum entitled “Federal Law Protections for Religious Liberty” (the “Sessions Memorandum”), that directed all U.S. government agencies, including the DEA and the Department of Justice, to review existing rules for compliance with the directives of the Sessions Memorandum, to adjust those rules to avoid interference with the free exercise of religion, and to bring them into compliance with the requirements of RFRA. The Sessions Memo directed all federal government agencies to proactively accommodate the needs of churches seeking exemptions from general law, and to engage with religious persons when drafting new rules to accommodate the right of free exercise as defined by RFRA.
The Sessions Memo tells prosecutors that in order to satisfy RFRA’s limitations on burdening religion, the government may have to spend more money, modify existing federal exemptions, or create new programs. RFRA applies to “all actions” by federal agencies, including rulemaking, enforcement, grant making, and contracting. The Sessions Memo tells government agencies that when a law or regulation fails to pass RFRA’s “strict scrutiny” test, a test that Sessions calls “exceptionally demanding,” a religious exemption must be granted, even when it requires reduction of the rights of third persons.
The Guidance is ten years old, and to all appearances, regulates what visionary churches must do to confirm the legality of their use of controlled substances for sacramental purposes. The Guidance is long overdue for a reassessment in the light of the principles set forth in the Sessions Memo. Thus, visionary churches would be remiss in protecting their own religious liberty if they failed to take the opportunity presented by the Sessions Memo to raise the issue with the DEA.
An Association of Visionary Churches Would Have Standing to Test the Guidance
There’s a reason why fish swim in schools — there’s safety in numbers. Even with a legal opinion to back it up, many visionary churches would be loath to submit a letter to the DEA identifying the legal defects in the Guidance. Although the Sessions Memo cautions Department of Justice lawyers not to target a church for enforcement action based on its exercise of lawful rights, few church leaders may be willing to have their church be the first to test the principle. Fortunately, there is another avenue of approach. An association would have standing to present a letter of criticism to the DEA, and to seek judicial relief if that criticism were ignored, if the association were composed of member churches that would individually have standing to contest the provisions of the Guidance.[5]
Visionary Churches Should Unite to Challenge the Guidance
Visionary churches should form a nonprofit association to challenge the legal defects in the Guidance that have impeded member churches in their efforts to give substance to the Supreme Court’s promise of religious freedom for sacramental use of controlled substances. The challenge should begin by presenting a letter of criticism to the DEA, enumerating and explaining the legal defects summarized above, and should follow through with judicial action under RFRA if the approach to the agency is unsuccessful in obtaining needed changes to the Guidance procedure.
[1] The full title of the document is Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act Pursuant to the Religious Freedom Restoration Act.
[2] Prohibition by Another Name: A Summary Critique of the DEA’s Guidance for Submitting Petitions for Religious Exemptions from the Controlled Substances Act <http://tinyurl.com/y3r63pop>
The DEA’s Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act under RFRA: Door to Religious Freedom or Fifth Amendment Trap for the Unwary? <https://tinyurl.com/y6l7tzwx>
Be Careful What You Wish For — The Peril of Regulated Status for Psychedelic Churches, <https://t.co/m1BS12o5PN>
[3] This is not an insignificant right. For example, when the DEA proposed to schedule Kratom, it unleashed a wave of comments. DEA Announces Intent to Schedule Kratom <https://www.dea.gov/press-releases/2016/08/30/dea-announces-intent-schedule-kratom>; DEA Withdraws Kratom Ban, Opens Formal Comment Period. <https://www.forbes.com/sites/davidkroll/2016/10/13/dea-withdraws-kratom-ban-opens-formal-comment-period/#5af32c7079bb>
[4] The likely reasons for the President’s Executive Order are discussed in a mildly humorous essay by the author of this memorandum entitled Politics and Religious Freedom Restoration Act Make Strange Bedfellows: The Sessions Memo, available at < https://neip.info/novo/wp-content/uploads/2018/02/Carreon_Memo_Sessions_NEIP_2018.pdf>
[5] Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 US 167, 181 (2000).