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The Religious Freedom Restoration Act and the DEA Religious Exemption Process

This article is to inform about the Religious Freedom Restoration Act (RFRA), the RFRA exemption procedure, and the process of getting a RFRA exemption from the Drug Enforcement Administration, in the United States.

The First Amendment and RFRA

The First Amendment of the Constitution of the United States says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

There are two clauses to this:

1) “no law respecting an establishment of religion

2) “no law… prohibiting the free exercise thereof

The first clause is known as the establishment clause, the second as the free exercise clause. The establishment clause is interpreted as meaning that the government cannot show favoritism to any religion or give special privileges to any religion. The free exercise clause is interpreted as meaning that the government cannot interfere with religious practice.

The establishment clause and the free exercise clause can come into conflict when a particular religion’s practices conflict with “generally applicable laws.” On the one hand, allowing a special exception could be interpreted as giving favoritism or special privileges to a particular religion, violating the establishment clause; on the other hand, not allowing the special exception could interfere with the free exercise of religion and violate the free exercise clause. Over the decades, the courts have seesawed between which of these clauses gets priority.

In Smith v State of Oregon in 1988, the Supreme Court gave priority to the establishment clause over the free exercise clause, ruling that allowing Klamath tribal member Al Smith the right to use peyote would be special privilege for his religion. But that ruling went so far in the direction of the establishment clause that it alarmed religious groups across the country. It potentially opened the door for the government to pass a “generally applicable law” that, for example, would prohibit the wearing of hijabs or skullcaps and refuse to allow religious exceptions, since such an exception would give special privileges to particular religions.

An unprecedented coalition of religious groups across the religious and political spectrums came together to push for the passage of RFRA.  RFRA was overwhelmingly passed by Congress. It has been modified through subsequent case rulings.  (It mandates only the federal government, not state governments, but some states have passed state RFRAs.)

RFRA basically mandates that courts give the free exercise clause priority over the establishment clause.

In other words, the principle of no interference with religious freedom gets priority over the principle of no special privileges for a particular religion, if certain guidelines are met. RFRA spells out those guidelines.

Some people think that RFRA is all about entheogens, but there are countless issues that RFRA also potentially applies to — from the refusal of medical treatment for children to the refusal to remove a burqa for a passport photo, from animal sacrifice to the right not to work on the Sabbath, from religious-based conscientious objection to military service to the prohibition of polygamy, from the right of Jewish prisoners to kosher foods to the destruction of Native American sacred sites by logging and mining, from the right to discriminate against gay people for religious reasons to the right of religious pacifists to refuse to pay war taxes.  Potential RFRA issues are endless; not only could laws against many otherwise illegal activities, such as polygamy, potentially be challenged on religious grounds, but anyone could invent a “religion” and claim that almost any behavior is religiously mandated.

Thus, to claim a RFRA exemption, a person or group must prove they have:

(1) A religious belief

(2) which is sincere

(3) and the exercise of which has been substantially “burdened” by the law in question.

Then the burden of proof shifts to the government to show that:

(1) It has a “compelling interest” in burdening the religious practice, and

(2) It has burdened the practice in the least restrictive manner possible.

Let’s look at what each of these factors mean, as developed in entheogenic case law.

“Religious”: What makes a belief “religious” has never been defined by the courts, but there are criteria the courts use to distinguish “religious” from “philosophical” and “psychological” beliefs.

In the case US v Meyers, a man named Matthew Meyers appealed a conviction for growing and selling marijuana on religious grounds. The appeals court rejected the claim that the Church of Marijuana was a religion because its doctrine began and ended with its’ belief about marijuana, lacking “ultimate ideas” addressing “fundamental questions about the meaning and purpose of life”; “metaphysical beliefs” of a “transcendental” nature; “organized moral and ethical codes”; “comprehensiveness of beliefs”; and “accoutrements of religion,” such as sacred writings or teachings, clergy or keepers of knowledge, ceremonies, and rituals. Although there is still no formal legal definition of religion, these criteria, known as the “Meyers factors,” have been used as a guideline by the courts ever since.

There is no court precedent for courts including altered states of consciousness, heightened awareness, healing, clairvoyant experiences, or vibrational attunement in their definition of religion. The courts look for systematic beliefs and systematic practice of those beliefs, not beliefs made up extemporaneously.

“Sincere” means that a religion is not just made up to get around the law.

“Burdened” means that the law or government’s action prevents or impedes the practice of the religion. (In court, groups that use multiple entheogenic sacraments have lost their cases because no single sacrament is seen as essential to their religious practice.)

“Compelling interest” means that the government must show a compelling reason for disallowing the requested exception.

“Least restrictive” means what it sounds like — that the government must achieve its ends with the minimum restriction possible.

In the UDV case, the government did not contest the UDV’s status as a religion. The government’s entire argument was over two compelling interests presented by the government: public health and safety, and the danger of diversion to the black market.

In the Santo Daime case, the government did challenge the religious legitimacy of the church. But the judge ruled in the Daime’s favor on this point.  So that case then also hinged on the government’s two “compelling interests” — first, public health and safety, and second, diversion to the black market.   And these are the compelling interests that groups seeking RFRA exemptions will have to address.

 

The DEA Exemption Process

Ever since UDV gained a precedent for religious exemptions, the DEA has put in place a procedure for religious groups to apply for RFRA exemptions without going to court.  In order to gain an exemption, the applicant must demonstrate that the already existing precedents apply to them.  

The process of judging these applications can take as long as several years.  But there is no fee for this and no court costs; the only expenses may be for the help of a lawyer.

The DEA approaches these applications like a court making a decision. They employ the Meyers factors (see above) and examine the religion closely. They gather evidence, including research on the internet, study it carefully, and ask many follow-up questions of the applicant. Eventually, they issue an opinion, written very much like a court opinion, full of citations and careful analysis and explanations of their reasoning.

The reason that the DEA takes such care is that someone turned down by the DEA can appeal to the district court, which will look at the DEA’s opinion exactly as it would look at an opinion issued by a lower court. If the district court finds the DEA’s decision to be legally unsupported, it can overturn the DEA’s decision. So far, although numerous cannabis churches have been turned down since RFRA was passed, this has never happened.

Once a group has obtained an exemption for their entheogenic sacrament, they don’t have the liberty to use it freely any way they want to. Their sacrament is overseen by the DEA’s Office of Diversion Control — the department of the DEA that oversees doctors, pharmacies, and pharmaceutical companies that import, process, manufacture and/or distribute controlled substances. Just as pharmacies must keep records of all controlled drugs that have a demand on the black market, the legal ayahuasca churches are required to keep records of how much ayahuasca was received, how many people drank how much ayahuasca on which dates, etc., and must keep those records for the government to inspect.

Also, an exempt church must keep their sacrament under secure lock and key, and must have ceremonies with a definite beginning and end, not allowing the sacrament to be consumed outside of ceremony.

 

Misinformation and misconceptions

Contrary to widespread misinformation, ayahuasca has not been legalized for religious use in the United States.  Courts do not legalize particular entheogens for religious use.  They give exemptions from the law, on a case by case basis, to specific groups.  (Peyote’s unique legal status has come through the executive and legislative branches, not the courts.)  The law itself, in regard to ayahuasca, has not been changed.

Another fiction that has been widely spread that exemption is all about membership in a religious organization that has gained an exemption. This falsehood was invention by a group called  Oklevueha Native American Church, which sells memberships under the fraudulent claim that buying a membership in their church (which can be done online, without ever meeting a church member) will make it legal to consume otherwise illegal plant substances.  

In actual fact, membership in a group means nothing at all.  In the UDV and Santo Daime court cases, the issue of membership did not even come up. One does not have to be a member of the UDV or SD to attend their ceremonies; guests are allowed to participate. Nor do members of the UDV or SD have the legal right to drink ayahuasca in any other venue. The courts did not legalize UDV and SD members to do whatever they wanted; they legalized UDV and SD practice because these practices were evidently safe.

 

Retreat “churches”

Recently, many ayahuasca retreats in the US have declared themselves to be “churches.”  They have done this because the Oklevueha Native American Church (ONAC) has fraudulently advertised that if a group affiliates with ONAC, that will give them the legal right to offer ayahuasca to the public and to advertise and promote their businesses openly.   Some have disaffiliated from ONAC but continue to follow its fraudulent model.

Several of these retreat churches have been invited by the DEA to apply for religious exemptions, and have made the application.  But their chances of success may not be good.

These retreat churches likely will not pass the test of sincerity. The Peruvian retreats upon which they are modeled consider themselves to be healing centers and businesses, not churches. They are frankly commercial, set up to attract customers.  And ayahuasca shamanism in the Amazon is considered a healing profession, not a religion; it is conducted by individual practitioners, as a way of making a living.   Ayahuasca retreats in Peru don’t claim to be religions or churches because calling themselves that gives them no legal privileges in Peru.  

It would be hard for a retreat center to make the case that they are calling themselves a church, or that they paid huge fees to affiliate with ONAC, for any reason other than getting around the law. (In fact, they openly admit that that was their reason for affiliating with ONAC, not because of religious doctrine.)

The retreat churches will likely will not pass the test of being religious.   Furthermore, few if any retreats would pass any of the Meyers factors.

These retreat churches have no religious requirements and ask no questions about people’s religious motivations in joining.  Joining is only a matter of paying a membership fee, which can be paid online without ever even meeting anyone from the church.  Whatever cut-and-pasted doctrines a center may put up on its web page, people who buy memberships are given no religious teachings or commitments, nor instructions about how to continue to follow their new religion after they leave — even though they have bought a lifetime membership, in order to participate in their new religion for perhaps one week out of their entire life.

This is in contrast to the stable communities of fellowship that are real churches, and the committed practice of people who are genuinely following a religion.

Another reason why the retreat churches are unlikely to get exemptions is the issue of safety.    UDV and Santo Daime prevailed on the safety issue because of their long histories and track records in Brazil, their disciplined practices, and the fact that the government could present no evidence that contradicted their claim that, as they practiced it, the use of ayahuasca was safe.   

Groups with no track record of safety will have a more difficult case to make. Indeed, many of these groups have ceremony leaders with very questionable training, even though an ayahuasca ceremony (with groups of people under the influence of a powerful mind-altering substance) is a situation that requires the highest degree of competence and integrity in those entrusted with the people’s care.  

When courts make decisions that set precedent, a major consideration is what the impact of the precedent will be; whether it will lead to good public policy. A court might question whether it would be good public policy to open up the right to pour ayahuasca, in exchange for hefty “donations,” to anyone who decides to set up their own ayahuasca church, regardless of their qualifications or lack thereof, and to advertise freely on the internet, where people can make limitless claims about whatever they are selling.

And finally, the retreat churches do not fall under existing legal precedent.  There is no legal precedent for the privilege of offering ayahuasca to the general public, for money, and even advertising and promoting ayahuasca in the media, in the spirit of attracting customers, not adherents.

The DEA seeks only to fulfill its legal obligations under existing court precedent. A group that doesn’t fall under existing precedent is unlikely to get an exemption through the DEA.  So ayahuasca retreat centers, shamanic circles, and other kinds of groups that have no existing precedent for religious exemptions would have to bring their cases to court to establish new precedent.

 

A final note of personal opinion

Healing centers with ayahuasca in the US should have their own road to legality, which can involve research, development of professional standards, and certification by professional associations.  A healing center should not need to pretend to be a religion, and a healing practitioner should not need to pretend to be a religious leader.  

An important reason for this is that a professional association has stricter standards and oversight than the oversight over religious groups (which in the United States is practically nil).  If, as a matter of public policy, the courts opened the door for anyone who called their practice “religious” to offer and promote ayahuasca to the public, that would be putting a very powerful tool into the hands of anyone at all – charismatic manipulator or psychopath or simple incompetent – with no oversight.  Indeed, the existing “church” scene is already riddled with fraud and worse.   Healing work with this powerful tool that is ayahuasca requires accountability and oversight, not the unaccountability of religious institutions.  The road to develop ayahuasca’s potential for healing should be opened legally, in a way that keeps it accountable.   

This article is adapted from a much longer article titled “The Religious Freedom Restoration Act, the DEA Exemption Process, and Ayahuasca Healings” posted on Bia Labate’s web page.

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