There is a growing enthusiasm for the potential of psychedelic medicines. Psychedelics such as psilocybin (the active ingredient in hallucinogenic mushrooms) and 3,4‑Methylenedioxymethamphetamine (better known as MDMA and ecstasy), among others, are expected to be approved by the U.S. Food and Drug Administration in the next few years as part of psychedelic-assisted psychotherapy. They will be used to treat a variety of ailments, including severe post-traumatic stress disorder and treatment-resistant depression.

Psychedelics, also called entheogens or hallucinogens, have been utilized by humans throughout recorded history in a variety of settings. Recent scholarship has linked psychedelics to early Christianity, and archaeology has found evidence of their use in early Judaism. Some current practitioners of both faiths are reviving those practices. Globally, including in the United States, indigenous peoples have been continually utilizing plant medicines, including ayahuasca and peyote, as part of community-based healing, tradition, ceremony, culture, and agriculture practices.

Accordingly, the legal landscape of psychedelics is changing. Besides growing and promising FDA psychotherapy research, state and local legislative advocacy efforts are on the rise. In 2020 Oregon passed the Psilocybin Services Act, and in 2022 Colorado passed the Natural Medicine Health Act, both allowing some use of the substances. Over a dozen localities nationwide have passed local deprioritization measures, making enforcement of state laws criminalizing psychedelics the lowest-level law enforcement priority. This increasing normalization of psychedelics, though lacking clear pathways for safe access, has also contributed to a rise in religious use of psychedelics.

Religious use / The current legal framework for religious use of psychedelics is often reduced to the Religious Freedom Restoration Act (RFRA), a piece of federal legislation passed in response to the landmark 1990 case Employment Division, Department of Human Resources of Oregon v. Smith. Prior to Smith, claims that a law substantially burdened religious exercise were subject to the strictest scrutiny. But in Smith the U.S. Supreme Court put in place a threshold question: Is the law in question neutral and generally applicable? If so, then even if the law substantially burdens religious practices, it must only pass rational basis scrutiny, which is often viewed as no scrutiny at all. If the law is not considered neutral and generally applicable, then the burden shifts to the government to show that the law is narrowly tailored to further a compelling governmental interest.

This threshold question signaled a major shift in the Court’s analysis, increasing the burden on religious communities fighting against laws they claim are burdensome, and the outcome was met with bipartisan opposition. When it was passed almost unanimously in 1993, the RFRA essentially re-established the compelling interest test, though Smith remains good law and was recently reevaluated in City of Philadelphia v. Fulton.

In 1997, the Supreme Court held that Congress did not have the power to pass the RFRA as applied to state officials. In response, many—but not all—states passed their own state-level RFRAs. Most of the drug law enforcement happens at the state level, leaving communities in states without their own RFRA without a solid defense.

Despite this, the federal RFRA can still be useful in claiming a religious defense or making a religious claim against a federal law or federal actor. In 2006, an ayahuasca church utilized the RFRA as a defense against the seizure of their sacrament by U.S. Customs Agents. The Court held, narrowly, that the Controlled Substances Act (CSA) burdened this specific church’s ability to practice its faith, necessitating the U.S. Drug Enforcement Administration provide an exemption from the CSA. Apparently in response to this case and from the language of the RFRA, the DEA promulgated interim guidance for parties that want to petition for a religious exemption from the CSA.

Religious exemptions process / The DEA exemption process is constitutionally suspect. Petitioners are asked to disclose all their (illegal) activity with no guarantee or protection from criminal charges, and they are told they must cease following the practices while waiting for a response. Moreover, the DEA has never voluntarily granted an exemption for a religious community. In 2006 and 2008, two churches, the Santo Daime and the Uniao de Vegetal, were granted exemptions by court order because of the 2006 Supreme Court case and an application of it in the 9th Circuit. Another religious group, Soul Quest, sued the DEA after waiting over three years to get a response. In 2021, the DEA’s Diversion Control Division issued a final determination that, in the view of federal law enforcement, Soul Quest lacked religious sincerity.

The DEA’s routine lack of response leaves most religious practitioners without a clear path forward to legal protection. Because of the requirement that churches disclose all drug-involved activities and then cease doing them until the DEA responds, applying for an exemption puts these churches at a higher risk of criminal enforcement. The legal risks associated with the petitions appear to outweigh any possible benefit to these communities. Many are advised by their counsel to not apply for the DEA exemption.

Regulating religion / Religious liberty is viewed as a core American value. The Free Exercise Clause and the Establishment Clause of the First Amendment are intended to strike a balance. People should be able to practice their faith without constraint and no religion is to be the official religion. This delicate balance results in avoidance by courts and legislatures in addressing religious sincerity for fear of establishment. The DEA cannot totally be blamed for failing to address the growing number of religious communities that use federally illegal drugs, and it is in no way qualified to decide about religious sincerity.

So, who is? As it currently stands, the Internal Revenue Service is the federal agency evaluating religious sincerity in the eyes of the law. Churches are not required to file to be recognized as 501(c)(3) tax exempt organizations, but many do because a determination letter may be required to open a bank account, rent property, or induce significant donations. One possible short-term solution to streamlining the DEA exemption process would be to create an automatic DEA exemption once communities have been granted tax exempt status. This would require a shift in IRS policy to allow for charitable organizations conducting illegal activities, something addressed in a pending U.S. district court case, Iowaska Church of Healing v. Rettig. This streamlining process would still result in religious communities being forced to comply with the same tracking and storage requirements as other DEA-licensed medical researchers and professionals, arguably substantially burdening their religious practice.

To fully realize America’s promise of religious liberty, we must remove any process that requires religious practitioners to prove their faith to a law enforcement agency before they are legally able to practice rites that involve psychedelics. At a minimum, we must shift the burden to law enforcement to prove fraud in cases where they want to enforce federal drug laws on religious communities from the outset. This is especially important as federal and state laws on drugs are increasingly diverging as states grow more liberal and the federal government grows more restrictive.

What does the least restrictive means for drug law enforcement look like once the drugs are legal? The government has a legitimate interest in public health, but it is not furthered by burdening religious practice and driving it further underground. Psychedelics are not inherently harmful, but they have the potential to result in harm because they can put individuals in vulnerable states. Any potential risks of harm are exacerbated by the activities being legally risky, discouraging practitioners from seeking medical or emergency services in the rare occasion they are needed. The first step to furthering the government’s real interest in public health is decriminalization. The second step is to determine how the government, and the DEA in particular, can contribute to ensuring safe supply of substances for religious practitioners.

Conclusion / The religious use of psychedelics is on the rise because of a changing legal landscape, decreasing social stigma, and a growing mental health crisis. In the short term, increased demand for psychedelics and limited legal supply will serve to further the growth of the religious use sector of psychedelic access and use. This is not necessarily a bad thing; what can be called religious use has been a home of psychedelic and other mystical experiences for all of history because there is value in sustained community containers for integration of mystical or uncomfortable experiences.

Whether it be coping with a challenging psychedelic journey or processing the grief of a lost loved one, religious communities have a helpful role to play. In addition to a physical setting for safe and supported use of psychedelics, religious use (at its best) can provide a mental setting through theology to help users understand and process their experiences. There is significant evidence that spirituality and community contribute to wellness. Normalizing the religious use of psychedelics has the potential to increase general participation in organized religion, which if evolved can contribute to strong communities and supported and connected individuals.