Religion and Psychoactive Sacraments:
An Entheogen Chrestomathy
Thomas B. Roberts, Ph.D. and Paula Jo Hruby, Ed.D.
Author Index | Title Index

Religious Liberty and Conscience: A Constitutional Inquiry

Konvitz, Milton R. (1968).
New York: Viking.


ISBN: none

Description: Hardcover, xii + 116 pages.

Contents: Preface, 4 chapters, notes, index.

Excerpt(s): From the standpoint of this overt-act approach, to which Jefferson consistently adhered with regard to religious liberty, the state may not define "religion." "To define is to limit," said Chief Justice Hughes; and any limitation on the constitutional meaning of "religion" might exclude beliefs maintained by some as religion. As any reader of the Bible or of the literature of ancient Greece and Rome knows, history has been a prolific producer of religions, from the most vile, brutal, and obscene, the most refined, gentle, and beautiful. Surely the framers of the Bill of Rights knew this very well. And in this respect history continues to be a dynamic force: religions are changing in significant ways, and new religions are constantly being created. They must all be accommodated by the First Amendment, and this can be accomplished only if it is not used as a Procrustean bed.

The United States in particular has seen --since the ratification of the Bill of Rights in 1791-- the creation of many new sects and religions. There can be little doubt that the two clauses of the First Amendment have greatly contributed to the prodigality of the religious spirit among the American people. Indeed, it is doubtful that anywhere else in the Western world, at any time in history, have so many religions been spawned and have existed side by side -- hundreds and hundreds of denominations and sects. (pages 53-54)

Just as the First Amendment stands in the way of a definition of "religion," so, too, does it stand in the way of any attempt to make absolute the meaning of "worship" or "prayer." The maximum latitude and fluidity are required by both the Establishment and the Free Exercise Clauses.

It is not difficult to foresee troublesome cases involving such issues. Consider, for example, the problem of Timothy Leary, who on September 19, 1966, proclaimed that he founded a new religion, the League for Spiritual Discovery (L.S.D.). (page 62)

Six months after his conviction, and a year before the appellate court handed down its judgment, Leary announced that he had founded a new religion based on the sacramental use of LSD, marihuana, and peyote. His League for Spiritual Discovery, he said, "like every great religion of the past," would seek to find "the divinity within" and to express this revelation in a life of glorification and worship of God."
...
Members of the sect, according to Leary, would need to list with the League which rooms in their homes would be designated as "religious shrines" where the drugs would be taken at stated times -- LSD once very seven days (it is ineffective more often) and marihuana one hour a day. These drugs and peyote would be the "sacramental substance" of the new religion. (pages 64-65)

One cites these examples of the central role of psychedelic drugs in religious experience -- in the lives of some persons --not of course to recommend their use, but to underscore the conclusion that the case of Leary's League for Spiritual Discovery raises some serious constitutional issues. I would say that Leary's sect is entitled to full protection of the free Exercise Clause. How a vision or any other religious experience is induced or vouchsafed has nothing to do with the fact that the person has had it. Perhaps the experience of Elijah the prophet in the cave on Mount Horeb came to him after taking a psychedelic drugs? (page 67)

[Considering the case of Mormon polygamy] Justice Brennan therefore proceeded to consider whether some compelling state interest justified the substantial infringement of the First Amendment right. "It is basic," said Justice Brennan, " that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, *only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.'" The Court found in this case no proof of such abuse or danger to warrant "a substantial infringement of religious liberties." (page 75)

First of all, the court has no business belittling Leary's religious claims by referring to his "so-called religious purposes." ... But what is much more consequential is that this whole argument of the court rests on the proposition that marihuana is in fact a dangerous drug, that it is in fact "an evil in American society and a serious threat to its people." This proposition the court did not, and would not, examine; it merely assumed it as an indubitable truth -- as if it were a dogma of the court's own religion! Yet it is at the very heart of the controversy.

The essential steps for the court to have taken were two: (1) Was there in fact a compelling social interest that warranted Congress in prohibiting traffic in marihuana? What is the evidence that marihuana is in fact an evil and a threat, such that it would warrant congressional action through the criminal-law process? To let Congress act as sole judge of this issue would mean the end of judicial review of legislation that might be constitutionally questionable. ... (2) if it were established to the satisfaction of the court that Congress had been warranted in finding a compelling state social interest in prohibiting traffic in marihuana, the court would then need to go into the question of whether the refusal to exempt Leary on religious grounds would be constitutionally warranted. ... In the Leary case the court simply and cavalierly brushed aside these highly significant questions. (pages 81-82)

... how can the Free Exercise Clause be limited to benefit only institutionalized religions?

For one thing, many of the religions we know today had their origin in a "private and personal" religious experience. Mohammed did not take over an on-going established religion; the history of Islam records the names of his first three converts. John Wesley is given credit as the founder of Methodism. Mrs. Mary Baker Eddy was the founder of the Christian Science church. Menno Simons organized a division of the Anabaptists that in due course became the sect known as the Mennonites. Jacob Ammon broke away from the Mennonites and founded the sect known as the Amish. Before there is a history of a church, there is the biography of a man. (page 84)

Thomas Jefferson, whose spirit speaks through the Religion Clauses of the First Amendment, would have been at home with Alcott, Emerson, and Thoreau; for Jefferson insisted that his religious belief was a very personal, strictly private matter. His rule was, he wrote to John Adams, to "say nothing of my religion. It is known to my God and myself alone." ...

Thus, what the Court of Appeals in the Leary case rejected as merely private and personal, others might select and honor as the innermost heart of that which the Free Exercise Clause projects. It matters not constitutionally whether a church has a million members or is a Church of One Member; whether it has thirteen fundamental principles, or six, or one; whether its members hold a service or a meeting; whether they come together in a church or synagogue or in a home; whether they listen to hymns and prayers or simply sit and meditate and listen to the inner voice and see only the inner light. (page 86)

While these links remain, the private aspects -- religion as the voice of the individual conscience -- have assumed at least equal importance [with the public aspects of religion] ... What is our concern is that the beginning of the nineteenth century it was perfectly natural for Thomas Jefferson to write: "We are bound, you and I, and every one, to make common cause ... to maintain the common right of freedom of conscience." For freedom of religion to Jefferson had come to mean freedom of the mind; insofar as it concerned public law, religion was to be regarded -- and guarded -- as a wholly private matter, a matter of private conscience. (page 87)

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