Testimony of the Council on Spiritual Practices
by Robert Jesse

an earlier version of which was presented to the Committee on Drugs and the Law of the Association of the Bar of the City of New York, 10 October 1995

The Council on Spiritual Practices is concerned primarily with religious experience and only secondarily with plants and chemicals or policies towards them. The drug laws, by contrast, and the agencies that enforce them, are concerned mostly with the substances and little with the religious uses to which some are put. I invite you to consider the impact that the drug laws inadvertently have on the free exercise of religion, affecting people for whom certain prohibited substances are an essential feature of their spiritual practices. That impact effectively constitutes religious persecution, even though most of the people conducting it have no desire to persecute and no idea that they are doing so.

The Entheogens

The substances of interest here are those known in the medical community as hallucinogens and elsewhere as the psychedelics. These drugs are sharply dissimilar from drugs such as cocaine and heroin; several of them have been shown to be very low in addiction potential and overdose risk (Gable 1993), and to be of very low organic toxicity. The risks of injurious behavior and of psychological harm from the altered-consciousness experience, which are not negligible in unsupervised casual use, appear to be minimized when they are used in ritual settings (Cohen 1960; Strassman 1984). It is the ability of these substances to catalyze religious experience that is of interest to CSP; to emphasize this, we use the word entheogen, coined from Greek roots signifying "to realize the divine within" (Ott 1993:103-105), to describe them when used for spiritual purposes.

For as long as we know of, there have been at least a few people in every culture, the mystics and the saints, who were able through prayer, meditation, or other techniques to bring upon themselves mystical states of consciousness (James 1902), also called primary religious experience. In some cultures, this direct experience of the sacred was available to everyone, or to members of special bodies of initiates, through the sacramental use of psychoactive plants and preparations. There is now substantial evidence that the Eleusinian Mystery rites, performed annually near Athens for almost two thousand years, featured a mystical revelation brought on by the drinking of an entheogenic brew (Wasson et al. 1978). The Sanskrit Rg Veda, one of the oldest religious texts known, praises a mind-altering substance called soma, which Wasson (1968) identified as the psychoactive mushroom Amanita muscaria. Both in the New World and in the Old, ritual use has long been made of another class of potentially entheogenic mushrooms: those containing psilocybin. In Mesoamerica, the entheogenic cactus peyote was used in spiritual practices as early as 300 B.C. To this day, indigenous peoples in Russia, Africa, Mexico, South America, and North America, including an estimated 250,000 to 400,000 American Indians in the U.S. (Franklin and Patchen 1994), use a variety of psychoactive sacramentals classified as Schedule I controlled substances in the United States. I will return to the Native Americans presently.

Over the last century, as Western ethnobotanists rediscovered some of the traditional sacramental substances and as chemists isolated their active principles, this knowledge slowly circulated among the intelligentsia. Aldous Huxley took mescaline, the principal psychoactive component of peyote, in 1953 and described his awakening experience in The Doors of Perception. By that time, another wave had been set in motion. In 1943, Albert Hofmann (1983) discovered the psychoactivity of LSD. Within a few decades, potent chemical means for facilitating primary religious experience were within easy reach of many people. It must be acknowledged that probably most contemporary users of hallucinogens take them with no explicit ritual surround or spiritual intention, though even then, the fire from heaven has sometimes been known to descend unbidden.

The religious import of the entheogens is confirmed in accounts by and of religious leaders and members of traditional entheogen-using cultures (Furst 1972, 1976; Schultes and Hofmann 1979; Dobkin de Rios 1984). This spiritual significance is corroborated by the accounts of scores of Western authorities (Metzner 1968; Roberts and Hruby 1995), including physician and church founder John Aiken (1970); Walter Houston Clark (1969), professor of psychology of religion at Andover Newton Theological Seminary; Harvard theologian Harvey Cox (1977); retired MIT theologian and scholar of comparative religion Huston Smith (1964, 1992); Jesuit scholar David Toolan (1987); and David M. Wulff, professor of psychology of religion at Wheaton College (1991). A landmark scientific study, the "Good Friday Experiment" conducted under the sponsorship of Harvard University by physician and minister Walter Pahnke in 1962, also strongly supports the thesis that the entheogens facilitate mystical consciousness and are compatible with Christian worship (Pahnke 1963; Pahnke and Richards 1969; Doblin 1991).

Religious Liberty

In the religious persecutions of the European early modern age, whether the struggle was Catholic against Lutheran, Calvinist against Anabaptist, or Anglican against Unitarian, the central issues tended to concern the efficacy of various sacraments. The same issue has resurfaced in the suppression of entheogenic practices. It's not surprising that people take very seriously disagreements about what can actually bring them closer to the divine. But Americans decided two centuries ago that such arguments are too important to be settled by force or by majority vote (Madison 1787). They are best left to the decisions of spiritual communities or to the individual conscience.

The First Amendment and a variety of statutes, administrative practices, and judicial decisions all protect religious freedom in this country. The fundamental principles of that corpus of law are that 1) the state may not treat any particular religion preferentially and that 2) you can live your religious life pretty much as you choose so long as you don't infringe the rights of others or interfere too much with state interests.

The entheogens present a complex problem for those who want to make good on our nation's promise of religious liberty. The classical form of religious persecution involves banning certain activities expressly because of their religious intent or content. That kind of persecution is relatively easy to identify and remedy. With entheogens, the present burden on religion comes in the form of a general ban on substances that are sometimes used spiritually and sometimes not. To relieve the burden, an exemption must be granted from the laws of general applicability that impose the burden.

Native American Use of Peyote

This complex problem has been thoroughly explored in the instance of the Native American sacramental use of peyote. As the peyote religion spread among tribes in the U.S. in the late 1800s, it was met with explicit government persecution in the form of rules forbidding Indian use of peyote and, for example, "old heathenish dances." Since then, numerous contradictory federal and state legislative, regulatory, enforcement, and court actions have variously supported and denied Indian use of peyote (Peregoy et al. 1995).

The most prominent failure to accommodate this religious practice was the 1990 Supreme Court decision in Employment Division v. Smith,, which held that the First Amendment does not protect the religious use of peyote by Native Americans. The court reached its decision by changing prior standards to make it much harder to get relief from laws of general applicability that burden religious activity. A broad coalition of religious bodies responded swiftly by advocating new federal legislation, leading to the enactment of the Religious Freedom Restoration Act of 1993 (PL 103-141; Carmella 1995). Finally, in 1994, the Federal government enacted the American Indian Religious Freedom Act Amendments (PL 103-344), providing consistent protection across all fifty states for the traditional, ceremonial use of peyote by American Indians.

What price, if any, does society pay for the granting of this religious liberty? The House of Representatives Committee on Natural Resources reported recently that "Medical evidence, based on the opinion of scientists and other experts, including medical doctors and anthropologists, is that peyote is not injurious;" (HR 103-675 1994:7). Indeed, with a long history of use and several hundred thousand people currently active in the Native American Church, the incidence of peyote-related harm appears to be vanishingly small (Bergman 1971). What is more, the Committee also reported that "Spiritual and social support provided by the Native American Church has been effective in combating the tragic effects of alcoholism among the Native American population;".

Accommodating Other Entheogen Practices

So U.S. law now accommodates one racial group practicing one religion using one controlled substance. Yet there are also non-Indian religious groups and individuals in this country for whom entheogens play a central sacramental role. They are less well-known at least in part because, in the absence of protections, their worship potentially subjects them to fines, forfeitures, and imprisonment. How could we respond to a non-Indian group that wishes to use peyote in its religious practices? Or to a group that wants to use some other plant or chemical for similar purposes?

It is possible to hold the view that people ought to be permitted to use some controlled substances for religious purposes without holding the libertarian view that everyone ought to be able to use any drug for any purpose. On a more practical level, you can believe that it is safe for people to take peyote and therefore to permit peyote taking, without also believing that another drug is safe and should be available.

Thus, the right to free exercise of religion could be honored by granting narrow exemptions for the use of only some substances in carefully circumscribed religious contexts. Such exemptions would support the anti-drug-abuse objectives of the current drug laws. If a religious group without a demonstrated safety record were to seek an exemption, Government might reasonably ask a number of questions, for example:

• Is the group working with a substance of reasonable safety?
• Does it draw a reasonably sharp line between ritual and recreational use?
• How is informed consent obtained?
• What safeguards does it incorporate in its practices to protect participants?
• What is its policy regarding minors?