Entheogens and the Free Exercise Clause
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From the Entheogen Law Reporter
This article originally appeared in The Entheogen Law Reporter (Issue No. 4, Fall 1994), and is reproduced here with permission. (See last page of this document for rules on reproducing this document.)
The Entheogen Law Reporter and the Council on Spiritual Practices are not engaged in rendering legal or other professional advice and assume no responsibility for the statements advanced in the following document. The information in the document is subject to change without notice and is not intended to be, nor should it be considered, a substitute for individualized legal advice rendered by a competent attorney. The Entheogen Law Reporter (POB 73481, Davis, CA 95617) should be consulted for the latest information relevant to this document.
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Entheogens & the Free Exercise Clause:
Practical Legal Aspects for Individuals
Copyright 1994 The Entheogen Law Reporter
"The government's war on drugs has become a wildfire that threatens to consume those fundamental rights of the individual deliberately enshrined in our Constitution. Ironically, as we celebrate the 200th anniversary of the Bill of Rights, the tattered Fourth Amendment right to be free from unreasonable searches and seizures and now the frail Fifth Amendment right against self-incrimination or deprivation of liberty without due process have fallen as casualties in this war on drugs. It was naive of this Court to hope that this erosion of constitutional protections would stop at the Fourth and Fifth Amendments. But today, the war targets one of the most deeply held fundamental rights — the First Amendment right to freely exercise one's religion."
- Chief Judge Burciaga, United States v. Boyll (D. N.M. 1991) 774 F.Supp. 1333, 1334.
The free exercise clause of the First Amendment of the United States Constitution mandates "Congress shall make no law...prohibiting the free exercise" of religion. This article will survey the factors which have guided courts in determining whether or not anti-drug laws have violated a person's right to freely exercise his religious beliefs. By presenting the factors that courts have deemed important, it is hoped that persons seeking First Amendment protection for their religious use of entheogens will be better able to tailor their practices to increase the chances that protection will be granted by a court in the event that such person is ever arrested for unauthorized possession of a controlled substance.
Before beginning such a survey, it cannot go unnoted that free-exercise jurisprudence in general is a jumbled mess of changing standards, faulty reasoning, and, perhaps most frustrating as of late, a propensity to completely abandon the role of judge and entirely defer to the legislature. When entheogens are the subject of a case, jurisprudential dissonance amplifies to often excruciating levels. While there is much to criticize in the judicial decisions involving the religious use of entheogens, the leveling of such criticism will not be focus of this article. Instead, this article will present a distillation of the various factors that the courts have deemed relevant when deciding whether or not to grant First Amendment protection to a religious user of entheogens.
Just as a tax lawyer would review with clients the various factors relevant to a judicial determination of legal versus illegal tax deductions for the purpose of assisting his or her client in arranging business purchases and ultimately reducing or eliminating tax liability, this article will examine the factors relevant to a judicial determination of whether or not a particular entheogen based religious practice is or is not protected free exercise of religion.
The survey must begin with an overview of the recent bifurcation in free-exercise jurisprudence. Prior to April 17, 1990, when the United States Supreme Court decided Employment Div., Dept. Of Human Resources v. Smith (1990) 494 U.S. 872 [108 L.Ed.2d 876, 110 S.Ct. 1595] (Smith), free exercise issues were resolved by application of the legal standard known as "strict scrutiny," and specifically analyzed by employing the "compelling state interest" (CSI) test. In a nutshell, the CSI test is an ends-oriented balancing test weighing: (A) a law's burden on an individual's religious practices; against (B) the state's interest in enacting and enforcing the law without exception. A law which substantially burdens a person's sincere religious practices, would be declared unconstitutional if the court determined that laws burden on religion was not justified by a compelling state interest. In slightly more detail, the CSI analysis is divided into three component stages: (1) Does the challenged law substantially burden the person's free exercise of religion? (2) Is the law necessary to accomplish a compelling state interest? (3) Will accommodating the person's religious practice unduly interfere with accomplishing the compelling state interest? (U.S. v Lee (1982) 455 U.S. 252, 256-259.)
In the Smith decision the Court made a sudden and radical departure from the CSI test, holding that Oregon's across-the-board prohibition against possession of peyote did not violate the free exercise rights of two members of the Native American Church because the Oregon law proscribing the possession of peyote was not specifically aimed at burdening religious practice. In other words, the Court announced a new test entirely at odds with the historically employed ends-oriented strict scrutiny analysis; a neutral and generally applicable criminal law does not implicate the First Amendment's free exercise clause. (Smith, 101 S.Ct at p. 1603.) In other words, under Smith, all anti-drug laws pass free exercise muster because they are not specifically aimed at prohibiting or infringing on religious practices. Therefore, under the neutrality test enunciated in Smith, an anti-drug law's incidental burden on a person's religious practice does not raise a viable free exercise issue.
The Supreme Court endorsed the neutrality test again in 1993, when Justice Kennedy, writing for the majority, reiterated : "a law that is neutral and of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice." (Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) ___U.S.___[113 S.Ct 2217, 2226, 124 L.Ed.2d 472, on remand 2 F.3d 369 (11th Cir. 1993.) [striking down Hialeah, Florida's ordinance prohibiting animal sacrifice after finding that the ordinance was not neutral but rather was enacted for the specific purpose of discouraging the Santeria religion from establishing itself in Hialeah, Florida.] In contrast to the ends-oriented CSI test, the neutrality test, is intent oriented, and looks at the legislature's purpose in enacting the law, rather than the legislation's actual impact on religious practice. With the enunciation of the neutrality test in Smith, any hope that an entheogen based religious practice would find protection under the free exercise clause was completely squelched.
Fortunately, just as things seemed to reach their darkest moment, President Clinton, on November 16, 1993, signed into law the Religious Freedom Restoration Act of 1993 (RFRA). (42 U.S.C. 2000bb, PL 103-141, 107 Stat.1488.) The express purpose of the RFRA was to restore the compelling state interest test, after "the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion." (42 U.S.C. 2000bb, subd. (a)(4).)
The RFRA explicitly states:
(a) In General
Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person.
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental
(42 U.S.C. sec. 2000bb - 1)
The legal effect of the RFRA is unclear. Some scholars argue that the legislation does not supersede a Supreme Court decision, which can only be reversed or overruled by a constitutional amendment or a subsequent decision by the Supreme Court explicitly overruling its earlier decision.1 If Smith remains good law, it is practically impossible for entheogen users to obtain relief from the anti-drug laws on free exercise grounds.2 On the other hand, if the RFRA truly restores the viability of the compelling state interest test, at least some hope remains for religiously motivated entheogen users. Since this discussion is otherwise moot, this article will assume the RFRA is constitutional and that the CSI test has been restored as the standard for determining whether a law violates a person's free exercise rights.
Because the CSI test was in force for over 30 years prior to the Smith decision, a considerable amount of information can be extracted from the previously published cases examining the free exercise claims of entheogen users. In fact, there are well over seventy published decisions in which courts have directly addressed the free exercise rights of religious users of controlled substances, employing the CSI test to reach their decisions.3 In the overwhelming majority of these cases, the courts have upheld the constitutionality of the anti-drug law and/or refused to grant the religious user an exemption, after finding that the complete prohibition of drug use was necessary to further the government's compelling interest in preventing drug abuse and maintaining the social welfare. (See for example, Leary v. United States, 383 F.2d 851, 860-861 (5th Cir. 1967) rehearing denied, 392 F.2d 220, reversed on other grounds, 89 S.Ct. 1532, 392 U.S. 6, 23 L.Ed.2d 57 (1968) ["It would be difficult to imagine the harm which would result if the criminal statutes against marijuana were nullified as to those who claim the right to possess and traffic in this drug for religious purposes. For all practical purposes the anti-marijuana laws would be meaningless, and enforcement impossible."]; United States v. Kuch, 288 F.Supp. 439, 455 (1968) ["If individual religious conviction permits one to act contrary to civic duty, public health and the criminal laws of the land, then the right to be let alone in one's belief with all the spiritual peace it guarantees would be destroyed in the resulting breakdown of society."]; Randall v. Wyrick, 441 F.Supp. 312, 316 (1977) ["Missouri's marijuana laws are still based on reason. [Footnote omitted.] They are directed against a continuing social and health problem and the purposes of the statute cannot be accomplished without continued full enforcement."]; State v. Bullard, 148 S.E.2d 565, 568-569 (1966) ["It is true that [the first] amendment permits a citizen complete freedom of religion. He may belong to any church or to no church and may believe whatever he will, however fantastic, illogical or unreasonable, but nowhere does it authorize him in the exercise of his religion to commit acts which constitute threats to the public safety, morals, peace and order."].)
Cases such as those just cited make clear that courts have an overwhelming fear that granting a religious exemption to the anti-drug laws will effectively result in the complete undoing of the anti-drug laws. Therefore, the courts traditionally have viewed wholesale drug prohibition as the only effective way of supporting the compelling state interest of maintaining public health and welfare. Awareness of this fear, and taking all possible steps to alleviate it, is essential when formulating a plan for religious use of entheogens.
With a background now in place, we will turn to specifically examining the CSI test as it relates to persons seeking legal protection for the religiously motivated use of entheogens. The first two prongs of the CSI analysis are rather straight forward in both theory and application. Under the first prong, a court will examine whether or not the anti-drug law substantially burdens an entheogen user's right to freely exercise his or her religion. Obviously, to the extent that the state and federal anti-drug laws outlaw possession of entheogenic substances that are sincerely used as sacraments or to facilitate communion with the Divine Absolute, the anti-drug laws directly burden entheogen based religions. For all practical purposes, the anti-drug laws make all shamanic religions illegal by declaring possession of the essential tools/sacraments a crime.
A survey of the case-law reveals that two sub-issues come into play when courts analyze the first prong of the CSI test. In addition to the fundamental question of whether or not the anti-drug law burdens the person's religion, courts have examined: (a) whether or not the person is sincere in claiming he or she uses entheogens for religious purposes; and (b) whether or not use of the entheogen is indispensable or central to the person's religion. The burden of proving both sub-issues falls on the person claiming the religious protection.
With respect to the sincerity sub-issue, the courts have expressed a concern with the prospect of large numbers of people attempting to side-step the anti-drug laws by bogus assertions that their use of an illegal substance was religiously motivated. In the "experimental law" category, sincere religious users of entheogens should consider drafting personal declarations articulating the religious motivation underlying their ingestion of controlled substances. (See example Declaration at end of this article.) Such a document should be executed as soon as possible so that in the event the declarant is subsequently arrested some evidence will exist showing that his or her religious claim is sincere rather than a post hoc justification or legal maneuver later concocted to avoid conviction for illegal drug possession. This document should be kept in a secure location such as a safe deposit box and only disclosed to one's defense attorney in the event of arrest and if one is determined to raise a religious defense as opposed to a defense of reasonable doubt.
With respect to the centrality sub-issue, some courts distinguish integral use of an entheogen from "auxiliary" use. For example in one marijuana sacrament case, a California court refused to find First Amendment protection for a defendant's use of marijuana not as a sacrament, but rather as an auxiliary method for achieving religious insight. (People v. Collins (1969) 273 Cal.App.3d 486 ["Defendant testified that he used marijuana in order to extend and intensify his ability to engage in meditative communication with the Supreme Being, to attain spiritual peace through union with God the Father and to search out the ultimate meaning of life and nature.... [T]he law [proscribing possession of marijuana] does not bar him from practices indispensable to the pursuit of his faith."].)
The centrality factor has taken on less importance in recent years, but it is still tacitly examined by courts reviewing a law's burden on religious practice. Recalling that the CSI test is a balancing test, a person seeking protection for his or her entheogen-based religious practice would do well to concentrate on maximizing those factors that evidence the anti-drug law's burden on his or her religious practice. Therefore, a person seeking First Amendment protection for religious entheogen use, should consider making clear in their personal declaration that entheogen use is the "theological heart" of their religion; that entheogen use is a central and necessary component to his or her sincerely held religious beliefs. (See People v. Mullins (1975) 50 Cal.App.3d 61, 123 Cal.Rptr. 201.)
Once a person has satisfied the first prong of the CSI analysis, the burden of proof shifts to the government to establish the second prong; namely, to show that the burden on religion is justified by a compelling state interest. As touched on earlier, the government will predictably argue that the anti-drug laws are necessary to maintain the health and well-being of individuals and of society in general. It is fruitless for a religiously motivated entheogen user to attack the government's general point. Rather, all attention should be focused on the third prong of the analysis — showing that accommodating the person's religious use of entheogens will not unduly interfere with the government's compelling interest in maintaining individual and social health and well being.
Simply put, entheogen users seeking religious protection should strive to position their religious practices such that the state's anti-drug laws are shown to be unnecessarily broad; that complete and absolute prohibition is not the least restrictive means of accomplishing the state's objective. Under the CSI test, a law that burdens religion must be carefully tailored to the interest which the state asserts motivates the law. In other words, the religious practitioner will want to show that his or her religious use of entheogens does not interfere with the government's interest in prohibiting drug use in general or with the government's ability to enforce the general laws.
Here the courts have examined several factors. Courts, will look at the particular substance claimed by the practitioner as his sacrament or vehicle for the Divine Absolute. For example, in Olsen v. Drug Enforcement Administration (D.C. Cir. 1989) 878 F.2d 1458,5 Carl Olsen, a priest in the Ethiopian Zion Coptic Church, petitioned the DEA for an exemption to the federal Controlled Substances Act to the extent that it prohibited possession of the Church's principal sacrament, marijuana. The DEA refused to grant the requested exemption, and the United States Court of Appeals for the District of Colombia Circuit upheld the DEA's refusal. The court distinguished the sacramental use of marijuana from the Native American Church's sacramental use of peyote by calling attention to what it perceived as "the immensity of the marijuana control problem in the United States." In other words, the court justified the peyote exemption for the NAC but the denial of a similar exemption for religious marijuana users, by pointing to the vastly different magnitudes of illegal marijuana use versus illegal peyote use. The court was troubled by the fact that over fifteen million pounds of marijuana were seized by the DEA from 1980 - 1987, whereas only about 19 pounds of peyote were seized over that same time period. (Olsen, at p. 1467.) This distinction is clearly of use to religious users of relatively arcane entheogens such as ayahuasca and even psilocybin containing mushrooms, since relatively few governmental seizures of these substances occur each year.
As a practical matter, a court will be more inclined to grant religious protection to a person utilizing a single entheogen rather than a multitude of entheogens. In fact, every case finding in favor of religious use of entheogens has involved a person or church employing a single entheogenic sacrament — namely, peyote.
Some courts have refused to grant religious protection for fear that the entheogen might make its way outside the confines of the religious ceremony. To address this fear, entheogen users should strongly consider devising a method for strictly controlling the acquisition, storage and access to their entheogen. The aim is to prevent the entheogen's use by someone other than the practitioner outside the context of a religious ceremony. To complement the strict control program, the declaration should include a statement that the declarant considers it sacrilegious to use of the entheogen outside the confines of a religious ceremony. This documents the person's recognition of the state's interest in generally prohibiting such substances and reinforces the person's statement that use of the entheogen occurs only during a religious ceremony. (See generally, Olsen, at p. 1462.)
Finally, it goes without saying that preparation of a personal declaration is only the first step in attempting to set the foundation for a religious defense in the event of a future criminal prosecution. Assuming the declaration is admitted into evidence,6 rest assured that the court and jury will carefully scrutinize whether or not the person's actual conduct conformed to the statements contained in the declaration. Actions speak louder than words.
1. In remarks made on the South Lawn at the White House on November 16, 1993, when signing the RFRA, president Clinton stated:
"The power to reverse by legislation, a decision of the United States Supreme Court, is a power that is rightly hesitantly and infrequently exercised by the United States Congress. But this is an issue in which that extraordinary measure was clearly called for. As the Vice President said, this act reverses the Supreme Court's decision Employment Division against Smith and reestablishes a standard that better protects all Americans of all faiths in the exercise of their religion in a way that I am convinced is far more consistent with the intent of the Founders of this Nation than the Supreme Court decision.
More than 50 cases have been decided against individuals making religious claims against Government action since that decision was handed down. This act will help to reverse that trend by honoring the principle that our laws and institutions should not impede or hinder but rather should protect and preserve fundamental religious liberties."
2. Though I am not aware of the argument ever having been made before, I believe that given the appropriate factual background it may be possible to argue that the anti-drug laws, to the extent that they prohibit possession of substances such as peyote, DMT, and psilocybin, are not neutral or general in their application, but rather were specifically designed to prohibit peyote, DMT, and psilocybin based religious practices. This argument would require the compilation of historical evidence that at the time peyote, DMT, and psilocybin were added to the Controlled Substances Act, they were not general drugs of abuse posing health or social dangers, but rather were used almost exclusively by people seeking religious insights.
3. The published opinion of every case directly addressing the free exercise issue in the context of entheogen use are on file in the TELR office. A copy of any case is available to subscribers for the cost of photocopying (15 cents per page) and postage. TELR is also considering publishing a low-cost compilation of the ten most important court opinions on this topic should subscriber demand warrant it.
4. As TELR intimated by calling the declaration "experimental," the ultimate value of such a declaration has never been tested in a court.
After this article appeared in TELR, several people contacted TELR questioning the wisdom of such a declaration. The comments received from one attorney succinctly express the concern:
I am somewhat skeptical of your declaration. It can be viewed as a confession. Frankly, I think a defendant is best advised to keep his mouth shut. There have been a lot more cases won on affirmative link than on the First Amendment. The score is about 10,000 to zero. If the declaration is in the arrestee's papers, the constabulary is going to seize it and prove affirmative link.
In correspondence with him I addressed his point:
Your point is well taken, however, I still like the idea of the declaration in the context provided by the article in which the declaration was embedded. It was not presented as a get-out-of-jail-free card, claiming that if you have one of these your conviction-proof.
I think a declaration like that presented in TELR is about the only way an individual religious user of an entheogen (as opposed to an Indian who uses peyote in a religious ceremony) will be able to establish a defense under the First Amendment. Since most entheogen arrests do not occur in the midst of a religious ceremony, absent such a pre-existing declaration there will be very little proof that the person really used the substance for religious purposes. History shows that a trial judge will likely bar the defendant from even presenting the religious defense without substantial evidence that the substance was truly used in a religious practice.
Other than the NAC and other peyote-using churches, I bet there are less than 300 people in the United States who are members of an incorporated church that openly uses entheogens. The vast majority of religious entheogen users operate individually, or in very small groups that the typical court will be hard-pressed to classify as "churches" or "religions." These people often have a deep fidelity to their entheogen, believing that it is one of their most fulfilling relationships and a necessity for true prayer.
These people, if ever arrested, will not renounce the use of their entheogen. They view the criminal justice system as operating far outside its limits when it claims the power to tell them that they cannot engage in the peaceful act that brings them the greatest spiritual fulfillment. These people want the right to practice their religion without the fear of having the government ruin their life.
The declaration was for these people.
There is no doubt that the declaration is a double-edged sword. It is, without question, an admission that the defendant uses the entheogen and knows that it contains a scheduled substance. This admission proves 90 percent of the prosecution's burden in a drug possession case. The sole aim of the declaration is to create what might be the only evidence of the defendant's pre-arrest religious intent. For an individual using an entheogen for a religious purpose (as opposed to a member of the Native American Church using peyote in a Teepee Ceremony), sincere religious intent will undoubtedly be one of the most difficult elements to establish.
To clear up any confusion: The only people who should consider preparing a declaration like that modeled in this article are those people: (1) who, because they are not members of an established entheogen-using church, need to document their religious intent; and (2) fully intend to make efforts at presenting a religious defense (under the Religious Freedom Restoration Act) in the event they are ever arrested. If a person plans to defend on some other ground (e.g., "it's not mine," or "I didn't know what it was"), the declaration, if found, will likely be the best thing the prosecutor could have to rebut the defense.
Choose your weapon wisely.
5. It is informative to note that the majority opinion in Olsen was written by then Judge Ruth Bader Ginsburg of the D.C. Circuit court, now an associate justice on the United States Supreme Court.
6. For arguments in favor of the admissibility of such a document please contact TELR.
(Here follows the skeleton of a sample declaration. Modify it according to the entheogen you use as part of your religion. You MUST include without modification the final line that begins, "I declare under penalty of perjury....")
DECLARATION OF [TYPED NAME]
I _[typed name]_ do hereby declare that I am a resident of the State of _[state]_, __[county]__ county, city of __[city]___, and reside at _[street address]__.
1. I have written this document on the date attested below for the purpose of documenting my sincerity and noncriminal intent with regard to my religious ingestion of [entheogen].
2. The sacramental ingestion of [entheogen] is a central and indispensable element of my religion. I sincerely believe that sacramental ingestion of [entheogen] is to partake of communion with the Divine Absolute a.k.a., God.
3. I am aware that [insert history of specific plant, fungi or substance's historical link to religious use.]
4. As part of my religion, I partake of the sacramental ingestion of [entheogen] on a __[period of ingestion]__ basis. These religious services are held on private property, in a safe environment which presents no reasonable danger to myself or to others. [Insert other details if relevant.]
5. I ingest [entheogen] solely for religious purposes and believe that the recreational ingestion of [entheogen] is sacrilegious and could be harmful.
I declare under penalty of perjury under the laws of the State of _[state]_ that the foregoing is true and correct.
[Have Notary sign and date.]
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Since time immemorial, humankind has used visionary substances as integral tools for achieving spiritual insight and understanding. In the twentieth century, however, many of these most powerful of tools were decreed illegal in the United States and their users declared enemy's of the state -- i.e., criminals. The Shaman has been outlawed. It is the purpose of The Entheogen Law Reporter to provide up-to-date information and commentary on the intersection of entheogens and the law.
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