The DEA is Playing God with Psychedelic Churches

     

The United States is home to a number of religions, including the Church of the Flying Spaghetti Monster, in which adherents, known as “Pastafarians,” claim a giant bowl of pasta in the sky created the world. There’s also the First Presleyterian Church of Elvis—yes, as in the ‘50s rock star—where church members face in the direction of Las Vegas once a day while praying and, among other obligations, make a pilgrimage to Graceland (Elvis’s Tennessee estate) once in their lives.

While neither church is legally sanctioned in the US—although, the Church of the Flying Spaghetti Monster is recognized as a legitimate religion in New Zealand—the fact remains: Religions do not require any official approval to exist in the United States. Thanks to the First Amendment’s Free Exercise Clause and the Religious Freedom Restoration Act (RFRA), people in the US have an innate privilege to practice the religion of their choice without government interference.

It’s beautiful in theory. But religious freedom in the US is conditional, particularly when psychedelics are involved. That’s when it becomes a matter for the Drug Enforcement Administration (DEA). And that’s when things get hairy.

The Controlled Substances Act (CSA), a law signed by Richard Nixon in 1970 which criminalizes drugs from cannabis to LSD, is the DEA’s bible—and the vanguard of the drug war. Most psychedelics are Schedule I drugs, the most highly restricted category on the CSA—meaning they’re defined as having a “high potential for abuse” and “no currently accepted medical use.” This also means there’s a narrow framework by which the DEA considers these substances to have permissible use. It begs the question: Can the DEA see the use of psychedelics or facilitation of these substances outside of a draconic drug war paradigm? The case between Soul Quest Ayahuasca Church of Mother Earth, an ayahuasca church in Florida, and the DEA suggests not.

The Controlled Substances Act (CSA), a law signed by Richard Nixon in 1970 which criminalizes drugs from cannabis to LSD, is the DEA’s bible—and the vanguard of the drug war.

It all started in 2016, when DEA Agent James Graumlich discovered Soul Quest’s offerings online, kicking off a six-year saga that still isn’t resolved. Shortly after Graumlich’s discovery, the DEA invited the church to go through its “RFRA Guidance” process to petition for religious exemption. The one-page petition form requests sensitive information, including addresses, names of church leaders, and details about manufacturing, distribution, exportation, use, and possession of the substances churches use and deem to be sacraments. Soul Quest complied and sent the DEA the requested information by 2017. After three-and-a-half years of radio silence, Soul Quest sued the DEA in 2020, asking the court for a permanent injunction to use ayahuasca sacramentally. Notably, Soul Quest filed in the United States District Court for the Middle District of Florida, where the case was assigned to Judge Wendy Berger, a Trump appointee. Not long after, the DEA requested a stay of proceedings to halt further legal processes and resolve the matter directly with Soul Quest. The church believed all negotiations at that point forward would be geared toward a positive resolution. But instead, in April 2021, the agency issued Soul Quest a denial letter.

Soul Quest amended its claim to include the DEA’s denial. From there, the judge said they didn’t have jurisdiction over the DEA’s denial and dismissed the case. The DEA filed something called a motion to dismiss that claim, which the court granted. Soul Quest filed an appeal against the dismissal, which was argued before a panel of Appellate Court judges in late January of 2023. If the panel rules in favor of Soul Quest, and the DEA doesn’t subsequently appeal the Appellate Court’s decision, it will revive the church’s case in district court and allow them to continue fighting for an injunction to use ayahuasca. It’s unclear at the time of this writing when the Appellate Court will make a decision on the matter, however. (While Soul Quest remains in the throes of a legal battle with the DEA, the church also faces a separate, non-criminal wrongful death case and accusations of negligence, beyond the scope of this story, for issues unrelated to ayahuasca. No criminal charges were brought against them following an investigation.)

READ: Religious Access to Psychedelics is No Substitute for Decriminalization

The looming issue at the core of this case is bigger than Soul Quest: It’s the DEA believing it has the power to determine the legitimacy and sincerity of entheogenic religions. “There is a role for DEA in [dealing with religious exemptions from the CSA], but they are misguided in how they go about fulfilling that role,” says Gary Smith, founding partner of Guidant Law Firm and general counsel to the Peyote Way Church of God. “They go beyond what they should be doing as soon as they start evaluating the merit of religions, which is what they are doing with Soul Quest.”

Prohibiting a church from practicing its religion is a violation of the First Amendment, which acknowledges that religious freedom predates the United States and the Constitution, according to Smith. The DEA’s denial is also a direct violation of the First Amendment’s Free Exercise Clause, which protects citizens’ rights to practice their religion as they please so long as the practice doesn’t harm other people or a community, according to the most recent appeal filed by Soul Quest. Further, as outlined by the CSA, the DEA only has the power to grant exemptions to engage with controlled substances for medical, scientific, research, and industrial purposes. Neither the CSA, RFRA, nor the US Constitution gives the DEA authority to decide if a religion is sincere.

“The government should not be questioning the sincerity of religious values,” says Derek Brett, Soul Quest’s attorney from Burnside Law Group. “The agencies under which the church was [denied], which includes the DEA and the Department of Justice (DOJ), were supposed to give the widest latitude possible [for] allowing for religious institutions to be able to freely practice sincere religious beliefs.”

Even Jeff Sessions, the former US attorney general who was notoriously anti-drugs, believes the government can’t determine a church’s religious sincerity. In the “Federal Law Protections for Religious Liberty,” Sessions states that the federal government can’t determine if a particular person’s religious practice is reasonable. He also adds that a person or church is substantially burdened if governmental action “bans an aspect of religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice.”

At least six legal experts who’ve been following the Soul Quest case for the past six years assert that the DEA’s RFRA guidance petition—in which the DEA requires sensitive information from churches to assess whether they are legitimate or not—never went through a formal process to become law. That means churches are not legally obligated to fill out the petition form for religious exemption, even if the agency “invites” them to do so. One of the core ethical issues here is that when the DEA invites a church to apply for religious exemption, it may not be clear to the church that they’re not required to comply.

“Sacred medicine churches aren’t required to go through the DEA petition process, and most lawyers and legal advocates advise against it,” says Ariel Clark, founding partner at Clark Howell LLP, a cannabis and psychedelic law firm. She’s also a founding member of the Psychedelic Bar Association, the first bar association for attorneys working within the burgeoning psychedelic field. “Also, based on the fact that Congress never granted the DEA the authority to judge religious sincerity, along with the failure to adhere to the APA in creating the petition for religious exemption, there is a real question about the validity of the petition process.”

At least six legal experts who’ve been following the Soul Quest case for the past six years assert that the DEA’s RFRA guidance petition—in which the DEA requires sensitive information from churches to assess whether they are legitimate or not—never went through a formal process to become law.

The distinction here is subtle, but important: The DEA is a sub-agency of the Department of Justice (DOJ) and, as such, it can issue regulations which are enforceable. But, in order to do so, based on something called the Administrative Procedures Act (APA), it must publish notices of proposed and final rulemaking in the Federal Register and provide opportunities for the public to comment on notices of proposed rulemaking. The DEA didn’t do any of this, according to multiple legal experts, including Derek Brett, Soul Quest’s lawyer. This means, as it stands, the RFRA guidance petition is just that: a “guidance,” or a non-binding and unenforceable document, as opposed to a law. DoubleBlind reached out to the DEA for comment (on this and other aspects of this story) multiple times over the past year, and the agency said it could not comment on the matter.

“The DEA has the authority to issue regulations allowing the nondrug use of ayahuasca, and even psilocybin, in bona fide religious ceremonies. The DEA did this early on for peyote. In the early 1970s, the DEA at the request of Congress and the Native American Church did a regulatory carveout for peyote religious use,” says Brad Bartlett, a Colorado attorney who specializes in psychedelics law. “The DEA’s peyote regulation, which is still on the books, pre-dated Congress’ statutory protections for American Indian peyote ceremonies by a quarter century. Ayahuasca and other plant medicine religious communities in the US would be well served to use a similar tactic as the peyoteists—filing a rulemaking petition with DEA requesting a regulatory carveout for religious exercise with ayahuasca or other substances used sacramentally. Unlike RFRA litigation which only addresses the religious practice of one particular church, a DEA rulemaking petition and regulatory carve-out, if successful, would create a bigger tent and open the door for religious exercise on a much broader scale.”

Soul Quest isn’t the only entheogenic church the DEA has invited to petition for religious exemption. In 2008 and 2009, they denied two cannabis churches, respectively. Including Soul Quest, three separate churches (at least) have been denied religious exemption from the CSA via the petition process. Legal experts in both cannabis and psychedelics law say no entheogenic churches have received religious exemption since the inception of the petition process. Ironically, the DEA posted the petition process online after Santo Daime “Church of the Holy Light of the Queen” acquired religious exemption through litigation from the CSA to use ayahuasca in 2009.

The petition process positions the DEA as a formidable gatekeeper to religious freedom for entheogenic churches. According to legal experts, the application is designed like a setup and violates the Fifth Amendment because it baits people into surrendering self-incriminating information. That’s what the Fifth Amendment allegedly protects citizens from. There are technically no safeguards in place preventing the DEA from targeting petitioners after the agency obtains their information.

“Let’s just be blunt: I don’t know why anyone would fill out the [petition],” says Smith. “The DEA is basically saying, ‘Hey, can you please give us a complete confession of what we are going to tell you upfront are felonies? And can you sign it under oath, too, so we can really nail the screws in afterward?’ Yeah, that’s what that application does.”

The petition process puts churches in a precarious position. The DEA explicitly forbids petitioners from holding sacramental ceremonies while awaiting the agency’s decision. Additionally, the DEA isn’t obligated to provide an answer within any specified window of time—hence why Soul Quest waited three-and-a-half years before receiving a denial. Not only is this a burden on the ability to practice one’s religion, according to Jeff Sessions’ statement, but it also puts churches in a vulnerable position. If they are caught holding a ceremony, the repercussions could be dire. But if the church doesn’t use its sacrament, the DEA can also use that as evidence showing the substance is not essential to their religion.

“The consequences of non-compliance are obvious—the [petition for religious exemption] can be rejected,” writes Charles Carreon, attorney for Arizona Yage Assembly ayahuasca church, in a Fifth Amendment analysis of the DEA’s petition process. “Alternatively, if the [petition] falsely swears that the applicant has ceased using a controlled substance sacrament, the signer could be indicted for perjury. Finally, if the applicant does in fact cease using the controlled substance sacrament, or substitutes a non-controlled substance, the applicant will thereby undermine its claim that use of ayahuasca made with [DMT] is ‘essential’ to its religious practice.”

DoubleBlind asked the DEA if the agency sees the petition process as a burden to religious organizations, but as stated earlier, they did not reply with anything of substance. A spokesperson did say this, however: “RFRA cases are [examined on] a case-by-case basis. We are obligated to uphold the law as it is today, but we are reviewing the RFRA rule now.”

READ: Rick Strassman on DMT and the Mystical State

The Soul Quest case shows that the DEA assesses entheogenic religions from a two- dimensional, even extra-statutory, perspective. “The dominant Western lens organizes ‘medicine,’ ‘religion,’ and ‘drugs’ into separate and disconnected boxes,” says Clark. “Under that same lens, ‘drugs are bad’ but also ‘drugs are good only if provided by a doctor or in a medical setting.’ We see this lens in the DEA’s response to the Soul Quest petition.”

An upside for other entheogenic churches and the attorneys supporting them is that this case has provided insight into the criteria the DEA uses to determine legitimate religious use of a controlled substance. “Soul Quest referring to ayahuasca as ‘medicine’ or ‘therapy’ was one of the main grounds cited by the DEA for denial of the petition as proof that Soul Quest’s use of ayahuasca wasn’t religious,” says Clark. “So, a takeaway for religious communities who may want to engage in the petitioning process and/ or guard against DEA enforcement is to steer- clear of referring to a sacrament as ‘medicine’ or ceremonies as ‘healing.’ The [DEA’s] inability to make space for and respect other cultural lenses in the petitioning process is extremely problematic.” The DEA also cited issues, including diversion of ayahuasca (i.e. procuring an illicit drug and administering it to people); inconsistencies regarding the Church’s holy text, The Ayahuasca Manifesto; and where Soul Quest procured its sacrament from (Europe, not the Amazon). Soul Quest is scheduled for trial in March of 2023.

The stakes are high for Soul Quest’s case. What happens will impact the future of religious exemption in the US. On a micro-level, it already has.

The stakes are high for Soul Quest’s case. What happens will impact the future of religious exemption in the US. On a micro-level, it already has. Prior to Soul Quest’s petition attempt, churches and their lawyers had no choice but to blindly navigate through the guidance procedure. It’s still shrouded in mystery, but a mound of sharp legal analysis now exists about the process thanks to Soul Quest’s dance with the DEA. The upcoming litigation will also provide a temperature check on what the law views as more valuable: the CSA or religious freedom.

“There’s a good way to win this, and it’s through the court,” Brett says. “The DEA has directly violated RFRA, the Administrative Procedures Act, and the US Constitution. Do I feel confident that we will ultimately be victorious before the federal court? You better believe I am.”

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