The prevalent attitude on this topic can be summed up as follows: "Unfortunately, the courts and law enforcement in the United States are rarely sympathetic toward the use of psychoactive sacraments."(3)
Questions to answer
1. What are the existing laws around the religious use of entheogens?
2. What are the exceptions to these laws - legal churches that use entheogens as sacraments?
3. What commonalities do the existing legal churches share?
4. What do the courts have to say and what is the current legal climate?
5. What are the legal rights of parents in terms of being able to participate in the religious use of entheogens as part of their First Amendment rights within - or without - the context of these churches?
6. What are the legal precedents in terms of children being able to be present at these religious ceremonies? In terms of children being able to choose to consume the sacraments at their parents' church?
7. What is the history of legal proceedings against parents who have made religious entheogen use the basis of their spirituality, in particular in terms of custody battles, incarceration, and Child Protective Services? Are there parents who have (legally) fought for the right to include their children in these traditions?
As you can see there is a lot of territory to cover!
1. Existing laws around the use of entheogens
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” - First Amendment to the Constitution of the United States.
As has been mentioned elsewhere in this blog, the following entheogenic substances - ayahuasca, peyote, psilocybin mushrooms, ibogaine, and wachuma - contain ingredients that are illegal to possess or consume (wachuma is legal to own but not to ingest) unless you are part of an organized entheogen-based church. Specifically, the illegal compounds are DMT, ibogaine, mescaline, peyote, psilocybin, and psilocybin (there are more but for the purposes of this book I am sticking to these few). (For a discussion about other entheogenic substances, see https://www.erowid.org/entheogens/ or http://entheopedia.org/plants) These are Schedule One controlled substances, meaning:
(A) The drug or other substance has a high potential for abuse.2. Exceptions (that I know about - still looking into this topic)
(B) The drug or other substance has no currently accepted medical use in treatment in the United States.
(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision. (4)
These churches have fought legal battles to protect their religious rights to use entheogenic sacraments: the Santo Daime Church and the Unaio de Vegetal Church (both ayahuasca churches), and the Native American Church (NAC), which uses peyote. Current law requires members of the NAC to have at least 25% American Indian ancestry, although some churches allow Caucasians to become members. (5) (Note: I am part of a legal church in the US that uses yagé as a sacrament, but as I have mentioned before, as requested by my elders, the name and members of this church will remain private.) I also have a local friend who has a church group dedicated to the sacramental use of wachuma, which operates as an official church through the NAC.
In order to become a church that employs the use of an illegal entheogen as a sacrament, in the past, an organization had to prove that the use of the sacrament in question was "...fundamental to the practice of their faith,"(6) and that they were a "REAL" church and not just an excuse for a bunch of people to get together and get high. This was done in a variety of ways, including proving their use of the sacrament came from a long-standing tradition, with elders and a lineage; condemning the use of their sacrament outside of the confines of their particular tradition (leading to a fairly conservative or fundamentalist perspective); and proving to the satisfaction of the court that the use of the entheogen/sacrament is "...THE CENTRAL practice in the religious life of the group." (6) This has proven quite difficult to prove, hence the very few numbers of organizations who have done so.
4. In the Courts:
I am not going to review all of the religious freedom court cases here. If you are interested in that topic please see The Entheogen Law Reporter - https://www.erowid.org/library/periodicals/journals/journals_telr.shtml; or The Hoasca case - http://www.journalofpsychoactivedrugs.com/Articles/Bullis%20402.pdf; or the countless other references available with the help of google!
However, the Supreme Court ruling in Employment Division v. Smith (1990), where two employees - also members of the NAC - were denied unemployment benefits after being fired for testing positive for mescaline (peyote) deserves special mention. This case left the religious freedom of entheogenic use in serious question. From the decision: "Although states have the power to accommodate otherwise illegal acts done in pursuit of religious beliefs, they are not required to do so." Basically the argument was that a person was not legally able to use their religious motivation to use peyote to defy the state of Oregon's neutral laws against possession of peyote.
This case precipitated the 1993 Religious Freedom Restoration Act (RFRA), which was passed by Congress in response to the needs of the NAC, as an attempt by the courts to restore the meaning of the First Amendment rights that had previously been held up by the courts. (See http://thefederalist.com/2015/04/01/how-rfra-works-explained-in-one-chart/ for a succinct summary of this act). This law reinstated the "Sherbert Test," the 'strict scrutiny' litmus for whether or not the free exercise clause guaranteeing a person's religious freedom had been violated. Interestingly, the RFRA was held unconstitutional by the Supreme Court, who said it is not "... a proper exercise of Congress's enforcement power." (7) As a result, twenty states have also passed State Religious Freedom Restoration Acts, to localize legislation.
My friend over at Psychedelic Parenting (http://www.psychedelicparenting.org/) makes a really good point about all this: that while, for example, a born-again Christin can prove their faith by simply affirming that they have accepted Jesus as their Lord and Savior and talking about prayer, it is exceedingly difficult for someone to prove that their use of entheogens IS their religion. As he writes, "...those Americans who subscribe to a personal spirituality involving entheogenic plants often fear to even pass on those values to their own children, for fear that the kids will tell the wrong teacher or friend, and the family will be divided, parents in prison, children in foster care. Should they wish to have the protection of the law to express their religious and spiritual beliefs, they must first be arrested, and then “prove” to a judge that they are, in fact a 'real religion'." "(Parents) have failed to pass on to their kids the source of their peacefulness, the sacrament that brings them understanding, the font of their joy, simply because they have been rightly afraid of the wedge that the law has put between them and their children."(6) The prevalent attitude is that people take these 'drugs' to get high. Period... and despite all evidence to the contrary! Even 'spiritual' people doubt the use of entheogens as a valid religious path, somehow thinking that people who become more enlightened using 'substances' are somehow cheating the process.
To close for the day, on the topic of the political climate of the use of entheogens, and in response to many of my friends' genuine concern in regards to my using my own name on this project (and their fear of repercussions), here is a quote from Martin Ball (see also http://www.entheological-paradigm.net/). I couldn't have said it better myself:
“The State has the power to destroy your life. There’s absolutely no question about that, and so the state is incredibly dangerous in that sense. And it’s vindictive, it’s misguided, it’s built on illusion upon illusion upon illusion. The problem is that these illusions can still come to get you, even if they’re illusions. It’s a difficult call that ultimately people have to judge for themselves. But the other side of that is this: If no one stands up, nothing’s going to change. Someone’s got to do it. Personally, reality is more important than anything I might want to protect, such as my own personal well-being or comfort, so I’m not going to hide myself in any way. Although there are certain details I’ll avoid discussing on podcasts. But if they really wanted me, the data is all right there. I’m all-in at this point. Don’t get me wrong, I love my family and the last thing I want would be to be separated from them, and although prison would profoundly suck, I’m not going to edit myself in order to avoid something that I don’t have any real certainty is actually going to happen. Reality will always win, eventually.” (8)
I will be posting more, sooner than next week, I hope (I mean... I intend!).
(3) Stuart, R. "Entheogenic Sects and Psychedelic Religions." http://www.maps.org/news-letters/v12n1/12117stu.html
(6) "Religious Freedom in a Post - "Burwell v. Hobby Lobby" World." http://www.psychedelicparenting.org/?cat=7
(8) Interview with Martin Ball. Psychedelic Parenting. http://www.psychedelicparenting.org/?cat=7