Legal Aspects of Entheogen Use in the US: Part Two

A note from my last blog: the following was a very important decision in this ongoing conversation, and was only referred to in brief last week as the 'Hoasca case.' 

Gonzales v. O Centro Espirita Beneficiente Unaio do Vegetal (2006):

This case highlighted the question of religious freedom to partake in a substance (hoasca) containing a 'drug' prohibited by the Controlled Substances Act (DMT) during a religious ceremony. According to the courts, the government did not pass the compelling interest test, and the right of UDV members to take the brew was upheld.  "UDV argued that the Religious Freedom Restoration Act, which prohibits substantial imposition on religious practices in the absence of a compelling government interest, established their right to use hoasca."(1)

Other things to note in today's discussion:

The Parental Rights Amendment: "The liberty of parents to direct the upbringing, education, and care of their children is a fundamental right."(2)  This has been proposed to include as part of an actual amendment to the constitution.  (See (3) for full text)

Troxel v. Granville (2000): the court concluded in this case that the "Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody and control of their children."(4)  Unfortunately in this case they abandoned the strict scrutiny test that required proof of harm before the government could interfere with parental rights, granting judges the power to decide this on a case-by-case basis.

OK, now that we are back into the legalese somewhat, I will get into some more legal matters from a conversation I had today with a lawyer (L), whose name I am keeping confidential as per her request.  I am paraphrasing her responses here at times, as I did not record the conversation and took notes as fast as I could (but not as fast as she spoke!).  I have also added some information into my comments, to make the flow more cohesive.  In spirit this is pretty much the conversation we had...

H.  First of all, what are we talking about here in terms of parents taking substances that are prohibited by federal law?

L.  This area of law is vast.  The main area is dependency and neglect laws, between state and federal levels.  Every state has a different flavor.  And then there are federal laws...

H.  Have children been taken away for the choices of their parents to participate in ceremonies using a Schedule One controlled substance?

L.  Children have been taken away from even a single use of 'drugs.'  Then there is constitutional law: parents have the fundamental right to the care, custody, and control of their children.  This is a standard to use before the state can interfere.  

In order for a child to be taken from their parent, the parent would have to be found unfit - which is a determination of the Child Protective Services (CPS) caseworker, local to the county where the incident (that brought the parent and child to the attention of CPS) has occured.  The way to get cases brought before a higher court is to then appeal this determination.  

'Drug' use is universally considered to be evidence of an unfit parent.  However with the legalization of marijuana (formerly a Schedule One controlled substance), courts are now considering marijuana use to be more like alcohol use.  The system can't take children away based on allegations that things are dangerous - there would have to be some sort of test proving danger to the child.  However they lump all 'drugs' together:  Using LSD is the same as using cocaine; using psilocybin mushrooms is considered to be the same as using heroin. 

H.  That seems ridiculous (not to mention that I disagree with the entheogens being labeled 'drugs' in the first place!)!  What about inviting a child to come to a ceremony, just to be part of it without doing the medicine?  What about allowing them to take some of the medicine? 

L.  Any 'drug' use in front of a child is held to be a very strong factor in proving unfitness on the part of the parent; allowing a child to use any 'drug' would (in her opinion) be conclusive of being an unfit parent.  I can't imagine a court that would find for the parent in this situation.

H.  What about any cases involving legalized churches that use plant medicines as sacraments?  Have you heard about any cases involving children or parents?

L.  No.  Never heard of a case where a child had been administered ayahuasca and been taken away.  It might be one of those cases where the plant medicine would win, because ayahuacsa and all of its aliases (caapi, huasca, yage, etc) are NOT listed under the Schedule One controlled substances.  DMT, one of the active ingredients in the preparations, is listed, however.  It is a grey area, and the laws around this are written very poorly.

H.  What about my story?  (I invited my underage children to partake in ceremony with me whenever they felt ready - and my daughter chose to do so right before turning 13, and has been attending ever since.  My son came to a ceremony at age 18, but discovered it wasn't really his thing.)

L.  You would have had your kids taken away, and might even have been thrown in jail.  You could have appealed and maybe gotten custody again (due to the fact that we have been participating in a legal church service).  The law is clear that ceremonially (as part of a religious endeavor), taking these medicines is protected.  

Also, there is a supreme court argument that states: "a parent has an unhindered right to inculcate their children in their spiritual practices." (NOTE: Please see (5) for a comprehensive list of case summaries defining the Supreme Court's Parental Rights Doctrine).  (Note: not sure which case states this... I looked but haven't found it yet.)

H.  What about the drug schedules?  Labeling all psychoactive substances as Schedule One controlled substances is completely missing the point on so many levels...

L.  The schedules are arbitrary and capricious, and are regulations at the agency level (H: a regulation is a legal norm intended to shape conduct that is a byproduct of imperfection - written by executive agencies as a way to enforce laws passed by the legislature. (6).   They are arbitrarily written and applied, and are capricious in that they eliminate the proper uses of entheogens, and don't acknowledge the fact that these substances have not been proven to be addictive.  This scheduling closes the door and says that all of these substances are bad, simply out of fear.  Yet we know that entheogens are helpful to many people.  It would be impossible to be addicted to using ayahuasca, for example.   No one would want to or even be able to abuse it...

H: ...because it is quite an ordeal to take it in the first place!  One of my main points here is that these entheogens are not correctly labeled as Schedule One substances, because they don't meet any of the criteria: they DO have medical uses (which would be accepted if research was allowed to continue), they do NOT have a high potential for abuse, and they do NOT cause psychological or physical dependence. That is why I am doing this - I want to be a part of the new conversation about these substances, bringing honest inquiry and science into the fear-based taboos our society has used as a basis for our policy and laws.  I think we need a complete revision of the drug scheduling! 

L.  How could we draft a drug schedule that works?  We should measure the Schedule One drugs based on their addictiveness and destructiveness.  The latter is measured on the social, personal and interpersonal impacts on society.  If you look at alcohol and tobacco, for example - two substances which are legal in this country and which are both psychoactive substances - if these were measured in terms of addictiveness and destructiveness, they would go to the top of the list of Schedule One substances!  Millions of people use them, with incredible negative impacts to society measured in the high numbers of deaths, health care costs, accidents, and so forth (H. and the high cost of alcohol addiction in terms of the psychological and economic detriment to families and children). 

When 'drugs' are involved there is a cultural bias, and a HUGE barrier of fear.  I had that barrier until I tried it (ayahuasca) myself.  Then I realized 'Oh my God there's a whole other world!'  I personally know many lawyers who have participated in medicine ceremonies, but they have to be very secretive about this in their profession. (H: because of the potential ramifications to their professional lives if they were ever "outed.")

 Note: L also has two children, one underage and one legally an adult, with whom she does NOT share about her experiences with the entheogens, despite her feeling that one of them would really benefit from an experience with the medicine.  She fears that if her ex-husband found out what she was doing, he would sue her for custody and try to take her kids away.  

What a world we live in.  Here is a professional woman who has found a path that helps her to be 'better' in her life, in every way - more conscious, more centered, happier, healthier, lighter (not as burdened) - and she has to live in fear of being discovered in her 'nefarious' activity of taking an entheogen for spiritual purposes.  (Just to be clear - I am also talking about using entheogens in a very strict setting, as part of a church service - not just recreational use by an individual.)   THIS is why I want to write this book.  Entheogen users need to be able to come out of the closet and not be discriminated against, shunned, or prosecuted for the ignorance of the policy- and law-makers who have vilified - and mislabeled - these substances.  It is time to revise the collective thought, and more importantly, the laws around the use of entheogens for spiritual purposes.

My thanks to L for the generous donation of her time and expertise for this interview.   

(1)  http://www.oyez.org/cases/2000-2009/2005/2005_04_1084

(2)  http://www.parentalrights.org/index.asp?SEC=DE675888-E60A-4219-8A5E-000083244D13 

(3) http://www.parentalrights.org/index.asp?Type=B_BASIC&SEC={4771B53E-D345-4753-BEF4-68C1CA71CE13}

(4)  http://www.oceanetwork.org/currents/Court.pdf 

(5)  http://www.parentalrights.org/index.asp?SEC=12D52BF9-1D6D-4EEC-B83B-F74B3F91BDF6&Type=B_BASIC 

(6) https://en.wikipedia.org/wiki/Regulation

Legal Aspects of Entheogen Use in the US: Part One

While I still have not spoken with a lawyer about the legal aspects of raising children in the US while participating in a spiritual path that employs the use of (currently illegal) entheogenic medicines, I want to begin the discussion of this very complex and important topic today with a review of some of the information available online.  I have found a number of valuable online resources from the Council on Spiritual Practices (CSP) (1) and the Center for Cognitive Liberty and Ethics (CCLE) Entheogens and Drug Policy Project (2).  Numerous other writers have added their perspectives in journals and blogs.

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.
(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)

2. Exceptions (that I know about - still looking into this topic)
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.

3.  Commonalities
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!).

(1) http://www.csp.org/society/docs/telr-free_exercise.html
(2) http://www.cognitiveliberty.org/proj_entheo.html
(3) Stuart, R.  "Entheogenic Sects and Psychedelic Religions." http://www.maps.org/news-letters/v12n1/12117stu.html
(4) http://www.deadiversion.usdoj.gov/21cfr/21usc/812.htm
(5) 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
(7)  https://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act
(8) Interview with Martin Ball.  Psychedelic Parenting.  http://www.psychedelicparenting.org/?cat=7