Some scholars say early spiritual practices regularly involved sacraments that elicited psychedelic experiences. See, e.g.,
Brian C. Muraresku, The Immortality Key: The Secret History of the Religion with No Name
(2020). Modern attempts to incorporate controlled substances into religious practices have been thwarted by the Controlled Substances Act (“CSA”).
The Iowaska Church of Healing (the “Iowaska Church”) was incorporated in Iowa in 2018 and moved to Florida in 2019. Its self-described mission is “to offer the public access to spiritual growth, development and healing through the sacred Sacrament of Ayahuasca.” Ayahuasca is a tea brewed from South American plants. It contains dimethyltryptamine (“DMT”), which is classified as a Schedule I substance under the CSA.
Other Schedule I substances include heroin, LSD, ecstasy, marijuana, and peyote. According to the U.S. Drug Enforcement Administration (“DEA”), Schedule I substances have “no currently accepted medical use and a high potential for abuse.”
In 2019, the Iowaska Church applied for (1) a religious exemption to the CSA with the DEA, and (2) tax-exempt status with the Internal Revenue Service (the “IRS”). The DEA application is still pending. The IRS denied the Iowaska Church’s application for tax-exempt status in 2021 because its activities were illegal under federal law unless and until the DEA issued a CSA exemption.
After the IRS’s denial, the Iowaska Church sued the IRS, claiming that the IRS’s actions violated its rights under the Religious Freedom Restoration Act (“RFRA”). On March 31, 2023, the U.S. District Court for the District of Columbia granted summary judgment in favor of the federal government and against the Iowaska Church. The district judge acknowledged that the Iowaska Church may be due a CSA exemption from the DEA based on 2006 Supreme Court precedent, in which the federal government had failed to show a compelling governmental interest justifying a substantial burden on a sincerely held religious belief in using ayahuasca. That case is Gonzales v. O Centro Espirita Beneficente Unia do Vegetal
, 546 U.S. 418 (2006). Without an exemption to the CSA from the DEA, however, the Iowaska Church’s use of ayahuasca was illegal, and the IRS was entitled to rely on the lack of such exemption to deny tax-exempt status.
Importantly, the court noted that the DEA was not a party to the lawsuit, so an order against the IRS would not make the Iowaska Church’s sacrament legal. The court instructed the Iowaska Church that it could seek relief if the DEA denied its application for a CSA exemption. This saga may not be over yet.
Indeed, just weeks after the Iowaska Church decision, another federal district court reached a different result when considering another ayahuasca case. Like the Iowaska Church, members of Arizona Yage Assembly use and share ayahuasca as part of their religious ceremonies. In 2020, it had four shipments of Peruvian ayahuasca seized by the U.S. Department of Homeland Security (“DHS”) and/or the U.S. Customs and Border Protection (“CBP”). Unlike the Iowaska Church, Arizona Yage Assembly did not apply for a CSA exemption with the DEA. It instead argued in its RFRA litigation, in which it named the DEA, DHS, and CBP as defendants, that seeking such an exemption imposed a substantial burden because the application requires disclosure of incriminating information. Moreover, the DEA had never granted a CSA exemption for religious use of ayahuasca.
The federal government moved to dismiss Arizona Yage Assembly’s claims against the DEA, in part because the CBP’s border seizures could not form the basis of a pre-enforcement injunction against the DEA. The U.S. District Court for the District of Arizona disagreed, finding that the CSA operates through multiple federal agencies and the actions of the DEA, DHS, and CBP are intertwined. The district judge also relied on Ninth Circuit precedent—Oklevueha Native Am. Church of Haw., Inc. v. Holder
, 676 F.3d 829 (9th Cir. 2012) (quoting O Centro
)—to find that RFRA plaintiffs need not apply for a CSA exemption to pursue judicial relief. Such precedent held that courts could recognize exceptions to the CSA; that power did not rest with the DEA exclusively. The federal government’s motion to dismiss was denied on May 3, 2023.
In one case, the church was stuck with the IRS’s reliance on the DEA’s silence on a CSA exemption application. In the other, a CSA exemption application was not even necessary to pursue relief related to the seizure of imported controlled substances for religious purposes. The disparate treatment may result in the U.S. Supreme Court taking up these issues. That may be good news for advocates of decriminalization and legalization of controlled substances.
Since 2021, at least one justice has welcomed the opportunity to question the constitutionality of the CSA. Dissenting from the denial of a petition for a writ of certiorari in Standing Akimbo, LLC v. U.S.
, 141 S. Ct. 2236 (2021), Justice Clarence Thomas wrote:
If the Government is now content to allow States to act as laboratories and try novel social and economic experiments, then it might no longer have the authority to intrude on the States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens. A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.
(internal quotations omitted)(emphasis in original).
Granted, Standing Akimbo is a marijuana dispensary in Colorado, and over three-quarters of the states now permit adult-use or medical marijuana. But, ayahuasca and marijuana are both Schedule I drugs under the CSA, and psychedelics like DMT are beginning to follow a path similar to that of regulated marijuana. In 2020, Oregon decriminalized and legalized psilocybin for supervised, non-medical use. Psilocybin is a psychedelic drug produced naturally by psylocibin mushrooms, also known as “magic mushrooms.” Colorado followed suit in 2022; in 2026, its program will extend to include DMT.
Regardless of where psychedelic regulation eventually ends up, the treatment of the Iowaska Church and Arizona Yage Assembly in federal court is a far cry from the treatment of the First Church of Cannabis in 2015-2018 by the Marion Circuit Court in Indianapolis, Indiana. When the court granted the state and local governments’ motion for summary judgment in the First Church of Cannabis’ state RFRA challenge to Indiana’s CSA corollary, the judge relied on outdated stereotypes associated with marijuana use, some of which have been disproved. The judge found that marijuana use correlates to increased health problems and crimes; marijuana is a gateway drug to other dangerous drugs; and “religious” marijuana might end up in the hands of children to summarily conclude, “The existence of a compelling government interest in preventing marijuana possession and use is not open to reasonable debate.” A short three years later, the longest serving Justice on the current Supreme Court would question the constitutionality of the federal CSA, suggesting it is time for a reasonable debate.
Be it from religious exemptions granted by the DEA or federal courts, or federal courts questioning its sheer legality, the CSA may be “on the ropes.” States, perhaps rightfully so, may soon be the ultimate arbiter of what substances are controlled and what substances are not, including whether such substances may lawfully be used as sacraments.