The Religious Freedom Restoration Act of 1993 (“RFRA”) protects the right to religious exercise established in the First Amendment and was enacted to address whether, and under what circumstances, religious individuals and organizations are exempt from laws generally applicable to the public. With newly enacted laws in Colorado and Oregon allowing the production and use of psychedelics for medical purposes, many are also looking to the “protections” that may stem from the RFRA. While the legislation in both states focus on healing and service centers for psychedelics, these substances are also sometimes used in the context of religious ceremonies.
Under RFRA, if the application of a law to a person “substantially burdens” their exercise of religion, then the federal government must exempt that person from the law’s application unless the federal government demonstrates applying the law is the “least restrictive means” of accomplishing a “compelling government interest” (the strict scrutiny test). The Supreme Court has held that RFRA cannot be imposed as a limit on state and local laws, but the legislation is applicable to all federal law. Many states have their own “mini-RFRA” to extend religious protections against state laws.
The convergence of RFRA and the federal government’s prohibition on controlled substances under the Controlled Substances Act (“CSA”) present an interesting legal area where the use of a controlled substance can be permitted for religious purposes. Although RFRA protects religious exercise, this does not mean religious organizations using controlled substances are automatically exempt from the application of the CSA. Rather, an exemption from the Drug Enforcement Administration (“DEA”) must be obtained.
To obtain an exemption under RFRA from application of the CSA, the organization must submit a petition to the DEA and show the CSA substantially burdens a sincere religious exercise. This showing involves providing detailed information about the history, structure, and rituals of the religion, the specific religious practice involving the specific controlled substance, and the associated conditions and use of the controlled substance. While seemingly straightforward, the inability to legally define a sincere “religion” has led to varying results for those seeking religious exemptions from the CSA.
Despite the challenges in determining whether a religious exemption should be granted, courts have occasionally exempted religious organizations and individuals using controlled substances from application of the CSA. For example, the Supreme Court previously held that a church using ayahuasca, a tea containing DMT (an illegal hallucinogenic drug), was exempt from application of the CSA because the federal government failed to show the substantial burden imposed furthered a compelling governmental interest. In another case, the Ninth Circuit similarly held that a church’s religious use of ayahuasca was exempt from application of the CSA. Additionally, the DEA has exempted the Native American Church, which uses peyote in its religious ceremonies, from application of the CSA.
As the legal landscape surrounding psychedelics continues to change, so too does the support for religious use of these substances. In 2024, the Government Accountability Office (“GAO”) provided a report recommending that the DEA improve its exemption process for psilocybin, a naturally occurring hallucinogen found in certain mushrooms. The report noted the DEA process currently has no timeline on determinations, which does not provide petitioners with a transparent understanding of the exemption process. As of the date of the report, there were six petitions for an exemption for the use of psilocybin, three of which were withdrawn and three of which were still sitting with the DEA for approval. In making its recommendation, GAO noted that two states—Colorado and Oregon—have legalized the adult use of psilocybin.
While the use of controlled substances in sincere religious practices may be exempt from the application of the CSA, religious organizations must submit a petition to the DEA to obtain said exemption. This involves specific showings related to the religion and the use of controlled substances, which can be very detailed. Greenspoon Marder attorneys are available to answer questions regarding religious exemptions. For more information, contact Nick Richards at [email protected].