Accommodating Religious Users of Controlled Substances: A Model Amendment to the Controlled Substances Act

• Published date: 01 July 1994
• Date: 01 July 1994
• DOI: http://doi.org/10.1177/002204269402400307
• Subject Matter: Article

The Journal of Drug Issues 24(3), 463-481 1994

ACCOMMODATING

RELIGIOUS

USERS

OF

CONTROLLED

SUBSTANCES:

A

MODEL

AMENDMENT

TO THE

CONTROLLED

SUBSTANCES

ACT

Richard

Glen

Boire

The relationship between religious experience and alternative states

of

consciousness is as old as humanity itself. From time immemorial,

visionary states have been entered through the ritual use

of

mind-changing

substances. Despite the uncontrovertedfact that particular substances have

been used for thousands

of

years to achieve religious experiences and

insights, the federal drug laws fail to accommodate religiously motivated

users. The purpose

of

this article is to present a model from which such a

nonsectarian accommodation may be developed. while retaining the federal

scheme for the strict control

of

drugs.

The

relationship between religious experience and alternative1states of

consciousness is as old as humanity itself. From time immemorial, visionary

states have been attained through the ritual use of mind-changing substances

(McKenna 1992; Schultes and Hofmann 1979: 9; Furst 1972, 1976; Hamer 1973).

Despite the uncontroverted fact that particular substances have been used for

thousands of years to achieve religious experiences and insights, the federal drug

laws fail to accommodate religiously motivated users. The purpose of this article

is to present a model from which a nonsectarian accommodation- may be

developed, while retaining the federal scheme for the strict control of drugs.

Federal policy concerning the control of drugs was consolidated with the

enactment of the Comprehensive Drug Abuse Prevention and Control Act of

1970.3In Title II (popularly known as the Controlled Substances Act [CSA]) of

the 1970 Act, Congress established a five-schedule system for classifying various

substances. The five schedules range from Schedule I, containing those

substances found unsafe, with a high potential for abuse, and no currently accepted

medical use, to Schedule V, containing those substances thought to have a low

potential for abuse, relatively slight potential for physical or psychological

dependence, and a currently accepted medical use.4

The substances, that are the focus of this article, were placed within Schedule

I, and subjected to the most restrictive control. Under section 844 of the CSA,

even simple possessions of a Schedule I substance is punishable by imprisonment

for up to one year and a fine of $1,000, or both. In addition to fines,

imprisonment, and the stigma imposed by the criminal justice system, under the

civil forfeiture laws the federal government may confiscate a personIs property,

Richard

Glen Bolre. received his J.D. degree in 1990 from Boatt Hall School of Law, at the University of

California at Berkeley. He is a practicing criminal defense attorney in California, and the author of

Marijl/alla

Law

(Renin

PUblishing

1993). Send reprint requests to Post Office Box73481, Davis. CA 95617·3481.

©Journal of Drug Issues, Inc. 002-0426/94/03/463-481 $1.00

463

BOIRE

including their home, if the property- is found to "facilitate" possession, use, or

manufacture of controlled substances.6

Over the years, the courts have faced challenges by persons claiming that their

constitutional right to freely exercise their religion has been trammeled by various

drug prohibitions. Due to the excessively broad substance control laws, people

arrested for possessing or using controlled substances for religious purposes have

been forced to argue their case under the rubric of constitutional law, attempting

to fit their religious use of controlled substances within the protections

of

the free

exercise clause of the first amendment.

In Reynolds v.

United

States,7 the United States Supreme Court set the stage

for later decisions concerning the religious use

of

controlled substances. In

Reynolds, along-time member of the Mormon church was convicted under an

anti-bigamy statute. He appealed his conviction, contending that as a practicing

Mormon he had a duty of divine origin to practice polygamy and that the statute

unconstitutionally infringed on this religious obligation. The Court examined the

history surrounding the adoption of the Constitution and the Bill of Rights to

determine the scope

of

the religious freedom guaranteed by the first amendment.

Relying primarily on statements made by Thomas Jefferson, the Court rejected the

religious defense to appellant's polygamous actions.

The Court held that only religious beliefswere intended for absolute protection

by the First Amendment. Actions, even if performed for religious reasons, could

be constrained by criminal laws without violating the free exercise clause. The

Court bolstered its decision denying the religious exemption by noting that to hold

otherwise would "permit every citizen to become a law unto himself."

The belief/action distinction first enunciated in

Reynolds

has been reiterated in

many cases holding against a person seeking first amendment protection for his

religious use of illicit substances.8Echoing the

Reynolds

Court's fear that a

religious exemption would run roughshod over the federal and state drug laws,

many courts have expressed a lack

of

competence to create amanageable

exception to the substance control laws permitting religiously motivated use. 9

Faced with the intersection of religious action and substance control, the courts

reverted to a binary logic resulting in the simplistic conclusion that only two

outcomes are possible: no religious freedom to use controlled substances or

unbridled religious freedom to use controlled substances. Having framed such a

false dilemma, the courts have deferred to Congress and state legislatures,

maintaining the status quo of near absolute prohibition of Schedule I substances.U'

Despite judges' expression of concern over their own incompetence to create a

manageable religious exemption to excessively broad substance control laws, no

legislative body has adequately responded. Therefore, in light of the judicial and

legislative stalemate regarding controlled substances within the context of religion,

the following model for a legislative solution is proposed.

Proposed

Amendments

to

the

Controlled Substances Act for

the

Purpose

of

Accommodating

the

Sincere Religious Use of Selected Schedule ISubstances.

Native

American

Church

Section

Xl

The listing of peyote as a controlled substance in Schedule I does not apply to

the nondrug use of peyote in bona fide religious ceremonies of the Native

American Church, and members of the Native American Church so using peyote

are exempt from registration. Any person who manufactures peyote for or

464 JOURNAL OF DRUG ISSUES