Psychedelics, the DEA, and Regulating Religion.

• Author: Litman, Victoria

There is a growing enthusiasm for the potential of psychedelic medicines. Psychedelics such as psilocybin (the active ingredient in hallucinogenic mushrooms) and 3,4-Methylenedioxymethamphetamine (better known as MDMA and ecstasy), among others, are expected to be approved by the U.S. Food and Drug Administration in the next few years as part of psychedelic-assisted psychotherapy. They will be used to treat a variety of ailments, including severe post-traumatic stress disorder and treatment-resistant depression.

Psychedelics, also called entheogens or hallucinogens, have been utilized by humans throughout recorded history in a variety of settings. Recent scholarship has linked psychedelics to early Christianity, and archaeology has found evidence of their use in early Judaism. Some current practitioners of both faiths are reviving those practices. Globally, including in the United States, indigenous peoples have been continually utilizing plant medicines, including ayahuasca and peyote, as part of community-based healing, tradition, ceremony, culture, and agriculture practices.

Accordingly, the legal landscape of psychedelics is changing. Besides growing and promising FDA psychotherapy research, state and local legislative advocacy efforts are on the rise. In 2020 Oregon passed the Psilocybin Services Act, and in 2022 Colorado passed the Natural Medicine Health Act, both allowing some use of the substances. Over a dozen localities nationwide have passed local deprioritization measures, making enforcement of state laws criminalizing psychedelics the lowest-level law enforcement priority. This increasing normalization of psychedelics, though lacking clear pathways for safe access, has also contributed to a rise in religious use of psychedelics.

Religious use/ The current legal framework for religious use of psychedelics is often reduced to the Religious Freedom Restoration Act (RFRA), a piece of federal legislation passed in response to the landmark 1990 case Employment Division, Department of Human Resources of Oregon v. Smith. Prior to Smith, claims that a law substantially burdened religious exercise were subject to the strictest scrutiny. But in Smith the U.S. Supreme Court put in place a threshold question: Is the law in question neutral and generally applicable? If so, then even if the law substantially burdens religious practices, it must only pass rational basis scrutiny, which is often viewed as no scrutiny at all. If the law is not...