ACCOMMODATING RELIGIOUS USERS OF CONTROLLED SUBSTANCES

[llamabox]

ACCOMMODATING RELIGIOUS USERS
OF CONTROLLED SUBSTANCES:
Revisioning the Controlled Substances Act
to Permit the Religious Use of Entheogenic Substances

by

RICHARD GLEN BOIRE, ESQ.
copyright (c) 1994 richard glen boire

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. Despite the uncontroverted fact that particular substances have been used for thousands of years to achieve religious experiences and insights, the federal drug laws (with the exception of the recently enacted amendment to the American Indian Religious Freedom Act) fail to accommodate religiously motivated users of controlled substances. The purpose of this paper is to present a model from which a nonsectarian accommodation2may 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. In Title II (popularly known as the Controlled Substances Act (CSA)) of the 1970 Act, Congress established a five-schedule scheme for classifying various substances. The scheduling scheme is exclusively focused on the medical safety and efficacy of listed substances; failing to acknowledge or evaluate substances with religious import.
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.

The substances that are the focus of this paper were placed within Schedule I, and subjected to the most restrictive control. In addition to fines, imprisonment, and the stigma engendered by a criminal conviction, the federal government, under the civil forfeiture laws, may also confiscate a person's property, including their home, if the property is found to "facilitate" possession, use, or manufacture of controlled substances.

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. In 18783 the United States Supreme Court set the stage for later decisions concerning the religious use of controlled substances. In this famous case, a long-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 criminalizing bigamy 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 beliefs were 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 by commenting that a religious exemption would "permit every citizen to become a law unto himself."
The belief/action distinction, first enunciated in 1878, has been reiterated in many cases holding against a person seeking first amendment protection for his or her religious use of controlled substances. Echoing the Supreme Court's fear that a religious exemption would run roughshod over state and federal drug laws, many judges have expressed a lack of competence to create a legal doctrine that would allow religiously motivated use of controlled substances.4 Faced with the intersection of religious practice and drug control, the courts reverted to a binary logic resulting in the overly simplistic conclusion that only two outcomes were possible: (1) No religious freedom to use controlled substances, or (2) 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.

Deference to the legislative branch of federal and state government reached its zenith in 1990, when the United States Supreme Court, in a case involving the religious use of peyote, shockingly abandoned the "compelling governmental interest" test historically used to judge whether a law violates a fundamental right guaranteed by the federal constitution.5 The Court held that Oregon's across-the-board prohibition against possession of peyote did not violate the free exercise rights of two members of the Native American Church, because the Oregon law criminalizing the possession of peyote was not specifically aimed at burdening religious practice. The Court enunciated an entirely new rule: a neutral and generally applicable criminal law does not implicate the first amendment's free exercise clause, period.

As a result of the decision, President Clinton, on November 16, 1993, signed into law the Religious Freedom Restoration Act of 1993 (RFRA). The express purpose of the RFRA is to restore the compelling governmental interest test, after "the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion."

For religious users of scheduled substances, the enactment of the RFRA was extremely important but frustrating. The RFRA is important because it provides a statutory avenue for a religiously motivated user of a controlled substance to fight against the outlawing of his or her sacrament; an avenue previously closed by the Supreme Court's 1990 decision. The RFRA is frustrating however, because its method of operation is to re-employ the "compelling governmental interest" test which, as mentioned earlier, has previously been viewed by judges as an almost insurmountable barrier to those seeking to use controlled substances for religious purposes; the courts routinely finding that the government has a "compelling interest" in enforcing the state and federal anti-drug laws, and that this interest would be defeated should religious use be allowed.

The following legislative accommodation, presents a model for how federal law can deal with controlled substances that have proven religious import. The model rejects the false dilemma previously thought to thwart any resolution of this issue. The model's value is two fold. First, it shows that a legislative solution, which continues the government's strict control of drugs while simultaneously permitting religious use, is within the realm of practicality. With concerted effort, a model similar to that that proposed here could be developed and enacted into law. Second, the model here formulated, might play a role in a case brought, or defended, under the RFRA, by demonstrating that there is, in fact, a less onerous means of achieving the government's compelling interest in controlling drugs.6

PROPOSED AMENDMENTS TO THE CONTROLLED SUBSTANCES ACT
FOR THE PURPOSE OF ACCOMMODATING THE SINCERE RELIGIOUS USE
OF SELECTED SCHEDULE I SUBSTANCES.

Native American Church
SECTION X1: 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 distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law. (21 C.F.R. sec. 1307.31 (1993).)

Designation of Entheogenic Substances
SECTION X2: Any person who complies with the following sections shall be exempt from the Controlled Substances Act with respect to the possession or use of any material, compound, mixture or preparation containing the following controlled substances, their salts or isomers:

(1) Dimethyltryptamine (DMT)
(2) Lysergic acid diethylamide (LSD)
(3) Marijuana
(4) Mescaline
(5) Peyote
(6) Psilocybin
(7) Psilocin
(8) Tetrahydrocannabinols

Registration
SECTION X3: Any person seeking religious exemption from the Controlled Substances Act shall obtain annually a registration issued by the Secretary of Health Education and Welfare. The Secretary shall register any person requesting registration and who:

(1) Is at least 21 years of age, and
(2) Presents a psychiatric evaluation by a licensed psychiatrist or psychologist pronouncing the person free of severe mental illness, and
(3) Presents a certificate of completion from an authorized entheogenic substances education course.

Use Restrictions
SECTION X4: Any person registered under section X3 shall be exempt from the Controlled Substances Act with respect to the possession or use of properly procured controlled entheogenic substances (as enumerated in section X2), if and only if:

(1) The registrant's use of the substance was for the primary purpose of a sincere practice of a religious nature, and
(2) The registrant's use of the substance, not including Cannabis preparations, was under the supervision of a registered assistant, and
(3) The registrant's use of the substance was on private property with permission of the property's legal possessor.

COMMENTARY

SECTION X1: NATIVE AMERICAN CHURCH EXEMPTION
Section X1 simply codifies, by placing within the CSA itself, the regulatory exemption granted to peyote using members of the Native American Church. This exemption, embodied in a regulation promulgated by the Bureau of Narcotics and Dangerous Drugs (now the D.E.A.), is currently obscurely located at section 31 of part 1307 of title 21 of the Code of Federal Regulations.

Federal recognition and protection of the Native American Church's right to use peyote was first implemented by the Food and Drug Administration in 1967, by exempting from federal statutory prohibitions the sale and distribution of peyote intended for use in the Church's religious ceremonies. In the fall of 1994, the American Indian Religious Freedom Act was amended to bar both the federal and state governments from prohibiting the religious use of peyote by Indians.

The Native American Church was first incorporated under the laws of the State of Oklahoma in 1918. Today, incorporated chapters exist in at least seventeen states, with membership estimated at between 250,000 and 400,000. While most members are Indian, a sizable number of non-Indians are practicing members in Church chapters which allow members of non-Indian descent.

The Native American Church is a successful model for the integration of controlled substances and religion in the modern world. The Church's exemption from the anti-peyote laws is based upon its unique characteristics convincing Congress and the courts that an exemption would be manageable. Peyote use by Church members is strictly controlled both in purpose and place. Members ingest peyote only within the confines of their religious ceremony. A peyote ceremony generally lasts approximately ten hours and occurs approximately once a month. The ceremonies are usually held in remote areas and always in private. During the ceremony, members, under the guidance of the "Road Man," ingest small amounts of peyote, sing, drum, pray, and attempt to communicate directly with the Creator.

It is important to recognize that section X1 stands alone. A member of the Native American Church need not comply with sections X2-X4 to qualify for the peyote exemption. Conversely, as explained in the commentary to section X4, a person seeking exemption under sections X2-X4, need not be a member of the Native American Church or any other organized or established religion. Note also that under section X1, a member of the Native American Church is exempt from the CSA only with respect to the possession and sacramental use of peyote. A Native American Church member's possession or use of any other entheogenic substance without compliance with sections X2-X4 of the exemption violates the CSA.

A stand-alone exemption like that now in place for the Native American Church should also be considered for members of The Peyote Way Church of God, the Santo Daime, and the Centro Espirita Beneficente Uniao do Vegetal (UDV).7

The Peyote Way Church of God, incorporated in Arizona in 1971 under the name "The Church of Holy Light," and later incorporated under its current name in 1980, is an all-race church embracing peyote as its sacrament. Since its incorporation, it has operated without incident, though because it is not a branch of the Native American Church, it has continually been involved in expensive litigation to establish and protect its members' right to freely practice peyotism.

The Santo Daime, a Christian based ayahuasca-using church8 had its genesis in the 1920's in Brazil and has now spread outside of South America. Similarly, the Uniao do Vegetal, another Amazonian ayahuasca-using church officially founded in 1961, traces is roots back to the early 1900's.9 In 1985, Banisteriopsis caapi, an essential constituent of the sacramental brew used by members of both churches, was added to the list of substances controlled in Brazil. However, after two separate studies by the Federal de Entorpecentes (Confen), including one where Domingo Bernardo Da Silva, the president of Confen, ingested the sacrament in a religious service,10 the government declared, in June 1992, that the use of Banisteriopsis caapi infusions for religious purposes has caused no social disruption and would not be outlawed.

SECTION X2: DESIGNATION OF ENTHEOGENIC SUBSTANCES
Section X2 creates a special category of controlled substances that have demonstrated utility in triggering changes of consciousness conducive to religious experience. The substances chosen for exemption were selected based on each substance's: (1) usefulness in triggering changes in consciousness conducive to religious experience, (2) relatively low potential for physical dependence, and (3) safety when used knowledgeably. Substances meeting the three criteria are termed "Entheogenic Substances."11

The exemption's classification scheme is similar to that currently employed by the scheduling section of the CSA. The exemption departs from the CSA's scheme by replacing the accepted medical-use criterion with a criterion of proven (historically or scientifically) usefulness in triggering states of consciousness conducive to religious experience. The entheogenic classification thereby recognizes a fact implicitly denied by the CSA; that some substances have valid and important nonmedical uses.

Under the exemption, the substances designated as entheogens could be lawfully possessed and used by any person complying with the exemption requirements. Failure to comply with these requirements would disqualify a registrant from claiming the exemption as a defense to a criminal prosecution under the CSA. It should be emphasized that the exemption only serves to relieve a registrant from penalty or punishment for violation of the sections of the CSA proscribing the possession or use of scheduled entheogenic substances. A registrant in compliance with the exemption requirements nevertheless remains liable under the CSA for all violations other than simple possession of entheogenic substances. Likewise, the exemption may not be raised as a defense to any other criminal act or tort committed by a registrant while experiencing the effects of an entheogen.

The substances enumerated in section X2 meet all the criteria for inclusion as entheogenic substances. First, when properly used, the substances have proven conducive to religious experience. Cannabis has been cultivated for over 10,000 years. Marijuana and hashish, preparations made from the Cannabis plant, were used in China as early as 2737 B.C. Unlike opium, another substance with its roots in the orient, hashish was rarely used medicinally. Instead, its use was confined to religious, mystical or spiritual rituals. Use of the Cannabis plant spread to India in 800 B.C. where Hindus called it "the Heavenly Guide."

Peyote, a cactus (Lophophora williamsii) native to Northeastern Mexico, has been ingested by Indians during religious ceremonies for at least two thousand years, and archeological specimens suggest its ceremonial use may date back as many as eight thousand years. In 1896, the principal active component in peyote was isolated and named "mescaline." It was soon synthesized but failed to attract much interest until 1954 when novelist Aldous Huxley ingested the substance and wrote of the religious experience in his book, "The Doors of Perception."

Lysergic acid diethylamide (LSD) was created by Dr. Albert Hofmann, a chemist employed by Sandoz Laboratories in Basle Switzerland. In 1938, Dr. Hofmann synthesized LSD from a fungus commonly found in rye seeds. Its affect on consciousness remained undiscovered until April 16, 1943, when Dr. Hofmann accidentally ingested a minute amount of the substance and experienced a strange inebriation in which "the external world became changed as in a dream." Several years later, Hofmann discovered that the chemical structure of LSD is nearly identical to that of the sacred entheogen ololiuhqui, prepared from morning glory seeds and used ritually by the Aztecs.

Mushrooms, of the genus Psilocybe, were used to produce visionary states at least as early as 4000 B.C. The Psilocybe mushroom was used in religious ceremonies long before the Aztec civilization. It was named teonanacatl, meaning "God's flesh." In 1957, working with mushrooms obtained by "amateur"12 ethnomycologist R. Gordon Wasson from the now famous curandera Maria Sabina, Dr. Hofmann isolated and later synthesized two active substances derived from the Psilocybe mushroom. He named these substances psilocybin and psilocin. In 1962, Dr. Hofmann traveled to Mexico and met with Maria Sabina. During a night ceremony she ingested 30 milligrams of the synthetic psilocybin and later said the effect was indistinguishable from that elicited with the sacred mushrooms themselves. The substances psilocybin and psilocin are now known to naturally occur in more that 89 species of mushrooms found worldwide.

The substance N, N-dimethyltryptamine (DMT) was first synthesized in 1931, but its entheogenic properties were not discovered until 1956. It was subsequently learned that DMT is the principal active ingredient in numerous snuffs and brews used by various South American Indians during religious ceremonies. The DMT containing plant Psychotria viridis is a well-known admixture to the famous entheogenic brew known as ayahuasca or yaje, the use of which archeological evidence suggests dates back as many as five thousand years.

The modern substances, DMT, LSD, psilocybin, psilocin, and mescaline have been used by many people to achieve what they believe to be religious insights. Perhaps the best clinical study ever conducted in an attempt to determine the religious validity of the experience elicited by such substances was performed by Dr. Walter N. Pahnke while a graduate student at Harvard. His experiment has since become known as "The Miracle of Marsh Chapel," or "the Good Friday Experiment."

Dr. Pahnke selected twenty theology students none of whom had ingested a "psychedelic" substance prior to the experiment. All of the students were screened for prior psychological and physical illness. Assistants, knowledgeable of the effects of psilocybin, met with the selected students to establish a feeling of trust, develop group rapport, and dispel any irrational fears. Having carefully screened and prepared the students, the experiment was conducted on Good Friday, 1962.

On the morning of the experiment the students met at Marsh Chapel on the Harvard campus. Ninety minutes prior to the start of the service, Dr. Pahnke administered twenty identical looking capsules, one to each student. Ten capsules contained thirty milligrams of psilocybin. The other ten capsules contained two hundred milligrams of nicotinic acid, a vitamin which produces feelings of warmth and tingling of the skin, but no mental effects. Neither Dr. Pahnke nor the students knew the contents of any given capsule.

A two-and-one-half-hour religious service was held with the students and their assistants in attendance. The service was conducted in a manner familiar and meaningful to the students, all of whom were from middle-class Protestant backgrounds.
Following the experiment each student was interviewed regarding his experience and completed a 146 item questionnaire. Each student also wrote a detailed phenomenological account of his experience. Six months later, the students were again interviewed, and completed a follow-up questionnaire.

The results of the experiment were significant. Eight out of the ten students who received psilocybin reported what they considered authentic religious experiences. Only one student from the control group reported even a minimal spiritual cognition. Additionally, Dr. Pahnke compared the data derived from the students' interviews and questionnaires with nine fundamental characteristics of mystical experience formulated by Dr. W.T. Stace, Professor Emeritus at Princeton, a leading authority on religion and mysticism.13 Dr. Pahnke concluded, "..., under the conditions of this experiment, those subjects who received psilocybin experienced phenomena that were apparently indistinguishable from, if not identical with, certain categories defined by the topology of mystical consciousness."

The six month follow-up was particularly important. One hallmark of true religious experience is its lasting effect on the whole of the individual's life. With respect to this aftermath, Dr. Pahnke reported:

After an admittedly short follow-up period of only six months, life enhancing and life enriching effects, similar to some of those claimed by mystics, were shown by the higher scores of the experimental subjects when compared to the controls. In addition, after four hours of follow-up interviews with each subject, the experimenter was left with the impression that the experience had made a profound impact (especially in terms of religious feeling and thinking) on the lives of eight out of the ten subjects who had been given psilocybin...the direction of change was toward more integrated, self-actualizing attitudes and behavior in life.

With respect to section X2's criterion of low physical dependence, it is well established that none of the enumerated substances are physically addictive. This clearly distinguishes entheogenic substances from stimulants such as crack cocaine and nicotine, narcotics such as heroin, and depressants such as alcohol, all of which are highly addictive.

With respect to section X2's safety criterion, current medical evidence indicates that there are little to no long-term physical effects from ingestion of the enumerated substances. The entheogenic substances are unique with regard to their extremely high therapeutic ratios: the ratio of the quantity of the substance needed to produce toxic symptoms to the quantity that produces the effect sought by the substance's user. For most drugs used in clinical settings, this ratio is between ten and twenty. (For example, between ten and twenty times the standard dosage of aspirin taken to relieve a headache will produce symptoms of toxicity.) The therapeutic ratio for marijuana is incalculable. It is estimated to be on the order of thousands. Similarly, LSD, the most potent entheogen, is among the least toxic substances known to modern medicine. There are no reports of death in humans due to the direct toxic action of LSD. Similarly, studies of life-long Indian peyote users report no increase in physical abnormalities.

SECTION X3: REGISTRATION

Section X3 details the mechanics of registration. The Secretary must register any person complying with section X3, unless the Secretary finds that the applicant has falsified the registration application, or had a previous registration revoked for good cause. An applicant must furnish his or her name and current address, be at least 21 years of age, free from severe mental disturbances, and a graduate of an approved course on entheogenic substances.

Under subdivision (1) of section X3, a person seeking a religious exemption must be at least 21 years of age. Although the age requirement may lead to seemingly arbitrary results in individual cases, it is based on the fact that minors often lack experience, perspective and judgment necessary to make important affirmative choices. The subdivision therefore elects to use the simple criterion of age as a determinant of probable maturity instead of requiring "proof" of maturity on a costly case-by-case basis. The specific age of 21 years was chosen because there exists a general legal consensus that this is the age of majority, at which age a person is legally entitled to manage his or her own affairs.

Subdivision (2) of section X3 is based on clinical research which has proven that knowledgeable use of an entheogenic substance by a person free of severe psychological disturbances is relatively safe. Dr. Sidney Cohen, past editor of the Journal of Psychopharmacology, and recognized expert on LSD, conducted an investigation in which he compiled information provided by 44 researchers studying LSD and mescaline. The data represented over 25,000 occasions in which humans received dosages of LSD or mescaline. Among those subjects free from severe mental disturbances, major or prolonged psychological complications almost never arose. Similarly, a study of over 200 users of "psychedelic" substances, previously screened for mental illness, reported that, "no subject ever experienced a post-session psychotic reaction, much less attempted or completed suicide."14

The subdivision requires only that the applicant be evaluated as free from psychoses such as schizophrenia, manic depression, and severe depressive illness. Lesser mental disturbances will not disqualify an applicant unless the evaluating doctor, in his or her professional opinion, believes the neurosis so severe as to classify the person as suffering from severe mental illness.15 Note that under section X3 a registration is valid for a period of only one year. The year period was devised, in part, to keep abreast of possible changes in the mental condition of a registrant. Consequently, each registrant must annually present the Secretary with a proper evaluation of his or her qualifying mental condition.

Subdivision (3) of section X3 recognizes the importance of what is termed the "set" of a person ingesting a entheogenic substance. "Set" is defined as a person's expectations of how an entheogenic substance may affect him, considered in the context of his whole personality. Due to the large amount of misinformation circulated publicly concerning drugs in general, and entheogens in particular, it is important to dispel the myths and inform the potential registrant of possible physiological and psychological effects.

An analogy can be drawn between entheogenic substances and other aids to perception such as a telescope.16 A telescope is nearly useless absent an understanding of its general capabilities as well as instruction on its specific use. Likewise, the proper training and preparation prior to the religiously motivated use of an entheogenic substance will increase the likelihood that a registrant will undergo a valuable religious experience.

The subdivision envisions the creation of a course informing potential registrants of the latest scientific knowledge concerning entheogenic substances. The courseshould provide the latest information on the psychological and physical effects likely to be experienced. Such information will greatly reduce the chance of a panic attack occasionally experienced when a novice user of a entheogenic substance experiences unexpected effects. The course should explain the importance of set and setting as well as appropriate methods for preparing and ingesting each substance. Additionally, the course should discuss techniques which have proven successful in assisting other registrants to elicit religious experiences as well as methods to avert or control a panic attack. Lastly, the course should explain the registration process as well as the scope of the exemption itself. It is estimated that such a course would be approximately five hours in length and must be completed each year as part of the annual registrtion process.

SECTION X4: USE RESTRICTIONS

Section X4 concerns a registrant's actual use of the entheogenic substance. Compliance with this section as well as section X3 is necessary for a registrant to qualify for exemption. The central concerns of the section are that a registrant's use of the entheogenic substance be of a sincere religious nature and under reasonably safe circumstances calculated to evoke a religious experience.

The section requires that registrants "properly procure" the entheogenic substance. The CSA currently contains a framework by which the federal government strictly regulates the manufacture and distribution of controlled substances, including those in Schedule I. A religious user of entheogens who holds a valid registration must procure his drug from one of the licensed "manufacturers" under the existing framework. Under the current scheme, the registrant must comply with the CSA which sets forth an order form system for all transactions involving Schedule I substances. This system, in conjunction with regulations promulgated by the Department of Public Safety for the State of Texas, was used to successfully control the distribution of approximately two million peyote buttons to members of the Native American Church in 1993 alone. Likewise, between 1978 and 1987 a similar system was used by the federal government to distribute over 475,000 marijuana cigarettes to persons granted an Investigational New Drug exemption by the Food and Drug Administration. Additionally, during the alcohol prohibition era, sacramental users of wine, although exempted from the general prohibition laws, were required to procure their wine via a similar scheme. The distribution schemes have all proven workable.

The primary benefit of maintaining the government disbursal scheme is guaranteed uniformity and purity of all synthetic (i.e., laboratory made) entheogenic substances as well as uniform, regulated prices. Additionally, the government should prohibit any advertising with respect to entheogenic substances.

In addition to the distribution system already in place under the CSA, serious consideration should be given to permitting registrants the right to cultivate personal use amounts of the vegetable entheogens: Cannabis, mescaline-containing cacti (including but not limited to Lophophora williamsii [Peyote]), psilocybin- and psilocin-containing mushrooms, and DMT-containing plants. Precedent for such a scheme can currently be found in state statutes permitting the limited home production of heavily regulated intoxicants like beer and wine.17 Similarly, the State of Alaska permitted the home cultivation of personal use amounts of Cannabis from 1975 to 1990 without any notable problems. The feasibility of personal cultivation of the natural plant and fungi entheogens is established by reference to the fact that such home cultivation is currently thriving despite its wholesale illegality. A registrant desiring to cultivate his or her own entheogenic plants or fungi would be required to note such intention in an applicable portion of the registration form.

The primary benefit of permitting limited home cultivation would be an increase in a registrant's knowledge about the cultivated substance. The effort and expertise required to successfully cultivate a natural entheogen cannot help but instill within the cultivator a deeper respect for the substance, thereby increasing the religious nature of the entire endeavor finalized by ingesting the sacramental substance.

Regardless of the procurement scheme enacted, a registrant having properly procured the substance may not transfer that substance. The prohibition on transfer includes free distribution as well as sale, and prohibits transfer even among registrants. The purpose of the transfer restriction is to eliminate misrepresentation of a substance by eliminating a secondary market.
Much of the current misinformation with respect to the enumerated entheogenic substances can be traced to the late 1960's and early 1970's when many young people experimented with bootlegged substances purchased on the street. Often, the substances bought on the street were misrepresented or contained significant impurities. The problems created by these misrepresented and impure concoctions were improperly attributed to, and remain associated with, the pure form of the alleged entheogen. The proscription on transfer, like the government controlled distribution scheme, also serves to eliminate any need to advertise or market entheogenic substances.

Section X4 protects not only those registrants currently following an established religion, but also those registrants involved in individual religious quests. It is this search to experience the essence of existence which lies at the heart of all religions. Such transcendent "knowledge" is humankind's deepest, most fundamental, and ultimately most important quest. Nowhere are entheogenic substances more valuable than in that initial search for a religious understanding. The literature is full of examples of persons who used entheogenic substances as stepping stones from hollow ritualistic "belief" to heart-felt religious understanding.18 Many people having opened the door with an entheogenic substance have affirmed a faith thereafter practiced without such substances. In fact, some modern philosophers, scientists, and theologians have theorized that entheogenic substances may have initiated many of today's religions (if not the very idea of the deity itself) which now continue having forgotten or suppressed their entheogenic origins.

The exemption also rejects the judicial reasoning restricting religious protection to organizations which deify the substance. Under section X4, a registrant's religious use of an entheogenic substance is protected both when the substance itself is worshipped, as well as when the substance is used as a means to a deepening faith or as an aid to religious practice.
Similarly, the exemption rejects the "centrality requirement" applied by the California Supreme Court in 1964.19 Under the centrality doctrine, the sacramental use of a entheogenic substance was only protected if the use was a "necessary and central part" of the religion. The exemption rejects such a requirement as being counter to the establishment clause in that it makes the government the determiner of what is or is not central to a particular religion. Consequently, the role of a entheogenic substance within the context of the tenets of a registrant's religion shall not be a factor in denying the registrant protection under the exemption.

Subdivision (1) of section X4 is intentionally broadly worded to accommodate the extremely broad yet personal nature of individual religious belief. The subdivision recognizes the legal system's historical difficulty in distinguishing what is "religious" from what is not. Additionally, the broad wording prohibits the courts from inquiring into the truth or falseness of a registrant's asserted religious beliefs, and hence prevents the trial from degenerating into one for heresy.20

Subdivision (1) recognizes that religious experience is so broad, and at the same time individualistic, that it exceeds the limits of a legalistic definition. The early criteria employed by the courts were peculiarly ethnocentric and theistic. As noted by philosopher William James, the existence of so many divergent definitions of "religion" is proof positive of the word's inability to accurately stand for a single principle or essence. Consequently, under this subdivision, if a registrant asserts that his or her use of the entheogenic substance was of a religious nature, then the question reduces to whether or not he or she is telling the truth.
A sincerity of belief principle has support from the judiciary as well as from scholars. For example, in 1965 the Supreme Court granted conscientious objector status to a number of people who were not members of an organized religion.21 There, the Court refused to define "religion," instead restricting its inquiry to determining, "whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious." Likewise, in a 1964 case reversing the conviction of defendants who used peyote during a religious ceremony, the California Supreme Court adopted the approach of shifting the inquiry from theology to sincerity. The court stated, "[w]e do not doubt the capacity of judge and jury to distinguish between those who would feign faith in an esoteric religion and those who would follow it."22

The ability to judge the sincerity of an individual has been recognized as within both the domain and ability of the finder of fact. Appropriate evidence for the fact finder to consider in determining a registrant's sincerity may include: the environment in which the registrant was arrested, the registrant's demeanor, and, of course, compliance with the exemption's formalities. It is important to note that it is neither a necessary nor a sufficient condition for exemption that a registrant has successfully attained a religious cognition via an entheogenic substance.

Subdivision (2) of section X4 recognizes, based on scientific research and cultural models, the need for an assistant to help guide an entheogenic religious experience. For example, in the Native American Church a spiritual leader termed the "Road Man" presides over the night-long peyote ritual, dispersing the peyote and pacing the ceremony. The Road Man is usually an elder with extensive experience with the effects of peyote and a deep understanding of the ritual aspects of the ceremony. A similar role of guide is found in numerous cultures in Shamans, Curanderas, Medicine People, Priests, and Holy Men and Women.

The subdivision recognizes that nearly all injuries resulting from entheogenic substance use in our society are the result of disorientation or panic reactions, both of which are controllable by a trained assistant. Hence, registrants as well as the public are best protected from accidental injury by requiring an experienced assistant overseeing a registrant's entheogenic experience.
Qualifications of the assistant are as follows. First, the assistant must be a registrant. Second, while acting as an assistant, he or she must not be under the influence of any unprescribed controlled substance, or alcohol. Third, the assistant must have prior personal experience with the particular entheogenic substance ingested by the registrant. Fourth, the assistant must remain with the registrant throughout the entire entheogenic experience. Lastly, in no case may an assistant oversee more than two registrants at one time.23

Note that no assistant is required for the religious use of Cannabis preparations. The effects of Cannabis are both objectively and subjectively different from the other entheogenics. Unlike the other entheogenic substances enumerated in section X2, Cannabis rarely elicits visions. The change in consciousness triggered by Cannabis is much more subtle than that induced by the other entheogens. In fact, Cannabis's affect on consciousness is so subtle that many first-time users fail to recognize any effect whatsoever. Consequently, requiring the supervision of an assistant for religious users of Cannabis would provide few, if any, benefits and would rather serve as an unnecessary burden, both in cost and inconvenience. Consequently, in light of the relatively mild effects of Cannabis preparations, there is no need for an assistant to protect the registrant or the public and therefore no assistant is required for the religious use of Cannabis.

Subdivision (3) of section X4 restricts the location of the religious use of entheogenic substances to private property with the consent of the property's legal possessor.24 The subsection limits the locations for the religious use of entheogenic substances, while at the same time recognizing the importance of what has been termed by medical researchers the "setting" of a entheogenic experience. "Setting" is defined as the environment, both physical and social, in which the substance is ingested. For example, a given amount of peyote ingested in a clinical setting will likely produce a much different effect than the same amount of peyote ingested in the context of a religious ceremony. Therefore, the private property restriction creates a place limitation calculated to be administrable, broad enough to protect the public, and yet which still allows a registrant considerable discretion in selecting a suitable environment which he or she feels likely to evoke a religious experience.

The private property requirement bars a registrant from claiming the religious use exemption while on public property including, roadways, parks, schools, and other public institutions. It is important to note that the private property requirement restricts not only the place where a registrant may use an entheogenic substance, but may also, in some cases, define who may religiously use entheogenic substances. For example, prison inmates confined in public facilities are excluded from eligibility under the exemption by reason of their confinement to public property. Hence, although such an inmate may be a registrant, he or she will be unable to religiously use entheogenic substances while confined.

CONCLUDING REMARKS

The religious use exemption modeled by this paper presents an alternative to the current near wholesale criminalizing of religiously motivated users of controlled substances. The model retains the current federal scheme for the strict control of drugs while carving out a clearly defined and manageable exemption for religious use. The narrowness of the exemption assures few detrimental effects on existing legal doctrine and should therefore alleviate fears that a religious exemption would be uncontainable. Likewise, the exemption, by including strict place and use restrictions, assures public safety and maintains the existing environment of public places. In short, the exemption modeled in this paper addresses the expressed concerns of judges and legislatures while simultaneously accommodating the sincere religious user of entheogenic controlled substances.

1The term "alternative states of consciousness" is used in this paper in place of the more common but pejorative term "altered states of consciousness." The former term is preferable because it more accurately describes the full-in-themselves states elicited with the entheogens.

2 As explained by Laurence H. Tribe, professor of constitutional law at Harvard University, the notion of accommodation "recognizes that there are necessary relationships between government and religion; that government cannot be indifferent to religion in American life; and that, it may, and sometimes must, accommodate its institutions and programs to the religious interests of the people." (Tribe, L., 1978, American Constitutional Law p. 822, Mineola: Foundation Press.)

3 Reynolds v. United States, 98 U.S. 145, 166 (1878) [Holding that the Mormon religious practice of polygamy was not protected by the first amendment: "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinion, they may with practices."]
4 See, Leary v. United States, 383 F.2d 851, 860-861 (5th Cir. 1967) rehearing denied, 392 F.2d 220, reversed on other grounds, 89 S.Ct. 1532, 392 U.S. 6, 23 L.Ed.2d 57 (1968) ["It would be difficult to imagine the harm which would result if the criminal statutes against marijuana were nullified as to those who claim the right to possess and traffic in this drug for religious purposes. For all practical purposes the antimarijuana laws would be meaningless, and enforcement impossible."]; United States v. Kuch, 288 F.Supp. 439, 455 (1968) ["If individual religious conviction permits one to act contrary to civic duty, public health and the criminal laws of the land, then the right to be let alone in one's belief with all the spiritual peace it guarantees would be destroyed in the resulting breakdown of society."]; Randall v. Wyrick 441 F.Supp. 312, 316 (1977) ["Missouri's marijuana laws are still based on reason. [Footnote omitted.] They are directed against a continuing social and health problem and the purposes of the statute cannot be accomplished without continued full enforcement."]; State v. Bullard, 148 S.E.2d 565, 568-569 (1966) ["It is true that [the first] amendment permits a citizen complete freedom of religion. He may belong to any church or to no church and may believe whatever he will, however fantastic, illogical or unreasonable, but nowhere does it authorize him in the exercise of his religion to commit acts which constitute threats to the public safety, morals, peace and order."]

5Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 108 L.Ed.2d 876, 110 S.Ct. 1595 (1990).

6Under the compelling governmental interest test, the government has the burden of proving that its method of enforcing its interest is narrowly tailored to employ the least restrictive means of furthering its compelling interest. In other words, to pass muster under the RFRA, the law which burden's religion must not be over-broad.

7The primary obstacle to giving these groups a stand-alone exemption like that currently given to the Native American Church is the difficulty in avoiding a violation of the establishment clause of the first amendment. Under the establishment clause, government is not permitted to favor one religion over another. Most courts have reasoned that the exemption for the Native American Church does not violate the establishment clause because 'the unique guardian-ward relationship between the Federal Government and Native American Indian tribes precludes the degree of separation of church and state ordinarily required by the First Amendment. The Federal Government cannot at once fulfill its constitutional role as protector of tribal Native Americans and apply conventional separatist understandings of the establishment clause to that relationship." (Peyote Way Church of God v. Thornburgh (5th Cir, 1991) 922 F.2d 1210, 1217.)

8Members of the Santo Daime refer to the brew made from the vine Banisteriopsis caapi and the leaves of the plant Psychotria viridis, as "Daime."

9Members of the UDV refer to ayahuasca as "Vegetal."

10 Mr. Da Silva's participation in an entheogen based religious service has much in common with the experience of James Mooney, an anthropologist with the Smithsonian Institute who, in the 1890's, was sent among the Kiowa Indians of North America to study their peyote ceremony. After participating in the ceremony and ingesting peyote, Mr. Mooney began championing the right of Indians to use peyote for religious purposes. In 1918, Mr. Mooney assisted in formally incorporating the Native American Church in Oklahoma. (See Franklin and Patchen, "The Jurisprudence of Peyote in the United States," The Entheogen Law Reporter, Issue No. 5, Winter 1994, P.O. Box 73481, Davis, CA 95617.)

11The term entheogen(ic), a neologism derived from an ancient Greek root, means literally realizing the divine within. The word was coined in 1979 and is now generally accepted as the appropriate term for the substances which are the subject of this article.

12 The word "amateur" is used here to describe a person motivated by love for the endeavor rather than by hopes for financial reward.

13 The nine interrelated categories attempted to describe the essence of universal psychological experience free from ethnocentric and theological interpretations. The nine categories were: (1) The experience of undifferentiated unity, (2) Intuitively felt insights beyond the realm of the rational mind, (3) Transcendence of space and time, (4) Sense of sacredness, (5) Deeply-felt positive mood, (6) Paradoxicallity, (7) Alleged ineffability, (8) Transiency, (9) Positive changes in attitude and/or behavior. (See, Pahnke & Richards, 1966 "Implications of LSD and Experimental Mysticism," Altered States of Consciousness, pp. 411-417, ed. C. Tart, 2d. Ed., New York: Anchor Books.)

14(Masters & Houston 1966 The Varieties of Religious Experience, p. 320 n. 23, New York: Dell Publishing Co.)

15 By placing the entheogenic substances in Schedule I, the government has made it all but impossible for researchers to study the possible role of entheogens as an adjunct to psychotherapy, including the treatment of psychosis. The psychotherapeutic potentiality of the entheogens when used under the guidance of a psychotherapist is beyond the scope of this paper.

16 Philosopher Alan Watts who experimented with "psychedelic" substances in the 1950's and 1960's (before the substances were declared illegal) analogized them to a microscope saying, "one uses a microscope for bacteriology, even though the microscope is an "artificial" and "unnatural" contrivance which might be said to "distort" the vision of the naked eye." (Watts, A., "Psychedelics and Religious Experience," 1968, 74 Calif. L. Rev. pp. 74-75.)

17 California, for example, allows the unlicensed manufacture of beer for personal use by any person over 21 years of age. The statute limits aggregate household production to 200 gallons per year and prohibits sale. (Cal. Bus. & Prof. Code sec. 23356.2 (Deering Supp. 1990).)

18 In many cultures where persons partake of naturally occurring entheogenic plants, the plants are said to validate the religious doctrines learned in early childhood. For example, the Andean Indians' yaje drinking ceremony continues to this day as a mainstay of their religion. After drinking yaje, "the individual 'sees' the tribal divinities, the creation of the universe and humanity,...the individual 'dies' but is later reborn in a state of wisdom, because on waking from the yaje trance he is convinced of the truth of his religious system, since he has seen with his own eyes the personification of the supernatural and mythic scenes." (Reichel-Dolmatoff, G., "The Cultural Context of an Aboriginal Hallucinogen: Banisteriopsis caapi, Hallucinogens and Culture, pp. 47-48, ed. P. Furst, 1976 San Francisco: Chandler & Sharp.)

19 People v. Woody, 61 Cal.2d 716, 394 P.2d 813 (1964).

20 The principle that courts of law have no business determining which religions are "true" and which are "false" was recognized by the United States Supreme Court in 1944, where the Court noted:

Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. [Citation omitted.] It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others.
Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. United States v. Ballard 322 U.S. 78, 86-87 (1944).

21 United States v. Seeger, 380 U.S. 163 (1965).

22 Woody, supra, 61 Cal.2d at p. 726, 394 P.2d at pp. 820-821 (1964).

23The requirement that an assistant can oversee a maximum of two registrants at one time is admittedly overly conservative. It is expected that this requirement (like all other requirements suggested by this paper) will undergo some adjustment as experience provides additional data points for evaluation.

24 A similar restriction is spontaneously arising with respect to the socially accepted drug of nicotine contained in commercial cigarettes which, as of late, have come under increased restrictions limiting, and in some cases prohibiting, their "use" in public places.

nah, i dont have any room.. sorry?