Psychedelic churches and the law: 5 Questions for attorney Allison Hoots
Hoots discusses how and when religion, U.S. law and psychedelics intersect.
Religious freedom is a foundation principle of the United States, a concept enshrined in the U.S. Constitution. The First Amendment states that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Here, church and state are separate, which prohibits the federal government from interfering in Americans’ religious practices. But as hundreds of religious groups in the U.S. have claimed psychedelics as sacraments, the country’s drug laws have at times interfered with groups’ ability to obtain and use what they consider to be essential parts of their religion, including substances like peyote and ayahuasca.
Allison Hoots is a New York-based attorney who has advised churches on incorporation, operation, and legal compliance in the spiritual use of psychedelics. She is a member of the nonprofit group Chacruna’s Council for the Protection of Sacred Plants and President of Sacred Plant Alliance.
The Microdose spoke with Hoots about how and when religion, U.S. law and psychedelics intersect.
Under what circumstances have the legal rights of psychedelic churches clashed with U.S. law?
Many legal questions around psychedelic churches derive from confusion and mis-definitions of religion. I still don’t know what religion is, and I don’t think the courts do either. They’ve said as much, in that they’ve said that it’s not for them to say what someone’s religious beliefs are. That means the definitions of religion remain elusive and allow for quite a bit of flexibility, which is appropriate.
Where we see the rights of a psychedelic church scrutinized is generally in a Controlled Substances Act context. There’s also something called a substantial burden analysis — that’s contingent on whether government law or action has affected religious belief. If religious exercise is central to your beliefs, then in certain circuit courts, that would constitute substantial burden and allow you to file a claim under Religious Freedom Restoration Act. [Editor’s note: The U.S. federal court system includes 12 circuit, or regional, courts.] But if you articulate that exercise as simply being related to your religious beliefs, you may not be able to protect it. What's really interesting about this is how it's being applied in the different circuits — there’s this sort of double standard around psychedelics.
There are also particular rights with respect to nonprofit exempt status as automatically granted by 501(c)(3) of the Internal Revenue code. You can also receive an explicit determination from the Internal Revenue Service that you are a church deserving of tax-exempt status by applying through their usual application process. One church — the Church of Iowaska — did so and stated explicitly that they were a psychedelic church. But a tax exempt entity cannot engage in illegal activity, so they were denied recognition as a tax-exempt nonprofit. It's now being fought in court.
What criteria have been used to define what is, and what is not, a religion?
The criteria the Internal Revenue System uses is based on mainstream religion. Is there a congregation? Are there ministers? Do they have developed religious texts? Are there holidays?
The Tenth Circuit Court has used a five factor test to identify religion: ultimate ideas — big questions about life and purpose; metaphysical beliefs; moral and ethical systems; comprehensiveness of beliefs; and the accoutrement of religion. The court’s use is an overview of these factors as a whole. But I think if you look at these factors and consider even an individual’s use of a psychedelic you could find evidence of them. And when you look at a factor like the “accoutrement of religion,” you’re already discriminating. Because what does “religion” mean to the people who are analyzing it? It’s a paradigm that favors Judeo-Christian religions.
What else has come up in court and the U.S. Drug Enforcement Administration’s analyses is what the government thinks religion is not.
Okay, then what isn’t religion, according to the U.S. government?
The government points to things that demonstrate a lack of sincerity, or a majority of a church’s activity being commercial, or being more like a retreat center that offers therapeutic treatment or healing. I understand the government’s interest in limiting what constitutes religion; they have claimed they have concerns that psychedelic churches can be a circumvention route to get around the Controlled Substances Act or other laws. But religion is so individual and for many people, the use of psychedelics has a spiritual element. Where does spirituality and religion begin?
I don’t think these standards would be applied in the same way to a person or church claiming religious exercise that doesn’t involve psychedelics; there’s absolutely a double standard. For instance, when we look at mainstream religions, spiritual counsel is an important aspect of spirituality and religion. And now, psychedelic churches are expected to bear the responsibility, if you are going to offer a psychedelic ceremony, to engage in screening, which satisfies one of the government interests in the health and protection of participants, and also to show that participants are healthy after. That may require integration offerings. So why are churches expected to engage in health screenings and offer spiritual counsel, but unable to talk about spiritual healing or consider medical benefits? I agree they should not be offering to cure anything or guarantee any particular outcome, because no one can do that. But these experiences require counsel and support, and there needs to be some kind of health screening that may actually involve a medical professional, but churches are limited in what they can provide.
How might the ways that government agencies and the judicial system define religion affect psychedelic churches’ practices?
Ultimately, the Controlled Substances Act and the way the DEA has analyzed religion may actually create harms or increase harms that churches could minimize if they were allowed to do certain things, like for example, have their participants go to a doctor or involve a doctor in the screening process, or to more explicitly offer subsequent support or refer out to therapists and psychiatrists. Even in the context of the ceremony, these standards may make churches less confident in calling emergency services when there is an adverse event out of fear that it could put everyone in a position of criminal risk.
Another potential harm here is that despite many well-meaning, well-operating ethical practitioners who have offered ceremony in integrity for decades, we also know there are people who are protected by the underground nature of psychedelic ceremonies. There are people who will abuse positional power. Another issue with the legal status of churches is that people don't have a forum or don't feel comfortable reporting someone who has acted unethically.
You’ve advised psychedelic churches on best practices for legal compliance. What advice do you typically give them?
Be sincere. Be prepared to articulate your beliefs, and to engage in procedures that take the significance of the work you’re doing seriously — in a spiritual context, a legal context and a human context. Congregants who come to these churches are seeking, in the same way that you see someone going to mainstream churches trying to find something divine.
This work isn't for the risk averse. You are carrying so much responsibility, and what you’re doing is not legal yet. That is a very serious consideration.It is a serious risk for everyone involved, and making sure that you have the right experience and dedication to it, and are ready to devote yourself to it, is crucial.
This interview has been edited and condensed for clarity and length.
