Religious Exemptions are Procedural Nightmares

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Want to use psychedelics for religious purposes in the U.S.? The government should let you, but it’s not going to make it easy.

In 2006, the U.S. Supreme Court paved the way for religious exemptions to the Controlled Substances Act (CSA) for illegal psychedelics. Since then, only a few groups have been granted such exemptions – and not for want of trying. Religious exemptions are procedural nightmares.

Getting a religious exemption to use psychedelic substances is like winning the Super Bowl. It is a system that seems intentionally designed to interfere with religious practices. Today, I’ll examine why that is.

The DEA religious exemption procedure

In the 1990s, Congress passed the Religious Freedom Restoration Act (RFRA). RFRA created a test for courts to evaluate whether government action interferes with religious liberties. The Supreme Court applied RFRA in favor of an ayahuasca church in Gonzales v. O Centro in 2006. Following O Centro, the DEA issued Interim Guidelines for seeking petitions to the CSA for religious purposes.

Anyone with knowledge of the DEA religious exemption procedure will tell you it’s a nightmare, and that it’s futile. I wrote about the process extensively in posts set out below. To summarize, petitioners must submit detailed information explaining their religious beliefs and why the use of a controlled substance is a part of that religious belief. They must explain how they will make, distribute, dispense, import, use, etc. the controlled substance.

This is a very simplified explanation but the point is that it’s a very murky process. Groups without a lawyer are not going to be able to fill one of these requests sufficiently. Even groups that have lawyers are faced with uphill battles. The DEA rarely even responds to these letters. As I described in my last post, even groups with the backing of U.S. Senators have had trouble getting the agency to even acknowledge them.

One of the few groups to get a response letter was Soul Quest. The DEA, of course, denied its request. I intend to write in detail on that letter at a later date. But it’s plainly clear to anyone who reads that letter that the agency has taken it upon itself to evaluate whether religious beliefs are legitimate. Given its position in virtually all cases we’re aware of, it doesn’t seem like DEA has any intent to either take these things seriously or treat these beliefs as sincere.

Are there exemptions to the religious exemption procedure?

You may ask whether there are alternatives to the religious exemption petition procedure. The answer is very complicated. The DEA didn’t use formal rulemaking procedures when it created its religious exemption petition. Literally all we have is a PDF on the DEA’s website governing the process. This means that the entire process has some serious legality problems. For purposes of this post, though, the bottom line is without a formal rule, the process for challenging the agency is unclear.

For those wanting to go to court, there are a few important examples to consider. The point is that the process is unclear, that and that any challenge will be a procedural nightmare.

The procedure for challenging the DEA without a religious exemption petition

Let’s look at what happens when a party wants to avoid submitting a petition and go straight to court. For those wanting to go to court, there are a few important examples to consider. The point is that the process is unclear, that and that any challenge will be a procedural nightmare.

First, a party could file a suit challenging the DEA’s religious exemption petition process as a whole. A group called the Arizona Yage Assembly (AYA) did that in 2020, without filing a petition. One of DEA’s main arguments is that AYA never went through the petition process and essentially “skipped a step.”

DEA is advancing a standard that forces people to either sit in line for literally years with no end in sight, or go to risk getting their case tossed for not going through this pointless exercise. I started writing about the AYA case in 2020. I think it’s key to point out that the DEA represented to the court in a sworn declaration that it had started to make actual regulations for the exemption process. That was almost two years ago and we still have no religious exemption regulations.

The other option would be to fight an arrest or other penalty in court under RFRA grounds. These are waters no one wants to test. Nobody wants to be arrested or penalized before getting their day in court. The whole point of having a religious exemption procedure is to avoid this exact thing. But if these exemptions are not processed, then there are inevitably groups that will be penalized and forced to fight in court. That is what happened in the O Centro case and led to the nightmare religious exemption procedure in the first place.

Taking the DEA to court while it considers a religious exemption petition

Soul Quest is a good example of what happens when a petitioner sues the DEA with a petition under review. In one sense, Soul Quest succeeded in getting the DEA to respond to its petition. In another sense, DEA considered Soul Quest’s pleadings in the case in denying the petition. So on balance, it’s not a great outcome. And we don’t know whether any lawsuit would spur the DEA into action – that certainly hasn’t happened yet in the Iowaska case where DEA has gone nearly three years without a response.

Moreover, once those claims were filed, the DEA jumped in with a series of procedural grenades. In its motion to dismiss, DEA argues that the case should have been brought directly in a federal appeals court under section 877 of the CSA. There are a lot of technical nuances here: 877 provides for appeals of final agency decisions to the court of appeals, whereas the case was filed before there was a final agency decision. This isn’t DEA’s only argument, but it just underscores the kind of procedural nightmares that petitioners are forced to deal with when challenging something like this.

Religious exemptions are procedural nightmares

There is no good process for religious groups to obtain exemptions to the CSA. Other than certain Native American groups that have received peyote exemptions, there have only been TWO groups to receive exemptions. These were the plaintiffs in O Centro and a group that adheres to the Santo Daime religion – both of whom had to sue the government first.

We are certainly hoping DEA makes good on its representations to the AYA court that it will one day come out with clear regulations for applying. And that it’ll quickly process petitions in accordance with fundamental due process principles.

For more of my Psychedelics Law Blog posts on religious freedom issues, see: