The Legal Definition of Religion in the Context of Modern Religious Exercise with Psychedelics: Protection, Double Standards, and Potential Expansion under RFRA

In the United States, psychedelic substances are prohibited by the Controlled Substances Act (CSA) but are also uniquely safeguarded when used in sincere religious exercise.¹ The legal right to use an illegal substance in a religious ritual requires a judicial determination that beliefs constitute sincere religion and that practices diminish certain government interests. The right to religious exercise is established by the First Amendment to the U.S. Constitution and protected by the Religious Freedom Restoration Act (RFRA) and state analogs. The government, through court decisions and Drug Enforcement Agency (DEA) determinations, has developed a threshold analysis of religious beliefs and practices to grant individualized religious-based exemptions and allow for the use of controlled substances that would otherwise be prohibited. This essay explores how precedents set by case law and government agencies use  Judeo-Christian concepts to define religion. As a consequence, they have improperly concluded that psychedelic religious practices are not sufficiently “religious.” I argue that the evolving nature of society and religious practice necessitates reevaluating legal standards to ensure that the right to religious exercise, as applied and intended, protects the minority and remains consistent with modern expressions of faith and ritual. 

There is a long line of cases granting exemptions from laws that infringe religious beliefs, leaving a meandering and contradictory path of legal definitions of religion.² In acknowledging the constitutional guarantee that one religion cannot be preferred over another, there is the ostensive conflict in the court applying criteria from a “traditional” religion,³ by which the court typically means Judeo-Christian religion, to the religious beliefs of the minority. Ultimately, certain presumptions of what is required to constitute religiosity by the court undermine the protection that the law portends. 

In the early case law, protectable religion was contingent upon belief in a supreme being that directed moral and ethical conduct. In 1890, the U.S. Supreme Court observed that religion “has reference to one’s views of his relations to his Creator, and to the obligations they impose on reverence for his being and character, and of obedience to his will.”⁴  

In 1944, the U.S. Supreme Court in Ballard seemed to expand the protection of religion to the unfamiliar beliefs of the minority by concluding, “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.”⁵ 

Similarly, in 1965, a surprisingly inclusive holding in Seeger by the U.S. Supreme Court expanded the legal definition of religion: 

[T]he expression ‘Supreme Being’ rather than the designation ‘G-d,’ was merely clarifying… so as to embrace all religions and to exclude essentially political, sociological, or philosophical views or a merely personal moral code… the test of belief ‘in a relation to a Supreme Being’ is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in G-d of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is ‘in a relation to a Supreme Being’ and the other is not.⁶  

The Court here acknowledges the ease of granting exemptions to traditional religious adherents—an "orthodox belief in G-d” “clearly qualifies for the exemption.”⁷ Yet, it also embraces a variety of religious beliefs that are recognizable by analogy.⁸ Seeger excludes that which is solely “personal” but sweepingly protects any religious beliefs that are in the believer’s “own scheme of things, religious.”⁹ 

However, by 1972, the U.S. Supreme Court in Yoder walks back from Seeger. It finds exemption appropriate only where, like the Amish, religious beliefs are “not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living.”¹⁰ Similarly conservative, in 1981, the Third Circuit in Africa denied an exemption because the belief system in question was deemed political. The Court provided the following test for recognizable religion:  

First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.¹¹  

While claiming to be aligned with Seeger’s protection of the individual, Africa appears to instead bring back limitations based on traditional religions, preferring the “familiar,” “unquestioned,” and “accepted:” “In considering a first amendment claim arising from a non-traditional ‘religious’ belief or practice, the courts have ‘look(ed) to the familiar religions as models in order to ascertain, by comparison, whether the new set of ideas or beliefs is confronting the same concerns, or serving the same purposes, as unquestioned and accepted ‘religions.’’”¹² 

Ultimately, the majority of religious exercise cases lean towards traditional religious concepts of G-d, morality, ritual practice, and the comprehensiveness of beliefs. These conclusions prejudice emerging religions that may, as a result of modern practices, not yet (nor ever) meet these criteria. Nevertheless, they, too, deserve equal protection under the law. 

The First Amendment provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” and State constitutions provide similar or more expansive protections of religion.¹³ Despite the statutory text that intends to prevent government infringement of religious exercise, the protection of this fundamental right relies on judicial analysis of religion, infringement, and the appropriate balancing of rights and restraint.¹⁴ 

The U.S. Supreme Court in Employment Division v. Smith in 1990 failed to safeguard sacramental use of a controlled substance as religious exercise.¹⁵ Because the law was generally applicable in that it did not specifically target religion, the Court did not apply the strictest scrutiny test to the government’s infringement. It held that law could burden the claimants’ freedom to religious exercise to achieve the government’s interest in applying the law. 

In direct response to the Smith decision, Congress passed RFRA in 1993. The law asserts that if the federal government imposes a substantial burden on a person’s religious exercise, then that person is entitled to the court’s application of strict scrutiny. It permits infringement of the “exercise of religion … [only when it] (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.”¹⁶ The balancing test of strict scrutiny creates a presumption in favor of the religious adherent once religiosity and sincerity are demonstrated, making the way in which ‘religion’ and sincerity are defined and applied a crucial component of the analysis.  

Notably, RFRA was enacted in direct response to the failure of Smith to protect religious exercise involving a controlled substance and “to protect the ability of the religious minorities to practice their faiths.”¹⁷ The U.S. Supreme Court in O Centro emphasizes that RFRA’s legislative intent is the protection of religious exercise using psychedelics: “the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance.”¹⁸ 

Communities engaging in religious psychedelic ceremonies remained largely “underground,” operating in secret and unregulated spaces, until two courts’ decisions in the aughts: O Centro¹⁹ by the U.S. Supreme Court and Church of the Holy Light of the Queen²⁰ by the Ninth Circuit. Both cases concluded that exemptions from the CSA for sacramental ceremonies with ayahuasca were required to protect the religious exercise of the church claimants. Notably, these two cases were brought and won by long-existing religious communities, recognized and legal in Brazil, and with clear lineages containing Judeo-Christian elements.²¹  

The defendant in the O Centro case was the O Centro Espírita Beneficente União do Vegetal (UDV) church, which is a Christian Spiritist religion that practices with ayahuasca. During the case, the government did not question the religiosity of the church, instead focusing on health risks and diversion.²² In Holy Light of the Queen, the church was a branch of the Santo Daime, a syncretic religion that blends elements of Catholicism with Indigenous Amazonian and African beliefs. Again, the government spent no effort in discrediting the religious beliefs of the church except to suggest there was evidence of a lack of sincerity due to secrecy, which was quickly dismissed by the court.²³ In response to the church’s RFRA claim,²⁴ the U.S. District Court found that the government failed to show that its interests justified prohibiting the religious use of Daime tea (ayahuasca) outright.²⁵ The Holy Light of the Queen prevailed in the strict scrutiny balancing test by demonstrating extensive religious beliefs and practices that diminished the government’s compelling interests by (1) protecting the health and safety of the small church community and (2) maintaining only religious practices with ayahuasca to prevent diversion.²⁶  

In 2024, the DEA entered a settlement pursuant to RFRA to give the Church of Eagle and Condor a religious-based exemption to allow ceremonies with ayahuasca.²⁷ This came after two years of litigation. The church, identifying as a mix of Shipibo Amazonian and U.S. Native American traditions, presented as credible believers with strong evidence demonstrating minimal risks to health and diversion. The settlement was the first DEA religious-based exemption from the CSA for a church without Christian elements.  

Other than these three churches, no other religious practice with a controlled substance is made legal by individual exemption.²⁸  

When a court assesses a RFRA case, it must first determine whether the religious beliefs in question are recognizable as religion and, second, determine if there is evidence of sincerity.²⁹ Both determinations rely on a similar standard to the famous pornography test of “I know it when I see it.”³⁰ These legal ‘gut checks’ create an opening for a judge’s personal beliefs and prejudices to impact the ruling, intentionally or unintentionally. Particularly concerning is the biased judicial presumption that RFRA, despite its acknowledgment of the dire need to protect “sacramental use of a controlled substances,”³¹ is wielded by psychedelic churches as “refuge to canny operators who seek through subterfuge to avoid laws they'd prefer to ignore… [using] ‘churches’ as cover for illegal drug distribution operations.”³²   

For example, in the Meyers case in 1996, the Tenth Circuit adopted a more conservative definition of religious beliefs drawing from Yoder and Africa. The Meyers test defines religion as “(1) ultimate ideas, (2) metaphysical beliefs, (3) moral or ethical system, (4) comprehensiveness of beliefs, and (5) accoutrements of religion.”³³ One emblematic failure of Meyers was defining religion with “religion,”³⁴ where “accoutrements of religion” is intertwined with traditional, mainstream, and well-known religious beliefs and practices.³⁵ The court noted, “no one of these factors is dispositive [and] factors should be seen as criteria that, if minimally satisfied, counsel the inclusion of beliefs within the term `religion.'”³⁶ Yet, ultimately, the court held that the use of marijuana by the defendant, Meyers, in his Church of Marijuana was based on beliefs that “were secular and, thus, did not constitute a ‘religion’ for RFRA purposes.”³⁷ Meyers looms dangerously over psychedelic religious practices.³⁸  

In 2010, the Tenth Circuit (again) refused to recognize religious beliefs in a marijuana church in Quaintance. Here, five circumstances were identified as undermining the defendant church’s sincerity and, therefore, its right to religious exemption.³⁹ The Quaintance sincerity test allows for judicial prejudice, specifically with its ill-defined test that religious beliefs are insincere if they appear to be  “ad hoc beliefs,”  meaning they were solely adopted to justify illegal activity.⁴⁰ It also applies double standards to psychedelic churches, holding, for example, that such churches should not engage in commercial activities.⁴¹ Conversely, in the Holy Light of the Queen, where the religious beliefs being exercised were Judeo-Christian, the dicta was remarkably clear-headed and uninfluenced by the stigma of controlled substances even when marijuana was found in the church leader’s home.⁴² 

 In 2009, in response to the O Centro decision, the DEA published guidance setting forth a process for religious groups to seek exemption from the CSA for the religious use of controlled substances.⁴³ To date, only two petitions have been denied, and none have been granted, despite dozens being filed.⁴⁴ The DEA’s analysis for a religious-based exemption in this process imposes additional standards and makes unreasonable demands for proof of religiosity from psychedelic churches.  

For example, the DEA denied a religious-based exemption petition by Soul Quest Church of Mother Earth,⁴⁵ a church that wanted to legally provide ayahuasca ceremonies. DEA asserted that the lack of sincerity of participants' religious beliefs, the commercial nature of the church’s activities, and the lack of a clear distinction between religious and therapeutic purposes indicated religious beliefs insufficient to gain exemption, as well as inadequate prevention of diversion.⁴⁶ It’s unclear if traditional religious communities would be subjected to similar scrutiny for, say, having congregations filled with nonbelievers, offering pastoral care and counseling, speaking to the healing power of religion, lacking religious texts, having transient participants in religious services, or receiving donations for ceremonies.⁴⁷ By applying standards derived from case law, the DEA disproportionately harms smaller, emerging religions without lineages, thereby suppressing religious freedom and criminalizing religious practice. 

The legal framework governing the religious use of controlled substances is fraught with challenges, including outdated definitions of religion and a bias against modern psychedelic religious structures. Considering the legislative intent of RFRA, these issues highlight the need for clearer, more inclusive legal standards that reflect the diversity of modern religious and spiritual practices while still balancing public health and safety concerns. However, the stigma against psychedelics may motivate a refusal to protect religious exercise, even where a religion’s practices otherwise meet RFRA’s fundamental standards. When religious rituals involve controlled substances, the government tends to be prejudiced against these beliefs and practices. The courts may be particularly biased against newer religions that are not as comprehensive as traditional religions or that include non-dogmatic, nonhierarchical, or emerging⁴⁸ beliefs. Further, conduct not typically held against traditional religious communities (such as advertising, proselytizing, commercial activities, holding church activities in nature,⁴⁹ or engaging in recreational use of substances) is held against psychedelic communities when they seek exemption.   

The government must look beyond traditional religion that “clearly qualifies”⁵⁰  in order to ensure equal access to the freedom of religion for all religions. Alongside demonstrating practices of safety and maintenance of the organized spiritual purpose for psychedelic ceremonies, a religious-based exemption from the CSA must, critically, be based on an articulation of “sincere and meaningful [belief that is]... parallel to that filled by the orthodox belief”⁵¹ without imposition of traditional religious criteria. In following this requirement set by case law, the government will ensure that emerging psychedelic religions can exist without the perceived need to align themselves with traditional religious beliefs. Their practices can then be based on truly sincere beliefs, not crafted to legal definitions nor adopted through appropriating traditions or lineages. The expansion of the protection of religion through case precedent and the explicit legislative purpose of RFRA to protect the religious minority, including explicitly those who engage in psychedelic ceremonies, asserts a legal imperative for the government to safeguard the lawful sacramental use of controlled substances without stigma.