Psychedelics and Religious Freedom

The freedom of religion guaranteed in the First Amendment has been applied to religious use of psychedelics in a number of court cases.  These modern and historical court cases have tended to uphold the right of Native Americans and South American churches with Christian elements to use certain psychedelics.  Courts have tended to deny the right to use psychedelics for religious purposes to individuals and churches founded in America.  

Psychedelics and Religious Freedom
by Trey Brasher

Religious freedom and its relationship to the use of psychedelics is returning to prominence among a modern resurgence of public and academic interest in psychedelics. The history of prominent legal cases involving psychedelic religions in the United States began in the 1960’s. Often in corollary to the prohibition of psychedelics being weaponized to suppress political dissent to the War in Vietnam, questions arose surrounding the extent of personal religious freedom guaranteed by the First Amendment of the United States Constitution. As the multifaceted counterculture of the 1960’s unfurled into prominence, courts directly faced the problem of religious use of psychedelics. Their bizarre circumvention of generally applicable constitutional rights in the case of society at large, but tendency to rule in favor of Native American expressions of psychedelic religion highlights an entire era of legal perspective. For largely political reasons, the suppression of religious freedom became cloaked in the supposed dangers of psychedelic drugs. In modernity, the courts again have been faced with the sacramental use of psychedelics in an entheogenic context, with the resultant decisions opening precious religious freedom to more denominations of native churches and thereby aligning more strongly with the intentions of the First Amendment. These gains, while deservedly lauded, are merely the beginning of a rectification process in a history of suppressing drugs used in a religious context since time immemorial.  

The use of classical psychedelics in religious contexts could go back more than 7000 years. Evidence from cave paintings potentially dates the religious use of the classical psychedelic psilocybin by tribal shamans to 5000-7000 BCE (Samorini, 2001). There is ambiguity surrounding the age of the first ritual or religious use of DMT and mescaline.  In 2019 the remains of a shaman were found in southwestern Bolivia; his medicine pouch contained organic matter from both DMT and beta-carboline containing plants, the combination used to brew ayahuasca. Subsequent carbon dating places the shaman to around 1000AD potentially dating the religious use of ayahuasca to more than 1000 years ago (Miller et al, 2019). Archeologists had previously confirmed the shamanic use of DMT containing snuffs by carbon dating to 1200BCE (Mishor, McKenna, & Callaway, 2011). The difficulties inherent in carbon dating, particularly in the case of ayahusca and the DMT containing snuffs, suggest the religious use of DMT may be significantly older than the currently established carbon dating estimates (Miller et al, 2019). In the case of mescaline, carbon dating potentially places the religious use of the peyote cactus by North America natives to around 5,500 years ago (El-Seedi, 2005). While LSD itself has only been used in a religious context since the 1960’s, the closely related compound LSA is found in morning glory seeds, with religious use of these seeds by Aztec priests being first recorded in 1651 AD (Shultes & Smith, 1976). The antiquity of religious use of these compounds, coupled with the geographic range of use, indicates the degree to which the use of classical psychedelics found in plants is often fundamental to human religious practice.  Indeed, many scholars argue that the use of psychedelics provided the foundation of human religion (Hofmann & Shultes, 1979). It seems difficult to argue that the use of classical psychedelics as a religious sacrament is illegitimate, given that religious use of these drugs likely predates the advent of agriculture and civilization. Inevitably various courts contested this exact point during the 20th century, beginning with the Native American use of the mescaline containing peyote cactus.  

The question of religious peyote use emerged into prominence in 1964 just as the fervor of the 1960’s escalated.  In People vs Woody, the California supreme court ruled that members of the Native American Church could claim a legitimate religious exemption from the prohibition of peyote (Doyle, 1980). The case employed a legal test relied upon as precedent in the modern court cases involving ayahuasca churches, a balance between compelling state interest and the highly regarded right to freedom of religion. In the case of People vs. Woody in 1964 the court found the government unable to demonstrate that peyote was a health concern for members of the Native American Church and further, that the Native American Church processed all the trappings of a legitimate religion. In a bizarre twist of fate, the day People vs. Woody was decided, the California supreme court decided In re Grady in which a defendant, who had been arrested for possession of peyote, claimed his personal use of peyote was religious despite being unassociated with an organized religion. Effectively this meant the Court’s task was to examine the defendant’s personal life to locate ‘proof’ of the legitimacy and conviction of his religious beliefs. These cases set up a precedent where the demonstration of ‘good faith’ in the assertion of religious conviction was assessed on an individual basis, introducing leverage by which the courts could then assign bad faith to any dissenting faction or individual deemed a political threat. Such is evidently the case with the prosecution of former Harvard Professor Timothy Leary, as well as members of the Neo-American Boohoo Church founded by Leary’s close associate, Arthur Kleps, for the sacramental use of psychedelics (Lee & Shlain, 1998).  

In 1966, a special hearing was held before the Senate Judiciary Committee to discuss, in large part, the proposed move to make LSD illegal at the federal level (Narc Rehab Act, 1966).  At the behest of New York Senator Robert Kennedy, whose wife underwent LSD assisted psychotherapy to greatly positive effect, witnesses were called to defend the benefits of LSD (Lee & Shlain 1998; Ginsberg, 1966). Those witnesses included Arthur Kleps, who maintained his Neo-American Boohoo Church used LSD and other psychedelics as religious sacraments.  After being questioned in a patronizing tone about the peculiarities of the Church, Kleps articulated with vitriol the similarities between the religious persecution of psychedelic users by law enforcement to the Nazi Gestapo persecution of the Jews. If prisons are used to hold users of psychedelics, he reasoned, they are no better than concentration camps, at the ruination of American civil liberties and the rights guaranteed by the First Amendment of the Constitution.  Kleps at one point indicates the extent to which psychedelics are fundamental to the religion; that one of the three basic beliefs required to be a member of the religion is that psychedelics are not drugs, but religious sacraments to be used with reverence as such; The Boohoo Church viewed them as gifts from God (Stevens, 1987; Narc Rehab Act, 1966). In discussing the case of People vs Woody two years before, and the ruling that the Native American Church could lawfully use peyote in a religious context, Kleps indicated,  


“Apparently those in control of the instrumentalities of coercive power in the United States have no trouble recognizing a psychedelic religion as a psychedelic religion when that religion is safely encapsulated in a racial minority group living outside the mainstream of American life. (Narc Rehab Act, 1966)


Kleps’ frustration leaked into every word of the testimony as LSD and the other classical psychedelics headed visibly toward the precipice and a future 60 years (so far) of violently enforced prohibition and the suppression of his religion. Toward the closing of his testimony Kleps reiterated that suppression of the groups who use psychedelics in a religious context would be treated as the intent to perpetrate a type of religiously motivated internment, and would be resisted as such, proclaiming,   


“ …there will either be some kind of accommodation or there will be conflict.  We are not drug addicts.  We are not criminals.  We are free men and we will react to persecution the way free men have always reacted to persecution.” 


In retrospect the number of lives ruined, families torn apart, and needless human suffering perpetrated on cannabis and psychedelic users in the coming half century, and now for 20 years into the 21st century, probably does amount to damage of the magnitude predicted by Arthur Kleps. In fact, persecution of political dissidents, when religious use of psychedelics and cannabis were involved, became a lifestyle interrogation, where courts dissected details of an individual’s life to determine their ‘sincerity’ of belief (Doyle, 1980).  Given the public fervor surrounding particular individuals, seemly inevitably the Courts opined the illegitimacy of people holding religious beliefs about psychedelics, unless those beliefs happened to be “safely encapsulated in a racial minority group living outside the mainstream of American life” and therefore politically impotent. The prophetic level of political influence held by former Harvard professor Timothy Leary played a role both his arrest (Lee & Shlain, 1998) and the court cases that followed, Leary vs United States (1967;1969). Leary defended his use of cannabis and psychedelics on religious grounds, specifically that the sect of Hinduism he followed indeed used cannabis in a religious context (Leary vs US, 1969). Ignoring People vs Woody’s precedent that denial of sacramental use of a psychedelic substance could not be based on “untested assertions”, the Court proceeded to level an untested assertion regarding the horrors of cannabis claiming, “It would be difficult to imagine the harm that would result if the criminal statutes against marijuana were nullified, as to those who claim the right to possess… this drug for religious purposes… the danger is too great especially for the youth of the nation” (Doyle, 1980). This assertion was, at the time, fully unsupported by empirical evidence, and given the current recreational legality of cannabis in many US states, evidently unfounded.  Such claims continued to be leveled against proposed legal access to psychedelics for religious use with equally little evidence, even in the 21st century (Gonzalez vs O Centro Espírita Beneficente União do Vegetal, 2006).  

While some degree of restriction on the practice of religious doctrine is permissible by law and necessary for the maintenance of civil society, the prohibition of psychedelics is plainly inconsistent with American values. Legal precedent from well before People vs Woody indicated, “Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation [of First Amendment Freedoms] (Thomas vs Collins, 1945)”. This precedent fell by the wayside as the tensions of an escalating Vietnam War stratified society. Panic over the growing wave of political dissent and the proliferation of LSD and cannabis spurred Congress and the courts to take action. It exerted its judicial influence through the inflection of personal use of psychedelics in a non-Native American context as ‘in bad faith’, and essentially insincere (Doyle, 1980). Ironically after the late 1960’s judicial hammer came down on religious uses of psychedelic substances, the Teterud Vs Gillman case (1974) asserted “Justifications founded on fear and apprehension are insufficient to overcome rights [to Freedom of Religion] asserted under the First Amendment”. The internal inconsistency of judicial treatment of psychedelic religions and psychedelics as sacraments for an individual obfuscates the real situation; the US government had no justifiable reason to suppress psychedelics used in a religious context to begin with but felt it necessary given the political repercussions they perceived as inherent in the widespread use of psychedelic drugs (Nour, Evans, & Carhart-Harris, 2017). 

Frequently, religious use of psychedelics has been denigrated as decadent (Gerringer, 2007), unnecessary, a type of ‘spiritual bypassing’, or producing illegitimate (Narc Rehab Act, 1966) or unnatural mystical experiences compared to mystical experiences without the aid of psychedelics. Choice modern and historical scientific studies firmly lay these objections to rest. A year before People vs Woody came before the California Supreme court, a Harvard doctoral divinity student named Walter Panhke published his history-changing dissertation; In a placebo controlled double blind study conducted at Marsh Chapel on Good Friday of 1962, Pankhe gave 20 divinity students psilocybin or an active placebo, with the explicit goal of testing whether genuine religious experiences could be facilitated by exogenous psychoactive drugs. The so called “Good Friday Experient” was well known and highly publicized at the time, partially because Panhke’s research advisors were Timothy Leary and Richard Alpert (Ram Dass)(Lee & Shlain, 1998). Not only did Panhke report no discernable difference between genuine mystical experiences in a religious context and those occasioned by psilocybin, one study participant escaped the chapel and ran down Commonwealth Avenue in Boston “announcing the second coming of the Messiah” before being sedated with chlorpromazine (Lee & Shlain, 1998).  Panhke’s dissertation was so well publicized it would be exceedingly difficult to argue that the government or general public were unaware that psychedelics could occasion true mystical experiences. The roll of Aldous Huxley’s Doors of Perception, famously detailing the “gratuitous grace” of his mescaline experience further proclaims the link in popular culture between so called ‘recreational’ psychedelic use and genuine conviction that they could elicit religious experiences (Huxley, 2010). Even the influential 1966 exploration of the effects of LSD, Varieties of the Psychedelic Experience drew its name from William James’ Varieties of Religious Experience (Masters & Houston, 1966), a direct allusion to the religious potency of psychedelics.  

The ability of psychedelics to occasion mystical experiences in a religious context returned to legal prominence in the 21st century, again in the context of Native American religions with psychedelics as their primary sacraments. The resultant rulings allow the Native American Church, including members of all recognized North American native tribes, to use and possess mescaline, and the União do Vegetal (UDV) and Santo Daime churches to use and possess ayahuasca in the United States under federal law (Roberts, 2015). The reemergence of these legal challenges to the Controlled Substances Act and assertion that the prohibition of psychedelics infringes on religious freedom, were predicated on the passage of the Religious Freedom Restoration Act of 1993 (RFRA). The RFRA intended to free up courts to hear individual complaints of religious infringement on the part of the US government and placed the burden of proof not on the individual, but on the government. The Act indicated the government must prove a bipartite claim that the restriction enforced a “compelling state interest” by the “least restrictive means” (Laycock & Thomas, 1994). The passage of the Act directly reflected public scrutiny of the Supreme Court decision to uphold Employment Division Department of Human Resources of Oregon vs Smith, 1990, another case regarding the legitimacy of religious use of peyote by members of the Native American Church (Schultz & Hudson, 2017).  

In 2006 the U.S. Supreme Court rendered a decision to allow the religious use of ayahuasca by the União do Vegetal (UDV) under the Religious Freedom Restoration Act of 1993 (Nichols, 2014). The decision in this case relied on that particularly salient bipartite test in the RFRA which prohibits the Federal Government from placing substantial burdens on freedom of religion unless those burdens are the “least restrictive means of compelling a government interest”.  The government presented a most peculiar argument in the course of the Gonzalez vs O Centro Espírita Beneficente União do Vegetal (UDV); according to the Government, once one exemption was obtained for a Schedule 1 substance through the RFRA, there would be no way to cabin further religious exceptions from being recognized, and “the public will misread” such exceptions as signaling that the substance at issue “is not harmful after all” (Bronfman, 2011).  This might in fact be true, if indeed there was or is anything particularly harmful about using ayahuasca.  As it were, the substance at issue is actually as close as can be conceived to “not harmful after all”, when used in a religious context(Santos et al, 2007).  

Ironically, within the União do Vegetal case the government’s argument recognized the Controlled Substances Act is intended to create a ‘closed’ system of drug prohibition applying to all uses of controlled substances except as authorized by the CSA itself (Bronfman, 2011). ‘Those authorized uses’ references a provision within the CSA authorizing the Attorney General to “waive the requirement for registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety.” This passage was actually added to grandfather in the Army and CIA’s testing of psychedelics as tools for torture and chemical warfare (Lee & Shlain, 1998), essentially indicating the government felt use of psychedelics as weapons and instruments of coercion could continue, but religious use of substances that elicit religious experiences, and are demonstrably benign to the public health and safety (Santos et al, 2007; Nichols, 2016), should not be tolerated.  

Following the Supreme Court’s precedent in allowing the UDV’s use of ayahuasca, an Oregon court found the Religious Freedom Restoration Act also applied to the religious use of ayahuasca by the Santo Daime Church (Church of the Holy Light of the Queen vs Mukasey, 2009). Courts reviewed a number of scientific publications prior to the decision, noting that although ayahuasca is claimed by the government to be dangerous, there are no reported deaths, no teratogenic effects in women who consume it while pregnant, and a lower instance of mental health and addiction in ayahuasca users than in the general population (Gonzalez vs O Central, 2006). A highly salient aspect of both the UDV and Santo Daime decisions was the Court’s rejection of the government’s claims of health concerns regarding ceremonial use of ayahuasca, precipitated by an in-court exchange of health related, scientifically backed claims. This indicates that under some circumstances, the Courts are willing to reject government claims of the health risks of drugs based on actual pharmacological evidence, an evidence base veritably overflowing with defenses of the relative safety of psychedelics (Nichols, 2014). Given precedents in peyote and ayahuasca law and given the requisite willingness of the Supreme Court to entertain scientific evidence, the prohibition of psychedelics rests on profoundly shaky legal ground. 

Requiring external accoutrements to prove of the internal validity of a religious or spiritual belief defeats the whole purpose of the First Amendment, which protects the freedom of thought prerequisite for a free society (Doyle, 1980). In any case, the ritualistic consumption of entheogenic substances would well count in favor of this freedom. In the case of psychedelics, historical precedents in peyote laws admit the non-addictive and near-benign nature of mescaline and utilize this defense to shift the balance in favor of religious freedom in the use of psychedelics (Doyle, 1980). In contemptuous rejection of religious pluralism, the court at various times attempted to ascertain the degree to which a religious conviction is deeply held, an exercise tantamount to mind reading.  While a balance between claims of free exercise of religion and government interest in keeping a cohesive structure to society is a perfectly legitimate consideration, denying the strength of personal religious or spiritual convictions to carry out politically motivated drug law persecutions has no bearing on the consideration of that balance.  Cognitive liberty advocate and MAPS legal analyst Thomas Roberts articulates the current state of religious persecution of psychedelic use perfectly;  


To what extent will the courts and legislators extend the Freedom of

Religion to experience-based religions beyond the current text-based ones?

Entheogenists today, like their reformist forbears, face similar persecution, but

thankfully not so cruel. I haven’t heard of the Drug War burning peyoteists at the stake, torturing ayahuasceros with medieval devices, or burning down the houses of LSD entheogenists. Instead, we jail them with cruelly long sentences, seize their property, make them ineligible for governmental benefits, fire some and refuse employment to others, refuse to admit evidence they might give at their trials, expel them from school, deny voting rights, and much more. How much has to happen for this to this qualify as religious persecution (Roberts, 2015)?


Today, the so called ‘recreational’ use of psychedelics is in large part inspired by a spiritual or personal religious drive. The pharmacology literature reports that spiritual use may be the primary motive for illegal, ‘recreational’ use of psychedelics (Haijen et al, 2018; Griffiths et al, 2019). As traditional religious structures cede ground to more secular ‘spiritual’ practice, the same degree of protection must be afforded to these sacraments, stripped of their trappings and dogmatism. A bizarre situation arises in modern law, where religious use is allowed so long as beliefs surrounding that use are sufficiently earnest and sufficiently unsupported by empirical evidence. Spiritual use on the other hand, operating under the empirically supported observations that psychedelics dose dependently elicit spiritual/religious experiences, are not physiologically or psychologically addictive, and are among the safest classes of CNS drugs, is heavily criminalized.  Examining the contents of other people’s minds in order to determine ‘earnest religious belief’ has a distinctly dystopian flavor.  The courts would do well to recognize the primacy of religious freedom and concede the obvious; current psychedelic drug policy is anti-American, anti-democratic, and suppresses personal freedom.  The sanctity of free thought and the free practice of personal religion and secular spirituality devoid of government intrusion is the apotheosis of American ideals, and current psychedelic prohibition is the antithesis.



Trey Brasher is a drug researcher with a degree in pharmacology. He specializes in the pharmacology of serotonergic psychedelics. He is a representative of Unlimited Sciences and the Students for Sensible Drug Policy (SSDP) US Policy Council   



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