Skip to content

Psilocybin, Religious Freedom, and Measure 109

Religion measure 109 wide

Shamans and curanderas in Mesoamerica have used and continue to use psilocybin mushrooms in rituals and ceremonies to achieve an altered sense of consciousness for religious and spiritual purposes. Despite this history, Oregon Ballot Measure 109, which passed in 2020 and legalized psilocybin services at licensed service centers, contains no provisions for religious, or entheogenic, psilocybin services.

In March, both the Equity and Licensing Subcommittees of the Oregon Psilocybin Advisory Board recommended adopting a framework of proposed rules that would protect sacred or religious use of psilocybin under Measure 109. This article previews the proposed entheogenic rules, discusses the complicated relationship between psilocybin and religious freedom, and explains why it’s so important for Oregon to set a positive precedent for religious psychedelic use in the United States and throughout the continent.

What does the proposed entheogenic framework look like?

Jon Dennis, a lawyer, entrepreneur, and psychedelics activist, drafted the entheogenic framework, which introduces certain privileges and duties for individuals or entities who qualify as entheogenic practitioners. Practitioners include individual facilitators, nonprofit manufacturers, and nonprofit service centers. Nonprofit holds the same definition as ORS 65.001(33), meaning a mutual benefit corporation, public benefit corporation, or religious corporation.

It is important to note that the entheogenic framework is not part of Measure 109 nor is it part of the licensing regime that Measure 109 lays out. Since Measure 109 contains no provisions for religious psilocybin use, the entheogenic framework would independently supplement Oregon’s psilocybin program to increase equity and affordable access and pay proper homage to psilocybin’s historic indigenous use.

The following section of this article describes how both clients and practitioners would qualify for entheogenic privileges and duties and discusses such privileges and duties as imposed on facilitators, manufacturers, and service centers.

A. Entheogenic Qualifications

To receive psilocybin services at an entheogenic service center, clients must be affiliated with an entheogenic service center or sign an attestation demonstrating a good faith intention to practice or explore religion or spirituality.

The client must also participate in or donate to a reciprocal exchange program, defined as a program that partners with an indigenous plant medicine community to 1) promote preservation or dissemination of indigenous knowledge or wisdom, or 2) minimize or reverse the impacts of colonialism, extraction, or cultural appropriation of indigenous communities.

Both individual and entity practitioners must, among other things, 1) be or be affiliated with a nonprofit formed primarily for religious or spiritual purposes, and 2) except for facilitators, sign attestations demonstrating that privileges granted would advance a good faith practice of a sincerely held belief or conviction. Products produced utilizing entheogenic privileges would only be sold, transferred, and consumed at or to entheogenic service centers.

B. Entheogenic Privileges

The proposed framework grants entheogenic practitioners certain privileges in exchange for compliance with particular duties. Under the framework, entheogenic facilitators may, among other things, supervise ceremonies (outdoors optional) where the facilitator may freely engage in spiritual or religious rituals or exercises, provided they are safe for the client, the facilitator, and anyone else within proximity.

Entheogenic manufacturer privileges include storing, handling, and discarding products in a manner in accordance with one’s beliefs or convictions, provided these methods are safe. Manufacturers may also offer mushrooms free of charge or on a flat-fee basis, as permitted under Measure 109.

Finally, entheogenic service centers may host ceremonies where clients may freely engage in safe spiritual or religious rituals or exercises, and facilitators may supervise ceremonies both from outside the ceremonial space or as a participant in the ceremony, provided facilitators do not consume psilocybin during the ceremony.

C. Entheogenic Duties

In addition to the affiliation/attestation requirement discussed in part (a), to receive psilocybin services at an entheogenic service center, clients must successfully pass screening procedures and provide informed consent; agree to conduct themselves in a manner safe for themselves and those in proximity; receive and understand the process for filing a complaint with both the service center and the Oregon Health Authority (OHA); and participate in or donate to a reciprocal exchange program.

Alternatively, facilitators must, among other things, remain alert and attentive to client needs; refrain from consuming psilocybin products while participating in a ceremony; conduct candid conversations with clients about possible risks of psilocybin consumption; and intervene to the extent necessary to enhance, preserve, or restore client safety.

Manufacturer duties include, but are not limited to, providing safe products that are stored reasonably; preventing diversion of psilocybin products to anywhere other than entheogenic service centers and accredited labs; participating in or donating to a reciprocal exchange program; and providing OHA with an annual report of such participation or donations.

Finally, service centers must, in addition to other requirements, take reasonable steps to ensure all activities, including ceremonies, are conducted safely for clients and anyone in proximity; develop and implement policies and procedures for addressing complaints and submit reports of any incidents; and report on the service center and its clients’ participation in or donation to reciprocal exchange programs.

If an entheogenic service center has a financial interest in or affiliation with a non-entheogenic licensed service center, entheogenic duties do not apply to the non-entheogenic service center. The entheogenic service center must take reasonable steps to ensure clients, both existing and potential, are not confused about whether a service center has entheogenic privileges.

Inspiration Behind the Framework: The History of Psilocybin Criminalization

Psilocybin service centers are slated to open in 2023 in Oregon. However, given psilocybin’s rich history in ancient cultures, and its subsequent long-standing criminalization, it is vital that efforts to implement Measure 109 place a strong focus on equity, accessibility, and respect for religious and indigenous use.

Native groups in North and Central America have used psilocybin for spiritual and religious purposes for centuries, but R. Gordon Wasson first introduced psilocybin to the West in the 1950s. Wasson, an American investment banker, along with his wife, studied and participated in Mazatec mushroom rituals in Mexico. The curandera María Sabina allowed Wasson access to the plant and taught him about its uses and effects, in exchange for privacy and a promise to respect the mushrooms’ sanctity. However, in 1957, Life magazine published Wasson’s essay, titled “Seeking the Magic Mushroom,” describing his experiences during the Mazatec rituals and coining the mushroom reference used in pop culture to this day. The article received wide publicity and thrust psychedelic mushrooms into the spotlight of American counterculture. As a result, Western tourists descended on the Mazatec community in masses, abusing the rituals for a temporary thrill rather than respecting the ancient wisdom behind the mushrooms. María Sabina’s community ultimately blamed her, accusing her of commercializing their sacred traditions.

In response to increased recreational drug use in the United States during the 1960s, Richard Nixon emphasized comprehensive federal drug reform as a top priority upon taking office. In 1970, Congress passed the Controlled Substances Abuse Act (CSA) to classify, regulate, and improve the distribution of controlled substances. The CSA categorized psilocybin as a Schedule I controlled substance with no currently accepted medical use and a high potential for abuse. Schedule I substances are prohibited from being used, sold, imported, or manufactured in the United States. Until service centers open their doors under Measure 109 in 2023, access to psilocybin is limited to participation in research studies.

What about American religious freedoms?

Psilocybin’s historical spiritual and religious use, juxtaposed with its current federal prohibition and criminalization, inevitably leads to a question of encroachment on religious freedom. The Free Exercise Clause of the First Amendment to the U.S. Constitution protects citizens’ right to practice their religion as they please, so long as the practice does not offend “public morals” or frustrate a compelling governmental interest.

In 1990, the U.S Supreme Court case Oregon v. Smith presented a novel legal question surrounding psychedelics and religion with an outcome that did not bode well for religious freedom. In that case, two employees at a private drug rehabilitation clinic were fired after ingesting peyote for sacramental purposes at a Native American Church service. The state denied their applications for unemployment compensation, citing a state law disqualifying employees discharged with work-related “misconduct.” At the time, Oregon’s controlled substances statute prohibited peyote use, including for sacramental purposes. The employees lost at the Supreme Court, which held that the government may freely place substantial burdens on religious exercise, so long as the burden is the product of a neutral law of general applicability. The Court deemed the Oregon controlled substances statute a neutral law of general applicability because it applied to anyone who might possess peyote for any reason and was not directed at Native Americans’ religious practice specifically. As such, the Court concluded that an individual’s religious beliefs do not excuse them from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.

Considering America was founded in the quest for religious liberty, the Court’s decision in Smith sparked significant outrage across the country. As a safeguard against governmental interference, and in a rare moment of national consensus on the matter, a near-unanimous Congress passed the Religious Freedom Restoration Act (RFRA) in 1993. To specifically address the issue in Smith, RFRA mandates that if a government action burdens someone’s religious practice, that person must show that the action caused a substantial burden on that person’s sincere religious exercise. If the individual meets these requirements, the burden shifts to the government to show 1) that it took the action to further a compelling governmental interest, and 2) its action was the least restrictive means of furthering that interest.

A year after adopting RFRA, Congress moved to provide even further religious protections by amending the American Indian Religious Freedom Act of 1978 to provide that “the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or by any State.”

Twenty-eight states moved to enact similar state protections, including Oregon. ORS 475.752 provides that it is an affirmative defense to criminal prosecution for peyote manufacture, possession, or delivery if the peyote is being used or is intended for use 1) in connection with the good faith practice of a religious belief, 2) as directly associated with a religious practice, and 3) in a manner that is not dangerous to the health of the user or others in proximity (if this language is familiar, it's because the proposed entheogenic framework borrows heavily from Oregon’s peyote statute).

RFRA’s passage and state peyote statutes appeared promising for the religious freedom movement, particularly because Congress originally intended for RFRA to protect citizens from governmental interference at the federal, state, and local level. However, in 1997, the case City of Boerne v. Flores established that RFRA applies only to the federal government. According to the Supreme Court, RFRA is overly broad in its attempt at promoting religious freedom, and Congress enforcing RFRA on states constitutes conduct outside the scope of its plenary powers. The implication of this precedent is that although the federal government must comply with RFRA, states can, and do, continue to place substantial burdens on religious exercise without providing a compelling governmental interest.

RFRA’s Impact

RFRA attempted to protect American religious freedoms, but successful claims are few and far between. In 2006, the case Gonzalez v. O Centra Espirita Beneficente Uniao do Vegetal (UDV) marked a religious group’s rare victory under RFRA. In that case, U.S. Customs agents seized 30 gallons of ayahuasca tea, a controlled substance, to be shipped to the Santa Fe, New Mexico branch of the Brazil-based UDV church for ceremonial use. The Supreme Court found for UDV, holding that the federal government failed to submit evidence regarding the consequences of granting UDV an exemption to CSA enforcement, thus failing to satisfy its burden of proving that in seizing the tea, it was furthering a compelling governmental interest using the least restrictive means possible.

The UDV litigation sparked numerous requests for religious exemptions to the CSA. In 2009, DEA published guidance concerning a religious exemption petition system, which indicated that DEA may grant individuals or organizations a religious exemption if a party’s petition could demonstrate: 1) a sincere religious exercise, and 2) such religious exercise is substantially burdened by the CSA.

Despite this guidance being more than ten years old now, DEA has approved only two known religious exemptions: UDV and a similar case of the Santo Daime religion, where both parties had to sue the government first to initiate a response to their petition. Most petitioners report no acknowledgment that DEA received their petition, let alone that their petition will be reviewed and processed.

One church, Soul Quest, a Florida-based nonprofit that uses ayahuasca in its religious practices, submitted a religious exemption request in 2017. After no acknowledgement from DEA, Soul Quest filed a motion for preliminary injunction in 2020. In 2021, DEA finally denied the exemption petition and published a rare explanation. The explanation contains reasoning that may hint at what DEA is looking for in religious exemption petitions.

DEA denied Soul Quest’s petition mainly on grounds that the church’s religious beliefs were not sincere. DEA noted that Soul Quest held out the Ayahuasca Manifesto as its holy text, but almost no one interviewed from the church as part of DEA’s investigation mentioned the text, and ceremony participants were not required to read or even know about the Manifesto. DEA held that merely signing a membership form did not prove participants’ sincere religious belief in anything unique to the church. DEA also criticized Soul Quest sourcing its ayahuasca from Europe, rather than working with an indigenous lineage holder, to support its argument that Soul Quest’s religious beliefs were insincere.

DEA also took issue with Soul Quest holding itself out as a church, rather than the wellness center that DEA deemed it to be. DEA noted that most Soul Quest clients attended ceremonies only once, rather than repeatedly, as would be typical of church congregants. Further, the organization’s leaders and materials referred to ayahuasca as medicine and claimed that participation in ceremonies would heal physical and psychological illness, rather than provide religious or spiritual comfort or enlightenment.

Evidently, DEA, in evaluating petitions for exemptions, is drawing on its subjective interpretation of religious beliefs and what makes a belief sincere. Unfortunately, organizations have limited options for appealing a petition denial—the religious exemption guidance never withstood formal rulemaking, including publication in the Federal Register and subjection to a public notice and comment period, as required by the Administrative Procedures Act. Soul Quest challenged DEA’s denial and sought a declaratory judgment, but in March 2022, a federal judge in Florida dismissed the challenge.

How can Oregon work to protect religious psilocybin use?

Rare successes at the Supreme Court and the DEA actively neglecting the religious exemption petition system presents a bleak outlook for legal religious and spiritual psilocybin use. Additionally, because RFRA applies only to the federal government, states are free to place substantial burdens on religious exercise without having to produce a compelling governmental interest achieved using the least restrictive means possible.

However, under the proposed entheogenic framework in Oregon, it is possible that Measure 109 may be just the right container to grant organically grown nonprofit religious communities the freedom to produce, facilitate, and conduct psilocybin services in a manner that respects their sincere religious beliefs and prioritizes both participants’ and the public’s safety.

This means that Measure 109 cannot be another program that reinforces racial, health, and financial inequity mechanisms. Because Oregon is the only place in the country with a state-sponsored psilocybin program, and the program is still in early stages, the entheogenic framework presents a massive opportunity to protect religious psilocybin use early on and set a progressive national precedent that honors psilocybin’s indigenous and spiritual roots, while simultaneously protecting this country’s foundational belief in religious liberty.

McGlinchey logo

Green Light Attorneys Perry N. Salzhauer, Daniel Shortt, and Brittany Adikes have joined McGlinchey Stafford