Back in the 1970s, the Controlled Substances Act was passed by the federal government and it, in effect, outlawed numerous psychoactive substances, including psychedelics. In 2009, the Drug Enforcement Administration (“DEA”) published Interim Guidance under which interested religious groups could apply for exemption from the provisions of the Controlled Substances Act (“CSA”). A close look at the provisions of the interim guidance shows how the DEA is making it difficult for different religious groups to use psychedelics in their religious ceremonies. We highlight some of those infractions.
Determining the Authenticity of Religions
The DEA’s interim guidance compels petitioners to furnish the federal agency with detailed information about the religious group and its beliefs. The presumed reason for demanding such information is that the DEA will conduct an analysis to determine whether the stated beliefs and practices are genuinely religious.
The problem with this is that the DEA has arbitrarily established its own criteria for determining what constitutes a religious belief or practice. Where on earth do you find a drug-fighting agency with expertise in determining what is or isn’t a religion? The agency is clearly overstepping its mandate when it seeks to become judge of what qualifies or disqualifies a belief from being a religious one.
No Timeline for Deciding the Fate of Petitions
The interim guidance also allows the DEA to ask petitioners to avail additional information after submitting their petitions for exemption from some provisions of the CSA. While this wouldn’t ordinarily be a problem, the DEA isn’t obliged to determine the fate of a petition within any predetermined timeline. The federal agency can therefore take years or even decades without pronouncing itself on a given petition, and that is a blatant disregard of the rights and freedoms of those who wish to engage in religious activities of their choice.
Penalty of Perjury for Signed Petitions
The DEA requires petitioners to sign their written petitions under the risk of being prosecuted for perjury should any section of the petition be found to be incorrect. This requirement imposes a huge monetary and time demand upon religious groups which would like to apply for exemptions, and those that may be unable to engage competent legal counsel could drop their interest in applying for exemption since they risk being prosecuted should they include what the DEA deems to be incorrect information in their petition.
The interim guidance is clearly a rule being implemented by the DEA, and the issue here is that no rulemaking procedure, such as asking the public to comment about the proposal, was followed while formulating the guidance. For this reason, religious groups that wish to use psychedelics can either challenge the interim guidance in court (a very costly option) or comply with the guidance and subject themselves to an unfair process. This is a classic example of a lose-lose situation; damned if you do, damned if you don’t. Experts wonder how psychedelics entities like Rritual Mushrooms Inc. remain confident that a level playing field will one day be available for psychedelics.
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