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PSYCHEDELIC PSCHOLOGY AS PROTECTED FREE EXERCISE UNDER THE FIRST AMENDMENT
I. Purpose is to inform and educate psychedelic-based mental health practitioners about how courts define religion under the First Amendment-how their practices fit squarely within the definition and how such practices would likely fare under strict scrutiny.
II. Clearing up common misconceptions of how law defines religion
Ø My qualifications;
Ø Beliefs and practices need not be attached to established religion; idiosyncraticism is honored in the law;
Ø Religious v. Secular beliefs- no clear way to discern and law accommodates both within belief system(s);
Ø The IRS 14-factor test for “church” is not legal test for “religion” and is otherwise unconstitutional;
Ø Average legal practitioner/LE official lacks knowledge of legal test of religion.
III. Legal test for religion broad and allows for circumscribed and sacred use of psychedelics
Ø 1st Amm. sets floor for inclusion of religious beliefs;
Ø Brief discussion of evolution of legal test;
Ø Jurisprudential propositions to prevent court bias;
Ø Stevens v. Berger quote;
Ø Malnak & Africa-influential third circuit cases;
Ø Meyers test for religion
Ø Inherent religiosity of Entheogen-based practices
Ø Syncretic blending of traditions as religion under the first amendment
Ø Dr. Winkleman’s anthropological findings and conclusions
IV. What Psychedelic medicine/science says about the nature of the psychedelic experience
Ø Generally research says that those who consume an appropriate dose of psychedelics in an appropriate setting are, way more likely than not (70-80%) are going to have a PR/ME experience; such number help prove both sincerity and religiosity.
o Most research subjects place psych-induced PR/ME within top 5 most meaningful experiences-some rank as number one;
o Many of such subjects describe “ineffable” quality of such experiences; this aligns them with mystical and ancient texts on religion/spirituality;
o Research shows the nature, content, and depth of PR/ME is indicator of positive clinical outcomes; intent to effectuate as evidence of religiosity;
o Some report perinatal experiences (Grof); answers the ultimate issue of life and death;
Ø Psychedelics relatively safe when taken in curated set and settings and safety precautions adhered to:
o Research has revealed most if not all contraindications (conditions/medications);
o Research informs on safe set and settings;
o Research incorporates indigenous knowledge of set and setting;
V. Overlap of Secular and religious beliefs (and the resulting practices)
Ø Callahan v. Woods: “…a coincidence of religious and secular [beliefs] in no way extinguishes the weight appropriately accorded the religious [beliefs].”
o First Amm. facilitates beliefs that psychs heal and can be for divination;
o Clear dichotomy between medical/secular v. rel/spirit/nature is only western mindset, indigenous peoples draw no distinction;
o Medicine not purely secular term
VI. Overview of RFRA and 1st amm religious free exercise analysis
Ø RFRA and 1st Amm. require exact same analysis (i.e. compelling govt’l interest test);
o SS analysis in RFRA is 1st amm test per Sherbert and Yoder
§ Litigation burdens under RFRA
Ø In terms of safety, courts like circumscribed use versus all day use;
Ø No prior permission needed to engage in “legal” religious practice
VII. Licensing boards
Ø Greatest concern for mental health professionals; no constitutional constraints on these bodies; whether professional represents a danger or hazard to public;
o Have not seen any clients come against boards in five years;
o One instance in California of non-client and board;
o Lessons on how to avoid board censure:
§ Delineate professional versus religious practice;
§ Facilitate with other co-religionists;
§ Separate in fact professional practice and religious/spiritual work
