Drugs and Religion

By: Haley Tanner

Religion in the United States

The United States is home to many ethnicities, races, and religions. And our government is often faced with competing interests. It is important for Congress and the courts to hold the government to a high standard when considering restrictions on religion. Two important cases that consider religious freedom are Department of Human Resources of Oregon v. Smith and Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetabl and Employment Division. Both cases consider religious groups’ uses of controlled substances in their religious ceremonies. There are also laws about religion and the First Amendment.

Peyote and Unemployment Benefits

In Smith, the Court considered an Oregon law that prohibited the knowing or intentional possession of a controlled substance. Smith was fired from his job, sought unemployment benefits, and was denied because he used peyote (a prohibited drug) during a religious ceremony. Smith sued to get unemployment benefits. Smith argued the government was forcing him to choose between his religious practice and working, which was a burden on religious practice in violation of the First Amendment. The Court upheld the denial of Smith’s unemployment benefits. The Court reasoned that religious beliefs do not automatically exempt someone from following the law. If a law is neutral and generally applicable, then the government can burden exercise of religion. For example, the Court explained Amish people are required to pay taxes (like all citizens) even though the tax money may be used contrary to Amish religious beliefs. 

Smith highlighted a serious First Amendment issue. The government would struggle to function if it faced an endless stream of exceptions to its laws. But, freedom to practice religion has layers and as a First Amendment right it deserves protection. Freedom of religion is more than just the ability to believe in any religion. Our First Amendment right includes physical acts like gathering for church or not eating certain foods. This could logically be extended to include using drugs. A negative impact on freedom of religion should not be easily ignored.

Congress Acts

Congress passed the Religious Freedom Restoration Act of 1993 (RFRA) in response to Smith. This law forbids the federal government from substantially burdening a person’s exercise of religion, “even if the burden results from a rule of general applicability.” But the RFRA does allow the government to restrict religious activity if it can show the restriction (1) furthers a compelling government interest and (2) is the least restrictive means of furthering that interest.

Essentially, the RFRA requires strict scrutiny to be applied when restrictions on exercise of religion are considered. Congress created a high burden to protect First Amendment rights.

Hoasca and Religious Ceremonies Again   

After the RFRA passed, the Court heard Gonzales. In Gonzales, members of a religious group (UDV) used hoasca, which contains a hallucinogen, during their religious ceremonies. U.S. Customs seized a shipment of hoasca to UDV members and threatened prosecution under the Controlled Substances Act (CSA). UDV sued for declaratory and injunctive relief and argued the application of the CSA to religious materials violated the RFRA. 

In Gonzales, the Courtheld the government did not meet the compelling interest requirement to restrict UDV’s exercise of religion. First, the Court pointed out the RFRA’s compelling interest test must be applied to “the particular claimant whose sincere exercise of religion is being substantially burdened.” Just because the government classified hoasca (or any substance) as a dangerous drug does not mean the government automatically met its burden under the RFRA. Second, the Court noted the CSA has an exception for religious peyote use. This exception had not diminished the government’s ability to enforce the rest of the law. The Court also noted the similarities between peyote and hoasca. For example, similar health risks exist with both drugs and there are the same risks of both drugs being diverted or used for non-religious purposes. But, religious peyote use is protected by the CSA. Some consider this decision to be a huge win for this heightened standard.

Gonzales is an example of the RFRA in practice. It demonstrates the increased bar the government must meet to restrict religious activity. This seems appropriate given the importance of the First Amendment. 

Dangers: real or imagined?

In both Smith and Gonzales, the Court considered the dangers of drugs, even when used in a religious ceremony. But, how dangerous are these drugs really? For example, researchers highlight that during ceremonies involving peyote, Native American church members do not ingest huge amounts of drugs. Members of these religious groups understand the effects of these drugs and how different quantities impact them.

These drugs may not actually be as dangerous as they are stereotypically perceived to be either. Tests suggest peyote does not damage memory, IQ, reading ability, and more. Notably, former alcoholics scored lower on cognitive ability tests than church members (who use peyote). And, research suggests hoasca may stimulate the growth of new brain cells.

Additionally, some scholars argue the skepticism of drug use during religious ceremonies is rooted in these religions not fitting into the Judeo-Christian mold. Interestingly, it has been suggested that early Christians used hallucinogens in their religious ceremonies. Maybe drug use in religion is actually part of the religious majority’s history, too.

Government Interests

Drugs clearly negatively impact our country. The opioid crisis causes irreparable damage. And the government has a clear and substantial interest in stopping heroin overdoses and the violence associated with drug deals. So, the government can have a compelling interest in restricting drug use.

But, like Congress’s reasoning in passing the RFRA, exceptions to controlled substance regulation can and should be made for religious purposes. Gonzales and the RFRA support our country’s commitment to the First Amendment and freedom of religion. 

It seems possible the government and Court might pass judgments about religions and their practices. For example, in Smith the Court seemed to downplay the detriment on religious beliefs and overstated the state’s interest in uniformly enforcing its controlled substances law. Perhaps the Court did not perceive the religious interest in using drugs because these religions are not a majority religion or widely understood.

The First Amendment helps protect minority beliefs, speech, opinions, and religions. The RFRA ensures the government does not restrict religious practices, especially minority ones, unless the high burden of strict scrutiny is met. When drugs are being used in small amounts and in controlled environments it does not seem like the government should intervene. 

Hallucinogenic drug use is gaining limited, but notable popularity. For example, there are retreats with hoasca ceremonies. However, drug use in these situations seems to be far removed from the purpose of the First Amendment. The RFRA test would probably allow the government to restrict these retreat ceremonies. Retreat participants are paying for this experience and are not truly members of a church or religious group. And the risks of unregulated experiences seem to be much greater. Some might even argue that by allowing these retreats the government could be seen as minimizing important traditional practices of true religious groups.

The government is obligated to protect legitimate First Amendment rights. On the other hand, the government should not automatically believe every request for an exception to legitimate laws. The government is required to balance competing interests.   The RFRA and Gonzales are not blank checks to use any drug and claim religious protection. But, they are appropriate and necessary to safeguard religious practices when the government cannot show there is a serious, legitimate need to restrict First Amendment rights.

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