Legal Status of Ayahuasca and Psilocybin Containing Mushrooms in the United States

This blog post is a summary of the video “The Right to Drink of Ayahuasca in America: Current Status & What’s Next” from Sacred Plants in the Americas II, a virtual psychedelic summit by Chacruna.

The speakers in the video are attorneys Martha Hartney and Sean McAllister. Martha Hartney is based in Colorado Therapies & Research Program, has published and presented on the art and science of death and dying, and is a member of Chacruna’s Council for the Protection of Sacred Plants. Sean McAllister is a member of Chacruna’s Council for the Protection of Sacred Plants, a drug policy reform lawyer, and a legal advisor to various cities and states around decriminalization.

Religious Exemptions

The Religious Freedom Restoration Act protects religious exercises, such as Ayahuasca use, through what is termed “religious exemption.” Therefore, one might assume that you could claim that ayahuasca use or psilocybin use is religious and be protected. But this is not how it works. So, where does that leave the public who is governed by these laws and wants to use plant medicines for religious or spiritual purposes?

Currently, there are only two churches with religious exemption for Ayahuasca – Centro Espírita Beneficente União Do Vegetal (UDV) and Santo Daime Churches. They obtained religious exemption by going to federal court and being granted judicial recognition, rather than petitioning the law. The DEA keeps a tight grip on petitions they deem “sincere,” and can determine a petition insincere in order to “protect public health and safety” and prevent use of a controlled substance for non-religious purposes. From a legal standpoint, religious exemption is based on The Religious Freedom Restoration Act and does not apply to the use of a controlled substance for spiritual purposes. The Meyers Case clarified that The Religious Freedom Restoration Act protects religious exercise, not spiritual exercise. From this legal standpoint, religion is considered to be more communal than spirituality, provides more structure for life and behavior, and contains sacred symbols and patterns. To claim religious exemption, the religious group usually needs to have established religious lineage that follows official ethos providing structure for life and behavior. In comparison, spirituality has a broader definition with less structure than religion and is based more on personal beliefs.

The speakers mentioned that the increase in use of psychedelics within the past ten years may lead the federal government to increase their already tight grip on religious exemptions of ayahuasca use. Steps that can be taken to support ayahuasca access and conservation: support Chacruna, The Indigenous Reciprocity, and The Church of the Eagle and the Condor.

Decriminalization Initiatives

Efforts across the U.S. are increasing to decriminalize psychedelic substances. A number of cities have passed initiatives or resolutions at least partially decriminalizing possession of some psychedelic containing plants. These local efforts do not entail full decriminalization, but are a step in that direction. The details are complex, but Denver was the first city to pass an ordinance that directed law enforcement efforts away from psychedelic mushrooms. Oakland followed Denver’s lead, passing a broad plant-based entheogenic ballot initiative in 2019, decriminalizing personal possession, transportation, cultivation, and non-commercial distribution of all naturally occurring psychoactive substances. Santa Cruz passed a similar entheogenic decriminalization measure, which included possession, cultivation, and storage of all entheogens, making them the 3rd city in the U.S. to decriminalize psychedelics. Washington, DC followed, passing Initiative 81 in 2020, making noncommercial planting, cultivating, purchasing, transporting, distributing, possessing, and/or engaging in practices with entheogenic plants and fungi of lowest priority for law enforcement. The city of Ann Arbor also voted to decriminalize psychedelic plants and fungi, giving them lowest enforcement priority, declaring city resources will not be allocated to assist with state and federal violations in relation to Entheogenic Plant use. Under all the decriminalization initiatives, distribution is still a grey area, even where distribution is decriminalized. In addition, the details of what “decriminalization” means in each city vary, so it’s important to know your local context.

State Level Initiatives in Oregon

Oregon has passed two state level initiatives that relate to decriminalizing psychedelics – Measures 110 and 109, elaborated further here. Although not available until 2023, Measure 109 legalizes psilocybin-assisted therapy while Measure 110 increases addiction recovery treatment services and reclassifies personal non-commercial possession of most controlled substances. Possession of small amounts of substances falling into schedule categories I-V were reclassified as Class E Violations, with the maximum penalty of a $100 fine or a mental health assessment by a therapist. According to Sean McAllister, holding an ayahuasca where ayahuasca is given out to people in exchange for money is still somewhat risky in Oregon without a strong religious defense (e.g., being recognized as one of the two established churches).

Some Considerations on Risk

Everyone needs to make their own judgments about what levels of risk they are willing to take in life and how to protect yourself if you choose to engage in the use of controlled substances. We are not advocating for or against use but want to provide information so that people can use psychedelics safely, should they decide to use them. Here are some things to keep in mind related to legal risk:

• Joining a church (other than the two with exemptions discussed above) that claims to use psychedelic substances as part of religious practice does not protect you from prosecution relating to possessing or distributing a controlled substance. As a recent example, the Zide Door Church of God, even though it was in a city that has “decriminalized” possession of psychedelic containing plants – Oakland – was raided for distribution of psychedelic containing plants. The church needs to have obtained a religious exemption from the federal government for you to be protected and only two churches have done that. While you may believe you use psychedelics for spiritual reasons, a prosecutor won’t care.
• Buying an ID card that says you are a member of a church will not protect you from being prosecuted. In addition, churches are not likely to help you if you are arrested for possessing psychedelic substances.
• Educate yourself on your local laws. For instance, Denver’s decriminalization measure only applies to personal use and possession of psilocybin. It is still considered illegal to distribute psychoactive substances in Denver, and people have been prosecuted by the Federal government for doing so. In the state of Colorado, it is a felony to give controlled substances to others, even without the exchange of money.
• Distributing psychedelics and other controlled substances in exchange for money is risky, even in cities and states where it is decriminalized – like in Oakland where Zide Door Church of God was raided for distribution. Thus, being part of a religious group and part of distributing psychedelics may put you at greater risk than just possessing psychedelics.

Authors: Angelica Spata, Jason Luoma, True Overlie