Politics and Religious Freedom Restoration Act Make Strange Bedfellows: The Sessions Memo by Charles Carreon is a thought provoking and somewhat edgy essay about how a recent memo on federal protections for religious liberty by Attorney General Sessions may affect ayahuasca and other entheogenic spiritual congregations.

Attorney Charles Carreon gives a brief history of how Religious Freedom Restoration Act (RFRA) cases have advanced certain causes of the religious right, strengthening the admiration and use of this law. Yet, these same principals can also strengthen the arguments of entheogenic churches that build on the UDV case.

Are Ayahuasca Churches More Protected Under Trump Administration then Before?

Photographed at the research and therapy center Takiwasi, Tarapoto, Peru. 

Carreon outlines five points in the Sessions memo, sent to federal prosecutors and others in the Department of Justice (DOJ), that could be helpful to entheogenic congregations:

1. The memo explains how RFRA works to DOJ prosecutors who may never have thought about it. Sessions informs his lawyers that RFRA prohibits the federal government from substantially burdening a religious observance or practice by:

a) simply banning the practice or observance

b) compelling an act inconsistent with it

c) pressuring a church, person or business to modify it.

The government can only substantially burden the religious practice or observance by using the least restrictive means to satisfy a compelling government interest. (Note: In some cases, this could still mean banning and prosecuting a practice. To use an extreme example: someone claiming an exemption for practicing religious human sacrifice would likely not fare well with the DOJ or the courts.)

2. The Memo forbids the DOJ from second guessing the reasonableness of a sincerely held belief, as long as it is authentically held.

3. The Memo instructs DOJ lawyers that religious entities can’t be denied funds or resources that secular groups receive. It follows that entheogenic congregations would be protected when they seek to use public facilities or receive public funding for their educational aims.

4. The memo advises federal agencies to avoid burdening religious practices and to attempt to proactively accommodate religious beliefs. It also encourages them to be responsive to public concerns about religious liberty and engage religious accommodation on a case-by-case basis. It suggests they appoint an officer to review proposed rules with religious accommodation in mind.

5. The Memo states “agencies may not target or single out religious organizations or religious conduct for disadvantageous treatment in enforcement priorities or actions.” Additionally, “agencies considering potential enforcement actions should consider whether such actions are consistent with federal protections for religious liberty.”

This last point may be particularly important to entheogenic congregations. It may help explain why the DEA is not targeting the religious use of ayahuasca. Besides having their hands full with opioids and other dangerous drugs, they may not want to wade into the territory of religious rights unless circumstances force them to.

So, let’s not force them.

Let’s be discreet and use this time to agree on standards of best practices within the entheogenic community to protect the well being of participants and understand the legal landscape. Please read my paper, published here in Chacruna as well: 7 Best Practices for Ayahuasca Legal Harm Reduction.