Prohibition by Another Name: A Summary Critique of the DEA’s Guidance for Submitting

Petitions for Religious Exemptions from the Controlled Substances Act

by Charles Carreon1

Ten Years of Stasis Under the DEA’s “Guidance”

In 2009, the DEA published its "Guidance Regarding Petitions for Religious Exemption from the
Controlled Substances Act Pursuant to the Religious Freedom Restoration Act" (the "Guidance"). In ten
years, few Petitions For Exemption (“PREs”) have been filed, and none have been granted, putting legal
status out of reach for virtually all Psychedelic Churches unwilling or unable to file a District Court lawsuit
under the Religious Freedom Restoration Act (“RFRA”). The net effect of the Guidance may fairly be said
to be prohibition by another name. The purpose of this article is to look at the constitutional defects of the
Guidance, and devise a way beyond the present gridlocked situation.

What the Guidance Requires

Paragraph 2 of the Guidance, entitled Contents of Petition, requires the following disclosures, that
pursuant to paragraph 4 are mandatory:
"(1) the nature of the religion (e.g., its history, belief system, structure,
practice, membership policies, rituals, holidays, organization,
leadership, etc.); (2) each specific religious practice that involves
the manufacture, distribution, dispensing, importation, exportation,
use or possession of a controlled substance; (3) the specific
controlled substance that the party wishes to use; and (4) the
amounts, conditions, and locations of its anticipated manufacture,
distribution, dispensing, importation, exportation, use or possession."
(Emphasis added.)
Paragraph 3 requires a PRE to be submitted under penalty of perjury, and paragraph 5 gives the
DEA an unlimited right to ask for more information, that must be provided within 60 days, or the PRE will
be deemed “withdrawn.” Under paragraph 7, a Psychedelic Church that submits a PRE must promise
that its members will refrain from consuming controlled substances until the DEA issues a certificate of
exemption.

11
 Charles Carreon has been a member of the California Bar for thirty years, and retired from the Oregon bar in 
2012.  A graduate of UCLA Law School (1986), he served the public as an Oregon prosecutor and Federal Public 
Defender.  His private practice has focused on civil trial and appellate litigation, transactional work for media 
companies, and intellectual property registration, negotiation, and litigation. He currently serves as General 
Counsel for an Arizona church that administers a pharmacologically active sacrament, and maintains a private 
practice consulting on issues of Constitutional law, media law, and intellectual property.  He may be contacted at 
chas@charlescarreon.com or 628‐227‐4059. 
A List of Legal Risks Arising from Submitting a PRE
This list enumerates constitutional defects in the Guidance based on legal analysis with citations
to precedent to be found in two articles by the author: The DEA's Guidance Regarding Petitions for
Religious Exemption from the Controlled Substances Act under RFRA: Door to Religious Freedom or
Fifth Amendment Trap for the Unwary?2 and Be Careful What You Wish For – The Peril of Regulated
Status for Psychedelic Churches.3 This list is provided with the usual caveat that laypersons should not
rely on the list as “legal advice,” and should obtain formal advice from legal counsel before issuing
statements or taking official actions.
1. Self-Incrimination: The statements in the PRE itself could provide probable cause to
arrest the individual who signed the PRE, and to issue search warrants of the places where sacramental
controlled substances are kept or distributed. The PRE would provide a roadmap for prosecution of
church members for conspiracy to distribute controlled substances. At trial for violating the Controlled
Substances Act (“CSA”), the PRE could be admitted to impeach contrary testimony denying guilt by the
person who signed the PRE or church members charged as co-conspirators.
2. Possible Prosecution or Investigative Scrutiny from Law Enforcement: The
Supreme Court invalidated the “Marijuana Tax Act” and the “Wagering Act” because they required
registrants to disclose incriminating information to the IRS that was to be shared with law enforcement.
Even though the Guidance doesn’t say that all of the incriminating information in the PRE will be passed
to law enforcement, it doesn’t have to -- the DEA is law enforcement. Thus, the Guidance violates the
Fifth Amendment rights of church members.
3. Suspension of the Right to Partake of the Sacrament: Paragraph 7 commits all
church members to voluntarily forswear taking any sacrament that is a controlled substance. This
restriction impinges upon the right of free exercise as much as does the CSA, and forces a church to
trade off the free exercise rights of its members for the hope of attaining legal status. Ironically, by not
using its sacramental controlled substance for an extended period of time, an applicant church undercuts
its contention that psychedelic communion is essential to its religious path, and that laws forbidding use of
the sacrament substantially burden its right to free exercise of religion.
4. Risk of Perjury: Someone must sign the PRE under penalty of perjury, because an
organization cannot take the oath. Making a false statement in a PRE would violate 18 USC § 1001, that
establishes a five-year maximum sentence for making a false statement in a federal proceeding. Perjury
charges could be premised on material omissions, or if some members of the church failed to keep the
promise required by paragraph 7 to abstain from taking the psychedelic sacrament.

https://www.researchgate.net/publication/331986523_The_DEA's_Guidance_Regarding_Petitions_for_Religious_Exemption_fr
om_the_Controlled_Substances_Act_under_RFRA_Door_to_Religious_Freedom_or_Fifth_Amendment_Trap_for_the_Unwary
3
https://www.researchgate.net/publication/331987375_Be_Careful_What_You_Wish_For_‐
_The_Peril_of_Regulated_Status_for_Psychedelic_Churches 
 5. Unlimited Scope of Requests for Further Information: Paragraph 5 gives the DEA
carte blanche to request any additional information, at any time after submission of the PRE, from an
applicant church. Several precedents hold that a government agency can refuse to grant a license to an
applicant that refuses to provide requested information, a result that is not barred by the Fifth
Amendment. Thus, paragraph 5 provides a foolproof pretext for the DEA to refuse to grant a PRE to a
Psychedelic Church simply by requesting additional incriminating information.
6. No Protection from Prosecution Under State Law Despite Grant of PRE: Paragraph
9 states that “compliance with these guidelines shall not be construed as compliance with other Federal
or State laws unless expressly provided in such other laws.” Every state in the union has adopted the
Uniform Controlled Substances Act (“UCSA”), that mirrors the CSA in virtually all respects; thus if a drug
is in Schedule I in the CSA, it will be in Schedule I in every state. Although the goal of the UCSA is
uniformity between federal and state law, this apparently applies only to legal proscriptions, and not to
exemptions. Thus, without changes in federal and state law to recognize a uniform state exemption
based on the DEA’s grant of a PRE, all Psychedelic Churches outside of the District of Columbia remain
subject to prosecution by local authorities, even if they obtain a certificate of exemption from the DEA.
7. Indefinite Period for Processing the PRE: Nothing in the Guidance indicates how long
the DEA will take to review a PRE. Ayahuasca Healings submitted a PRE in April 2016, and as of the
date of this publication in February 2019, it has neither been approved or denied.
8. Use of “Invitations” to Submit a PRE as De Facto Investigative Demands: On at
least two occasions, the DEA has sent a Psychedelic Church an “invitation to submit a PRE,” that has
been treated by these churches as a de facto investigative demand (Ayahuasca Healings and Soulquest).
These “invitations” have circulated through the Psychedelic Church community as ominous portents, with
every church’s leadership asking themselves whether they will be the next to receive “an offer they can’t
refuse.”

Cutting Through the Impasse

To move forward and around the obstacle presented by the Guidance, Psychedelic Churches
need to challenge its draconian requirements. To challenge the Guidance effectively, or to respond
appropriately to an “invitation to submit a PRE,” it’s essential to understand a bit about the First
Amendment, that protects churches directly, and the Fifth Amendment, that applies to church members,
and can be asserted on their behalf by their church.

First Amendment Protections for Churches

The First Amendment “free exercise” clause protects the right of Psychedelic Churches to
practice religion using a psychedelic sacrament. Additionally, under the “establishment clause.”
government is barred from favoring or disfavoring any religion, or attempting to regulate religious
conduct. Government regulation breaks down the wall between church and state, leading to
“entanglement” in religious affairs, and is thus proscribed. Both the free exercise and establishment
clauses of the First Amendment provide churches with a unique right to privacy that can justify a church’s
refusal to produce documents in response to a subpoena from a government agency when a church is
not being investigated for criminal conduct. Why? Because (1) requiring a church to respond to a
regulatory agency subpoena would chill religious freedom, thus violating the free exercise clause, and
(2) allowing a regulatory agency to pry into the church’s activities and finances would violate the
establishment clause, because it leads to the regulation of private church affairs.

Fifth Amendment Protection for Church Members

A church can assert the Fifth Amendment rights of its members, when those members are
threatened by a legal scheme that would force the church to incriminate its membership, even though a
church cannot assert the Fifth Amendment on its own behalf, because churches and business entities are
not entitled to claim the privilege against self-incrimination. The seminal case on this right established the
right of the Communist Party to assert the Fifth Amendment rights of the Party’s members to refuse to
disclose the Party membership list in response to a government subpoena.

Taking the Attorney General at His Word

Psychedelic Churches can draw hope from a recent memorandum by former Attorney General
Jeff Sessions, instructing all government agencies on how to properly apply RFRA and the First
Amendment to claims for religious exemptions (the “Sessions Memo”). The Guidance does not comport
with the spirit or letter of the Sessions Memo, that directs all federal agencies to proactively accommodate
the needs of the religious for RFRA exemptions by drafting rules and regulations with the needs of the
religious in mind, and even by appointing officers to listen to the religious community when drafting rules,
to make it easier to get exemptions.4 The Psychedelic Church community could take the Attorney
General at his word, and inform the DEA of its objections to the Guidance, requesting the issuance of
new rules after public comment to give scientific researchers an opportunity to bring the DEA up to date
on the results of ten years of psychedelic research.
The Sessions Memo speaks with the force of law, and if the DEA declined to dialogue with the
Psychedelic Church community, a RFRA lawsuit could be filed in District Court, grounded on the
contention that the Guidance substantially burdens the religious practices of Psychedelic Churches in a
manner more restrictive than necessary to achieve justified regulatory ends. Several attorneys and
Psychedelic Church advisors have prepared a draft letter to present objections to the DEA. Church
leaders and attorneys interested in adding their signatures to the letter are invited to contact the author.

4
Politics and Religious Freedom Restoration Act Make Strange Bedfellows: The Sessions Memo.
ONLINE CITATION TO GO HERE