Free Exercise Challenges to Entheogen Prohibitions: Precedents, Principles, and Issues

This paper examines the conditions for the possibility of future challenges to prohibitions against the cultivation, distribution, and use of entheogens—substances which reliably induce religious experiences in their users—based on the Free Exercise Clause of the First Amendment. Smith no longer applies to federal prohibitions against entheogens, because of Religious Freedom Restoration Act (RFRA). Under the current Gonzalez framework, the Court is given the difficult task of evaluating the cost of the claimant’s exemption against the state’s interest in the general ban; including how the exemption would impact enforcement of the general ban. This is essentially predictive systems-theory and policymaking, something today’s Supreme Court majority would abhor in theory, but is the direction their Free Exercise jurisprudence is heading in general. What “The Pandemic Cases” (e.g., Newsom) illustrate is a Court impulse to impose a clear-and-quick objective standard upon all the subjective uncertainty and chaos surrounding the current Free Exercise analysis. However, this “most favored nation” approach also involves risk-reward calculations, just without the wiggle-room on the conclusion-front once the calculation has been made. Under this doctrine or classical strict scrutiny, the Court will eventually be forced to address certain tensions and open issues essential to clarifying the Free Exercise Clause’s protections regarding the use of entheogens, and more generally.