Stop the DEA from Regulating Visionary Religions

Stop the DEA from Regulating Visionary Religions

September 11, 2019
Petition to
Diversion Control Division, Attn: Liaison and Policy Section Drug Enforcement Administration
Signatures: 1,706Next Goal: 2,500
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Why this petition matters

Your signature remains anonymous in supporting this petition to the DEA.  Now is the time to sign.  Link here to view the full text submitted to the DEA Jan 8, 2020. NAAVC Letter to the DEA

What We Are Asking:  We are the North American Association of Visionary Churches (NAAVC). We are asking the DEA to withdraw its wrongful policy of regulating visionary churches as follows:

"Congress Shall Make No Law"

The First Amendment restrains government from regulating religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Congress has avoided regulating religion at all costs.  In fact, Congress's avoidance of church regulation is part of why churches don't pay taxes or file financial reports like charitable nonprofits, with the Internal Revenue Service.  

The DEA Claims to Regulate Religions That Use Controlled Substances in Sacramental Communion

The DEA nevertheless claims to regulate religions that use sacramental communion substances that contain Scheduled Substances, like Ayahuasca, San Pedro or Huachuma.  The DEA claims to have a procedure these churches can use to get legal approval to import and distribute their sacraments, but the DEA procedure is like a door painted on a wall.  It looks like a door, but it will never open.  In this case, the door that can't be used is a procedure described in the DEA's “Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act Pursuant to the Religious Freedom Restoration Act.” We'll call it “the Guidance.”

No Applications, No Exemptions, No Problem!

Any good bureaucrat can design an application that will deter some applicants, but it takes real talent to craft one that deters nearly all applicants.  The Guidance has achieved that high standard of self-nullification.  The DEA published the Guidance in 2009.  Churches have known about it for ten years, and in all that time only two churches have submitted a "PRE" or "Petition for Religious Exemption" -- and they only did it after the DEA sent them personal invitations.  The DEA's current process for gaining a legal exemption clearly appears designed to deter any applications, and it’s done its job well.

Catch 22

The "deterrence clause" in the Guidance is paragraph 8, that says any church that submits a PRE has to stop consuming any controlled substance.  In other words, the whole church has to stop their religious practice.  You heard right.  Every church that submits a request for exemption has to stop holding religious services using the sacrament until the DEA grants the exemption.

A Process That Goes on Forever and Leads Nowhere

Well, how long will it take for the DEA to grant the exemption?  Try forever.  The two churches that bowed to the DEA's invitation when "invited" to submit a request for exemption are still waiting two years later for any indication of when the DEA will issue a response.  So submitting a PRE is as good as shutting down the church, and that has been the primary reason why in ten years, the DEA has only received two submissions, that it invited.

The DEA's PRE procedure forces all visionary churches to remain in a grey area, where submitting an application for exemption will shut down their church, and not submitting an application keeps them from being able to say, as everyone should be able to say, "My religion is legal!"

Practicing an Oppressed Religion Should Not be A Modern-Day Reality

This is the real point of this Petition.  Everyone has the inherent right to free exercise of religion, and the Supreme Court has stated that includes the right to use an herbal preparation that contains a Scheduled Substance as a religious sacrament.  No one should have to conceal their religious practices from police, from their employers, from their relatives and friends.  Having to conceal your religious practice is not religious freedom.  That's the kind of oppression that takes us back to the age of Christians praying in the catacombs under the streets of Rome, or back to the Puritans settling in Massachusetts, seeking religious freedom.

The DEA Doesn't Want the Job of Regulating Religion, and It's Not Doing It

The DEA has never been directed by Congress to regulate religion, and in publishing the Guidance, the DEA has asserted authority it shouldn't be asserting.  Perhaps worst of all, it is a process that is not being implemented as promised.  Applications aren't even being processed.  There is no evidence that anything happens inside the DEA when a PRE is delivered.

How Did This Happen?

So how did the DEA end up issuing the Guidance?  There is no getting inside the mind of the DEA, but we can look at its actions and infer its motivations.  The DEA had twice been sued by two large, Brazilian churches when it seized the churches' Ayahuasca, and both times they'd lost.  The 2006 Supreme Court ruling in the UDV case was resoundingly in favor of the Brazilian UDV church.  The Daime case, decided in 2009 by the late Judge Owen Panner in Oregon District Court, strenuously rejected the DEA's efforts to rehash arguments the Supreme Court had previously found meritless, and ordered the DEA to pay the Daime $1.15 Million in attorney's fees.

Out of Arguments, The DEA Dusted Off an Old Trick From the Days of Reefer Madness, and Launched the Guidance

Once the UDV and Daime cases were done, the DEA was out of arguments, and it was tired of losing RFRA lawsuits by ayahuasca churches.  So it decided to dust off an old strategy called "bad-faith regulation" and create an unconstitutional exemption process so gnarly no religions would apply.  Congress did something very similar in the Thirties, when it adopted the Federal Marijuana Tax, that was held unconstitutional in the Sixties.  According to the letter of the law, both dealers and buyers had to register their intent to sell or purchase any amount of marijuana.  Of course no one ever paid the tax, and that's one reason it was found to be unconstitutional.  Take note -- that trick stood up for over thirty years until the famous Dr. Timothy Leary found himself looking at a thirty-year sentence for not paying the tax on less than an ounce, and his lawyers revealed the Marijuana Tax Act for the trick that it was.  The DEA's "Guidance" has not been questioned in court yet, and ten years have gone by.  That's long enough for the DEA to get away with it.  Because the Guidance hurts people and their religious lives.

The Guidance Blocks Churches from Seeking Legal Status in Court, and Chills the Free Exercise of Religion

In a country where religious freedom is presumed, the DEA is forcing churches to "stay underground," sentencing those who use sacred plants to the status of second-class believers.

First, the Guidance blocks churches from seeking exemptions in Federal Court because churches mistakenly believe the DEA process is required.  This is wrong.  The Religious Freedom Restoration Act opens the door to the Federal Courthouse for every church that wants to get an exemption.

Second, by imposing the Catch 22 requirement that churches stop practicing their religion when they petition for an exemption, the DEA remains confident that no one will submit to the process.

Third, churches that haven't submitted a request for exemption to the DEA feel like they are "underground," i.e., illegal.  In fact, submitting a request for exemption doesn't do anything to legalize a church's status -- it just provides the DEA with a confession that it can use whenever it wants.

Fourth, the DEA scares people by sending out "invitations" to submit a petition for exemption, and that has "a chilling effect" on all churches.  Very few churches know a lawyer who can guide them when a letter like this arrives out of the blue.  It is a frightening situation, and the threat of receiving such a letter in itself is enough to keep many churches operating "under the radar," like the Christians in Roman times -- an unacceptable situation in 21st Century America.

Withdrawing the Guidance Will Not Stop Any Work That the DEA Is Engaged In

Congress didn't authorize the DEA to regulate religion; DEA agents are not trained to regulate religion; and the DEA does not appear to be processing requests for exemption from the Controlled Substances Act.  Thus, it will not present any operational problems for the Agency to end the process altogether.  Literally no one will lose their job, because this is a job nobody is doing.

The Guidance Violates the Administrative Procedure Act

Under the Administrative Procedure Act, the DEA should have put the Guidance through a public comment procedure, like when it schedules a drug.  The DEA’s invention of a whole new way to regulate religion is clearly more important than scheduling a chemical substance.  As such, the matter should have been a subject of public comment.

The Guidance Violates the Fifth and First Amendments

The Guidance violates the Fifth Amendment right to be free of compelled self-incrimination, demanding a confession of acts that the DEA considers criminal in order to apply for the exemption.  By demanding waivers of Fifth-Amendment rights in order to obtain First-Amendment free exercise rights, the Guidance violates both amendments.  Finally, the Guidance violates the First Amendment by getting the government "entangled" in religion through regulation, which violates the Establishment Clause.

What We Are Asking: The DEA is Requested to Withdraw the Guidance and Declare that it Will No Longer Receive Petitions for Exemption

For all of the reasons set forth above, the Petitioners request that the DEA withdraw the Guidance, and notify the public that the DEA has ceased soliciting church applications for exemption.

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Signatures: 1,706Next Goal: 2,500
Support now