The Mushroom Rabbi: A RFRA Riff

And why where you worship matters

Shalom y’all. Over the past week, I’ve gotten questions and comments from colleagues and friends about the Mushroom Rabbi—the subject of this article on the AP Wire. So I guess it’s time for some drug law Talmud.

The Mushroom Rabbi and His Sacred Tribe

For those who don’t know, the Mushroom Rabbi—née Benjamin Gorelick—runs an outfit in Denver called The Sacred Tribe. According to the recently published Denver Post article, Gorelick founded the group in 2018, which since has grown to more than 270 members. About once a month, Gorelick convenes a weekend-long minyan for people to explore “the relationship to self, community, and God” using psilocybin mushrooms. His approach doesn’t look like traditional Judaism, Gorelick explains, but falls in line with Kabbalah, or Jewish mysticism.

The question that pervades the article—indeed, it is in the title of the original Denver Post article: is any of this legal? The article says Gorelick is “push[ing] the boundaries of what’s legal,” which implies that some reasonable case could be made that what Gorelick is doing is within the boundaries of what’s legal. There is not.

Gorelick says he never sold or distributed mushrooms beyond the scope of The Sacred Tribe’s retreats and that he has “really, really rigid tracking systems for everything from spore to extract.” Gorelick doesn’t have a government exemption in tow, but he believes his group is protected by a religious exemption—an “inherent religious exemption”—and therefore is not worried about legal consequences. “The Sacred Tribe stands by our religious exemption and we believe in our religious exemption,” Gorelick said.

Believe as he may, religious exemptions to drug laws are not articles of faith. They are legal constructs that follow certain rules. Many cases may present close calls, but for reasons I will explain, this is not. Any suggestion that this is legal—for example, describing it as a “[m]urky legal landscape” as the article does—is irresponsible.

Several items in the article raise red flags relating to a federal Religious Freedom for Restoration Act (RFRA) exemption. Gorelick indicates that he is preparing to do a study in partnership with a Canadian company that aims to collect data about how psychedelic mushrooms affect the human body and brain, leveraging fungi grown by The Sacred Tribe. He’s got a chemist on staff working on mushroom extraction. The article explains that using a “proprietary method,” Gorelick’s team extracts and isolates psilocybin and 14 other alkaloids to administer to members based on their intentions for a journey — whether it be to make an internal connection, open their heart space or tackle challenges head-on. All this sounds more like research and therapy with tailor made compounds and less like religious exercise.

Research is good—laudable even—but RFRA doesn’t protect research. RFRA only protects religious exercise. Therefore, to the extent Gorelick does anything else with psilocybin mushrooms, none of that conduct is protected. And that non-protected activity throws the baby out with the bathwater. Certainly, DEA or Colorado would be justified in shutting down Gorelick’s operation on that basis alone.

Even if one believes Gorelick’s operation should be condemned, there are things to commend about the operation. For example, the article explains that sober members are on hand to facilitate should someone experience uncomfortable or negative emotions. I am also neither questioning nor judging the sincerity of anyone’s religious beliefs nor calling into question the intersection of Judaism and psychedelics. One could probably argue that using psychedelic use is not just compatible with Judeo Christian religions, but in the right light, could be a protected “exercise of religion, whether or not compelled by, or central to” Judeo Christian religions and thus entitled to RFRA protection. That debate is for another day. I also offer no moral judgment as to whether Gorelick should or shouldn’t be engaging in this activity. For the purposes of this discussion, I will assume that Gorelick, the Sacred Tribe, and the participants are all engaged in a sincere religious belief that could plausibly qualify for RFRA protection.

Here, I’m commenting on the legal issues—especially since Gorelick and the article suggest that this conduct could be legal. And I want to make this very clear: it is not.

The RFRA discussion from Griffen Thorne in the article is on point—and I’ve got little to add to that. Even better, the RFRA guide put out by Chacruna and Allison Hoots. Go through that and a number of obvious issues with Gorelick’s operation stick out.

But here’s the thing: RFRA is almost entirely beside the point in this case. Gorelick wasn’t arrested for violating federal law, to which RFRA provides a defense. He was arrested for violating Colorado state law, to which RFRA provides no defense. Colorado doesn’t have a religious freedom law.

A Short RFRA Primer

The Mushroom Rabbi’s rub is that neither RFRA nor the First Amendment provide a religious exemption to state drug laws. In Smith, the Supreme Court held that First Amendment free exercise claims cannot invalidate laws of general applicability neutral toward religion. Thus, Oregon could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the peyote use had been part of a religious ritual.

Before Smith, the First Amendment inquiry would have followed a Sherbert/Yoder strict scrutiny/compelling interest framework. Oregon could enforce drug control laws against religious use of peyote only if it had a compelling interest in doing so and enforcement was the least restrictive means of furthering that interest. Smith upended that framework with laws of general applicability. And because nearly all drug laws are laws of general applicability, Smith effectively denies any religious exemption for use of entheogenic substances under the First Amendment.

Three years later, through statute, Congress attempted to restore the compelling interest framework that Smith gutted. Enacted in 1993, RFRA restored the Sherbert/Yoder test that preceded Smith. RFRA prohibits the federal government and the states from “substantially burden[ing] a person’s exercise of religion” unless “application of the burden…is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that…interest.” But just a few years later, in City of Boerne v. Flores, the Supreme Court held that Congress had no power to impose that standard on the states—or at least it could not do so through its Fourteenth Amendment enforcement powers.

In short, Boerne removes RFRA protections against state law and reverts the legal landscape right back to post-Smith. So after Smith and Boerne, RFRA provides a religious exercise shield to federal law, including the Controlled Substances Act. Such was the case in Gonzales v. O Centro Espírita Beneficente União do Vegetal where the UDV church successfully won the right to consume ayahuasca in religious ceremonies despite prohibitions in the Controlled Substances Act. But RFRA provides no protection against state criminal laws.

Location, Location, Location

Return to the Mushroom Rabbi’s predicament. Even assuming he and the Sacred Tribe had a colorable claim for an exemption under federal law, under Smith and Boerne, he has no First Amendment or RFRA defense to Colorado state law. And that being the case, the Mushroom Rabbi has no defense at all.

The Mushroom Rabbi was charged with violating Colorado drug laws. Many states have enacted religious freedom laws. Similarly, many state court systems have judicial-like RFRA productions. To my knowledge—and I am not a Colorado lawyer—Colorado has neither. Many bills and constitutional amendments have been introduced, but none has ever passed.

The Mushroom Rabbi’s predicament illustrates an important legal point: location matters. Want to start a church using entheogenic plants in religious practice? Not all places are created equal. Believe it or not, setting up shop in a traditionally conservative southern state with tighter drug laws might be a better option than progressive decrim states like California or Colorado.

At first blush, this might seem counterintuitive. But it makes sense. Red states value religious freedom so they have stronger religious freedom laws. In recent years, in response to issues like reproductive rights and increased legal protections for the LGBT community, these states have passed even stronger religious freedom protections. Turns out, those wanting to protect sacramental use of entheogenic substances share common ground with those opposed to contraception mandates. That baker in Masterpiece Cakeshop may be your closest friend in Court—at least on this issue.¹

The issue of geographical location also takes on similar importance at the federal level with RFRA, albeit in a less obvious way. RFRA is a federal statute. No matter where you are, the federal government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” Similarly, the term “exercise of religion” always means “religious exercise,” which in turn always means “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

But due to the organization of the federal court system, how courts apply and interpret RFRA differs by location. Certain circuits or regions of federal courts interpret or apply RFRA in a manner different from how it is applied in other circuits. When at least one circuit diverges from another on a specific legal issue, a circuit split forms. When multiple courts of appeals disagree with one another, a deep circuit split forms. And with RFRA, there is a deep circuit split on the issue what constitutes a “substantial burden” to the exercise of religion.

This may seem like something minor. But it’s not. Some courts take a narrow view and hold that an adherent can only show a substantial burden when that person is forced choice between what religion and government command. Others take a broader, more liberal view of what can substantially burden a religion. The split is so significant, that as this cert petition authored by Supreme Court bar maven Paul Clement explains, it can be outcome-determinative in many close cases. Thus, the legal advice one would give to a California (Ninth Circuit) entheogenic church might be quite different from a church in Texas (Fifth Circuit). Not surprisingly, the Fifth Circuit (Texas, Louisiana, Mississippi) is more RFRA friendly—and provides greater security—than the Ninth (Washington, Montana, Oregon, Idaho, California, Arizona, Hawaii, Nevada).

I expect that the Supreme Court will resolve the split sometime soon in some case that has absolutely nothing to do with entheogenic plants or psychedelics. For example, whether forcing a Marine to remove slips of paper containing Biblical quotation is religious exercise. But how this split is resolved could dramatically increase the trajectory and viability of the religious use of psychedelics under RFRA.