A First Amendment Right to Burning Bush: Empowering the Free Exercise Clause to Protect Religious use of Psychedelic Drugs

Abstract

If the right to freely exercise one’s religion only exists within the confines of all other enacted law, then it is hardly a right at all. This article argues that strict scrutiny should be the test for adjudicating free exercise claims, which would then allow for the religious use of psychedelic drugs. First, this article explores developments in Free Exercise Clause jurisprudence during the twentieth century by analyzing how the Supreme Court gradually weakened the free exercise right, particularly in cases relating to Native American religions, and culminating in Employment Division v. Smith. This article lays out reasons for overturning Smith and returning to the pre-Smith strict scrutiny test for free exercise claims. Finally, this article contends that, under strict scrutiny, no court could reasonably find a compelling government interest to justify a prohibition of religious psychedelic drug use. This argument is substantiated with support from modern RFRA cases, as well as prevailing research regarding the positive impact psychedelics have on mental health, which would undermine a state’s purported compelling interest in forbidding its use.