On May 26, 2022, the Oregon Health Authority (OHA) announced it received a legal memorandum from the Oregon Department of Justice (ODOJ). The legal memorandum (memo) addresses the Oregon Psilocybin Services Program and discussed the Entheogenic Framework.
The Entheogenic Framework is a document created by Jon Dennis, an attorney in Oregon. It is a set of measures to reconcile Measure 109, a secular law, with the spiritual and religious traditions of psilocybin. An “entheogenic practitioner” is a person who works with substances in a spiritual or sacred context. The Entheogenic Framework carves out privileges and duties for entheogenic practitioners in the psilocybin industry. The Licensing Subcommittee recommended this document to the Oregon Psilocybin Advisory Board (OPAB), which we covered in a previous post.
At its meeting on May 25, OPAB reviewed the document voted against it. The document was controversial, and board members continue to argue over its applicability. Further, members of the public have voiced their support for the document. Yet, according to the ODOJ the document as written is not legally viable.
What the Memo Says on the Entheogenic Framework
The ODOJ’s memo was a response to several legal questions raised by OHA. It begins by giving short answers to these legal questions, saying OHA cannot exempt entheogenic practitioners from licensure, rules, and OHA’s legal duty to regulate all licensees. We note that the Entheogenic Framework does not mention “exemptions,” nor does it call for entheogenic practitioners to be unregulated. The memo, however, argues the rules in the Entheogenic Framework are less restrictive.
Duties and Privileges
The memo briefly mentions the duties that would be imposed on entheogenic practitioners, stating they would be required to participate in, or donate to, a reciprocal exchange program and report this activity to OHA annually. Further, the Entheogenic Framework limits possible clients. In other words, clients seeking services from entheogenic practitioners would have to be formally affiliated with an entheogenic service center and sign an attestation that they are exploring their religion or spirituality. For a comprehensive review of the duties imposed, read the Entheogenic Framework.
The memo then moves on to the “privileges” in the document, explaining how entheogenic practitioners would not be restricted in dosage amounts or number of administration sessions. Further, they could store, handle and discard psilocybin products based on their beliefs, so long as they are safe, and would not be restricted to one species of psilocybin nor restricted in growing techniques. They could offer fresh mushrooms, would not be required to test products upon OHA request, and could allow clients to lead ceremonies.
Each privilege listed in the memo has a caveat explaining OHA is likely to promulgate rules directly contrary to these privileges.
The Main Conflict: Less Restrictive Rules
The crux of the conflict is Question #3 in the memo:
Can OHA adopt rules with different or less restrictive standards for entheogenic practitioner licensees?
While the question raises two ideas, different rules for entheogenic practitioners and less restrictive rules for entheogenic practitioners, the memo addresses them synonymously.
The memo states that the privileges listed in the Entheogenic Framework are clearly intended to benefit religious practitioners, even though it avoids using the term “religious” to avoid legal scrutiny. The memo states the privileges would provide a more relaxed regulation to religious practitioners, which would not be available to someone with secular beliefs. It further states any clients seeking services from entheogenic practitioners are also limited to those exploring religion or spirituality. The memo explains that benefiting religious practitioners and limiting clients violates OHA’s anti-discrimination rules.
Turning to the Oregon Constitution, the memo states the framework runs afoul of Constitutional protections because “it is impermissible for a statute to draw a distinction between churches a nonchurch religious organizations.” See Newport Church of the Nazarene v. Hensley, 335 Or 1, 10, 56 P3d 386 (2002). This violation, the memo states, arises because the Entheogenic Framework is reserved for religious practitioners and would not extend to practitioners using psilocybin for general wellness or mental health treatment. The memo further states the Entheogenic Framework likely violates the Establishment Clause because it does not have a secular purpose. See Eugene Sand & Gravel v. City of Eugene, 276 Or 1007 (1976).
Finally, the memo addresses the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The memo states these federal acts would not compel OHA to treat entheogenic organizations differently than other organizations.
Outlook for the Entheogenic Framework
The memo essentially states the framework is not legally viable for the OHA to incorporate, due primarily to OHA’s anti-discrimination rules as well as Oregon’s Constitution. However, this opinion is based on the Entheogenic Framework as written.
The memo’s disagreement with the current Entheogenic Framework stems from the privileges in the Entheogenic Framework and concludes these are less restrictive rules, which benefit religious practitioners and discriminate against secular practitioners. The duties imposed by the Entheogenic Framework are apparently irrelevant to this analysis.
Further, there is a discrepancy of language between the memo and the Entheogenic Framework. The memo’s apparent basis for its opinion is the Entheogenic Framework intends to benefit “religious” practitioners. Yet, the Entheogenic Framework notedly uses the term “entheogenic” to include “non-religious spiritual communities.” Throughout the memo, “religious” and “spiritual” were used synonymously, drawing no attention to “non-religious spiritual organizations,” likely because it was only mentioned in the framework in a footnote.
A new draft of the Entheogenic Framework could highlight, or expand on, the duties imposed on entheogenic practitioners. It could also propose different rules for entheogenic practitioners, rewriting rules that appear less restrictive. While this would cure the defects discussed in the memo, it is unclear whether these changes would impact the opinion of ODOJ.
Ramifications for the Psilocybin Industry
Currently, there are no OHA rules addressing entheogenic practitioners in the psilocybin industry, and it is unclear whether the ODOJ will change its opinion upon a new draft of the Entheogenic Framework. Yet, the OHA could prompt the ODOJ to differentiate between different and less restrictive rules. OHA could also reach out to more legal experts and academics for ways to include entheogenic practitioners in the psilocybin industry. It should also assess the public’s stance on the matter and evaluate the support for entheogenic practitioners in Oregon.