Do I Really Need a Church to Be Protected?

One of the most frequent — and important — questions I get from entheogen-based

religious practitioners from across the U.S. is some version of:

“Can I legally serve a church community without being a member or part of its leadership?”

“Can a church adopt me under their umbrella of protection so I’m covered while I serve?”

“Can I just affiliate with the Native American Church or subscribe to an Indigenous theology

and be covered to serve entheogenic sacraments?”

The instincts behind these questions are entirely valid — because the risk is very real. Getting caught with entheogenic sacraments, even in relatively small amounts, can carry mandatory minimum sentences of 20 years or more, at least in the federal system. When the consequences are that severe, people understandably look for the biggest, safest-looking umbrella of perceived protection they can find.

But here’s the truth: while churches can help bolster claims to free exercise protection, they are not legally required. And more importantly, hiding behind a church structure with which you are not authentically aligned may do more harm than good.

Individual Liberty, Not Institutional Membership

Under both the First Amendment and the Religious Freedom Restoration Act (RFRA), religious free exercise is an individual liberty — not something that depends on institutional membership.

[1] Courts do not (and have never) require a formal church structure or entity, tax-exempt status, or congregation to be worthy of free protection under federal law. What they do require is that the belief and resulting practice be sincerely held and the practice in question religiously motivated.

While affiliation with a church can help strengthen the evidentiary showing of religious sincerity, that only holds when the affiliation is real, lived, and doctrinally consistent with the individual’s beliefs and practices. Otherwise, a casual link to a church as a means of garnering free exercise protections can negate one’s claims of sincerity.

In fact, courts have shown increased skepticism toward nominal affiliations, especially when the religious organization is culturally distinct or historically rooted in an identity not shared by the practitioner. For example, a non-Native American claiming protection through the Native American Church may raise serious concerns — not only legal ones, but ethical and cultural ones as well.

In 1989, The U.S. Supreme Court made clear in Frazee v. Illinois Department of Employment

Security that affiliation to a religious organization is not necessary for free exercise protections.

More specifically, the court stated:

“Undoubtedly, membership in an organized religious denomination, especially one with a

specific tenet forbidding members to work on Sunday, would simplify the problem of identifying sincerely held religious beliefs, but we reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization.” [2]

That sentence is critical. It tells us that while religious institutions may simplify evidentiary

analysis, they are not required for legal protection. What matters is the sincerity and religious

nature of individual belief.

This principle is echoed throughout case law. In Stevens v. Berger, the Eastern District of New York wisely observed:

“Neither the trappings of robes, nor temples of stone, nor a fixed liturgy, nor an extensive

literature or history is required to meet the test of beliefs cognizable under the Constitution as religious. So far as our law is concerned, one person's religious beliefs held for one day are presumptively entitled to the same protection as the beliefs of millions which have been shared for thousands of years.

Nevertheless, it is as a matter of evidence and probative force far easier to satisfy triers that

beliefs are religious if they are widely-held and clothed with substantial historical antecedents and traditional concepts of a deity than it is where such factors are absent. Judges recognize intellectually the existence of new religious harmonies, but they respond more readily and feelingly to the tones the founding fathers recognized as spiritual.” [3]

And in EEOC v. United Health Programs of America, the same court offered a clear roadmap for evaluating modern, non-traditional religious claims. There court states that:

• Religious liberty extends to beliefs not affiliated with any formal religious group;

• Courts evaluate both the sincerity of the belief and whether it reflects the believer’s own “ultimate concerns”;

• A lack of formal structure or clergy is not a disqualifier — though it may invite a more

• fact-intensive inquiry, not rejection.

Ultimately, the free exercise clause of the First Amendment was intended to preserve a

marketplace of religious thought and ideas, just as the free speech clause is intended to do. As such, the Berger court states, “[d]elicacy in probing and sensitivity to permissible diversity is required, lest established creeds and dogmas be given an advantage over new and changing modes of religious belief.” [5]

The takeaway? A solo facilitator’s path to protection is not blocked — but it does require

forethought. Legal protection is not automatic, it must be well-prepared, well-documented, and grounded in religious sincerity. With the right structure, a facilitator without a church can

absolutely enshrine the same constitutional and statutory protections as an institution.

If you are an individual or solo entheogenic facilitator or guide and want to know what you can do to enshrine your free exercise protections without going through the hassle of forming an entire church entity, then visit our website at www.entheoesq.com and schedule a consultation or sign up for our email list to be the first to know when we launch our NEW Entheogenic Facilitator Legal Protection Course and Certification Program-launch only weeks away. For the facilitator course, early bird discounts will be available to those on EntheoEsq’s email list!!!

Don’t miss your chance to save money on this CRUCIAL course for entheogenic guides and

facilitators!!!

ENDNOTES

[1] See 42 U.S.C. §§ 2000bb et seq.

[2] 489 U.S. 829, 834 (1989)

[3] 428 F.Supp. 896, 900-01 (E.D.N.Y. 1977) (emphasis added)

[4] See 213 F.Supp.3d 377 (E.D.N.Y. 2016)

[5] See EN [3], supra.