Church where cannabis and magic mushrooms are 'sacrament' claims discrimination in permit fight

A fully budded marijuana plant ready for trimming is seen at a marijuana store. Picture taken on December 31, 2013. REUTERS/Rick Wilking

Aug 24 (Reuters) - There are no steeples or stained glass adorning the Zide Door Church of Entheogenic Plants in Oakland, California. Instead, it’s housed in an anonymous beige building across the street from an auto body repair shop, lower windows protected by security bars.

Notre Dame it is not.

But the church, which views cannabis and psilocybin mushrooms as "sacrament," has launched a novel legal fight against the City of Oakland that intertwines local zoning law grievances with constitutional allegations of religious discrimination.

Think Grateful Dead meets Harvard Law Review.

As a growing number of localities including Oakland decriminalize magic mushrooms and other so-called entheogenic plants, lawyers tell me that conflicts over the parameters of use may become increasingly common.

“Cases like this will continue to arise,” said Matt Zorn, a partner at Houston-based YetterColeman whose practice includes controlled substances litigation. The suit illustrates “the difficulty in determining what is a religion,” he continued, as well as foreshadowing problems with “how to regulate religions that want to use plants as part of their practice.”

Zide Door founder Dave Hodges did not respond to my questions about the case, and the church’s lawyer, Editte Lerman of Emerald Law, did not respond to requests for comment.

Oakland City Attorney Barbara Parker in a statement said her office “has not yet been served with this lawsuit, but will certainly review it once we are served.”

On its website, Zide Door lays out what it calls “the foundation of our church,” which is part of the nondenominational, interfaith Church of Ambrosia.

Believers theorize that long ago, monkeys ate psilocybin mushrooms, triggering spiritual visions that compelled the primates to try to explain what they saw to other monkeys.

“Magic Mushrooms were the reason for the evolution of both abstract human communication and the concept of religion itself,” Zide Door says. “Monkeys trying to explain god to each other.”

Dude.

The church, which says it has held "several hundred religious services" since it opened its doors in February 2019, embraces the use of entheogenic plants like cannabis and mushrooms. Doing so gives members “a direct connection with a higher consciousness, their own eternal souls, spiritual beings and God,” according to its complaint filed earlier this month in U.S. District Court for the Northern District of California.

Cynics might roll their eyes, but the sentiment is not out of sync with a resolution passed by the Oakland City Council in 2019 stating that entheogenic plants “can catalyze profound experiences of personal and spiritual growth.”

Investigating or arresting adults for using such substances was to be “amongst the lowest law enforcement priority for the City of Oakland,” local leaders decreed.

Nonetheless, police raided the church on August 13, 2020, after receiving an anonymous complaint that it was operating as an unauthorized cannabis dispensary – a claim that the church denies.

Recreational use of cannabis is legal in California but retail dispensaries require a permit. Magic mushrooms are not legal at the state or federal level because they contain the Schedule I drugs psilocin and psilocybin.

Per Zide Door’s membership agreement, the church's cannabis is “collectively owned by the members.” Any cash payments are not a retail sale, it says, but are merely meant to reimburse the church “for the time, travel, laboratory testing, maintenance and upkeep of the sacrament provided within.”

So, like passing the collection plate before taking communion? For that matter, churches don't need a liquor license to serve wine. Should an equivalent standard apply here?

A video that Hodges posted to his Instagram account shows a swarm of officers with guns drawn entering his church, filing past electric-blue pews. According to Hodges, they seized $200,000 in cannabis and psilocybin mushroom products, which have not been returned. The police also allegedly took $4,500 in cash.

The complaint alleges that search was unlawful and violated the plaintiffs’ Fourth Amendment rights. But the primary focus of the suit is on something far less dramatic - Oakland’s land use regulations.

The church faces a fundamental problem: There are no locations zoned for the religious use of entheogenic plants. And permits are required for all establishments in the city, leaving Zide Door in limbo.

The plaintiffs argue that Oakland’s land use laws impose a “substantial burden” on their exercise of religion in violation of the Religious Land Use and Institutionalized Persons Act, which protects churches and other religious entities from discrimination in zoning.

Still, there’s a threshold question for the court to consider: Is this in fact a bona fide religion? Because Zide Door isn’t the first to claim a religious exemption for using or distributing otherwise illegal substances.

For example, the U.S. Supreme Court in 2006 ruled that a congregation in New Mexico could use hallucinogenic tea, pointing to "the sect's sincere religious practice."

But 10 years later, the 9th U.S. Circuit Court of Appeals in 2016 was not swayed by two ministers of the Hawaii Cannabis Ministry, who said they were exercising their sincerely held religious beliefs by using and distributing large quantities of cannabis.

In evaluating such claims, courts will “often look to objective indicia of sustained involvement in the teachings and practices of the claimed religious tradition,” Kathryn Tucker, who co-chairs the psychedelic practice at Emerge Law Group, told me via email.

But if teachings and traditions are scant, she continued, it "is easier for the court to say the ‘church’ is seeking to cloak the activity in a fig leaf of religion and reject the claim."

Greg Lake, a partner at Benouis Law Office and entheogenic church consultant, said he thinks Hodges has a strong case. “There’s a lot of good evidence to point to that this is a religion,” he said, noting courts have used a 12-factor analysis to make the call.

Lake said factors to consider include: Does the religion have a moral code? Does it address fundamental questions about life and death? Does it have accoutrements like ceremonies and rituals?

Zide Door last year did apply for a permit from the City of Oakland. The application remains pending, though the church said it views it as a “futile exercise."

That could result in an anticlimactic procedural ruling, notes Pat Donahue, founder of Spokane-based Terrapin Legal, which represents clients in psychedelic-related matters. The court might simply say that the church’s administrative remedies have not yet been exhausted.

A decision on the merits though “could open a Pandora’s box” of new legal issues, he said.

“We’re at a crossroads right now,” added litigator Terry Gross. The name partner at San Francisco-based Gross & Belsky and founding board member of the Psychedelic Bar Association predicts psychedelics will ultimately follow “a very similar path as with cannabis” to legalization.

But in the meantime, expect a long strange trip.

Reporting by Jenna Greene

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Jenna Greene writes about legal business and culture, taking a broad look at trends in the profession, faces behind the cases, and quirky courtroom dramas. A longtime chronicler of the legal industry and high-profile litigation, she lives in Northern California. Reach Greene at jenna.greene@thomsonreuters.com