On February 8th, 2022, Rabbi Ben Gorelick calmly walked into the Denver Police Department and surrendered himself. Following a routine fire inspection the previous month, local authorities found scores of psilocybin (aka magic mushroom) strains growing in a commercial space rented by the Rabbi. “Officers discovered grow tents inside, scales, and multiple small white freezers with suspected mushroom bags sealed and stacked, filling them to the top,” Gorelick’s arrest affidavit stated.

Armed just with this information – and perhaps the fact that he rocked a multicolored mohawk – one might consider Gorelick to be a psychedelic Walter White. Yet, he’s the literal and spiritual antithesis of Breaking Bad’s odiously entertaining crystal meth dealer. Gorelick’s mushrooms were cultivated exclusively as a sacrament by and for his small Kabbalistic Jewish community, The Sacred Tribe. Gorelick also lived in Denver, CO, where psilocybin had been effectively decriminalized since 2019. Which means that while the drug remained technically illegal, adult use and possession were given the lowest law enforcement priority in Denver. Nevertheless, Gorelick found himself facing an eight-year prison sentence.

Across the United States, an unwieldy web of local psychedelic law reform – comprising decriminalization or regulation measures – is taking shape. It’s gained such momentum that the American Medical Association declared a majority of U.S. states will have legalized these substances by 2037. This paints a bright picture for future wellness and consciousness seekers. However, in 2023? The situation is confusing at best.^(1, 2)

With this in mind, let’s untangle the web and find out why this supposedly “shroom-friendly”city turned on our psychedelically-inclined Rabbi.

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Federal Drug Law vs. State Law vs. Pharma

First things first, we need to understand that there are multiple strands of psychedelic law. A recent paper by Mason Marks, a Senior Fellow at Harvard Law School, suggested there are five but, for simplicity’s sake, we’re going to boil it to three: federal law, state law, and the pharmaceutical path.⁽³⁾

All of these different paths have their own unique challenges. For example, we can look to the wide array of states that have legalized cannabis, but cannot offer banking or legal protection to legitimate businesses due to the continued federal prohibition of America’s most commonly used psychoactive drug.⁽⁴⁾ 

Then we have the state of Oregon, which ostensibly legalized psilocybin for therapeutic use in 2021. Yet, most counties within the state have voted to prohibit the establishment of psilocybin treatment centers. Creating potentially unsurpassable barriers to services that the state’s population passed by a wide margin. 

Next, we come to potential legalization path number three: the pharmaceutical route. This is where a company, such as COMPASS Pathways, begins a series of clinical trials to establish the safety and efficacy of a new drug. Typically this follows a relatively straightforward path. The company applies for a permit to study a drug, say psilocybin, then initiates Phase I clinical trials. If successful, these are followed by Phase II, and, finally Phase III trials. Seems simple, yes? 

Well, unfortunately, it’s not. You see, clinical trials take decades, (the Multidisciplinary Association of Psychedelic Studies started their first trial with MDMA in 1996) and they’re not guaranteed to succeed. That said, let’s assume that the trial does pass muster. What then?

The next step would be for the drug manufacturer to apply to the DEA to have the drug, in this case, psilocybin, rescheduled. However, that also is not guaranteed. For example, when Epidiolex (a cannabis-derived drug for the treatment of seizures) gained FDA approval, many thought it would lead to the rescheduling of marijuana. Yet the DEA, in conjunction with the FDA, denied the petition. Who says the same won’t happen with psychedelics? Perhaps something like COMPASS Pathways COMP360 (a synthetic, but chemically identical, version of psilocybin) will gain FDA approval, while natural psilocybin remains illegal.(4) 

Of course, the easiest path to legalization would be through Congress. However, given the lack of movement on marijuana, a substance legal in 37 states, three territories, and the District of Columbia, it seems improbable that the U.S. government will intervene in the near future. 

This is why Rabbi Gorelick, or really anyone interested in psychedelics, may run afoul of the law. In short, how America handles psychedelic legalization isn’t just confusing; it often doesn’t work.

One expert points out that the state vs. federal model may not be enough at the end of the day. “The most important thing to understand in these decriminalization state frameworks is that federal law trumps state law,” says Dustin Robinson, aka Mr. Psychedelic Law. Reminder: psilocybin is a Schedule I substance under the Controlled Substances Act of 1970 – the same category as heroin or cocaine.⁽⁵⁾

Ben Lightburn is CEO of Filament Health, which develops naturally extracted, pharmaceutical-grade, psychedelic medicines. From a snow-coated Vancouver, he points out that local decriminalization in the U.S., “might be as simple as the mayor directing the chief of police to not allocate any budget to protecting psilocybin prosecution.”⁽⁶⁾

Measures like these – generally termed “deprioritization” – started in Denver and now exist in Oakland, Santa Cruz, and Ann Arbor, amongst others, representing a “decriminalization-lite” effort. What that means is, ostensibly, anyone tripping in their backyard need not run to the trees if a state trooper pulls onto their street.^{(7, 8, 9, 10, 1)}

State decriminalization means there are no longer enshrined criminal penalties for drug law violations. However, this is subject to a sliding scale of conditions decided by individual states. (For instance: a certain amount of a given substance being considered reasonable for “personal use.”) You also may still face civil penalties, such as fines.

Dustin also stresses that the patchwork state-by-state model is a separate entity to the pharmaceutical trajectory toward federally approved psychedelics, spearheaded by companies like the aforementioned COMPASS Pathways.

COMPASS Pathways is a Nasdaq-listed healthcare provider researching psychedelics as mental health treatments. In 2020, they patented their own synthetic psilocybin (the psychoactive ingredient found in magic mushrooms that makes you ‘trip’) called COMP360.⁽¹¹⁾

Getting FDA approval for this substance and treatment would establish a new access route to psychedelics, exclusively available via COMPASS Pathways. Effectively bypassing the state-by-state efforts (and the legal conflicts inherent). This would establish the compound’s acceptance at a federal level and open the potential for reclassification of the drug from its current onerous Schedule I.

Psilocybin was first designated as a Breakthrough Therapy by the FDA in 2018. Meaning the FDA intends to expedite a new drug’s approval. This designation is often given due to promising early results from clinical trials.⁽¹²⁾

Since then, the field of psychedelic research has bloomed. In fact, President Joe Biden “anticipates” psilocybin-assisted therapy will be FDA-approved within two years, along with MDMA for PTSD. Ketamine is already a federally approved psychedelic treatment, and represents a model for other psychedelics to follow, with ketamine-assisted therapy clinics serving as a potential example.⁽¹³⁾

This, perhaps understandably, caused a confluence of headlines and hype. Was the psychedelic renaissance about to hit your local Main Street? “Biden was essentially acknowledging that they will become available as medicine and that we need to create a team and a strategy for this,” Robinson cautions. Adding, “Nothing he said had anything to do with the city or state regulations.”

So what’s happening outside of the world of research labs?

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Oreg-on the Move with Controlled Substances

Oregon’s residents pushed history forward in November of 2020 by voting in favor of Measure 110, which ruled that non-commercial possession of all controlled substances would be met with a $100 fine instead of a potential criminal record. (The $100 can be avoided with a completed health assessment that could theoretically lead to treatment.) It also vowed to divert an annual $100 million of cannabis-gained tax revenues into expanded drug treatment services.^(14, 15)

A recent Oregon Health Authority (OHA) audit declared that “the effectiveness of the program has yet to be determined.” However, the Measure 110 model – inspired by Portugal’s 2001 health-led drugs decriminalization effort, which depenalized the use or possession of personal amounts of all drugs – reportedly reduced Oregon arrests for drug offenses by 60% (5,400 people).^(16, 17)

Oregon is also a test case for psilocybin. 2020’s Measure 109 authorized the Oregon Health Authority (OHA) to create a program of state-licensed “healing centers.” These are private clinics where natural psilocybin is administered onsite by qualified facilitators to those over 21 years old. No formal medical referral is needed.⁽¹⁴⁾

Potential centers have been able to apply for licenses since January 1st. However, as noted, Measure 109 also gave local jurisdictions the option to opt out of these centers. November ballots resulted in 25 of Oregon’s 36 counties staying psilocybin-free. The laws, even within state borders, are contradicting themselves.⁽¹⁸⁾ 

Mike Arnold, founder of Silo Wellness (Oregon’s first publicly traded psilocybin company), points out that, in some cases, state legalization isn’t all it’s cracked up to be. According to Arnold, local officials are stonewalling the company’s attempts to open what should be fully legal healing centers. Their location was intended to be a bucolic 960-acre site called New Frontier Ranch in Jackson County. Unfortunately for Silo Wellness, while Jackson County opted to allow psychedelic therapy service centers, they’ve been faced with zoning restrictions and views of psychedelic healing that… don’t align with his. “I do not find public officials welcoming of this idea,” he says.

Just before Christmas, the company announced that they’d requested approval for a new site and mushroom cultivation facility in “Portland-area rural Oregon,” with the New Frontier Ranch plans seemingly shelved for now.⁽¹⁹⁾

Oregon Psilocybin Services (the government agency tasked with creating the framework for regulated psilocybin in the state) started taking applications at the start of January. These covered the right to grow, test, and facilitate psilocybin (aka magic mushrooms) strictly for use within service centers. It’s anticipated that spring or summer will see these open for those seeking psilocybin-based healing.⁽²⁰⁾

Outside of this framework, psilocybin remains decriminalized for personal use. However, the swift clampdown of Shroom House – a short-lived mushroom dispensary in downtown Portland that was raided by police after less than a week after opening in December – suggests the local authorities have little current appetite for an unregulated, “gray area” market where anyone can pick up some tasty mushroom chocolates on a Saturday afternoon.⁽²¹⁾

(Note: all of this is moving quickly and updating even as this is published.)

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What Does Healing Cost in Oregon Under the Drug Laws?

When asked about the price of a Silo Wellness retreat, Arnold is reluctant to specify. This is perhaps fair enough considering the cat’s cradle of variables at play. For context, however, four days and five nights at the Silo Wellness, New Year New You retreat in Jamaica costs around $4,300. Ketamine infusion courses can run to circa $5,000 a pop. (However, there are some low-cost options. Telehealth ketamine services can run as low as $500 per session, but often lack many of the bells and whistles found at a retreat.)^(22, 23)

A contributing factor is that the cost of facilitator license fees is $2,000 per year, while full training costs $8,500 with the Oregon Health Authority-approved Inner Trek. These kinds of costs do not allay ongoing concerns that psychedelic healing will become the preserve of privilege. Nonprofits like The Oregon Synaptic Institute hope to provide some balance by offering heavily subsidized training fees. “The program provides a minimum of 5 scholarships for BIPOC and up to another 5 for queer folks. They range from 25%-75% total tuition,” Dr. Matthew Hicks, ND, founder of Synaptic Integrative Care and Training Institute, told Psychedelic Spotlight.^{(24, 25, 26)}

There remains a general hope, if not quite expectation, that treatment using the COMPASS Pathways model will be covered by most types of insurance. “But COMPASS will only be for treatment-resistant depression,” says Ben Lightburn (CEO of Filament Health). “And you will have to try a number of different therapies [before receiving psilocybin therapy]. So for someone living in Oregon, going to their local service center will be quicker and cheaper.”

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The Curious Case of Rabbi Ben

But what about religious services, especially ones that are designed to be as accessible (and cost-free) as possible? The Denver-based Rabbi Ben Gorelick never charged a dime for his ceremonies. “There is no link between donations and participation in our community – many of our members have never made a financial donation,” writes Gorelick (an ordained rabbi who wrote his dissertation on the historical intersection of Judaism and psychedelics), on the Sacred Tribe’s website.⁽²⁷⁾

The Sacred Tribe was formed in 2018 and is rooted in Kabbalah – an ancient strand of the Jewish faith grounded in mysticism. Gorelick may have become tabloid catnip with his mohawk and “mushroom rabbi” moniker, but over a series of ultra-convivial yet factually rigorous emails (one comes with 17 footnotes of suggested further reading), his intellect shines through.⁽²⁸⁾

So how did we get here?

The Sacred Tribe is “built around the core idea that life is about the cultivation of ecstatic experience through connection.” Put simplistically: this connection to self, others, and God (or whatever one’s perception of God/the Divine is, The Sacred Tribe is multi-faith) stems from a number of sources – including breathwork, ecstatic sound, and movement, immersion in art and nature, and yes, the use of the psychedelic sacrament.(28)

During weekend-long retreats, members of The Sacred Tribe would gather at the organization’s Synagogue (aka Gorelick’s house). After a communal dinner on Friday, members return to find tables removed to reveal comfy, cushion-covered floors.

Each individual injests a paste containing a curated mushroom strain that coordinates with their specific intention. As the night and the music goes on, members journey, connect, and commune throughout different spaces in the Synagogue. Beforehand, all participants are screened by a medical director, and Ben, to ensure their participatory aims align with The Sacred Tribe’s. The next day – all participants stay overnight – is a time for integration and reflection.

It is safe to say, not your average trip to the Synagogue.

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Denver and Colorado Get Groovier

Denver was the first city (with a slim 50.6% majority) to deprioritize possession of magic mushrooms with Initiative 301 in May 2019. Then, last November’s Proposition 122 saw Coloradans join Oregon in voting for regulated psilocybin access via the Regulated Natural Medicine Access Program. The possession, use, growth, transport, and sharing of natural psychedelics, including psilocybin were now decriminalized. Cultivation is permitted, provided it takes place in a private home or residence, and sharing is allowed with adults – provided no money changes hands.^(29, 30)

Even before Proposition 122, The Sacred Tribe hadn’t been cowering. With Initiative 301 passed and believing they were covered by religious exemption (more on that shortly), Ben says they “chose to do everything above board” concerning their sacrament. This included working with the federal government and local lawyers. “We [didn’t] grow our sacred sacrament in a basement or closet, but in an above-board commercial space specifically built for growing mushrooms, complete with safety systems, health, and safety inspections, and so on,” Gorelick says on his website.

And they are far from the first religion or group to use mushrooms as part of their sacrament. Everyone from Jews to Aztecs and the Druids have been linked with this mystical mycelium. Religions and psychedelics entered the mainstream consciousness with 1990’s infamous Employment Division v Smith case, declaring that unemployment benefits could be withheld from two Native American Church members fired from their jobs for sacramentally using peyote.^{(31, 32, 33, 34, 35)}

With controversy ringing like the Liberty Bell, Bill Clinton’s government passed 1993’s Religious Freedom Restoration Act (RFRA). It took its cue from The First Amendment’s consecration of an individual’s right to the free exercise of religion, ruling that the government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”⁽³⁶⁾

But – in a fiendish inversion of the “federal law trumps state law” rule that is the claw in Gorelick’s back – the RFRA does not hold sway in Colorado. “In [the] City of Boerne v. Flores in 1997, the Supreme Court held that RFRA, as applied to states, is unconstitutional,” Ben explains over email. “So while it holds at a federal level, it does not hold at the state level.” Twenty-one states have now passed their own RFRA laws, but Colorado is not among them. Thus, the state reverts back to the original, stricter, verdict of the Smith case.⁽³⁷⁾

Confused? In a nutshell: while this religious exemption for psychedelic use potentially exists at a federal level, it doesn’t in Colorado. Hence, Gorelick’s arrest.

Gorelick’s lawyers had a meeting with District Attorney Beth McCann two weeks before his December court arraignment. McCann told them to expect prosecution regardless of Proposition 122 being passed in Colorado.

“She was clear that she didn’t believe Prop 122 [sic] protected the religious use of psychedelics, as that use falls outside of  ‘personal use,’” Gorelick tells us. “Our community grow was [housed] in a clean, organized, well-managed commercial space rather than the Prop-122-permitted, personal grow-in-your-basement. The quantity of mushrooms we had on hand – several pounds composed of 14 different strains of mushroom, each with a specific intent – well exceeded what they could reasonably consider ‘personal use.’ By having a website and speaking about our thousands-year-old religious use of psychedelics, we were breaking Prop 122’s prohibition against advertising. By accepting voluntary donations, we were breaking the prohibition on accepting.”

Gorelick was advised to plead guilty (he says he wouldn’t have). For unknown reasons, McCann changed her stance, and the charges were dismissed on the morning of his arraignment.

Taking a top-down view, Gorelick thinks that we’re now in a position where the religious and spiritual uses for psychedelics are being marginalized. “We have agreed that psychedelics have a valid medical/therapeutic use, and that the recreational consumption of such substances shouldn’t be criminal,” he tells us. “But the religious/spiritual use of the same substances remains criminalized and is forced underground.”

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The Future of Psychedelic Legislation

It’s clear that the future for clinically controlled psychedelics is optimistic – and not just psilocybin. Pharmaceutical therapy for ketamine continues to grow while Amy Emerson, CEO of MAPS Public Benefit Corporation, who has now completed trials in Phase III MDMA trials for PTSD, recently said the results were “positive.” She expects to officially apply for the drug’s approval in the fall. Medical trials into other psychedelic compounds – including LSD and DMT (the psychedelic compound found in ayahuasca) and ibogaine – continue worldwide.⁽³⁸⁾

And on the state route? A bill was filed last December to decriminalize the possession, and use of plant-based hallucinogens in California. While New York lawyers recently proposed a wide-ranging bill that would legalize personal growth and use of plant-based psychedelics, along with service centers and religious exemption. A bill proposal was submitted in Washington State that would create state-regulated psilocybin therapy centers à la Oregon, while Virginia and Illinois are also in formative stages of legislative discussion. (Each state’s proposed statute is slightly different, of course.)^{(39, 40, 41, 42, 43)}

While change is afoot. However, the different pathways available, each with a bespoke set of vested interests – from Big Pharma shareholders, to the army veteran seeking healing for PTSD, to the local Rabbi who just wants to practice his religion – means that people will likely get caught in the web. And there will be conflict, legal challenges, and a host of other issues in the time between. For example, COMPASS Pathways has already (successfully) beaten away challenges to their COMP360 patent from a nonprofit called Freedom To Operate.^(44, 45)

Ben Lightburn says that, “it’s impossible not to piss someone off [in the psychedelic community]. It’s very personal, even sacramental.” Nevertheless, Dustin Robinson posits that, “If you have a decriminalization and state-legalized framework plus FDA-approved pharmaceutical, you kind of have everything covered. If you want to grow and possess – then do it. You can do community-based healing. And, if someone with treatment-resistant depression wants to access it through pharmaceuticals, then they can.”

So what about Rabbi Ben and The Sacred Tribe? Are they finally free to practice? “It was made clear to me that, if we start offering ceremonies again, the state will absolutely consider re-arrest and prosecution to the fullest extent possible,” says Gorelick. “She [McCann] isn’t able to speak as to whether the Colorado Constitution offers protection for a religious group like us. That is for a judge or, perhaps, the Attorney General to decide.”

A recent article on the international law resource Lexology said, “Religious exemptions are procedural nightmares… There is no good process for religious groups to obtain exemptions to the CSA [Controlled Substances Act].” Recently, the Florida-based Soul Quest for Mother Earth church was denied its own permission to use ayahuasca. For Gorelick and others like him, it’s perhaps a case of keeping the faith – and getting some excellent lawyers who can prove the sacrament is pivotal to said faith.^(46, 47)

For now, the American web of psychedelic laws, regulations, and exemptions remains maddeningly, but not hopelessly, tangled.