Theoritical Legal Challenge to the Illegal Status of Ketamine

[zera]

So I was thinking about this when the following argument came to me. Stick with it. Gonzales v O Centro Espirta overturned the DMT ban for this church based on the Religious Freedom Restoration Act (RFRA). The standard used was that the government has to show a "compelling government interest" for anything that infringes on a person's religious freedom, and that it has to use the "least restrictive means." John Lilly, a well-respected researcher, has unquestionably estabilished the use of Ketamine for spirtual exploration.

Now why does Ketamine differ from psychedlics like psilocybin, LSD and the like which someone can say the same thing about. Well there is a dissasociative anasthetic that is government sanctioned, that being DXM. Given that the evidence is pretty clear that Ketamine is safer and healthier than DXM, or at the very least not any more unsafe, I think the illegal status of Ketamine while DXM is legal fails Justice Roberts' test.

The government fails to demonstrate a compelling interest in hindering dissaciative use when they keep the less safe DXM on the market despite having long known of its recreational use (at least since Romilar). Additionally they fail to use the least restrictive means because the government is forcing would be dissociative users to use DXM instead. In fact their means are the most restrictive because by blocking Ketamine use, they're putting people in a position to use a more dangerous substance.

The Supreme Court has never applied the RFRA to the general populace of psychonauts. It has only applied to small religious groups, and I believe this is because the government has been able to show a compelling interest when it comes to the general populace, eg Native Americans using Peyote in their ritual do not pose a societal threat but the whole popuation dropping mescaline does. However I think a successful argument could be made for general psychonauts in the case of Ketamine because DXM's legal status invalidates this compelling interest.

Anticipated counterarguments: The government would most likely try to show some compelling reason to keep Ketamine illegal while DXM is legal. I need some help figuring this out, does anyone know the history of the legislation or preceedings dealing with Ketamine's scheduling? The only reasons I can see to schedule ketamine and not DXM is that DXM is reportedly less enjoyable and because of the common IM administration of Ketamine.

The other tough counterargument would be defining the general population of psychonauts as religious practitioners. I most likely the counter-argument would be that distinguishing between recreational users and true psychonauts is hard if not impossible. The compelling interest in keeping LSD out of the hands of psychonauts is to stop the general public from using it in an irresponsible manner, but like I said before the government has invalidated this compelling interest by keeping DXM legal. I think there is a seriousness enough subculture with enough accumulated literature to estabilish the psychonaut population as a religious interest.

Thoughts, comments, insults?

Reputation Comments on this post:

Interesting theory, keep 'em coming

[Nature Boy]

I don't agree with the allowance of otherwise illegal substances for religious uses. Individual sectors of society shouldn't receive any favouritism on such matters. Governments need to make their message clear: either allow everyone to do it, or allow no-one to do it. Any other plan simply causes pandemonium.

I also can't see how anyone would ever be able to differentiate between a psychonaut and a recreational user. On what religious grounds do you define a psychonaut? Psychonauts may be completely non-religious therefore to claim right to a substance on those grounds is unethical. Overall I can see the point you make zera, but I don't think religious protection would be the way to go about supplying illict substances to responsible users. Massive overhauls and a brand new system would have to be undertaken and it wouldn't be easy work.

[raven3davis]

You must also remember though that DXM is a verrrrry effective cough suppressant and it would be hard to replace it with anything else. The recreational dose is also MUCH higher than the recommended dose.

DXM is legal because there really arent many other alternatives. Rest assured, if there were, it would be scheduled in the blink of an eye.

[Jadegreen]

It's illegal to take more than the FDA approved dose of DXM anyway; it falls under the law saying you can't use products for unintended uses (I assume there is such a law; most household chemicals say something to the extent of "use of this product for something than it's intended use is a violation of federal law").

As far as I know, Ketamine does not have any uses akin to other over the counter drug; DXM is still over the counter because it is the lesser of two evils (Hmm an addictive opiate or a sometimes unpleasant dissociative?)