_____________ No. 95-3373WM No. 95-3375WM

_____________ United States of America, * * Appellee, * Appeals from the United States * District Court for the Western v. * District of Missouri. * Dale T. DeWitt, * [PUBLISHED] * Appellant. *

_____________ Submitted: September 12, 1996 Filed: September 19, 1996

_____________ Before FAGG, BEAM, and MURPHY, Circuit Judges.

_____________

PER CURIAM.

After finding a drug laboratory in the home of Dale T. DeWitt, a graduat e student in chemistry, the Government brought two indictment s against him. One ind ictment charged DeWitt with several crimes involving the manufacture of the psychedelic drugs methylenedioxyamphetamine (MDA) and methylenedioxymethamphetamine (MDMA). DeWitt conditionally pleade d gui ltyto manufacturing MDMA. The other indictment charged DeWitt wit h several drug violations involving the manufacture of methamphetamine. A jury found DeWitt guilty of all the methamphetamine charges. In bot h cases, DeWitt raised the Religious Freedom Restoration Act of 1993, 4 2 U.S.C. §§ 2000bb-1 through 2000bb-4 (1994) (RFRA ), as a bar to prosecution and as a defense. According to DeWitt, his long-held and sincere religiou s beliefs require him t o manufacture and use psychedelic drugs on a regular basis.

### -2- After hea ring lengthy testimony from DeWitt at a hearing on th e motions to dismiss, a magistrate judge held the First Amendment's Fre e Exerci se Clause does not protect DeWitt's drug activities because hi s beli efs are not a religion. To decide whether DeWitt's beliefs wer e religious, the magistrate judge applied factors from Wiggins v. Sargent , 753 F.2d 663, 666 (8th Cir. 1985). See also Mal nak v. Yogi , 592 F.2d 197, 207- 10 (3d Cir. 1979). The magistrate judge concluded DeWitt's dru g activities are not based on and do not implicate the fundamental questions and ultimate concerns the First Amendment was intended to protect, DeWitt' s beliefs are not part of a comprehensive system, and DeWitt's beliefs are not as sociated with any of the external characteristics of traditiona l religions. The district court adopted the magistrate judge's report and
recomme ndation. In the MDMA case, the district court denied DeWitt' s motion to dismiss the charges, and in the case involving methamphetamine, which is not a psychedelic drug, the district court granted th e Govern ment's motion in limine and prevented DeWitt from presenting a religious necessity defense. DeWitt appeals.

Under RFRA, neither the state nor the federal government ca n substantiallyburden a person's exercise of religion, even through rules of general applicabil ity, unless the government shows the burden furthers
a compelling governmental interest and is the least restrictive means of furt hering that interest. 42 U.S.C. § 2000bb-1; see id. § 2000bb-3

. "Exerci se of religion" means the exercise of religion under the Firs t Amendment. Id. § 2000bb-2(4). The First Amendment only protects sincerel y held beliefs that are "rooted in religion." Thomas v. Review Bd. of the Indiana Employment Sec. Div. , 450 U.S. 707, 713 (1981). "Courts must be cautious in attempting to separate real from fictitious religious beliefs. " Ochs v. Thalacker , 90 F.3d 293, 296 (8th Cir. 19 96). "[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection." Thomas , 450 U.S. at 714. Nevertheless, the Free

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Exerci se Clause does not protect purely secular views or persona l preferences. Frazee v. Illinois Dep't of Employment Sec. , 489 U.S. 829, 833 (1989).
At the hearing on the motions to dis miss, DeWitt testified he is not a member of any organized religion. DeWitt expl ained his interest lies in out-of -bodytravel and exploration of psychic travel is his "firs t essential curiosity." DeWitt stated organized religions do not satisfy hi s curiosityabout the function of chemical compounds, their effectiveness, and th eir particular effects on out-of-body consciousness. DeWitt als o testified his pursuit of the manufacture, study, and use of drugs on a lifelong basis makes his pursuit religious in nature.

DeWitt's pursuit of out-of-body travel is not "rooted in religion." Thomas , 450 U.S. at 7 13. As the magistrate judge explained, DeWitt seeks the out-of-body exper ience as an end in itself, rather than as a means of spiritual enlightenment. DeWitt's drug trips are not compelled by an y belief or conviction other than his curiosity ab out out-of-body travel and the exten t to which various drugs can "take him there." DeWitt ha s systematically studied the effects of psychedeli c drugs on himself and has taken meticulous notes. This is scientific expe rimentation, not religion. The l arger perspective that drug trips give DeWitt about life ar e inc idental to his pursuit of the drug experience for its own sake

. Although DeWitt equat es the pursuit of chemistry with the pursuit of God, DeWitt says he is not concerned about the nature of God and declined to sa y he took drugs to experience God. Because DeWitt's drug use i s "nonreligious in moti vation," it is not protected under the Free Exercise Clause. Id. at 715.

We affirm.

### -4- A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.