State of New Hampshire v. Jeremy D. Mack, 249 A.3d 423

Defendant Jeremy Mack, a minister and member of the Oklevueha Native American Church, possessed psilocybin/psilocyn mushrooms he said were sacramental and used in seclusion per church rules.
Troopers serving an out-of-state protection order entered Mack’s home (with his mother’s assent), opened a safe, observed and seized the mushrooms; Mack later told police they were for religious worship.
Mack was indicted for possession of a controlled drug and moved to dismiss under Part I, Article 5 of the New Hampshire Constitution (free exercise clause) asserting religiously motivated possession is protected unless it “disturb[s] the public peace.”
The superior court denied the motion, relying on federal Free Exercise precedent (Employment Div. v. Smith) and State v. Perfetto; Mack was convicted by a jury and appealed only under the state constitution.
The Supreme Court of New Hampshire reviewed Part I, Article 5, rejected application of Smith to the state provision, adopted a strict-scrutiny / compelling-interest test for state-constitutional free-exercise claims, vacated the denial of the motion to dismiss, and remanded for application of that test.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Mack)	Held
Whether Part I, Article 5 protects sacramental possession/use of psilocybin mushrooms absent disturbance of the public peace	"Disturb the public peace" means violating a generally applicable law; thus no special protection for religiously motivated possession	Article 5 bars prosecution for worship in the manner of one’s conscience unless the conduct disturbs the public peace; Mack’s sacramental use did not disturb the peace	Court: Article 5 protects sincere religious practices; when a generally applicable law burdens such practice, the State must meet strict scrutiny before prosecution may proceed
Whether Employment Division v. Smith governs Part I, Article 5 analysis, or New Hampshire must apply a more protective standard	Smith controls; generally applicable, neutral laws need not satisfy compelling-interest review	New Hampshire Constitution provides greater protection than the First Amendment; Smith is inapplicable to Part I, Article 5	Court: Declines to adopt Smith for Part I, Article 5; requires compelling-government-interest and narrow-tailoring (strict scrutiny) when religious exercise is substantially burdened

Employment Div. v. Smith, 494 U.S. 872 (1990) (federal decision holding generally applicable, neutral laws need not satisfy compelling-interest review)
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (applied RFRA’s compelling-interest test to protect sacramental use of a Schedule I substance)
State v. Perfetto, 160 N.H. 675 (2010) (addressed free-exercise claims of a person subject to conditions of suspended sentence; Court did not adopt Smith for broad application)
State v. White, 64 N.H. 48 (1886) (Article 5 does not justify religious practices that disturb public peace; statutes preventing disturbance are valid)
State v. Cox, 91 N.H. 137 (1940) (time/place/manner regulations on street processions may be valid to prevent substantial disturbance)
Hale v. Everett, 53 N.H. 9 (1868) (historic exposition that Article 5 protects conscience and worship except where acts "tend to disturb the public peace")
Commonwealth v. Nissenbaum, 536 N.E.2d 592 (Mass. 1989) (Mass. court applied balancing and gave deference to legislature in concluding drug possession for religious use not protected)
Attorney General v. Desilets, 636 N.E.2d 233 (Mass. 1994) (Mass. court endorsed compelling-interest balancing under state constitution for free-exercise claims)
City of Boerne v. Flores, 521 U.S. 507 (1997) (discussed scope of state free-exercise provisions and congressional RFRA authority)