COMMONWEALTH vs. DAVID NISSENBAUM (аnd three companion cases).
Supreme Judicial Court of Massachusetts
April 12, 1989
404 Mass. 575
Hampden. April 4, 1988. — April 12, 1989. Present: HENNESSEY, C.J., WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH, & O‘CONNOR, JJ.
On review of convictions for possession of marihuana with intent to distribute it unlawfully, unlawful cultivation of marihuana, and unlawful possession of hashish, this court undertook to resolve the issue whether the conduct for which the defendants were convicted constituted religious practices protected under
The Commonwealth may properly impose criminal sanctions for the possession, distribution and cultivation of marihuana and hashish, as such activities disturb the public order, and such conduct is not protected by
INDICTMENTS found and returned in the Superior Court Department on May 15, 1981.
Pretrial motions to dismiss were heard by John F. Moriarty, J., and the cases were tried before William W. Simons, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
John M. Thompson for the defendants.
Dianne M. Dillon, Assistant District Attorney, for the Commonwealth1.
The Nissenbaums are members, the only Massachusetts members, of thе Ethiopian Zion Coptic Church, of which David is a priest. That church has existed as a religious organization on the island of Jamaica since the 1930‘s. Its members claim its doctrine and symbolism date back 6,000 years. Membership in the church is estimated at several thousand in Jamaica and “a couple hundred” in the United States. The church‘s doctrine is derived from the King James version of the Bible as interpreted by Jamaican preacher and social reformist Marcus Garvey and his successors. Church members follow the dietary laws of the Book of Leviticus and are not permitted to use synthetic or manufactured drugs of modern medicine, nor are they permitted to consume alcohol.
The Nissenbaums follow the church‘s teachings, including its laws concerning dress and diet. Coptics regard marihuana (ganja) as the body and blood of Christ and use it as a sacrament. Religious services аre not restricted to any specific time of day, to any time of the week, or to any specific place, but are performed three times a day (morning, afternoon, and evening). During religious services, marihuana is mixed with tobacco and smoked in pipes that are passed among the church members. The process, which is regarded as a religious function, is accompanied by the reciting of psalms and the singing of chants. Coptics do not inhale the smoke; they “avoid” its “intoxicating effects” by taking it into their mouths and exhaling it from their noses. During the religious ceremonies marihuana is distributed to those present who wish to partake (members and nonmembers). It may be, and sometimes is, distributed to children.
At the outset, we address the question whether it is necessary that we decide the constitutional question in order to dispose of these appeals. David Nissenbaum was convicted of possessing hashish. It is true, as Justice Wilkins points out in his separate opinion, post, that Nissenbaum introduced no evidence that his purpose in possessing hashish was religious. However, the record clearly shows that Nissеnbaum‘s proposed art. 2 defense was fully discussed by the judge and counsel before the trial, and that the judge would not permit the introduction of evidence concerning Nissenbaum‘s religious beliefs except for one limited purpose unrelated to the possession of hashish charge. Therefore, fairness to Nissenbaum does not permit affirmance of his conviction on the ground that the evidence was insufficient to show that whatever hashish he possessed he possessed for religious purposes. Furthermore, resolution of the question whether art. 2 protects the possession of hashish for religious purposes bears on the lawfulness of both the defendants’ convictions for possession with intent to distribute marihuana and David Nissenbaum‘s conviction for unlawful cultivation of marihuana. Why, for example, if art. 2 might protect the possession of marihuana or hashish for gоod faith religious purposes, would it not also protect a parent who would possess marihuana in order to distribute it to his child whom he wishes to raise in the same religion? Also, why would art. 2 not protect one who cultivates marihuana, or possesses it with the intent to distribute it to consenting adults when the cultivation or possession have as their purpose the sharing, and perhaps spreading, of the faith?
We reach this conclusion, in part, by analogy to the First Amendment and cases decided thereunder. The language of the First Amendment appears to be absolute. The First Amendment states, without limitation or qualification, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nevertheless, it is clear that the right to free exercise of religion under the Federal Constitution is not absolute. We hаve observed that “[a] law, legislatively or judicially created, that would regulate or prevent religiously motivated conduct does not violate the First Amendment if the State‘s interest in the law‘s enforcement outweighs the burden that the law imposes on the free exercise of religion. A determination of constitutionality requires a balancing of the
In United States v. Rush, 738 F.2d 497 (1st Cir. 1984), cert. denied, 470 U.S. 1004 (1985), the defendants claimed that the free exercise clause of the First Amendment provided a defense to charges of conspiracy to possess marihuana with intent to distribute it, and possession of marihuana with intent to distribute it. The government conceded that the defendants (who included one David Nissenbaum) were sincere believers in the tenets of the Ethiopian Zion Coptic Church and that the use of marihuana was an integral part of that church‘s religious practices. Id. at 512. The First Circuit considered the defendants’ claims under a three part test: “(a) whether the challenged law interferes with free exercise of a religion; (b) whether the challenged law is essential to accomplish an overriding governmental objective; and (c) whether accommodating the religious practice would unduly interfere with fulfillment of the governmental interest.” Id. The court found the conflict between the criminal sanctions and the defendants’ religious practices to be “self-evident,” but upheld the convictions nonetheless, after “declin[ing] to second-guess the unanimous precedent establishing an overriding governmental interest in regulating marijuana” and recognizing “that accommodation of religious freedom is practically impossible with respect to the marijuana laws.” Id. at 512-513. The court noted that the defendants’ position would render marihuana laws meaningless and unenforceable.
In United States v. Middleton, 690 F.2d 820 (11th Cir. 1982), cert. denied, 460 U.S. 1051 (1983), the Eleventh Circuit
The sound reasoning of the Federal courts with regard to the First Amendment aids us in analyzing the scope of religious freedom under our own Constitution. Religious freedom is not, and cannot be, absolute under either Constitution. Under both documents, the constitutionality of a law that would interfere with the exercise of religion must depend on a balancing of the State‘s interest in the law‘s enforcement against the individual‘s interest in practicing his religion as he chooses. While it is possible that, in the future, we may conclude that there are circumstances in which art. 2 provides protection for religious practices not protected by the First Amendment as construed and applied by Federal courts, we perceive nothing in the language or history of art. 2 that suggests that art. 2 affords more protection in connection with the use of marihuana and hashish than does the First Amendment.
Surely, the literal absoluteness of art. 2‘s guarantee that “no subject shall be hurt, molested, or restrained . . . from worshipping GOD in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments,” is not expanded by the proviso that an individual‘s religious freedom in no event permits disturbance of the public peace or obstruction of the religious worship of others. Rather, the proviso contemplates and requires a balancing of the individual‘s interest in religious freedom with the State‘s interest in preserving the public peace.
Balancing the competing interests, and giving significant weight and deference to the Legislature‘s determination that the possession, distribution, and cultivation of marihuana and hashish disturb the public order, although not controlled by that determination, we conclude that such conduct is not protected by art. 2 even if motivated by sincere religious purpose. In coming to that conclusion, we are informed by Federаl precedent relative to the First Amendment. We agree with the unanimous precedent that recognizes both an overriding governmental interest in regulating such substances and the practical impossibility of doing so and at the same time accommodating religious freedom.
We conclude that art. 2 of the Massachusetts Declaration of Rights does not protect the possession of hashish for sincere religious purposes nor does it protect the possession of marihuana with intent to distribute it or the cultivation of marihuana, even for religious purposes.
Judgments affirmed.
WILKINS, J. (concurring, with whom Abrams, J., joins). I, too, would affirm the convictions. In so doing, however, I need not decide whether the defendants had a constitutional right to use marihuana for religious purposes. If they had such a right, it was a limited one; the defendants’ conduct far exceeded the protective scope of any such right; and there was no reversible error in the denial of the defendants’ motions to dismiss the indictments or in the failure to instruct the jury concerning any right to use marihuana for religious purposes
The defendants’ trial strategy was to establish that (a) the marihuana was for their own use (thus rebutting the charges of possession with intent to distribute), and (b) their use of marihuana was solely for religious purposes and thus (they contended) protected from criminalization by art. 2 of the Declaration of Rights. The possession of marihuana (a) for household use, such as for cooking, preparing tea and tonics, and feeding chickens, and (b) for distribution to minor children, to nonchurch members, and to church membеrs outside of religious services is not protected by art. 2. That behavior either involves no religious conduct at all,1 or it involves religious conduct that disturbs the peace.
I would leave to another case the question whether art. 2 provides protection for the good faith possession of marihuana for (a) use for religious purposes by adults in a household, or (b) in a religious service by church members. Article 2 protection does not apply in any circumstance to the use of marihuana by minors, to the use of marihuana by nonchurch members, or to the use of marihuana by church members outside of activity commonly regarded as religious. That is all I need determine to permit me to answer the defendants’ challenges to their convictions.
1. The motion judge properly denied the defendants’ pretrial motions to dismiss the indictments. Even if the defendants were entitled to some constitutional protection for thеir religious use of marihuana, their motions to dismiss were doomed to fail, as the motion judge noted in his rulings. Any constitu-
There was, moreover, no basis on which the defendants were entitled to a required finding of not guilty on any of the charges. If the defendants were еntitled to constitutional protection of some sort, evidence raising that subject was presented in adequate form only during the defendants’ cases, and that evidence, at most, presented a jury issue and not grounds for a required finding of not guilty.
2. There was no reversible error in the judge‘s refusal to instruct the jury that the defendants had a constitutional right to use marihuana as a sacrament in religious services or for other religious purposes. The trial judge gave the defendants substantial freedom to demonstrate that they used marihuana in large amounts for religious and nonreligious purposes. He properly concluded that evidence of that sort was relevant to the question whether the defendants possessed the marihuana with the intent to distribute it. He instructed the jury that they could consider personal use “on the issue of whether the Commonwealth has proved to your sаtisfaction beyond a reasonable doubt that the Defendants possessed marihuana with an intent to distribute it as opposed to an intent to use it for their personal needs.” The jury decided the distribution issue in favor of the Commonwealth.
Even if the defendants had a State constitutional right to use marihuana personally for religious purposes, the failure of the judge so to instruct the jury did not prejudice the defendants. The judge told the jury that a defendant could not be convicted of possession of marihuana with intent to distribute it if he or
3. If there was error in the judge‘s charge concerning the cultivation of marihuana (by reason of his failure to identify a constitutionally protected religious use for which marihuana would lawfully be cultivated), that error was not prejudicial to David Nissenbaum. If there were a constitutionally protected right to use marihuana for personal religious purposes, it could reasonably follow that there would be a constitutionally protected right to cultivate marihuana for those purposes. On this assumption, at a trial on a charge of unlawful cultivation of marihuana where the issue is raised by the evidence, the Commonwealth would have to prove beyond a reasonable doubt that the cultivation was not solely for constitutionally protected religious uses.
The evidence did not warrant a reasonable doubt, however, about whether Nissenbaum‘s cultivation of marihuana was not solely for personal religious uses. David Nissenbaum‘s admissions in his testimony showed that he was growing marihuana for uses outside the scope of any religious uses we might
4. There is no basis for overturning the conviction of David Nissenbaum for possession of hashish. The police found 9.9 ounces of hashish in a tin can in the office area of the Nissenbaum home. On the evidence, the jury would not have been warranted in having a reasonable doubt whether David Nissenbaum kept hashish for religious uses. Neither Nissenbaum nor anyone else made reference at trial to the use of hashish (as opposed to marihuana) for religious purposes. Nissenbaum could have done so. Therefore, any asserted constitutionally protected right of religious use had no application to his conviction for unlawful possession of hashish.
LIACOS, J. (dissenting). Many years ago, Chief Justice Lemuel Shaw, writing for the court in a case involving
One hundred and fifty years later we have experienced similar difficulty. The difficulty is caused partly by the inadequacy of the historical, written record as to the meaning of art. 2. Additionally, the issues are complex, arising from a clash of values protected by the State constitution and values pertaining to law enforcement as found in our statutes. This tension appears strongest when it involves the right of a disfavored religious sect, a tension not unusual in the long history of our Commonwealth. Consequently, I believe it is important to write separately in this case. I believe that the court‘s opinion today infringes on the right of criminal defendants to have a jury decide the issues of guilt on proper instructions of law. Even more significantly, I believe that the court‘s treatment of art. 2, as far as it goes, is in error.1
My area of disagreement with the court is on the question of the proper treatment of a defense of religious use protected by art. 2.2 The findings of the motion judge who decided the
The motion judge found, and the jury heard evidence as follows. The Nissenbaums are members of the Ethiopian Zion Coptic Church of which David is a priest. He and Christine follow the church‘s teachings, including its laws concerning dress and diet. Coptics regard marihuana (ganja) as the body and blood of Christ and use it as a sacrament. It is mixed with tobacco and smoked in a pipe which is passed among the church members during church services. The smoking is accompanied by the reciting of psalms and the singing of chants. Although not restricted to any specific time of day, to any day of the week or to any specific place, the religious service is performed three times a day (morning, afternoon, and evening). The smoking of marihuana as a religious function, therefore, occurs daily and frequently during each day. However, Coptics do not inhale the smoke into their lungs; they avoid its “intoxicating effects” by taking it into their mouths and exhaling it from their noses. During the religious ceremonies marihuana is distributed to those present who wish to partake (members and nonmembers). During such services, ganja may be, and sometimes is, distributed to children.
The motion judge discussed the defendants’ claim that the provisions of
The court seeks to explain its divergence from this constitutionally mandated test by asserting that, in the exercise of religious belief, a person must comport himself ” ‘as [a] good subject[] of the Commonwealth.’ ”4 Ante at 582. In this context, the court asserts that, “[i]n a broad sense, all offenses are breaches of the public peace.” Ante at 582. Hence, the court says that a legislative “determination that the possession, distribution, and cultivation of marihuana and hashish disturb the public order” should be given “significant weight and deference.” Ante at 583. Implicit in this latter approach is the
I cannot agree with either prong of the court‘s analysis. Hence I dissent.
1. Protected use. I turn now to an examination of the Nissenbaums’ argument that their devotional use of marihuana in private, religious services is protected by art. 2 of the Declaration of Rights. Article 2 provides: “It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the SUPREME BEING, the Great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping GOD in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship” (emphasis supplied).
It is clear from its language that art. 2 guarantees to all our people absolute freedom as to religious belief and liberty unrestrained as to religious practices, subject only to the conditions that public peace must not be disturbed or others not be obstructed in their religious worship.5 When interpreting provisions of the Constitution, all the words are presumed to have been chosen advisedly, Mount Washington v. Cook, 288 Mass. 67, 70 (1934), and none of the words can be ignored as meaningless. Opinion of the Justices, 332 Mass. 769, 777 (1955). Thus, the words in art. 2 which protect a person in the exercise of his or her religious beliefs “provided he doth not disturb the public peace” must be given full meaning.
The concept involved as to those who “disturb the public peace” is one of common law origin. “It was a crime under the common law to disturb the peace of the public, or some segment of the public, by actions, conduct or utterances, the combination of which constituted a common nuisance.” Commonwealth v. Jarrett, 359 Mass. 491, 493 (1971). In Jarrett,
Our most clearly articulated discussion of disturbing the peace is found in Commonwealth v. Orlando, 371 Mass. 732, 734-735 (1977). We stated: “The provision against ‘disturbers of the peace’ proscribes conduct which tends to annoy all good citizens and does in fact annoy anyone present not favoring it.6 Commonwealth v. Jarrett, supra at 498. Commonwealth v. Oaks, 113 Mass. 8, 9 (1873). This definition applies a two-prongеd standard to disruptive conduct. It proscribes activities which, first, most people would find to be unreasonably disruptive, and second, did in fact infringe someone‘s right to be undisturbed. The first prong is normative and protects potential defendants from prosecutions based on individual sensitivities. The second prong requires that the crime have a victim, and thus subjects potential defendants to criminal prosecution only when their activities have detrimental impact.” Id.
That this definition is of long standing is evident from our early cases. In Commonwealth v. Smith, 6 Cush. 80, 81 (1850), the defendant was charged with disturbing the peace when he and others uttered “loud exclamations and outcries . . . to the great disturbance of divers citizens.” We held that the criminal complaint failed to allege that the defendant‘s noises and utterances were of the kind that disturb the citizens of the Commonwealth, the first part of the “disturb the public peaсe” definition. In Commonwealth v. Harris, 101 Mass. 29, 30 (1869), where the defendant was charged with “being a disturber and breaker of the peace” when he “utter[ed] loud exclamations and outcries,” we stated, in upholding the conviction: “The act must be of such a nature as tends to annoy good citizens, and does
Surely, it is reasonable to infer that the framers of art. 2, being mindful of both a history of religious intolerance in our Commonwealth and of the meaning of a well established common law concept, meant to include this concept in art. 2. Thus, in order for the defendants to practice their religion so that they do disturb the peace, it is necessary that both parts of the definition have been satisfied. The second prong mandates that there be a victim. Here, there was no evidence proving that the defendants publicly sold or distributed marihuana or hashish to any nonmember of the Ethiopian Zion Coptic Church, or that the defendants breached the peace or did “annoy” any member of the public by engaging in their religious beliefs. There is nothing in the record which satisfies the second part of the standard for disturbing the peace.7 To the extent that a person performs an act motivated by sincere religious beliefs and as part of a religious ritual or ceremony, the act will be protected by art. 2 so long as it harms no victim.8
The judge instructed that “religious beliefs or other beliefs that the use or possession of marijuana is good or proper or legal, however sincere they may or may not be, is beside the point. The point is that such beliefs do nоt constitute any defense to the possession or use or distribution or intention to use or distribute such a substance . . . [s]o religious belief is not a defense to any of these charges” (emphasis supplied).9 The judge‘s refusal to allow the jury to consider the defense of protected religious use and his explicit instruction that the jury were not to consider this defense was error.
Evidence was presented at trial as to the defendants’ religious beliefs and their possession and use of marihuana as a sacrament. “The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. . . . However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.” Commonwealth v. Campbell, 352 Mass. 387, 398 (1967), quoting People v. Carmen, 36 Cal. 2d 768, 773 (1951). See also Commonwealth v. Schnopps, 383 Mass. 178, 182 (1981); Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975).
The defendants were entitled to have the jury consider whether, in light of the evidence presented, the defendants were protected by thе provisions of art. 2. The defendants requested that the judge instruct the jury so that the jury could consider the defendants’ religious beliefs. The judge refused. The convictions cannot stand. In my view, the defendants are entitled to a new trial.10
What is before us are husband and wife, found by a judge to be sincere devotees of a bona fide religion, using marihuana as a sacrament. When meaning is given to all of the language in art. 2, and when the facts of this cаse are viewed in those terms, it is clear that these convictions should not stand because the judge refused to let the jury consider the issues of religious belief and use. I dissent.