THE STATE OF NEW HAMPSHIRE v. JEREMY D. MACK
No. 2019-0171
THE SUPREME COURT OF NEW HAMPSHIRE
December 22, 2020
Coos. Argued: February 13, 2020
NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by e-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court‘s home page is: http://www.courts.state.nh.us/supreme.
Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.
Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; 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, sentiments, or persuasion; provided he doth not disturb the public peace or disturb others in their religious worship.
The pertinent facts are as follows. In 2017, the defendant, after practicing “[s]hamanic, earth-based religion” for years, joined the Oratory of Mystical Sacraments branch of the Oklevueha Native American Church. After joining the church, the defendant was issued a membership card specifying that he “met the standard of being a sincere member of the Native American Church,” which qualified him to grow and use mushrooms as a religious sacrament in accordance with the church‘s rules. The defendant testified that the church has strict rules surrounding the taking of the sacraments, which must be done in seclusion. The defendant further testified that the rules prohibit taking mushrooms in public or around children, and also prohibit the operation of vehicles and the use of firearms while doing so. After joining the church, the defendant completed additional training and became a minister within the church.
In November 2017, two New Hampshire State Police troopers went to the defendant‘s home to serve him with an order of protection arising out of an unrelated civil matter pending in another state. The order required the troopers to take custody of any firearms owned by the defendant. Although the defendant was not at home, his mother, who lived with him, allowed the troopers into the residence. Speaking with the troopers on the telephone, the defendant gave the troopers permission to take custody of his firearms, which were located in a safe in the basement of his home. When the troopers opened the safe, they observed mushrooms on the top shelf, and seized them.
Approximately one week later, the defendant voluntarily met with one of the troopers at the Colebrook Police Department. During the meeting, the defendant explained to the trooper that he possessed and used the mushrooms as part of his religious worship, and that he did so in accordance with the rules of the Oklevueha Native American Church. He further explained his belief that it was legal for him to do so as part of his religious worship, based on his understanding of certain out-of-state court rulings and other legal information provided by the church.
In April 2018, the defendant was indicted on one count of possession of a controlled drug. See
In its order, the trial court considered the defendant‘s claims under both the Federal and State Constitutions. The trial court observed that, prior to the decision of the United States Supreme Court in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), superseded by statute,
With regard to the State Constitution, the trial court observed that we had employed the reasoning from Smith in a free exercise case involving
On appeal, the defendant does not advance any appellate arguments under the Federal Constitution; rather, he argues that the trial court erred by denying his motion to dismiss under
We first consider the State‘s threshold contention that the defendant failed to preserve his arguments regarding the original meaning of
We now turn to the merits of the defendant‘s arguments. As we noted at the outset, the defendant‘s arguments require us to interpret
In Perfetto, the defendant entered into a plea agreement whereby he pled guilty to numerous counts of possession of child pornography. Perfetto, 160 N.H. at 676. As part of his plea agreement, the defendant was prohibited from having contact with minors under the age of seventeen. Id. at 676-77. Following his release from state prison, the defendant moved to amend that condition — which was a part of his remaining suspended sentences — so that he could attend meetings at a particular congregation of Jehovah‘s Witnesses. Id. The trial court denied his motion. Id. at 677.
On appeal, the defendant argued that “by not amending the conditions of his suspended sentences to allow him to attend the congregation of his choice, he [was] deprived of the right to the free exercise of his religion.” Id. In affirming the trial court, we observed that “[t]o remain at liberty under a suspended sentence is not a matter of right but a matter of grace,” and that the defendant, like “probationers, . . . parolees and prisoners,” was “properly . . . subject to limitations from which ordinary persons are free,” as long as the “limitations in the aggregate . . . serve the ends of probation.” Id. at 678 (quotations and brackets omitted). Further, we noted that “a court will not strike down conditions of release, even if they implicate fundamental rights, if such conditions are reasonably related to the ends of rehabilitation and protection of the public from recidivism.” Id. at 678 (quotation omitted).
Additionally, in declining the defendant‘s invitation to require the State to show a compelling government interest in order to justify imposing restrictions on a probationer‘s fundamental rights, we noted that “the condition in this case does not directly infringe on the defendant‘s free exercise of his religion: it is instead facially neutral and applies to the defendant‘s conduct regardless of whether he is in a church or elsewhere.” Id. at 678-79. We then concluded that “[u]nder these circumstances, we see no reason to require the State to show a compelling government interest.” Id. at 679. We cited Smith for the proposition that “facially neutral, generally applicable laws that incidentally touch upon an individual‘s free exercise of religion do not require the government to show a compelling interest.” Id.
We did not adopt the reasoning of Smith in Perfetto — the case did not require that we either adopt or reject the Smith analysis. The dispositive principle in Perfetto was that the defendant, like “probationers, . . . parolees and prisoners,” was “properly . . . subject to limitations from which ordinary persons are free.” Id. at 678 (quotations and brackets omitted). Because “the suspension condition [was] reasonably related to the rehabilitation or supervision of the defendant,” the condition did not improperly deprive him of the right to freely exercise his religion. Id. at 680. Having so found, we had no occasion to decide whether the reasoning from Smith would be consonant with
Moreover, Perfetto is distinguishable on its facts. Here, the defendant is not subject to a suspended sentence, nor is he a probationer, parolee, or prisoner. Accordingly, the defendant, as an “ordinary person[],” is not subject to restrictions on his religious freedom unless those restrictions pass muster under
Having concluded that, in Perfetto, we did not adopt Smith, and that Perfetto itself does not control the outcome here, we must now consider the broader and fundamental question presented by this appeal: whether the defendant‘s possession and use of psilocyn and/or psilocybin mushrooms is protected by
“As the final arbiter of state constitutional disputes, we review the trial court‘s construction of constitutional provisions de novo.” HSBC Bank USA v. MacMillan, 160 N.H. 375, 376 (2010). “When our inquiry requires us to interpret a provision of the constitution, we must look to its purpose and intent. The first resort is the natural significance of the words used by the framers. The simplest and most obvious interpretation of a constitution, if in itself sensible, is most likely to be that meant by the people in its adoption.” Duncan v. State, 166 N.H. 630, 640 (2014) (quotations and citations omitted). Additionally, “we view the language used in light of the circumstances surrounding its formulation.” City of Concord v. State of N.H., 164 N.H. 130, 134 (2012). “Reviewing the history of the constitution and its amendments is often instructive, and in so doing, it is the court‘s duty to place itself as nearly as possible in the situation of the parties at the time the instrument was made, that it may gather their intention from the language used, viewed in light of the surrounding circumstances.” State v. Addison (Capital Murder), 165 N.H. 381, 565-66 (2013) (quotation omitted). “The language used by the
Additionally, when interpreting the New Hampshire Constitution, we often look to interpretations of comparable state and federal constitutional provisions in order to inform and guide our analysis. State v. Briand, 130 N.H. 650, 653 (1988). Interpretations by other courts are most persuasive when the language of the constitutional provision at issue is similar to the wording in our constitution. See, e.g., Opinion of the Justices (Quorum under Part II, Article 20), 173 N.H. 573 (decided November 17, 2020) (slip op. at 5) (finding the history of the Federal Quorum Clause instructive “[b]ecause of the similarity in language” between the Federal Quorum Clause and the quorum clause of the New Hampshire Constitution). When “the constitutional provision[] at issue contain[s] language dissimilar to ours,” interpretations by other courts are of more “limited value.” Claremont School Dist. v. Governor, 138 N.H. 183, 186 (1993). “Given that New Hampshire shares its early history with Massachusetts, that we modeled much of our constitution on one adopted by Massachusetts four years earlier, and that the Massachusetts Constitution contains a nearly identical provision regarding” the free exercise of religion, “we give weight to the interpretation given that provision by the [Massachusetts] Supreme Judicial Court.” Id. It is important to note, however, that “when this court cites federal or other State court opinions in construing provisions of the New Hampshire Constitution or statutes, we rely on those precedents merely for guidance and do not consider our results bound by those decisions.” State v. Ball, 124 N.H. 226, 233 (1983).
Here the defendant “had the constitutional right to entertain such opinions as [he] chose, and to make a religion of them.” Baker, 76 N.H. at 420. “Whether [his] opinions are theologically true, the court[s] are not competent to decide.” Id. (quotation omitted). Indeed, “[i]n this country there is absolute religious equality, and no discrimination in law is made between different religious creeds or forms of worship.” Webster v. Sughrow, 69 N.H. 380, 381 (1898). Because, in this case, the State does not dispute that the defendant‘s possession and sacramental use of mushrooms constitutes religious conduct motivated by a sincerely held religious belief, the critical question is whether the defendant‘s “worshipping [of] God in the manner and season most agreeable to the dictates of his own conscience” “disturb[ed] the public peace” within the meaning of
We begin with a survey of our case law interpreting the phrase “disturb the public peace.”
We went on to explain that “a statute prohibiting acts having a tendency to endanger the public peace, or to distract the attention and interrupt the quiet of others, is not in conflict with this constitutional provision, although the prohibited acts may form a part of the services of religious worship.” Id.
“Religious liberty, as recognized and secured by the constitution,” we continued, “does not mean a license to engage in acts having a tendency to disturb the public peace under the form of religious worship, nor does it include the right to disregard those regulations which the legislature have deemed reasonably necessary for the security of public order.” Id. Accordingly, we concluded that “[a] reasonable measure of prevention to avoid disturbance is not an infringement of constitutional rights.” Id.
In State v. Cox, each of the defendants was convicted of a misdemeanor for taking part in a procession on the public streets of Manchester without a license, as required by statute. Cox, 91 N.H. at 138. The defendants were members
Next, we look to the Massachusetts Supreme Judicial Court‘s interpretation of
Massachusetts Supreme Judicial Court addressed the question of whether
In a dissent, Justice Liacos made several important points. He maintained that the court relied too heavily on federal precedent, and failed to address the substantial linguistic differences between the
Citing prior Massachusetts case law discussing the elements of the crime of disturbing the peace, Justice Liacos observed that “[t]he 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.” Id. at 601 (quotation omitted). Accordingly, Justice Liacos stated that, “[t]o 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.” Id. at 601-02. Justice Liacos concluded that, because “[t]he defendants were entitled to have the jury consider whether, in light of the evidence presented, the defendants were protected by the provisions of art. 2,” he would vacate the defendants’ convictions and grant them a new trial. Id. at 602.
Five years later, in a concurring opinion in Attorney General v. Desilets, Justice Liacos expressed similar concerns. See Attorney General v. Desilets, 636 N.E.2d 233, 245-46 (Mass. 1994) (Liacos, C.J., concurring). In Desilets, the Massachusetts Supreme Judicial Court was faced with the question of whether the enforcement of a statute mandating that landlords not discriminate against unmarried couples when renting apartments would, under the Massachusetts and Federal Constitutions, violate the free exercise rights of the defendants — who declined to rent an apartment to an unmarried couple based on the defendants’ religious belief that they should not facilitate what they regarded as “sinful cohabitation.” Id. at 234-35.
The court first addressed the protections afforded by
exercise of religion clause” in prior decisions. Id. The court noted that that standard “appears to be the same as that prescribed by the Religious Freedom Restoration Act of 1993,” which was intended by Congress to counter the United States Supreme Court‘s decision in Smith and “restore the compelling interest test.” Id. at 236 n.5 (quotation omitted).
Accordingly, the court stated that its task would be “to determine whether the defendants have shown that the [statutory] prohibition . . . substantially burdens their free exercise of religion, and, if it does, whether the Commonwealth has shown that it has an interest sufficiently compelling to justify that burden,” and that “the granting of an exemption to people in the position of the defendants would unduly hinder that goal.” Id. at 236, 238. Further, the court explained, “[t]he general objective of [the statute] . . . cannot alone provide a compelling State interest that justifies the application of [the statute] in disregard of the defendants’ right to free exercise of their religion.” Id. at 238. “The analysis must be more focused.” Id.
The court, after acknowledging that the application of the balancing test could present practical challenges — such as proving or disproving the sincerity of a particular religious belief, or complicating the enforcement of certain laws — stated that it would “not readily subscribe to a rule that justified the denial of constitutional rights simply because the protection of those rights required special effort.” Id. at 240. It then applied the balancing test, determining that, because the statute at issue affirmatively obligated the defendants to engage in conduct contrary to their sincerely held religious beliefs, it substantially burdened their right to the free exercise of religion. Id. at 237-38. The court also determined that, given the record, “the uncontested material facts disclose no basis for ruling that the Commonwealth can or cannot meet its burden of establishing that it has a compelling interest that can be fulfilled only by denying the defendants an exemption from [the statute].” Id. at 241. Accordingly, the court held that, under
The court then addressed the protections for free exercise of religion arising
We also look to interpretations of the Free Exercise Clause of the
Accordingly, the Court held that “an individual‘s religious beliefs [do not] excuse him from compliance with an otherwise
The holding in Smith was controversial. In response to Smith, in 1993 Congress passed the
Justice Scalia wrote: “At the time these provisos were enacted, keeping ‘peace’ and ‘order’ seems to have meant, precisely, obeying the laws. ‘[E]very breach of a law is against the peace.’ Queen v. Lane, 6 Mod. 128, 87 Eng. Rep. 884, 885 (Q.B. 1704).” Id. at 539 (Scalia, J., concurring). He explained that “[e]ven as late as 1828, when Noah Webster published his American Dictionary of the English Language, he gave as one of the meanings of ‘peace‘: ‘8. Public tranquility; that quiet, order and security which is guaranteed by the laws; as, to keep the peace; to break the peace.’ 2 An American Dictionary of the English Language 31 (1828).” Id. at 539-40. According to Justice Scalia, “[t]his limitation upon the scope of religious exercise would have been in accord with the background political philosophy of the age (associated most prominently with John Locke), which regarded freedom as the right ‘to do only what was not lawfully prohibited,’ West, The Case Against a Right to Religion-Based Exemptions, 4 Notre Dame J. L., Ethics & Pub. Pol‘y 591, 624 (1990).” Id. at 540. He reasoned that, “‘[t]hus, the disturb-the-peace caveats apparently permitted government to deny religious freedom, not merely in the event of violence or force, but, more generally, upon the occurrence of illegal actions.’ Hamburger, [A Constitutional Right of Religious
Justice O‘Connor offered a different perspective: “The language used in these state constitutional provisions . . . strongly suggests that, around the time of the drafting of the Bill of Rights, it was generally accepted that the right to ‘free exercise’ required, where possible, accommodation of religious practice.” Id. at 554 (O‘Connor, J., dissenting). “If not,” and “if the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience,” she explained, “there would have been no need for these documents to specify, as the New York Constitution did, that rights of conscience should not be construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State.” Id. (quotation and brackets omitted). She reasoned that “[s]uch a proviso would have been superfluous. Instead, these documents make sense only if the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes.” Id. at 554-55. Justice O‘Connor noted that “[the] practice of excusing religious pacifists from military service demonstrates that, long before the First Amendment was ratified, legislative accommodations were a common response to conflicts between religious practice and civil obligation.” Id. at 559. “Notably,” she said, “the Continental Congress exempted objectors from conscription to avoid ‘violence to their consciences,’ explicitly recognizing that civil laws must sometimes give way to freedom of conscience.” Id. (quoting Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1468-69 (1990)).4
Also instructive is the 2006 opinion of the Supreme Court in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, as the case is factually similar to the case before us, and is an example of the Court‘s application of the “compelling interest” balancing test mandated by RFRA. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). In Gonzales, the Supreme Court considered whether a sect of Christian Spiritists was entitled to a preliminary injunction prohibiting the federal government from interfering with its members’ religious practice of “receiv[ing] communion by drinking a sacramental tea, brewed from plants . . . that contain[] a hallucinogen regulated under the Controlled Substances Act.” Id. at 423, 425.
Although the government conceded that drinking the sacramental tea containing dimethyltryptamine — the regulated hallucinogen found naturally in one of the plants used to brew the tea — “is a sincere exercise of religion,” it nonetheless “sought to prohibit . . . the sect from engaging in the practice, on the ground that the Controlled Substances Act bars all use of the hallucinogen.” Id. The trial court had entered a preliminary order enjoining enforcement of the Controlled Substances Act against the sect, a decision that was affirmed by the United States Court of Appeals for the
The Court explained that RFRA “adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith” that “prohibits the Federal Government from substantially burdening a person‘s exercise of religion, unless the Government demonstrates that application of the burden to the person represents the least restrictive means of advancing a compelling interest.” Id. at 423-24 (quotation omitted). In Gonzales, the government conceded the sect‘s prima facie case: that the application of the Controlled Substances Act would substantially burden a sincere religious practice. Id. at 428. Accordingly, the burden was on the government to prove that the application of the Controlled Substances Act to the sect was the least restrictive means of furthering a compelling government interest. Id. at 428-29.
The government argued that, because the hallucinogen at issue was a Schedule I substance with a high potential for abuse, and because it lacked any currently accepted, or safe, medical uses, the government‘s interest in not providing an individualized exception to the Controlled Substances Act for the sect was compelling. Id. at 430. Further, the government contended that the Controlled Substances Act established “a closed system that prohibits all use of controlled substances except as authorized by the Act itself,” and that “there would be no way to cabin religious exceptions once recognized.” Id. (quotation omitted).
The Court was not persuaded, and noted that “RFRA, and the strict scrutiny test it adopted, contemplate an inquiry more focused than the Government‘s categorical approach.” Id. “RFRA,” the Court explained, “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person‘—the particular claimant whose sincere exercise of religion is being substantially burdened.” Id. at 430-31 (quoting
With these cases and important principles in mind, we now construe
Additionally, as Justice O‘Connor observed in Smith, the federal Free Exercise Clause “was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility,” and that “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials” such that the fundamental rights of “freedom of worship . . . may not be submitted to vote; they depend on the outcome of no elections.” Smith, 494 U.S. at 902-03 (O‘Connor, J., concurring) (quotations omitted). So too was our State Constitution “intended to be [a] restraining document[],” one designed to ensure “that [the] exercise of power by the majority does not go unchecked.” State v. LaFrance, 124 N.H. 171, 177 (1983). “We do not have unqualified majority rule; we have majority rule with protection for minority and individual rights. Without this limitation we would have a tyranny of the majority and we would lose our liberty.” Id.
It is well-established that “[w]hile the role of the Federal Constitution is to provide the minimum level of national protection of fundamental rights, our court . . . has the power to interpret the New Hampshire Constitution as more protective of individual rights than the parallel provisions of the United States Constitution,” and “[t]he [United States] Supreme Court has recognized this authority.” Ball, 124 N.H. at 231-32 (citing Cooper v. California, 386 U.S. 58, 62 (1967)); see also PruneYard Shopping Center v. Robins, 447 U.S. 74, 81 (1980) (recognizing “the authority of the State . . . to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution“). Additionally, given the substantial linguistic differences between the
Accordingly, in construing our State Constitution, we decline to adopt the reasoning of Smith. In Smith, the Supreme Court found that, under the
a law that prohibits certain conduct ― conduct that happens to be an act of worship for someone ― manifestly does prohibit that person‘s free exercise of his religion . . . regardless of whether the law prohibits the conduct only when engaged in for religious reasons, only by members of that religion, or by all persons.
Smith, 494 U.S. at 893-94 (O‘Connor, J., concurring). We also agree with Justice O‘Connor‘s observation that criminalizing “religiously motivated conduct burdens that individual‘s free exercise of religion in the severest manner possible, for it results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution.” Id. at 898 (O‘Connor, J., concurring) (quotation omitted). Therefore, if
We therefore conclude that when religious practices violate a generally applicable law, our State Constitution, like
This analysis must be focused: it must pertain to the individual or those in similar circumstances; “[t]he general objective of [the statute] . . . cannot alone provide a compelling State interest that justifies the application of [the statute] in disregard of the defendant[‘s] right to free exercise of [the defendant‘s] religion.” Desilets, 636 N.E.2d at 238; see also
The State contends that White and Cox mandate that we set a lower constitutional bar for evaluating government actions that burden the free exercise of religion than we set today. We disagree. In both White and Cox, the statutes at issue prohibited certain disruptive conduct only in certain designated places, and only if those participating in the conduct did not first obtain a license, permit, or other lawful permission. See White, 64 N.H. at 49; Cox, 91 N.H. at 138, 146. Accordingly, given the limited scope of the statutes at issue, and the fact that both statutes expressly provided that anyone could apply for and obtain a license, permit, or other lawful permission to engage in the conduct at issue, it is far from clear that either statute substantially burdened religious practices. Therefore, neither case would have triggered the application of the compelling interest balancing test pursuant to the “disturb the public peace” clause of
In reaching this conclusion, we are not alone. Other state supreme courts have also concluded that their state constitutions provide greater protection for the free exercise of religion than does the Free Exercise Clause of the Federal Constitution. As explained earlier, the Massachusetts Supreme Judicial Court construed the Massachusetts Constitution to provide greater protection for the free exercise of religion than does the First Amendment. See Desilets, 636 N.E.2d at 235-36, 242-43. The Maine Supreme Judicial Court reached a similar conclusion with respect to its state constitution. See Rupert v. City of Portland, 605 A.2d 63, 65-66 (Me. 1992) (applying the compelling interest balancing test to free exercise of religion cases brought under the state constitution). Indeed, state supreme courts in several other states have construed their state constitutions to be more protective of religious liberty than the Federal Constitution. See, e.g., Swanner v. Anchorage Equal Rights Com‘n, 874 P.2d 274, 280-81 (Alaska 1994); State v. Hershberger, 462 N.W.2d 393, 397 (Minn. 1990); Humphrey v. Lane, 728 N.E.2d 1039, 1044-45 (Ohio 2000); see also Gary S. Gildin, The Sanctity of Religious Liberty of Minority Faiths Under State Constitutions: Three Hypotheses, 6 U. Md. L.J. Race, Religion, Gender & Class 21, 31-32 & n.57 (2006) (observing that courts in several states “have interpreted their state constitutions to mandate application of the compelling interest/no less restrictive alternative test to laws that have the effect of limiting a sincere religious practice, even absent an untoward legislative purpose“).
Finally, although we recognize that the application of the compelling interest balancing test may present practical challenges, we cannot “justif[y] the denial of constitutional rights simply because the protection of those rights require[s] special effort.” Desilets, 636 N.E.2d at 240. The compelling state interest balancing test has proven to be a workable standard in free exercise cases. Not only does the United States Supreme Court apply the test under RFRA, see
In conclusion, the trial court did not apply the compelling interest balancing test that
Order on motion to dismiss is vacated and remanded.
HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.