Another Win for Religious Use of Psychedelics: New Hampshire v. Mack

We’ve written a lot recently about the law concerning the religious use of psychedelics (see here and here). This is an incredibly broad area of the law that is still developing. Our focus has generally been on the federal laws and decisions affecting religious use of psychedelics, though today we turn our attention to an important new state decision.

On December 22, 2020, the New Hampshire Supreme Court decided a case that is very significant for the religious use of psychedelics (the opinion is here). In that case, a person had been convicted of possession of psilocybin and appealed his conviction all the way to the state supreme court on the grounds that the trial court should have dismissed the case given his religious use of the substance. The court noted that the defendant was a member of the Oratory of Mystical Sacraments branch of the Oklevueha Native American Church, which church had specific rules regarding the taking of psilocybin to prevent things like public intoxication or driving while intoxicated.

Notably, the defendant only pursued state law challenges to his conviction. New Hampshire’s state constitution (which the court recognized has broader protections than the federal Constitution) contains a right to practice religious beliefs so long as they do not “disturb the peace”, and the decision turned on whether the defendant’s practice disturbed the peace.

The court began by noting that the defendant had the right to hold whatever religious beliefs he chose, and that it was not the court’s job to decide whether they are theologically true. As an aside, this an interesting position and one that I argued elsewhere that the Drug Enforcement Administration (DEA) should stick to in its decisions on people seeking religious exemptions. See Griffen Thorne, How the DEA is Interfering with Religious Use of Psychedelics, JURIST – Professional Commentary, October 12, 2020. So, the court accepted that the defendant’s religious belief was sincere and moved onto whether his practice disturbed the public peace.

The court’s analysis was lengthy and analyzed decisions from New Hampshire, other states, and even federal decisions, and ultimately concluded that the trial court erred in dismissing the case. Citing cases like the U.S. Supreme Court case of Gonzales v. O Centro, which we discussed here, the court noted that where there is a religious practice that violates a generally applicable law (i.e., a criminal law that prohibits the use of psychedelics), a balancing test must be employed. The petitioner must first establish that the law substantially burdens its religious practice, and the government then has the burden to show that its action is necessary to achieve a compelling government interest and is narrowly tailored to do so. So, the supreme court held that the trial court erred in not applying such a test.

What does this mean for the defendant? His case is not done. The state supreme court remanded the case for further consideration by the state trial court, which must now take more evidence and consider the foregoing balancing test. In all likelihood, prosecutors will continue with the case and argue that even under a balancing test, they are still right (for what it’s worth, the federal government lost on such arguments in the Gonzales case, which the New Hampshire supreme court noted was factually similar to this case). It’s still possible that the defendant could be convicted, but this case certainly gives him better grounds to fight it.

What does this decision mean for religious use generally? Unfortunately, it is fairly limited. The decision doesn’t affect federal law, and I’ve explained that it can be extremely difficult to deal with the DEA on this point. While the decision is binding on courts in New Hampshire, it has no effect on laws in other states. That said, part of the decision analyzed a Massachusetts decision and noted that Massachusetts had a substantially similar provision in its state constitution. Therefore, this decision provides persuasive guidance to any state court in a state with similar constitutional provisions.

While the decision is fairly limited, it again reflects shifting attitudes towards both religious freedom and the use of psychedelics. We will continue to post on this topic, so please stay tuned to the Canna Law Blog.