Consuming hallucinogenic mushrooms as part of a religious ceremony does not automatically “disturb the public peace” even though eating them is illegal, and therefore the act might be protected by the New Hampshire constitution, the state Supreme Court has ruled.
Tuesday’s unanimous Supreme Court ruling does not mean that consuming psilocyn mushrooms is automatically a protected religious practice, however. The court ruled only that the earlier appeals court decision did not apply the necessarily “balancing test” between religious liberty and government interest, and they sent it back to that court.
In its ruling the court noted that New Hampshire’s state constitution is stronger than the federal constitution when it comes to religion because it expressly protects not just religious belief but also religious practices. The unanimous ruling was written by Associate Justice James Bassett.
It came in response to a 2017 case involving a Colebrook man who joined the Oratory of Mystical Sacraments branch of the Oklevueha Native American Church, which said he could “grow and use mushrooms as a religious sacrament in accordance with the church’s rules.” State Police discovered the hallucinogenic psilocyn mushrooms while in the man’s house on a different matter and arrested him. He was indicated on one count of possession of a controlled drug.
During subsequent appeals the defendant, Jeremy Mack, argued that he was protected by the state constitution’s religious freedom clause. The Attorney General’s office argued otherwise.
The high court’s decision swung on its interpretation of Part I, Article 5 of the state constitution, which has remained unchanged since the document was written in 1784. It says that “Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience and reason … provided he doth not disturb the public peace or disturb others in their religious worship.”
According to the court documents, Mack argued that the indictment should be dismissed because the public peace was not disturbed by his practice. He said his church requires mushrooms to be consumed in private and not around children, and prohibits the operate of vehicles and use of firearms while doing so.
The Attorney General’s office argued that breaking the law is an inherent disturbance of the peace, which would mean consuming illicit substances is not protected by religious freedom no matter how quietly it is done.
The 21-page ruling delved into such matters as the role of Massachusetts’ constitution in shaping New Hampshire’s constitution and an 1886 New Hampshire case in which beating a drum as part of a ceremony was ruled illegal despite the constitution because it “(had) a tendency … to distract the attention and interrupt the quiet of others.”
The ruling also discussed a 1990 U.S. Supreme Court ruling, Oregon v. Smith, which concerned consuming peyote as part of a religious ceremony, and the requirement of courts to “strike sensible balances between religious liberty and competing prior government interests.”
The full ruling can seen online: www.courts.state.nh.us/supreme/opinions/2020/2020072Mack.pdf.
