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New Hampshire Supreme Court Supports Freedom for Psychedelic Use in Religious Ceremonies

Psilocybe cubensis, magic mushrooms
Heady Vermont Staff
Heady Vermont Staff 29 Dec 2020

CONCORD, N.H. — A man convicted of possession of psilocybin mushrooms was wrongfully tried because his use of the psychedelic was part of his religious practices, New Hampshire’s highest court ruled last week.

The New Hampshire Supreme Court said that 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 unanimous ruling does not mean that consuming psilocybin 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.

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.”

While his conviction has not been overturned and the case is returning to the trial court level, it puts the defendant on much better footing. And if he’s effectively released from the charges, it could set a precedent in New Hampshire that might inspire challenges in other states with similar constitutional protections.

Unlike the First Amendment freedom of religious belief under the U.S. Constitution, New Hampshire’s Constitution explicitly protects actual religious practices so long as they don’t “disturb the peace.” That was a question before the justices: did Mack’s personal consumption of psilocybin mushrooms constitute an unlawful disturbance?

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.

Part I, Article 5 of the state constitution 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.”

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 psilocybin 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.”

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. –w Part I, Article 5

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.”

READ MORE: The full New Hampshire Supreme Court ruling.

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