The New Hampshire Supreme Court on Tuesday upended the 2018 conviction of a North Country resident for possession of psilocybin mushrooms, ruling that the conviction conflicts with the Native American-based religion he practices.
In its unanimous ruling, the four sitting justices said that the New Hampshire Constitution’s right of religion is stronger than protections under the U.S. Constitution, which requires a stricter balancing test in cases of religious use of illegal drugs.
According to the decision, Jeremy D. Mack of Colebrook had practiced a shamanic, Earth-based religion for years and in 2017 joined the Oratory of Mystical Sacraments branch of the Oklevueha Native American Church.
The church issued him a membership card, which allowed him to ingest the mushrooms sacramentally. The church had restrictions for the sacrament — it should be taken in seclusion, not in public or around children. And it should not be taken when operating a motor vehicle or shooting firearms.
Mack went on to become a minister in the church. Efforts to reach him on Tuesday through his public defenders were unsuccessful.
The justices said the trial judge in a Coos County Superior Court case erred in legal rulings following Mack’s conviction. The court remanded the case to the trial court level.
“We have long recognized that in Part I, Article 5, there is a broad, a general, a universal statement and declaration of the ‘natural and unalienable right’ of ‘every individual,’ of every human being, in the state, to make such religious profession, to entertain such religious sentiments, or to belong to such religious persuasion as he chooses, and to worship God privately and publicly in the manner and season most agreeable to the dictates of his own conscience and reason,’” wrote Supreme Court Justice James Bassett, quoting a 150-year-old opinion from 1868.
In 2018, Mack was convicted of psilocybin possession after state police discovered the mushrooms while searching for weapons that were under a confiscation order in an unrelated civil case.
Psilocybin is known for its hallucinogenic effects on users. The federal government classifies psilocybin as a Schedule 1 drug, which means it has a high potential for abuse and no accepted medical use. Other drugs in the category are heroin, LSD and marijuana.
Following his conviction, Mack’s lawyer asked trial Judge Peter Bornstein to throw out his conviction on religious grounds, and the veteran Superior Court judge refused.
While the First Amendment to the U.S. Constitution guarantees free exercise of religion, that had led some justices, including former U.S. Supreme Court Judge Antonin Scalia, to say that government had a compelling interest to enforce laws even if a potentially illegal activity is part of religious practices. Other cases have dealt with the drug peyote and with religious processions on streets.
Bassett rejected Scalia’s argument, preferring to rely on the New Hampshire Constitution.
He wrote that the U.S. Constitution protects religious beliefs, while the New Hampshire Constitution protects both beliefs and practices.
Part 1, Article 5 of the New Hampshire Constitution deems that every person has a “natural and unalienable right to worship God” according to his own conscience, and the person “shall not be hurt, molested or restrained” in doing so “provided he doth not disturb the public peace or disturb others in their religious worship.”
“The framers of our State Constitution expressly provided that these ‘rights of conscience could not be ... surrendered; nor could society or government have any claim or right to assume to take them away, or to interfere or intermeddle with them, except so far as to protect society against any acts or demonstrations of one sect or persuasion which might tend to disturb the public peace, or affect the rights of others,’” Bassett wrote, quoting the 1868 Supreme Court ruling.