We have written a lot lately about the Law on 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 federal laws and decisions affecting the religious use of psychedelics, although today we turn our attention to an important new government decision.
On December 22, 2020, the New Hampshire Supreme Court ruled a case of great concern to the religious use of psychedelics (opinion is here). In this case, a person had been convicted of possession of psilocybin and challenged their conviction to the Supreme Court on the grounds that the court should have dismissed the case because of his religious use of the substance. The court found that the defendant was a member of the Oklevueha Native American Church’s Oratory for Mystical Sacraments. This church had special rules for taking psilocybin to prevent things like public poisoning or driving while poisoned.
In particular, the defendant only pursued state challenges to his convictions. The New Hampshire state constitution (which has been recognized by the court and has broader protection than the federal constitution) gives the right to practice religious beliefs as long as they do not “disturb the peace,” and the decision was made on whether or not the defendant’s practice disturbed the peace.
The court first found that the accused had the right to represent the religious beliefs he had chosen and that it was not for the court to determine whether they were theologically true. That being said, this is an interesting position and one that I have argued elsewhere that the Drug Enforcement Administration (DEA) should maintain in its decisions about people seeking religious exemptions. See Griffen Thorne, How the DEA Disrupts Religious Use of Psychedelics, LAWYER – Professional Commentary, Oct 12, 2020. Therefore, the court accepted that the defendant’s religious beliefs were sincere and went on to see whether his practice disrupted the public peace.
The court’s analysis was lengthy, analyzing decisions from New Hampshire, other states, and even federal decisions, and eventually concluded that the court wrongly dismissed the case. Citing cases such as the Gonzales v. O Centro at the US Supreme Court, which we discussed here, the court found that there is a religious practice that violates a generally applicable law (ie, a criminal law that prohibits the use of psychedelics). A balance test must be carried out. The petitioner must first demonstrate that the law places a significant burden on his religious practice, and the government must then demonstrate that its action is necessary and closely tailored to the attainment of an overriding government interest. The Supreme Court therefore ruled that the court made a mistake in failing to use such a test.
What does this mean for the accused? His case is not over. The Supreme Court referred the case back for further review by the State Court, which must now provide more evidence and review the above balancing test. Most likely, prosecutors will take the case forward, arguing that even under a balancing test, they are still right (for what it’s worth, the federal government has lost on such arguments in the Gonzales case, which the New Hampshire Supreme Court objectively ruled similar to this case). It is still possible for the accused to be convicted, but this case certainly gives him better reasons to fight it.
What does this decision mean for religious use in general? Unfortunately, it’s pretty limited. The decision does not affect federal law and I have stated that dealing with the DEA on this point can be extremely difficult. While the decision is binding in New Hampshire courts, it does not affect laws in any other state. However, part of the decision analyzed a Massachusetts decision and found that Massachusetts had an essentially similar provision in its state constitution. Hence, this ruling provides compelling guidance to any state court in a state with similar constitutional provisions.
Although the choice is fairly limited, it again reflects changed attitudes towards both religious freedom and the use of psychedelics. We’ll keep posting on this topic, so please stay tuned to the law Law Blog.