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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Coos
No. 2019-0171
THE STATE OF NEW HAMPSHIRE
v.
JEREMY D. MACK
Argued: February 13, 2020
Opinion Issued: December 22, 2020
Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior
assistant attorney general, on the brief and orally), for the State.
Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.
BASSETT, J. Following a jury trial in Superior Court (Bornstein, J.), the
defendant, Jeremy D. Mack, was convicted on one count of possession of a
controlled drug: psilocyn and/or psilocybin, see RSA 318-B:2, I (2017); RSA
318-B:1-a, I (2017); N.H. Admin. R., He-C 501.03(a) (incorporating by reference
the federal schedules of controlled substances, 21 C.F.R. §§ 1308.11-15 (2019),
into the New Hampshire Controlled Drug Act), which he possessed in the form
of mushrooms. On appeal, the defendant argues that, because Part I, Article 5
of the New Hampshire Constitution protects his right to possess and use
mushrooms as part of his religious worship, so long as he does not “disturb the
public peace,” the trial court erred by denying his pre-trial motion to dismiss.
This appeal requires us to interpret Part I, Article 5, which provides:
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.
N.H. CONST. pt. I, art. 5. Specifically, the outcome of this appeal turns on our
interpretation of the phrase “disturb the public peace.” Because we now
articulate the test required by Part I, Article 5, we vacate the trial court’s order
and remand.
The pertinent facts are as follows. In 2017, the defendant, after
practicing “[s]hamanic, earth-based religion” for years, joined the Oratory of
Mystical Sacraments branch of the Oklevueha Native American Church. After
joining the church, the defendant was issued a membership card specifying
that he “met the standard of being a sincere member of the Native American
Church,” which qualified him to grow and use mushrooms as a religious
sacrament in accordance with the church’s rules. The defendant testified that
the church has strict rules surrounding the taking of the sacraments, which
must be done in seclusion. The defendant further testified that the rules
prohibit taking mushrooms in public or around children, and also prohibit the
operation of vehicles and the use of firearms while doing so. After joining the
church, the defendant completed additional training and became a minister
within the church.
In November 2017, two New Hampshire State Police troopers went to the
defendant’s home to serve him with an order of protection arising out of an
unrelated civil matter pending in another state. The order required the
troopers to take custody of any firearms owned by the defendant. Although the
defendant was not at home, his mother, who lived with him, allowed the
troopers into the residence. Speaking with the troopers on the telephone, the
defendant gave the troopers permission to take custody of his firearms, which
were located in a safe in the basement of his home. When the troopers opened
the safe, they observed mushrooms on the top shelf, and seized them.
Approximately one week later, the defendant voluntarily met with one of
the troopers at the Colebrook Police Department. During the meeting, the
defendant explained to the trooper that he possessed and used the mushrooms
as part of his religious worship, and that he did so in accordance with the rules
of the Oklevueha Native American Church. He further explained his belief that
it was legal for him to do so as part of his religious worship, based on his
2
understanding of certain out-of-state court rulings and other legal information
provided by the church.
In April 2018, the defendant was indicted on one count of possession of a
controlled drug. See RSA 318-B:2, I. In July 2018, the defendant moved to
dismiss the indictment on the grounds that it violated his right to freely
exercise his religion under the First Amendment to the United States
Constitution, and Part I, Article 5 of the New Hampshire Constitution. See U.S.
CONST. amend. 1; N.H. CONST. pt. I, art. 5. The State objected. Following a
hearing in September 2018, the trial court denied the defendant’s motion to
dismiss.
In its order, the trial court considered the defendant’s claims under both
the Federal and State Constitutions. The trial court observed that, prior to the
decision of the United States Supreme Court in Employment Division,
Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990),
superseded by statute, Religious Freedom Restoration Act of 1993, Pub. L. No.
103-141, 107 Stat. 1488, any law that substantially burdened religious
conduct was deemed to violate the Free Exercise Clause of the First
Amendment unless the law was shown to serve a compelling government
interest. In Smith, the Supreme Court dispensed with the “compelling
government interest” test, and held that “the right of free exercise does not
relieve an individual of the obligation to comply with a valid and neutral law of
general applicability on the ground that the law proscribes (or prescribes)
conduct that his religion prescribes (or proscribes).” Employment Div., Ore.
Dept. of Human Res. v. Smith, 494 U.S. at 879, 885-90 (quotation omitted).
Accordingly, the trial court determined that, under the Federal Constitution,
“the State is not required to show a compelling government interest” because
“the state law making it illegal to possess a controlled drug in the State of New
Hampshire is a facially neutral law that applies to every person in the State
regardless of the person’s religious beliefs or lack thereof.”
With regard to the State Constitution, the trial court observed that we
had employed the reasoning from Smith in a free exercise case involving Part I,
Article 5: State v. Perfetto, 160 N.H. 675, 679 (2010). Finding that, in Perfetto,
we had adopted Smith, the trial court applied the same reasoning as it had
under the Federal Constitution, and denied the defendant’s motion to dismiss,
concluding that “the defendant’s possession of psilocyn and/or psilocybin is
prohibited under New Hampshire law, and because that prohibition is
constitutional, the State may, consistent with the [federal] Free Exercise Clause
and Part I, Article 5 of the New Hampshire Constitution, prosecute the
defendant for said possession.” The trial court denied the defendant’s motion
to reconsider, and the defendant was later convicted by a jury. This appeal
followed.
3
On appeal, the defendant does not advance any appellate arguments
under the Federal Constitution; rather, he argues that the trial court erred by
denying his motion to dismiss under Part I, Article 5 of the New Hampshire
Constitution. The defendant contends that the plain language and original
meaning of Part I, Article 5 bar the State “from prosecuting an individual for
worshipping God in the manner and season most agreeable to the dictates of
his own conscience, except for conduct that disturbs the public peace or
disturbs others in their religious worship.” (Quotations and brackets omitted.)
The defendant contends that his possession and use of mushrooms did not
“disturb the public peace” within the original meaning of Part I, Article 5. He
argues that the State Constitution provides greater protection to religious
conduct than the Federal Constitution, and that we did not and should not
adopt Smith because it is contrary to the plain language and original meaning
of Part I, Article 5. The State does not dispute that the defendant’s possession
and sacramental use of mushrooms constitutes religious conduct motivated by
a sincerely held religious belief.
We first consider the State’s threshold contention that the defendant
failed to preserve his arguments regarding the original meaning of Part I,
Article 5 and the applicability of Smith. See Halifax-American Energy Co. v.
Provider Power, LLC, 170 N.H. 569, 574 (2018) (observing that we generally
“decline to review any argument that the defendants did not raise before the
trial court” (quotation omitted)). From the outset, the defendant has
maintained that his conduct is protected by Part I, Article 5, provided that he
does not disturb the public peace or disturb others in their religious worship.
Additionally, with regard to Smith, the trial court relied heavily on that decision
in its order, and the parties had advanced arguments regarding Smith in their
pleadings and during the hearing on the defendant’s motion to dismiss.
Accordingly, we find that the defendant’s arguments are preserved for our
review.
We now turn to the merits of the defendant’s arguments. As we noted at
the outset, the defendant’s arguments require us to interpret Part I, Article 5,
and, in particular, the “disturb the public peace” clause. If, as the State
contends, we adopted Smith in Perfetto, then the application of Smith would be
dispositive. Accordingly, we examine Perfetto.
In Perfetto, the defendant entered into a plea agreement whereby he pled
guilty to numerous counts of possession of child pornography. Perfetto, 160
N.H. at 676. As part of his plea agreement, the defendant was prohibited from
having contact with minors under the age of seventeen. Id. at 676-77.
Following his release from state prison, the defendant moved to amend that
condition — which was a part of his remaining suspended sentences — so that
he could attend meetings at a particular congregation of Jehovah’s Witnesses.
Id. The trial court denied his motion. Id. at 677.
4
On appeal, the defendant argued that “by not amending the conditions of
his suspended sentences to allow him to attend the congregation of his choice,
he [was] deprived of the right to the free exercise of his religion.” Id. In
affirming the trial court, we observed that “[t]o remain at liberty under a
suspended sentence is not a matter of right but a matter of grace,” and that the
defendant, like “probationers, . . . parolees and prisoners,” was “properly . . .
subject to limitations from which ordinary persons are free,” as long as the
“limitations in the aggregate . . . serve the ends of probation.” Id. at 678
(quotations and brackets omitted). Further, we noted that “a court will not
strike down conditions of release, even if they implicate fundamental rights, if
such conditions are reasonably related to the ends of rehabilitation and
protection of the public from recidivism.” Id. at 678 (quotation omitted).
Additionally, in declining the defendant’s invitation to require the State to
show a compelling government interest in order to justify imposing restrictions
on a probationer’s fundamental rights, we noted that “the condition in this case
does not directly infringe on the defendant’s free exercise of his religion: it is
instead facially neutral and applies to the defendant’s conduct regardless of
whether he is in a church or elsewhere.” Id. at 678-79. We then concluded
that “[u]nder these circumstances, we see no reason to require the State to
show a compelling government interest.” Id. at 679. We cited Smith for the
proposition that “facially neutral, generally applicable laws that incidentally
touch upon an individual’s free exercise of religion do not require the
government to show a compelling interest.” Id.
We did not adopt the reasoning of Smith in Perfetto — the case did not
require that we either adopt or reject the Smith analysis. The dispositive
principle in Perfetto was that the defendant, like “probationers, . . . parolees
and prisoners,” was “properly . . . subject to limitations from which ordinary
persons are free.” Id. at 678 (quotations and brackets omitted). Because “the
suspension condition [was] reasonably related to the rehabilitation or
supervision of the defendant,” the condition did not improperly deprive him of
the right to freely exercise his religion. Id. at 680. Having so found, we had no
occasion to decide whether the reasoning from Smith would be consonant with
Part I, Article 5 of the State Constitution.1
1 In Perfetto, our single citation to Smith was introduced with a “Cf.” signal, which means
“compare,” and is used in legal writing when the “[c]ited authority supports a proposition different
from the main proposition but sufficiently analogous to lend support.” The Bluebook: A Uniform
System of Citation R. 1.2(a), at 59 (Columbia Law Review Ass’n et al. eds., 20th ed. 2015). We
cited Smith merely to support our conclusion that, under the particular circumstances presented
in Perfetto, there was no need for the State to show a compelling government interest. See
Perfetto, 160 N.H. at 678-80.
5
Moreover, Perfetto is distinguishable on its facts. Here, the defendant is
not subject to a suspended sentence, nor is he a probationer, parolee, or
prisoner. Accordingly, the defendant, as an “ordinary person[],” is not subject
to restrictions on his religious freedom unless those restrictions pass muster
under Part I, Article 5. See id. at 678. In Perfetto, we observed that the
defendant “may still practice his religion in ways that do not violate the
condition of his sentences,” such as through “the use of books and video and
audio recordings,” or by “arrang[ing] bible study with elders from his
congregation,” or even by “attend[ing] meetings at a congregation where minors
are not present.” Id. at 679-80. Here, however, the defendant does not have
an alternative means of engaging in this religious ritual — he is categorically
prohibited from possessing or using psilocyn and/or psilocybin mushrooms.
See RSA 318-B:2, I.
Having concluded that, in Perfetto, we did not adopt Smith, and that
Perfetto itself does not control the outcome here, we must now consider the
broader and fundamental question presented by this appeal: whether the
defendant’s possession and use of psilocyn and/or psilocybin mushrooms is
protected by Part I, Article 5 of the State Constitution. The defendant argues
that, because he was “worshipping God in the manner and season most
agreeable to the dictates of his own conscience,” and because his conduct did
not “disturb the public peace,” Part I, Article 5 bars the State from prosecuting
him. (Quotations omitted.) The State counters that Part I, Article 5 does not
protect the defendant’s conduct because “disturb the public peace,” as used in
Part I, Article 5, means “violate a generally applicable law.” (Quotation
omitted.)
“As the final arbiter of state constitutional disputes, we review the trial
court’s construction of constitutional provisions de novo.” HSBC Bank USA v.
MacMillan, 160 N.H. 375, 376 (2010). “When our inquiry requires us to
interpret a provision of the constitution, we must look to its purpose and
intent. The first resort is the natural significance of the words used by the
framers. The simplest and most obvious interpretation of a constitution, if in
itself sensible, is most likely to be that meant by the people in its adoption.”
Duncan v. State, 166 N.H. 630, 640 (2014) (quotations and citations omitted).
Additionally, “we view the language used in light of the circumstances
surrounding its formulation.” City of Concord v. State of N.H., 164 N.H. 130,
134 (2012). “Reviewing the history of the constitution and its amendments is
often instructive, and in so doing, it is the court’s duty to place itself as nearly
as possible in the situation of the parties at the time the instrument was made,
that it may gather their intention from the language used, viewed in light of the
surrounding circumstances.” State v. Addison (Capital Murder), 165 N.H. 381,
565-66 (2013) (quotation omitted). “The language used by the people in the
great paramount law which controls the legislature as well as the people, is to
be always understood and explained in that sense in which it was used at the
6
time when the constitution and the laws were adopted.” Id. at 566 (quotation,
brackets, and ellipsis omitted).
Additionally, when interpreting the New Hampshire Constitution, we
often look to interpretations of comparable state and federal constitutional
provisions in order to inform and guide our analysis. State v. Briand, 130 N.H.
650, 653 (1988). Interpretations by other courts are most persuasive when the
language of the constitutional provision at issue is similar to the wording in our
constitution. See, e.g., Opinion of the Justices (Quorum under Part II, Article
20), 173 N.H. __, __ (decided November 17, 2020) (slip op. at 5) (finding the
history of the Federal Quorum Clause instructive “[b]ecause of the similarity in
language” between the Federal Quorum Clause and the quorum clause of the
New Hampshire Constitution). When “the constitutional provision[] at issue
contain[s] language dissimilar to ours,” interpretations by other courts are of
more “limited value.” Claremont School Dist. v. Governor, 138 N.H. 183, 186
(1993). “Given that New Hampshire shares its early history with
Massachusetts, that we modeled much of our constitution on one adopted by
Massachusetts four years earlier, and that the Massachusetts Constitution
contains a nearly identical provision regarding” the free exercise of religion, “we
give weight to the interpretation given that provision by the [Massachusetts]
Supreme Judicial Court.” Id. It is important to note, however, that “when this
court cites federal or other State court opinions in construing provisions of the
New Hampshire Constitution or statutes, we rely on those precedents merely
for guidance and do not consider our results bound by those decisions.” State
v. Ball, 124 N.H. 226, 233 (1983).
Part I, Article 5 was part of the New Hampshire Constitution of 1784,
and remains unchanged to this day. See 20 Early State Papers of New
Hampshire 10 (A. Batchellor ed. 1891). 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.” Hale v. Everett, 53 N.H. 9,
61 (1868). “And,” we observed, “if he do it in a way not to disturb others, that
right is without exception and without qualification.” Id. (emphasis added). As
we explained: “The framers of the constitution were very careful to state and
declare the distinction between mere civil or political rights, although they were
‘natural, essential, and inherent’ rights belonging to ‘all men’ (Art. II), and the
‘rights of conscience,’ which had the additional quality and excellence of being
‘unalienable.’” Id. “These merely civil or political rights could be surrendered
to the government or to society (Art. III) in order to secure the protection of
other rights, but the rights of conscience could not be thus surrendered,” we
continued, nor could the government or society “have any claim or right to
7
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.” Id. Indeed, we observed that such rights of conscience are not
“conferred” by the State Constitution, but, rather, are “declared, stated,
asserted, as something inherent in the people—a right they had before this
declaration of rights, as much as after.” Id. at 60. We have reaffirmed these
principles over the years. See, e.g., Glover v. Baker, 76 N.H. 393, 420-21
(1912); State v. Cox, 91 N.H. 137, 141-42, 145-46 (1940); Opinion of the
Justices (Choice in Education), 136 N.H. 357, 359 (1992).
Here the defendant “had the constitutional right to entertain such
opinions as [he] chose, and to make a religion of them.” Baker, 76 N.H. at 420.
“Whether [his] opinions are theologically true, the court[s] are not competent to
decide.” Id. (quotation omitted). Indeed, “[i]n this country there is absolute
religious equality, and no discrimination in law is made between different
religious creeds or forms of worship.” Webster v. Sughrow, 69 N.H. 380, 381
(1898). Because, in this case, the State does not dispute that the defendant’s
possession and sacramental use of mushrooms constitutes religious conduct
motivated by a sincerely held religious belief, the critical question is whether
the defendant’s “worshipping [of] God in the manner and season most
agreeable to the dictates of his own conscience” “disturb[ed] the public peace”
within the meaning of Part I, Article 5. N.H. CONST. pt. I, art. 5 (emphasis
added).
We begin with a survey of our case law interpreting the phrase “disturb
the public peace.” N.H. CONST. pt. I, art. 5. In State v. White, the defendants
were charged and convicted of beating a drum, without advance permission,
within the compact part of a town in violation of a statute “designed for the
security of the public convenience, safety, and tranquillity.” State v. White, 64
N.H. 48, 49 (1886). On appeal, the defendants argued that their actions were
protected by Part I, Article 5 because their actions were done in accordance
with their sense of religious duty, and, therefore, they were worshiping in
accordance with the dictates of their own consciences. Id. In holding that it
was not a legal justification “that the act was done in the performance of
religious services in accordance with the religious belief of the [defendants],”
id., we reasoned that, although Part I, Article 5 secures to every person
“unlimited freedom of conscience and religious belief and profession,” it
“affords no justification for acts or practices in religious services which disturb
the public peace, or disturb others in their religious worship.” Id. at 50.
We went on to explain that “a statute prohibiting acts having a tendency
to endanger the public peace, or to distract the attention and interrupt the
quiet of others, is not in conflict with this constitutional provision, although the
prohibited acts may form a part of the services of religious worship.” Id.
8
“Religious liberty, as recognized and secured by the constitution,” we
continued, “does not mean a license to engage in acts having a tendency to
disturb the public peace under the form of religious worship, nor does it
include the right to disregard those regulations which the legislature have
deemed reasonably necessary for the security of public order.” Id. Accordingly,
we concluded that “[a] reasonable measure of prevention to avoid disturbance
is not an infringement of constitutional rights.” Id.
In State v. Cox, each of the defendants was convicted of a misdemeanor
for taking part in a procession on the public streets of Manchester without a
license, as required by statute. Cox, 91 N.H. at 138. The defendants were
members of a group of more than eighty Jehovah’s Witnesses who participated
in an “information march” throughout the city, carrying signs and placards,
and distributing leaflets. Id. at 138-39. On appeal, the defendants challenged
the constitutionality of the statute under Part I, Article 5, and under Part I,
Article 22 (liberty of the press) of the State Constitution. Id. at 140. Quoting
White, we recognized that “[t]he state has authority to make regulations as to
the time, mode, and circumstances under which parties shall assert, enjoy, or
exercise their rights of highway use without coming in conflict with any of
those constitutional principles which are established for the protection of
private rights and private property,” and that such regulations “are valid if they
reasonably serve to prevent any substantial disturbance which is an
interference of normal travel.” Id. at 141-42 (quotation and brackets omitted).
Therefore, reasoning that “[t]he right to worship is not a right to disturb others
in their worship, and the right to free speech and writing is not one to force
speech or writing on an unwilling audience or readers,” we found that “[i]t is
not unreasonable to say that the sentiment displayed had a provocative
tendency to a disturbance of the peace in view of the manner, place and time of
its publication.” Id. at 145-46. After observing that the defendants were
entitled to, but did not, apply for a license allowing them to march “when,
where and as they did,” so long as the march would not have “unduly
disturbed” the “convenience of the public in the use of the streets,” we affirmed
the defendants’ convictions, concluding that “[t]he measure of control fixed by
the act is permissible in the public interest without invasion of the individual
rights, and as a due exercise of legislative powers granted by the State
Constitution.” Id. at 146.
Next, we look to the Massachusetts Supreme Judicial Court’s
interpretation of Part I, Article 2 of the Massachusetts Constitution — a
religious liberty provision that is substantially identical to Part I, Article 5 of
the New Hampshire Constitution.2 In Commonwealth v. Nissenbaum, the
2 Part I, Article 2 of the Massachusetts Constitution provides: “It is the right as well as the duty of
all men in society, publicly, and at stated seasons to worship the SUPREME BEING, the great
Creator and Preserver of the universe. 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
9
Massachusetts Supreme Judicial Court addressed the question of whether Part
I, Article 2 “protects the possession of marihuana and hashish for religious
purposes.” Com. v. Nissenbaum, 536 N.E.2d 592, 593, 595-96 (Mass. 1989).
In interpreting the “disturb the public peace” clause of Part I, Article 2, the
court observed that, in 1780, “the General Court released a statement . . .
pledg[ing] to protect professors of all denominations, demeaning themselves
peaceably and as good subjects of the Commonwealth, in the free exercise of
the rights of conscience,” id. at 595-96 (quotation omitted), that “every
indictment, whether for a common law or statutory offense, concludes by
alleging that the offense was committed ‘against the peace of the state,’” id. at
596, and that the United States Supreme Court had, in other contexts, found
that “‘all crimes are offenses against the peace,’” id. (quoting Williamson v.
United States, 207 U.S. 425, 444 (1908)). Accordingly, the court found that
“[i]n a broad sense, all offenses are breaches of the public peace.” Id. The
Supreme Judicial Court then proceeded to “[b]alanc[e] the competing interests,”
and, “giving significant weight and deference to the Legislature’s determination
that the possession, distribution, and cultivation of marihuana and hashish
disturb the public order, although not controlled by that determination,” the
court concluded that “such conduct is not protected by art. 2 even if motivated
by sincere religious purpose.” Nissenbaum, 536 N.E.2d at 596. The court
noted that it “agree[d] with the unanimous [federal] precedent that recognizes
both an overriding governmental interest in regulating such substances and
the practical impossibility of doing so and at the same time accommodating
religious freedom.” Id.
In a dissent, Justice Liacos made several important points. He
maintained that the court relied too heavily on federal precedent, and failed to
address the substantial linguistic differences between the First Amendment to
the Federal Constitution — which provides, in relevant part, that “Congress
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof,” U.S. CONST. amend. I — and Part I, Article 2 of the
Massachusetts Constitution. Nissenbaum, 536 N.E.2d at 600 (Liacos, J.,
dissenting). He explained that “the language of art. 2, unlike the First
Amendment, strikes a clearly stated constitutional balance that provides that
the exercise of religion in this Commonwealth is protected ‘in the manner and
season most agreeable to the dictates of a person’s own conscience . . .
provided he doth not disturb the public peace, or obstruct others in their
religious worship.’” Id. (brackets omitted). Accordingly, Justice Liacos
disagreed with the court’s holding that “[i]n a broad sense, all offenses are
breaches of the public peace,” and stated that “[i]mplicit in [that] . . . approach
is the thought that legislative enactments can amend the Constitution of the
dictates of his own conscience; or for his religious profession or sentiments; provided he doth not
disturb the public peace, or obstruct others in their religious worship.” MASS. CONST. pt. I, art.
2.
10
Commonwealth. Surely, this stands constitutional analysis on its head.” Id.
(quotation omitted).
Citing prior Massachusetts case law discussing the elements of the crime
of disturbing the peace, Justice Liacos observed that “[t]he provision against
‘disturbers of the peace’ proscribes conduct which tends to annoy all good
citizens and does in fact annoy anyone present not favoring it.” Id. at 601
(quotation omitted). Accordingly, Justice Liacos stated that, “[t]o the extent
that a person performs an act motivated by sincere religious beliefs and as part
of a religious ritual or ceremony, the act will be protected by art. 2 so long as it
harms no victim.” Id. at 601-02. Justice Liacos concluded that, because “[t]he
defendants were entitled to have the jury consider whether, in light of the
evidence presented, the defendants were protected by the provisions of art. 2,”
he would vacate the defendants’ convictions and grant them a new trial. Id. at
602.
Five years later, in a concurring opinion in Attorney General v. Desilets,
Justice Liacos expressed similar concerns. See Attorney General v. Desilets,
636 N.E.2d 233, 245-46 (Mass. 1994) (Liacos, C.J., concurring). In Desilets,
the Massachusetts Supreme Judicial Court was faced with the question of
whether the enforcement of a statute mandating that landlords not
discriminate against unmarried couples when renting apartments would,
under the Massachusetts and Federal Constitutions, violate the free exercise
rights of the defendants — who declined to rent an apartment to an unmarried
couple based on the defendants’ religious belief that they should not facilitate
what they regarded as “sinful cohabitation.” Id. at 234-35.
The court first addressed the protections afforded by Article 46, § 1 of the
Amendments to the Massachusetts Constitution — a provision that is similar
to the First Amendment to the Federal Constitution.3 Id. at 235. Although
much of the majority opinion focused on Article 46, § 1, the court reasoned
that similar principles applied to the Part I, Article 2 analysis. See id. at 242-
43. Accordingly, the case is instructive. The court explained that in 1990, one
year after it had decided Nissenbaum, the United States Supreme Court had, in
Smith, “substantially altered its standard for determining whether conduct was
protected under the free exercise of religion clause.” Id. at 235-36. The
Supreme Judicial Court noted that Smith was “a much criticized opinion that
weakened First Amendment protections for religious conduct.” Id. at 236.
After observing that it “should reach its own conclusions on the scope of the
protections of art. 46, § 1,” the court held that it would “adhere to the
standards of earlier First Amendment jurisprudence”; namely, “the balancing
test that the [United States] Supreme Court had established under the free
3Article 46, § 1 of the Amendments to the Massachusetts Constitution provides: “No law shall be
passed prohibiting the free exercise of religion.” MASS. CONST. amend. art. 46, § 1.
11
exercise of religion clause” in prior decisions. Id. The court noted that that
standard “appears to be the same as that prescribed by the Religious Freedom
Restoration Act of 1993,” which was intended by Congress to counter the
United States Supreme Court’s decision in Smith and “restore the compelling
interest test.” Id. at 236 n.5 (quotation omitted).
Accordingly, the court stated that its task would be “to determine
whether the defendants have shown that the [statutory] prohibition . . .
substantially burdens their free exercise of religion, and, if it does, whether the
Commonwealth has shown that it has an interest sufficiently compelling to
justify that burden,” and that “the granting of an exemption to people in the
position of the defendants would unduly hinder that goal.” Id. at 236, 238.
Further, the court explained, “[t]he general objective of [the statute] . . . cannot
alone provide a compelling State interest that justifies the application of [the
statute] in disregard of the defendants’ right to free exercise of their religion.”
Id. at 238. “The analysis must be more focused.” Id.
The court, after acknowledging that the application of the balancing test
could present practical challenges — such as proving or disproving the
sincerity of a particular religious belief, or complicating the enforcement of
certain laws — stated that it would “not readily subscribe to a rule that
justified the denial of constitutional rights simply because the protection of
those rights required special effort.” Id. at 240. It then applied the balancing
test, determining that, because the statute at issue affirmatively obligated the
defendants to engage in conduct contrary to their sincerely held religious
beliefs, it substantially burdened their right to the free exercise of religion. Id.
at 237-38. The court also determined that, given the record, “the uncontested
material facts disclose no basis for ruling that the Commonwealth can or
cannot meet its burden of establishing that it has a compelling interest that
can be fulfilled only by denying the defendants an exemption from [the
statute].” Id. at 241. Accordingly, the court held that, under Article 46, § 1,
the trial court should not have granted summary judgment in favor of the
defendants, and that the Commonwealth should have the opportunity to prove
its case at trial. Id.
The court then addressed the protections for free exercise of religion
arising under Part I, Article 2 of the Massachusetts Constitution. Id. The
court stated that when an individual’s religious practices do not “disturb the
public peace or obstruct others in their religious worship,” Part I, Article 2
“gives absolute protection to the manner in which one worships God. No
balancing of interests, the worshiper’s, on the one hand, and the government’s,
on the other, is called for when neither exception applies.” Id. at 242
(quotation omitted). In contrast, when an individual’s religious practices do
“disturb the public peace or obstruct others in their religious worship,” then,
under Part I, Article 2, “there would have to be a balancing of [the] competing
12
interests.” Id. (quotation omitted). The court then determined that it had no
occasion to engage in a separate balancing under Part I, Article 2 because,
although the defendants’ “conduct in violation of a State statute would disturb
the peace,” the balancing under Part I, Article 2 would be similar to that
undertaken under Article 46, and no more favorable. Id. at 242-43.
Accordingly, the court vacated the judgment in favor of the defendants, and
remanded the case to the trial court to apply the balancing test in the first
instance. See id. at 243.
We also look to interpretations of the Free Exercise Clause of the First
Amendment to inform and guide our construction of Part I, Article 5. See
Briand, 130 N.H. at 653 (examining federal and other state court decisions “to
inform and guide our analysis” in interpreting another provision of the State
Constitution). Of particular import are Smith and free exercise cases that
preceded and followed it. As Judge Barbadoro of the United States District
Court for the District of New Hampshire observed, prior to Smith, “any law that
substantially burdened religiously motivated conduct was deemed to violate the
First Amendment’s Free Exercise Clause unless the law served a compelling
state interest.” Gary S. v. Manchester School Dist., 241 F. Supp. 2d 111, 120
(D.N.H. 2003). In Smith, the Supreme Court was faced with the question of
whether the First Amendment “permits the State of Oregon to include
religiously inspired peyote use within the reach of its general criminal
prohibition on use of that drug, and thus permits the State to deny
unemployment benefits to persons dismissed from their jobs because of such
religiously inspired use.” Smith, 494 U.S. at 874. Answering in the
affirmative, the Court, in an opinion authored by Justice Scalia, dispensed with
the “compelling state interest” requirement that it had first announced in
Sherbert v. Verner, 374 U.S. 398, 403 (1963), reasoning that recent decisions
“have consistently held that the right of free exercise does not relieve an
individual of the obligation to comply with a valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes) conduct that
his religion prescribes (or proscribes).” Smith, 494 U.S. at 879, 885-90
(quotation omitted). Central to the Court’s reasoning was the proposition that
laws “are made for the government of actions, and while they cannot interfere
with mere religious belief and opinions, they may with practices.” Id. at 879
(quotation omitted). Justice Scalia, quoting from an 1878 decision of the
Court, queried: “Can a man excuse his practices to the contrary because of his
religious belief? To permit this would be to make the professed doctrines of
religious belief superior to the law of the land, and in effect to permit every
citizen to become a law unto himself.” Id. (quotation omitted).
Accordingly, the Court held that “an individual’s religious beliefs [do not]
excuse him from compliance with an otherwise valid law prohibiting conduct
that the State is free to regulate.” Id. at 878-79. The Court acknowledged that
“leaving accommodation to the political process will place at a relative
13
disadvantage those religious practices that are not widely engaged in,” but
called this an “unavoidable consequence of democratic government” that “must
be preferred to a system in which each conscience is a law unto itself or in
which judges weigh the social importance of all laws against the centrality of all
religious beliefs.” Id. at 890.
The holding in Smith was controversial. In response to Smith, in 1993
Congress passed the Religious Freedom Restoration Act (RFRA) in order to
“restore the compelling interest test . . . and to guarantee its application in all
cases where free exercise of religion is substantially burdened.” 42 U.S.C.
§ 2000bb(b) (2012). In 1997, the Supreme Court held that Congress had
exceeded its constitutional authority under the Fourteenth Amendment to the
United States Constitution when it imposed RFRA’s compelling interest test on
the states as well as the federal government. City of Boerne v. Flores, 521 U.S.
507, 532-36 (1997), superseded by statute on other grounds, Religious Land
Use and Institutionalized Persons Act of 2000, Pub. L. No. 106-274, 114 Stat.
803. City of Boerne is relevant to our analysis not for its holding, but rather
because of the colloquy between Justice Scalia, who defended and expanded
upon his analysis in Smith, and Justice O’Connor, who argued that Smith was
wrongly decided. See City of Boerne, 521 U.S. at 537-44 (Scalia, J.,
concurring), 544-65 (O’Connor, J., dissenting). Especially instructive is their
exchange regarding the free exercise provisions included in state constitutions
that were adopted before — or contemporaneously with — the Federal
Constitution and the Bill of Rights. See id. at 538-40 (Scalia, J., concurring),
552-57 (O’Connor, J., dissenting). Each focused on clauses in state
constitutions similar to the “disturb the public peace” clause in the New
Hampshire Constitution. See id. Indeed, both Justices specifically referenced
Part I, Article 5 of the New Hampshire Constitution. See id. at 538-39 (Scalia,
J., concurring), 553 (O’Connor, J., dissenting).
Justice Scalia wrote: “At the time these provisos were enacted, keeping
‘peace’ and ‘order’ seems to have meant, precisely, obeying the laws. ‘[E]very
breach of a law is against the peace.’ Queen v. Lane, 6 Mod. 128, 87 Eng. Rep.
884, 885 (Q.B. 1704).” Id. at 539 (Scalia, J., concurring). He explained that
“[e]ven as late as 1828, when Noah Webster published his American Dictionary
of the English Language, he gave as one of the meanings of ‘peace’: ‘8. Public
tranquility; that quiet, order and security which is guaranteed by the laws; as,
to keep the peace; to break the peace.’ 2 An American Dictionary of the
English Language 31 (1828).” Id. at 539-40. According to Justice Scalia,
“[t]his limitation upon the scope of religious exercise would have been in accord
with the background political philosophy of the age (associated most
prominently with John Locke), which regarded freedom as the right ‘to do only
what was not lawfully prohibited,’ West, The Case Against a Right to Religion-
Based Exemptions, 4 Notre Dame J. L., Ethics & Pub. Pol’y 591, 624 (1990).”
Id. at 540. He reasoned that, “‘[t]hus, the disturb-the-peace caveats apparently
14
permitted government to deny religious freedom, not merely in the event of
violence or force, but, more generally, upon the occurrence of illegal actions.’
Hamburger, [A Constitutional Right of Religious Exemption: An Historical
Perspective, 60 Geo. Wash. Law Rev. 915, 918-19 (1992)].” Id.
Justice O’Connor offered a different perspective: “The language used in
these state constitutional provisions . . . strongly suggests that, around the
time of the drafting of the Bill of Rights, it was generally accepted that the right
to ‘free exercise’ required, where possible, accommodation of religious practice.”
Id. at 554 (O’Connor, J., dissenting). “If not,” and “if the Court was correct in
Smith that generally applicable laws are enforceable regardless of religious
conscience,” she explained, “there would have been no need for these
documents to specify, as the New York Constitution did, that rights of
conscience should not be construed as to excuse acts of licentiousness, or
justify practices inconsistent with the peace or safety of the State.” Id.
(quotation and brackets omitted). She reasoned that “[s]uch a proviso would
have been superfluous. Instead, these documents make sense only if the right
to free exercise was viewed as generally superior to ordinary legislation, to be
overridden only when necessary to secure important government purposes.”
Id. at 554-55. Justice O’Connor noted that “[the] practice of excusing religious
pacifists from military service demonstrates that, long before the First
Amendment was ratified, legislative accommodations were a common response
to conflicts between religious practice and civil obligation.” Id. at 559.
“Notably,” she said, “the Continental Congress exempted objectors from
conscription to avoid ‘violence to their consciences,’ explicitly recognizing that
civil laws must sometimes give way to freedom of conscience.” Id. (quoting
Michael W. McConnell, The Origins and Historical Understanding of Free
Exercise of Religion, 103 Harv. L. Rev. 1409, 1468-69 (1990)).4
Also instructive is the 2006 opinion of the Supreme Court in Gonzales v.
O Centro Espirita Beneficente Uniao do Vegetal, as the case is factually similar
to the case before us, and is an example of the Court’s application of the
“compelling interest” balancing test mandated by RFRA. See Gonzales v. O
Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). In
Gonzales, the Supreme Court considered whether a sect of Christian Spiritists
was entitled to a preliminary injunction prohibiting the federal government
from interfering with its members’ religious practice of “receiv[ing] communion
by drinking a sacramental tea, brewed from plants . . . that contain[] a
hallucinogen regulated under the Controlled Substances Act.” Id. at 423, 425.
4 The article cited by Justice O’Connor, authored by Professor Michael McConnell before Smith
was decided by the Supreme Court, provides an informative and thorough analysis of the
historical and philosophical underpinnings of the legal protections afforded to the free exercise of
religion in the United States. Following the Court’s decision in Smith, Professor McConnell
published another article in which he criticized the reasoning of the majority. See Michael W.
McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990).
15
Although the government conceded that drinking the sacramental tea
containing dimethyltryptamine — the regulated hallucinogen found naturally
in one of the plants used to brew the tea — “is a sincere exercise of religion,” it
nonetheless “sought to prohibit . . . the sect from engaging in the practice, on
the ground that the Controlled Substances Act bars all use of the
hallucinogen.” Id. The trial court had entered a preliminary order enjoining
enforcement of the Controlled Substances Act against the sect, a decision that
was affirmed by the United States Court of Appeals for the Tenth Circuit. See
id. at 423, 439. On appeal, the Supreme Court applied the compelling interest
balancing test mandated by RFRA, and left the preliminary injunction in place.
See id.
The Court explained that RFRA “adopt[ed] a statutory rule comparable to
the constitutional rule rejected in Smith” that “prohibits the Federal
Government from substantially burdening a person’s exercise of religion,
unless the Government demonstrates that application of the burden to the
person represents the least restrictive means of advancing a compelling
interest.” Id. at 423-24 (quotation omitted). In Gonzales, the government
conceded the sect’s prima facie case: that the application of the Controlled
Substances Act would substantially burden a sincere religious practice. Id. at
428. Accordingly, the burden was on the government to prove that the
application of the Controlled Substances Act to the sect was the least
restrictive means of furthering a compelling government interest. Id. at 428-
29.
The government argued that, because the hallucinogen at issue was a
Schedule I substance with a high potential for abuse, and because it lacked
any currently accepted, or safe, medical uses, the government’s interest in not
providing an individualized exception to the Controlled Substances Act for the
sect was compelling. Id. at 430. Further, the government contended that the
Controlled Substances Act established “a closed system that prohibits all use of
controlled substances except as authorized by the Act itself,” and that “there
would be no way to cabin religious exceptions once recognized.” Id. (quotation
omitted).
The Court was not persuaded, and noted that “RFRA, and the strict
scrutiny test it adopted, contemplate an inquiry more focused than the
Government’s categorical approach.” Id. “RFRA,” the Court explained,
“requires the Government to demonstrate that the compelling interest test is
satisfied through application of the challenged law ‘to the person’—the
particular claimant whose sincere exercise of religion is being substantially
burdened.” Id. at 430-31 (quoting 42 U.S.C. § 2000bb-1(b)). In concluding
that the government had failed to carry its burden, the Court found that the
government’s “mere invocation of the general characteristics of Schedule I
substances, as set forth in the Controlled Substances Act, cannot carry the
16
day.” Id. at 423, 432. Indeed, the Court noted that the “well-established
peyote exception” allowing Native American sacramental use of peyote, another
Schedule I substance, “fatally undermines the Government’s broader
contention that the Controlled Substances Act establishes a closed regulatory
system that admits of no exceptions under RFRA.” Id. at 433-34. Finally, the
Court observed that “Congress recognized that ‘laws neutral toward religion
may burden religious exercise as surely as laws intended to interfere with
religious exercise,’ and legislated ‘the compelling interest test’ as the means for
the courts to ‘strike sensible balances between religious liberty and competing
prior governmental interests.’” Id. at 439 (quoting 42 U.S.C. §§ 2000bb(a)(2),
(5)) (brackets omitted).
With these cases and important principles in mind, we now construe Part
I, Article 5. In doing so, we are mindful that Part I, Article 5 obliges the
accommodation of religious practices that do not “disturb the public peace.”
N.H. CONST. pt. I, art. 5; Hale, 53 N.H. at 61. Although we agree with the
Massachusetts Supreme Judicial Court that, “[i]n a broad sense, all offenses
are breaches of the public peace,” Nissenbaum, 536 N.E.2d at 596, that cannot
be the end of our constitutional inquiry. Indeed, as Justice O’Connor observed
in her persuasive historical analysis set forth in City of Boerne, state
constitutional provisions such as Part I, Article 5 “make sense only if the right
to free exercise was viewed as generally superior to ordinary legislation, to be
overridden only when necessary to secure important government purposes.”
City of Boerne, 521 U.S. at 553-55 (O’Connor, J., dissenting). The rights set
forth in Part I, Article 5 are “natural and unalienable.” N.H. CONST. pt. I, art.
5. 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.” Hale, 53 N.H. at 61.
Additionally, as Justice O’Connor observed in Smith, the federal Free
Exercise Clause “was enacted precisely to protect the rights of those whose
religious practices are not shared by the majority and may be viewed with
hostility,” and that “[t]he very purpose of a Bill of Rights was to withdraw
certain subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials” such that the fundamental rights
of “freedom of worship . . . may not be submitted to vote; they depend on the
outcome of no elections.” Smith, 494 U.S. at 902-03 (O’Connor, J., concurring)
(quotations omitted). So too was our State Constitution “intended to be [a]
restraining document[],” one designed to ensure “that [the] exercise of power by
the majority does not go unchecked.” State v. LaFrance, 124 N.H. 171, 177
(1983). “We do not have unqualified majority rule; we have majority rule with
17
protection for minority and individual rights. Without this limitation we would
have a tyranny of the majority and we would lose our liberty.” Id.
It is well-established that “[w]hile the role of the Federal Constitution is
to provide the minimum level of national protection of fundamental rights, our
court . . . has the power to interpret the New Hampshire Constitution as more
protective of individual rights than the parallel provisions of the United States
Constitution,” and “[t]he [United States] Supreme Court has recognized this
authority.” Ball, 124 N.H. at 231-32 (citing Cooper v. California, 386 U.S. 58,
62 (1967)); see also PruneYard Shopping Center v. Robins, 447 U.S. 74, 81
(1980) (recognizing “the authority of the State . . . to adopt in its own
Constitution individual liberties more expansive than those conferred by the
Federal Constitution”). Additionally, given the substantial linguistic differences
between the First Amendment and Part I, Article 5, we should not rely heavily
on federal precedent when interpreting Part I, Article 5. See Nissenbaum, 536
N.E.2d at 600 (Liacos, J., dissenting) (espousing the same principle with
respect to Part I, Article 2 of the Massachusetts Constitution).
Accordingly, in construing our State Constitution, we decline to adopt
the reasoning of Smith. In Smith, the Supreme Court found that, under the
First Amendment, although generally applicable laws “cannot interfere with
mere religious belief and opinions, they may with practices.” Smith, 494 U.S.
at 879 (quotation omitted). Therefore, absent an attempt to target particular
religious practices, the Court stated that “an individual’s religious beliefs [do
not] excuse him from compliance with an otherwise valid law prohibiting
conduct that the State is free to regulate.” Id. at 877-79. Our State
Constitution is different: it expressly protects religious belief and religious
practices, and we do not construe it to distinguish between the impact of laws
of general application and laws that target particular religious practices. See
N.H. CONST. pt. I, art. 5; Hale, 53 N.H. at 61. We agree with Justice O’Connor,
who, after observing that the majority in Smith “permit[ted] the government to
prohibit, without justification, conduct mandated by an individual’s religious
beliefs, so long as that prohibition is generally applicable,” stated that
a law that prohibits certain conduct ― conduct that happens to be
an act of worship for someone ― manifestly does prohibit that
person’s free exercise of his religion . . . regardless of whether the
law prohibits the conduct only when engaged in for religious
reasons, only by members of that religion, or by all persons.
Smith, 494 U.S. at 893-94 (O’Connor, J., concurring). We also agree with
Justice O’Connor’s observation that criminalizing “religiously motivated
conduct burdens that individual’s free exercise of religion in the severest
manner possible, for it results in the choice to the individual of either
abandoning his religious principle or facing criminal prosecution.” Id. at 898
18
(O’Connor, J., concurring) (quotation omitted). Therefore, if Part I, Article 5 is
to provide meaningful protection to the free exercise of religion, “it ought not be
construed to cover only the extreme and hypothetical situation in which [the
legislature] directly targets a religious practice.” Id. at 894 (O’Connor, J.,
concurring) (observing also that to do so would relegate a serious constitutional
value to the “barest level of minimum scrutiny that the Equal Protection Clause
already provides” (quotation omitted)); see also City of Boerne, 521 U.S. at 546
(O’Connor, J., dissenting) (observing that “the Free Exercise Clause is not
simply an antidiscrimination principle that protects only against those laws
that single out religious practice for unfavorable treatment,” but “[r]ather, the
Clause is best understood as an affirmative guarantee of the right to participate
in religious practices and conduct without impermissible governmental
interference”).
We therefore conclude that when religious practices violate a generally
applicable law, our State Constitution, like Part I, Article 2 of the
Massachusetts Constitution, demands that “there . . . be a balancing of [the]
competing interests.” Desilets, 636 N.E.2d at 242-43; see also Nissenbaum,
536 N.E.2d at 596. The Massachusetts Supreme Judicial Court has
articulated the balancing test as requiring the State to demonstrate that it has
“an important governmental interest that is sufficiently compelling that the
granting of an exemption to [an individual] in the position of the defendant[]
would unduly hinder that goal,” Desilets, 636 N.E.2d at 238; we choose to
adhere to our traditional formulation of strict judicial scrutiny — requiring the
State to demonstrate that its action is “necessary to achieve a compelling
governmental interest and narrowly tailored to meet that end.” Cmty. Res. for
Justice v. City of Manchester, 154 N.H. 748, 759 (2007) (quotation omitted);
see also Desilets, 636 N.E.2d at 236 & n.5 (recognizing that the Massachusetts
articulation of the balancing test is essentially the same as the compelling
interest balancing test, otherwise known as strict scrutiny). Accordingly, under
Part I, Article 5, once an individual establishes that the government action
substantially burdens his or her sincere religious practice, Desilets, 636 N.E.2d
at 236-37, the burden shifts to the State to show both that the government
action is necessary to achieve a compelling government interest, and is
narrowly tailored to meet that end. See id. at 238; Cmty. Res. for Justice, 154
N.H. at 759.
This analysis must be focused: it must pertain to the individual or those
in similar circumstances; “[t]he general objective of [the statute] . . . cannot
alone provide a compelling State interest that justifies the application of [the
statute] in disregard of the defendant[’s] right to free exercise of [the
defendant’s] religion.” Desilets, 636 N.E.2d at 238; see also N.H. CONST. pt. I,
art. 5 (“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.”
19
(emphases added)); Gonzales, 546 U.S. at 423, 430-32 (explaining that, under
RFRA, the “mere invocation” of a generalized interest in enforcement “cannot
carry the day,” and that the compelling interest test must be satisfied “through
application of the challenged law ‘to the person’—the particular claimant whose
sincere exercise of religion is being substantially burdened” (quoting 42 U.S.C.
§ 2000bb-1(b)). In sum, we conclude that the compelling interest balancing
test is the best “means for the courts to ‘strike sensible balances between
religious liberty and competing prior governmental interests.’” Gonzales, 546
U.S. at 439 (quoting 42 U.S.C. §§ 2000bb(a)(2), (5)) (brackets omitted).
The State contends that White and Cox mandate that we set a lower
constitutional bar for evaluating government actions that burden the free
exercise of religion than we set today. We disagree. In both White and Cox, the
statutes at issue prohibited certain disruptive conduct only in certain
designated places, and only if those participating in the conduct did not first
obtain a license, permit, or other lawful permission. See White, 64 N.H. at 49;
Cox, 91 N.H. at 138, 146. Accordingly, given the limited scope of the statutes
at issue, and the fact that both statutes expressly provided that anyone could
apply for and obtain a license, permit, or other lawful permission to engage in
the conduct at issue, it is far from clear that either statute substantially
burdened religious practices. Therefore, neither case would have triggered the
application of the compelling interest balancing test pursuant to the “disturb
the public peace” clause of Part I, Article 5. Further, White and Cox both pre-
date the development of the modern tiers of judicial scrutiny, including strict
scrutiny and its compelling interest standard. See Stephen A. Siegel, The
Origin of the Compelling State Interest Test and Strict Scrutiny, 48 Am. J.
Legal Hist. 355, 357-58 (2006); Roman Catholic Diocese of Brooklyn v. Cuomo,
592 U.S. __, __ (decided Nov. 25, 2020) (Gorsuch, J., concurring) (slip op. at 3)
(observing, in a free exercise case in which the Court applied strict judicial
scrutiny, that the analysis in a 1905 decision of the Court “pre-dated the
modern tiers of scrutiny”). It is, therefore, not at all surprising that neither
White nor Cox employs the tiered scrutiny terminology or analysis that courts
use today. See generally Cmty. Res. for Justice, 154 N.H. at 758-62 (describing
the development of tiered judicial scrutiny). Accordingly, neither case is in
tension with our holding today, nor with our longstanding rule that we apply
strict judicial scrutiny to government actions that impinge upon fundamental
constitutional rights. See, e.g., In re Sandra H., 150 N.H. 634, 637-38 (2004)
(observing, in an involuntary civil commitment case, that we apply “the most
exacting scrutiny” when fundamental rights are impinged (quotation omitted)).
And, here, there is no doubt that a fundamental constitutional right has been
infringed. See N.H. CONST. pt. I, art. 5; Hale, 53 N.H. at 61.
In reaching this conclusion, we are not alone. Other state supreme
courts have also concluded that their state constitutions provide greater
protection for the free exercise of religion than does the Free Exercise Clause of
20
the Federal Constitution. As explained earlier, the Massachusetts Supreme
Judicial Court construed the Massachusetts Constitution to provide greater
protection for the free exercise of religion than does the First Amendment. See
Desilets, 636 N.E.2d at 235-36, 242-43. The Maine Supreme Judicial Court
reached a similar conclusion with respect to its state constitution. See Rupert
v. City of Portland, 605 A.2d 63, 65-66 (Me. 1992) (applying the compelling
interest balancing test to free exercise of religion cases brought under the state
constitution). Indeed, state supreme courts in several other states have
construed their state constitutions to be more protective of religious liberty
than the Federal Constitution. See, e.g., Swanner v. Anchorage Equal Rights
Com’n, 874 P.2d 274, 280-81 (Alaska 1994); State v. Hershberger, 462 N.W.2d
393, 397 (Minn. 1990); Humphrey v. Lane, 728 N.E.2d 1039, 1044-45 (Ohio
2000); see also Gary S. Gildin, The Sanctity of Religious Liberty of Minority
Faiths Under State Constitutions: Three Hypotheses, 6 U. Md. L.J. Race,
Religion, Gender & Class 21, 31-32 & n.57 (2006) (observing that courts in
several states “have interpreted their state constitutions to mandate application
of the compelling interest/no less restrictive alternative test to laws that have
the effect of limiting a sincere religious practice, even absent an untoward
legislative purpose”).
Finally, although we recognize that the application of the compelling
interest balancing test may present practical challenges, we cannot “justif[y]
the denial of constitutional rights simply because the protection of those rights
require[s] special effort.” Desilets, 636 N.E.2d at 240. The compelling state
interest balancing test has proven to be a workable standard in free exercise
cases. Not only does the United States Supreme Court apply the test under
RFRA, see 42 U.S.C. § 2000bb; Gonzales, 546 U.S. at 423-24, it also does so in
its First Amendment analysis in the event that it determines that the
challenged laws “are not ‘neutral’ and of ‘general applicability.’” Roman
Catholic Diocese of Brooklyn, 592 U.S. at __ (per curiam) (slip op. at 1-7)
(emphasis added) (concluding that restrictions were not facially neutral, and
ordering preliminary injunctive relief in case brought by religious institutions
challenging restrictions placed on the size of religious gatherings due to the
COVID-19 pandemic). Moreover, several states have enacted RFRA-like
statutes mandating the application of the compelling interest balancing test.
See, e.g., Conn. Gen. Stat. § 52-571b (2017); R.I. Gen. Laws § 42-80.1-3
(2006); see also Gildin, supra, at 31 & n.55. At least one state, Alabama, has
amended its state constitution to so provide. See ALA. CONST. amend. 622;
Gildin, supra, at 31 & n.56.
In conclusion, the trial court did not apply the compelling interest
balancing test that Part I, Article 5 requires. Nor, understandably, did it make
the factual findings necessary to determine whether, under the test, the
defendant’s possession and sacramental use of psilocyn and/or psilocybin
mushrooms are protected under Part I, Article 5. We therefore vacate the trial
21
court’s order denying the defendant’s motion to dismiss, and remand for
further proceedings consistent with this opinion.
Order on motion to dismiss is
vacated and remanded.
HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.
22