(dissenting). Many years ago, Chief Justice Lemuel Shaw, writing for the court in a case involving art. 2 of the Massachusetts Declaration of Rights, stated: “This cause was argued some time since, and partly on account of the intrinsic difficulty attending some of the questions raised in the case, and a difference of opinion among the judges on some of these questions, it has stood over for consideration *588and advisement, to the present time.” Commonwealth v. Kneeland, 20 Pick. 206, 211 (1838).
One hundred and fifty years later we have experienced similar difficulty. The difficulty is caused partly by the inadequacy of the historical, written record as to the meaning of art. 2. Additionally, the issues are complex, arising from a clash of values protected by the State constitution and values pertaining to law enforcement as found in our statutes. This tension appears strongest when it involves the right of a disfavored religious sect, a tension not unusual in the long history of our Commonwealth. Consequently, I believe it is important to write separately in this case. I believe that the court’s opinion today infringes on the right of criminal defendants to have a jury decide the issues of guilt on proper instructions of law. Even more significantly, I believe that the court’s treatment of art. 2, as far as it goes, is in error.1
My area of disagreement with the court is on the question of the proper treatment of a defense of religious use protected by art. 2.2 The findings of the motion judge who decided the *589motion to dismiss after an extended evidentiary hearing are crucial to an understanding of this case, as much of the evidence on which he based his findings also was put to the jury.3
The motion judge found, and the jury heard evidence as follows. The Nissenbaums are members of the Ethiopian Zion Coptic Church of which David is a priest. He and Christine follow the church’s teachings, including its laws concerning dress and diet. Coptics regard marihuana (ganja) as the body and blood of Christ and use it as a sacrament. It is mixed with tobacco and smoked in a pipe which is passed among the church members during church services. The smoking is accompanied by the reciting of psalms and the singing of chants. Although not restricted to any specific time of day, to any day of the week or to any specific place, the religious service is performed three times a day (morning, afternoon, and evening). The smoking of marihuana as a religious function, therefore, occurs daily and frequently during each day. However, Coptics do not inhale the smoke into their lungs; they avoid its “intoxicating effects” by taking it into their mouths and exhaling it from their noses. During the religious ceremonies marihuana is distributed to those present who wish to partake (members and nonmembers). During such services, ganja may be, and sometimes is, distributed to children.
The motion judge discussed the defendants’ claim that the provisions of G. L. c. 94C, as applied to them, interfered with or prevented the free exercise of their religion. He concluded that even if a complete prohibition of the possession and use of marihuana were unconstitutional as applied to its use for religious purposes by sincere believers in the Ethiopian Zion Coptic Church, the indictments need not be dismissed. He stated that a threshold question of sincerity would need to be resolved by the trier of fact. Despite this, the trial judge, faced with similar evidence, refused to charge the jury on the defense of religious use.
*590The court upholds the convictions of the defendants despite the refusal of the trial judge to allow the jury to decide the issue of religious use. In doing so, the court rationalizes its position by two devices. First, it absorbs into our art. 2 jurisprudence Federal law under the First Amendment “by analogy” and thus moves into a position of balancing State interests in law enforcement against the free exercise of religion. (See ante at 578-579.) This approach overlooks the criticism of the Federal courts for watering down the protections of religious freedom incorporated in the First Amendment. See Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933 (1989); Developments in the Law: Religion and the State, 100 Harv. L. Rev. 1606 (1987). See also L.H. Tribe, American Constitutional Law 1194 n.41, 1260-1272 (1988). Also, this approach ignores the fact 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” (emphasis supplied).
The court seeks to explain its divergence from this constitutionally mandated test by asserting that, in the exercise of religious belief, a person must comport himself “ ‘as [a] good subject[ ] of the Commonwealth.’”4 Ante at 582. In this context, the court asserts that, “[i]n a broad sense, all offenses are breaches of the public peace.” Ante at 582. Hence, the court says that a legislative “determination that the possession, distribution, and cultivation of marihuana and hashish disturb the public order” should be given “significant weight and deference.” Ante at 583. Implicit in this latter approach is the *591thought that legislative enactments can amend the Constitution of the Commonwealth. Surely, this stands constitutional analysis on its head.
I cannot agree with either prong of the court’s analysis. Hence I dissent.
1. Protected use. I turn now to an examination of the Nissenbaums’ argument that their devotional use of marihuana in private, religious services is protected by art. 2 of the Declaration of Rights. Article 2 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 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” (emphasis supplied).
It is clear from its language that art. 2 guarantees to all our people absolute freedom as to religious belief and liberty unrestrained as to religious practices, subject only to the conditions that public peace must not be disturbed or others not be obstructed in their religious worship.5 When interpreting provisions of the Constitution, all the words are presumed to have been chosen advisedly, Mount Washington v. Cook, 288 Mass. 67, 70 (1934), and none of the words can be ignored as meaningless. Opinion of the Justices, 332 Mass. 769, 777 (1955). Thus, the words in art. 2 which protect a person in the exercise of his or her religious beliefs “provided he doth not disturb the public peace” must be given full meaning.
The concept involved as to those who “disturb the public peace” is one of common law origin. “It was a crime under the common law to disturb the peace of the public, or some segment of the public, by actions, conduct or utterances, the combination of which constituted a common nuisance.” Commonwealth v. Jarrett, 359 Mass. 491, 493 (1971). In Jarrett, *592the court pointed out that the addition of the phrase “disturbers of the peace” to the statutory language in G. L. c. 272, § 53, did not create a new crime, but merely prescribed a statutory penalty “for a long recognized common law crime.” Id. at 494. See Alegata v. Commonwealth, 353 Mass. 287, 302-304 (1967).
Our most clearly articulated discussion of disturbing the peace is found in Commonwealth v. Orlando, 371 Mass. 732, 734-735 (1977). We stated: “The 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.[6] Commonwealth v. Jarrett, supra at 498. Commonwealth v. Oaks, 113 Mass. 8, 9 (1873). This definition applies a two-pronged standard to disruptive conduct. It proscribes activities which, first, most people would find to be unreasonably disruptive, and second, did in fact infringe someone’s right to be undisturbed. The first prong is normative and protects potential defendants from prosecutions based on individual sensitivities. The second prong requires that the crime have a victim, and thus subjects potential defendants to criminal prosecution only when their activities have detrimental impact." Id.
That this definition is of long standing is evident from our early cases. In Commonwealth v. Smith, 6 Cush. 80, 81 (1850), the defendant was charged with disturbing the peace when he and others uttered “loud exclamations and outcries ... to the great disturbance of divers citizens.” We held that the criminal complaint failed to allege that the defendant’s noises and utterances were of the kind that disturb the citizens of the Commonwealth, the first part of the “disturb the public peace” definition. In Commonwealth v. Harris, 101 Mass. 29, 30 (1869), where the defendant was charged with “being a disturber and breaker of the peace” when he “utter[ed] loud exclamations and outcries,” we stated, in upholding the conviction: “The act must be of such a nature as tends to annoy good citizens, and does *593in fact annoy such of them as are present and not favoring it.” This language was repeated in Commonwealth v. Oaks, 113 Mass. 8, 9 (1873). See also Commonwealth v. Sweeney, 131 Mass. 579 (1881).
Surely, it is reasonable to infer that the framers of art. 2, being mindful of both a history of religious intolerance in our Commonwealth and of the meaning of a well established common law concept, meant to include this concept in art. 2. Thus, in order for the defendants to practice their religion so that they do disturb the peace, it is necessary that both parts of the definition have been satisfied. The second prong mandates that there be a victim. Here, there was no evidence proving that the defendants publicly sold or distributed marihuana or hashish to any nonmember of the Ethiopian Zion Coptic Church, or that the defendants breached the peace or did “annoy” any member of the public by engaging in their religious beliefs. There is nothing in the record which satisfies the second part of the standard for disturbing the peace.7 To 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.8
*5942. The jury’s role. The Nissenbaums argue that the trial judge erred in not permitting them to present their defense of “religious use” to the jury. I agree.
The judge instructed that “religious beliefs or other beliefs that the use or possession of marijuana is good or proper or legal, however sincere they may or may not be, is beside the point. The point is that such beliefs do not constitute any defense to the possession or use or distribution or intention to use or distribute such a substance . . . [s]o religious belief is not a defense to any of these charges” (emphasis supplied).9 The judge’s refusal to allow the jury to consider the defense of protected religious use and his explicit instruction that the jury were not to consider this defense was error.
Evidence was presented at trial as to the defendants’ religious beliefs and their possession and use of marihuana as a sacrament. “The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. . . . However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.” Commonwealth v. Campbell, 352 Mass. 387, 398 (1967), quoting People v. Carmen, 36 Cal. 2d 768, 773 (1951). See also Commonwealth v. Schnopps, 383 Mass. 178, 182 (1981); Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975).
The 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. The defendants requested that the judge instruct the jury so that the jury could consider the defendants’ religious beliefs. The judge refused. The convictions cannot stand. In my view, the defendants are entitled to a new trial.10
*5953. Conclusion. The words of art. 3 of our Declaration of Rights may be worthy of note: “[A]ll religious sects and denominations, demeaning themselves peaceably, and as good citizens of the commonwealth, shall be equally under the protection of the law.” We held in Glaser v. Congregation Kehillath Israel, 263 Mass. 435, 437 (1928), as to the protections afforded by arts. 2 and 3 (formerly art. 11 of the Amendments to the Constitution) that “[t]hese great guaranties of religious liberty and equality before the law of all religions are not confined to adherents of the Christian religion or to societies and corporations organized for the promotion of Christianity. ”
What is before us are husband and wife, found by a judge to be sincere devotees of a bona fide religion, using marihuana as a sacrament. When meaning is given to all of the language in art. 2, and when the facts of this case are viewed in those terms, it is clear that these convictions should not stand because the judge refused to let the jury consider the issues of religious belief and use. I dissent.
The concurring opinion of Justices Wilkins and Abrams also seems to me to reflect intrinsic ambivalence whether that opinion is addressing the constitutional issue at all. Compare the statement, “I need not decide whether the defendants had a constitutional right to use marihuana for religious purposes. If they had such a right, it was a limited one,” ante at 583, with its later statement, ‘The possession of marihuana (a) for household use, such as for cooking, preparing tea and tonics, and feeding chickens, and (b)for distribution to minor children, to nonchurch members, and to church members outside of religious services is not protected by art. 2” (emphasis supplied). Ante at 584. To me, statement (b) is a statement as to the meaning of art. 2, despite the concurring opinion’s disclaimer. Clearly, the long history of proselytizing by organized religions would indicate that attendance of a “nonchurch member” at a religious service involves religious activity. The court’s opinion, on this point, poses the questions involved more in accord with the history of religious practice when it asks: “Why, for example, if art. 2 might protect the possession of marihuana or hashish for good faith religious purposes, would it not also protect a parent who would possess marihuana in order to distribute it to his child whom he wishes to raise in the same religion? Also, why would art. 2 not protect one who cultivates marihuana, or possesses it with the intent to distribute it to consenting adults when the cultivation or possession have as their purpose the sharing, and perhaps spreading, of the faith?" Ante at 577.
I do not disagree with the court’s rulings on the propriety of the denial of the motions to dismiss or the motions for a required finding.
The trial judge denied the motion to dismiss on the same basis as the motion judge.
One wonders what Roger Williams and Mary Dyer, among others, would have thought of such a broad-based self-serving requirement. For the history of these and other religious dissenters, see J.A. Goodwin, The Pilgrim Republic: An Historical Review of the Colony of New Plymouth (1920); T.J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (1986).
The question of obstructing others “in their religious worship” is not raised by this record.
We also stated in Orlando that “the Massachusetts disturbing the peace law . . . applies a normative standard and requires individual harm” (emphasis supplied). Id.
The court’s opinion, citing dubious authority, ante at 582-583, suggests that any criminal offense is a breach of the peace outside the constitutional protection of art. 2. Putting aside the question whether a “breach of the public peace” is synonymous with “disturbing] the public peace,” this is a clear abdication by the court of judicial power to give proper construction to constitutional provisions.
In Marcoux v. Attorney Gen., 375 Mass. 63, 64-65 (1978), we discussed concerns about the health and safety dangers of using marihuana. Here, the motion judge stated that, on the basis of the evidence presented at the hearing on the motions, he was not able to conclude that the doubts we identified in Marcoux had been resolved; and he said that the experts seemed to agree that marihuana “is a harmful (or at least not a harmless) drug.” The question whether, and to what extent, the children of the defendants were allowed to ingest marihuana properly should have been left to the jury. Assuming that the children of the defendants were too young to make informed religious choices, the jury could decide that the decision to allow them to ingest marihuana was that of the defendants. If so, and if those decisions jeopardized the health or safety of either or both of the children, then that child, or those children, might be found to be a victim or victims. If so found, then it could be concluded that the peace was disturbed. Such issues should have been put to the jury.
The judge did instruct that the jury could consider the testimony of personal use on the issue whether the Commonwealth proved intent to distribute.
The California Supreme Court granted a petition for a writ of habeas corpus from one convicted of unlawful possession of peyote and remanded him for trial, noting that a factual question remained as to whether he had actually engaged in good faith in the practice of a religion. In re Grady, 61 Cal. 2d 887 (1964).