No. 2019-0171

Dec. 22, 2020

Vacated and remanded.


  • The Court considered whether Part I, Article 5 of the New Hampshire Constitution protected a defendant’s right to possess and use a controlled substance as part of religious worship and adopted a compelling interest balancing test for analysis under this provision.


The defendant appealed an order denying his pre-trial motion to dismiss, which argued that Part I, Article 5 of the State Constitution protected his right to possess and use the controlled substances, mushrooms, he was charged with possessing. He argued the use and possession was for religious worship, and he was not “disturbing the public peace.” The appeal required the Court to interpret the phrase “disturb the public peace” in Part I, Article 5 of the New Hampshire State Constitution.

The defendant was a minster of the Oklevueha Native American Church and observed religious practices as part of that religion that included the use of mushrooms. State Police went to the defendant’s residence to serve an order of protection arising out of an unrelated civil matter pending in another state. When the defendant authorized the police by phone to take control of his firearms, they observed mushrooms on a shelf in the gun safe and seized them. The defendant later explained to the police that they were used for religious observance only and that his church had provided legal guidance for their use and possession. Although he made arguments under the Federal and State Constitution before the trial court, on appeal, he only argued that his conduct was protected by the State Constitution, which provided broader protection to religious worship than the Federal Constitution. The State did not dispute that the defendant’s use and possession of the mushrooms constituted religious conduct motivated by a sincerely held religious belief.

The State argued that a test for interpreting the “disturb the public peace” clause had already been adopted by the New Hampshire Supreme Court based on reasoning set forth in set forth in Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872 (1990). After reviewing a prior opinion that referenced Smith, the Court found that it had not adopted that reasoning in Smith.

The Court found that the State Constitution protects both religious beliefs and religious practices, which provides broader protection than the Federal Constitution. The Court adopted a compelling interest balancing test for the application of Part I, Article 5 that requires a sensible balance between religious liberty and competing prior governmental interests. The test requires that “once an individual establishes that the government action substantially burdens his or her sincere religious practice, … 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.” (internal citations omitted).

The Court vacated the trial court’s order and remanded the case to be decided in light of the newly articulated compelling interest balancing test to determine if the defendant’s possession and use of the mushrooms was protected under Part I, Article of the State Constitution.


Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general), for the State. Thomas Barnard, senior assistant appellate defender, Concord, for the defendant.