We’ve written lots just lately concerning the regulation regarding the non secular use of psychedelics (see here and here). That is an extremely broad space of the regulation that’s nonetheless growing. Our focus has typically been on the federal legal guidelines and choices affecting non secular use of psychedelics, although at this time we flip our consideration to an essential new state choice.

On December 22, 2020, the New Hampshire Supreme Courtroom decided a case that could be very vital for the non secular use of psychedelics (the opinion is here). In that case, an individual had been convicted of possession of psilocybin and appealed his conviction all the way in which to the state supreme courtroom on the grounds that the trial courtroom ought to have dismissed the case given his non secular use of the substance. The courtroom famous that the defendant was a member of the Oratory of Mystical Sacraments department of the Oklevueha Native American Church, which church had particular guidelines relating to the taking of psilocybin to forestall issues like public intoxication or driving whereas intoxicated.

Notably, the defendant solely pursued state regulation challenges to his conviction. New Hampshire’s state structure (which the courtroom acknowledged has broader protections than the federal Structure) comprises a proper to follow non secular beliefs as long as they don’t “disturb the peace”, and the choice turned on whether or not the defendant’s follow disturbed the peace.

The courtroom started by noting that the defendant had the appropriate to carry no matter non secular beliefs he selected, and that it was not the courtroom’s job to determine whether or not they’re theologically true. As an apart, this an attention-grabbing place and one which I argued elsewhere that the Drug Enforcement Administration (DEA) ought to follow in its choices on individuals searching for non secular exemptions. See Griffen Thorne, How the DEA is Interfering with Religious Use of Psychedelics, JURIST – Skilled Commentary, October 12, 2020. So, the courtroom accepted that the defendant’s non secular perception was honest and moved onto whether or not his follow disturbed the general public peace.

The courtroom’s evaluation was prolonged and analyzed choices from New Hampshire, different states, and even federal choices, and in the end concluded that the trial courtroom erred in dismissing the case. Citing circumstances just like the U.S. Supreme Courtroom case of Gonzales v. O Centro, which we mentioned here, the courtroom famous that the place there’s a non secular follow that violates a typically relevant regulation (i.e., a felony regulation that prohibits the usage of psychedelics), a balancing take a look at should be employed. The petitioner should first set up that the regulation considerably burdens its non secular follow, and the federal government then has the burden to point out that its motion is critical to attain a compelling authorities curiosity and is narrowly tailor-made to take action. So, the supreme courtroom held that the trial courtroom erred in not making use of such a take a look at.

What does this imply for the defendant? His case shouldn’t be accomplished. The state supreme courtroom remanded the case for additional consideration by the state trial courtroom, which should now take extra proof and take into account the foregoing balancing take a look at. In all chance, prosecutors will proceed with the case and argue that even beneath a balancing take a look at, they’re nonetheless proper (for what it’s value, the federal authorities misplaced on such arguments within the Gonzales case, which the New Hampshire supreme courtroom famous was factually much like this case). It’s nonetheless doable that the defendant could possibly be convicted, however this case definitely provides him higher grounds to combat it.

What does this choice imply for non secular use typically? Sadly, it’s pretty restricted. The choice doesn’t have an effect on federal regulation, and I’ve explained that it may be extraordinarily troublesome to take care of the DEA on this level. Whereas the choice is binding on courts in New Hampshire, it has no impact on legal guidelines in different states. That stated, a part of the choice analyzed a Massachusetts choice and famous that Massachusetts had a considerably comparable provision in its state structure. Due to this fact, this choice gives persuasive steering to any state courtroom in a state with comparable constitutional provisions.

Whereas the choice is pretty restricted, it once more displays shifting attitudes in the direction of each non secular freedom and the usage of psychedelics. We’ll proceed to publish on this subject, so please keep tuned to the Canna Regulation Weblog.