In State of New Hampshire v. Mack, (NH Sup. Ct., Dec. 22, 2020), the New Hampshire Supreme Court held that the state Constitution's elaborate guarantee of free exercise of religion so long as one does not "disturb the public peace" should be read to require strict scrutiny. The court vacated a trial court's refusal to dismiss a drug prosecution brought against defendant who was a member of the Oklevueha Native American Church. Defendant was convicted of possession of psilocyn and psilocybin for use in religious rituals. The court concluded that the state constitution gives greater free exercise protection against burdens from neutral generally applicable laws than does the U.S. Constitution under the Smith case. The court said in part:
We ... conclude that when religious practices violate a generally applicable law, our State Constitution ... demands that “there . . . be a balancing of [the] competing interests.” ... [W]e 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.” ... Accordingly, under Part I, Article 5, 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....
The Union Leader reports on the decision.
