Commonwealth v. Nissenbaum , 404 Mass. 575 ( 1989 )

O’Connor, J.

The defendants, husband and wife, were each found guilty of possession of marihuana with intent to distribute it unlawfully. David Nissenbaum was also convicted of unlawful cultivation of marihuana and unlawful possession of hashish. Both defendants appealed, asserting that the conduct for which they were convicted was undertaken solely for their religious purposes and thus was protected under art. 2 of the Declaration of Rights of the Massachusetts Constitution. On our own motion, we transferred the appeals to this court.

The Nissenbaums are members, the only Massachusetts members, of the Ethiopian Zion Coptic Church, of which David is a priest. That church has existed as a religious organization on the island of Jamaica since the 1930’s. Its members claim its doctrine and symbolism date back 6,000 years. Membership in the church is estimated at several thousand in Jamaica and “a couple hundred” in the United States. The church’s doctrine is derived from the King James version of the Bible as interpreted by Jamaican preacher and social reformist Marcus Garvey and his successors. Church members follow the dietary laws of the Book of Leviticus and are not permitted to use synthetic or manufactured drugs of modem medicine, nor are they permitted to consume alcohol.

The Nissenbaums 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. Religious services are not restricted to any specific time of day, to any time of the week, or to any specific place, but are performed three times a day (morning, afternoon, and evening). During religious services, marihuana is mixed with tobacco and smoked in pipes that are passed among the church members. The process, which is regarded as a religious function, is accompanied by the reciting of psalms and the singing of chants. Coptics do not inhale the smoke; 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). It may be, and sometimes is, distributed to children.

On March 20, 1981, law enforcement officials came to the defendants’ rural home in Monson to arrest David Nissenbaum on a Federal warrant. While executing the arrest warrant, a State trooper saw marihuana plants growing in a greenhouse. He arrested Christine Nissenbaum for “manufacturing” marihuana. The State trooper obtained a warrant to search the premises, and, during the search pursuant to that warrant, he seized marihuana plants, hashish, over $7,000 in cash, and approximately 103 pounds of marihuana found in various locations in the house. There then followed the indictments that led to the defendants’ convictions that are on appeal.

At the outset, we address the question whether it is necessary that we decide the constitutional question in order to dispose of these appeals. David Nissenbaum was convicted of possessing hashish. It is true, as Justice Wilkins points out in his separate opinion, post, that Nissenbaum introduced no evidence that his purpose in possessing hashish was religious. However, the record clearly shows that Nissenbaum’s proposed art. 2 defense was fully discussed by the judge and counsel before the trial, and that the judge would not permit the introduction of evidence concerning Nissenbaum’s religious beliefs except for one limited purpose unrelated to the possession of hashish charge. Therefore, fairness to Nissenbaum does not permit affirmance of his conviction on the ground that the evidence was insufficient to show that whatever hashish he possessed he possessed for religious purposes. Furthermore, resolution of the question whether art. 2 protects the possession of hashish for religious purposes bears on the lawfulness of both the defendants’ convictions for possession with intent to distribute marihuana and David Nissenbaum’s conviction for unlawful cultivation of marihuana. 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?

We turn, therefore, to the question whether art. 2 protects the possession of marihuana and hashish for religious purposes. Article 2, which is set forth in full in the margin,² provides that no subject shall be harmed or restrained “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.” Section 1 of art. 46 of the Amendments to the Constitution, amending art. 18 of the Amendments, provides: “No law shall be passed prohibiting the free exercise of religion.”³ We are concerned here not with religious beliefs but with conduct or practices claimed to have a religious purpose. The question is whether the Commonwealth may properly criminalize such conduct or practices without interfering with a right protected by the State Constitution. We conclude that the Commonwealth may do so.

We reach this conclusion, in part, by analogy to the First Amendment and cases decided thereunder. The language of the First Amendment appears to be absolute. The First Amendment states, without limitation or qualification, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nevertheless, it is clear that the right to free exercise of religion under the Federal Constitution is not absolute. We have observed that “[a] law, legislatively or judicially created, that would regulate or prevent religiously motivated conduct does not violate the First Amendment if the State’s interest in the law’s enforcement outweighs the burden that the law imposes on the free exercise of religion. A determination of constitutionality requires a balancing of the competing interests.” Alberts v. Devine, 395 Mass. 59, 73, cert. denied sub nom. Carroll v. Alberts, 474 U.S. 1013 (1985). Federal courts reaching the precise issue involved in the present case, but focusing on the First Amendment rather than art. 2, have weighed the State’s interest in preventing possession of controlled substances against the burden that statutes criminalizing such activity may impose on the free exercise of religion. After such balancing, the courts have uniformly determined that the First Amendment does not protect the possession of controlled substances from the reach of criminal statutes. We find these cases to be instructive.

In United States v. Rush, 738 F.2d 497 (1st Cir. 1984), cert. denied, 470 U.S. 1004 (1985), the defendants claimed that the free exercise clause of the First Amendment provided a defense to charges of conspiracy to possess marihuana with intent to distribute it, and possession of marihuana with intent to distribute it. The government conceded that the defendants (who included one David Nissenbaum) were sincere believers in the tenets of the Ethiopian Zion Coptic Church and that the use of marihuana was an integral part of that church’s religious practices. Id. at 512. The First Circuit considered the defendants’ claims under a three part test: “(a) whether the challenged law interferes with free exercise of a religion; (b) whether the challenged law is essential to accomplish an overriding governmental objective; and (c) whether accommodating the religious practice would unduly interfere with fulfillment of the governmental interest.” Id. The court found the conflict between the criminal sanctions and the defendants’ religious practices to be “self-evident,” but upheld the convictions nonetheless, after “declin[ing] to second-guess the unanimous precedent establishing an overriding governmental interest in regulating marijuana” and recognizing “that accommodation of religious freedom is practically impossible with respect to the marijuana laws.” Id. at 512-513. The court noted that the defendants’ position would render marihuana laws meaningless and unenforceable.

In United States v. Middleton, 690 F.2d 820 (11th Cir. 1982), cert. denied, 460 U.S. 1051 (1983), the Eleventh Circuit considered claims that the First Amendment protected a member of the Ethiopian Zion Coptic Church from convictions for possessing and importing marihuana. The court rejected the defense, noting that “[unquestionably, Congress can constitutionally control the use of drugs that it determines to be dangerous, even if those drugs are to be used for religious purposes.” Id. at 825. See Olsen v. Iowa, 808 F.2d 652 (8th Cir. 1986) (unsuccessful habeas corpus appeal by Ethiopian Zion Coptic Church member convicted of possession of marihuana with intent to deliver); Leary v. United States, 383 F.2d 851 (5th Cir. 1967), rev’d on other grounds, 395 U.S. 6 (1969) (First Amendment not a defense to various marihuana trafficking offenses); Randall v. Wyrick, 441 F. Supp. 312 (W.D. Mo. 1977); United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968). Cf. Peyote Way Church of God, Inc. v. Smith, 742 F.2d 193 (5th Cir. 1984) (remanded for determination whether there was a compelling State interest in denying church members a right to ceremonial use of peyote and whether statute was narrowly drawn to serve an important governmental purpose, distinguishing Leary. On remand, the District Court found a compelling State interest in denying church members a right to ceremonial use of peyote. Peyote Way Church of God, Inc. v. Meese, 698 F. Supp. 1342 [N.D. Tex. 1988]).⁴

The defendants attempt to distinguish their “private” use of marihuana from cases involving “public” use. But there is no reason to believe that Federal courts would treat “private” infringements of drug laws any differently from “public” ones under the First Amendment. In at least one Federal case, Randall v. Wyrick, supra at 313-314, the defendant, like the Nissenbaums, was convicted of possession of marihuana after a police raid on his home, which also served as his church, and the court upheld the conviction against a free exercise challenge.

The sound reasoning of the Federal courts with regard to the First Amendment aids us in analyzing the scope of religious freedom under our own Constitution. Religious freedom is not, and cannot be, absolute under either Constitution. Under both documents, the constitutionality of a law that would interfere with the exercise of religion must depend on a balancing of the State’s interest in the law’s enforcement against the individual’s interest in practicing his religion as he chooses. While it is possible that, in the future, we may conclude that there are circumstances in which art. 2 provides protection for religious practices not protected by the First Amendment as construed and applied by Federal courts, we perceive nothing in the language or history of art. 2 that suggests that art. 2 affords more protection in connection with the use of marihuana and hashish than does the First Amendment.

Surely, the literal absoluteness of art. 2’s guarantee that “no subject shall be hurt, molested, or restrained . . . from worship-ping GOD in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments,” is not expanded by the proviso that an individual’s religious freedom in no event permits disturbance of the public peace or obstruction of the religious worship of others. Rather, the proviso contemplates and requires a balancing of the individual’s interest in religious freedom with the State’s interest in preserving the public peace.

We turn, then, to the meaning of the term “disturb the public peace” in the context of art. 2. Within two weeks after the Massachusetts Constitution went into effect in 1780, the General Court released a statement that suggests its understanding that practices may “disturb the public peace” in the Constitutional sense without the type of disturbance associated with breach of the peace crimes. Proclaiming itself “[d]eeply impressed with a sense of the importance of religion to the happiness of men in civil society . . .,” the assembly pledged 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; and shall exert ourselves to carry the wise and equitable provision of the constitution for these salutary purposes into the fullest effect” (emphasis added). Answer of a Committee of both Houses of Assembly of Massachusetts to the speech of his Excellency the Governor at the opening of the Session, November 7, 1780, as set out in Massachusetts, Colony to Commonwealth, at 161, 164 (R. Taylor, ed.).⁵ In a broad sense, all offenses are breaches of the public peace. Unless otherwise provided by statute, every indictment, whether for a common law or statutory offense, concludes by alleging that the offense was committed “against the peace of the state.” Clark & Marshall, Crimes § 419, at 560 (5th ed. 1952). The United States Supreme Court, for example, used this definition of breach of the peace in interpreting the Federal Constitution. Art. I, § 6, cl. 1, of the Constitution provides that Congressmen shall “in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest. . . As far as the definition of breach of the peace in this constitutional context, the United States Supreme Court, quoting Justice Story’s Commentaries on Constitutional Law (n.d.), reasoned: “Now, as all crimes are offenses against the peace, the phrase “breach of the peace” would seem to extend to all indictable offenses . . . [including] those which are in fact attended with force and violence, as [well as] those which are only constructive breaches of the peace of the government, inasmuch as they violate its good order.” Williamson v. United States, 207 U.S. 425, 444 (1908).

Balancing 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, we conclude that such conduct is not protected by art. 2 even if motivated by sincere religious purpose. In coming to that conclusion, we are informed by Federal precedent relative to the First Amendment. We agree with the unanimous 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.

We conclude that art. 2 of the Massachusetts Declaration of Rights does not protect the possession of hashish for sincere religious purposes nor does it protect the .possession of marihuana with intent to distribute it or the cultivation of marihuana, even for religious purposes.

Judgments affirmed.

2 “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.”

3 This language parallels in large measure the provision in the First Amendment to the Constitution of the United States that “Congress shall make no law . . . prohibiting the free exercise [of religion].”

4 Some State courts have concluded that the free exercise clause of the First Amendment, as applied to the States by the Fourteenth Amendment, protects the ceremonial use of peyote by adherents of the Native American Church. See, e.g., State v. Whittingham, 19 Ariz. App. 27, cert. denied, 417 U.S. 946 (1973); People v. Woody, 61 Cal.2d 716 (1964); Whitehorn v. State, 561 P.2d 539 (Okla. Crim. 1977); Smith v. Employment Div., 307 Or. 68 (1988), cert. granted, U.S. (1989) (109 S.Ct. 1526 [1989]). These courts recognize that other States, as well as the Federal government, specifically exempt the religious use of peyote from their controlled substances laws, and consider this relevant to whether there is a compelling State interest in restricting religious use of peyote. See Whittingham, supra at 31; Woody, supra at 819; Whitehorn, supra at 544. The Federal legislative exemption for the religious use of peyote may also be evidence of Congress’ understanding that the First Amendment protects the use of peyote by Native Americans. Smith, supra at 75. The special deference given to the religious use of peyote by Native Americans is also grounded in “the sui generis legal status of American Indians” and the lengthy history of the American Indian cultural traditions involving peyote use. United States v. Rush, 738 F.2d 497, 513 (1st Cir. 1984). See Smith, supra at 75. None of these factors is present in the instant case involving the religious use of marihuana.

5 See also The Popular Sources of Political Authority, Documents of the Massachusetts Constitution of 1780, at 32-33 (O. and M. Handlin, eds., 1966) (quoting “An American,” Massachusetts Spy (Boston), July 16, 1778, in Samuel Adams, Writings IV, 34: “The religion of America is the religion of all mankind. Any person may worship in the manner he thinks most agreeable to the Deity; and if he behaves as a good citizen, no one concerns himself as to his faith or adorations . . .” [emphasis added]).