New Hampshire's Supreme Court ruled its state constitution, not federal law, requires a compelling-interest test for a member's sacramental psilocybin use — then sent the case back to the trial court rather than dismissing it outright.
State v. Mack, cited as 173 N.H. 793, 249 A.3d 423 (2020), is a New Hampshire Supreme Court ruling that a defendant's sacramental psilocybin use is entitled to a real constitutional analysis under the state's own bill of rights, not the lighter federal standard. The court did not say the defendant wins outright. It said the trial court applied the wrong test and sent the case back to redo the analysis correctly.
The ruling rests on Part I, Article 5 of the New Hampshire Constitution, which protects a resident's "natural and unalienable right to worship God" as their own conscience dictates, so long as they do not "disturb the public peace" or interfere with others' worship. Unlike the federal First Amendment's Free Exercise Clause as read in Smith, New Hampshire's text explicitly reaches religious practice, not only belief, and the state's courts have read that difference to require real scrutiny of laws that burden it.
In 2018, psilocybin mushrooms were found during a search connected to a weapons-confiscation order in Coos County. The defendant, Jeremy Mack, was tried and convicted by a jury on one count of possessing a controlled drug. Before trial, he moved to dismiss on the ground that Part I, Article 5 protected his possession and sacramental use of the mushrooms as part of his religious practice. The trial court denied that motion, and the conviction followed.
Mack belonged to the Oratory of Mystical Sacraments, a branch of the Oklevueha Native American Church that, per the church's own stated rules cited in the case, restricted psilocybin use to prevent public intoxication or operating a vehicle while impaired. On appeal, he argued the trial court never weighed those facts against the constitutional standard Article 5 requires.
The New Hampshire Supreme Court agreed the trial court had skipped a required step. Article 5 requires a compelling-interest balancing test once a defendant shows a law burdens a sincere religious practice: the state must identify a genuinely compelling interest in enforcing the drug law against that specific conduct, and the trial court must weigh that interest against the burden on the defendant's worship.
The trial court had made no findings under that framework. It denied the motion to dismiss without ever asking whether the state's interest in prosecuting Mack's specific, rule-bound sacramental use outweighed his religious-practice claim. That gap, not any conclusion about who should win, is what the Supreme Court vacated and sent back for a proper hearing.
State v. Mack does not legalize psilocybin in New Hampshire, generally or for religious use. It does not create a rule other defendants can invoke automatically; each claimant still has to show the same sincerity, practice-specific facts, and burden Mack's case turned on. It does not touch New Hampshire's criminal drug schedules, which still list psilocybin as a controlled substance. And because the record available publicly does not show a further published appellate ruling after the remand, this guide cannot report what the trial court ultimately decided on Mack's case once it reheard the motion under the correct standard.
For what psilocybin's status actually is state by state today, see our are mushrooms legal guide and the legal status by state tool. New Hampshire has no decriminalization or regulated-access program like Oregon's Measure 109 or Colorado's Proposition 122; Mack's case is a narrow, individual constitutional claim, not a policy change.
Employment Division v. Smith (1990) held that the federal Free Exercise Clause does not require any state to exempt religious drug use from a neutral, generally applicable law. That ruling set a floor, not a ceiling: it told states what the federal Constitution does not require, while leaving each state free to give its own constitution more protection if its own courts read the text that way.
New Hampshire's Part I, Article 5 is one state doing exactly that. Where Smith lets a state apply its drug law to religious peyote or psilocybin use without any special justification, New Hampshire's own courts have read their state constitution to require the state to justify that same burden with a compelling interest. The federal backstops that exist for some claimants, the Religious Freedom Restoration Act and the AIRFA peyote exemption, and the one-church Supreme Court win in Gonzales v. O Centro, all involve federal law or a federal court. Mack’s case shows a fourth, state-constitutional route exists too, though it currently reaches only New Hampshire.
The Oklevueha Native American Church, the parent organization of Mack's Oratory of Mystical Sacraments branch, is a separate legal entity from the federally chartered Native American Church whose peyote use Congress protected through the 1994 AIRFA amendment. That distinction matters because AIRFA's peyote exemption does not automatically extend to every group that invokes Native American religious tradition; Oklevueha-affiliated claimants have had to make their own case-specific arguments, as Mack did here under New Hampshire's state constitution rather than the federal peyote exemption.
No. The New Hampshire Supreme Court did not dismiss the charge or rule that psilocybin is legal. It vacated the trial court's order and sent the case back for the trial court to apply the correct constitutional test to the defendant's specific religious-use claim. Psilocybin remains a controlled substance in New Hampshire outside that unresolved case-by-case analysis.
On December 22, 2020, the court held that Part I, Article 5 of the New Hampshire Constitution, which protects religious practice and not just belief, required the trial court to apply a compelling-interest balancing test to the defendant's sacramental psilocybin claim, and that the trial court had never done so. It vacated the order denying his motion to dismiss and remanded the case.
Employment Division v. Smith (1990) held that the federal Constitution does not require states to exempt religious drug use from neutral, generally applicable laws. State v. Mack shows the other side of that ruling: a state is still free to give its own constitution more protection than the federal floor Smith set, and New Hampshire's Part I, Article 5 does exactly that.
Jeremy Mack, a member of the Oratory of Mystical Sacraments, a branch of the Oklevueha Native American Church. He was convicted by a jury of one count of possessing psilocybin mushrooms after they were found during a 2018 search connected to a weapons-confiscation order in Coos County, New Hampshire.
No. It interprets New Hampshire's own state constitution, so it binds only New Hampshire courts. A defendant in another state would need that state's own constitutional religious-freedom clause, a favorable state supreme court ruling, or a federal RFRA claim to raise a similar argument.
State v. Mack is a narrow, individual religious-freedom ruling, not a state-wide legal-access program. See what is actually regulated and accessible today.
Get State v. Mack (New Hampshire, 2020) updates
New votes, rules, court rulings, and access changes for State v. Mack (New Hampshire, 2020) — delivered when they happen.
← Back to all psychedelic laws
Suggest a tool, topic, or improvement that would make this site more useful.