COMMONWEALTH v. DAVID NISSENBAUM (and three companion cases) [Footnote 1]
Footnote 1: Two against David Nissenbaum and one against Christine Nissenbaum.
No. Hd-4496
Supreme Judicial Court of Massachusetts, Hampden
404 Mass. 575, 536 N.E.2d 592 (Mass. 1989)
April 4, 1988
April 12, 1989
PRIOR HISTORY: INDICTMENTS found and returned in the Superior Court
Department on May 15, 1981.
Pretrial motions to dismiss were heard by John F. Moriarty, J., and the cases were
tried before William W. Simons, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals
Court.
SYLLABUS
On review of convictions for possession of marihuana with intent to distribute it
unlawfully, unlawful cultivation of marihuana, and unlawful possession of hashish,
this court undertook to resolve the issue whether the conduct for which the defendants
were convicted constituted religious practices protected under art. 2 of the Declaration
of Rights of the Massachusetts Constitution. [577] WILKINS, J., with whom ABRAMS,
J., joined, expressed the view that the constitutional issue need not be reached.
The Commonwealth may properly impose criminal sanctions for the possession, distribution
and cultivation of marihuana and hashish, as such activities disturb the public
order, and such conduct is not protected by art. 2 of the Declaration of Rights
of the Massachusetts Constitution, even if motivated by sincere religious purpose.
[578-583] WILKINS, J., with whom ABRAMS, J., joined, concurring, would affirm the
convictions on the ground that the defendant's conduct in the instant case far exceeded
the scope of any alleged constitutional right. LIACOS, J., dissenting.
COUNSEL: John M. Thompson for the defendants.
Dianne M. Dillon, Assistant District Attorney, for the Commonwealth
JUDGES: Hennessey, C.J., Wilkins, Liacos, Abrams, Nolan, Lynch,
& O'Connor, JJ. Wilkins, J. concurring, with whom Abrams, J., joins. Liacos,
J. dissenting.
OPINION BY: O'CONNOR
OPINION
[*576] [**592] 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 modern 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 [**593] 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.
[*577] 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?
[*578] 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, [Footnote 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." [Footnote 3] We are
[**594] 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
[*579] 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 [*580] 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 "[u]nquestionably, 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 [**595] (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]). [Footnote 4]
[*581] 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 worshipping 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.
[*582] 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
[**596] 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.). [Footnote 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, [*583] 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.
CONCUR BY: WILKINS
CONCUR
WILKINS, J. (concurring, with whom Abrams, J., joins).
I, too, would affirm the convictions. In so doing, however, I need not decide whether
the defendants had a constitutional right to use marihuana for religious purposes.
If they had such a right, it was a limited one; the defendants' conduct far exceeded
the protective scope of any such right; and there was no reversible error in the
denial of the defendants' motions to dismiss the indictments or in the failure to
instruct the jury concerning any right to use marihuana for religious purposes
[*584] (assuming such a right to exist). Our general practice is not
to reach constitutional questions unless it is necessary to do so in order to dispose
of a case properly. See Lockhart v. Attorney Gen., 390 Mass. 780, 784
[**597] (1984); Commonwealth v. Loretta, 386 Mass. 794, 797
(1982); Commonwealth v. Bartlett, 374 Mass. 744, 749 (1978).
The defendants' trial strategy was to establish that (a) the marihuana was for their
own use (thus rebutting the charges of possession with intent to distribute), and
(b) their use of marihuana was solely for religious purposes and thus (they contended)
protected from criminalization by art. 2 of the Declaration of Rights. The possession
of marihuana (a) for household use, such as for cooking, preparing tea and tonics,
and feeding chickens, and (b) for distribution to minor children, to nonchurch members,
and to church members outside of religious services is not protected by art. 2.
That behavior either involves no religious conduct at all, [Footnote 1] or it involves
religious conduct that disturbs the peace.
I would leave to another case the question whether art. 2 provides protection for
the good faith possession of marihuana for (a) use for religious purposes by adults
in a household, or (b) in a religious service by church members. Article 2 protection
does not apply in any circumstance to the use of marihuana by minors, to the use
of marihuana by nonchurch members, or to the use of marihuana by church members
outside of activity commonly regarded as religious. That is all I need determine
to permit me to answer the defendants' challenges to their convictions.
1. The motion judge properly denied the defendants' pretrial motions to dismiss
the indictments. Even if the defendants were entitled to some constitutional protection
for their religious use of marihuana, their motions to dismiss were doomed to fail,
as the motion judge noted in his rulings. Any constitutional [*585]
protection would only extend to one who believed in good faith in a religious doctrine
that involved the use of marihuana for religious purposes. The question of the existence
of such a belief would be a jury question. This would be followed by another jury
question, namely, whether the uses that the defendants made of controlled substances
fell within whatever constitutionally protected area of good faith conduct might
exist. The motion judge could not, therefore, have properly dismissed the indictments.
For the same reasons, the trial judge also properly denied the motions when they
were renewed during the trial.
There was, moreover, no basis on which the defendants were entitled to a required
finding of not guilty on any of the charges. If the defendants were entitled to
constitutional protection of some sort, evidence raising that subject was presented
in adequate form only during the defendants' cases, and that evidence, at most,
presented a jury issue and not grounds for a required finding of not guilty.
2. There was no reversible error in the judge's refusal to instruct the jury that
the defendants had a constitutional right to use marihuana as a sacrament in religious
services or for other religious purposes. The trial judge gave the defendants substantial
freedom to demonstrate that they used marihuana in large amounts for religious and
nonreligious purposes. He properly concluded that evidence of that sort was relevant
to the question whether the defendants possessed the marihuana with the intent to
distribute it. He instructed the jury that they could consider personal use "on
the issue of whether the Commonwealth has proved to your satisfaction beyond a reasonable
doubt that the Defendants possessed marihuana with an intent to distribute it as
opposed to an intent to use it for their personal needs." The jury decided
the distribution issue in favor of the Commonwealth.
Even if the defendants had a State constitutional right to use marihuana personally
for religious purposes, the failure of the judge so to instruct the jury did not
prejudice the defendants. The judge told the jury that a defendant could not be
convicted of possession of marihuana with intent to distribute it if he or [*586]
she possessed it for [**598] his or her own use. That charge covered
religious and nonreligious personal use. It included the defendants' use of marihuana,
as the evidence indicated, for cooking stews and soups, for tea, for a tonic, for
a tincture, for feeding chickens, for growing more marihuana, and for personal religious
purposes. Unfortunately for the defendants, the jury believed evidence of the distribution
of marihuana to others and concluded that marihuana seized in the defendants' home
was for distribution and not for personal use. Whatever constitutional right to
possess marihuana for certain personal uses there may be, as I have said, it does
not extend to possession for the purpose of distribution to minor children, distribution
to nonchurch members, or distribution to church members outside a religious service
or ceremony. [Footnote 2]
3. If there was error in the judge's charge concerning the cultivation of marihuana
(by reason of his failure to identify a constitutionally protected religious use
for which marihuana would lawfully be cultivated), that error was not prejudicial
to David Nissenbaum. If there were a constitutionally protected right to use marihuana
for personal religious purposes, it could reasonably follow that there would be
a constitutionally protected right to cultivate marihuana for those purposes. On
this assumption, at a trial on a charge of unlawful cultivation of marihuana where
the issue is raised by the evidence, the Commonwealth would have to prove beyond
a reasonable doubt that the cultivation was not solely for constitutionally protected
religious uses.
The evidence did not warrant a reasonable doubt, however, about whether Nissenbaum's
cultivation of marihuana was not solely for personal religious uses. David Nissenbaum's
admissions in his testimony showed that he was growing marihuana for uses outside
the scope of any religious uses we might [*587] identify as protected
under the Constitution of the Commonwealth. I reject as implausible the thought
that the jury would believe Nissenbaum's testimony concerning the use of marihuana
for arguably protected religious purposes, reject entirely his testimony as to all
the Nissenbaums' other uses of marihuana, and thus be in a position to find Nissenbaum
not guilty of unlawful cultivation on the theory that the Nissenbaums' only use
of marihuana was constitutionally protected. Thus, the issue of cultivation for
a constitutionally protected use (in the form in which I might accept that constitutional
right) never became a live issue at the trial. Moreover, because the jury found
beyond a reasonable doubt that the Nissenbaums did not possess their marihuana solely
for personal uses, it follows incontestably that, if asked to do so, the jury would
also have found beyond a reasonable doubt that David Nissenbaum did not grow marihuana
solely for personal use, religious or otherwise. A retrial on the unlawful cultivation
charge is not required.
4. There is no basis for overturning the conviction of David Nissenbaum for possession
of hashish. The police found 9.9 ounces of hashish in a tin can in the office area
of the Nissenbaum home. On the evidence, the jury would not have been warranted
in having a reasonable doubt whether David Nissenbaum kept hashish for religious
uses. Neither Nissenbaum nor anyone else made reference at trial to the use of hashish
(as opposed to marihuana) for religious purposes. Nissenbaum could have done so.
Therefore, any asserted constitutionally protected right of religious use had no
application to his conviction for unlawful possession of hashish.
DISSENT BY: LIACOS
DISSENT
LIACOS, J. (dissenting).
Many years ago, Chief Justice Lemuel Shaw, writing for the court in a case involving
art. 2 of the Massachusetts Declaration of Rights, stated: "This cause was
[**599] argued some time since, and partly on account of the intrinsic
difficulty attending some of the questions raised in the case, and a difference
of opinion among the judges on some of these questions, it has stood over for consideration
[*588] and advisement, to the present time." Commonwealth
v. Kneeland, 20 Pick. 206, 211 (1838).
One hundred and fifty years later we have experienced similar difficulty. The difficulty
is caused partly by the inadequacy of the historical, written record as to the meaning
of art. 2. Additionally, the issues are complex, arising from a clash of values
protected by the State constitution and values pertaining to law enforcement as
found in our statutes. This tension appears strongest when it involves the right
of a disfavored religious sect, a tension not unusual in the long history of our
Commonwealth. Consequently, I believe it is important to write separately in this
case. I believe that the court's opinion today infringes on the right of criminal
defendants to have a jury decide the issues of guilt on proper instructions of law.
Even more significantly, I believe that the court's treatment of art. 2, as far
as it goes, is in error. [Footnote 1]
My area of disagreement with the court is on the question of the proper treatment
of a defense of religious use protected by art. 2. [Footnote 2] The findings of
the motion judge who decided the [*589] motion to dismiss after
an extended evidentiary hearing are crucial to an understanding of this case, as
much of the evidence on which he based his findings also was put to the jury. [Footnote
3]
The motion judge found, and the jury heard evidence as follows. The Nissenbaums
are members of the Ethiopian Zion Coptic Church of which David is a priest. He and
Christine 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. It is mixed with tobacco and smoked in a pipe which is passed among
the church members during church services. The smoking is accompanied by the reciting
of psalms and the singing of chants. Although not restricted to any specific time
of day, to any day of the week or to any specific place, the religious service is
performed three times a day (morning, afternoon, and evening). The smoking of marihuana
as a religious function, therefore, occurs daily and frequently during each day.
However, Coptics do not inhale the smoke into their lungs; 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). During such services, ganja may be, and sometimes is,
distributed to children.
The motion judge discussed the defendants' claim that the provisions of G. L. c.
[**600] 94C, as applied to them, interfered with or prevented the
free exercise of their religion. He concluded that even if a complete prohibition
of the possession and use of marihuana were unconstitutional as applied to its use
for religious purposes by sincere believers in the Ethiopian Zion Coptic Church,
the indictments need not be dismissed. He stated that a threshold question of sincerity
would need to be resolved by the trier of fact. Despite this, the trial judge, faced
with similar evidence, refused to charge the jury on the defense of religious use.
[*590] The court upholds the convictions of the defendants despite
the refusal of the trial judge to allow the jury to decide the issue of religious
use. In doing so, the court rationalizes its position by two devices. First, it
absorbs into our art. 2 jurisprudence Federal law under the First Amendment "by
analogy" and thus moves into a position of balancing State interests in law
enforcement against the free exercise of religion. (See ante at 578-579.) This approach
overlooks the criticism of the Federal courts for watering down the protections
of religious freedom incorporated in the First Amendment. See Lupu, Where Rights
Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev.
933 (1989); Developments in the Law: Religion and the State, 100 Harv. L. Rev. 1606
(1987). See also L.H. Tribe, American Constitutional Law 1194 n.41, 1260-1272 (1988).
Also, this approach ignores the fact that the language of art. 2, unlike the First
Amendment, strikes a clearly stated constitutional balance that provides that the
exercise of religion in this Commonwealth is protected "in the manner and season
most agreeable to the dictates of [a person's] own conscience . . . provided he
doth not disturb the public peace, or obstruct others in their religious worship"
(emphasis supplied).
The court seeks to explain its divergence from this constitutionally mandated test
by asserting that, in the exercise of religious belief, a person must comport himself
"'as [a] good subject[] of the Commonwealth.'" [Footnote 4] Ante at 582.
In this context, the court asserts that, "[i]n a broad sense, all offenses
are breaches of the public peace." Ante at 582. Hence, the court says that
a legislative "determination that the possession, distribution, and cultivation
of marihuana and hashish disturb the public order" should be given "significant
weight and deference." Ante at 583. Implicit in this latter approach is the
[*591] thought that legislative enactments can amend the Constitution
of the Commonwealth. Surely, this stands constitutional analysis on its head.
I cannot agree with either prong of the court's analysis. Hence I dissent.
1. Protected use. I turn now to an examination of the Nissenbaums' argument that
their devotional use of marihuana in private, religious services is protected by
art. 2 of the Declaration of Rights. Article 2 provides: "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" (emphasis supplied).
It is clear from its language that art. 2 guarantees to all our people absolute
freedom as to religious belief and liberty unrestrained as to religious practices,
subject only to the conditions that public peace must not be disturbed or others
not be obstructed in their religious worship. [Footnote 5] When interpreting provisions
of the Constitution, [**601] all the words are presumed to have
been chosen advisedly, Mount Washington v. Cook, 288 Mass. 67, 70 (1934),
and none of the words can be ignored as meaningless. Opinion of the Justices,
332 Mass. 769, 777 (1955). Thus, the words in art. 2 which protect a person in the
exercise of his or her religious beliefs "provided he doth not disturb the
public peace" must be given full meaning.
The concept involved as to those who "disturb the public peace" is one
of common law origin. "It was a crime under the common law to disturb the peace
of the public, or some segment of the public, by actions, conduct or utterances,
the combination of which constituted a common nuisance." Commonwealth v. Jarrett,
359 Mass. 491, 493 (1971). In Jarrett, [*592] the court
pointed out that the addition of the phrase "disturbers of the peace"
to the statutory language in G. L. c. 272, § 53, did not create a new crime, but
merely prescribed a statutory penalty "for a long recognized common law crime."
Id. at 494. See Alegata v. Commonwealth, 353 Mass. 287, 302-304
(1967).
Our most clearly articulated discussion of disturbing the peace is found in Commonwealth
v. Orlando, 371 Mass. 732, 734-735 (1977). We stated: "The provision
against 'disturbers of the peace' proscribes conduct which tends to annoy all good
citizens and does in fact annoy anyone present not favoring it. [Footnote 6] Commonwealth
v. Jarrett, supra at 498. Commonwealth v. Oaks, 113 Mass. 8, 9
(1873). This definition applies a two-pronged standard to disruptive conduct. It
proscribes activities which, first, most people would find to be unreasonably disruptive,
and second, did in fact infringe someone's right to be undisturbed. The first prong
is normative and protects potential defendants from prosecutions based on individual
sensitivities. The second prong requires that the crime have a victim, and thus
subjects potential defendants to criminal prosecution only when their activities
have detrimental impact." Id.
That this definition is of long standing is evident from our early cases. In Commonwealth
v. Smith, 6 Cush. 80, 81 (1850), the defendant was charged with disturbing
the peace when he and others uttered "loud exclamations and outcries . . .
to the great disturbance of divers citizens." We held that the criminal complaint
failed to allege that the defendant's noises and utterances were of the kind that
disturb the citizens of the Commonwealth, the first part of the "disturb the
public peace" definition. In Commonwealth v. Harris, 101 Mass. 29,
30 (1869), where the defendant was charged with "being a disturber and breaker
of the peace" when he "utter[ed] loud exclamations and outcries,"
we stated, in upholding the conviction: "The act must be of such a nature as
tends to annoy good citizens, and does [*593] in fact annoy such
of them as are present and not favoring it." This language was repeated in
Commonwealth v. Oaks, 113 Mass. 8, 9 (1873). See also Commonwealth v. Sweeney,
131 Mass. 579 (1881).
Surely, it is reasonable to infer that the framers of art. 2, being mindful of both
a history of religious intolerance in our Commonwealth and of the meaning of a well
established common law concept, meant to include this concept in art. 2. Thus, in
order for the defendants to practice their religion so that they do disturb the
peace, it is necessary that both parts of the definition have been satisfied. The
second prong mandates that there be a victim. Here, there was no evidence proving
that the defendants publicly sold or distributed marihuana or hashish to any nonmember
of the Ethiopian Zion Coptic Church, or that the defendants breached the peace or
did "annoy" any member of the public by engaging in their religious beliefs.
There is nothing in the record which satisfies the second part of the standard for
disturbing [**602] the peace. [Footnote 7] To the extent that a
person performs an act motivated by sincere religious beliefs and as part of a religious
ritual or ceremony, the act will be protected by art. 2 so long as it harms no victim.
[Footnote 8]
[*594] 2. The jury's role. The Nissenbaums argue that the trial
judge erred in not permitting them to present their defense of "religious use"
to the jury. I agree.
The judge instructed that "religious beliefs or other beliefs that the use
or possession of marijuana is good or proper or legal, however sincere they may
or may not be, is beside the point. The point is that such beliefs do not constitute
any defense to the possession or use or distribution or intention to use or distribute
such a substance . . . [s]o religious belief is not a defense to any of these charges"
(emphasis supplied). [Footnote 9] The judge's refusal to allow the jury to consider
the defense of protected religious use and his explicit instruction that the jury
were not to consider this defense was error.
Evidence was presented at trial as to the defendants' religious beliefs and their
possession and use of marihuana as a sacrament. "The fact that the evidence
may not be of a character to inspire belief does not authorize the refusal of an
instruction based thereon. . . . However incredible the testimony of a defendant
may be he is entitled to an instruction based upon the hypothesis that it is entirely
true." Commonwealth v. Campbell, 352 Mass. 387, 398 (1967), quoting
People v. Carmen, 36 Cal. 2d 768, 773 (1951). See also Commonwealth v.
Schnopps, 383 Mass. 178, 182 (1981); Commonwealth v. Vanderpool,
367 Mass. 743, 746 (1975).
The defendants were entitled to have the jury consider whether, in light of the
evidence presented, the defendants were protected by the provisions of art. 2. The
defendants requested that the judge instruct the jury so that the jury could consider
the defendants' religious beliefs. The judge refused. The convictions cannot stand.
In my view, the defendants are entitled to a new trial. [Footnote 10]
[*595] 3. Conclusion. The words of art. 3 of our Declaration of
Rights may be worthy of note: "[A]ll religious sects and denominations, demeaning
themselves peaceably, and as good citizens of the commonwealth, shall be equally
under the protection of the law." We held in Glaser v. Congregation Kehillath
Israel, 263 Mass. 435, 437 (1928), as to the protections afforded by arts.
2 and 3 (formerly art. 11 of the Amendments to the Constitution) that "[t]hese
great guaranties [**603] of religious liberty and equality before
the law of all religions are not confined to adherents of the Christian religion
or to societies and corporations organized for the promotion of Christianity."
What is before us are husband and wife, found by a judge to be sincere devotees
of a bona fide religion, using marihuana as a sacrament. When meaning is given to
all of the language in art. 2, and when the facts of this case are viewed in those
terms, it is clear that these convictions should not stand because the judge refused
to let the jury consider the issues of religious belief and use. I dissent.