State v. Bullard (1966)
In 1966, the same year that the Mitchell case was decided in California, an entheogen case reached the Supreme Court of North Carolina.1 The case began about a year earlier when police officers from the Chapel Hill, North Carolina Police Department searched the home of William Bullard, III. The search turned up “a quantity of peyote and marijuana.” Before a jury, Mr. Bullard took the stand and testified that he was a peyotist with Buddhist leanings and had recently joined a church known as the “Neo-American Church.”2
Mr. Bullard testified that as a member of the Neo-American Church he believed both peyote and marijuana were incarnations of the spirit of God. He testified that as part of his religious beliefs “peyote is most necessary and marijuana is most advisable.”3
At the end of the evidentiary portion of the trial, the judge refused to instruct the jury that they could acquit Mr. Bullard if they found that his use of peyote and marijuana was part of his religious practice. In fact, the judge actually instructed the jury that if they found that Mr. Bullard was in possession of peyote and marijuana (actions that Mr. Bullard admitted), the jury would have no choice but to find him guilty. With little left to decide, the jury wasted no time returning a guilty verdict.
On appeal, the North Carolina Supreme Court began its analysis by highlighting the trial testimony of a prosecution witness named Mr. Starling, a graduate of the Federal Bureau of Narcotics “Advanced Training School.”4 After noting that “agent” Starling “taught school to local police officers on various aspects of narcotic investigation,” the North Carolina Supreme Court quoted agent Starling’s testimony describing peyote “as a plant . . . used sometimes by persons who use narcotics illegally to produce certain hallucination type effects.” Agent Starling described marijuana as “a narcotic . . . weed that distorts the senses.”5
With regard to Mr. Bullard’s religious affiliation, the North Carolina Supreme Court seemed to accept as true his testimony that Neo-American Church meetings revolved around “the central event” of using peyote “in quantities sufficient to produce a hallucinatory state.”6 In an interesting passage, the court described a Neo-American Church peyote-ceremony (including the effects of peyote) with verbatim language from the California Supreme Court’s opinion in Woody.7 The North Carolina Supreme Court failed to acknowledge, and may not have recognized, the source of the description or that it originally described a Native American Church meeting.8
After setting out the facts of the case, the court began by questioning the sincerity of Mr. Bullard’s asserted religious motivation. If his peyote and marijuana was truly for religious purposes, the court wondered, why didn’t Mr. Bullard tell the police this when he was arrested?
Some doubt may be cast upon the validity if the defendant’s claim that he uses these drugs only in connection with his religion. The officers testified that in their discussion with him at the time the drugs were found in his apartment that the defendant made no mention of his religion nor the need for the drugs in connection therewith. The jury might well have found that [his religious] claim was a defense invented by the defendant long after his arrest.9
In the court’s analysis, Mr. Bullard’s claim of religious motivation was questionable, and the evidence equivocal enough that the jury could have found — where it allowed to consider the religious defense — that that Mr. Bullard’s religious claims were specious.10 Further the court explained that even if the jury had found that Mr. Bullard’s religious claims were sincere, this did not give him a right to violate the North Carolina’s drug prohibition laws.
Mr. Bullard countered that the First Amendment constituted:
a guarantee by government that all citizens shall be free to believe whatsoever they choose as to the nature of and the relationship between God and man and that the practices founded upon those beliefs shall not be hindered or impaired unless and until the conduct reaches the proportions of maleficent criminal conduct. Hence the State is forbidden from adopting any regulation dictating what any person’s religious beliefs may or may not be.11
In response, the North Carolina Supreme Court recited the distinction between religious beliefs and religious conduct first enunciated by the United States Supreme Court in the Reynolds case. While the Free Exercise Clause prohibited laws that sought to constrain religious belief, it did not bar lawmakers from regulating, or under some circumstances completely prohibiting, religious practices “inimical to the public welfare.” Conduct like Mr. Bullard’s use of the outlawed drugs peyote and marijuana, said the court, even if sincerely motivated by religious beliefs, could be prohibited by legislation without violating the First Amendment’s religious protections.
As explained by the court:
Even if he were sincere, the first amendment would not protect him. It is true that this amendment permits a citizen complete freedom of religion. He may belong to any church or to no church and may believe whatever he will, however fantastic, illogical or unreasonable, but nowhere does it authorize him in the exercise of his religion to commit acts which constitute threats to the public safety, morals, peace and order.12
Evidently, the North Carolina Supreme Court erroneously saw the Reynolds’ belief/conduct distinction as dispositive. As previously discussed, however, only three years before Mr. Bullard’s case, the United States Supreme Court held in Sherbert that free exercise analysis did not end with the belief/conduct distinction. Rather, Sherbert emphasized that the distinction only separated absolute protection from conditional protection. Religious beliefs were absolutely protected by the First Amendment, but religious practices, while not absolutely protected, were protected if they passed the two-pronged “strict scrutiny” test.
As bears repeating, the strict scrutiny test established in Sherbert requires the government to justify a law’s impact on a person’s religious practice by showing that the law was necessary to advance a “compelling governmental interest.” Without acknowledging the existence of the test mandated by the United States Supreme Court in Sherbert, let alone applying it, the North Carolina Supreme Court held that Mr. Bullard, regardless of his religious beliefs, could not engage in conduct that the state had outlawed:
The defendant may believe what he will as to peyote and marijuana and he may conceive that one is necessary and the other is advisable in connection with his religion. But it is not a violation of his constitutional rights to forbid him, in the guise of his religion, to possess a drug which will produce hallucinatory symptoms similar to those produced in cases of schizophrenia, dementia praecox, or paranoia, and his position cannot be sustained here — in law nor in morals.13
Notes
1 State v. Bullard (1966) 148 S.E.2d 565.
2 The Neo-American Church was incorporated in California in 1965. More details of its structure and tenets as well as its members spate of court battles are discussed at more length in the Kuch case, infra.
3 Bullard, supra, 148 S.E.2d at p. 568.
4 The Federal Bureau of Narcotics was the predecessor to the Drug Enforcement Administration (DEA) which was not created until 1973.
5 Bullard, supra, 148 S.E.2d at p. 568.
6 Ibid.
7 Ibid.
8 Interestingly, the Neo-American Church was incorporated less than one year after the Woody decision. Its founders undoubtedly established the structure of its peyote ceremony — or at least the literature describing it — to conform to the Native American Church ceremony.
9 Bullard, supra, 148 S.E.2d at p. 568.
10 Ibid.
11 Ibid.
12Id. at pp. 568–569.
13Id. at p. 569.
