{ "id": 1557206, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Vernon Jack BRASHEAR, Defendant-Appellant", "name_abbreviation": "State v. Brashear", "decision_date": "1979-03-06", "docket_number": "No. 3663", "first_page": "622", "last_page": "630", "citations": [ { "type": "official", "cite": "92 N.M. 622" }, { "type": "parallel", "cite": "593 P.2d 63" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "91 N.M. 154", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571078 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0154-01" ] }, { "cite": "148 S.E.2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560001 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0599-01" ] }, { "cite": "77 N.M. 433", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2809731 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0433-01" ] }, { "cite": "21 L.Ed.2d 188", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1968, "opinion_index": 0 }, { "cite": "89 S.Ct. 63", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1968, "opinion_index": 0 }, { "cite": "393 U.S. 900", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11371250, 11371179, 11371316 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/us/393/0900-02", "/us/393/0900-01", "/us/393/0900-03" ] }, { "cite": "391 U.S. 367", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767540 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/391/0367-01" ] }, { "cite": "374 U.S. 398", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8490 ], "weight": 5, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/374/0398-01" ] }, { "cite": "123 Cal.Rptr. 201", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1975, "opinion_index": 0 }, { "cite": "50 Cal.App.3d 61", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 6040057 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/cal-app-3d/50/0061-01" ] }, { "cite": "52 Cal.Rptr. 884", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1966, "opinion_index": 0 }, { "cite": "244 Cal.App.2d 176", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2189759 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/cal-app-2d/244/0176-01" ] }, { "cite": "340 N.Y.S.2d 848", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1973, "opinion_index": 0 }, { "cite": "41 A.D.2d 1021", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 5609331, 5593884, 5601998 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ad2d/41/1021-01", "/ad2d/41/1021-03", "/ad2d/41/1021-02" ] }, { "cite": "328 N.Y.S.2d 747", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1972, "opinion_index": 0 }, { "cite": "69 Misc.2d 500", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1242035 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/misc2d/69/0500-01" ] }, { "cite": "315 P.2d 394", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1957, "opinion_index": 0 }, { "cite": "153 Cal.App.2d 673", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 4421946 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/cal-app-2d/153/0673-01" ] }, { "cite": "249 F.2d 127", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 90125 ], "opinion_index": 0, "case_paths": [ "/f2d/249/0127-01" ] }, { "cite": "395 U.S. 6", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771825 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0006-01" ] }, { "cite": "392 F.2d 220", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2106502 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/f2d/392/0220-01" ] }, { "cite": "383 F.2d 851", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2078602 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/f2d/383/0851-01" ] }, { "cite": "97 Cal.Rptr. 150", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1971, "opinion_index": 0 }, { "cite": "19 Cal.App.3d 598", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4403572 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/cal-app-3d/19/0598-01" ] }, { "cite": "78 Cal.Rptr. 151", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1969, "opinion_index": 0 }, { "cite": "273 Cal.App.2d 486", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2210589 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/cal-app-2d/273/0486-01" ] }, { "cite": "61 Cal.2d 887", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2337813 ], "weight": 3, "year": 1964, "opinion_index": 0, "case_paths": [ "/cal-2d/61/0887-01" ] }, { "cite": "35 A.L.R.3d 922", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": 0 }, { "cite": "288 F.Supp. 439", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 2856521 ], "opinion_index": 0, "case_paths": [ "/f-supp/288/0439-01" ] }, { "cite": "561 P.2d 539", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10458553 ], "opinion_index": 0, "case_paths": [ "/p2d/561/0539-01" ] }, { "cite": "19 Ariz.App. 27", "category": "reporters:state", "reporter": "Ariz. App.", "case_ids": [ 1218239 ], "weight": 4, "year": 1973, "opinion_index": 0, "case_paths": [ "/ariz-app/19/0027-01" ] }, { "cite": "40 Cal.Rptr. 69", "category": "reporters:state", "reporter": "Cal. Rptr.", "case_ids": [ 2337814 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/cal-2d/61/0889-01" ] }, { "cite": "61 Cal.2d 716", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2337802 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/cal-2d/61/0716-01" ] }, { "cite": "380 U.S. 163", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524753 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0163-01" ] }, { "cite": "398 U.S. 333", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171157 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/398/0333-01" ] }, { "cite": "322 U.S. 78", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6142066 ], "weight": 4, "year": 1944, "opinion_index": 0, "case_paths": [ "/us/322/0078-01" ] }, { "cite": "406 U.S. 205", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170178 ], "weight": 17, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/406/0205-01" ] }, { "cite": "98 U.S. 145", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11293 ], "weight": 2, "year": 1878, "opinion_index": 0, "case_paths": [ "/us/98/0145-01" ] }, { "cite": "35 A.L.R.3d 939", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1971, "opinion_index": 0 } ], "analysis": { "cardinality": 1080, "char_count": 25698, "ocr_confidence": 0.789, "pagerank": { "raw": 9.01377986859491e-08, "percentile": 0.5036210605328728 }, "sha256": "e4ccb54944809dd15a2165fea4914c1603d1f5c829d7c147af80dc697fae6055", "simhash": "1:2aabef32d88e3f52", "word_count": 4139 }, "last_updated": "2023-07-14T17:06:13.817562+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and WALTERS, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Vernon Jack BRASHEAR, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant was convicted of one count of possession of marijuana and two counts of distribution of marijuana. Defendant\u2019s testimony supports the evidence of State witnesses that he possessed marijuana and also distributed marijuana to adults. His claim is that these activities were in the exercise of religion and, thus, his conviction violated constitutional provisions. See Annot., 35 A.L.R.3d 939 (1971). We disagree, discussing: (1) the constitutional right; (2) religious conduct; (3) burden on religious conduct; (4) the balancing process; and (5) sincerity of belief.\nThe Constitutional Right\nThe First Amendment to the Constitution of the United States provides for \u201cno law prohibiting the free exercise [of religion]\u201d. Article XXI, \u00a7 1 of the Constitution of New Mexico provides: \u201cPerfect toleration of religious sentiment shall be secure, and no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship.\u201d\nIn the polygamy case, Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878) stated the scope of the free exercise clause as follows:\nCongress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.\n******\nLaws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.\nThe foregoing language in Reynolds seems to indicate that a legislative provision, directed to a practice, ends the matter. Such a view is incorrect. In the compulsory school attendance case, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) states: \u201c[A] State\u2019s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically pro-\u00bb tected by the Free Exercise Clause of the First Amendment\u201d.\nWisconsin v. Yoder, supra, also states:\n[O]ur decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability.\nThus, in Wisconsin v. Yoder, supra, the United States Supreme Court examined and \u201cbalanced\u201d the interests of the state and the defendants in determining whether the \u201cexercise of religion\u201d prevented a criminal conviction for violating the state\u2019s compulsory school attendance law.\nNew Mexico prohibits the possession and distribution of marijuana except as provided by our statutes. See \u00a7\u00a7 30- 31 22 and 30-31-23, N.M.S.A. 1978. The burden of proof of any exemption or exception is upon the person claiming it. Section 30- 31-37, N.M.S.A. 1978. A claim by a defendant that he may not be convicted because his activities, though a violation of the criminal statute, were in the free exercise of religion, is a defense. The remainder of this opinion discusses the aspects of the defense and how those aspects are decided.\nReligious Conduct\nOne inquiry, as to whether this defense exists, is whether any \u201creligion\u201d is involved in the matter. By \u201creligion\u201d we mean \u201creligiously grounded conduct\u201d, Wisconsin v. Yoder, supra; that is, an action and not just a belief.\nDefendant testified that during readings from the Bible (Book of Revelations) at a marijuana smoking party in 1970, he was \u201cconverted\u201d; he knew beyond any doubt that Jesus Christ was the Word of God arid the Savior. As a result of this experience, his conduct was radically changed. \u201cI used the Bible totally as my guide as to whether I could or could not do something\u201d. Defendant engaged in intensive study of the Bible and came to the conclusion that God gave man every herb-bearing seed, including marijuana. Although defendant used marijuana prior to his conversion, marijuana was important after the conversion because marijuana was the fire with which baptisms were conducted by John the Baptist; \u201cthat is the Lord\u2019s consuming fire that is being sent upon all of mankind in the last days to destroy the evil out of him. That is the fire that comes first to the youth and then to adults. ... It cannot be quenched.\u201d We are not concerned with the validity of these beliefs. United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944).\nWhat was the conduct based on these beliefs? Defendant used marijuana and distributed it. If denied the use of marijuana, \u201cIt would prevent me from having my free access to any and all herbs which is a blessing coming to me from God\u201d. Defendant\u2019s justification for selling marijuana was that \u201cit is a free gift of God to me\u201d and Jesus Christ \u201chas delivered over all herbs\u201d. The effect of distributing marijuana \u201c[i]n a religious sense\u201d is that \u201cit spreads the herb to more brothers.\u201d Defendant has sold marijuana to both adults and minors in the past, and would have no compunction in the future about selling marijuana to minors. However, a sale to minors is not involved in this case.\nDefendant\u2019s testimony shows that his belief in the use and distribution of marijuana was based on his interpretation of the Bible, that he had the use of all herbs as a gift from God. Was this religiously-grounded conduct?\nWisconsin v. Yoder, supra, states:\nAlthough a determination of what is a \u201creligious\u201d belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau\u2019s choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.\nHow are we to determine whether defendant\u2019s choice to use and distribute marijuana was religious or philosophical and personal?\nSince everyone is precluded from making his own standards, Wisconsin v. Yoder, supra, we do not follow the approach used in decisions concerned with \u201creligious beliefs\u201d in determining whether one was entitled to conscientious objector status under the Universal Military Training and Service Act. It was held that sincere and meaningful beliefs, intensely personal, came within the meaning of \u201creligious belief\u201d under that act. Whether the registrant\u2019s belief was religious was determined \u201c \u2018in his own scheme of things \u2019 \u201d. (Emphasis in original.) Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965).\nOnly Justice Douglas, dissenting in Wisconsin v. Yoder, supra, would have followed the \u201creligious belief\u201d approach utilized in the selective service cases. As the above quotation shows, the majority opinion in Wisconsin v. Yoder, supra, rejects the \u201ceveryone makes the determination\u201d approach under the constitutional Religious Clause.\nThe fact that the individual\u2019s determination is insufficient does not tell us what is a sufficient basis for determining religiously-grounded conduct.\nWisconsin v. Yoder, supra, held that the Amish objection to compulsory school attendance was more than a matter of personal preference; rather, it was a \u201cdeep religious conviction, shared by an organized group\u201d following a traditional way of life which had not altered for centuries. Thus, Yoder suggests two considerations \u2014 whether the belief is of an organized group and whether the belief is a traditional belief.\nIn the peyote cases, the fact that an organized group espoused a belief was a factor considered in determining that the belief was religious. The organization was the Native American Church; peyote played a central role in the ceremony and practice of the church. People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964); see also State v. Whittingham, 19 Ariz.App. 27, 504 P.2d 950 (1973). The organization\u2019s belief, in itself, does not, however, determine whether a belief is religious in a particular case. The defendant may not be a member of the organization. Whitehorn v. State, 561 P.2d 539 (Okla.Crim.1977). The organization may not be a religious one. United States v. Kuch, 288 F.Supp. 439, 35 A.L.R.3d 922 (D.D.C.1968).\nThe absence of an organization espousing the belief that a defendant contends is religious does not, in itself, determine whether an individual\u2019s belief is religious. In re Grady, 61 Cal.2d 887, 39 Cal.Rptr. 912, 394 P.2d 728 (1964) did not question whether the belief of a self-styled \u201cway shower\u201d was religious; rather, the issue was whether the belief was honest and bona fide.\nVarious decisions have discussed whether the belief is a traditional one; that is, how long the belief has been held. Wisconsin v. Yoder, supra; People v. Woody, supra. State v. Whittingham, supra, refers to Peyotism as \u201can established religion of many centuries\u2019 history. . . . not a twentieth century cult nor a fad subject to extinction at a whim.\u201d Whitehorn v. State, supra, states that Peyotism \u201cis not a fad or a part of the popular drug culture.\u201d The traditionalism of a belief is a factor to be considered, particularly in connection with organizations, in determining whether a belief is religious. However, traditionalism, in itself, is not determinative because it would give no effect to conversions or to revelations.\nThe nature of the belief is a factor to be considered in determining whether the belief is religious. The peyote in People v. Woody, supra, was a protector, a sacrament, and more than a sacrament. \u201cPeyote constitutes in itself an object of worship; prayers are directed to it much as prayers are devoted to the Holy Ghost. On the other hand, to use peyote for nonreligious purposes is sacrilegious.\u201d State v. Whittingham states \u201cthe use of peyote during a \u2018meeting\u2019 is a central force and the theological basis of Peyotism. Peyote constitutes, in and of itself, an object of worship. Without it the sacraments of the Native American Church are obliterated.\u201d\nIn People v. Collins, 273 Cal.App.2d 486, 78 Cal.Rptr. 151 (1969): \u201cDefendant testified that he used marijuana in order to extend and intensify his ability to engage in meditative communication with the Supreme Being, to attain spiritual peace through union with God the Father and to search out the ultimate meaning of life and nature.\u201d Collins, supra, states: \u201c[Defendant does not worship or sanctify marijuana, but employs its hallucinogenic biochemical properties as an auxiliary to a desired capacity for communication.\u201d In People v. Werber, 19 Cal.App.3d 598, 97 Cal.Rptr. 150 (1971) the trial court ruled that defendant\u2019s use of marijuana did not constitute a religious practice within the constitutional concept of religion. This ruling was upheld \u201cin the absence of evidence that marijuana . itself constituted for the particular defendant an object of worship essential to an exclusively religious ritual.\u201d Leary v. United States, 383 F.2d 851 (5th Cir. 1967), reh. denied, 392 F.2d 220 (1968), rev\u2019d on other grounds, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) states in footnote 11: \u201cThe exemption accorded the use of peyote in the limited bona fide religious ceremonies of the relatively small, unknown Native American Church is clearly distinguishable from the private and personal use of marihuana by any person who claims he is using it as a religious practice.\u201d\nDefinitions of a religious practice or religious conduct are difficult. See Washington Ethical Society v. District of Columbia, 249 F.2d 127 (U.S.App.D.C.1957); Fellowship of Humanity v. County of Alameda, 153 Cal.App.2d 673, 315 P.2d 394 (1957); United States v. Kuch, supra. We do not attempt such a definition. Our approach has been to review decisions which considered whether a belief was religious; that is, nonsecular. On the basis of these decisions we consider whether defendant\u2019s belief in the use and distribution of marijuana was religious.\nThere is no evidence that defendant\u2019s belief was espoused by any organization or was a principle, tenet, or dogma of any organization of which he was a member. There is no evidence that defendant\u2019s belief encompasses marijuana as an object of worship or that the use and distribution of marijuana except in limited ways would be sacrilegious. There is no evidence that defendant uses marijuana to communicate with any Supreme Being; no evidence that defendant\u2019s use or distribution in any way involves any religious ceremony; no evidence that the use or distribution involves any principle, tenet, or dogma pertaining to the spiritual or eternal and, thus, nonsecular. The evidence shows that defendant\u2019s belief was derived from defendant\u2019s personal views of the Bible, and those views under the evidence are no more than that the use and distribution of marijuana was permitted because a gift from God. Such a permitted personal use does not amount to an intrinsic part of a religion, however religion may be defined. People v. Crawford, 69 Misc.2d 500, 328 N.Y.S.2d 747 (1972), affirmed 41 A.D.2d 1021, 340 N.Y.S.2d 848 (1973).\nAs stated in People v. Mitchell, 244 Cal.App.2d 176, 52 Cal.Rptr. 884 (1966):\n[Djefendant has offered no evidence that his use of marijuana is a religious practice in any sense of that term. In defendant\u2019s discourse to the jury he did refer to the Bible and to the practices of some Hindus, but in essence he was expressing only his own personal philosophy and way of life.\nDefendant\u2019s belief as to the use and distribution of marijuana was not a religious belief.\nPeople v. Mitchell, supra, referred to defendant\u2019s \u201cdiscourse to the jury\u201d. In this case defendant also discoursed, in the presence of the jury, concerning his beliefs. Recognizing that an \u201cexercise of religion\u201d defense has a potential as a fad defense, we point out: 1) whether a defendant\u2019s belief is \u201creligious\u201d is to be decided by the trial court, and 2) unless the trial court rul\u00e9s that the belief is religious, evidence of a defendant\u2019s religious belief should not be introduced before the jury. People v. Mullins, 50 Cal.App.3d 61, 123 Cal.Rptr. 201 (1975); People v. Werber, supra.\nBurden on Religious Conduct\nDefendant asserts that a statute or regulation which imposes any burden on the exercise of religious conduct is unconstitutional. \u201cAny burden\u201d language is used in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), but that case does not support such a broad proposition. A burden on the exercise of religious conduct does not exist if it \u201cdoes not deny the free exercise of religious belief by its requirement\u201d. Wisconsin v. Yoder, supra. To be a burden, the \u201cstate regulation must be of the nature and quality so as to preclude or prohibit the free exercise of religion.\u201d State v. Whittingham, supra.\nA second inquiry in connection with the free exercise defense is whether the state regulation does prohibit or preclude the free exercise of religion. We recognize that in most cases this inquiry will be hardly distinguishable from the balancing test involved in the third inquiry, subsequently discussed. People v. Woody, supra, held that forbidding the use of peyote destroyed the theological heart of Peyotism. In Wisconsin v. Yoder, supra, \u201cthe State\u2019s requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of . [the Amish] religious beliefs.\u201d Thus, the decision as to the existence of a burden may forecast the decision under the balancing test. However, there may be cases where it does not; the impact of the regulation may be so slight as to not amount to a burden on the exercise of religion.\nPeople v. Collins, supra, states:\nAccording to the present record, defendant does not worship or sanctify marijuana, but employs its hallucinogenic biochemical properties as an auxiliary to a desired capacity for communication. Whether this use is sacramental or philosophical is as much a verbal as legal question. . . . The point here is that the law does not bar him from practices indispensable to the pursuit of his faith. Rather, it compels him to abandon reliance upon an artificial aid and to utilize other, perhaps self-induced means to attain the desired intensification of apperception.\nIf defendant can obtain his \u201chigh\u201d (his desired intensification of perception) by other means, requiring him to forego marijuana in obtaining that perception, would not be a burden on the free exercise of religion. See People v. Mullins, supra.\nThis second inquiry, concerning a burden, is a matter to be decided by the trial court. People v. Mullins, supra; People v. Werber, supra.\nIn this case, if defendant\u2019s belief as to the use and distribution of marijuana was religious, prohibition of that practice would be a burden on the free exercise of religion.\nBalancing Process\nIf religious-grounded conduct is burdened by a state regulation, the third inquiry involves a balancing of the interests involved. If the regulation is a burden which denies the free exercise of religion, the regulation will not be sustained against the exercise of religion defense unless \u201cthere is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.\u201d Wisconsin v. Yoder, supra.\nWhat type of interest amounts to an interest of \u201csufficient magnitude\u201d? Wisconsin v. Yoder, supra, refers to \u201cinterests of the highest order\u201d. Sherbert v. Verner, supra, refers to a \u201ccompelling state interest\u201d directed to grave abuses endangering \u25a0paramount interests. United States v. O\u2019Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), reh. denied, 393 U.S. 900, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968), a \u201cfree speech\u201d case, states: \u201cWhatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if . .it furthers an important or substantial government interest\u201d. This same approach was applied in United States v. Kuch, supra, an exercise of religion case. United States v. Kuch states: \u201c[Cjlaims of religious exemption will be honored unless a substantial state interest will be frustrated in a significant way.\u201d\nThe power to define crimes is a legislative function. State v. Allen, 77 N.M. 433, 423 P.2d 867 (1967). The Legislature has prohibited the use and distribution of a variety of substances, except in limited situations, in the Controlled Substances Act. Sections 30-31-1, et seq., N.M.S.A.1978. Among the substances prohibited is marijuana, \u00a7\u00a7 30-31-22 and 30-31-23, supra. Generally speaking, the legal use of marijuana is limited to specified research, and that research is regulated. Sections 26-2A-1 through 7, N.M.S.A.1978 (Supp.1978). As a part of the regulation of marijuana, the Legislature classified it as an hallucinogenic substance. Section 30-31-6(C), N.M. S.A.1978 (Supp.1978).\nThe State introduced no evidence to rebut the defense evidence concerning the free exercise defense. There may be cases where the absence of evidence by the State may be determinative of the State\u2019s \u201ccompelling interest\u201d position. Compare Sherbert v. Verner, supra. However, the absence of such evidence in this case does not aid defendant.\nHere we have legislation comprehensively regulating the use and distribution of marijuana. This legislation reflects a legislative judgment that prohibition of the use and distribution of marijuana is a substantial interest of the State.\nDefendant introduced evidence at trial to the effect that lots of people use marijuana. If the purpose of this evidence was an attempt to show the State\u2019s interest in regulating marijuana was less than substantial, that purpose was not served. It is the Legislature that determines whether certain conduct should be criminal, not the judiciary.\nDefendant also introduced evidence that the effects of marijuana were reversible. There is no evidence, from any party, as to what those effects might be. United States v. Kuch, supra, refers to a study \u201cnoting that marihuana is known to distort perception of time and space, modify mood and impair judgment, which may result in unpredictable behavior\u201d. This is consistent with the legislative judgment that marijuana is an hallucinogenic substance. Leary v. United States, supra, states: \u201c[I]t was not incumbent upon the Government to produce evidence to controvert the testimony of witnesses on the controversial question whether use of the drug is relatively harmless.\u201d\nOur point is this: The legislative judgment that certain conduct is criminal, sufficiently establishes a compelling state interest in enforcing the particular criminal statute involved.\nIf the State\u2019s interest in enforcing the law prohibiting the use and distribution of marijuana is not enforced against defendant, would the State\u2019s interest be frustrated in any significant way? Yes. To exempt defendant from the applicable criminal law would be no slight exception. Such an exemption would permit anyone to violate the law by advancing the same claims made by defendant. The testimony elicited by defendant suggests there are many who would be \u201cconverted\u201d to believe the use and distribution of marijuana was a gift from God. See United States v. Kuch, supra. The legislative regulation of marijuana would soon be a nullity.\nHow does defendant\u2019s interest balance against the compelling state interest to regulate marijuana when the State\u2019s interest would be frustrated by nonenforcement? The evidence is sparse; there is no evidence comparable to the evidence introduced by the Amish as to their interests in Wisconsin v. Yoder, supra. Defendant\u2019s evidence is that if denied the use and distribution of marijuana, he would be denied the use of a free gift from God. Compare the evidence in People v. Mullins, supra.\nUnder the balancing test, denying defendant this free gift would not be an unconstitutional denial of the free exercise of religion even if defendant\u2019s belief were religious. People v. Mullins, supra; People v. Werber, supra. \u201c[I]t is not a violation of his constitutional rights to forbid him, in the guise of his religion, to possess a dfug which will produce hallucinatory symptoms\u201d. State v. Bullard, 267 N.C. 599, 148 S.E.2d 565 (1966).\nThis third inquiry, the balancing test, is to be determined by the court. People v. Mullins, supra.\nSincerity of Belief\nA fourth inquiry concerning the exercise of religion defense is \u201cwhether the claimant holds his belief honestly and in good faith or whether he seeks to wear the mantle of religious immunity merely as a cloak for illegal activities.\u201d People v. Woody, supra. This issue is decided by the trier of facts. United States v. Ballard, supra; People v. Werber, supra. The decision is made on whatever evidence is at hand. People v. Woody, supra. Thus, this fourth inquiry, in contrast to the other three inquiries, may be an issue for the jury to decide.\nWhen does this fourth inquiry become a jury issue? The evidentiary problem as to this fourth inquiry is similar to the evidentiary problem in connection with the defense of insanity at the time the offense was committed. Thus: 1) the trial court determines whether the evidence as to the sincerity of the religious belief is sufficient to permit the jury to consider it as a factual question; 2) if the trial court determines the evidence is sufficient to raise a factual issue, ordinarily \u201csincerity\u201d is to be submitted to the jury for decision; 3) there may be instances, admittedly rare, where the evidence is so clear that the trial court may rule that the belief was sincere. See State v. Murray, 91 N.M. 154, 571 P.2d 421 (Ct.App.1977).\nAlthough we have characterized the fourth inquiry as one of \u201csincerity\u201d, the issue, when it is to be decided by the jury, is whether defendant \u201cholds his belief honestly and in good faith\u201d.\nIn this case, the fourth inquiry would have been a jury question because the evidence of \u201csincerity\u201d was sufficient to raise a jury issue.\nThe transcript does not show on what basis the trial court refused all requested instructions concerning the exercise of religion defense. However, the instructions were properly refused because, under the evidence, defendant failed to show that his belief was religious and, therefore, failed to show that his conduct in using and distributing marijuana was religiously-grounded conduct. In addition, the instructions were properly refused because denial of the exercise of religion claim was proper under the balancing test.\nThe judgment and sentences of the trial court are affirmed.\nIT IS SO ORDERED.\nHENDLEY and WALTERS, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "John B. Bigelow, Chief Public Defender, Reginald J. Storment, App. Defender, Santa Fe, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Lawrence A. Gamble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "593 P.2d 63\nSTATE of New Mexico, Plaintiff-Appellee, v. Vernon Jack BRASHEAR, Defendant-Appellant.\nNo. 3663.\nCourt of Appeals of New Mexico.\nMarch 6, 1979.\nJohn B. Bigelow, Chief Public Defender, Reginald J. Storment, App. Defender, Santa Fe, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Lawrence A. Gamble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0622-01", "first_page_order": 658, "last_page_order": 666 }