This article is from Vol. 1, Issue No. 1 pages 55-57 (Winter 1999/2000)
All rights reserved worldwide.  ISSN: 1527-3946


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Religious Defense Under RFRA
Still Alive in Federal Court

By Richard Glen Boire, Esq.

The Religious Freedom Restoration Act of 1993 (42 U.S.C.A. Section 2000bb) was designed by Congress to protect the free exercise of religion. RFRA states:

[T]he government shall not substantially burden a persons exercise of religion even if the burden results from the rule of general applicability person whose religious exercise has been substantially burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding.

Pursuant to RFRA, the U.S. government must accommodate a person’s religious conduct unless there is a compelling government interest that all but makes accommodation impossible. The government has the burden of proving such an overriding interest once a defendant shows that a law substantially burdens his or her religious practice.

In 1997, the U.S. Supreme Court ruled that RFRA was unconstitutional because it improperly infringed upon the states’ rights to control their own police power. (See City of Boerne v. Flores (1997) 521 U.S. 507.) A recent case from Guam, has interpreted the Supreme Court’s decision narrowly, holding that RFRA is still applicable to the federal government.1

In an unpublished case from the Superior Court of Guam, Judge Michael J. Bordallo, dismissed criminal charges of illegally importing marijuana against Benny Guerrero, a practicing Rastafarian. Mr. Guerrero was arrested at the Guam airport in 1991, after Custom’s officers found some marijuana in his backpack. In court, Mr. Guerrero presented evidence that he is a priest in the Rastafarian religion and that marijuana is his sacrament. He moved to dismiss the charges against him as in violation of RFRA, arguing that the anti-marijuana laws made him a criminal for practicing his religion and the government of Guam had no compelling reason for not permitting his use of marijuana within the context of his religion. The prosecution predictably responded that RFRA was no longer valid, having been declared unconstitutional.

In an unusual display of judicial courage and scholarship, Judge Bordallo rejected the prosecutions argument and dismissed the case against Mr. Guerrero, finding that RFRA, while no longer valid with respect to state laws, remained valid with respect to federal laws, including those laws which govern Guam.

The upshot of this case for those living in the United States is that RFRA has, in at least one respect, risen from the dead. As the Guerrero case shows, the U.S. Supreme Court’s 1997 Boerne decision can be interpreted as leaving RFRA valid when applied to federal laws or other federal actions which infringe on religious practices. Accordingly, a person who is charged with a federal crime springing from his or her religious use of an outlawed entheogen, such as LSD or marijuana, ought to argue that his or her conduct was protected by RFRA.



1 The Guam case was People v. Guerrero (No. 0001-91) Superior Court of Guam. The opinion, while unpublished, is available for review at the CCLE's Web site:

Several published cases offer further support for the argument that RFRA still applies to the federal government. (See Abordo v. Hawaii (1995) 902 F.Supp. 1220; U.S. v. Martinez (1996) 84 F.3d 1549.)

Richard Glen Boire, Esq. is the executive director of the Center for Cognitive Liberty & Ethics.