Spiritual High

"Court OKs Use of Religious Pot on Federal Lands," announced the headline in the San Francisco Chronicle. The article clarified that it's the religion of the pot smoker, not the pot itself, that matters. "If you're a Rastafarian who considers marijuana holy," the Chronicle reported, "it's legal to light up in Guam--and maybe in any national park on the West Coast."

Before they rush to reserve campsites at Yosemite, Rastafarians should take a closer look at the decision the Chronicle was talking about. In People of Guam v. Benny Toves Guerrero, the U.S. Court of Appeals for the 9th Circuit actually rejected a Rastafarian's claim that the federal Religious Freedom Restoration Act (RFRA) protected him from prosecution for bringing marijuana into Guam.

Guerrero (who goes by the Rastafarian name Iyah Ben Makahna) was arrested at the Guam International Airport with five ounces of pot and 10 grams of marijuana seeds. At his trial, he successfully argued that his prosecution violated RFRA, which says a law that substantially burdens the free exercise of religion is invalid unless the government shows that it is the least restrictive means of serving a compelling state interest.

Until 1990, that was the standard the U.S. Supreme Court applied to laws that impinge on religious freedom. That year, in a case involving peyote use by members of the Native American Church, the Court held that such laws do not violate the First Amendment as long as they impose "neutral rules of general applicability." RFRA, which Congress passed in 1993, was intended to restore the stricter "compelling interest" test.

Although the Supreme Court ruled in 1997 that Congress did not have the authority to impose this standard on the states, it did not address the law's operation in federal territories such as Guam or on federal lands such as national parks. In Guerrero, the 9th Circuit ruled that RFRA does apply in the "federal realm."

But the court concluded that Guam's law against importing marijuana does not "substantially burden" the religious practices of Rastafarians, since they can smoke their sacramental herb without bringing it into the territory (presumably by growing their own or buying it locally). Hence the court never addressed the issue of whether the law meets the "compelling interest" test. In finding that it did not, the Supreme Court of Guam had noted simply that "no evidence on this score was presented."