Metropolitan News-Enterprise


Wednesday, May 29, 2002


Page 1


Ninth Circuit Rejects Rastafarian’s ‘Religious Freedom’ Defense to Charge of Marijuana Importation


By KENNETH OFGANG, Staff Writer/Appellate Courts


A member of the Rastafarian faith does not have the right to bring marijuana into Guam, either under the territory’s Bill of Rights or the federal Religious Freedom Restoration Act, the Ninth U.S. Circuit Court of Appeals has ruled.

Reversing the Supreme Court of Guam, a Ninth Circuit panel—which heard argument in Honolulu in November—reinstated drug charges against Benny T. Guerrero. The court did, however, leave open the possibility that such a defense might succeed if raised to a charge of simple possession.

Guerrero, who has used the Rastafarian name Iyah Ben Makahna for 20 years but was indicted under his birth name, was arrested at Guam International Airport with five ounces of marijuana and 10 grams of marijuana seeds in his luggage.

A Superior Court judge, in a 1999 ruling, held that as a legitimate member of Rastafarianism, a religion to which marijuana use is central, Guerrero had a right to use the drug under both the territorial Bill of Rights and RFRA.

The Guam Bill of Rights is part of the Organic Act, which is a federal law. Its Free Exercise Clause is virtually identical in wording to that of the First Amendment.

RFRA is a 1993 federal act prohibiting the states or the federal government from substantially burdening the free exercise of religion except upon a showing of a compelling governmental interest and by employing the least restrictive means necessary to serve that interest.

RFRA was a congressional response to 1990’s Employment Division v. Smith, 494 U.S. 872, in which the court held that members of a Native American religion had no constitutionally protected right to use peyote in connection with their rituals.

A 1997 U.S. Supreme Court decision held the law unconstitutional as applied to the states, but left open the question of whether it may still be applied as a restriction on federal authority. While the original statute remains on the books, a more limited version, purporting to apply to all levels of government, was enacted as the Religious Land Use and Institutionalized Persons Act of 2000.

In Guerrero’s case, the trial judge concluded that RFRA applied and that the government lacked a compelling interest in preventing Rastafarians from using marijuana. The judge also concluded that the compelling-interest standard applied under both RFRA and the Organic Act.

The Guam Supreme Court, without ruling on whether RFRA applied, affirmed under the Organic Act. It reasoned that the compelling-interest standard of RFRA and some pre-Smith U.S. high court decisions was consistent with the principles expressed in Guam’s Billl of Rights.

But the Organic Act section establishing the Supreme Court of Guam gives the Ninth Circuit discretion to review the Guam court’s decisions, and the panel granted the Guam attorney general’s petition for certiorari.

Judge Diarmuid O’Scannlain, writing for the Ninth Circuit, said the territorial courts erred in not applying the Guam Free Exercise Clause in a manner consistent with its federal counterpart, and that Guerrero may be prosecuted under a proper application of Smith.

The judge rejected the argument that Guam may interpret the Organic Act as granting greater individual freedom than the federal Bill of Rights, just as the courts of California and other states have sometimes interpreted their state constitutions as doing so.

Guam, he noted, “is not a state, has no locally adopted constitution, and its ‘Bill of Rights’ was passed not by its citizens, but rather by Congress.” He cited a 1904 ruling that local courts in the Philippines, then under a U.S. military government, could not interpret the Double Jeopardy Clause of the statutory bill of rights enacted for the islands by Congress as having a meaning different than that of its Fifth Amendment counterpart.

O’Scannlain did, however, agree with the lower courts that RFRA is constitutional as applied to the federal government, and that since Guam’s government is a federal instrumentality, the act applies to Guam.

But the jurist concluded that Guam may prevent Rastafarians from importing marijuana, even if it is central to their religion, a question the panel declined to address.

“[W]hile a statute proscribing simple possession of marijuana might substantially burden Guerrero’s ability to practice Rastafarianism, a statute forbidding importation certainly would not,” he wrote.

The territory, he added, has a strong interest in preventing importation, even by persons who might have a legal right to use the drug, since importation makes it harder to enforce the drug laws against others.

The opinion was joined by Senior Judges Robert R. Beezer and David R. Thompson.

The case is People of Guam v. Guerrero, 00-71247.


Copyright 2002, Metropolitan News Company