Pubdate: Sat,  1 Jun 2002
Source: Daily Camera (CO)
Copyright: 2002 The Daily Camera.
Bookmark: (Spiritual or Sacramental)
Note: For links to the actual ruling and more see


SAN FRANCISCO - If you're a Rastafarian who considers marijuana holy, it's
legal to light up in Guam and maybe in any national park on the West Coast.

At least that seemed to be the conclusion of a federal appeals court in San
Francisco, which said this week that a 1993 religious-freedom law puts
limits on prosecutions in the "federal realm" specifically in a U.S.
territory like Guam, or potentially within any other federal property.

A three-judge panel said a Rastafarian whose Jamaica-based religion regards
marijuana as a sacrament that brings believers closer to divinity could not
be federally prosecuted for merely possessing marijuana, a decision that
upheld a portion of the 1993 Religious Freedom Restoration Act.

The same reasoning would apply to drug prosecutions on other federal
property, such as national parks, said Barry Portman, the federal public
defender in San Francisco. He said marijuana possession for personal use is
prohibited by federal law but is rarely prosecuted.

The ruling did not help the defendant in the Guam case, however, as the
court said he could be prosecuted for importing marijuana.

"Rastafarianism does not require importation of a controlled substance,
which increases (its) availability," the court said.

That distinction doesn't make sense, said Graham Boyd, the American Civil
Liberties Union lawyer who argued the case and plans to seek review by a
larger appellate panel. "It's equivalent to saying wine is a necessary
sacrament for some Christians but you have to grow your own grapes," he

The religious freedom law protects religious practices from legal
interference unless the government can show a compelling need for
enforcement. It was prompted by a 1990 U.S. Supreme Court ruling allowing
Oregon to enforce an anti-drug law against a Native American who used peyote
for religious purposes.

In 1997, the Supreme Court ruled that the federal statute was an
unconstitutional interference with states' authority to enforce their own
religiously neutral laws but that ruling applied only to state prosecutions.

On Tuesday the 9th U.S. Circuit Court of Appeals said the 1993 law was a
valid restriction on the federal government, reasoning that Congress had the
power to create religious exemptions to laws it had originally passed.

The ruling, which follows decisions by two other appeals courts, applies to
California, eight other Western states, and the Pacific territories of Guam
where the case originated and the Northern Mariana islands.

If it became a nationwide standard, it would also cover such federal
enclaves as Washington, D.C., and Puerto Rico, defense lawyers said.

The case involved Benny Toves Guerrero, a Rastafarian arrested at the Guam
airport with five ounces of marijuana and 10 ounces of seeds. He was charged
with importing the drugs from Hawaii.
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