U.S. hears Guam
marijuana case

The court listens to an appeal
against a Rastafarian seeking
freedom of religion

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By Rosemarie Bernardo
rbernardo@starbulletin.com

Rastafarians smoke marijuana in a rite as common as communion for Catholics, an attorney of the American Civil Liberties Union said after a first-of-its-kind hearing before the 9th U.S. Circuit Court of Appeals.

"Marijuana is a common necessary sacrament to the Rastafarian religion," said Graham Boyd, director of the ACLU's Drug Policy Litigation Project.

At a hearing in the 9th Circuit courtroom in Honolulu yesterday, ACLU attorneys argued a Guam resident's right to smoke marijuana. The territory of Guam is trying to overturn territorial court rulings dismissing criminal charges against Benny Toves Guerrero

This is the first case of its kind to be heard by any federal court, Boyd said.

According to Boyd, Guerrero was returning to Guam from Hawaii on Jan. 2, 1991. Upon arrival at the A.B. Won Pat Guam International Airport, custom officials became suspicious after observing Guerrero carrying a book on Rastafarianism and marijuana. Officials searched his bag and discovered a seven-ounce bag of marijuana. Guerrero, whose Rastafarian name is Ras Iyah Ben Makhana, was arrested and charged with importation of a controlled substance.

Guerrero moved to dismiss his indictment, stating prosecution violated his right to exercise his religion under the Constitution of Guam and the Religious Freedom Restoration Act of 1993.

A lower court agreed. On Sept. 8, 2000, the Supreme Court of Guam ruled the use of marijuana by a Rastafarian for religious purposes is protected under the Free Exercise Clause of the Constitution of Guam. The Guam government then appealed the ruling to the 9th Circuit.

Guerrero, who is in his mid-40s, has been a follower of Rastafarianism for 19 years, Boyd said.

Rastafarianism originated in Jamaica. Followers of the Rastafarian religion smoke marijuana for spiritual purposes and as a sacrament of their faith.

Guam should be allowed to guarantee individuals the right to use marijuana for religious purposes without fear of federal interference, Boyd said.

"If he loses his case, it will really affect him from practicing his religion ... We're a religious, diverse nation and one of the cornerstones of democracy is tolerance," he said.

At the hearing, ACLU attorney Nelson Tebbe said federal courts have historically recognized the competence of territorial supreme courts to rule on matters of local tradition and culture.

"Rastafarianism is a legitimate religion," he added. "Our client Ras Makhana is a devout adherent to this religion, and the use of marijuana as a sacrament is necessary for the practice of his faith. Guam's high court is best suited to understand and appreciate the unique customs of its people."

"There is a question of whether federal court is going to interfere with the Guam court," Boyd said. "It's time to allow Guam courts to make their own decisions concerning Guam laws."

Boyd said Guam's argument is that its Bill of Rights does not protect Guerrero's religious freedom.

Tricia Ada, who is representing Guam, could not be reached for comment.

Three judges of the 9th U.S. Circuit Court of Appeals are expected to issue a ruling on the case in three to six months.