ARTICLE: Up in Smoke: The Religious Freedom Restoration Act and Federal Marijuana Prosecutions Skip over navigation
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Copyright (c) 2013 Oklahoma City University
Oklahoma City University Law Review

ARTICLE: Up in Smoke: The Religious Freedom Restoration Act and Federal Marijuana Prosecutions

Fall, 2013

Oklahoma City University Law Review

38 Okla. City U.L. Rev. 319


John Rhodes*


I. Introduction
The Free Exercise and Establishment Clauses of the First Amendment guarantee that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." 1 In 1993, Congress enacted the Religious Freedom Restoration Act (RFRA), 2 which, as a matter of statutory law, reestablished the analytical framework to adjudicate free-exercise rights under the First Amendment that the Supreme Court had discarded in the 1990 seminal case of Employment Division v. Smith. 3

To gain First Amendment protection prior to Smith, a free-exercise claimant had to establish that the government substantially burdened the claimant's religious exercise without a compelling government interest and that the burden imposed was not the least restrictive manner of achieving the government's interest. 4 In Smith, the Supreme Court affirmatively abandoned this test and focused instead on whether the contested law was one of general applicability and neutral toward religion, in which case there would be no constitutional violation regardless of the law's effect on the particular claimant. 5 Dissatisfied, Congress responded by enacting RFRA, and a wide array of litigation followed.

RFRA defenses have been used in a variety of contexts, including a Quaker's failure to pay taxes, 6 a claim by a non-profit group prosecuted for concealing its support and promotion of an Islamic holy war, 7 Orthodox Jewish children's objection to testifying before a grand jury investigating their parent, 8 a Methodist minister's prosecution for unlawfully entering a naval installation, 9 bail determination for ...
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