Legal

Important Legal Information for Sugarleaf Church Members and Officers of the Courts of the United States State laws do not trump federal laws. According to the U.S. Constitution, specifically the Supremacy Clause found in Article VI, federal law is the "Supreme Law of the Land." This means that when there is a conflict between federal law and state law, federal law prevails. Here's how it works: Supremacy Clause: The Supremacy Clause establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority constitute the supreme law of the land. This means that federal law takes precedence over state law. Preemption: If a state law conflicts with a federal law, the federal law will "preempt" the state law. There are two types of preemption: Express Preemption: When a federal law explicitly states that it overrides state law. Implied Preemption: When a federal law doesn't explicitly state it overrides state law but the conflict between federal and state law is so significant that the state law must give way. Constitutional Limits: Federal laws must be made within the limits of the Constitution. If a federal law exceeds the powers granted to the federal government by the Constitution, it can be challenged and possibly struck down. For example, if a state law allows something that a federal law prohibits, the federal law will override the state law. Similarly, if a state law tries to prohibit something that a federal law permits, the state law would be overridden by the federal law. However, states can pass laws in areas not covered by federal law or in areas where they are allowed to set their own regulations, as long as they don't conflict with federal law. The principle that federal law trumps state law is supported by the Supremacy Clause in Article VI of the U.S. Constitution and has been upheld in several key Supreme Court cases. Here are a few landmark cases that support this principle: McCulloch v. Maryland (1819): This case established that states cannot interfere with or tax the legitimate activities of the federal government. The Supreme Court, under Chief Justice John Marshall, ruled that the state of Maryland could not tax the Second Bank of the United States. The decision emphasized the supremacy of federal laws over state laws and reinforced the federal government's implied powers under the Constitution. Gibbons v. Ogden (1824): This case involved a dispute between state and federal regulations of interstate commerce. The Supreme Court ruled that the federal government had the exclusive power to regulate interstate commerce under the Commerce Clause of the Constitution. This decision reinforced the idea that federal law takes precedence over state law in matters of interstate commerce. Cooper v. Aaron (1958): In this case, the Supreme Court reaffirmed that state officials are bound by the Supreme Court's decisions and must enforce them even if they disagree. This case arose from resistance to the Court's decision in Brown v. Board of Education, which ordered the desegregation of public schools. The Court emphasized that the Constitution is the supreme law of the land, and its interpretation by the Supreme Court is binding on all states. Arizona v. United States (2012): This case involved a state law that sought to address immigration enforcement, an area traditionally under federal jurisdiction. The Supreme Court struck down several provisions of the Arizona law, ruling that federal law preempts state law in the area of immigration enforcement. The decision reaffirmed the principle that federal law supersedes conflicting state laws. These cases collectively demonstrate the application of the Supremacy Clause and the principle that federal law overrides conflicting state laws. a police officer or an officer of the court can violate your federal rights. However, such violations are unlawful and can lead to various legal consequences for the offending officer and the law enforcement agency or court they represent. Here are some key points: Police Officers: Police officers are required to respect the constitutional rights of individuals, including the Fourth Amendment right against unreasonable searches and seizures, the Fifth Amendment right against self-incrimination, and the Fourteenth Amendment right to due process and equal protection under the law. If a police officer violates these rights, it can result in various legal actions, including suppression of evidence obtained through illegal means, civil lawsuits under Section 1983 of the Civil Rights Act, and potential criminal charges against the officer. Officers of the Court: Officers of the court, such as judges, prosecutors, and other legal professionals, also have a duty to uphold constitutional rights. Violations of federal rights by these officers can lead to appeals, reversals of convictions, disciplinary actions, and lawsuits. Legal Remedies: Victims of rights violations can file a lawsuit under 42 U.S.C. § 1983, which allows individuals to sue state actors for civil rights violations. Complaints can also be filed with internal affairs divisions of police departments, state bar associations, or judicial conduct boards, depending on the nature of the violation and the officer involved. Qualified Immunity: Police officers and other government officials often have qualified immunity, which protects them from lawsuits unless it can be shown that they violated clearly established statutory or constitutional rights of which a reasonable person would have known. Notable Cases: There are many notable cases in U.S. history where federal courts have ruled against police officers and court officers for violating individuals' federal rights, leading to significant legal precedents and reforms. Notable Cases Involving Police Officers: Mapp v. Ohio (1961) Issue: Fourth Amendment rights against unreasonable searches and seizures. Summary: The Supreme Court ruled that evidence obtained in violation of the Fourth Amendment cannot be used in state courts. This case established the exclusionary rule, which prevents illegally obtained evidence from being used in court. Miranda v. Arizona (1966) Issue: Fifth Amendment rights against self-incrimination. Summary: The Supreme Court held that suspects must be informed of their rights to remain silent and to have an attorney during police interrogations. This led to the establishment of the "Miranda rights." Terry v. Ohio (1968) Issue: Fourth Amendment rights regarding stop and frisk procedures. Summary: The Supreme Court ruled that police can stop and frisk a person based on reasonable suspicion that the person may be involved in criminal activity, establishing the standards for "stop and frisk" procedures. Tennessee v. Garner (1985) Issue: Fourth Amendment rights regarding the use of deadly force. Summary: The Supreme Court held that police officers cannot use deadly force to prevent the escape of a fleeing suspect unless the suspect poses a significant threat of death or serious physical injury to the officer or others. Notable Cases Involving Officers of the Court: Brady v. Maryland (1963) Issue: Fourteenth Amendment right to due process. Summary: The Supreme Court ruled that prosecutors must disclose exculpatory evidence to the defense. Failure to do so violates the defendant's right to a fair trial. Gideon v. Wainwright (1963) Issue: Sixth Amendment right to counsel. Summary: The Supreme Court held that states are required to provide an attorney to defendants in criminal cases who cannot afford one, ensuring the right to legal representation. Strickland v. Washington (1984) Issue: Sixth Amendment right to effective assistance of counsel. Summary: The Supreme Court established the standard for determining when a criminal defendant's Sixth Amendment right to counsel is violated by inadequate legal representation. Batson v. Kentucky (1986) Issue: Fourteenth Amendment right to equal protection. Summary: The Supreme Court ruled that prosecutors cannot use peremptory challenges to exclude jurors based solely on their race, which would violate the defendant's right to a fair trial. Supreme Court Decisions for Religious Rights The Supreme Court, in a 5-4 decision, ruled in favor of Murdock. The Court held that the ordinance was unconstitutional as it imposed a tax on the exercise of First Amendment rights. Key points from the decision include: Burden on Religious Exercise: The Court found that the ordinance effectively imposed a financial burden on the exercise of religious practices, which is impermissible under the First Amendment. Freedom of Speech and Press: The Court extended its reasoning to the freedom of speech and press, emphasizing that requiring a license and fee for the distribution of religious materials constituted an improper restraint on these freedoms. Non-Commercial Activity: The decision distinguished between commercial activities, which can be regulated and taxed, and non-commercial, religious activities, which should be protected from such financial burdens. Significance Murdock v. Pennsylvania is a landmark case for several reasons: First Amendment Protections: It reinforced the principle that the government cannot impose financial burdens on the exercise of fundamental First Amendment rights. Religious Freedom: It underscored the protection of religious activities from governmental interference, particularly when such activities involve non-commercial expression and dissemination of religious beliefs. Precedent for Future Cases: The ruling has been cited in subsequent cases involving the intersection of government regulations and First Amendment rights, helping to shape the legal landscape for religious and free speech protections. This case is a cornerstone in the jurisprudence of religious liberty and free expression in the United States, demonstrating the Court's commitment to protecting these essential freedoms from undue governmental constraints. Supreme Court Decision The Supreme Court, in a unanimous decision, ruled in favor of Shuttlesworth. The key points of the decision include: Unconstitutional Permit System: The Court found that the Birmingham ordinance gave city officials too much discretion in granting or denying permits, allowing them to arbitrarily suppress speech based on its content or viewpoint. The ordinance was deemed unconstitutional because it effectively acted as a prior restraint on free speech and assembly. Vagueness and Overbreadth: The ordinance was also struck down for being overly broad and vague, failing to provide clear standards for the issuance of permits. This vagueness allowed for discriminatory enforcement, particularly against civil rights activists. Protection of Fundamental Rights: The decision reinforced the principle that laws regulating the exercise of First Amendment rights must have clear, objective standards and cannot be used to suppress particular viewpoints or groups. Significance Shuttlesworth v. City of Birmingham is a landmark case for several reasons: Civil Rights Movement: The ruling was a significant victory for the civil rights movement, affirming the right to protest and assemble without undue government interference. First Amendment Protections: It strengthened First Amendment protections by limiting the ability of local governments to impose arbitrary restrictions on free speech and assembly. Legal Precedent: The case set a precedent for challenging laws that grant excessive discretion to officials in regulating speech and assembly, ensuring that such laws must be narrowly tailored and applied uniformly. This case is a cornerstone in the jurisprudence of civil rights and First Amendment freedoms, highlighting the importance of protecting these rights from arbitrary and discriminatory government action. Two notable Supreme Court cases involving religious sacraments and Schedule I controlled substances are: 1. Employment Division v. Smith (1990) Citation: Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) Background: Two members of the Native American Church, Alfred Smith and Galen Black, were fired from their jobs as counselors for ingesting peyote, a Schedule I controlled substance, as part of a religious ceremony. They were subsequently denied unemployment benefits by the state of Oregon, which deemed their use of peyote as work-related "misconduct." Issues: The central issue was whether the state's denial of unemployment benefits violated the Free Exercise Clause of the First Amendment. Supreme Court Decision: The Supreme Court ruled against Smith and Black, holding that the state could deny unemployment benefits to workers fired for using illegal drugs, even if used as part of a religious ritual. The Court reasoned that allowing exceptions to laws based on religious beliefs would permit every citizen to become a law unto themselves, potentially leading to anarchy. This decision marked a departure from the strict scrutiny standard previously applied in cases like Sherbert v. Verner, instead applying a rational basis test to laws that are neutral and generally applicable. Significance: The ruling prompted a strong reaction from religious and civil liberties groups, leading to the passage of the Religious Freedom Restoration Act (RFRA) in 1993, which sought to restore the strict scrutiny standard for cases involving the free exercise of religion. 2. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006) Citation: Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) Background: The O Centro Espirita Beneficente Uniao do Vegetal (UDV), a religious organization, used hoasca tea, containing the Schedule I controlled substance DMT, in its ceremonies. The U.S. government sought to prevent the importation and use of hoasca, citing the Controlled Substances Act (CSA). Issues: The issue was whether the federal government could prohibit the importation and use of hoasca tea by the UDV, given the protections afforded by the RFRA. Supreme Court Decision: The Supreme Court ruled unanimously in favor of the UDV, holding that the government had failed to demonstrate a compelling interest in barring the religious use of hoasca under the RFRA. The Court emphasized that the RFRA requires the government to accommodate religious practices unless it can show that doing so would significantly harm a compelling government interest, and that the means used are the least restrictive to achieve that interest. Significance: This case reaffirmed the protection of religious practices involving Schedule I substances under the RFRA and highlighted the necessity for the government to justify any substantial burden on religious exercise with compelling reasons and the least restrictive means. Significance of These Cases Employment Division v. Smith and Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal are critical in understanding the legal landscape regarding religious use of Schedule I controlled substances. Smith established the precedent that neutral, generally applicable laws do not violate the Free Exercise Clause, leading to the RFRA's enactment. O Centro Espirita, decided under the RFRA, reinforced the requirement for the government to accommodate religious practices unless it can prove a compelling interest pursued through the least restrictive means. Together, these cases illustrate the balance between religious freedom and governmental regulation of controlled substances. Two additional significant Supreme Court cases involving religious sacraments and Schedule I controlled substances are: 1. United States v. Boyll (1991) Background: Jeffrey Boyll, a member of the Native American Church, was prosecuted for possessing peyote, a Schedule I controlled substance, which he claimed was for religious use. The government argued that the exemption for peyote use under the Controlled Substances Act only applied to Native American Church members of Native American descent. Issues: The issue was whether the religious use of peyote by non-Native American members of the Native American Church was protected under the First Amendment. Court Decision: The U.S. District Court for the District of New Mexico ruled in favor of Boyll, holding that the government could not restrict the use of peyote to Native American members of the Native American Church without violating the First Amendment’s guarantee of the free exercise of religion. The court found that the religious use of peyote was protected regardless of the user’s ethnicity. Significance: This case extended the protection of religious use of peyote to all members of the Native American Church, not just those of Native American descent, reinforcing the broader application of religious freedom protections to include non-discriminatory practices within religious groups. Significance of These Cases United States v. Boyll is critical in expanding the understanding and application of religious freedom protections regarding the use of Schedule I controlled substances. These cases further establish the legal precedents that religious practices involving controlled substances are protected under the RFRA and the First Amendment, provided the government cannot demonstrate a compelling interest pursued through the least restrictive means. Three notable cases involving religious use of cannabis and psilocybin are: 1. United States v. UDV-USA (2005) Background: This case involved the UDV (União do Vegetal), a Brazilian-based religious organization with branches in the United States, which uses hoasca tea containing DMT, a Schedule I controlled substance, in its ceremonies. The U.S. government sought to prevent the importation and use of hoasca, citing the Controlled Substances Act (CSA). Issues: The primary issue was whether the federal government could prohibit the importation and use of hoasca tea by the UDV, given the protections afforded by the Religious Freedom Restoration Act (RFRA). Court Decision: The U.S. District Court for the District of New Mexico ruled in favor of the UDV, granting a preliminary injunction against the government’s actions. The court found that the government had not demonstrated a compelling interest in prohibiting the religious use of hoasca under the RFRA. Significance: This case reaffirmed the protection of religious practices involving Schedule I substances under the RFRA and set a precedent for future cases involving religious use of controlled substances. 2. Oklevueha Native American Church of Hawaii, Inc. v. Holder (2014) Background: The Oklevueha Native American Church (ONAC) in Hawaii sought to use cannabis and peyote in its religious ceremonies. The federal government raided the church and confiscated its cannabis supply, prompting the church to file a lawsuit claiming that their religious use of cannabis was protected under the RFRA and the First Amendment. Issues: The main issue was whether the church’s religious use of cannabis was protected under the RFRA and the First Amendment. Court Decision: The U.S. Court of Appeals for the Ninth Circuit ruled against ONAC, holding that the church had not sufficiently demonstrated that the federal prohibition of cannabis substantially burdened their religious exercise under the RFRA. The court emphasized the need for clear evidence showing that the religious use of cannabis was essential to their religious practice. Significance: This case highlighted the challenges religious groups face in proving that their use of controlled substances is an essential part of their religious practice and protected under the RFRA. 3. Church of the Holy Light of the Queen v. Mukasey (2008) Background: The Church of the Holy Light of the Queen, an Oregon-based religious organization, uses ayahuasca, a tea containing the Schedule I controlled substance DMT, in its ceremonies. Similar to the O Centro Espirita case, the church faced legal challenges from the government seeking to prohibit the importation and use of ayahuasca. Issues: The main issue was whether the government could enforce the Controlled Substances Act (CSA) against the church’s use of ayahuasca, given the protections provided by the Religious Freedom Restoration Act (RFRA). Court Decision: The U.S. District Court for the District of Oregon granted a preliminary injunction, preventing the government from interfering with the church's religious use of ayahuasca. The court found that the government had not demonstrated a compelling interest in prohibiting the religious use of ayahuasca that would justify overriding the protections of the RFRA. Significance: This case further reinforced the principles established in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, highlighting the necessity for the government to justify any substantial burden on religious exercise with compelling reasons and the least restrictive means. Significance of These Cases United States v. UDV-USA, Oklevueha Native American Church of Hawaii, Inc. v. Holder, and Church of the Holy Light of the Queen v. Mukasey illustrate the complex interplay between religious freedom and the regulation of controlled substances. These cases demonstrate the legal challenges and protections associated with religious use of Schedule I substances under the RFRA and the First Amendment. They underscore the need for religious organizations to provide clear and compelling evidence to support their claims of religious necessity while highlighting the government's obligation to justify any substantial burden on religious practices with compelling and narrowly tailored interests. The case of People v. Guerrero, 2000 Guam 26, **Guam is an organized, unincorporated territory of the United States. It is located in the western Pacific Ocean and is one of several territories administered by the United States. While not a state, Guam is considered an integral part of the United States and is subject to U.S. federal laws. The residents of Guam are U.S. citizens by birth, and they elect a non-voting delegate to the U.S. House of Representatives. The federal government of the United States provides defense, subsidies, and social services to Guam, but residents do not vote in U.S. presidential elections. This case revolves around the issue of religious freedom and the legality of marijuana use within the context of Rastafarianism. Benny Toves Guerrero, a member of the Rastafarian religion, was arrested at Guam International Airport for importing marijuana into Guam. Guerrero argued that the criminal statute under which he was charged infringed upon his right to freely exercise his religion, as marijuana was considered a sacrament in Rastafarian practice. People v. Guerrero, 2000 Guam 26, (Guam 2000) Supreme Court Case No. CRA99-025 March 8, 2000, Argued and Submitted, Hagatna, Guam . September 8, 2000, Filed For the Plaintiff-Appellee: Angela Borzachillo, Assistant Attorney General, Gerad Egan (on the briefs), Assistant Attorney General, Office of the Attorney General Prosecution Division, Hagatna, Guam. For the Defendant-Appellant: D. Paul Vernier, Jr., Esq., McKeown Vernier Price Maher, A Joint Venture of McKeown Price, LLP, and Vernier & Maher, LLP, Hagatna, Guam. BEFORE: BENJAMIN J. F. CRUZ, Chief Justice, PETER C. SIGUENZA, Associate Justice, and SEATON M. WOODLEY, III, Justice Pro Tempore. SIGUENZA, J.: This is an appeal of the Superior Court's dismissal of an indictment upon motion of the Defendant, Benny Toves Guerrero. We find that the criminal statute at issue in this case, as applied to this Defendant, substantially infringes upon the Defendant's right to the free exercise of his religion as protected by the United States Constitution and the Organic Act of Guam. We conclude that the Religious Freedom Restoration Act may be applicable to Guam. Moreover, we hold that, even if it were not, in circumstances where a fundamental right is substantially infringed, the government must demonstrate both that the infringement is justified by a compelling interest and that it is the least restrictive means of achieving that objective. Therefore, we affirm the trial court's dismissal of the instant action. BACKGROUND The facts of this case are relatively uncomplicated. On or about January 2, 1991, the Defendant, Benny Toves Guerrero (hereinafter "Guerrero"), was returning to Guam from Los Angeles, California via Honolulu, Hawaii. At the Guam International Airport, Guam Customs officers approached Guerrero and asked him if he was carrying any drugs. He replied that he was not in possession of any drugs; however, a search of his backpack resulted in the discovery of marijuana contained therein. Guerrero was placed under arrest and charged with the importation of an illegal substance. He was subsequently indicted on January 11, 1991, and charged with the Importation of a Controlled Substance (as a First Degree Felony), a violation of sections 67.23(d)(10), 67.89(a), and 80.33.7 of Title 9 of the Guam Code Annotated. Guerrero filed a Motion to Dismiss the Indictment on the basis that the statute under which he was being prosecuted violates his right to freely exercise his religion as guaranteed by the Organic Act of Guam and the First Amendment of the United States Constitution. The trial court found that, for purposes of the matter before it, Guerrero was a legitimate member of the Rastafarian religion and had established that the use of marijuana is a necessary sacrament in the practice of the religion. The court then ruled that 9 GCA § 67.89 was inorganic as applied to this case, violating both the Organic Act of Guam and the Religious Freedom Restoration Act of 1993 ("RFRA"). The court held that the RFRA, although declared unconstitutional in state and local jurisdictions, was still applicable to Guam because Guam is considered an instrumentality of the federal government. The court reasoned that because Congress continues to exercise plenary power over the territories and that the federal government possesses full and complete legislative authority over Guam; the island is a federal instrumentality. The court then applied the compelling interest standard that the RFRA advocates and found that the government had not demonstrated a compelling state interest to warrant the infringement of Guerrero's right to the free exercise of his religion by using marijuana as a sacrament. The government filed a timely appeal. ANALYSIS Jurisdiction of this court is found pursuant to Title 8 GCA §§ 130.20(a)(5) and 130.60 (1993). The parties agree that the standard of review in this case is de novo. The issue of the constitutionality of a statute are reviewed de novo. People v. Perez, 1999 Guam 2, P6. Similarly, the issue of the interpretation of a statute is also reviewed de novo. People v. Palomo, 1998 Guam 12, P4. The Organic Act of Guam provides that: No law shall be enacted in Guam respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for redress of their grievances. 48 U.S.C.A. § 1421b(a) (1950). The provision is similar to the First Amendment of the United States Constitution which also states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. CONST. amend. I. The offense for which Guerrero was indicted, Importation of a Controlled Substance, is found in Title 9 GCA § 67.89 (1996) which provides: Except for a person registered pursuant to § 67.95 of the Code or exempted pursuant to §§ 67.93 or 67.94 of the Code, it shall be unlawful and punishable as a felony of the first degree to import into Guam any controlled substance listed in Schedule I or II as per §§ 67.22 through 67.25 of this Code or any narcotic drug listed in Schedules III, IV or V as per §§ 67.26 through 67.31 of this Code, except that: . . . . 9 GCA § 67.89(a). Marijuana is classified as a Schedule I Controlled substance. See Title 9 GCA § 67.23 (1996). Guerrero contends that this statute violates his constitutional and Organic Act right to the free exercise of his religion, Rastafarianism. We begin by observing that the United States Supreme Court has held that: The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, [and that] government may neither compel affirmation of a repugnant belief nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, nor employ the taxing power to inhibit the dissemination of particular religious views. Sherbert v. Verner, 374 U.S. 398, 402-403, 83 S. Ct. 1790, 1793, 10 L. Ed. 2d 965 (1963) (citations omitted). But the Court has "rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles for 'even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions.'" Id. at 403, 83 S. Ct. at 1793 (citations omitted). "The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order." Id. (citations omitted). In Sherbert, the Supreme Court held that the disqualification of a member of the Seventh Day Adventist Church for unemployment benefits under the South Carolina Unemployment Compensation Act, because of her refusal to work on Saturday, imposed a burden on the free exercise of her religion. The Court arrived at its conclusion by considering whether there was some compelling state interest in the statute which justified the substantial infringement of the appellant's First Amendment right and found no such interest. Id. at 406-407, 83 S. Ct. at 1795. In the case of Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), the court reversed the conviction of an Amish farmer who had been convicted of violating Wisconsin's compulsory school attendance law. The Court found that the state had an interest regarding basic education, but held that the state interest is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those protected by the Free Exercise Clause of the First Amendment. Id. at 214, 92 S. Ct. at 1532 (citations omitted). The Court examined the Amish's interest in maintaining its community structure and the state's interest in preparing citizens for effective and intelligent participation in the political system and in preparing self-reliant and self-sufficient participants in society. The Court then concluded that the state interests would not be sufficiently advanced by requiring the Amish school children, who were enrolled until the completion of a basic education, to attend school for an additional two years. Id. at 222, 92 S. Ct. at 1536. Thus, the Supreme Court had articulated a test that had been followed for almost thirty years which prescribed how Free Exercise challenges to a law were to be analyzed. First, it must be determined whether the free exercise of a person's religion is substantially burdened by the governmental regulation or law. If it is, then the government must demonstrate that some compelling state interest justifies the infringement and that the least restrictive means are used to accomplish that objective. In 1990, however, the Supreme Court decided the case of Employment Division v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990), which held that the Constitution's Free Exercise Clause does not relieve an individual of the obligation to comply "with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." Id. at 879, 110 S. Ct. at 1600 (citations omitted). In other words, neutral, generally applicable laws, may be applied to religious practices even when not supported by a compelling governmental interest. Id. at 884-885, 110 S. Ct. at 1603. In Smith, the claimants sought review of a determination that their religious use of peyote, which had resulted in their dismissal from employment, was misconduct that properly disqualified them from receiving unemployment compensation benefits. Justice Scalia, writing the opinion of the Court, concluded after a survey of its decisions that "we have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate." Id. at 878-879, 110 S. Ct. at 1600. The Court found that the only instances where the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as the free of speech and of the press. Id. at 881-882, 110 S. Ct. at 1601-1602 (citations omitted). Finally, the Court declined to apply the Sherbert test to the statute at issue. It reasoned that the test was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct. Id. at 884, 110 S. Ct. at 1603. But that has no relevance to "an across-the-board criminal prohibition on a particular form of conduct." Id. It acknowledges that the Court has sometimes used the Sherbert test to analyze free exercise challenges to such laws, but that it has never applied the test to invalidate one. Id. at 884-885, 110 S. Ct. at 1603 (citations omitted). Thus, the Court held that the claimant's ingestion of peyote was prohibited under state law, and because that prohibition was constitutional, the state may, consistent with the Free Exercise Clause, deny the claimants unemployment compensation when their dismissal result from the use of the drug. Id. at 890, 110 S. Ct. at 1606. Justice O'Connor, with whom three other Justices joined, wrote a concurrence to the opinion. In Justice O'Connor's view, the ultimate reversal of the lower court's ruling was proper; however, she criticized the Court's reading of the First Amendment and the disregard of its own consistent application of the free exercise doctrine to cases involving generally applicable regulations that burden religious conduct. She obtained the same result utilizing and respecting precedent. O'Connor observes that the First Amendment does not distinguish between laws that are generally applicable and laws that target particular religious practices. Id. at 894, 110 S. Ct. at 1608 (O'Connor, J., concurring in part). Further, to say that a person's right to free exercise has been burdened does not mean that he has an absolute right to engage in the conduct. Id. Under the jurisprudence of the First Amendment, the Court had recognized that the freedom to act, unlike the freedom to believe, cannot be absolute. Id. (citations omitted). The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests of the highest order. Id. at 895, 110 S. Ct. at 1609 (citations omitted). In response to the Court's rejection of the compelling governmental interest test in Smith, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA) reestablishing the compelling interest test of Sherbert and Yoder, as the analytical framework governing all cases where the free exercise of religion is substantially burdened. See United States v. Meyers, 95 F.3d 1475, 1481-1482 (10th Cir. 1996); see also United States v. Treiber, Bauer et al., 84 F.3d 1549, 1557-1559 (9th Cir. 1995). The RFRA is found in 42 U.S.C.A. §§ 2000bb et seq. (1999). Of relevance to the issues in this case are the following provisions of the RFRA: (a) Findings The Congress finds that- (1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution; (2) laws "neutral" toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise; (3) governments should not substantially burden religious exercise without compelling justification; (4) in Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and (5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interest. (b) Purposes The purpose of this chapter are- (1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government. 42 U.S.C.A. § 2000bb (1993)(quotations in original). In addition, the Act provides: Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person- (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest . . . . 42 U.S.C.A. § 2000bb-1(b) (1993). The RFRA also provides a section for a definition of certain terms as they are used in the Act and it provides, in pertinent part: (1) the term "government" includes a branch, department, agency, instrumentality, and office (or other person acting under color of law) of the United States, a State, or a subdivision of a State; (2) the term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States; (3) the term "demonstrates" means meets the burdens of going forward with the evidence and of persuasion . . . 42 U.S.C.A. § 2000bb-2 (1993) (quotations in original). Four years later, the U.S. Supreme Court, in the case of City of Boerne v. Flores, 521 U.S. 507, 512, 117 S. Ct. 2157, 2160, 138 L. Ed. 2d 624 (1997), was confronted with the issue of the RFRA's applicability upon the decision by local authorities to deny a church a building permit. The Court held that the RFRA was unconstitutional as applied to the states under section 5 of the Fourteenth Amendment and reversed the Fifth Circuit Court of Appeals finding to the contrary. The Court concluded that the RFRA represented "considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens." Id. at 534, 117 S. Ct. at 2171. Turning to the RFRA's applicability to Guam, it has been held that since Guam is an unincorporated territory enjoying only such powers as may be delegated to it by the Congress in the Organic Act, the Government of Guam is in essence an instrumentality of the federal government. Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1286 (9th Cir. 1985) (holding that the negative implications of the commerce clause do not apply). However, the issue becomes muddled when one considers that Guam, being a territory, is specifically designated in the RFRA as a "State" for purposes of the Act. See 42 U.S.C.A. § 2000bb-2(2). Moreover, significant questions remain as to the constitutionality of the RFRA even to the federal government. It has been criticized as violating the doctrine of separation of powers, circumventing the arduous amendment process as contained in Article V of the United States Constitution, and even running afoul of the Free Exercise clause of theFirst Amendment itself. However, we are of the opinion that disposition of this case does not necessarily entail an arduous exercise of statutory interpretation or the assessment of the merits of the arguments, pro and con, of the continued constitutionality of the RFRA. The rule which we announce today devolves from the recognition that this court sits as the highest tribunal in this jurisdiction and that Congress intends to allow Guam to develop its own institutions. As earlier indicated, section 1421b(a) of the Organic Act parallels the First Amendment to the Constitution of the United States. Despite the similarity of the two provisions, this court can reach its own conclusions on the scope of the protections of section 1421b(a) and may provide broader rights than those which have been interpreted by federal courts under the United States Constitution. We note that Smith had substantially altered the U.S. Supreme Court's standard for determining whether conduct was protected under the free exercise clause and that it is a much criticized opinion that had weakened First Amendment protections for religious conduct. See Attorney General v. Desilets, 418 Mass. 316, 636 N.E.2d 233, 235-236 (Mass. 1994). The approach we take is to construe Guam's Constitution, the Organic Act, and its concomitant protection of the Free Exercise of Religion, more broadly than the U.S. Supreme Court would the federal counterpart. City of Mesquite, 455 U.S. at 293, 102 S. Ct. at 1077, 71 L. Ed. 2d 152; Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 1219 n. 4, 43 L. Ed. 2d 570 (1975); Cooper v. State of California, 386 U.S. 58, 62, 87 S. Ct. 788, 791, 17 L. Ed. 2d 730 (1967). We have consistently demonstrated our willingness to apply our own interpretation of Guam's laws. See Sumitomo v. Zhong Ye, Inc., 1997 Guam 8; Fajardo v. Liberty House, 2000 Guam 4; Custodio v. Boonprakong, 1999 Guam 5; Borja v. Bitanga, 1998 Guam 29; and Holmes v. Territorial Land Use Comm'n., 1998 Guam 8. And we perceive no impediment to the adoption of the standards of the earlier First Amendment jurisprudence prior to Smith as the bar that must be cleared for purposes of Guam's constitution, the Organic Act. Therefore, even if the RFRA were not applicable to Guam, we would still hold that because the infringement of a fundamental right is involved, the government must prove that the infringement is justified by a compelling governmental interest and that the statute is the least restrictive means of achieving that objective. Turning to the instant case, the government conceded in the proceedings below both the fact of the legitimacy of the Rastafarian religion and of the substantial infringement upon the Appellee's right to freely exercise his religion. The issue then is whether some compelling government interest exists and whether the least restrictive means of obtaining that objective are used. No evidence on this score was presented; rather, the government chose to rely upon its response to the motion. However, it did not designate that response as part of the record on appeal so this court is unable to make the evaluation of whether a compelling state interest is embodied in the instant statute or whether that interest is achieved by the least restrictive means. Additionally, the government's proposition that a criminal statute is a demonstration of a compelling interest, per se, with no less restrictive means of furtherance proves too much. Ostensibly, the government relies upon Smith as authority for the proposition. However, Smith's holding was that the compelling interest test was not to be used in analyzing a challenge of a neutral, generally applicable criminal statute. Smith, 494 U.S. at 885, 110 S. Ct. At 1603. As we read Smith, nowhere was it stated, as the government here argues, that a criminal statute is a per se demonstration of a compelling interest with no less restrictive means of furtherance. Instead, what is asked is whether the challenged statute is a neutral, generally applicable law; and, if it is, then the exacting demands of the compelling interest test should not be utilized. We are also critical of the government's disingenuous argument that the law was unsettled and that by making a record of the compelling governmental interest it would essentially render, as moot, its position that the RFRA was inapplicable. An appellate court can only decide the merits of any given case by the record that is preserved and presented to it on appeal. But neglecting to protect the record on the chance that this court eventually would side with a particular party is a questionable tactic. We disagree with the government's argument that remand is the appropriate disposition of the appeal because the test which we have ultimately decided as appropriate to assess the Free Exercise claims was not what the government chose to pursue below. The government had before it the competing tests upon which an evaluation of the Free Exercise challenge would be analyzed and it should have protected the record with some evidentiary basis upon which this reviewing court could assess the merits and, ultimately, render an appropriate disposition of the instant case. CONCLUSION Thus, we find that 9 GCA § 67.89(a), as applied to Guerrero, substantially infringed upon his right to the free exercise of his religion as protected by the United States Constitution and the Organic Act of Guam. Although we conclude that the Religious Freedom Restoration Act may be applicable to Guam; we would hold that, even if it were not, in circumstances where a fundamental right is substantially infringed, the government must demonstrate that the infringement is justified by a compelling interest and that it is the least restrictive means of achieving that objective. Therefore, we AFFIRM the trial court's dismissal of the instant action.