In addition to protections by provided by the United States Constitution, Idaho Statute 73-402 provides additional protection to freedom of religion.  This statute contains the following language:

“(1) Free exercise of religion is a fundamental right that applies in this state, even if laws, rules or other government actions are facially neutral.

(2) Except as provided in subsection (3) of this section, government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.

(3) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is both:

(a) Essential to further a compelling governmental interest;

(b) The least restrictive means of furthering that compelling governmental interest.

(4) A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. A party who prevails in any action to enforce this chapter against a government shall recover attorney’s fees and costs.

(5) In this section, the term “substantially burden” is intended solely to ensure that this chapter is not triggered by trivial, technical or de minimis infractions.”


This statute was recently put to the test in a case involving a prosecution for possession of marijuana.  In State vs. White (decided December 14, 2011), Defendant Carey White argued that his religious beliefs should prevent his prosecution for possession of marijuana due to the application of Idaho’s Free Exercise of Religion Protection Act (FERPA).  The Court of Appeals summarized White’s religious beliefs concerning marijuana as follows:

“White describes his spiritual end for the use of marijuana as one that has evolved over the last seven years as a tool, along with breathing arts, martial arts and tai chi, to open his consciousness and mind, and that he has discovered parts of his mind and soul that “after all my education I didn’t know were there.” White also indicates that it is not just his use of marijuana that achieves this result, but many other things he practices that are related/achieve the same effect.”

The court rejected White’s argument, ruling that his use of marijuana was more a matter of his belief in freedom, rather than a tenet of his religion. In his testimony, White stated “the reason that I am here today is because I believe my freedom and right to use those food groups as I will is a freedom that has been very important and still is very important in my religion, if you took it away would I have a religion, yes I’d still have my faith, I’d still have my practices, the fact that that is a part of it and is very important in my practice is why I’m here today.” Further, although White did state that his life is not about marijuana, it seemed to the Appeals Court that his philosophy about marijuana was not that it produces any specific religious or spiritual revelation, but rather that he should be allowed to use it because his use doesn’t hurt anybody.