U.S. Magistrate Judge Stan Baker criticized arguments made by federal prosecutors in the case against the group of peace activists who allegedly broke into and vandalized Naval Submarine Base Kings Bay in April, instructing attorneys for both sides to submit better arguments on the applicability of the Religious Freedom Restoration Act (RFRA) in the case.

The defendants claim they conducted the acts they are accused of as an exercise of their Catholic faith, and that such an exercise is covered by the religious freedom act. In identical motions filed by the defense, they contend that if they are to be punished, it should be by the least burdensome method possible — meaning, a civil procedure or some kind of pretrial diversion, not a criminal prosecution.

Prosecutors argued against this line of thinking, but Baker found those arguments lacking.

“The government’s initial, albeit misstated, position was that the United States Supreme Court ‘has never held that an individual’s religious belief can effectively excuse him from compliance with laws that prohibit certain criminal conduct’ and that Defendants must ‘comply with valid and neutral law[s] of general applicability,’ like those at issue here…,” Baker wrote in his order, published Aug. 15.

The order continued, “The government’s reliance on constitutional Free Exercise Clause jurisprudence in responding to defendants’ RFRA defense appears misplaced, as Congress enacted RFRA to statutorily restore the strict scrutiny test that was overturned by the Supreme Court’s decision in Employment Division v. Smith. … Thus, the rule pronounced in Employment Division v. Smith, which the Government relied upon in its response brief, is inapplicable to RFRA.”

Baker acknowledged that in the Aug. 2 motions hearing, both sides agreed that the applicability of RFRA to criminal prosecutions was an open question, but in a supplemental brief, prosecutors allowed for RFRA as an available defense.

“The government now contends that defendants’ actions in this case were not religious in nature and thus not protected by RFRA, and even assuming they were, the government contends it has a compelling interest in protecting Naval Submarine Base Kings Bay, a sensitive military installation, and prosecuting Defendants is the least restrictive means to protect that interest…,” Baker wrote. “In their response, defendants assert that the government erroneously defends its prosecution on the notion that the laws at issue are ‘generally applicable.’”

Baker concluded attorneys for both sides need to come back at the issue with better focus “to fully address the complex and particularized issues raised by defendants’ RFRA defense.”

Prosecutors have until Sept. 5 to file their brief, and the defense has until Sept. 26 to file their responses.

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