Shortly before the trial of the Kings Bay 7 started, Judge Wood ruled that the RFRA could not be raised by the defense.

I believe that this is reversible error. The RFRA is an unusual type of statute. It does not constrain the actions of the public; it constrains the actions of the judge.

It says if a defense asserts a religious interest, the judge must first clarify what the competing interests are, and, if the religious interest asserted needs to be restricted because of a compelling government interest, then the least restrictive means of furthering that compelling governmental interest must be chosen.

The judge may not say, without explanation, that the RFRA does not apply to the controversy at hand, since the text of the RFRA makes it clear that it does apply. This is the normal “strict scrutiny” standard in a controversy where the First Amendment is asserted.

The First Amendment plainly is relevant, so its application to the controversy is governed in part by the RFRA.

Martin Gugino

Buffalo, N.Y.

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