SUPREME COURT OF ARIZONA 

En Banc 

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-08-0244-PR 

 Appellee, ) 

 ) Court of Appeals 

 ) Division One 

 v. ) No. 1 CA-CR 06-0966 

 ) 

 ) Yavapai County 

 ) Superior Court 

DANNY RAY HARDESTY, ) No. CR 820060181 

 ) 

 Appellant. ) O P I N I O N 

_________________________________ ) 

Appeal from the Superior Court in Yavapai County 

The Honorable Thomas B. Lindberg, Judge 

JUDGMENT AFFIRMED 

________________________________________________________________ 

Opinion of the Court of Appeals, Division One 

220 Ariz. 149, 204 P.3d 407 (App. 2008) 

VACATED 

________________________________________________________________ 

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix 

 By Kent E. Cattani, Chief Counsel, 

 Criminal Appeals/Capital Litigation 

 Joseph L. Parkhurst, Tucson 

 Assistant Attorney General 

Attorneys for State of Arizona 

DERIENZO AND WILLIAMS, P.L.L.C. Prescott Valley 

 By Daniel J. DeRienzo 

 Craig Williams 

Attorneys for Danny Ray Hardesty 

________________________________________________________________ 

B E R C H, Chief Justice 

¶1 Danny Ray Hardesty seeks review of his convictions for 

possession of marijuana and drug paraphernalia. He attempted to 
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assert a religious use defense to the charges pursuant to 

Arizona Revised Statutes (“A.R.S.”) § 41-1493.01 (2004), but was 

precluded from doing so. We hold that although religious 

exercise may be asserted as a defense, Hardesty’s defense fails 

as a matter of law. We affirm the convictions. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

¶2 On April 15, 2005, Hardesty was driving his van at 

night when an officer stopped him because one headlight was out. 

The officer smelled marijuana and recovered a baggie containing 

fourteen grams of marijuana from a daypack on the front 

floorboard of the van, less than two feet from the driver, and a 

marijuana joint Hardesty had just thrown out the window. 

¶3 Before trial, Hardesty moved to dismiss the charges on 

the ground that his use of marijuana was a sacrament of his 

church, the Church of Cognizance. He argued that such use was 

protected by the free exercise clauses of the Arizona and 

Federal Constitutions,1

 Arizona’s Free Exercise of Religion Act2

(“FERA”), the Religious Freedom Restoration Act of 19933

 

1

 U.S. Const. amend. I; Ariz. Const. art. 2, § 12. In 

addition, Hardesty cited Arizona’s religious tolerance 

provision, Ariz. Const. art. 20, ¶ 1. 

2

 A.R.S. § 41-1493.01. 

3

 Pub. L. No. 103-141, 107 Stat. 1488, application to states 

invalidated by City of Boerne v. Flores, 521 U.S. 507 (1997) 

(current version at 42 U.S.C. §§ 2000bb to 2000bb-4 (2006)). 
- 3 - 

(“RFRA”), and the International Religious Freedom Act of 1998.4

¶4 At an evidentiary hearing regarding the religious use 

defense, Hardesty presented evidence that marijuana is the main 

religious sacrament of the Church of Cognizance. He referred 

the court to the church’s website and recorded statement of 

religious sentiment, which inform that the church is made up of 

“individual orthodox member monasteries,” each consisting of a 

family unit that establishes its own mode of worship.5 

Hardesty’s mode was to smoke and eat marijuana without limit as 

to time or place. 

¶5 While Hardesty’s motion to dismiss was pending, the 

State moved in limine to exclude any reference to a religious 

freedom defense at trial. The trial court denied Hardesty’s 

motion to dismiss and granted the State’s motion in limine, 

finding that Hardesty’s defense was “not recognized . . . under 

Arizona law.” After a bench trial, the court convicted Hardesty 

of possessing marijuana and drug paraphernalia. The court of 

appeals affirmed, ostensibly taking judicial notice of the 

 

4

 Pub. L. No. 105-292, 112 Stat. 2787 (codified as amended in 

scattered sections of 22 U.S.C.). 

5 See Church of Cognizance Introduced, 

http://coc.enlightener.net/coc/documents/pledge.pdf (last 

visited Aug. 31, 2009); see also United States v. Quaintance, 

471 F. Supp. 2d 1153, 1162 (D.N.M. 2006) (relying on the 

testimony of the church founder and the same witness called by 

Hardesty for the assertion that each family unit sets its own 

religious practices). 
- 4 - 

harmful effects of marijuana to establish the State’s compelling 

interest in banning the possession of marijuana. State v. 

Hardesty, 220 Ariz. 149, 151, ¶ 1, 204 P.3d 407, 409 (App. 

2008). 

¶6 We granted review because the religious exercise 

defense presents an issue of first impression and statewide 

importance. See Ariz. R. Crim. P. 31.19(c)(3); State v. Hicks 

(Durnan), 219 Ariz. 328, 329, ¶ 8, 198 P.3d 1200, 1201 (2009). 

We have jurisdiction under Article 6, Section 5(3) of the 

Arizona Constitution, A.R.S. § 12-120.24 (2003), and Arizona 

Rule of Criminal Procedure 31.19. 

II. DISCUSSION 

¶7 Although Hardesty presents his defense under 

provisions of the Arizona and Federal Constitutions, various 

federal statutes, and Arizona’s Free Exercise of Religion Act 

(“FERA”), we need address only Hardesty’s FERA defense.6

 We 

 

6

 Hardesty challenges the enforcement of a neutral law of 

general applicability, foreclosing any claim under the First 

Amendment as incorporated against the states. See Employment 

Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 881-82 (1990). 

We need not address Hardesty’s RFRA claim because that federal 

statute does not apply to the states. See Flores, 521 U.S. at 

534-36. Hardesty failed to provide argument on the 

International Religious Freedom Act of 1998 or the Arizona 

Constitution’s religious tolerance provision. Pub. L. No. 105-

292, 112 Stat. 2787 (IRFA); Ariz. Const. art. 20, ¶ 1 (religious 

tolerance). Not knowing what Hardesty’s claims are, we have no 

basis on which to review them. Cf. Ariz. R. Crim. P.

31.13(c)(1)(vi) (requiring that appellants’ briefs contain legal 

contentions and supporting authorities). 
- 5 - 

review this question of statutory interpretation de novo, using 

the statutory language to help us ascertain and effectuate the 

legislature’s intent. State v. Peek, 219 Ariz. 182, 183-84, 

¶¶ 6, 11, 195 P.3d 641, 642-43 (2008). When, as here, the 

legislature enacts a statement of purpose, we interpret the 

statute in light of that purpose. See Backus v. State, 220 

Ariz. 101, 104, ¶ 9, 203 P.3d 499, 502 (2009). 

A. FERA 

¶8 The legislature passed FERA in 1999 to protect Arizona 

citizens’ right to exercise their religious beliefs free from 

undue governmental interference. 1999 Ariz. Sess. Laws, ch. 

332, § 2 (1st Reg. Sess.). FERA parallels RFRA, 42 U.S.C. 

§§ 2000bb to 2000bb-4, a federal act that also protects free 

exercise rights, but does not apply to the states. City of 

Boerne v. Flores, 521 U.S. 507, 534-36 (1997). 

¶9 The operative portion of FERA permits the government 

to burden the exercise of religion only if the “application of 

the burden to the person is both . . . [i]n furtherance of a 

compelling governmental interest [and] [t]he least restrictive 

means of furthering that compelling governmental interest.” 

A.R.S. § 41-1493.01(C) (2004). The government’s violation of 

this section provides a “defense in a judicial proceeding.” 

Id. § 41-1493.01(D). 
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B. Establishing FERA Claims 

1. Allocation of burdens

¶10 A party who raises a religious exercise claim or 

defense under FERA must establish three elements: (1) that an 

action or refusal to act is motivated by a religious belief, (2) 

that the religious belief is sincerely held, and (3) that the 

governmental action substantially burdens the exercise of 

religious beliefs. Cf. Wisconsin v. Yoder, 406 U.S. 205, 215-18 

(1972) (requiring showing that a government action substantially 

interferes with a sincerely held religious belief, not merely a 

way of life or personal preference); Sherbert v. Verner, 374 

U.S. 398, 406 (1963) (to same effect); Weir v. Nix, 114 F.3d 

817, 820 (8th Cir. 1997) (addressing the RFRA standard based on 

language similar to that used in FERA); Jolly v. Coughlin, 76 

F.3d 468, 476 (2d Cir. 1996), abrogated on other grounds by

Flores, 521 U.S. at 507 (same); Cheema v. Thompson, 67 F.3d 883, 

885 (9th Cir. 1995), abrogated on other grounds by Flores, 521 

U.S. at 507 (same); Goodall ex rel. Goodall v. Stafford County 

Sch. Bd., 60 F.3d 168, 171 (4th Cir. 1995) (same). Once the 

claimant establishes a religious belief that is sincerely held 

and substantially burdened, the burden shifts to the state to 

demonstrate that its action furthers a “compelling governmental 

interest” and is “[t]he least restrictive means of furthering 

that compelling governmental interest.” A.R.S. § 41-1493.01(C). 
- 7 - 

¶11 In this case, the State conceded all of the elements a 

defendant must prove to establish a religious exercise defense: 

that Hardesty held a sincere belief in a true religion and that 

the law prohibiting possession of marijuana substantially 

burdened his exercise of religion. As to the State’s case, 

Hardesty conceded during argument on the motion to dismiss that 

the State had a compelling interest. Accordingly, the only 

remaining question is whether the State met its burden of 

proving that the statutory prohibition on the possession of 

marijuana is the least restrictive means of furthering the 

government’s compelling interest. 

2. Question of fact or law

¶12 Hardesty contends that, because defenses in criminal 

cases typically involve fact questions that are presented to and 

decided by a jury, his religious use defense must also be 

submitted to a jury. Courts have consistently treated the 

compelling interest/least restrictive means test as a question 

of law to be determined by the court and subject to de novo 

review. See, e.g., United States v. Friday, 525 F.3d 938, 948 

(10th Cir. 2008) (describing role of “constitutional facts, 

subject to [the court’s] ‘independent examination’” in First 

Amendment free exercise analysis, citing Bose Corp. v. Consumers 

Union, 466 U.S. 485, 499 (1984), and Henry P. Monaghan, 

Constitutional Fact Review, 85 Colum. L. Rev. 229 (1985)), cert. 
- 8 - 

denied, 129 S. Ct. 1312 (2009); see also Hamilton v. Schriro, 74 

F.3d 1545, 1552 (8th Cir. 1996) (noting that while trial court 

findings of fact are subject to review under the clearly 

erroneous standard, the ultimate question of whether one is 

deprived of a free exercise right is a question of law subject 

to de novo review); Eng’g Contractors Ass’n of S. Fla. v. Metro. 

Dade County, 122 F.3d 895, 905 (11th Cir. 1997); Contractors 

Ass’n of E. Pa. v. City of Phila., 91 F.3d 586, 596 (3d Cir. 

1996); Concrete Works of Colo., Inc. v. City & County of Denver, 

36 F.3d 1513, 1522 (10th Cir. 1994); In re State-Record Co., 917 

F.2d 124, 127 (4th Cir. 1990); Scott v. Rosenberg, 702 F.2d 

1263, 1274 (9th Cir. 1983); Evans v. Romer, 882 P.2d 1335, 1341 

(Colo. 1994), aff’d, 517 U.S. 620 (1996); Wadsworth v. State, 

911 P.2d 1165, 1170 (Mont. 1996); State v. Melin, 428 N.W.2d 

227, 229-30 (N.D. 1988). Hardesty has made no convincing 

argument that we should do otherwise and we therefore conclude, 

as all other courts have done, that whether the government has a 

compelling interest that is served by the least restrictive 

means is a question of law for the court to decide. 

3. Compelling interest claim

¶13 Hardesty urges that Gonzales v. O Centro Espirita 

Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), required the 

trial court to hold an evidentiary hearing to determine whether 
- 9 - 

the State has a compelling interest and can accomplish its 

compelling interest by less restrictive means.7

¶14 Hardesty’s reliance on O Centro is misplaced. 

Although the Court there observed that an exemption may be 

available under RFRA even though the federal Controlled 

Substances Act broadly prohibits possession of schedule one 

substances, id. at 433-35 (noting peyote exception), the Court 

did not require an evidentiary hearing in every RFRA case, see 

id. at 418. Instead, once the government establishes a 

compelling interest, courts must see whether the religious use 

can be exempted. Id. at 436 (citing Cutter v. Wilkinson, 544 

U.S. 709 (2005)). That is, the government must establish that 

applying the law in the particular circumstances is the least 

restrictive means of regulating. 

¶15 Hardesty next argues that we should apply the modified 

compelling interest test set forth in Church of the Lukumi 

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993). 

 

7

 The court of appeals disregarded O Centro because it 

interpreted RFRA, not FERA. Because, however, RFRA is 

substantially identical to FERA, compare 42 U.S.C. § 2000bb-1(b) 

(2006) with A.R.S. § 41-1493.01(C), the United States Supreme 

Court’s interpretation of RFRA, although technically not binding 

in our interpretation of FERA, provides persuasive authority, 

see, e.g., Ariz. State Tax Comm’n v. Kieckhefer, 67 Ariz. 102, 

107, 191 P.2d 729, 732 (1948); see also Fid. Union Trust Co. v. 

Field, 311 U.S. 169, 177 (1940) (noting that “[t]he highest 

state court is the final authority on state law”); State v. 

Locks, 91 Ariz. 394, 395-96, 372 P.2d 724, 725 (1962) (observing 

that “the construction of state laws is the exclusive 

responsibility of the state courts”). 
- 10 - 

We disagree. That case, which arose under the First Amendment, 

not RFRA, involved a statute that singled out and prohibited a 

disfavored religious practice of a particular religion by 

imposing a burden only on religiously motivated conduct. Id. at 

545-46. On review, the Court determined that a law targeting 

religious conduct is the “precise evil . . . the requirement of 

general applicability is designed to prevent.” Id. at 546. 

Such laws are subject to strict scrutiny and survive such 

searching review “only in rare cases.” Id.

¶16 In contrast to the targeted law at issue in Lukumi 

Babalu Aye, laws of general applicability are judged under the 

First Amendment by a lesser standard. In Yoder, the Court 

acknowledged that religiously based conduct is “often subject to 

regulation by the States in the exercise of their undoubted 

power to promote the health, safety, and general welfare, or the 

Federal Government in the exercise of its delegated powers.” 

406 U.S. at 220. Because Lukumi Babalu Aye involved a statute 

that targeted a religious practice, the case does not set the 

standard applicable to cases such as this one that involve 

nondiscriminatory laws of general applicability. 

C. Applying FERA 

1. Compelling state interest

¶17 Hardesty conceded that the State had a compelling 

interest, although he did not clearly articulate which interest 
- 11 - 

he conceded to be compelling. This concession comports with the 

case law regarding marijuana, which shows that courts 

consistently find the government’s interest in regulating 

marijuana to be a compelling interest. See, e.g., United States 

v. Israel, 317 F.3d 768, 772 (7th Cir. 2003); Olsen v. DEA, 878 

F.2d 1458, 1462 (D.C. Cir. 1989) (noting that “[e]very federal 

court that has considered the matter, so far as we are aware, 

has accepted the congressional determination that marijuana in 

fact poses a real threat to individual health and social 

welfare” (alteration in original) (citation omitted)). 

2. Least restrictive means

¶18 The existence of a compelling interest is not the end 

of the inquiry because FERA, by its terms, allows exceptions to 

neutral state laws of general applicability that substantially 

burden the free exercise of religious beliefs, see A.R.S. § 41-

1493.01(A)-(C), unless the government also demonstrates that the 

“application of the [substantial] burden to the person is . . . 

[t]he least restrictive means of furthering that compelling 

governmental interest.” Id. § 41-1493.01(C). Hardesty argues 

that the law does not accomplish its goals by the least 

restrictive means. 

¶19 Because use of the least restrictive means is 

determined in light of the specific interest asserted as 

compelling, we must ordinarily determine which government 
- 12 - 

interest is compelling. See id. (requiring the state to use 

“[t]he least restrictive means of furthering that compelling 

governmental interest” (emphasis added)). The State asserted at 

least two compelling interests: preventing the deleterious 

health effects associated with marijuana use and combating the 

danger to public safety and welfare that result from trafficking 

in marijuana. The State presented several cases in which courts 

found compelling the government’s interest in regulating 

marijuana and combating the crimes associated with drug use and 

drug trafficking. See, e.g., United States v. Middleton, 690 

F.2d 820, 824-25 (11th Cir. 1982); Randall v. Wyrick, 441 F. 

Supp. 312, 315-16 (W.D. Mo. 1977); United States v. Kuch, 288 F. 

Supp. 439, 446 (D.D.C. 1968); see also United States v. 

Mendenhall, 446 U.S. 544, 561 (1980) (Powell, J., concurring in 

part and concurring in the judgment) (stating that “[t]he public 

has a compelling interest in detecting those who would traffic 

in deadly drugs for personal profit”); Branzburg v. Hayes, 408 

U.S. 665, 701 (1972) (concluding, in a free speech context, that 

“the State has the necessary [compelling] interest in 

extirpating the traffic in illegal drugs”); Armijo v. State, 904 

P.2d 1028, 1029 (Nev. 1995) (holding “that the State has a 

compelling interest in protecting its children from the evils 

that follow both the use and trafficking of drugs”); 

Commonwealth v. Martin, 626 A.2d 556, 560 (Pa. 1993) (referring 
- 13 - 

to “a compelling state interest in eradicating illegal 

trafficking in drugs”); McDorman v. State, 757 S.W.2d 905, 907 

(Tex. Ct. App. 1988) (observing that “the State has a compelling 

interest to suppress illicit drug traffic”); see also Nat’l Drug 

Intelligence Ctr., U.S. Dep’t of Justice, National Drug Threat 

Assessment 2008, at v-vi, 16-17, 57-58 (2007) available at

http://www.usdoj.gov/ndic/pubs25/25921/25921p.pdf (describing 

the persistent marijuana smuggling problem generally and the 

increase in smuggling operations in Arizona). Another obvious 

compelling interest is the public safety concern posed by 

unlimited use, particularly by those driving motor vehicles. 

¶20 Against these compelling interests, Hardesty claims 

the broad right to use marijuana at all times, including the 

right to ingest while driving and, presumably, the right to 

drive while impaired by marijuana. The State argues that only a 

ban will prevent such use. 

¶21 To prove that a ban on marijuana is the least 

restrictive means, the State must show that proposed 

alternatives for achieving the State’s compelling interest are 

ineffective or impractical. See A.R.S. § 41-1493.01(C) (placing 

the burden on the state). It does not have to show that no less 

restrictive way to regulate is conceivable, only that none has 

been proposed. Blount v. Dep’t of Educ. & Cultural Servs., 551 

A.2d 1377, 1382 (Me. 1988) (“The State need not meet the 
- 14 - 

impossible standard of proving that no adequate less restrictive 

alternative can be developed, only that none has been 

proposed.”); cf. Westchester Day Sch. v. Vill. of Mamaroneck, 

504 F.3d 338, 353 (2d Cir. 2007) (referring to the least 

restrictive means available rather than the least restrictive 

means possible); Am. Life League, Inc. v. Reno, 47 F.3d 642, 648 

(4th Cir. 1995) (same). 

¶22 Hardesty claims an unlimited religious right to use 

marijuana when and where he chooses, and in whatever amounts he 

sees fit. In the context of this case, no means less 

restrictive than a ban will achieve the State’s conceded 

interests. 

¶23 Although Hardesty argued to the trial court that he is 

entitled to assert a religious use defense identical to that 

afforded peyote users, there is an obvious difference between 

the two situations. Members of the Native American Church 

assert only the religious right to use peyote in limited 

sacramental rites; Hardesty asserts the right to use marijuana 

whenever he pleases, including while driving. He also failed to 

address the disparate magnitudes of the illicit use and 

trafficking of peyote as opposed to marijuana. See Olsen, 878 

F.2d at 1463 (citing report that fifteen million pounds of 

marijuana were seized during an eight-year period compared to 

only nineteen pounds of peyote). Given Hardesty’s religious 
- 15 - 

beliefs, we conclude that there is no less restrictive 

alternative that would serve the State’s compelling public 

safety interests and still excuse the conduct for which Hardesty 

was tried and convicted.8

III. CONCLUSION 

¶24 Although religious exercise may provide a valid 

defense under A.R.S. § 41-1493.01, in the circumstances of this 

case, Hardesty’s defense fails as a matter of law. We affirm 

the judgment of the trial court and vacate the opinion of the 

court of appeals.9

 _______________________________________ 

 Rebecca White Berch, Chief Justice 

CONCURRING: 

_______________________________________ 

Andrew D. Hurwitz, Vice Chief Justice 

 

8

 Because Hardesty is asserting a FERA defense to criminal 

charges, the issue is whether a less restrictive statute or 

regulation would have excused the conduct for which he was 

convicted. For example, apart from the specific statutory 

exemption under A.R.S. § 13-3402(B), a member of the Native 

American Church charged with possession of peyote might be able 

to assert that a less restrictive governmental regulation than a 

total ban would serve the government’s interest. The analysis 

would be different, however, if the charged criminal use 

occurred while the defendant was driving a school bus. 

9

 Hardesty was convicted of possession of marijuana and 

possession of drug paraphernalia. He made no argument 

concerning the drug paraphernalia charge, apparently tying his 

conviction on that charge to his religious use defense on the 

possession charge. Because Hardesty’s religious use defense 

fails, we affirm the conviction on the paraphernalia charge as 

well as the possession charge. 
- 16 - 

_______________________________________ 

Michael D. Ryan, Justice 

_______________________________________ 

W. Scott Bales, Justice 

_______________________________________ 

Ruth V. McGregor, Justice (Retired)