The Volokh Conspiracy
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Is a Religious House of Worship "Used in Interstate Commerce"?
A federal appeals court rejects an expansive reading of the federal arson law.
Several years ago, federal prosecutor indicted Robert Doggart for soliciting others to help destroy a mosque in upstate New York. Among the specific charges was solicitation to commit arson in violation of 18 U.S.C. § 844(i), for which he was convicted in federal court.
In United States v. Doggart, the U.S. Court of Appeals for the Sixth Circuit considered Doggart's appeal of his conviction for, among other things, exceeding the scope of the federal arson statute, which is limited to the destruction of buildings or property "used in" interstate commerce."
In an opinion by Judge Jeffrey Sutton, the Sixth Circuit found merit to this aspect of Doggart's appeal. From Judge Sutton's opinion:
Doggart objects to his conviction for solicitation to commit federal arson on the ground that the target of the crime—a mosque—is not "used in" interstate commerce or in any activity affecting interstate commerce. 18 U.S.C. §§ 373, 844(i). We agree.
The text of this criminal statute does not create a natural home for the attempted destruction of a mosque. The underlying arson statute says in relevant part: "Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned." 18 U.S.C. § 844(i). This encompassing grant of authority (to prosecute the arson of "any" building) comes with a broad limit on that authority (to do so only when the building is "used in interstate [commerce]" or "used … in an activity affecting interstate [commerce]").
By any conventional measure, these terms do not cover the attempted destruction of a local mosque or for that matter any house of worship. In everyday English, one does not think of a mosque that serves a 200-person local community as a building used in commerce, much less interstate commerce. There may be plenty of good reasons to prosecute Robert Doggart for his deranged plan. But the words of this statute are not one of them.
Precedent backs this up. Arson, the United States Supreme Court has made clear, is "a paradigmatic" state law crime, one usually best left to the States to prosecute. Jones v. United States, 529 U.S. 848, 858, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). In an opinion by Justice Ginsburg, Jones determined that Congress did not exercise the full scope of its Commerce Clause powers in enacting § 844(i). Id. at 854–55, 120 S.Ct. 1904. The National Legislature's decision to cabin the arson statute's reach to buildings "used in" interstate commerce, the Court reasoned, reflected a decision to regulate less than Congress otherwise might have power to require. Id. It then construed the statute to apply only to the destruction of buildings with an "active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." Id. at 855, 120 S.Ct. 1904. Under that approach, Jones unanimously read § 844(i) not to cover the arson of a residence. Otherwise, the Court feared, the statute would transform "virtually every arson in the country [into] a federal offense." Id. at 859, 120 S.Ct. 1904; United States v. Laton, 352 F.3d 286, 303 (6th Cir. 2003) (Sutton, J., dissenting).
In holding that the federal arson statute does not cover private residences, the Court rejected several alleged connections between homes and interstate commerce. It did not suffice, the Court ruled, that an interstate bank lent the owners money to buy the home, that the building was insured by interstate companies, or that interstate energy companies kept the house warm. Jones, 529 U.S. at 852–57, 120 S.Ct. 1904. In each instance, the interstate activity was perceived as too fleeting and incidental to the conventional use of a home—as a shelter, a place to live, a place to raise a family. Id. at 855–56, 120 S.Ct. 1904. The same presumably would be true for other equally attenuated connections between private homes and interstate commerce: that each home is part of a large interstate commercial market in home buying and selling; that people often cross state lines to buy houses; that the materials to build residences often come from other States; or even that an unsentimental economist might characterize a family as a group of profit-maximizing individuals who live together as a way to keep expenses down.
Three canons of construction reinforced the Court's conclusion. One was the rule of lenity. Id. at 858, 120 S.Ct. 1904. This is a criminal statute after all. Another was the principle that, unless Congress speaks "clearly," the federal courts will not assume that it means to change the "federal-state balance in the prosecution of crimes." Id. (quotation omitted). Arson is a quintessential state law crime, and the power to regulate arson under interstate commerce includes the power to marginalize any local regulation of the topic (by creating higher federal sentences for the same crime) or to preempt it (by barring any local regulation of the topic). The third canon was that, "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." Id. at 857–58, 120 S.Ct. 1904 (quotation omitted). The Court relied on the "used in" qualifier to limit the reach of the statute to conventional uses of interstate commerce and to prevent the law from exceeding Congress's Commerce Clause authority by regulating any and all local arsons. All indicators of meaning considered, the Court ruled that one category of American buildings—private residences—is generally out of bounds when it comes to the federal arson statute.
The same is true, even more true, of houses of worship. Whether it's a church, a synagogue, or a mosque, they are no more "active[ly]" used for "commercial purposes" than residential homes are. Id. at 855, 120 S.Ct. 1904. A place of worship simply is not the kind of building traditionally used for commercial activities. The structures instead are associated with spiritual and local activities—a place of worship and a source of community and education for people of a shared faith. One could tie aspects of these buildings, we realize, to some commercial activities, just as one could do the same with respect to a family dwelling. Yes, the buildings are often insured. (Faith goes so far.) A house of worship must comply with governmental building and safety codes that apply to commercial buildings. (Give to Caesar what is Caesar's.) The faith community usually employs and pays the individuals who work in the buildings. (Even servants of God have bills to pay.) And these expenses and the expenses to construct the buildings themselves are paid for through tithes and other contributions—usually money earned through commercial, often interstate commercial, activities. But just as these and comparable activities did not suffice to treat residences as buildings used in interstate commerce, they do not suffice to transform houses of worship into buildings used in interstate commerce. That a "building is a church" or house of worship of any kind, "without more," does not cut it. . . .
Upon reversing parts of Doggart's conviction, the Court remanded Doggart's case to the district court for resentencing.
