Religious Worship, Political Commentary About Religion, and Federal Power Under the Commerce Clause

From Jingrong v. Chinese Anti-Cult World Alliance Inc., decided today by the Second Circuit (Judge Susan Carney, joined by Judges John Walker and Pierre Leval):

This appeal presents the question of whether five tables on the sidewalk in Flushing, Queens, New York—where Plaintiffs … passed out flyers and displayed posters primarily protesting the Chinese Communist Party's treatment of Falun Gong—constitute "a place of religious worship" under the Freedom of Access to Clinics Entrances Act ("FACEA"), 18 U.S.C. § 248.

Plaintiffs are adherents of Falun Gong, a modern spiritual practice originating in China. They allege that Defendants … harassed, intimidated, and interfered with them when they engaged in activities at the tables. Based on these incidents, Plaintiffs brought a claim under FACEA, which makes it unlawful to intentionally injure, intimidate, or interfere with or to attempt to injure, intimidate, or interfere with a person exercising her religion at "a place of religious worship." They allege that the sidewalk tables are a "place of religious worship."

We hold that "a place of religious worship" is anywhere that religious adherents collectively recognize or religious leadership designates as a space primarily to gather for or hold religious worship activities. We hold further that the tables do not qualify under this definition: at summary judgment, the undisputed record showed that Plaintiffs and their fellow practitioners treated the tables primarily as a base for protesting and raising public awareness about the Chinese Communist Party's alleged abuses against Falun Gong, rather than for religious worship. Nor was there evidence that the Falun Gong religious leadership had designated the tables as a place primarily to gather for or hold religious worship activities. Accordingly, the § 248(a)(2) claim fails….

Certainly, the record contains some evidence that volunteers who staffed the tables would pray or "promot[e] the Fa" there. But the issue is not whether there is any evidence that worship activities sometimes occurred at the tables. Rather, we must determine whether there is sufficient evidence for a reasonable jury to conclude that the primary purpose of the tables is religious worship.

Consider the distinction between two hypotheticals: members of a sports team form a prayer circle on a field before a game but do not conceive of that field as "a place of religious worship" in their religious tradition. By contrast, adherents of a particular religion rent a secular facility to conduct their daily or weekly church services and conceive of that space as devoted to religious worship during that time. Although religious worship is taking place in both examples, only the latter circumstance involves "a place of religious worship" because religious adherents have so designated that space for that primary purpose. The record here shows that at most that there were only sporadic instances of worship at the tables. Plaintiffs and their fellow practitioners instead understood the primary purpose of the tables as a site from which to disseminate information about the Chinese Communist Party's treatment of Falun Gong….

Judge John Walker concurred to add that "the conduct is beyond Congress' Commerce Clause authority to regulate" (the majority didn't reach that question):

In prohibiting violence against worshippers at places of religious worship, FACEA regulates local, non-economic conduct that has at best a tenuous connection to interstate commerce. The Supreme Court in United States v. Lopez and United States v. Morrison expressly rejected the notion that the commerce power reaches "noneconomic, violent criminal conduct" of the sort proscribed here "based solely on that conduct's aggregate effect on interstate commerce." …

Whether the relevant regulated activity under 18 U.S.C. § 248(a)(2) is either religious practice at a "place of religious worship" or violence against those worshippers and proselytizers at places of religious worship, neither activity is economic. Neither worship nor violence against worshippers affects the production, distribution, or consumption of a commodity in an interstate (or any) market. To be sure, the precise activities at issue in Wickard v. Filburn and Gonzales v. Raich were not commercial, in that the subsets of wheat and marijuana were not being purchased or sold. But they were economic enterprises that, in the aggregate, would have a direct economic effect on the interstate market for each commodity. The statutes in Wickard and Raich, by "restrict[ing] the amount which may be produced for market," limited "the extent … to which one may forestall resort to the market by producing to meet his own needs." No such economic effect can be found here. Neither plaintiffs, by practicing their religion, proselytizing, or protesting the Chinese government's opposition to Falun Gong, nor defendants, by engaging in violence against plaintiffs, fulfill a need locally that they would otherwise fulfill by purchasing some commodity on an interstate market….

In my view, § 248(a)(2) suffers from the same infirmity as the statute struck down in U.S. v. Lopez, a provision of the Gun-Free School Zones Act of 1990 that prohibited knowing possession of a firearm in a place known or reasonably believed to be a school zone. The Court observed that the provision at issue was "a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise." Possession of a gun in a local school zone is not an activity that, through repetition, would substantially affect interstate commerce. So too here. Neither worship nor violence against worshippers is economic activity nor would repetition of either generate a substantial effect on interstate commerce….

Section 248(a)(2) is also distinguishable from the Church Arson Prevention Act of 1996, which imposes federal criminal penalties for the destruction of "religious real property." In rejecting a Commerce Clause challenge to the Act, the Tenth Circuit noted that it contained an express jurisdictional nexus and recited legislative findings that "arson or other destruction or vandalism of places of religious worship … pose a serious national problem" that "warrant[s] Federal intervention." The legislative history of the Church Arson Prevention Act also referenced a "broad range" of commercial activities in which churches engage, "including social services, educational and religious activities, the purchase and distribution of goods and services, civil participation, and the collection and distribution of funds for these and other activities across state lines." Although Congress made specific commerce findings regarding religious real property, it made no such findings relating to § 248(a)(2), which importantly regulates violence against persons, not real property….

Finally, the link between the regulated activity in this case and any effect on interstate commerce is far too attenuated to offset the other factors. The Supreme Court in Morrison made clear that "[t]he Constitution requires a distinction between what is truly national and what is truly local," lest the commerce power engulf the general police power reserved to the States. Upholding § 248(a)(2) would all but eliminate that fundamental distinction. Intrastate violence "has always been the province of the States" to regulate.

Even accepting that some religious organizations may offer commercial services, such as childcare, education, and the purchase and distribution of goods, § 248(a)(2) does not target violence interfering with social services provided at houses of worship, or damage or destruction to the property of a place of religious worship. The act of worship—separate from whatever commercial endeavors religious organizations may also engage in—is in no sense a commercial or economic activity. To find otherwise would require us to layer "inference upon inference," a step that I am unwilling to take in the light of Lopez, Morrison, and the constitutional bounds on federal power.