Jingrong et al v. Chinese Anti-Cult World Alliance et al
Filing
175
MEMORANDUM AND ORDER DENYING CONSTITUTIONAL CHALLENGE AND CERTIFYING CASE FOR INTERLOCUTORY APPEAL. Ordered by Judge Jack B. Weinstein on 5/30/2018. (Barrett, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ZHANG Jingrong, ZHOU Yanhua, ZHANG
Peng, ZHANG Cuiping, WEI Min, LO
Kitsuen, CAO, Lijun, HU Yang, GUO
Xiaofang, GAO Jinying, CUI Lina, XU Ting,
BIAN Hexiang,
MEMORANDUM AND ORDER
DENYING CONSTITUTIONAL
CHALLENGE AND
CERTIFYING CASE FOR
INTERLOCUTORY APPEAL
15-CV-1046
Plaintiffs,
– against –
Chinese Anti-Cult World Alliance (CACWA),
Michael CHU, LI Huahong, WAN Hongjuan,
ZHU Zirou, and DOES 1-5 Inclusive,
Defendants.
JACK B. WEINSTEIN, Senior United States District Judge
Parties
Appearances
Zhang Jingrong,
Zhou Yanhua,
Zhang Peng,
Zhang Cuiping,
Wei Min,
Lo Kitsuen,
Cao, Lijun,
Hu Yang,
Guo Xiaofang,
Gao Jinying,
Cui Lina,
Xu Ting, and
Bian Hexiang
Terri Ellen Marsh
Human Rights Law Foundation
1875 K Street NW Suite 400
Washington D.C. 20006
(202) 697-3858
Joshua S. Moskovitz
Bernstein Clarke & Moskovitz
PLLC
11 Park Place, Suite 914
New York, New York 10007
(212) 321-0087
Jonathan C. Moore
Keith M. Szczepanski
Beldock Levine & Hoffman LLP
99 Park Avenue, PH/26th Floor
New York, New York 10016
(212) 490-0400
1
Chinese Anti-Cult World Alliance
(CACWA),
Michael CHU,
Li Huahong, and
Zhu Zirou
Tom M. Fini
Jacques Catafago, Esq.
Catafago Fini LLP
The Empire State Building
350 Fifth Avenue, Suite 7412
New York, NY 10118
212-239-9669
Edmond W. Wong, Esq.
Law Office of Edmond W. Wong
35-10 Farrington Street
Flushing, NY 11354
718-886-3188
Edmond W. Wong, Esq.
Law Office of Edmond W. Wong
35-10 Farrington Street
Flushing, NY 11354
718-886-3188
Wan Hongjuan
Table of Contents
I.
Introduction ............................................................................................................................. 3
II. Factual Background ................................................................................................................ 7
A.
Case Background.............................................................................................................. 7
B.
Prior Opinion on FACEA ................................................................................................. 8
C.
Religion and Commerce ................................................................................................... 9
III. Law ....................................................................................................................................... 12
A.
Timeliness of Constitutional Challenge ......................................................................... 12
1.
Pleading Constitutional Challenges ............................................................................ 12
2.
Leave to Amend.......................................................................................................... 14
B.
FACEA ........................................................................................................................... 14
C.
Commerce Clause .......................................................................................................... 19
2
1.
Supreme Court Commerce Clause Jurisprudence ...................................................... 19
2.
FACEA Commerce Clause Decisions ........................................................................ 23
3.
Commerce Clause and Religion ................................................................................. 24
IV. Application of Facts to Law .................................................................................................. 28
A.
Timeliness of Constitutional Challenge ......................................................................... 28
B.
Commerce Clause Analysis ........................................................................................... 30
C.
Distinguishing Morrison ................................................................................................ 32
D.
Legislative Findings and Jurisdictional Nexus............................................................... 34
V. Certification of Interlocutory Appeal.................................................................................... 35
VI. Conclusion ............................................................................................................................ 38
I.
Introduction
This memorandum and order addresses a question raised by defendants: has Congress
exceeded its authority granted by the Commerce Clause of the United States Constitution in
passing the portion of the Freedom of Access to Clinic Entrances Act (“FACEA”) that protects
“place[s] of religious worship.” 18 U.S.C. § 248(a)(2).
FACEA was adopted in 1994 primarily to protect women seeking access to abortion
services. The abortion clinic part of FACEA has been upheld as constitutional by every circuit
court of appeals that has considered the issue. Late in the legislative processes, FACEA was
amended to protect “any person lawfully exercising or seeking to exercise the First Amendment
right of religious freedom at a place of religious worship.” 18 U.S.C. § 248(a)(2). No court, so
far as this court is aware, has considered whether this religion section is constitutional. This
court now finds that FACEA is a constitutional exercise of congressional Commerce Clause
power.
Nevertheless, the court is dubious about whether the Commerce Clause, U.S. Const. art.
I, § 8, cl. 3. (“The Congress shall have Power . . . [t]o regulate Commerce . . . among the several
3
States”), permits government protection of religion by FACEA because the First Amendment,
U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof”), requires a barrier between religion and government. A
specific amendment to a statute or constitution should have more force than a generalized clause.
It is an anomaly of our religious jurisprudence that the basic structure of the relationship
between government and religion requires government to keep its hands off religion. Yet,
carrying out the disestablishment rule has not prevented a strong economic relationship between
the two: religion and government. Local, state, and federal governments grant religious
exemptions and aid with economic advantages, see, e.g., Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751 (2014) (holding that a for-profit corporation was exempt from generally
applicable contraceptive insurance requirements because of religious belief avoiding a $475
million fine), supply assistance to religious schools, see, e.g., Zelman v. Simmons-Harris, 536
U.S. 639 (2002) (upholding a school voucher program where the majority of students were
enrolled in religious schools), Erica L. Green, De Vos Pushes Federal Aid for Religious
Universities, N.Y. Times, May 10, 2018, at A16, and provide tax benefits, Walz v. Tax Comm’n
of City of New York, 397 U.S. 664, 680 (1970) (holding that tax exemptions for religious
organizations do not violate the First Amendment); see also infra Section IV(B) (Commerce
clause analysis), Section III(C)(3) (Commerce clause and religion).
Religion, even when non-profit, is deeply rooted in interstate commerce. It comprises a
sizable portion of the United States economy. Houses of religious worship offer numerous
valuable services to their congregates, support a large number of personnel, take in and expend
considerable funds, own large tracts of land, and receive free municipal services, such as
schooling assistance, roads, and police protection. Huge religious educational institutions
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operating over the internet draw students and billions of dollars in revenue from all over the
country. Religion substantially contributes to our gross national product. Congress could
reasonably have concluded that violence and intimidation to keep people out of houses of
worship would substantially adversely affect interstate commerce. FACEA is constitutional in
its design to protect that national commerce.
This case arises out of a religious and political dispute between adherents of Falun
Gong—a Chinese religious group—and a group of their opponents—organized under the
umbrella of the Chinese Anti-Cult World Alliance. See Zhang Jingrong v. Chinese Anti-Cult
World All. (“Zhang I”), No. 15-CV-1046, 2018 WL 1916617, at *1-14, --F.Supp.3d-- (E.D.N.Y.
Apr. 23, 2018). The People’s Republic of China (“Chinese Government”) has allegedly
suppressed the practice of Falun Gong in China and is attempting to do so abroad, including in
the United States. Id. The parties have debated and at times been violent with one another
around a temple and tables used by Falun Gong members in Queens, New York for prayer,
proselytizing, and protesting against the Chinese Government’s position. Id.
The tables used by plaintiffs to proselytize have printed materials that are said to come
from outside of the state. See Decl. of Yuebin Yu (“Yu Decl.”) at ¶ 2, ECF No. 171, Ex. 2(f).
Parts of tables themselves may flow through commerce. Congregants make substantial
donations of time and money to the Falun Gong temple and tables affecting the stream of
commerce. Id. at ¶ 8.
A prior opinion decided summary judgment motions and set the case for trial. See Zhang
I, 2018 WL 1916617. That opinion concluded that Falun Gong is a religion for the purposes of
the instant case and construed the scope of FACEA. Defendants then contended that FACEA is
unconstitutional. Upon examination of the statute, briefing, argument, and research, the court
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finds that FACEA is constitutional; it is authorized by Congress’ power over interstate and
foreign commerce.
FACEA’s constitutionality is not obvious. It was passed in 1994—one year before the
Supreme Court’s Commerce Clause jurisprudential shift—a time when Congress’ commerce
power was thought to be virtually limitless. See infra Section III(C)(1). Defendants make
powerful arguments that the statute exceeds Congress’ commerce power: (1) “Acts of violence
or intimidation at places of worship are not economic activity, and are plainly analogous to the
acts of violence covered by the Violence Against Women Act that the Supreme Court expressly
held in [United States v. Morrison, 529 U.S. 598 (2000)] cannot properly be considered
economic activity”; (2) FACEA contains no express commerce-based jurisdictional statement of
justification as do other similar statutes, see, e.g., 18 U.S.C. § 247 (requiring as an element a link
between a defendant’s conduct and commerce); 18 U.S.C. § 249 (same); (3) FACEA contains no
legislative findings linking religion and commerce; and (4) the link between religion and
commerce is too attenuated to survive scrutiny. Defs.’ Br. on Unconstitutionality (“Defs.’ Br.”)
at 2-3, ECF No. 172, May 21, 2018.
A two month jury trial looms—demanding substantial time, effort, and money of the
parties, a jury, and the court. Prudence dictates that this case not be tried with a substantial,
dispositive question of constitutional law undecided by any appellate court. This opinion, and
the prior opinion construing the scope of FACEA, are therefore certified for an interlocutory
appeal. See infra Part V.
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II.
Factual Background
A. Case Background
A comprehensive recitation of the facts is contained in the court’s opinion of April 23,
2018. See Zhang I, 2018 WL 1916617, at *1-14. A condensed, excerpted version of the facts
relevant to this opinion is set out below.
Plaintiffs are members of a group, Falun Gong, developed in the second half of the
twentieth century in China. The Chinese Government, they allege, has acted to suppress this
group in both China and abroad, including in the United States, because it deems the group a
threat to the hegemony of the Chinese State and Communist Party.
Adherents of Falun Gong live in the United States. Some are citizens of this country. It
is contended by them as plaintiffs that the Chinese Government has conspired with individuals to
harm followers of Falun Gong in the United States by organizing and encouraging the Chinese
Anti-Cult World Alliance (“CACWA”) and individuals to inflict injuries on those who follow
Falun Gong.
Defendants oppose Falun Gong in Flushing, Queens, New York, and elsewhere. They
deny that Falun Gong is a religion. Following the position of the Chinese Government, their
opposition is based upon characterizing Falun Gong as a “cult” indoctrinating its followers with
beliefs that are dangerous, unscientific, and offensive.
For purposes of this litigation, Falun Gong is found to be a religion. See Zhang I, 2018
WL 1916617, at *34-35. Plaintiffs proselytize their religion and protest the Chinese
Government’s opposition to it from tables on Main Street in Flushing near what they consider to
be one of their temples.
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Plaintiffs set up the tables in a heavily pedestrian-traveled area. At the tables they
verbally and with hand-outs, signs, and literature attacked the Chinese Government politically
for, among other things, harvesting human organs. They also use the tables to proselytize for
Falun Gong, through informative materials, and for meditation and exercise, forms of their
worship.
The parties have clashed with one another around the temple and tables. At times the
debates became loud, spirited, and mildly physical, with occasional striking out and hitting. The
plaintiffs brought this suit on the theory—in addition to others—that defendants’ actions were
violent and intimidating at a place of religious worship as prohibited under FACEA.
B. Prior Opinion on FACEA
The opinion of this court of April 23, 2018 addressed summary judgment motions of the
parties and the court’s sua sponte motion for summary judgment. See Zhang I, 2018 WL
1916617. It held that a broad interpretation of FACEA is necessary to avoid a serious
constitutional question under the First Amendment.
The Federal Freedom of Access to Clinic Entrances Act protects plaintiffs “lawfully
exercising . . . [their] First Amendment right of religious freedom at a place of
religious worship.” 18 U.S.C. § 248(a)(2) (emphasis added). This statute is
inclusive of all lawful religious practices and of all places it is practiced. Any place
a religion is practiced—be it in underneath a tree, in a meadow, or at a folding table
on the streets of a busy city—is protected by this and other statutes and the First
Amendment to the Federal Constitution. A contrary reading would render the
Freedom of Access to Clinic Entrances Act unconstitutional since it would
discriminate between religions that use formal temples and those that do not.
Id. at *1.
A textual reading of the statute supports this conclusion:
FACEA’s language counsels for an expansive interpretation. Congress used the
word “place,” meaning a “physical environment” or “space.” Webster’s Third New
International Dictionary 1727 (1993). By contrast, in 18 U.S.C. § 247, referenced
in FACEA’s legislative history, Congress used starkly different language in
8
describing religious sites. It outlaws “intentionally defac[ing], damage[ing], or
destroy[ing] any religious real property.” 18 U.S.C. § 247 (emphasis added). And
“religious real property” is defined as “any church, synagogue, mosque, religious
cemetery, or other religious real property, including fixtures or religious objects
contained within a place of religious worship.” Id. The difference—between “a
place of religious worship” and “religious real property”—suggests congressional
intent to protect all places of religious worship and not just fixed structures in
FACEA.
Id. at *30.
It was concluded that the tables where plaintiffs’ proselytize, meditate, and protest
against the Chinese Government are protected “place[s] of religious worship” under FACEA. Id.
at *39.
Falun Gong is a religion for the purposes of the instant case. Many of the incidents
of violence and intimidation took place at or around the Falun Gong Temple in
Flushing, Queens and at the tables plaintiffs use to proselytize for Falun Gong. Both
are places of religious worship for purposes of the present case. The statute protects
temporary structures.
Plaintiffs and others proselytize and meditate—both recognized forms of
worship—at these tables. Hr’g Tr. 210:5–17 (defendants’ expert explaining that the
Falun Gong tables contain materials explaining the practice of Falun Gong); id.
213:19–214:19 (defendants’ expert explaining that he has observed Falun Gong
practitioners meditating at the tables); id. 251:21–254:9 (director of Falun Gong
Spiritual Center in Queens explaining that the tables are used for proselytizing,
protesting the Chinese Communist Party, and praying); see also Murdock v. Com.
of Pennsylvania, 319 U.S. 105 (1943) (“[S]preading one’s religious beliefs or
preaching the Gospel through distribution of religious literature and through
personal visitations is an age-old type of evangelism with as high a claim to
constitutional protection as the more orthodox types.”).
Id. (some internal citations omitted).
C. Religion and Commerce
Religious activity contributes substantially to the United States economy. See generally
Brian J. Grim & Melissa E. Grim, The Socio-economic Contribution of Religion to American
Society: An Empirical Analysis, 12 Interdisc. J. of Res. on Religion 1 (2016); cf. 4 Encyclopedia
of Religion 2668-69 (2d ed. 2005) (relationship between economic matters and religion); id. at
9
2670 (relationship between religion and capitalism); id. at 2671 (linking the scholarly discussion
of economic matters to the analysis of religion); id. at 2672 (an idealistic interpretation of the
case of modern capitalism centered on religious matters); id. at 2676 (relationship between
economic and religious factors in modern life). Religious organizations participate in a number
of income generating sectors including education, health care, and social services.
A recent, peer-reviewed study by Brian and Melissa Grim offers three estimates of the
impact of religious activity on the United States economy. The first estimate, $378 billion
annually, relies solely on revenue produced by religious organizations. Grim & Grim, supra, at
27. A second estimate, advocated as the most reasonable by the authors, places the value at $1.2
trillion; “it takes into account both the value of the services provided by religious organizations
and the impact religion has on a number of important American businesses.” Id. The third
estimate of $4.8 trillion includes the value of “personal and social religious dynamics” and is
offered as an upper end. Id.
There are over 330,000 houses of worship in the United States. See C. Kirk Hadaway
Penny Long Marler, How Many Americans Attend Worship Each Week? An Alternative
Approach to Measurement, 44 J. for the Sci. Study of Religion 307, 311 (2005). Approximately
53.6 million Americans attend religious services weekly, amounting to 20% of the United States
population. Id. at 316. The revenue for these congregations is estimated to be $74.5 billion.
Grim & Grim, supra, at 9. “Total church contributions appear to have remained around 1
percent of [Gross National Product] since at least 1955. Religious giving consistently accounts
for about half of all charitable giving in the United States (approximately 64 billion dollars in
1995).” Laurence R. Iannaccone, Introduction to the Economics of Religion, 36 J. of Econ.
Literature 1465, 1469 (1998). Hundreds of thousands of people are employed by religious
10
organizations. See U.S. Dep’t of Labor, Bureau of Labor Statistics, Occupational Employment
and Wages: Religious Organizations, May 2017 (last visited May 24, 2018)
https://www.bls.gov/oes/current/naics4_813100.htm (estimating that 193,660 Americans are
employed by religious organizations across a spectrum of occupations).
“[H]ouses of worship have provided their constituents with a growing array of
commercial services.” Michael A. Helfand & Barak D. Richman, The Challenge of CoReligionist Commerce, 64 Duke L.J. 769, 772 (2015). There are many places of worship that
offer commercial services, such as cafes, book stores, and gyms. See, e.g., Peter J. Reilly,
Megachurch Denied Property Tax Exemption For Gym And Bookstore/Cafe, Forbes, April 10,
2013; Jesse Bogan, America’s Biggest Megachurches, Forbes, June 26, 2009.
One example of the relationship of organized religion and commerce is Liberty
University. See Alec MacGillis, How Liberty University Built a Billion-Dollar Empire Online,
N.Y. Times Mag., April 22, 2018, at MM46. Liberty University created a large and growing
online component in its institution:
By 2016, Liberty’s net assets had crossed the $1.6 billion mark, up more than
tenfold from a decade earlier. Thanks to its low spending on instruction, its net
income was an astonishing $215 million on nearly $1 billion in revenue, according
to its tax filing—making it one of the most lucrative nonprofits in the country, based
simply on the difference between its operating revenue and expenses, in a league
with some of the largest nonprofit hospital systems.
Id.; see also Jerry Falwell Jr., Readers Respond to the 4.22.18 Issue, May 6, 2018, at 10 (“Since
1971, Liberty University has helped more than 250,000 students develop the critical thinking
skills necessary to excel in careers and communities outside our classrooms. . . . [T]he university
is undergoing constant construction. We are building a new business school and upgrading our
football stadium to N.C.A.A. standards, a testament to our belief that we can always improve the
experience of our students. . . . We are proud of the institution we have created and the minds we
11
have expanded, challenged and enlightened, and take matters questioning our dedication to
education seriously.”).
III.
Law
A. Timeliness of Constitutional Challenge
1.
Pleading Constitutional Challenges
It is not clear whether a party’s constitutional challenge to an act of Congress should be
pled as an affirmative defense. Compare Williams v. Paxton, 559 P.2d 1123, 1132 n.1 (1976)
(“The purpose of the rule requiring [affirmative] defenses to be pleaded is to alert the parties
concerning the issues of fact which will be tried and to afford them an opportunity to present
evidence to meet those defenses. The constitutionality of a statute, however, is not ordinarily an
issue upon which evidence must be presented at trial or about which one must be forewarned in
order to prepare evidence for trial. . . . [It] is a matter of law.”), and S. Track & Pump, Inc. v.
Terex Corp., No. CV 08-543-LPS, 2013 WL 5461615, at *2 (D. Del. Sept. 30, 2013), rev’d on
other grounds, 618 F. App’x 99, 2015 WL 4081493 (3d Cir. 2015) (“Terex has not waived its
constitutional challenge. . . . Plaintiff cites no binding authority for the proposition that a
constitutional challenge to a statute is waived under Rule 8(c) if not pled as an affirmative
defense in the answer.”), with Holland v. Cardiff Coal Co., 991 F. Supp. 508, 515 (S.D.W. Va.
1997) (“[Defendant’s] Fifth Amendment taking defense is an affirmative defense within the
definition of that term because in raising that defense, [Defendant] essentially maintains that
even if it is found liable under the terms of the Coal Act, [Defendant] cannot be held liable
because the Act, as applied, violates the Constitution.”); cf. Fed. R. Civ. P. 8(c) (“In responding
to a pleading, a party must affirmatively state any avoidance or affirmative defense.”); Wright &
Miller, 5 Federal Practice and Procedure § 1271 (3d ed.) (“As far as the judicial precedents are
12
concerned, the following matters have been held by federal courts to be affirmative defenses
under Rule 8(c) in nondiversity cases . . . the unconstitutionality of a statute relied upon by the
plaintiff.”); Century Indem. Co. v. Marine Grp., LLC, 848 F. Supp. 2d 1238, 1262 (D. Or. 2012)
(noting the “uncertainty of federal law” about whether the defense of unconstitutionality must be
pled).
A constitutional challenge to Congress’ power to pass a statute may be raised at any time
in a litigation. Cf. Wright & Miller, 5 Federal Practice and Procedure § 1277 (3d ed.) (“Many
courts permit affirmative defenses to be asserted by motion even when the defenses are not
available on the face of the complaint. This is especially true as to those affirmative defenses that
seem likely to dispose of the entire case or a significant portion of the case and defenses that
require no factual inquiry for their adjudication. In situations such as these, the federal courts
appear to be wise in overlooking the formal distinctions between affirmative defenses and
motions, which have their primary justification in history rather than logic.”); Wright & Miller,
15B Federal Practice and Procedure § 3918.7 (2d ed.) (noting in the criminal context that “[t]he
arguments that the statute underlying the prosecution is unconstitutional . . . may be so
fundamental that a knowing and voluntary waiver will be difficult to establish”); Monahan v.
New York City Dep't of Corr., 214 F.3d 275, 283 (2d Cir. 2000) (“[T]he district court has the
discretion to entertain [an affirmative] defense when it is raised in a motion for summary
judgment, by construing the motion as one to amend the defendant’s answer.”). Some
arguments, such as “[t]he objection that a federal court lacks subject-matter jurisdiction, may be
raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial
and the entry of judgment.” Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006) (internal citations
omitted).
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2.
Leave to Amend
“Prior to trial, ‘a party may amend its pleading only with the opposing party’s written
consent or the court’s leave. The court should freely give leave when justice so requires.’”
DaCosta v. City of New York, 296 F. Supp. 3d 569 (E.D.N.Y. 2017) (quoting Fed. R. Civ. P.
15(a)(2)), reconsideration denied sub nom. DaCosta v. Tranchina, 285 F. Supp. 3d 566
(E.D.N.Y. 2018). Once a scheduling order has been entered it “‘may be modified’ to allow the
amendment ‘only for good cause and with the judge’s consent.’” Id. (quoting Fed. R. Civ. P.
16(b)(4)). The primary “good cause” consideration is whether “the moving party can
demonstrate diligence,” but the court may also consider other factors including “prejudice” to the
non-movant. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007).
“The Federal Rules of Civil Procedure are merits oriented.” DaCosta v. Tranchina, 285
F. Supp. 3d 566, 578 (E.D.N.Y. 2018); cf. Fed. R. Civ. P. 1 (“[The Federal Rules of Civil
Procedure] should be construed, administered, and employed by the court and the parties to
secure the just, speedy, and inexpensive determination of every action and proceeding.”)
(emphasis added). “It is . . . entirely contrary to the spirit of the Federal Rules of Civil Procedure
for decisions on the merits to be avoided on the basis of [] mere technicalities.” Foman v. Davis,
371 U.S. 178, 181-82 (1962); cf. Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 550–51 (2010)
(noting the “preference expressed in the Federal Rules of Civil Procedure in general, and Rule 15
in particular, for resolving disputes on their merits”).
B. FACEA
Congress passed FACEA in 1994 after the United States Supreme Court decided Bray v.
Alexandria Women’s Health Clinic, 506 U.S. 263 (1993), which restricted claims brought under
42 U.S.C. § 1985(3). See Zhang I, 2018 WL 1916617, at *28. Bray limited protections for
14
women seeking abortions; Congress sought to address that issue with FACEA. H.R. Rep. No.
103-488, at 7-8, reprinted in 1994 U.S.C.C.A.N. 724, 724–25 (May 2, 1994) (Conf. Rep.) (“Prior
to the Supreme Court’s decision in Bray . . . the conduct described in [FACEA] was frequently
enjoined by federal courts in actions brought under 42 U.S.C. 1985(3), but in that case the Court
denied a remedy under such section to persons injured by the obstruction of access to abortionrelated services.”).
Introduced into this Act protecting women seeking abortion services was a provision
protecting religion:
Whoever . . . [1] by force or threat of force or by physical obstruction, [2]
intentionally injures, intimidates or interferes with or attempts to injure, intimidate
or interfere with [3] any person lawfully exercising or seeking to exercise the First
Amendment right of religious freedom [4] at a place of religious worship shall be
subject to the penalties provided in . . . the civil remedies provided in subsection
(c).
18 U.S.C. § 248(a)(2). Remedies include an award of statutory damages in the amount of $5,000
per violation. 18 U.S.C. § 248(c)(1)(B)
The Senate Report on the bill contains commerce findings about abortion services:
Congress has clear constitutional authority to enact the Freedom of Access to Clinic
Entrances Act under the Commerce Clause, which gives it authority to regulate
interstate commerce.
Commerce Clause authority has been broadly interpreted, and an exercise of it will
be sustained if Congress has a rational basis for finding that an activity affects
interstate commerce, and it[] acts rationally in addressing the activity. Under the
Commerce Clause, in conjunction with the Necessary and Proper Clause, Congress
has authority to regulate activity that is purely local if that activity has an effect on
interstate commerce. Further, once Congress finds that a class of activities affects
interstate commerce, Congress may regulate all activities within that class, even if
any of those activities, taken individually, has no demonstrable effect on interstate
commerce. It has also been considered important to Commerce Clause analysis that
the problem Congress is addressing is national in scope and exceeds the ability of
a single state or local jurisdiction to solve. Under these principles, [FACEA] falls
easily within the commerce power.
15
Clinics and other abortion service providers clearly are involved in interstate
commerce, both directly and indirectly. They purchase medicine, medical supplies,
surgical instruments and other necessary medical products, often from other States;
they employ staff; they own and lease office space; they generate income. In short,
the Committee finds that they operate within the stream of interstate commerce.
In addition, many of the patients who seek services from these facilities engage in
interstate commerce by traveling from one state to obtain services in another. . . .
Clinic employees sometimes travel across State lines to work as well. Like Dr.
David Gunn, the physician who was killed in Pensacola, FL, some doctors who
perform abortions work in facilities in more than one State.
In addition, as Attorney General Reno noted, the types of activities that would be
prohibited by [FACEA] have a negative effect on interstate commerce. As the
record before the Committee demonstrates, clinics have been closed because of
blockades and sabotage and have been rendered unable to provide services.
Abortion providers have been intimidated and frightened into ceasing to perform
abortions. Clearly, the conduct prohibited by [FACEA] results in the provision of
fewer abortions and less interstate movement of people and goods. This situation is
analogous to Congress[] exercise of the commerce power in passing Title II of the
Civil Rights Act of 1964, which was premised on the conclusion that restaurants
that discriminated served fewer customers, and therefore suppressed interstate
commerce. See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). Here,
of course, the very purpose of those engaging in the conduct addressed by [FACEA]
is to suppress the provision of abortion services.
S. Rep. No. 103-117, at 31-32, 1993 WL 286699 (July 29, 1993) (Conf. Rep.).
The religious liberty provision was not part of the bill when this report on FACEA was
issued. It was added by an amendment proposed by Senator Orrin Hatch on the floor before the
Senate several months after the report. Senator Hatch explained:
Mr. President, the religious liberty amendment that I am offering is very
straightforward. It would ensure that the first amendment right of religious liberty
receives the same protection from interference that [FACEA] would give abortion.
Simply put, anyone who votes against this amendment or who attempts to dilute it
values religious freedom far less than abortion.
Religious liberty is the first liberty guaranteed in the Bill of Rights. As the lead
cosponsor, along with Senator KENNEDY, of the Religious Freedom Restoration
Act, I have worked to guarantee that religious liberty is protected against
Government intrusion. Through this amendment, religious liberty would also be
protected against private intrusion-in exactly the same way that [FACEA] would
protect abortion.
16
Make no mistake about it: The right of Americans of various religions to attend
their places of worship in peace is under attack throughout the country. Various
groups, acting on behalf of various causes, have undertaken an interstate campaign
of harassment, physical assaults, and vandalism. Consider, for example, some
recent episodes:
Just over a week ago, protesters disrupted Scripture reading at the Village Seven
Presbyterian Church in Colorado Springs, CO, and pelted the congregation with
condoms. Similar protests have occurred throughout the country, and organizers of
the Colorado Springs protest said that they planned further disruptions in the future.
In February of this year, the St. Jude’s United Holiness Church in St. Petersburg,
FL, was burned to the ground by an arsonist. Another arsonist set fire to at least 17
other churches throughout Florida and to churches in Tennessee and Colorado. . . .
Our Nation was founded on the principle of religious liberty. If any right deserves
protection from private interference, it is religious liberty. The amendment that I
am offering would do no more than give religious liberty the same protection that
[FACEA] would give abortion.
The choice for my colleagues is simple: Do they value religious liberty at least as
much as abortion? If so, they should vote for my amendment.
139 Cong. Rec. S15660, 1993 WL 470962 (Nov. 3, 1993).
Senator Kennedy, a sponsor of FACEA responded:
Mr. KENNEDY: As I understand the Senator’s amendment, it would simply extend
the bill’s prohibitions to include the actual or temporary use of force, threat of force,
or physical obstruction to intentionally injure, intimidate, or interfere with anyone
lawfully exercising or seeking to exercise the first amendment, the right of religious
freedom at a place of religious worship and to intentionally damage or destroy
property of a place of religious worship.
Am I correct that the amendment would cover only conduct actually occurring or,
in the case of an attempt, intending to occur in place of religious worship, such as
a church, synagogue or the immediate vicinity of a church?
Mr. HATCH: The Senator is absolutely right.
Mr. KENNEDY: So, to be clear on this, the amendment would cover only conduct
actually occurring at an established place of religious worship, a church or
synagogue, rather than any place where a person might pray, such as a sidewalk?
Mr. HATCH: That is correct.
17
Mr. KENNEDY: Mr. President, we can accept the amendment. With this
understanding, we are prepared to accept the amendment.
Id. (emphasis added).
The House adopted the religious liberty amendment with minor adjustments. H.R. Rep.
No. 103-488, at 9, reprinted in 1994 U.S.C.C.A.N. 724, 726 (May 2, 1994) (Conf. Rep.) (“The
House recedes with an amendment that modifies the Senate language in two respects. First, it
inserts ‘religious’ before ‘worship’ in the first reference to ‘place of worship.’ Second, it makes
clear . . . that this Act does not create any new remedies for interference with a person engaging,
outside a facility that provides reproductive health services, in worship or other activities that are
protected by either the free speech or free exercise clause of the First Amendment to the
Constitution.”).
Commentators have suggested that the religious freedom provision helped alleviate
freedom of speech problems that would be raised if FACEA only protected abortion seekers. See
Michael Stokes Paulsen & Michael W. McConnell, The Doubtful Constitutionality of the Clinic
Access Bill, 1 Va. J. Soc. Pol’y & L. 261, 287 (1994) (“The Senate adopted a ‘religious liberty
amendment’ proposed by Senator Hatch . . . . This is an important move in the direction of
content-neutrality, as the bill no longer targets only pro-life protest. Without this broadening
amendment, the bill would very likely not survive First Amendment scrutiny.”).
As already explained, “a place of religious worship” in FACEA must be construed
broadly to avoid a constitutional issue under the First Amendment: that religions using formal
temples are not privileged over those that do not. See Zhang I, 2018 WL 1916617, at *30; supra
Section II(B). Despite the exchange between Senators Kennedy and Hatch suggesting only
“established place[s] of religious worship” are protected, FACEA should not, based on statutory
18
text and constitutional concerns, be given such a limited interpretation. See Everson v. Bd. of Ed.
of Ewing Twp., 330 U.S. 1, 15 (1947) (“The ‘establishment of religion’ clause of the First
Amendment means at least this: Neither a state nor the Federal Government can set up a church.
Neither can pass laws which aid one religion, aid all religions, or prefer one religion over
another.”) (emphasis added). The constitutionality of FACEA will be assessed below based on
this broad understanding.
C. Commerce Clause
Article I, Section 8, Clause 3 of the United States Constitution, the Commerce Clause,
grants Congress the power “[t]o regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3.
1.
Supreme Court Commerce Clause Jurisprudence
From 1937 to 1995, the Supreme Court of the United States did not find any law
unconstitutional as exceeding Congress’ power granted by the Commerce Clause. See Erwin
Chemerinsky, Constitutional Law: Principles and Policies 247 (4th ed. 2011). During this
period, the Commerce Clause was expansively interpreted by the Court, as it upheld myriad
statutes. Id. at 268.
Limits have since been placed on Congress’ power. Modern Commerce Clause doctrine
stems from the Supreme Court’s decisions in United States v. Lopez, 514 U.S. 549 (1995) and
United States v. Morrison, 529 U.S. 598 (2000). Congress has power to regulate: (1) “the use of
the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or
persons or things in interstate commerce, even though the threat may come only from intrastate
activities”; and (3) “those activities that substantially affect interstate commerce.” Morrison, 529
U.S. at 609. Both Lopez and Morrison addressed the third category.
19
In Lopez, the Court held that the Gun-Free School Zones Act of 1990, criminalizing
possession of a weapon close to a school, was unconstitutional. Lopez, 514 U.S. at 551. The
Court noted that its prior decisions—upholding regulation of wholly intrastate activity—
concerned economic conduct. Id. at 559-60. “Where economic activity substantially affects
interstate commerce, legislation regulating that activity will be sustained.” Id. at 560 (emphasis
added). The Gun-Free School Zones Act, had “nothing to do with ‘commerce’ or any sort of
economic enterprise, however broadly one might define those terms.” Id. at 561. Congress did
not make any legislative findings tying guns in school zones to interstate commerce and the act
did not contain a jurisdictional element, requiring a nexus to interstate commerce in each
individual case. Id. at 561-63.
The Lopez Court concluded:
These are not precise formulations, and in the nature of things they cannot be. But
we think they point the way to a correct decision of this case. The possession of a
gun in a local school zone is in no sense an economic activity that might, through
repetition elsewhere, substantially affect any sort of interstate commerce.
Respondent was a local student at a local school; there is no indication that he had
recently moved in interstate commerce, and there is no requirement that his
possession of the firearm have any concrete tie to interstate commerce.
Id. at 567.
Morrison, decided five years later, struck down the civil remedies provision of the
Violence Against Women Act (“VAWA”). The Court focused on four factors: (1) whether the
regulated activity was economic; (2) whether the statute contained an express jurisdictional
element; (3) whether Congress made legislative findings linking the regulated activity to
interstate commerce; and (4) whether there was an attenuated link between the regulation and
interstate commerce. Morrison, 529 U.S. at 610-12.
20
The Court found that “[g]ender-motivated crimes of violence are not, in any sense of the
phrase, economic activity[;] . . . thus far in our Nation’s history our cases have upheld Commerce
Clause regulation of intrastate activity only where that activity is economic in nature.” Id. at
613. Congress made significant findings tying the impact of gender-motivated violence to
interstate commerce. Id. at 613-14. The Court rejected Congress’ reasoning:
Congress’ findings are substantially weakened by the fact that they rely so heavily
on a method of reasoning that we have already rejected as unworkable if we are to
maintain the Constitution’s enumeration of powers. Congress found that gendermotivated violence affects interstate commerce by deterring potential victims from
traveling interstate, from engaging in employment in interstate business, and from
transacting with business, and in places involved in interstate commerce; . . . by
diminishing national productivity, increasing medical and other costs, and
decreasing the supply of and the demand for interstate products.
Id. at 615 (internal quotation marks and citations omitted).
Basing its decision partially on federalism principles, it declared:
We accordingly reject the argument that Congress may regulate noneconomic,
violent criminal conduct based solely on that conduct’s aggregate effect on
interstate commerce. The Constitution requires a distinction between what is truly
national and what is truly local. In recognizing this fact we preserve one of the few
principles that has been consistent since the Clause was adopted. The regulation
and punishment of intrastate violence that is not directed at the instrumentalities,
channels, or goods involved in interstate commerce has always been the province
of the States. Indeed, we can think of no better example of the police power, which
the Founders denied the National Government and reposed in the States, than the
suppression of violent crime and vindication of its victims.
Id. at 617-18 (internal citations omitted).
In Lopez and Morrison, the Supreme Court distinguished rather than overturned its
expansive Commerce Clause precedents. Cases such as Wickard v. Filburn, 317 U.S. 111
(1942)—upholding Congress’ power to regulate the intrastate production of wheat—and Heart
of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)—granting Congress the power to
outlaw private discrimination in places of public accommodation because of its affect on
21
interstate commerce—are still good law. See Lopez, 514 U.S. at 557-58 (citing cases
approvingly).
Gonzales v. Raich, reviewing the constitutionality of Congress’ power to regulate
intrastate marijuana use and cultivation, established that Congress’ commerce powers remains
broad:
Our case law firmly establishes Congress’ power to regulate purely local activities
that are part of an economic “class of activities” that have a substantial effect on
interstate commerce. As we stated in Wickard, “even if appellee’s activity be local
and though it may not be regarded as commerce, it may still, whatever its nature,
be reached by Congress if it exerts a substantial economic effect on interstate
commerce.” We have never required Congress to legislate with scientific
exactitude. When Congress decides that the ‘total incidence’ of a practice poses a
threat to a national market, it may regulate the entire class. In this vein, we have
reiterated that when a general regulatory statute bears a substantial relation to
commerce, the de minimis character of individual instances arising under that
statute is of no consequence.
Gonzales v. Raich, 545 U.S. 1, 17 (2005) (internal citations omitted).
When Congress regulates an economic class of activities, a trial court’s task is not to
answer the empirical question of whether acts, “taken in the aggregate, substantially affect
interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding.” Id. at
22. “Congress had a rational basis for believing that failure to regulate the intrastate manufacture
and possession of marijuana would leave a gaping hole in the” Controlled Substances Act and
was therefore constitutional. Id. at 22. Gonzales declared that “[w]hile congressional findings
are certainly helpful in reviewing the substance of a congressional statutory scheme, particularly
when the connection to commerce is not self-evident, . . . the absence of particularized findings
does not call into question Congress’ authority to legislate.” Id. at 21.
Gonzales distinguished Lopez and Morrison. The Controlled Substance Act, regulated
“quintessentially economic” activity—the production of a commodity—unlike the non-economic
22
regulation in Morrison and Lopez. Id. 23-25. “[I]n both Lopez and Morrison, the parties
asserted that a particular statute or provision fell outside Congress’ commerce power in its
entirety,” while in Gonzales there was only a challenge to a part of an otherwise clearly valid
statutory scheme. Id. at 23. Morrison and Lopez both appear to address the constitutionality of
acts on their face—Gonzales by contrast, appears to address the issue on an as applied basis.
A question posed is: does the court address a commerce clause challenge “as applied” or
facially? See Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 Stan. L. Rev.
1209 (2010). Professor Rosenkranz explains:
[T]he riddle may be solved by focusing on the subject of the clause. The Commerce
Clause says: “The Congress shall have power . . . To regulate commerce . . . among
the several states . . . .” Like the First Amendment it is written in the active voice
and it has a clear subject: Congress. (Unlike the First Amendment, the Commerce
Clause is a grant of power rather than a restriction on power, so, strictly speaking,
it cannot be “violated” at all; rather, Congress may exceed its power under the
Commerce Clause and thus violate the Tenth Amendment.) So, a Commerce Clause
challenge, like a First Amendment challenge, is a challenge to an action of
Congress. Congress is the subject of the claim and the answer to the who question.
And the answer to the when question follows: if Congress makes a law in excess of
its power under the Commerce Clause and thus violates the Tenth Amendment, the
constitutional violation occurs when Congress makes the law. . . .
[A] Commerce Clause challenge cannot be “as-applied.” A Commerce Clause
challenge must be a challenge to an action of Congress. In a Commerce Clause
challenge, it must be that the violation is visible on the “face” of the statute . . . .
Id. at 1273-79. Defendants challenge FACEA on its face. Defs.’ Br. at 4 (“[FACEA] should be
stricken down as facially unconstitutional.”).
2.
FACEA Commerce Clause Decisions
The Court of Appeals for the Second Circuit has held that Congress possessed the power
to pass the abortion segment of FACEA under the Commerce Clause. United States v. Weslin,
156 F.3d 292, 296 (2d Cir. 1998). “Congress specifically found that the activities governed by
FACE[A] affect interstate commerce.” Id. Women often travel between states to receive
23
abortion services, and “because of a shortage of doctors willing to perform abortions, doctors
travel from state to state and often cover great distances to perform abortions.” Id.
All other circuit courts of appeals to have considered the constitutionality of FACEA’s
abortion provision have reached the same conclusion. See United States v. Gregg, 226 F.3d 253
(3d Cir. 2000); Hoffman v. Hunt, 126 F.3d 575 (4th Cir. 1997); States v. Bird, 124 F.3d 667 (5th
Cir. 1997); Norton v. Ashcroft, 298 F.3d 547 (6th Cir. 2002); United States v. Soderna, 82 F.3d
1370 (7th Cir. 1996); United States v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996); Cheffer v. Reno,
55 F.3d 1517 (11th Cir. 1995); Terry v. Reno, 101 F.3d 1412 (D.C. Cir. 1996).
3.
Commerce Clause and Religion
The Supreme Court has recognized that it can be “difficult to determine whether a
particular activity is religious or purely commercial.” Murdock v. Com. of Pennsylvania, 319
U.S. 105, 110 (1943).
In many—and perhaps an increasing number of—instances, religion overlaps with
the commercial sphere and courts are obligated to determine whether or not to adopt
an entirely hands-off approach simply because the specter of religion lurks on the
horizon. . . . [T]he U.S. Supreme Court has treated the two spheres as overlapping.
. . . [T]he Supreme Court appears to view religious value as generated through a
complex interaction between religious entities and individual adherents.
Bernadette Meyler, Commerce in Religion, 84 Notre Dame L. Rev. 887, 912 (2009).
Congress has used its commerce power to justify several other statutes bearing on
religion. For example, the Religious Land Use and Institutionalized Persons Act (RLUIPA)
prohibits federal, state, and local governments from “impos[ing] or implement[ing] land use
regulation in a manner that imposes a substantial burden on the religious exercise of a person,”
42 U.S.C. § 2000cc, and from “impos[ing] a substantial burden on the religious exercise of a
person residing in or confined to an institution,” 42 U.S.C. § 2000cc-1. It contains a commerce
linked jurisdictional element. See 42 U.S.C. § 2000cc(a)(2)(B) (“This subsection applies in any
24
case in which . . . the substantial burden affects, or removal of that substantial burden would
affect, commerce with foreign nations, among the several States, or with Indian tribes.”); id. §
2000cc-1(b)(2) (same).
The Court of Appeals for the Second Circuit has affirmed congressional power to pass
RLUIPA. Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 354 (2d Cir. 2007)
(“[W]here the relevant jurisdictional element is satisfied, RLUIPA constitutes a valid exercise of
congressional power under the Commerce Clause.”); cf. Cutter v. Wilkinson, 544 U.S. 709
(2005) (holding that RLUIPA does not violate the Establishment Clause); but see Ada-Marie
Walsh, Religious Land Use and Institutionalized Persons Act of 2000: Unconstitutional and
Unnecessary, 10 Wm. & Mary Bill Rts. J. 189, 190 (2001) (“The RLUIPA is unconstitutional
because it violates the Establishment Clause of the First Amendment. In promulgating the
RLUIPA, Congress exceeded its power under the Commerce Clause.”).
On the facts presented in Westchester Day School, the appellate court concluded that the
ties to interstate commerce were sufficient to satisfy the jurisdictional element and Commerce
Clause analysis.
[T]he district court found the jurisdictional element satisfied by evidence that the
construction of Gordon Hall, a 44,000 square-foot building with an estimated cost
of $9 million, will affect interstate commerce. We identify no error in this
conclusion. As we have recognized, the evidence need only demonstrate a minimal
effect on commerce to satisfy the jurisdictional element. Further, we have expressly
noted that commercial building construction is activity affecting interstate
commerce.
Westchester Day School, 504 F.3d at 354 (internal citations omitted).
Other statutes touching religion have been found to be constitutional exercises of
congressional commerce power. See 18 U.S.C. § 247 (the Church Arson Prevention Act of
1996, prohibiting “defac[ing], damage[ing], or destroy[ing] any religious real property, because
25
of the religious character of that property”); 18 U.S.C. § 249 (the Matthew Shepard and James
Byrd Jr. Hate Crimes Prevention Act, criminalizing “willfully caus[ing] bodily injury to any
person . . . through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary
device, . . . because of the actual or perceived . . . religion . . . of any person”).
Both statutes contain commerce-linked jurisdictional elements. See 18 U.S.C. § 247(b)
(“[T]he offense is in or affects interstate or foreign commerce.”); 18 U.S.C. § 249(a)(2)(B)
(“[T]he conduct . . . interferes with commercial or other economic activity in which the victim is
engaged at the time of the conduct; or . . . otherwise affects interstate or foreign commerce.”).
Courts have relied on these jurisdictional elements in affirming Congress’ power to pass them.
See, e.g., United States v. Roof, 252 F. Supp. 3d 469 (D.S.C. 2017) (denying motion for a new
trial or judgment of acquittal under § 247 and § 249 and rejecting a commerce challenge to §
247); United States v. Mason, 993 F. Supp. 2d 1308, 1317 (D. Or. 2014) (“[T]he jurisdictional
element of [§ 249] . . . is sufficient to satisfy the requirements of the Commerce Clause.”); but
see Jonathan H Adler, How the Justice Department is using the Commerce Clause to criminalize
forcible beard cutting as a federal hate crime, The Volokh Conspiracy, June 24, 2014 (“[T]he
jurisdictional element of [§ 249] is written in such broad terms that many activities satisfy the
relevant statutory elements without having any meaningful relationship to commerce . . . [this]
makes a mockery of the notion of limited and enumerated powers.”).
Congress made findings in passing § 249 about the effects hate crimes have on interstate
commerce. As Judge Wynn explained dissenting from a panel opinion of the Court of Appeals
for the Fourth Circuit:
[Section 249’s] substantive provisions are preceded by congressional findings
regarding the prevalence and impact of violent hate crimes throughout the country,
as well as Congress’s desire to assist state and local efforts to combat such violence.
Distinguishing hate crimes from other violent crimes—which, Congress
26
emphasized, States continue to be responsible for prosecuting—Congress
concluded that violent hate crimes “substantially affect[ ] interstate commerce in
many ways.” Among these effects, Congress explained that:
(A) The movement of members of targeted groups is impeded, and members of
such groups are forced to move across State lines to escape the incidence or risk of
such violence.
(B) Members of targeted groups are prevented from purchasing goods and services,
obtaining or sustaining employment, or participating in other commercial activity.
(C) Perpetrators cross State lines to commit such violence.
(D) Channels, facilities, and instrumentalities of interstate commerce are used to
facilitate the commission of such violence.
(E) Such violence is committed using articles that have traveled in interstate
commerce.
United States v. Hill, 700 F. App’x 235, 243 (4th Cir. 2017) (Wynn, J. dissenting) (internal
citations omitted).
Findings were similarly made about religion and commerce when Congress passed § 247:
To the extent the legislative history is informative on the specific impact of church
attacks on interstate commerce, there are references to a broad range of 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. See, e.g., 142 Cong. Rec. S7908–04 at *S7909 (1996) (joint statement of floor
managers regarding H.R. 3525, The Church Arson Prevention Act of 1996); 142
Cong. Rec. S6517–04, *S6522 (1996) (statement of Sen. Kennedy); see also
Church Burnings: Hearings on the Federal Response to Recent Incidents of Church
Burnings in Predominantly Black Churches Across the South Before the Senate
Comm. on the Judiciary, 104th Cong., 37 (1996) (appendix to the prepared
statement of James E. Johnson and Deval L. Patrick).
U.S. v. Grassie, 237 F.3d 1199, 1209 (10th Cir. 2001); see also 142 Cong. Rec. S7908-04, 142
Cong. Rec. S7909, 1996 WL 396477 (July 16, 1996) (joint statement of Sens. Faircloth and
Kennedy & Reps. Hyde and Conyers) (“Many of the places of worship that have been destroyed
serve multiple purposes in addition to their sectarian purpose. For example, a number of places
of worship provide day care services, or a variety of other social services.”).
27
IV.
Application of Facts to Law
A. Timeliness of Constitutional Challenge
Defendants’ constitutional challenge has not been waived or forfeited for four reasons.
First, defendants did not need to plead unconstitutionality as an affirmative defense and properly
raised it by motion. See supra Section III(A).
Second, the court granted defendants leave to file amended answers, see April 26, 2018
Order, ECF No. 154, and they did so. See Third Amended Answers, ECF Nos. 157-58.
Plaintiffs argue that this was error because the amendment was untimely and without good cause.
The decision granting leave to amend was proper.
There has been no showing that defendants were not diligent. As defendants’ counsel
represented to the court: “It was only upon further discussion of [defendants’ summary
judgment filing] that the [unconstitutionality] point [] occurred to me, and it is one that I believe
Your Honor will find worthy of analysis.” See Defs.’ Ltr. Br. at 1, ECF No. 150, April 21, 2018.
Defendants were entitled to rely on the general presumption that an act of Congress was passed
in accordance with its constitutionally delegated power. Cf. San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 60 (1973) (stating the “first principles of constitutional adjudication [is]
the basic presumption of the constitutional validity of a duly enacted state or federal law”);
Beatie v. City of New York, 123 F.3d 707, 711 (2d Cir. 1997) (“Legislative acts that do not
interfere with fundamental rights or single out suspect classifications carry with them a strong
presumption of constitutionality.”).
The prejudice to plaintiffs is relatively minor. See Kassner v. 2nd Ave. Delicatessen Inc.,
496 F.3d 229, 244 (2d Cir. 2007) (stating “prejudice” to the non-movant may be considered in
assessing whether to allow a pleading amendment). A challenge to Congress’ commerce power
28
may be assessed facially. See supra Section II(C)(1); Williams v. Paxton, 559 P.2d 1123, 1132
(1976) (“The constitutionality of a statute, however, is not ordinarily an issue upon which
evidence must be presented at trial or about which one must be forewarned in order to prepare
evidence for trial. . . . [It] is a matter of law.”). Facts necessary to adjudicate this issue may be
recognized by judicial notice. See infra Section IV(D). Plaintiffs fully briefed and argued the
issue. Had additional discovery been needed, it would have been allowed.
Third, this challenge bears on the court’s subject-matter jurisdiction. FACEA is the sole
remaining federal cause of action and basis of original jurisdiction. Cf. 28 U.S.C. § 1367(C)(2)
(“The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the
district court has dismissed all claims over which it has original jurisdiction.”). “The objection
that a federal court lacks subject-matter jurisdiction, may be raised by a party, or by a court on its
own initiative, at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh
v. Y&H Corp., 546 U.S. 500, 506 (2006). This is a quasi-jurisdictional challenge.
Fourth, failure to consider this challenge could lead to a manifest injustice. Consider the
absurdity if the statute were unconstitutional but the argument forfeited: defendants would be
subject to a two month trial and the possibility of statutory damages under FACEA—at the rate
of $5,000 per violation—when the sole basis of this court’s jurisdiction is a single remaining
federal cause of action that the United States Congress passed without authority. “It is . . .
entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits
to be avoided on the basis of [] mere technicalities.” Foman v. Davis, 371 U.S. 178, 181-82
(1962).
29
B. Commerce Clause Analysis
Congress can use its commerce power to regulate: (1) “the use of the channels of
interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from intrastate activities”; or (3)
“those activities that substantially affect interstate commerce.” United States v. Morrison, 529
U.S. 598, 609 (2000); see also supra Section III(C)(1).
FACEA’s prohibition on violence and intimidation at places of religious worship does
not seem to fall into either of the first two categories. The question is: does it substantially
affect interstate commerce, the third category?
The first step in the analysis is to ask whether FACEA is regulating an “economic ‘class
of activity.’” Gonzales v. Raich, 545 U.S. 1, 17 (2005). The cases offer limited guidance on the
meaning of this term. “These are not precise formulations, and in the nature of things they
cannot be.” United States v. Lopez, 514 U.S. 549, 567 (1995). Guns in a school zone and
violence against women, the Supreme Court tells us, are not economic. Id. at 561; Morrison,
529 U.S. at 613. Wheat production, marijuana cultivation, and abortion services are economic.
See Wickard v. Filburn, 317 U.S. 111 (1942); Gonzales, 545 U.S. 1; United States v. Weslin, 156
F.3d 292, 296 (2d Cir. 1998).
FACEA’s religion provision regulates an economic class of activities. Four elements are
necessary to make out a claim: (1) force or the threat of force, (2) intent to injure, intimidate or
interfere with (3) a person engaged in First Amendment religious activity (4) at “a place of
religious worship.” 18 U.S.C. § 248(a)(2). Violence and intimidation, Morrison tells us, is not
economic. First Amendment activity is probably not inherently economic either—one can
conjure “First Amendment” activities that have nothing to do with commerce. But the grounding
30
element in the statute—“a place of religious worship”—transforms the provision into to one
tethered to commerce.
Places of religious worship—even interpreted broadly to avoid an issue under the First
Amendment—are economic. There are approximately 331,000 formal houses of worship in the
United States that have some $74.5 billion in annual revenue. See supra Section II(C); Grim &
Grim, supra, at 9; Hadaway & Marler, supra, at 311. This accounts for 1% of gross national
product in the United States and half of all charitable giving. Iannaccone, supra, at 1469. Many
houses of worship operate on a fee-for-service model—congregants pay for memberships or
donate in order to sustain the costs of upkeep and pay for clergy. Religion is an important sector
of the United States economy; violence and intimidation at places of religious worship can deter
people from participating in religious-based, commercial activity.
Against this backdrop—that Congress is regulating an “economic class of activity”—
Congress possessed the power under the Commerce Clause to pass FACEA. The inquiry is
whether Congress had a “rational basis” for concluding that FACEA could substantially affect
interstate commerce. Gonzales, 545 U.S. at 22. Based on the evidence and common sense
notions about religion, as widely practiced in the United States, religious activity and commerce
overlap: Congress had a rational basis for concluding that violence and intimidation at places of
religious worship could substantially affect interstate commerce.
That many religious institutions operate as non-profits does not change the religiouseconomic situation. In Gonzales, by way of analogy, the Court held that the cultivation and
intrastate sale of marijuana was economic, notwithstanding that the market is illegal. See also
Taylor v. United States, 136 S. Ct. 2074, 2080 (2016) (“[T]he sale of marijuana, is
unquestionably an economic activity. It is, to be sure, a form of business that is illegal under
31
federal law and the laws of most States. But there can be no question that marijuana trafficking is
a moneymaking endeavor—and a potentially lucrative one at that.”).
It is of no consequence that FACEA must be interpreted to reach those religious places of
worship that take place outside of a formal setting. See Zhang I, 2018 WL 1916617, at *1, *2830. The instant case demonstrates the point. Plaintiffs set up tables on busy streets in Queens
where they proselytize, worship, and protest against the Chinese Government’s suppression of
their religion. They hand out flyers and other materials that are printed in other states and
countries and travel through interstate commerce, they set up tables whose parts may do the
same, people travel from out of state to participate, and they drive cars that travel through the
stream of commerce to get there. Yu Decl. at ¶¶ 2-5. This activity costs money and takes time.
Id. at ¶ 8. As applied to this case, plaintiffs’ activities affect interstate commerce.
C. Distinguishing Morrison
Defendants contend that United States v. Morrison, 529 U.S. 598 (2000)—striking down
the civil remedies provision of VAWA—controls. VAWA and FACEA are similar in some
respects: both prohibit violence and protect groups historically subject to violence. Because
outlawing violence against women is not commerce, defendants argue, intimidation at places of
religious worship should not be considered economic.
Places of religious worship can be areas of commerce. Cf. United States v. Ferranti, 928
F. Supp. 206, 212 (E.D.N.Y. 1996), aff’d sub nom. United States v. Tocco, 135 F.3d 116 (2d Cir.
1998) (concluding that arson of a retail dress shop was sufficiently related to interstate commerce
because a place of commerce was destroyed). VAWA prohibited “gender-motivated violence
wherever it occur[ed] (rather than violence directed at the instrumentalities of interstate
commerce, interstate markets, or things or persons in interstate commerce).” Morrison, 529 U.S.
32
at 609 (emphasis added). FACEA, unlike VAWA, inherently requires interference with
commerce. Houses of worship substantially contribute to the United States economy by
providing their congregants with goods and services. See supra Section II(C).
Defendants ignore a lesson of Gonzales: the court looks at a specific provision within the
context of the statutory scheme. Gonzales v. Raich, 545 U.S. 1, 27 (2005). The religious
freedom provision in FACEA is a small part of the statute that was primarily designed to protect
women seeking abortion services. See supra Section III(B) (reviewing legislative history).
Considering the religious freedom provision in isolation ignores the realities of
compromising in legislating. See generally Kenneth A. Shepsle, Congress Is A “They,” Not an
“It”: Legislative Intent As Oxymoron, 12 Int’l Rev. L. & Econ. 239 (1992). The religion portion
was added as part of an understanding between Senators Kennedy and Hatch. See supra Section
III(B). Some have suggested that it alleviates freedom of speech issues that would be present if
the statute only pertained to abortion services. Michael Stokes Paulsen & Michael W.
McConnell, The Doubtful Constitutionality of the Clinic Access Bill, 1 Va. J. Soc. Pol’y & L.
261, 287 (1994) (“Without this broadening amendment, the bill would very likely not survive
First Amendment scrutiny.”).
All circuit courts of appeals, including the Court of Appeals for the Second Circuit, have
upheld the constitutionality of the abortion provision of the statute. See supra Section III(C)(2).
That FACEA’s religious liberty provision is seldom used in court does not negate
constitutionality. See Letter from Assistant Attorney General Peter J. Kadzik to Senators Ted
Cruz and Mike Lee, at 4-5 (June 29, 2016), avalible at
https://www.cruz.senate.gov/files/documents/Letters/20160927_FACEActResponse.pdf
(explaining that the Department of Justice had never brought an enforcement action under the
33
religious liberty portion of FACEA, but “the Department has prosecuted dozens of cases of
violence directed at houses of worship and interference with the free exercise of religion under
18 U.S.C. § 247, a statute that is broader in scope than the FACE Act” including (1) “On July 15,
2014, Macon Openshaw was sentenced to five years in prison firing three rounds from a .22
caliber handgun at a synagogue in Salt Lake City, Utah”; and (2) “On April 29, 2011, Brian
Lewis, Abel Mark Gonzalez, and Andrew Kerber were sentenced for defacing and damaging a
synagogue, a Roman Catholic church, and a Greek Orthodox church in Modesto, California”).
D. Legislative Findings and Jurisdictional Nexus
FACEA lacks two legislative indications that Congress has used to ensure
constitutionally under the Commerce Clause: (1) legislative findings, and (2) a commerce-based
jurisdictional element. It is unsurprising that Congress made no findings about religion in
passing FACEA—the religious freedom provision was added informally after the Senate’s report
on commerce was completed. See supra Section III(B). “While congressional findings are
certainly helpful in reviewing the substance of a congressional statutory scheme, . . . the absence
of particularized findings does not call into question Congress’ authority to legislate.” Gonzales
v. Raich, 545 U.S. 1, 21 (2005). Congress has made commerce findings in analogous statutes,
such as 18 U.S.C. § 247, prohibiting damage to religious property, and 18 U.S.C. § 249,
prohibiting hate crimes. See supra Section III(C)(3). It is proper to rely on Congress’ findings
for these statutes.
In the instant case, where the relationship between commerce and religion is observable
through judicial notice, explicit congressional findings are unneeded:
In deciding jurisdictional, standing and other issues fundamental to the present
litigation, the court has engaged in extensive background research, but not on the
specific frauds charged. . . . It is appropriate and necessary for the judge to do
research required by a case in order to understand the context and background of
34
the issues involved so long as the judge indicates to the parties the research and
conclusions, by opinions and otherwise, so they may contest and clarify.
Commodity Futures Trading Comm’n v. McDonnell, 287 F. Supp. 3d 213, 230 (E.D.N.Y. 2018)
(citing Abrams, Brewer, Medwed, et al., Evidence Cases and Materials (10th Ed. 2017) (Ch. 9
“Judicial Notice”)).
Requiring as an express element of the statute an explicit nexus to commerce is
unnecessary when the link to commerce is clear. In the challenges to the abortion clinic portion
of FACEA, courts have not been persuaded that a jurisdictional nexus is necessary because of the
link between abortion services and interstate commerce. See supra Section III(C)(2); cf. Diane
McGimsey, The Commerce Clause and Federalism After Lopez and Morrison: The Case for
Closing the Jurisdictional-Element Loophole, 90 Cal. L. Rev. 1675 (2002) (arguing that the
significance of a jurisdictional element has been overempasized by lower courts and needs
reworking).
V.
Certification of Interlocutory Appeal
Federal practice generally does not permit appeals until final judgment is entered. See
generally Nat’l Asbestos Workers Med. Fund v. Philip Morris, Inc., 71 F. Supp. 2d 139
(E.D.N.Y. 1999) (reviewing the history and policy considerations of, and exceptions to, the final
judgment rule). But a district court has discretion to permit an interlocutory appeal:
When a district judge, in making in a civil action an order not otherwise appealable
under this section, shall be of the opinion that such order involves a controlling
question of law as to which there is substantial ground for difference of opinion
and that an immediate appeal from the order may materially advance the ultimate
termination of the litigation, he shall so state in writing in such order. The Court of
Appeals which would have jurisdiction of an appeal of such action may thereupon,
in its discretion, permit an appeal to be taken from such order, if application is made
to it within ten days after the entry of the order: Provided, however, that application
for an appeal hereunder shall not stay proceedings in the district court unless the
district judge or the Court of Appeals or a judge thereof shall so order.
35
28 U.S.C. § 1292(b) (emphasis added).
The court certifies an interlocutory appeal of this order and its memorandum and order of
April 23, 2018, interpreting FACEA as constitutional. See Zhang I, 2018 WL 1916617, at *2830. These two opinions present “controlling question[s] of law as to which there is substantial
ground for difference of opinion and . . . an immediate appeal . . . may materially advance the
ultimate termination of the litigation.” 28 U.S.C § 1292(b).
A trial on liability and damages in this case is estimated to take two months. See Zhang,
2018 WL 1916617, at *41. Trying the case will require substantial time, effort, and resources of
the parties, a jury, and the court.
As now projected by the court, the jury would have to make some 234 unanimous,
individual decisions. The fact that interpreters will be needed almost continuously will increase
trial difficulty. Issues to be separately decided are as follows (reproduced from Zhang I, 2018
WL 1916617, at *15):
Plaintiffs’ Claims
Cause of Action
Assault & Battery
Bias Related
Violence &
Intimidation (New
York Civil Rights
Law § 79-n)
Interference with
Religious Freedom
(18 U.S.C. § 248)
Plaintiffs
Defendants
Number of Issues to
be decided
Zhang Jingrong;
All Defendants
Zhou Yanhua; Zhang
Peng; Zhang Cuiping;
Wei Min; Lo
Kitsuen; Hu Yang;
Gao Jinying; Cui
Lina; Xu Ting
All Plaintiffs
All Defendants
50
Zhang Jingrong;
Zhou Yanhua; Lo
Kitsuen; Wei Min;
Hu Yang; Gao
50
All Defendants
36
65
(Clinic Access
Statute)
Jinying; Cui Lina;
Zhang Peng; Li
Xiurong; Cao Lijun
Defendants’ Counterclaims
Cause of Action
Assault & Battery
New York Civil
Rights Law § 79-n
Defendants
Plaintiffs
All Defendants
Zirou
All plaintiffs
Bian Hexiang; Zhou
Yanhua; Li Xiurong;
Xu Ting
Number of Issues to
be decided
65
4
There is a substantial question as to the constitutionality of FACEA. Passed in 1994—a
year before United States v. Lopez, 514 U.S. 549 (1995)—the Act does not contain legislative
findings or a commerce-based jurisdictional element. The Court of Appeals for the Second
Circuit or the United States Supreme Court may well disagree with this court’s analysis finding
FACEA constitutional. Prudence requires an appeal of this issue before a costly two-month jury
trial that may result in mistrial or require reversal.
The court noted in its opinion of April 23, 2018 that FACEA requires a broad
interpretation to avoid a constitutional issue under the First Amendment. See supra Sections
II(B), III(B). Based on this expansive reading, the tables plaintiffs use for proselytizing and
protest were found to be covered under FACEA. The scope of FACEA and potential
constitutional issues under the First Amendment bear on Congress’ power to pass it. This issue
is also certified for an interlocutory appeal.
The two questions certified for appeal are:
1)
Did the United States Congress possess the power to pass FACEA as it relates to
religion?
2)
What is the scope of FACEA as it affects the instant dispute?
37
An immediate appeal of these issues is certified. The parties have ten days to file a
notice of appeal. See 28 U.S.C § 1292(b).
VI.
Conclusion
Defendants' motion to declare FACEA unconstitutional is denied. FACEA was passed in
accordance with the power Congress is granted under the Commerce Clause.
This order and the portion of this court's order of April 23, 2018, dealing with the
constitutionality and scope of FACEA, outlined in Section V, are certified for an interlocutory
appeal pursuant to 28 U.S.C § 1292(b).
SO ORDERED.
~ !!;,{!)~
ck B. Weinstein
enior United States District Judge
Date: May 30, 2018
Brooklyn, New York
38
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