16 F.4th 47
2d Cir.2021Background
- Plaintiffs are Falun Gong practitioners who, from 2011–2015, operated five daily sidewalk tables in downtown Flushing (Queens) to distribute flyers and display posters about alleged CCP persecution of Falun Gong; they allege repeated harassment and physical attacks near those tables.
- Plaintiffs sued under the Freedom of Access to Clinic Entrances Act (FACEA), 18 U.S.C. § 248(a)(2), which forbids intentional injury, intimidation, or interference with a person "exercising or seeking to exercise" religious freedom "at a place of religious worship." FACEA does not define that phrase.
- The district court granted partial summary judgment to Plaintiffs, holding the tables qualified as a "place of religious worship" (adopting a broad reading—"any place a religion is practiced") and denied Defendants' Commerce Clause challenge; the orders were certified for interlocutory appeal.
- On appeal, the Second Circuit construed "a place of religious worship" to mean a space that religious adherents collectively recognize or religious leadership designates as a place primarily used for religious worship (the place may be fixed or transient but must be primarily devoted to worship).
- Applying that statutory test to the undisputed record, the court held the Flushing tables were primarily a forum for political protest/awareness (e.g., materials urging quitting the CCP, exposing alleged organ harvesting) rather than a place primarily used for worship; therefore § 248(a)(2) did not apply.
- The Second Circuit reversed the district court's grant of partial summary judgment to Plaintiffs as to the tables and remanded; it did not reach the Commerce Clause challenge (a concurring judge would have sustained Defendants' Commerce Clause argument).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of "place of religious worship" under § 248(a)(2) | Should be read broadly to include any place religion is practiced (to avoid Establishment Clause issues) | Should be limited to places primarily used for worship (often structures or designated spaces) | Court: term means a space adherents collectively recognize or leadership designates as primarily for religious worship; can be temporary or fixed but must be primarily devotional |
| Whether the Flushing sidewalk tables qualify as a "place of religious worship" | Tables are functional equivalents/ extensions of the Spiritual Center and used for religious practice and proselytizing | Tables were primarily used for political protest and public-awareness activities about CCP persecution, not worship | Court: No reasonable jury could find primary-purpose-of-worship; tables do not qualify; Plaintiffs' § 248(a)(2) claim fails |
| Commerce Clause challenge to § 248(a)(2) | FACEA validly regulates conduct affecting interstate commerce; district court found economic nexus | § 248(a)(2) regulates local, noneconomic violent conduct beyond Congress' commerce power | Court: Did not decide — statutory disposition; concurrence would have held § 248(a)(2) exceeds Commerce Clause authority |
Key Cases Cited
- Everson v. Bd. of Educ., 330 U.S. 1 (1947) (Establishment Clause forbids governmental preference for particular religions)
- United States v. Lopez, 514 U.S. 549 (1995) (limits on Commerce Clause: noneconomic, local criminal conduct not regulable by aggregation)
- United States v. Morrison, 529 U.S. 598 (2000) (striking VAWA provision; gender-motivated violence is noneconomic and beyond commerce power)
- Gonzales v. Raich, 545 U.S. 1 (2005) (Commerce Clause can reach local economic activities that in the aggregate affect interstate markets)
- Wickard v. Filburn, 317 U.S. 111 (1942) (aggregation principle: purely local economic activity may be regulated if it affects interstate commerce)
- Scott v. Harris, 550 U.S. 372 (2007) (summary judgment principle: courts need not accept fact versions blatantly contradicted by the record)
- Murdock v. Pennsylvania, 319 U.S. 105 (1943) (proselytizing is a protected form of religious exercise)