UNITED STATES of America, Plaintiff-Appellant, v. Gerald RAYBORN, Defendant-Appellee.
No. 01-5632.
United States Court of Appeals, Sixth Circuit.
Decided and Filed: Dec. 6, 2002.
315 F.3d 543
Argued: Oct. 31, 2002.
Judicial invalidation of economic regulation under the Fourteenth Amendment has been rare in the modern era. See West Coast Hotel v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937). Our decision today is not a return to Lochner, by which this court would elevate its economic theory over that of legislative bodies. See Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). No sophisticated economic analysis is required to see the pretextual nature of the state‘s proffered explanations for the 1972 amendment. We are not imposing our view of a well-functioning market on the people of Tennessee. Instead, we invalidate only the General Assembly‘s naked attempt to raise a fortress protecting the monopoly rents that funeral directors extract from consumers. This measure to privilege certain businessmen over others at the expense of consumers is not animated by a legitimate governmental purpose and cannot survive even rational basis review.
The plaintiffs also argue that the FDEA‘s application to funeral merchandise retailers is unconstitutional under the Privileges and Immunities Clause of the Fourteenth Amendment. Because the plaintiffs’ Equal Protection and Due Process arguments are sufficient to support the district court‘s injunction, we do not reach this argument. The Privileges and Immunities Clause has been largely dormant since the Slaughter-House Cases, 83 U.S. (16 Wall) 36, 21 L.Ed. 394 (1872), restricted its coverage to “very limited rights of national citizenship” and held that clause did not protect an individual‘s right to pursue an economic livelihood against his own state. There has been some recent speculation that the Privileges and Immunities Clause should have a broader meaning. See Saenz v. Roe, 526 U.S. 489, 521-23, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (Thomas, joined by Rehnquist, dissenting) (speculating that the development of the Privileges and Immunities Clause was prematurely stifled by the Slaughter-House Cases). Nevertheless, we need not break new ground today to hold that the application of the FDEA to funeral merchandise retailers is unconstitutional under the Fourteenth Amendment.
III
For all of the foregoing reasons, we AFFIRM the district court‘s order enjoining the application of the FDEA to the plaintiffs’ businesses as they operated before the Board‘s cease and desist order.
A.C. Wharton, Jr. (argued and briefed), Wharton & Wharton & Associates, Memphis, TN, James R. Garts, Jr. (briefed), James D. Wilson (briefed), Harris, Shelton, Dunlap, Cobb & Ryder, Memphis, TN, for Defendant-Appellee.
Before MERRITT and GILMAN, Circuit Judges; TARNOW, District Judge.*
MERRITT, J., delivered the opinion of the court, in which TARNOW, D.J., joined. GILMAN, J. (p. 236), delivered a separate concurring opinion.
OPINION
MERRITT, Circuit Judge.
In this case, the United States appeals the order dismissing Defendant Gerald Rayborn‘s indictment for arson under
To the extent the district court dismissed the arson count for lack of subject matter jurisdiction, its conclusion was erroneous. The district court misconstrued language from the opinion of this court in United States v. Sherlin, 67 F.3d 1208, 1213-14 (6th Cir.1995). In that case, this court contrasted
Although the interstate commerce requirement is frequently called the “jurisdictional element,” it is simply one of the essential elements of
Although this court typically vacates a dismissal order when it determines that a district court has erred in dismissing a case for lack of subject matter jurisdiction, the district court in this case undertook an evaluation of the merits of the interstate commerce question under the guise of subject matter jurisdiction. Furthermore, the facts are before the court via stipulation and the evidentiary hearing in the court below. We therefore will undertake a further consideration of the interstate commerce requirement.
Defendant Gerald Rayborn is the pastor of New Mount Sinai Missionary Baptist Church in Memphis, Tennessee. On August 25, 1998, the church building was destroyed by fire. On December 16, 1999, Rayborn was indicted in connection with the arson. Count 1 of the indictment charged a violation of
In his motion to dismiss the
Next, the Government filed a motion to reconsider and a motion for an evidentiary hearing to establish the requisite connection to interstate commerce. The court granted the motion for an evidentiary hearing, which was held on February 7, 2001. On April 17, 2001, the district court denied the government‘s motion for reconsideration and the government appeals from that order.
Defendant Rayborn urges us to affirm the dismissal of the arson count from his indictment. He contends that because the church was not actively employed for a commercial purpose,
In Jones v. United States, the Supreme Court held that
Jones established a two-part inquiry to determine whether a building fits within the strictures of
In Jones, the Court also recognized that the legislation ultimately enacted as
For purposes of the function analysis, the building‘s function is not limited to its primary use. Numerous court decisions support the idea that a building can have more than one function. For example, in Jones, the Supreme Court noted twice that the private home at issue in that case was used only as a residence and not also as a home office or in some other commercial enterprise. See id. at 856, 120 S.Ct. 1904. Other circuits have analyzed primary and secondary functions of church buildings. See, e.g., United States v. Terry, 257 F.3d 366, 369 (4th Cir.2001).
In this case, however, the function analysis compels a conclusion that the building functioned as a church. While there were other activities in the building—such as radio broadcasts, gospel concerts, and free buffet breakfasts—none of these would support a finding that the building also served as, for example, a radio station, concert hall, or restaurant.
The conclusion that the function of the building was its use as a church does not end the inquiry. Instead, the court should turn to whether the church‘s activities affect interstate commerce. In Camps Newfound/Owatonna, Inc., v. Town of Harrison, 520 U.S. 564, 584, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997), the Supreme Court made clear that charitable and non-profit entities are major participants in the interstate market for goods and services, using interstate communications and transportation, raising and distributing revenues (including voluntarily paid revenues) interstate. Indeed, “while churches are not commonly considered a business enterprise, churches can and do engage in commerce. The ‘business’ or ‘commerce’ of a church involves the solicitation and receipt of donations, and the provision of spiritual, social, community, educational (religious or non-religious) and other charitable services.” United States v. Odom, 252 F.3d 1289, 1294 (11th Cir.2001). In the Eleventh Circuit‘s view, the evidence proving
Turning then to an evaluation of the church‘s effects on interstate commerce, we note at the outset that unlike the private residence in Jones, this is not a case where the government relies only on passive activities, such as the purchase of utility services or insurance from an out-of-state provider, to demonstrate the building‘s use in and effect on interstate commerce. The church‘s interstate connections were direct, regular, and substantial. While the church‘s activities were undertaken primarily to facilitate worship, they nonetheless were commercial in nature. Accord United States v. Grassie, 237 F.3d 1199, 1210 (10th Cir.2001) (recognizing that a church‘s activities may be both religious and commercial at the same time); Odom, 252 F.3d 1289, 1294 (same).
In particular, the church used regular radio broadcasts as part of its evangelism; the desired effect was to increase membership and attendance at the church‘s worship services and other programs. Because the broadcast area included Mississippi and Arkansas, as well as Tennessee, the logical consequence of increased attendance would be increased travel into Tennessee from neighboring states. Causing interstate travel for the purpose of receiving money from the travelers affects the flow of money in commerce, even if the money is a gift. See Camps, 520 U.S. at 573, 117 S.Ct. 1590 (stating that “the transportation of persons across state lines has long been recognized as a form of commerce,” in a case where the court found that a non-profit church-affiliated summer camp was engaged in commerce in part because its out-of-state advertising prompted the transportation of campers across state lines).2 Furthermore, the use of the radio broadcasts clearly encompasses active employment of commercial entities, including three radio stations in Tennessee and one in Mississippi. Altogether, the church paid $17,000 in 1997 to the various radio stations for its broadcasts.
Other facts support a conclusion that the building was used in interstate commerce. Because of its location, which is less than five miles to Tennessee‘s border with Mississippi and no more than fifteen miles to the border with Arkansas, the church drew members from Tennessee, Arkansas, and Mississippi. The church also hosted free events, to which the public was invited. It served as the site of gospel concerts, including some featuring out-of-state talent, for which the church requested donations of $10 to $12.
Furthermore, unlike the private home in Jones, the church building was owned by a tax-exempt, non-profit organization with a Board of Trustees. In addition, the church employed two persons and collected substantial sums on a weekly basis, approximately $9,000 to $10,000. These funds were received from residents of Tennessee, Mississippi, and Arkansas, as well as other states.
The church also engaged in substantial activities in the local market for goods. For example, the church spent $4,700 on food and flowers for funerals in 1997, as well as $7,000 for groceries to be used to host its picnics and breakfasts. In addi-
When these facts are taken together, we conclude that the government has provided sufficient evidence to permit a rational jury to find that the church was actively employed in commercial activities with an effect on interstate commerce. While several circuits have determined that use of a building as a church alone does not qualify it as being “used in” interstate commerce, we do not believe that finding that interstate commerce is met on these facts would create a circuit split, as the defendant asserts. The cases cited by Rayborn involved factual circumstances far different from those before this court. For instance, in United States v. Johnson, the Fifth Circuit concluded that a church was not a building used in or affecting interstate commerce when the government asserted the following four facts: (1) the church‘s membership in the Texas Annual Conference (state Methodist organization); (2) the Conference‘s forwarding of those funds to the United Methodist Church‘s national office in Illinois; (3) the national organization‘s distribution of those funds to various missionary activities, seminaries, and institutions of higher education; and (4) an out-of-state insurer‘s payment of a claim of more than $89,000 to the church. 194 F.3d 657, 662 (5th Cir.1999).
In addition, in United States v. Odom, 252 F.3d 1289 (11th Cir.2001), the only evidence introduced to demonstrate use in interstate commerce included: (1) the church received donations from two out-of-state donors (relatives of the pastor); (2) use of “a handful” of Bibles and prayer books purchased from an out-of-state source; and (3) indirect contributions to an out-of-state church organization through its membership in the in-state church organization. See id. at 1296-97. On those facts, the Eleventh Circuit concluded that the government failed to demonstrate that the church building was used in or affected interstate commerce. See id. at 1297.
Finally, the Fourth Circuit in United States v. Terry, 257 F.3d 366 (4th Cir. 2001), considered whether the following facts constituted sufficient evidence of a church building‘s use in or effect on commerce: out-of-state members, church employees who receive wages for their efforts, the church‘s affiliation with the Cooperative Baptist Fellowship which was based in another state, the church‘s sponsorship of international missions, the church‘s purchase of Sunday School materials from an out-of-state supplier, and the church‘s refurbishment of homes from which it could reasonably be inferred that the church purchased building materials that impacted the national market for such goods and services. The Fourth Circuit found it unnecessary to reach that issue because it concluded that the church‘s operation of a full day care center necessitated a finding that the interstate commerce requirement was met. See id. at 369.
After reviewing the foregoing case law, we are convinced that the facts so far developed in the case at bar fall somewhere between the facts presented to the Fifth Circuit in Johnson and the Eleventh Circuit in Odom on the one hand, and the Fourth Circuit in Terry on the other hand. While the courts in Johnson and Odom were presented with facts indicating “merely a passive, passing, or past connection to commerce,” Jones, 529 U.S. at 855, 120 S.Ct. 1904, here the government has introduced evidence of the church building‘s direct, regular, and substantial use in activities affecting interstate commerce. We cannot say that the evidence produced by the government is not sufficient to permit a rational jury to find that the church
GILMAN, Circuit Judge, concurring.
I agree with the lead opinion that this is a case that falls somewhere between the facts of cases like United States v. Terry, 257 F.3d 366 (4th Cir.) (holding that the church‘s operation of a day-care center was a sufficient activity affecting interstate commerce to satisfy the jurisdictional element of
Although I concur in the result reached, I write separately because I believe that the lead opinion overstates the factors that cause this case to fall within the ambit of
In my opinion, there is only one factor that causes this case to fall within the “used in commerce or in an activity affecting commerce” part of the Jones test. Jones, 529 U.S. at 854, 120 S.Ct. 1904. That factor is the use of the church building to record sermons for the express purpose of broadcasting the sermons on commercial radio stations, including a radio station located in the state of Mississippi. Radio broadcasts specifically targeted to reach people in other states represent, to my mind, classic activities affecting interstate commerce. As a result, I believe that the lead opinion is correct in concluding that a rational jury could find that the church building was used in activities affecting interstate commerce. But for this factor, however, I would have been inclined to affirm the judgment of the district court.