ZHANG JINGRONG, ZHOU YANHUA, ZHANG PENG, ZHANG CUIPING, WEI MIN, LO KITSUEN, CAO LINJUN, HU YANG, GUO XIAOFANG, GAO JINYING, CUI LINA, XU TING, BIAN HEXIANG, Plaintiffs-Counter-Defendants-Appellees, v. CHINESE ANTI-CULT WORLD ALLIANCE INC., MICHAEL CHU, LI HAUHONG, WAN HONGJUAN, ZHU ZIROU, Defendants-Counter-Plaintiffs-Appellants, DOES 1-5, INCLUSIVE, Defendants.
No. 18-2626
United States Court of Appeals For the Second Circuit
October 14, 2021
August Term 2019 (Argued: October 3, 2019)
Before: WALKER, LEVAL, and CARNEY, Circuit Judges.*
* The Clerk of Court is directed to amend the official case caption as set forth above.
The Freedom of Access to Clinic Entrances Act of 1994 (“FACEA“) prohibits a person from intentionally injuring, intimidating, or interfering with another who is exercising her religion “at a place of religious worship.”
Judge Walker concurs in the court‘s opinion, and files a separate concurring opinion.
REVERSED AND REMANDED.
TOM M. FINI, Catafago Fini LLP, New York, NY (Edmond W. Wong, Law Office of Edmond W. Wong, PLLC, Flushing, NY, on the brief), for Defendants-Counter-Plaintiffs-Appellants.
TERRI E. MARSH, Human Rights Law Foundation, Washington, D.C., JAMES A. SONNE, Stanford Law School Religious Liberty Clinic, Stanford, CA (Joshua S. Moskovitz, Bernstein Clarke & Moskovitz PLLC, New York, NY, on the brief), for Plaintiffs-Counter-Defendants-Appellees.
Sirine Shebaya, Juvaria Khan, Muslim Advocates, Washington, D.C., for Amicus Curiae Muslim Advocates.
This appeal presents the question of whether five tables on the sidewalk in Flushing, Queens, New York—where Plaintiffs-Counter-Defendants-Appellees (“Plaintiffs“) passed out flyers and displayed posters primarily protesting the Chinese Communist Party‘s treatment of Falun Gong—constitute “a place of religious worship” under the Freedom of Access to Clinics Entrances Act (“FACEA“),
Plaintiffs are adherents of Falun Gong, a modern spiritual practice originating in
We hold that “a place of religious worship” is anywhere that religious adherents collectively recognize or religious leadership designates as a space primarily to gather for or hold religious worship activities. We hold further that the tables do not qualify under this definition: at summary judgment, the undisputed record showed that Plaintiffs and their fellow practitioners treated the tables primarily as a base for protesting and raising public awareness about the Chinese Communist Party‘s alleged abuses against Falun Gong, rather than for religious worship. Nor was there evidence that the Falun Gong religious leadership had designated the tables as a place primarily to gather for or hold religious worship activities. Accordingly, the
Defendants argue separately that the claim cannot be sustained because Congress lacked the authority under the Commerce Clause to enact
We therefore reverse the district court‘s grant of partial summary judgment to Plaintiffs and its corresponding denial of summary judgment to Defendants, and remand for further proceedings consistent with this Opinion.
BACKGROUND
I. Statutory Background
FACEA dually protects individuals’ access to “reproductive health services” and the free exercise of religion “at a place of religious worship.”
by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship.
II. Factual Background
On this interlocutory appeal from orders on cross-motions for summary judgment, we draw the following undisputed facts from the parties’ Local Rule 56.1 statements and the documents, deposition testimony, and evidentiary hearing testimony comprising the summary judgment record. The district court held a three-day evidentiary hearing to supplement the summary judgment record, during which several of the parties’ experts and witnesses provided additional testimony. To the extent any issues discussed in the factual narrative are in dispute, we note them below.
A. Falun Gong
Plaintiffs are practitioners of Falun Gong, a spiritual practice founded in China
Falun Gong is subject to controversy. Defendants are the Chinese Anti-Cult World Alliance Inc. (“CACWA“), its leaders, and affiliated individuals, who oppose Falun Gong. In their view, Falun Gong is “cult-like” and espouses troubling views. See, e.g., App‘x at 585 (Defs.’ Response to Pls.’ Rule 56.1 Statement). Defendants object, for instance, to Falun Gong teachings that followers should not take medication for illness, that aliens have visited earth, and that the heavens are divided into racial zones and a person of a mixed racial background will “go to the heaven that belongs to the race of his Main Spirit.” App‘x at 633. Plaintiffs do not dispute that these are Falun Gong teachings. See App‘x at 609.
Plaintiffs allege that in China, the government harshly persecutes members of Falun Gong. According to U.S. government reports, the Chinese government deems Falun Gong a “cult[],” and has brutally tortured, detained, and imprisoned followers. App‘x at 608 (quoting annual reports of the Congressional-Executive Commission on China); see also App‘x at 606 (quoting State Department‘s Human Rights Report on China). One Plaintiff recounted that, because he practiced Falun Gong in China, he was “abused and beaten in custody” and “was forced to watch as his mother was beaten in the face” by Chinese authorities. App‘x at 593. Plaintiffs also allege that the Chinese government exerts influence against Falun Gong practitioners overseas by encouraging its state-owned enterprises to provide financial support to organizations like CACWA. See App‘x at 1246-48.
In response to this treatment, Li Hongzhi has urged followers to raise awareness—as Falun Gong practitioners describe it, “to tell the truth“—about the Chinese Communist Party‘s persecution of practitioners and its malignment of the movement.3 See, e.g., App‘x at 777 (Plaintiff
B. The Flushing Sidewalk Tables
Located in the Flushing neighborhood of Queens, New York, are two “centers” where Falun Gong practitioners gather. One is the large Taiwan Cultural Center and the other, the much “small[er]” spiritual center (the “Spiritual Center“) based in the suite of a building located on Main Street. App‘x at 1743, 1747, 1751. The parties do not dispute that the Taiwan Cultural Center is the site of “regular[]” worship and study among practitioners. App‘x at 1747; see App‘x at 1751 (Plaintiffs’ witness, a Falun Gong practitioner, explaining that “[w]e make true wishes and pray at Taiwan Center“). Plaintiffs state that practitioners gather at the Spiritual Center “to meditate, exercise, and study in groups.” App‘x at 1820; see also App‘x at 1746 (same witness explaining that “[w]e also practice at Spiritual Center.“).
During the relevant period of the lawsuit, from 2011 to 2015, Spiritual Center leadership arranged five tables to be set up daily in the same locations and at the same times along the sidewalk in downtown Flushing. The tables displayed a variety of posters and images and were staffed by volunteers who handed out flyers. The volunteers also walked up and down the street near the tables to distribute flyers. Most, but not all, of the volunteers were Falun Gong practitioners. See App‘x at 1740 (describing the volunteers as “mainly” Falun Gong practitioners).
Plaintiffs’ witness Yu Yuebin, the director of the Spiritual Center, testified at the evidentiary hearing on the purpose and activities of the tables.4 In Yu‘s view, the tables were “part of our spiritual center.” App‘x at 1738. He explained that the materials displayed at the tables were geared toward raising awareness about the Chinese Communist Party‘s treatment of Falun Gong:
Q. What materials are displayed at the tables?
A. We mainly put three kind[s] of materials. First kind, we tell people what is Falun Gong, to reveal the lies about Falun Gong from Chinese Communist Party, the lies that reveal and wrongfully blamed Falun Gong. Second kind, Chinese Communist Party persecute Falun Gong. The third kind is to reveal Chinese Communist Party persecute Falun Gong and to persuade people to withdraw from the party organization.
Q. You said the first category is the materials explain what Falun Gong is, right?
A. Yes. First kind we explain what is Falun Gong—it‘s a kind of religion for us to practice—to reveal the lies that Chinese [C]ommunist party wrongfully blame Falun Gong.
Q. And are the materials at the table simply there for people to pick up, or are they handed out to people?
A. Mainly we distribute them to people; but some of them, people could pick it up by themselves.
Q. So people who are working at the tables at times will distribute the materials on Main Street.
A. Yes.
App‘x at 1738-39.
Yu also described the posters and images displayed at the tables. Some depicted “organ harvesting“—the forcible removal of internal organs—from Falun Gong practitioners allegedly committed by the Chinese government. App‘x at 1751-52. Yu testified that he hoped displaying these images would “reveal the evilness of the Chinese Communist Party” and motivate passersby to take action against the persecution:
Q. So, if I told you that we have photographs showing that there are a lot more organ harvesting photos [at the tables before this litigation commenced] compared to now, your testimony is that you‘d disagree with that. Is that your testimony?
A. The organ harvesting is a crime, a sin. That has never happened in the history. It‘s part of our [sic] tell the truth, to reveal the evilness of Chinese Communist Party, to tell people what‘s happening in China, to help people. More people can pay attention to it and to stop people being persecuted; and right now, every minute, every second someone organ was being taken. There‘s no reason for us to decrease that. I think it‘s normal when it‘s more or less.
[ . . . . ]
Q. You understand what organ harvesting is, correct?
A. We have materials about organ harvest.
Q. And that material includes posters that show pictures of bodies being cut open and the organs to be harvested, removed?
A. I want them to display less pictures about this kind. Maybe there are some.
[ . . . . ]
Q. Okay. And that table that‘s there does display pictures of organ harvesting, correct?
A. Yes, there is.
Q. Now that poster or those posters displayed, are open for the public to see, correct?
A. Yes.
App‘x 1751-55.
Yu further explained that practitioners who staffed the tables engaged in “prayer and promoting the Fa [meaning “law” of Falun Gong]” there. App‘x at 1739. As he put it, the tables are “like an extension” of the Spiritual Center “to help to preach and tell the truth, to spread good works to people.” App‘x at 1738. Yu admitted, however, that “[m]ainly” Falun Gong “exercises” are done “at the parks and at home” rather than around the tables. App‘x at 1746.
Plaintiffs who staffed the tables testified consistently with Yu‘s statements in their depositions. Plaintiff Cui Lina explained that the purpose of the tables was for volunteers to pass out flyers and raise awareness of the “Chinese communist party[‘s]” organ harvesting and actions against Falun Gong:
Q. But when you‘re practicing, actually practicing Falun Gong, isn‘t it the movements and the meditation?
A. Yes.
Q. But you are not doing that at the five tables. At the five tables you are handing out materials? You do the
movements and the meditation in the spiritual center and the parks. You are not doing that at the table, right? [ . . . . ]
A. At a table we pass out fliers. We try to tell the truth of how the Chinese communist party persecute the Falun Gong practitioner. We try to tell the truth about how the communist party harvest organs.
Q. Right. But you don‘t do the meditation or the exercises at the five tables, correct?
A. No, we don‘t—we don‘t do meditation.
Q. And you don‘t do the exercises at the five tables either, correct?
[ . . . . ]
A. That‘s correct.
App‘x at 1788.
Plaintiff Lo Kitsuen likewise testified at her deposition that the tables were “not mainly for worship“:
Q. Are the tables a place of worship or are they more to distribute information?
A. There are multiple various printed materials on the table, and we distribute those pamphlets, materials when we tell other people about the truth.
Q. Right. But my question was are the tables actually a place of worship where you actually engage in worship?
[ . . . . ]
A. No. No. It‘s not mainly for worship, no. Mostly they are for distribution of our flyers.
Q. Where do you Falun Gong practitioners go to worship?
[ . . . . ]
A. When we gather at the Taiwan Center on Northern Boulevard and worship by yourself of [sic] at home. You could do that yourself.
App‘x at 1784.
Defendants’ expert, Professor Xia Ming, a political scientist who wrote about Falun Gong, regularly observed the tables as part of his “data collection process.” App‘x at 1695. He testified as follows at the evidentiary hearing:
Q. And what types of materials do you see being displayed and distributed at those tables?
A. Yes, so based upon my different encounters, I believe some of them about quitting the Chinese Communist party . . . . Some materials about quitting, some about the organ harvest. Sometimes they have materials about the literature about the Falun Gong about what Falun Gong is, and sometimes they have pictures about organ harvest and also about torture in China.
Q. And just to be clear for the court reporter, did you say there are pictures of organ harvesting?
A. Yeah.
Q. Okay. What is organ harvesting? What are they talking about when they display pictures of organ harvesting?
A. Because it has been claimed by the Falun Gong and many Falun Gong practitioners and they were in jail in China, then they were subject to organ harvesting and so they were put to death and their organs were removed when they were still alive. So, this is what pictures they were about.
[ . . . . ]
Q. Have you seen the tables at Flushing being used to tell the Falun Gong members [sic] are handing out fliers to Chinese Americans on Main Street and saying “You have to quit the Chinese Communist Party.” Have you seen that?
A. I did see them hand them. And I was also approached by different Falun Gong practitioners with the pamphlets regarding quitting the Chinese Communist party, and also the organ harvesting materials.
App‘x at 1672-73, 1680-81.
At the hearing, Defendant Li Huahong introduced into evidence photographs of the five tables that she took in 2015 and 2016. Li lived near the tables and passed by them every day for over ten years. She described three of the photographs: two showed a banner hanging over a table that said, “Prosecute Jiang Zemin,” the former Chinese president. App‘x at 1706-07. A third photograph showed a sign by a table that said, according to Li‘s translation, “To wrong people in this world. And kindness or evilness will get karma or reward.” App‘x at 1707.
C. Altercations Between the Parties
Plaintiffs’ FACEA claim is based on a series of physical and verbal altercations that took place near the tables from around 2011 until the complaint was filed in 2015.
Plaintiffs allege numerous incidents. In April 2011, Defendant Li Huahong threatened Plaintiff Zhou Yanhua while he passed out flyers by a table. In September 2011, Defendant Zhu Zirou tore down a table display and struck and cursed at Plaintiff Zhou, who was stationed there. In 2014, Defendant Wan Hongjuan threatened or assaulted Plaintiffs Gao Jinying, Hu Yang, Cui Lina, and Zhang Peng, and Defendant Li attacked Plaintiff Lo Kitsuen, all near the tables. In January 2015, Defendant Wan Hongjuan approached Plaintiff Zhang Jingrong at a table, knocked over the table‘s materials, and threatened that he would “eradicate” Zhang and her fellow practitioners. App‘x at 55-56.
Plaintiffs also allege incidents on Main Street in Flushing. For example, in April 2011, Defendant Li threatened Plaintiff Gao “while traveling by foot on Main Street near the Spiritual Center.” App‘x at 57. In July 2011, Defendants Li and Zhu and “a mob of twenty to thirty people” surrounded and attacked Plaintiffs Li Xiurong and Cao Lijun while they “walked together on Main Street from the Falun Gong site located at 41-70 Main Street to the Spiritual Center.” App‘x at 58. While participating in a parade in February 2014, supporters of Defendant CACWA verbally attacked Plaintiff Lo.
Defendants vehemently dispute each of these accounts, claiming instead that they were in fact the victims, and not the aggressors, in these incidents.
III. Procedural History
Based on these and other altercations, Plaintiffs filed this action on March 3, 2015, pleading violations of FACEA in the fifth count of their complaint. The other counts and Defendants’ counterclaims are not at issue in this appeal.5
After several years of discovery, the parties filed cross-motions for partial summary judgment. Although neither party initially moved for summary judgment on
Following an evidentiary hearing in connection with the cross-motions, the parties submitted supplemental briefing on the FACEA claim. See D. Ct. Dkt. No. 165. Plaintiffs sought partial summary judgment, including, as relevant here, that the Flushing tables are “a place of religious worship” under
arguing that the tables are not “a place of religious worship” because they were not “used primarily for worship” and therefore the claim failed. D. Ct. Dkt. No. 146 at 6-9. Defendants further moved for summary judgment on the ground that Congress exceeded its authority in enacting
The district court rendered its decision in two orders, one issued on April 23, 2018, and one on May 30, 2018. In the first, it granted partial summary judgment to Plaintiffs, concluding that the tables are a qualifying “place of religious worship” and denying Defendants’ corresponding motion. Zhang Jingrong v. Chinese Anti-Cult World All., 311 F. Supp. 3d 514, 522, 553-55 (E.D.N.Y. 2018) (”Zhang I“).7 The district court further ruled that, to avoid effecting a preference for certain religions over others, which would violate of the Establishment Clause, “[a]ny place a religion is practiced is protected by a constitutional construction of” the phrase “place of religious worship.” Id. at 553-54 (emphasis added) (citing 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 . . . . prefer one religion over another.“)). Thus, the district court found that “a place of religious worship”
In the second order, dated May 30, 2018, the district court denied Defendants’ motion for summary judgment based on the Commerce Clause challenge to
religious worship can deter people from participating in religious-based, commercial activity,” thereby affecting interstate commerce. Id.
In light of the novelty and complexity of the issues, the district court certified both Zhang I and II for interlocutory appeal. See id. at 424-25. It noted that “[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” or a question on “the scope of FACEA” left undecided. Id. at 424.
We now reverse the order issued in Zhang I to the extent it interprets the phrase “a place of religious worship” and concludes that the tables qualify as such under
DISCUSSION
“We review a district court‘s grant of summary judgment de novo where the parties filed cross-motions for summary judgment and the district court granted one motion but denied the other.” Atlas Air, Inc. v. Int‘l Bhd. of Teamsters, 943 F.3d 568, 576-77 (2d Cir. 2019). “[W]e evaluate each party‘s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Byrne v. Rutledge, 623 F.3d 46, 53 (2d Cir. 2010). We may find for the movant defendant “only if we conclude that on the record presented, considered in the light most favorable to [the non-movant plaintiff], no reasonable jury could find in his favor on his claim[].” Capobianco v. City of New York, 422 F.3d 47, 54-55 (2d Cir. 2005). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v.Harris, 550 U.S. 372, 380 (2007). Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
I. Meaning of “Place of Religious Worship”
Plaintiffs’ FACEA claim turns on the meaning of the critical statutory term “place of religious worship.” Section 248(a)(2) does not define the term. On review of the statutory text and legislative history, we conclude that the term means a space devoted primarily to religious worship activity—that is, anywhere that religious adherents collectively recognize or religious leadership designates as a place primarily to gather for or to hold religious worship activities.8
A. Plain Meaning
When interpreting a statute, we begin with the text. We must give effect to the text‘s plain meaning. Plain meaning “does not turn solely on dictionary definitions“; rather, it draws on “the specific context in which that language is used, and the broader context of the statute as a whole.” United States v. Rowland, 826 F.3d 100, 108 (2d Cir. 2016). Where the plain meaning of the text is clear, our inquiry “generally end[s] there.” United States v. Balde, 943 F.3d 73, 81 (2d Cir. 2019).
We conclude that the phrase “a place of religious worship,” in context, is susceptible to multiple reasonable interpretations. A “place” is a “location,” “a particular part or region of space,” “a space that can be occupied.” Place, Oxford English Dictionary (“OED“) (3d ed. 2006), https://www.oed.com/view/Entry/144864; see also Place, Merriam-Webster Dictionary (“M-W“), https://www.merriam-webster.com/dictionary/place. When “place” is joined with “of,” the phrase “place of” may denote a “place” whose defining feature or purpose is identified in the terms following the preposition “of.” See, e.g., Place, OED (explaining that “place of” is typically accompanied by a “qualification indicating the purpose” of the “place,” so that the entire phrase means a “building, establishment, or area devoted to a particular purpose” (emphasis added)); Place, M-W (“place of” is a construction denoting a “locality used for a special purpose” (emphasis added)). In some contexts, however, the words following “place of” merely describe an incidental feature of the location, rather than its primary purpose. For example, the sentence “The town launderette is a place of lively, well-informed conversations,” does not denote that the establishment primarily serves as a forum for discourse as opposed to cleaning clothes. The common phrases “place of birth,” “place of employment,” and “place of wrong” likewise denote one activity or event that occurs at the location, but not necessarily its primary purpose. See Place of Employment;
All of this is to suggest that “place of worship” is susceptible to more than one plausible interpretation. For instance, a “place of worship” is defined as “a place where believers regularly meet for religious worship, esp. a building designed for or dedicated [to] this purpose.” Place, OED. The latter part of the definition confirms that the phrase is often used to refer to buildings whose primary purpose is to host meetings of religious worship, as Defendants contend. But, as the first clause suggests, a “place of worship” may also refer to any place where adherents “regularly meet for religious worship“—a meaning that may encompass regular sites of worship primarily used for other purposes, such as a public-school classroom where a religious student group meets at lunchtime or a cafe where believers gather to study and discuss religious texts. Id.
Nor can we conclusively ascertain the plain meaning of the text when it is placed in the context of the statute. A person is protected under
The district court ruled that, under the plain language of
B. Legislative History
Having found the statutory language to be ambiguous, “we turn to the provision‘s legislative history” to determine its meaning. Panjiva, Inc. v. United States Customs & Border Prot., 975 F.3d 171, 180 (2d Cir. 2020). Through this analysis, “we must construct an interpretation that comports with the statute‘s primary purpose and does not lead to anomalous or unreasonable results.” Puello v. Bureau of Citizenship & Immigr. Servs., 511 F.3d 324, 327 (2d Cir. 2007).
We conclude that the legislative history compels reading the phrase “place of religious worship” to mean a place recognized or dedicated as one primarily used
The interpretation supplied by the Joint Conference Report is consistent with the purpose of the statute, which is to protect persons subject to injury, intimidation, or interference at certain physical locations. As discussed above,
Nor does the “primary purpose” construction violate the Establishment Clause. Like the district court, we agree that “[r]eligious worship and the places it occurs come in numerous forms,” and therefore, “a place of religious worship” “require[s] a flexible interpretation.” Zhang I, 311 F. Supp. at 553. But Congress may select as its regulatory agenda the protection of certain broad categories of places, as it did here. What Congress may not do is to prefer the “places of religious worship” of certain religions over those of others. See Everson, 330 U.S. at 15 (explaining that the Establishment Clause forbids Congress from “prefer[ring] one religion over another“). Accordingly, we cannot interpret “a place of religious worship” as imposing any particular conceptual, physical, or temporal requirements. “Places of religious worship” may be fixed or moveable, enduring or temporary, bounded within a structure or structureless. But the basic feature of “a place of religious worship,” as understood by Congress, is that religious adherents collectively recognize or religious leadership designates the place as one primarily for religious worship. To the extent a religion may disavow the concept of designating any particular locations for worship, we respectfully are of the view that this hypothetical addresses a circumstance distinct from Congress‘s regulatory focus in
Defendants urge us to adopt instead a narrow interpretation and construe “a place of religious worship” to mean only fixed structures. We reject that view for the reasons just discussed. The text of
II. The Flushing Tables Are Not a “Place of Religious Worship”
Turning to the record here, we conclude that no reasonable jury could find that the Flushing tables are “a place of religious worship” in the sense that they are a place whose primary purpose is religious worship. The undisputed evidence shows that Plaintiffs and their witnesses characterized the tables primarily as a site for political protest activity against the Chinese Communist Party, even if some incidental religious practice took place at the tables. Consequently, the tables are not a space that Falun Gong adherents collectively recognized or its leadership designated as primarily for religious worship.
Plaintiffs moved for partial summary judgment on the issue that the tables are “a place of religious worship.” Defendants correspondingly sought summary judgment on the entirety of the
Construing the record in the light most favorable to Plaintiffs, as we must on Defendants’ motion, we find that the key facts compelling our conclusion are not in dispute. At the direction of the leadership of the Spiritual Center, the tables were set up daily in five locations in downtown Flushing. The tables were used to display certain materials and make them available to passersby. Volunteers who staffed the tables handed out materials either from the tables or when walking up and down the street near the tables.
The director of the Spiritual Center explained at the evidentiary hearing that the materials displayed at the tables fell into three categories, all of which pertain to protesting the Chinese Communist Party‘s treatment of Falun Gong. The first category “tell[s] people what is Falun Gong, to reveal the lies about Falun Gong from [the] Chinese Communist Party, the lies that reveal and wrongfully blame[] Falun Gong.” App‘x at 1738. The second category informs the public that the “Chinese Communist Party persecute[s] Falun Gong.” App‘x at 1738. And the third category of
In their depositions, Plaintiffs who staffed the tables testified consistently that the primary activity at the tables was not religious worship, but raising awareness of the Chinese Communist Party‘s abuses. For instance, when asked whether “the tables actually [are] a place of worship where you actually engage in worship,” Plaintiff Lo Kitsune responded, “No. No. It‘s not mainly for worship, no. Mostly they are for distribution of our flyers.” App‘x at 1784 (emphasis added). Plaintiff Cui Lina described the purpose of the tables in a similar vein: “At a table we pass out fliers. We try to tell the truth of how the Chinese communist party persecute[s] the Falun Gong practitioner. We try to tell the truth about how the communist party harvest[s] organs.” App‘x at 1788. Plaintiff Cao Lijuan agreed that practitioners do “not really practic[e] Falun Gong” at the tables. App‘x at 1792. Other evidence in the record corroborates these descriptions of the political orientation of the tables. For instance, pictures taken of the table showed a banner that stated, “Prosecute Jiang Zemin,” the former Chinese president. App‘x at 1707.
The record also contains undisputed evidence of certain locations where Falun Gong practitioners habitually worship. They include the Taiwan Center where practitioners pray and study together, parks where they do qigong exercises, and practitioners’ own homes where they meditate. The Spiritual Center director testified that “[m]ainly” Falun Gong “exercises” are done “at the parks and at home.” App‘x at 1746. Plaintiff Cui Lina similarly testified that “practicing Falun Gong” consists of meditation and exercises mainly, which do not occur at the tables. App‘x at 1788. When asked “where . . . Falun Gong practitioners go to worship,” Plaintiff Lo Kitsuen responded, “we gather at the Taiwan Center on Northern Boulevard and worship by [ourselves] . . . at home.” App‘x at 1784.
Certainly, the record contains some evidence that volunteers who staffed the tables would pray or “promot[e] the Fa” there. See, e.g., App‘x at 1739. But the issue is not whether there is any evidence that worship activities sometimes occurred at the tables. Rather, we must determine whether there is sufficient evidence for a reasonable jury to conclude that the primary purpose of the tables is religious worship. Consider the distinction between two hypotheticals: members of a sports team form a prayer circle on a field before a game but do not conceive of that field as “a place of religious worship” in their religious tradition. By contrast, adherents of a particular religion rent a secular facility to conduct their daily or weekly church services
The record likewise contains insufficient evidence for a reasonable jury to find that the primary purpose of the tables was proselytizing, a protected religious practice. See Murdock v. Pennsylvania, 319 U.S. 105, 110 (1943) (“[S]preading one‘s religious beliefs . . . is an age-old type of evangelism with as high a claim to constitutional protection as the more orthodox types.“). Rather, the evidence consistently shows that practitioners disseminated information about Falun Gong toward exposing the Chinese Communist Party‘s alleged defamatory propaganda against the group. The actions encouraged by the tables’ materials included quitting the Communist Party, stopping organ harvesting, and mobilizing for punishment of Chinese leaders like Jiang Zemin—not joining Falun Gong per se. Although there is evidence that the Falun Gong leader encouraged this activity, a reasonable jury could not conclude that his call to action to raise awareness of the Chinese Communist Party‘s abuses transformed this activity into religious worship. See, e.g., App‘x at 247 (excerpts of “Supplementary Teachings of Falun Gong” providing that, “Of course, many students have been quietly doing large amounts of truth-clarifying work—passing out flyers, making phone calls, using the Internet, going to the consulates, and using all different forms of media to tell the world‘s people the truth about Dafa and to expose the evil‘s persecution.” (emphases added)). At most, the evidence shows that the activity at the tables was motivated by teachings of the Falun Gong leader, akin to how Quaker groups may protest wars or Catholic groups may protest abortion laws in public streets motivated by their respective religious beliefs. But that such political and social action may be rooted in religious belief does not transform the public spaces where the action occurs into “places of religious worship.”
Reviewing the full record in the light most favorable to Plaintiffs, we conclude that it contains insufficient evidence for a reasonable jury to find at trial that the primary purpose of the tables was religious worship. Rather, the undisputed evidence shows that activities at the tables were primarily aimed at exposing and motivating action against the Chinese Communist Party for its alleged abuses against Falun Gong, even if some religious activity may have incidentally or occasionally occurred at the tables. The
In light of this resolution, we do not reach the merits of Defendants’ constitutional challenge to
The April 23, 2018 order of the district court is REVERSED to the extent that it interprets “a place of religious worship” in
JOHN M. WALKER, JR., Circuit Judge, concurring:
Although I agree with the majority‘s reasoning that FACEA does not protect the Falun Gong tables as places of religious worship, I am convinced that the conduct is beyond Congress’ Commerce Clause authority to regulate and would dismiss plaintiffs’ claim on that basis as well.
In prohibiting violence against worshippers at places of religious worship, FACEA regulates local, non-economic conduct that has at best a tenuous connection to interstate commerce. The Supreme Court in United States v. Lopez and United States v. Morrison expressly rejected the notion that the commerce power reaches “noneconomic, violent criminal conduct” of the sort proscribed here “based solely on that conduct‘s aggregate effect on interstate commerce.”1 I therefore would reach and sustain the Commerce Clause challenge to the religious exercise provision of FACEA,
The Supreme Court has identified three categories of conduct that Congress may regulate under the Commerce Clause: (1) “the use of the channels of interstate commerce“; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce“; and (3) “those activities that substantially affect interstate commerce.”2 The regulated conduct in this case, violence against worshippers at places of religious worship claimed here, can reasonably pertain only to the third category. To determine whether a regulated activity substantially affects interstate commerce, we consider four factors: (i) whether the statute regulates economic activity, (ii) whether the statute contains an “express jurisdictional element” to establish a connection to interstate commerce, (iii) whether the legislative history includes express findings on the activity‘s effects on interstate commerce, and (iv) whether the link between the activity and a substantial effect on interstate commerce is too attenuated to bring the activity within the Commerce Clause‘s reach.3 Each of these factors counsels against upholding
First, and most importantly, nothing about the regulated conduct is economic in nature. The Supreme Court in United States v. Lopez emphasized that it has considered only economic intrastate activity, as opposed to non-economic intrastate activity, to substantially affect interstate commerce.4 The Court surveyed congressional Acts that it had upheld which included those that regulated intrastate coal mining,5 extortionate intrastate credit transactions,6 restaurants using substantial
The Supreme Court reaffirmed the centrality of the economic activity component in United States v. Morrison, which concerned a Commerce Clause challenge to the Violence Against Women Act (VAWA). The Court struck down the law because the regulated conduct, gender-motivated violence, was “not, in any sense of the phrase, economic activity.”11 The Court criticized petitioners and the dissent for “downplay[ing] the role that the economic nature of the regulated activity plays in our Commerce Clause analysis,” a consideration the Court found “central” to its analysis in past cases.12
Although it stopped short of “adopt[ing] a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases,” the Court emphasized that “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.”13 Absent an economic nexus or a jurisdictional requirement in the statute tying the conduct to interstate commerce, congressional findings standing alone could not sustain VAWA‘S constitutionality.14
Applying the lessons of Lopez and Morrison, the Court in Gonzales v. Raich upheld provisions of the federal Controlled Substances Act (CSA) that made it unlawful to possess, obtain, or manufacture cannabis for personal medical use, which was legal under California law.15 Respondent Monson cultivated and used her own marijuana, and Respondent Raich relied on two “caregivers” to “provide her with locally grown marijuana at no charge.”16
Distinguishing Monson‘s and Raich‘s activities from the conduct in Lopez and Morrison, the Court explicitly rejected the Ninth Circuit‘s “heavy reliance” on those cases when that court concluded that Congress had exceeded its commerce power.17 Whereas the statutes struck down in Lopez and Morrison, proscribing local criminal activity, lacked any nexus with interstate commerce, the CSA regulated the “quintessentially economic” activities of “production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market.”18
Raich follows from the Court‘s “striking[ly]” similar decision six decades earlier in Wickard v. Filburn.19 In Wickard, the Supreme Court upheld a statute directed at “control[ling] the volume [of wheat] moving in interstate and foreign commerce” to stabilize supply and prices even though Wickard intended to grow wheat only for his own consumption.20 Wickard, the Raich Court stated, “firmly establishe[d]” that the commerce power includes the “power to regulate purely local activities that are part of an economic class of activities that have a substantial effect on interstate commerce.”21 The
Raich Court observed that Congress may reach a purely intrastate activity—even one that is not itself commercial because it does not involve a purchase or sale—if it finds that the failure to regulate that class of intrastate activity would “undercut the regulation of the interstate market in that commodity.”22 The Court concluded that the marijuana home growers in that case, like the Wickard farmer, were cultivating “a fungible commodity.”23 Congress could have found that the production of marijuana for home consumption in the aggregate would have a “substantial effect” on supply and demand in the greater interstate market for marijuana.24 Thus, the CSA fell within Congress’ commerce power.
Applying these principles to the relevant provision of FACEA, the regulated conduct in this case cannot be viewed as economic. Whether the relevant regulated activity under
In my view,
The second and third Lopez/Morrison factors, the presence of a jurisdictional requirement in the statute limiting the statute‘s reach to conduct with a connection to interstate commerce, and legislative findings on the activity‘s effect on interstate commerce, each also weigh against upholding
Section 248(a)(2) is also distinguishable from the Church Arson Prevention Act of 1996, which imposes federal criminal penalties for the destruction of “religious real property.”32 In rejecting a Commerce Clause challenge to the Act,33 the Tenth Circuit noted that it contained an express jurisdictional nexus34 and recited legislative findings that “arson or other destruction or vandalism of places of religious worship pose a serious national problem” that “warrant[s] Federal intervention.”35 The legislative history of the Church Arson Prevention Act also referenced a “broad range” of commercial activities in which churches engage, “including social services, educational and religious activities, the purchase and distribution of goods and services, civil participation, and the collection and distribution of funds for these and other activities across state lines.”36 Although Congress made specific commerce findings regarding religious real
Finally, the link between the regulated activity in this case and any effect on interstate commerce is far too attenuated to offset the other factors. The Supreme Court in Morrison made clear that “[t]he Constitution requires a distinction between what is truly national and what is truly local,” lest the commerce power engulf the general police power reserved to the States.37 Upholding
Even accepting that some religious organizations may offer commercial services, such as childcare, education, and the purchase and distribution of goods,
For these reasons and the reasons stated by the majority with respect to the absence of places of worship, I would reverse the district court‘s denial of summary judgment to defendants.