Jack B. Weinstein, Senior United States District Judge.
I. Introduction...423
II. Factual Background...425
A. Case Background...425
B. Prior Opinion on FACEA...425
C. Religion and Commerce...426
III. Law...428
A. Timeliness of Constitutional Challenge...428
C. Commerce Clause...432
IV. Application of Facts to Law...438
A. Timeliness of Constitutional Challenge...438
C. Distinguishing Morrison...440
D. Legislative Findings and Jurisdictional Nexus...441
V. Certification of Interlocutory Appeal...442
VI. Conclusion...444
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 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., ___ U.S. ___, 134 S.Ct. 2751, 189 L.Ed.2d 675 (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, 122 S.Ct. 2460, 153 L.Ed.2d 604 (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, 90 S.Ct. 1409, 25 L.Ed.2d 697 (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
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, 311 F.Supp.3d 514, 2018 WL 1916617, at *1-14 (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, 311 F.Supp.3d 514, 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 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, 120 S.Ct. 1740, 146 L.Ed.2d 658 (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
A comprehensive recitation of the facts is contained in the court's opinion of April 23, 2018. See Zhang I, 311 F.Supp.3d at 521-37, 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, 311 F.Supp.3d at 558-60, 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.
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.
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, 311 F.Supp.3d at ___, 2018 WL 1916617. It held that a broad interpretation of FACEA is necessary to avoid a serious constitutional question under the First Amendment.
Id., at 522-23, at *2.
A textual reading of the statute supports this conclusion:
Id., at 554-55, 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 564, at *39.
Id. (some internal citations omitted).
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 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
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 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 Co-Religionist 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:
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
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, 98 Idaho 155, 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 Fed.Appx. 99 (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 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
"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, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); cf. Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 550-51, 130 S.Ct. 2485, 177 L.Ed.2d 48 (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").
Congress passed FACEA in 1994 after the United States Supreme Court decided Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993), which restricted claims brought under 42 U.S.C. § 1985(3). See Zhang I, 311 F.Supp.3d at 552-53, 2018 WL 1916617, at *28. Bray limited protections for 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 abortion-related services.").
Introduced into this Act protecting women seeking abortion services was a provision protecting religion:
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:
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
139 Cong. Rec. S15660, 1993 WL 470962 (Nov. 3, 1993).
Senator Kennedy, a sponsor of FACEA responded:
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, 311 F.Supp.3d at 554-55, 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 text and constitutional concerns, be given such a limited interpretation. See Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 15, 67 S.Ct. 504, 91 S.Ct. 711 (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.
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.
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,
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, 115 S.Ct. 1624. The Court noted that its prior decisions — upholding regulation of wholly intrastate activity — concerned economic conduct. Id. at 559-60, 115 S.Ct. 1624. "Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." Id. at 560, 115 S.Ct. 1624 (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, 115 S.Ct. 1624. 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, 115 S.Ct. 1624.
The Lopez Court concluded:
Id. at 567, 115 S.Ct. 1624.
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, 120 S.Ct. 1740.
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, 120 S.Ct. 1740. Congress made significant findings tying the impact of gender-motivated violence to interstate commerce. Id. at 613-14, 120 S.Ct. 1740. The Court rejected Congress' reasoning:
Id. at 615, 120 S.Ct. 1740 (internal quotation marks and citations omitted).
Basing its decision partially on federalism principles, it declared:
Id. at 617-18, 120 S.Ct. 1740 (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, 63 S.Ct. 82, 87 S.Ct. 122 (1942) — upholding Congress' power to regulate the intrastate production of wheat — and Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) — granting Congress the power to outlaw private discrimination in places of public accommodation because of its affect on interstate commerce — are still good law. See Lopez, 514 U.S. at 557-58, 115 S.Ct. 1624 (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:
Gonzales v. Raich, 545 U.S. 1, 17, 125 S.Ct. 2195, 162 L.Ed.2d 1 (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, 125 S.Ct. 2195. "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, 125 S.Ct. 2195. Gonzales declared that "[w]hile congressional
Gonzales distinguished Lopez and Morrison. The Controlled Substance Act, regulated "quintessentially economic" activity — the production of a commodity — unlike the non-economic regulation in Morrison and Lopez. Id. 23-25, 125 S.Ct. 2195. "[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, 125 S.Ct. 2195. 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:
Id. at 1273-79. Defendants challenge FACEA on its face. Defs.' Br. at 4 ("[FACEA] should be stricken down as facially unconstitutional.").
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 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
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, 63 S.Ct. 870, 87 S.Ct. 1292 (1943).
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 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, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (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.
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 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:
United States v. Hill, 700 Fed.Appx. 235, 243 (4th Cir. 2017) (Wynn, J. dissenting) (internal citations omitted).
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.").
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, 93 S.Ct. 1278, 36 L.Ed.2d 16 (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 may be assessed facially. See supra Section II(C)(1); Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123, 1132 (1976) ("The constitutionality
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, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (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, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
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, 120 S.Ct. 1740, 146 L.Ed.2d 658 (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, 125 S.Ct. 2195, 162 L.Ed.2d 1 (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, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Guns in a school zone and violence against women, the Supreme Court tells us, are not economic. Id. at 561, 115 S.Ct. 1624; Morrison, 529 U.S. at 613, 120 S.Ct. 1740. Wheat production, marijuana cultivation, and abortion services are economic. See Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 S.Ct. 122 (1942); Gonzales, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 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
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, 125 S.Ct. 2195. 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 religious-economic 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, ___ U.S. ___, 136 S.Ct. 2074, 2080, 195 L.Ed.2d 456 (2016) ("[T]he sale of marijuana, is unquestionably an economic activity. It is, to be sure, a form of business that is illegal under 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, 311 F.Supp.3d at 521, 552-55, 2018 WL 1916617, at *1, *28-30. 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.
Defendants contend that United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) — striking down the civil remedies provision of VAWA — controls. VAWA and FACEA are similar in some respects: both prohibit violence and
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. at 609, 120 S.Ct. 1740 (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, 125 S.Ct. 2195, 162 L.Ed.2d 1 (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), available 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 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").
FACEA lacks two legislative indications that Congress has used to ensure constitutionally under the Commerce Clause: (1) legislative findings, and (2) a
In the instant case, where the relationship between commerce and religion is observable through judicial notice, explicit congressional findings are unneeded:
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).
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:
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, 311 F.Supp.3d at 552-55, 2018 WL 1916617, at *28-30. 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, 311 F.Supp.3d at 566, 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, 311 F.Supp.3d at 537-39, 2018 WL 1916617, at *15):
Plaintiff's' Claims
Cause of Action Plaintiffs Defendants Number of Issues to
be decided
Assault & Battery Zhang Jingrong; All Defendants 50
Zhou Yanhua; Zhang
Peng; Zhang Cuiping;
Wei Min; Lo
Kitsuen; Hu Yang;
Gao Jinying; Cui
Lina; Xu Ting
Bias Related All Plaintiffs All Defendants 65
Violence &
Intimidation (New
York Civil Rights
Law § 79-n)
Interference with Zhang Jingrong; All Defendants 50
Religious Freedom Zhou Yanhua, Lo
(18 U.S.C. § 248) Kitsuen; Wei Min;
Hu Yang; Gao
(Clinic Access Jinying; Cui Lina:
Statute) Zhang Peng; Li
Xiurong; Cao Lijun
Defendants' Counterclaims
Cause of Action Defendants Plaintiffs Number of Issues to
be decided
Assault & Battery All Defendants All plaintiffs 65
New York Civil Zirou Bian Hexiang; Zhou 4
Rights Law § 79-n Yanhua; Li Xiurong;
Xu Ting
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, 115 S.Ct. 1624, 131
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:
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).
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.
