Somewhat puzzling D.C. Cir. follow-up on the Henderson T-shirt
sales / RFRA case
volokh at mail.law.ucla.edu
Thu Oct 4 19:54:46 PDT 2001
Somewhat puzzling D.C. Cir. follow-up on the Henderson T-shirt sales /
70B, an amendment issued in response to a petition for rehearing:
Before: Henderson, Randolph, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: The petition for rehearing di- rects us to
amendments of the Religious Freedom
Restora- tion Act (RFRA), 42 U.S.C. § 2000bb et seq., enacted a year ago,
but not mentioned by either
side when the case was last before us. The petition argues that the
amendments render erroneous our decision sustaining, as against a claim
under RFRA, the National Park Service's regulation prohibiting the sale of
t-shirts on the National Mall.
RFRA had defined "exercise of religion" as "the exercise of religion under
the First Amendment to the
Constitution." 42 U.S.C. § 2000bb-2(4) (1999). The Religious Land Use and
Institutionalized Persons Act
(RLUIPA), Pub. L. No. 106-274, §§ 7-8, 114 Stat. 803, 806 (2000), altered
the defini- tion to mean "any
exercise of religion, whether or not com- pelled by, or central to, a system
of religious belief." 42 U.S.C. §
2000cc-5(7)(A), incorporated by 42 U.S.C. § 2000bb-2(4).
The amendments remove the doubt expressed in our opin- ion, see Henderson v.
Kennedy, 253 F.3d 12,
16 (D.C. Cir. 2001), that the portion of RFRA remaining after City of Boerne
v. Flores, 521 U.S. 507
(1997)-the portion, that is, applicable to the federal government (and not
enacted pursu- ant to § 5 of the
Fourteenth Amendment)-survived the Supreme Court's decision striking down
the statute as applied to the
The amendments did not alter RFRA's basic prohibition that the "[g]overnment
shall not substantially
burden a per- son's exercise of religion." 42 U.S.C. § 2000bb-1(a). See also
Henderson, 253 F.3d at 15;
Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001); Murphy v. Zoning
Comm'n of the Town of New Milford, 148 F. Supp. 2d 173, 188 (D. Conn. 2001).
Our opinion assumed that plaintiffs Henderson and Phillips wanted to sell
t-shirts on the Mall because of their religious beliefs. Our focus was on
whether the Park Service regulation imposed a "substantial burden" on their
exercise of religion. See Henderson, 253 F.3d at 16-17. In reaching our
judgment we examined the importance of selling t-shirts on the Mall to the
plaintiffs. Our conclusion was this: "Because the Park Service's ban on
sales on the Mall is at most a restriction on one of a
multitude of means [by which petition- ers may engage in their vocation to
spread the gospel], it is not a substantial burden on their vocation.
Plaintiffs can still distribute t-shirts for free on the Mall, or sell them
on streets surrounding the Mall." Id. at 17. That conclusion is unaffected
by the amendments of RFRA. Although the amendments extended the protections
of RFRA to "any exercise of religion, whether or not compelled by, or
central to, a system of religious belief," 42 U.S.C. § 2000cc-5(7)(A),
incorporated by 42 U.S.C. § 2000bb-2(4), the amendments did not alter the
propriety of inquiring into the importance of a religious practice when
assessing whether a substantial burden exists. The petition for rehearing is
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