Somewhat puzzling D.C. Cir. follow-up on the Henderson T-shirt

[Truthserum]

Marty's approach to the t-shirt sales case warrants a clear and careful
response.

I would have thought it undisputed, as a matter of statutory construction of
RFRA, that the statute provides judicial relief against a government action
that flatly prohibits an act that is motivated (not mandated) by the tenets
of one's religious faith.  And, I would have also thought it undisputed that
RFRA provides judicial relief against government actions that flatly
prohibit an act that is not central to one's religious faith.  Perhaps what
either confuses me, or poor ol' Judge Randolph, is the question, does the
RFRA protect the exercise of religion qua religion, or does it protect
individual religious practices that, taken together, like property's bundle
of sticks, make up the exercise of religion?

I suppose that Henderson's sale of t-shirts bearing religious messages is as
good an example as any other one.  It doesn't appear to be a claim in that
case that such sales are mandated by the tenets of Henderson's religious
faith.  And it appears beyond peradventure that Henderson's sale of t-shirts
bearing religious messages is motivated by his religious faith.  Nor does it
appear that Henderson claims that his t-shirt sales are central to his
religious faith.  But, again, it appears to be undisputed that those sales
are related to a central tenet of his religious faith, namely the
fulfillment of the Great Commission.

With all those considerations set out, I will confess that, being something
of an innocent, even after years of litigating these cases, I would have
thought the appropriate approach would have involved an orderly inquiry
something like the following:

1)    what is the affected activity?

2)    is the affected activity motivated by the claimant's religious faith?

3)    does the action of the government, about which a complaint is being
made, substantially burden the affected activity?

4)    if the action does substantially burden the affected activity, is
there a compelling government interest underlying the action?

5)    if there is a compelling government interest, is the complained of
action the least restrictive means available to secure the government's
compelling interest?

Am I wrong about that basic approach?  If a significant point of
deliberation has been omitted by me, I would appreciate being told about it.

Assuming that the analysis set out above is essentially right, I would have
thought that the Henderson case would be troubling even to Marty because the
D.C. Circuit failed to grasp and adequately address points one, two and
three (having stopped at point three, the circuit court never considered
points four and five).

The affected activity is not "the distribution of the Gospel by all
available means."  Instead, it is the sale of t-shirts bearing religious
messages.  That is the activity Henderson formerly engaged in, that is the
activity that will cause him to lose his demonstration permit (required to
conduct his evangelistic outreaches on the Mall), and that is the activity
for which he seeks judicial relief.  In this respect, I am contending for an
approach that parallels the one taken in public forum cases, where the
identity of the forum is often key, but where the Court has consistently
insisted that it is important to identify with particularity the forum to
which the speaker seeks access, rather than generalizing to some other
category.

So, is Henderson's sale of t-shirts bearing religious messages motivated by
his religious faith?  The district court concluded that it was.  The court
of appeals did not disagree with the district court, and there would be no
basis in the record on which it could rest such a contrary determination.

Having concluded that a practice motivated by religion was at stake, it was
appropriate for the Court next to proceed to the question, does the action
of the government substantially burden the religious practice?  But it is
here that the D.C. Circuit's opinion and its subsequent opinion denying
rehearing begins to take on the appearance of trainwreck.

The district court had concluded that the ban on t-shirt sales was not a
substantial burden on Henderson's religion because, as the Government had
argued, and as the Court of Appeals had already suggested to other
complainants, he could still give away his t-shirts for free on the Mall:
"Applying that principle here, since plaintiffs may give away their
message-bearing t-shirts for free, the amended regulation does not impose an
impermissible burden on plaintiffs' rights under RFRA. If plaintiffs are
unable to disseminate their message by t-shirts on federal parkland in
Washington, DC, it is not on the basis that the regulation bars the
distribution of message- bearing t-shirts, but on the basis that plaintiffs
lack the financial resources to distribute their t-shirts for free."

Affirming, the Court of Appeals explained:

"Nor does the regulation 'significantly inhibit or constrain conduct or
expression that manifests some central tenet of [Henderson's or Phillips's]
individual beliefs.' Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. [*17]
1995). Plaintiffs have not treated selling t-shirts on the Mall as rising to
that level of significance in their religion. Further, plaintiffs have
merely alleged that it is their vocation to spread the gospel by 'all
available means.' Because the Park Service's ban on sales on the Mall is at
most a restriction on one of a multitude of means, 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."

In the "somewhat puzzling" opinion accompanying the order denying rehearing
and the suggestion of rehearing en banc, the panel concluded that the
amendment of RFRA, accomplished by the Congress' enactment of RLUIPA, did
not affect the outcome of the t-shirt challenge:

"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. s 2000cc-5(7)(A), incorporated by 42 U.S.C. s
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."

Here is the point where the significance of the DC Circuit's trainwreck
lies.  In its adoption of RLUIPA, Congress made explicit its rejection
centrality analysis.  The Supreme Court had already rejected centrality
analysis, as we explained to the DC Circuit in our failed petition for
rehearing:
In Employment Div. v. Smith,494 U.S. 872 (1990), the Supreme Court abandoned
or noted its own prior abandonment of the "centrality" inquiry. Writing for
the majority, Justice Scalia noted, it "is not within the judicial ken to
question the centrality of particular beliefs or practices to a faith, or
the validity of particular litigants' interpretations of those creeds." 494
U.S. at 887 (internal quotation marks and citation omitted). That
incompetence of inquiry, the majority explained, had led the Court,
"[r]epeatedly and in many different contexts, [to] warn[] that courts must
not presume to determine the place of a particular belief in a religion or
the plausibility of a religious claim." Id.

The majority, moreover, was not alone in the expression of the view that
"centrality" was an inquiry beyond the competence of the judiciary. Justice
O'Connor stated, "I agree with the Court . . . [that] 'it is not within the
judicial ken to question the centrality of particular beliefs or practices
to a faith.'" 494 U.S at 906 (O'Connor, J., concurring) (quoting Hernandez
v. Commissioner, 490 U.S. 680, 699 (1989)). And, in dissent, Justice
Blackmun agreed "that courts should refrain from delving into questions
whether, as a matter of religious doctrine, a particular practice is
'central' to the religion." 490 U.S. at 919 (Blackmun, J., dissenting).

Do we all agree, under RFRA as amended that it would be clear error if the
panel had said something such as, "we must determine whether the sale of
t-shirts is a practice central to Henderson's religion"?  And yet, in the
opinion on the order denying rehearing, Judge Randolph says, "we can decide
whether a particular burden on a particular practice is substantial by
inquiring into the centrality of that practice to Henderson's faith."  I
suppose that there are more instances of starker defiance of law in the
decisions of judges somewhere, just as the author of Casey at Bat was sure
that somewhere "hearts are light" but like Casey, Judge Randolph wiffed this
one in a big way.

Jim "Whose been Watering the Tree of Liberty" Henderson

Senior Counsel

ACLJ






-----Original Message-----
From: Law & Religion issues for Law Academics
[mailto:RELIGIONLAW at listserv.ucla.edu]On Behalf Of Lederman, Marty
Sent: Friday, October 05, 2001 2:42 PM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: Somewhat puzzling D.C. Cir. follow-up on the Henderson
T-shirt ...


Peter Eliasberg accuses the DC Circuit of making a "blithe assumption that
giving away T-Shirts is a viable alternative form of communication."

Without getting into the question whether giving away t-shirts (as opposed
to selling them) is a "viable" form of communication, I would note that the
question under RFRA is whether the particular Park Service Regulation in
question "substantially burdens" plaintiffs' religious exercise.  That
regulation prohibits all sales of t-shirts on the National Mall.  Even
assuming, as they allege, that plaintiffs have "a religious vocation to
communicate by all available means the message of the Gospel," nevertheless
the Park Service reg merely restricts them from doing so in one discrete,
and quite limited, manner.  As the original panel opinion notes, "[b]ecause
the Park Service's ban on sales on the Mall is at most a restriction on one
of a multitude of means, 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. See Weir v. Nix, 114 F.3d 817 (8th Cir.
1997) (considering alternat!
ives in determining whether burden was "substantial"); Bryant, 46 F.3d 948
(no "substantial burden" where alternatives were available)."   Peter's
point, I take it, is that plaintiffs cannot be expected to give the t-shirts
away for free.  Even so, they can sell the t-shirts in numerous other public
places, including (I suspect) areas adjoining the Mall, and they remain free
to communicate the message of the Gospel *on the Mall* in other significant
ways that one would suspect are much more effective than selling t-shirts --
e.g., by preaching it, or by wearing the t-shirts in question.

I would add that, even if the regulation can be said to substnatially burden
plainitffs' religious exercise, plaintiffs would read RFRA to give them a
right to engage in religious speech in a context where others may not engage
in analogous or comparable nonreligious speech.  Such a preference for
religious speech over nonreligious speech would violate the Free Speech
Clause, and possibly the Establishment Clause, as well.  See, e.g.; Heffron;
ACLU v. Allegheny; Prince v. Massachusetts; Scalia's opinion in Pinette, 515
U.S. at 766.  That's why the Senate and House Reports on RFRA indicate that
RFRA should not be construed to provide any preferences to religious
expression with respect to reasonable time, place and manner restrictions on
speech.

[Please note that, although in the course of my work I often deal with RFRA
and RLUIPA issues at the Department of Justice, I was in no way involved in
the U.S. Attorney's handling of the Henderson case; I have no idea whether
the views expressed above are consistent with those advanced by the United
States in the case; and the views I express do not necessarily reflect the
views of DOJ, the Park Service, or the United States.]


Marty Lederman (in my personal capacity)

-----Original Message-----
From: Peliasberg at AOL.COM [mailto:Peliasberg at AOL.COM]
Sent: Friday, October 05, 2001 1:39 PM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: Somewhat puzzling D.C. Cir. follow-up on the Henderson
T-shirt ...


As always, the Court's blithe assumption that giving away T-Shirts is a
viable alternative form of communication, seems to me incorrect.  But that
is
not the first time the DC Circuit, or other other courts, have made that
misguided assumption.
Peter

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