DC Circuit Hears Oral Arguments From Abortion Protesters

On Wednesday, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments (audio of full oral arguments) in Frederick Douglass Foundation, Inc. v. DC.  In the case, a D.C. federal district court dismissed claims that enforcing ordinances prohibiting the defacing property against anti-abortion protesters but not against racial-justice protesters violated free exercise and free speech protections.  The abortion protesters sought to paint or chalk D.C. streets with the slogan "Black Pre-Born Lives Matter." (See prior posting.) An ADF press release has more on the case.

11th Circuit Rejects Nuclear Protesters' RFRA Defense

In United States v. Grady, (11th Cir., Nov. 22, 2021), the U.S. 11th Circuit Court of Appeals upheld the convictions of three members of the Plowshares movement, a Catholic protest organization opposed to nuclear weapons. Defendants were convicted for their illegal entry onto a Naval submarine base that was followed by a religious "symbolic disarmament" protest. The court rejected defendants' argument that their indictments should have been dismissed under the Religious Freedom Restoration Act, saying in part:

In this case, the parties agree that the defendants were exercising sincerely held religious beliefs, the government substantially burdened the defendants’ religious exercise, and the government has a compelling interest. Accordingly, the fourth prong in the RFRA analysis is the only prong in dispute in this appeal—whether the government met its burden of demonstrating that criminal prosecution of the defendants was the least-restrictive means of furthering its significant compelling interests in the safety and security of the naval base, naval base personnel, and naval base assets....

[I]n order to be a viable least-restrictive means for purposes of RFRA, the proposed alternative needed to accommodate both the religious exercise practiced in this case— unauthorized entry onto the naval base and destructive actions, including spray painting monuments, doors, and sidewalks, pouring human blood on doors and other areas, hammering on a static missile display, hanging banners and crime scene tape, as well as removing and partially destroying signage and monuments around the naval base—and simultaneously achieve the government’s compelling interests in the safety and security of the naval base, naval base assets, personnel, and critical operations....

[N]othing in RFRA supports destructive, national-security-compromising conduct as a means of religious exercise. 

2nd Circuit: Protesters' Sidewalk Tables Were Not A "Place of Worship" Under FACEA

A provision (18 USC §248) in the Freedom of Access to Clinic Entrances Act of 1994 (“FACEA”) prohibits intentionally injuring, intimidating, or interfering with anyone who is exercising 1st Amendment religious freedom rights “at a place of religious worship.”  In Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc., (2nd Cir., Oct. 14, 2021), the U.S. Second Circuit Court of Appeals held that "a place of religious worship" in the statute is limited to "a place recognized or dedicated as one primarily used for religious worship", and not merely any place where religion is practiced.  Applying this definition, the court concluded that five tables on the sidewalk in Flushing, Queens, New York where Falun Gong adherents passed out flyers and displayed posters were not a "place of religious worship." The court said in part:

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.

Judge Walker filed a concurring opinion arguing that 18 USC §248 exceeds Congress Commerce Clause power, saying in part:

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.

Courthouse News Service reports on the decision.

Naval Base Protesters May Not Raise RFRA or 1st Amendment Defenses

In United States v. Kelly, (SD GA, Oct. 11, 2019), a Georgia federal magistrate judge ruled that seven Catholics who are members of an activist group opposed to nuclear weapons cannot raise RFRA or First Amendment defenses in their trial for trespass and destruction of government property.  Defendants broke into a highly secured Naval Submarine Base and in protest of nuclear weapons poured blood on the ground, hung banners and painted messages. (See prior posting.)  The court said in part:

Here, the Court has already fully considered Defendants’ RFRA arguments in the course of ruling on Defendants’ motions to dismiss. In its ruling, the Court determined that the Government has shown a compelling interest and that it is utilizing the least restrictive means...., Because this determination has been made as a matter of law, and Defendants may not present a RFRA defense to the jury at trial....

Court Orders More Briefs On RFRA Defense By Peace Protesters

In an Order last week in United States v. Kelly, 2018 U.S. Dist. LEXIS 138195, (SD GA, Aug. 15, 2018), a Georgia federal magistrate judge instructed both sides to provide additional briefing on the "particularized issues raised by Defendants' RFRA defense" in the prosecution of peace activists for breaking into Naval Submarine Base Kings Bay. Defendants argue that their "symbolic disarmament" of nuclear weapons at the base was an exercise of their sincerely held Catholic beliefs.  In ordering additional briefs, the court said in part:

At the August 2, 2018 motions hearing, counsel for both the Government and Defendants represented to the Court that Defendants' RFRA claim as a defense to criminal prosecution was an issue of first impression and that the applicability of RFRA to federal criminal law was an open question.... Subsequent to the hearing, however, the Government filed Supplemental Briefing that acknowledged RFRA's applicability to criminal prosecutions and its availability as a defense.... The Government now contends that Defendants' actions ... were not religious in nature and ... even assuming they were, the Government contends it has a compelling interest in protecting Naval Submarine Base Kings Bay....

Brunswick News reports on the court's Order.

Doctor Says His Free Exercise Rights Are Infringed By Blocking Him From Assisting Protester

An unusual religious free exercise lawsuit was filed in a Virginia federal district court yesterday by Greg Gelburd, a physician who says that he continually practices his religious belief of providing medical assistance to those in need.  The complaint (full text) in Gelburd v. Christiansen, (WD VA, filed 6/16/2018), contends that the U.S. Forest Service is preventing him from providing medical assistance to a "tree sitting" protester who is attempting to block a pipeline from being constructed in the George Washington and Jefferson National Forest.  The protester, a woman who has become known as "Nutty", has, for the past six weeks, been preventing pipeline construction by occupying a "monopad" atop a tall pole in the pipeline path. Forest Service employees are attempting to end Nutty's protest by denying her food, water, various services and the ability to communicate with others. Dr. Gelburd claims that his rights under the Religious Freedom Restoration Act and the First Amendment's religion and speech clauses are infringed by the government's actions.  The Rutherford Institute issued a press release announcing the filing of the lawsuit.

Protester At Center of SCOTUS Decision On Military Base Protests Was Catholic Worker Movement Adherent

Yesterday the U.S. Supreme Court in United States v. Apel, (US Sup. Ct., Feb. 26, 2014), held that a federal statute which makes it a crime to re-enter a military installation after the base commander orders a person not to do so applies to a protest area at Vandenberg Air Force Base that is open to the public.  The Court describes John Dennis Apel, the protester involved in the case, as an antiwar activist. It says nothing about the religious basis for Apel's protests found in his involvement in the Catholic Worker Movement. Here is some insight into Apel's religious beliefs from a Dec. 2013 article reprinted on the Pacific Life Community's website:

[Apel] and a dedicated core of volunteers — including his wife of 15 years, Tensie — provide food and clothes to the community’s poor. They run a summer children’s program and a weekly free medical clinic.

The couple are devotees of the Catholic Worker movement, a social reform cause committed to social justice, pacifism and voluntary poverty that they’ve dedicated most of their adult lives to promoting.

They receive no salary — the couple and their two young children survive on his Social Security income, as well as donations and the charity of others.

For more than a dozen years, as part of Mr. Apel’s deep peace-oriented belief system, he has regularly stood outside the gates of Vandenberg, protesting what he believes is an immoral military mission. He has been arrested 15 times, and received “ban and bar” citations that restrict his ability to protest near the classified military installation.

Russia May Free Pussy Riot Band Members Early

To mark the 20th anniversary of the Russian Constitution, Russia's State Duma yesterday by a vote of 446-0 passed a broad prison amnesty bill applying to various categories of offenders and offenses.  Radio Free Europe reports that since the amnesty covers those sentenced for hooliganism, it apparently includes the two jailed members of the punk rock band Pussy Riot. In August 2012, the band members were arrested after they entered a nearly empty Christ the Savior Cathedral in Moscow and performed an obscene "punk prayer" in protest of the Russian Orthodox Church's political support for Vladimir Putin. (See prior posting.) Their sentences are up in March without the amnesty. The amnesty law goes into effect as soon as it is published in  "Rossiiskaya Gazeta," the government newspaper-- which is expected to happen today. Some suggest that the amnesty law is an attempt to bolster Russia's human rights image ahead of the upcoming Winter Olympics in Sochi.

UPDATE: CNN reports (Dec. 23) that the two Pussy Riot band members have been released from prison.