Friday, October 15, 2021

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.