Certiorari Denied In Scientology Arbitration Case and Falun Gong Leafleting Case

Today's 48-page Order List from the U.S. Supreme Court on its opening day of the term includes the denial of review in two cases of interest:

Church of Scientology v. Bixler (Docket No. 22-60, cert. denied 10/3/2022): In the case, a California state appellate court held that former Church of Scientology members were not bound by their agreement to submit all disputes with the Church to the Church's Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the Church. (See prior posting.)

Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc. (Docket No. 21-1429, cert. denied 10/3/2022) and Chinese Anti-Cult World Alliance, Inc. v. Zhang Jinrong (Docket No. 21-1556, cert. denied 10/3/2022)- In the case the 2nd Circuit Court of Appeals held 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" under the Freedom of Access To Clinics Entrances Act that prohibits intentionally injuring, intimidating, or interfering with anyone who is exercising 1st Amendment religious freedom rights “at a place of religious worship.” In addition, the cross-petition for review raised the issue of the validity of the statute under the commerce clause. (See prior posting.)

Court Refuses To Dismiss Indictment In Tree of Life Synagogue Case

In United States v. Bowers, (WD PA, Oct. 15, 2020), a Pennsylvania federal district court refused to dismiss an indictment under the federal Hate Crimes Prevention Act and the Church Arson Act brought against defendant charged in the 2018 attack on Pittsburgh's Tree of Life Synagogue. (Full text of Superseding Indictment.) The court rejected both the facial and the as-applied challenge to the Hate Crimes Act. The court said in part:

Each federal court to have considered the constitutionality of § 249(a)(1) has found it to be a valid exercise of Congressional power under the Thirteenth Amendment....

[T]he congressional intent behind §249(a)(1) makes clear that Congress intended to prohibit violence on the basis of real or perceived religions that “were regarded as races at the time of the adoption of the [Reconstruction] amendments.”... [T]herefore ... §249(a)(1) includes protection for Jewish people in that they were considered a distinct race when the Thirteenth Amendment was-applied.

Upholding the constitutionality of the Church Arson Act against a facial attack, the court said in part:

Congress had a rational basis to conclude that the conduct regulated by § 247 substantially affects interstate commerce.

Responding to defendant's as-applied challenge, the court said in part:

The Defendant’s as-applied challenge requires consideration of a developed factual record and the application of the statute to those facts. Thus, it is premature to determine the as-applied issue at this time.

Workplace Hate Crime Meets Commerce Clause Threshold

In United States v. Hill, (4th Cir., June 13, 2019), the U.S. 4th Circuit Court of Appeals, in a 2-1 decision, held that the federal Hate Crimes Prevention Act can constitutionally be applied to the assault of a co-worker who was preparing packages for interstate sale and shipment.  Defendant boastfully admitted to assaulting the coworker because of his sexual orientation. Finding that the commerce clause was broad enough to authorize federal coverage in this case, the majority said in part:

[W]hen Congress may regulate an economic or commercial activity, it also may regulate violent conduct that interferes with or affects that activity.

Judge Agee dissented, arguing:

To allow Congress to exercise its Commerce Clause power over the noneconomic offense of a bias-motived punch would allow Congress to exercise its Commerce Clause power based on such indirect—and often, as here, non-existent—connection to commerce that it converts the Clause into a federal police power.

DOJ Drops Appeal In FGM Case; Proposes Amendments To Federal Statutory Ban

AP reports that the Department of Justice has dropped its appeal of the court's decision in United States v. Nagarwala. In the case, a Michigan federal district court held the federal ban on female genital mutilation (18 USC Sec. 116(a)) unconstitutional under the Commerce Clause, saying it is not a commercial activity; it is a local criminal activity which should be left to the states to regulate. (See prior posting.) In a letter (full text) sent to Congress last Wednesday, Solicitor General Noel Francisco proposed amendments to the the federal law needed to assure its constitutionality:

[C]oncurrently with submitting this letter, the Department is submitting to Congress a legislative proposal that would amend Section 116(a) to provide that FGM is a federal crime when ( 1) the defendant or victim travels in or uses a channel or instrumentality of interstate or foreign commerce in furtherance of the FGM; (2) the defendant uses a means, channel, facility, or instrumentality of interstate commerce in connection with the FGM; (3) a payment is made in or affecting interstate or foreign commerce in furtherance of the FGM; (4) an offer or other communication is made in or affecting interstate or foreign commerce in furtherance of the FGM; (5) the conduct occurs within the United States' special maritime and territorial jurisdiction, or within the District of Columbia or a U.S. territory; or (6) the FGM otherwise occurs in or affects interstate or foreign commerce. In our view, adding these provisions would ensure that, in every prosecution under the statute, there is a nexus to interstate commerce.

The letter to the Senate Judiciary Committee was sent in compliance with 28 USC Sec. 530D which requires DOJ to report to Congress when it, among other things, decides not to appeal a decision affecting the constitutionality of a federal statute.

Court Holds Federal Female Genital Mutilation Statute Unconstitutional

A Michigan federal district court today held, on federalism grounds, that the federal Female Genital Mutilation statute, 18 USC 116, is unconstitutional. The case involves the prosecution of medical personnel and of the mothers of minor girls in the small, Indian-Muslim Dawoodi Bohra community. (See prior posting.)  In United States v. Nagarwala, (ED MI, Nov. 20, 2018), the court rejected the government's argument that the statute can be supported as an exercise of Congress' treaty power or its power to regulate interstate commerce.

The International Covenant on Civil and Political Rights which Congress ratified in 1992 (subject to certain understandings and reservations) requires the adoption of laws to protect the rights of minors. One of the understandings imposed by Congress was that ratification would not change the relative roles of the federal and state governments. The court said in part:

Congress overstepped its bounds in  legislating to prohibit FGM.... FGM is a "local criminal activity" which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.

In rejecting the government's Commerce Clause arguments, the court said in part:

In the present case, the government has failed to show that FGM is a commercial activity. It claims that “[l]ike child pornography and marijuana, an interstate market exists for FGM.” ... Yet the government’s only evidence of such a market is the fact that it has alleged nine FGM victims in the present case, five of whom were brought to Michigan from neighboring states.... This is not a market, but a small number of alleged victims. If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute? The government’s attempt to show that there is an interstate market for FGM falls flat; its comparison to the multi-billion-dollar interstate markets for marijuana and pornography is unsupported and unconvincing....

Finally, the government asserts that only a federal statute can deal with FGM because, as Congress asserted in its fourth finding, “the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control.”... This argument fails for at least two reasons. First, the Commerce Clause allows Congress to regulate commercial activity that has a substantial effect on interstate commerce, not activity that is “beyond the ability of any single State or local jurisdiction to control.” Second, the government informs the Court that twenty-seven states have passed FGM statutes ... and nothing prevents the others from doing so.

Detroit News reports on the decision.

FACEA's Protection of Churches Does Not Violate Commerce Clause

In Zhang v. Chinese Anti-Cult World Alliance, (ED NY, May 30, 2018), a New York federal district court held that Congress did not exceed its commerce clause powers in passing the portion of the Freedom of Access to Clinic Entrances Act that protects against interference with access to places of religious worship. the court said in part:

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 operating over the internet draw students and billions of dollars in revenue from all over the country. Religion substantially contributes to our gross national product. Congress could reasonably have concluded that violence and intimidation to keep people out of houses of worship would substantially adversely affect interstate commerce. FACEA is constitutional in its design to protect that national commerce.

Courthouse News Service reports on the decision.