Henderson v. Kennedy

Decision Date26 June 2001
Docket NumberNo. 00-5070 and N,00-5070 and N
Parties(D.C. Cir. 2001) Augustine David Henderson, Appellant v. Roger A. Kennedy, et al., Appellees o. 00-5071
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (95cv00850) (95cv01081)

James M. Henderson, Sr. argued the cause and filed the briefs for appellant.

Marina Utgoff Braswell, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Wilma A. Lewis, U.S. Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: Henderson, Randolph, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

Plaintiffs Henderson and Phillips allege that they are evangelical Christians. They want to sell t-shirts on the National Mall--a practice presently prohibited by a regulation of the National Park Service. Initially they claimed that the Free Speech Clause of the First Amendment guaranteed them this right. When we ruled against that claim in another case, they amended their complaints to add, among other claims, causes of action based on the Religious Freedom Restoration Act and the Equal Protection component of the Due Process Clause. For the reasons that follow, we affirm the district court's grant of summary judgment in favor of the government.


The Park Service's regulation, promulgated in 1995, flatly prohibits the sale of goods in designated sections of the National Mall such as the areas immediately surrounding the Lincoln Memorial and the Washington Monument. 36 C.F.R. 7.96(k)(2). In other Mall areas, during "special events or demonstrations," the sale of "books, newspapers, leaflets, pamphlets, buttons and bumper stickers" is permitted. Id. Before this regulation, t-shirts could be sold in conjunction with demonstrations or special events. But "excessive commercialism" had "degraded aesthetic values" and converted much of the Mall area into a "flea market." National Capital Region Parks; Sales, 59 Fed. Reg. 25,855, 25,857 (May 18, 1994). The Park Service therefore decided to ban certain commercial transactions from the Mall, including the sale of t-shirts. National Capital Region Parks; Special Regulations, 60 Fed. Reg. 17,639 (Apr. 8, 1995).

Lawsuits challenging the regulation included one brought by seven non-profit organizations that had been selling t-shirts on the Mall, and separate pro se complaints by Henderson and Phillips. See Friends of the Vietnam Veterans Memorial v. Kennedy, 899 F. Supp. 680 (D.D.C. 1995) ("Friends I"), rev'd, 116 F.3d 495 (D.C. Cir. 1997) ("Friends II"), on remand, 984 F. Supp. 18 (D.D.C. 1997) ("Friends III"), rev'd sub nom. Henderson v. Stanton, 172 F.3d 919 (table), 1998 WL 886989 (D.C. Cir. 1998) (unpublished opinion) ("Henderson III"); Henderson III, on remand, 76 F. Supp. 2d 10 (D.D.C. 1999) ("Henderson IV").1 The suits alleged that the ban on the sale of t-shirts abridged the freedom of speech in violation of the First Amendment.

The International Society of Krishna Consciousness (ISKCON) also brought an action claiming, among other things, that an earlier Park Service regulation violated the First Amendment to the extent that it prohibited the sale of audio tapes and religious beads on the Mall. Our decision, rendered in August 1995, sustained the regulation's ban on the sale of beads and audio tapes. ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949 (D.C. Cir. 1995). Nonetheless, the district court later granted summary judgment in favor of the non-profit organizations. Friends I, 899 F. Supp. at 688. The district court reasoned that message-bearing t-shirts were "a unique and especially effective means" of communicating a viewpoint, id. at 684, and that the Park Service's allowing other forms of commercial activity on the Mall undercut the rationale of its ban. Id. at 686. We reversed, holding that the case was controlled by ISKCON, and that the regulation did not violate the First Amendment. Friends II, 116 F.3d 495.

After Friends II, counsel for Henderson and Phillips entered an appearance, and moved for leave to file an amended complaint, seeking to add equal protection claims and claims under the Religious Freedom Restoration Act (RFRA) and the Administrative Procedure Act. Friends III, 984 F. Supp. at 20. The district court initially granted leave to amend, but reconsidered, and denied leave on the ground that the amendments would be futile in light of Friends II. Id. In Henderson III, an unpublished opinion, we reversed because the court had not explained its holding. 172 F.3d 919 (table).

Henderson and Phillips then amended their complaints to add the new causes of action and to allege that they "hold[ ] the sincere religious belief that [they are] obliged by the Great Commission to preach the good news, the gospel, of salvation through Jesus Christ to the whole world." The amended complaints also alleged that they have "a religious vocation to communicate by all available means the message of the Gospel." As part of their religious "outreaches" on the National Mall, both had sold t-shirts in the past, and both want to continue doing so. To that end, they sought declaratory and injunctive relief. The government moved to dismiss or, in the alternative, for summary judgment. Both sides submitted declarations in support of their pleadings. The district court, apparently treating the government's motion as one for summary judgment, granted it. Henderson IV, 76 F. Supp. 2d at 16.


We begin with plaintiffs' claims that the regulation's ban on selling t-shirts on the Mall violates their rights under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb et seq. Congress enacted RFRA in response to Employment Division v. Smith, 494 U.S. 872 (1990). The Smith Court held that the Free Exercise Clause of the First Amendment--"Congress shall make no law ... prohibiting the free exercise" of religion--did not exempt individuals from complying with "neutral, generally applicable" laws, even if the laws substantially burdened religious exercise. 494 U.S. at 881. In RFRA Congress sought to overturn the Smith decision by restoring the test set forth in Sherbert v. Verner, 374 U.S. 398 (1963), as the standard for Free Exercise challenges to laws of general applicability. See City of Boerne v. Flores, 521 U.S. 507, 512-13 (1997); Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 157 (1997). Under Sherbert, the question had been whether the law "substantially burdened" a religious practice and, if so, whether the burden was justified by a compelling governmental interest. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972). RFRA incorporated the "substantial burden" standard. It prohibited any "branch, department, agency, instrumentality, [or] official" of a state or federal government or "other persons acting under color of law" from "substantially burden[ing] a person's exercise of religion" unless the government demonstrated that the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that ... interest." 42 U.S.C. 2000bb-1. Branch Ministries v. Rossotti, 211 F.3d 137, 144 (D.C. Cir. 2000).

City of Boerne struck down the portion of RFRA regulating state and local governments because Congress had exceeded its power under 5 of the Fourteenth Amendment. 521 U.S. 507. RFRA was not "remedial, preventive legislation." Id. at 532. It did not enforce the Free Exercise Clause. Id. at 519, 532. Instead Congress had attempted to alter the Supreme Court's interpretation of that constitutional provision.

An initial question in light of City of Boerne is whether the remainder of RFRA--the portion applicable to the federal government (and not enacted pursuant to the 5 of the Fourteenth Amendment)--survives the Court's decision. If severance of the invalid part of a statute results in legislation that it is evident Congress would not have enacted, then the entire statute should be considered invalid. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684-86 (1987); United States v. Raines, 362 U.S. 17, 23 (1960). We mentioned this issue at oral argument, but the government failed to argue the point in its brief. And so we will leave to another day the question whether RFRA is severable, as the Eighth and Tenth Circuits believe. See Kikumura v. Hurley, 242 F.3d 950, 959 (10th Cir. 2001); In re Young, 141 F.3d 854, 858-59 (8th Cir. 1998).

As to the validity of the regulation under RFRA, we start with the proposition that the regulation is neutral; it is generally applicable and it does not discriminate among viewpoints. Our decision in ISKCON settled as much. 61 F.3d at 957-58. Under RFRA, then, the question is: does the ban on selling t-shirts on the Mall "substantially burden" plaintiffs' exercise of their religion? The answer is clearly no. We are not aware of any religious group that has as one of its tenets selling t-shirts on the National Mall, even if the t-shirts bear a religious message. Plaintiffs do not claim to belong to any such group, nor do they allege that selling t-shirts in that particular area of the District of Columbia is central to the exercise of their religion. In their identical declarations, submitted in opposition to summary judgment, Henderson and Phillips stated only that they "hold the sincere religious belief that [they] are obligated by the Great Commission to preach the good news, the gospel, of salvation through Jesus Christ to the whole world ... by all available means...." With respect to t-shirts, they stated that in "obedience to [their] vocation, [they] have distributed at a price publications and t-shirts that [they have] written or designed, or containing content that conforms with [their] beliefs,...

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