International Soc. for Krishna Consciousness, Inc. v. Barber

Decision Date03 June 1981
Docket NumberNo. 1046,D,1046
Citation650 F.2d 430
PartiesINTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., and, on Behalf of Themselves and All International Society for Krishna Consciousness Members, and Alan Attias, a/k/a Aja Dasa, and Kenneth L. Solomon, a/k/a Kesihanta, Plaintiffs-Appellants, v. J. Roger BARBER, in his official capacity as Commissioner of the Department of Agriculture and Markets of the State of New York, and Thomas G. Young, Director of the New York State Industrial Exhibit Authority, and James G. Garlick, Acting Director of the New York State Industrial Exhibit Authority, Defendants- Appellees. ocket 80-7709.
CourtU.S. Court of Appeals — Second Circuit

Robert C. Moest, Los Angeles, Cal. (Larry J. Roberts, David Grosz, Barry A. Fisher Law Offices, Los Angeles, Cal., Faith A. Seidenberg, Seidenberg & Strunk, Syracuse, N.Y., of counsel), for plaintiffs-appellants.

Thomas J. Maroney, Asst. Atty. Gen., Syracuse, N.Y. (Robert Abrams, Atty. Gen., of the State of New York, Shirley Adelson Siegel, Sol. Gen., George M. Levy, Asst. Atty. Gen., New York City, of counsel), for defendants-appellees J. Roger Barber and Thomas G. Young, as Director of the New York State Fair.

Bradley J. Carr, Syracuse, N.Y. (Charles R. Welch, Welch, Welch & Carr, Syracuse, N.Y., of counsel), for defendants-appellees James G. Garlick and Thomas G. Young as Manager of the New York State Industrial Exhibit Authority.

Steven R. Shapiro, New York City (Linda R. Blumkin, Lois Herzeca, New York City, of counsel), as amicus curiae for the New York Civil Liberties Union.

Before KAUFMAN and OAKES, Circuit Judges, and WERKER, District Judge. *

IRVING R. KAUFMAN, Circuit Judge:

Tolerance of the unorthodox and unpopular is the bellwether of a society's spiritual strength. A community sufficiently confident of its moral and political underpinnings trusts its members to employ reasoned and considered judgment in evaluating novel theories that seek to explain the meaning and purpose of life. The coercive mechanisms of restraint, violence, and suppression are not required to confront strange ideologies and unfamiliar rituals, however obnoxious they may be. This freedom to explore diverse political and religious doctrines, derived from the establishment and free exercise clauses of the First Amendment, permits our citizens to follow the dictates of conscience. By fostering this voluntarism, our nation is strengthened, for the people respect a government that treats its charges as free-willed, discerning moral beings. Our republic prides itself on the enormous diversity of religious and political beliefs which have been able to find acceptance and toleration on our shores. United States v. Seeger, 326 F.2d 846, 853 (2d Cir. 1964), aff'd, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965).

Our openness is legitimately restricted only when underlying motives of deception and fraud hide behind a facade of conscience and religious belief. First Amendment freedoms ought not be debased by including these practices within their rubric. Courts, recognizing the inherent constitutional difficulties where a secular state questions the good faith of an individual voicing political and religious ideals, require the government to tailor its restraints narrowly. In this case, the State of New York has attempted to prevent fraud at its annual New York State Fair by forbidding peripatetic solicitations. This prohibition effectively prevents the members of an unorthodox Eastern religion, the International Society for Krishna Consciousness (ISKCON, Krishna), from engaging in the religious ritual of sankirtan. This practice requires roving devotees to approach the uninitiated, to inform them of the precepts of the religion, and to seek monetary donations. Notwithstanding evidence that fraud is occasionally involved in the practice of sankirtan, the State has failed to show that methods less restrictive than an outright prohibition are ineffective in checking misconduct. Accordingly, we hold that the State unconstitutionally interfered with the free exercise rights of ISKCON members by enacting and enforcing its anti-solicitation rule.


Courts temporal are not ideally suited to resolve problems that originate in the spiritual realm. But, in determining whether a governmental enactment unreasonably interferes with the free exercise of religion, a threshold inquiry into the "religious" aspect of particular beliefs and practices cannot be avoided. See L. Pfeffer, Church State and Freedom 607 (rev. ed. 1967); Note, Toward a Constitutional Definition of Religion, 91 Harv.L.Rev. 1056, 1056 (1978) (hereinafter Note, Religion). We recognize our limited expertise in this endeavor and proceed carefully to outline the relevant facts necessary for mediating the instant confrontation between the dictates of religious conscience and the pragmatic needs of the state.


The International Society for Krishna Consciousness (ISKCON), plaintiff in this case, is a not-for-profit New York corporation, one of many worldwide Krishna Consciousness associations. The Krishna movement in this country was founded in the mid-1960s, when A.C. Bhaktivedanta Swami Prabhupada left India at the behest of his Spiritual Master to open a religious center in New York City. Krishna Consciousness falls under the broad theological umbrella of the Vaishnava Tradition of Bhakti Hinduism, formalized in the ninth century in Southern India. The canonical sources for the Hindu faith are the Vedic scriptures, and all practicing Hindus believe in their authenticity. The Veda consists of two parts: Samhita, which deals with ritual and contains the incantations directed to the Vedic deities; and the Upanishadas, which is the metaphysical interpretation of the ritualistic scripture. 1 Secondary texts and commentaries, known as smriti, include the Bhagavad-gita and Srimad Bhagavatam, compiled 500 and 1500 years after the Vedic scriptures, respectively.

Hinduism is an extraordinarily diverse tradition; embracing many sects and movements. The Bhakti movement, based on devotion to a personally chosen deity, can be traced to the times of the Bhagavad-gita. Sankirtan, an aspect of which is at issue in this case, was first identified as a religious ritual in the Srimad Bhagavatam, during the ninth century A.D. In the broad Bhakti tradition, sankirtan involved congregational chanting of the name of the deity or that of a teacher and included highly stylized thespian and dancing action. Sankirtan was intended to bring a devotee closer to God and invoke others in such worship. Other forms of observance include Puja, a worship of a deity or its image through ritualistic offerings, and chanting in a temple. When a temple priest performs a particular ritual for lay members of a sect, donations are offered.

Krishna Consciousness is an outgrowth of the Chaitanya movement of Bengal, which derives from the Bhakti tradition. Bhaktiedanta Swami Prabhupada was the eleventh in a chain of disciples of Sage Chaitanya, who lived from 1486-1533 and was understood by his followers to be an incarnation of God, or Krsna. Lord Chaitanya made the chanting of the Hare Krishna mantra central to sankirtan. He opened up the process of spiritual liberation to the masses by bringing into his movement people who were outside the standard Hindu community and the caste system and proclaimed that one day his name will be chanted in every town and village of the world. His biography, Sri Caitanya Caritamrta, is considered part of the scriptures by the Krishna Consciousness Movement.

Devotees of Krishna Consciousness follow the rituals of the Chaitanya movement. They surrender their material possessions, change their diet, lifestyle and physical appearance, and devote themselves to service of their Lord. Many devotees attend frequent temple services and spend considerable periods of time ritualistically chanting with the aid of their prayer beads (japa). Sankirtan is also an essential part of the Krishna faith. Under the Chaitanya tradition, the goal of this practice is to invoke the community in worship, carrying the name of God to as many people as possible. The solicitation of contributions and the distribution of literature is permitted, but, in doing so, the devotees are supposed to use "true and gentle speech," first identifying their religious order and spiritual leader. Moreover, devotees cannot touch potential donors without their consent.

The American Krishna Consciousness movement is more aggressive in its practice of sankirtan. To this sect, sankirtan calls for broadcasting the glories of the Lord by any means possible. Nonbelievers, this sect maintains, are spiritually impure and can only achieve spiritual rebirth by surrendering their material possessions and recognizing Krsna as the source and provider of both the spiritual and material worlds. The American movement has stressed the importance of solicitations and purportedly teaches that its devotees can best serve their spiritual masters if they conduct themselves as ideal persons, spreading the religion's teachings by example. To contact as many nonbelievers as possible, ISKCON members frequently shed their alien robes, remove the ceremonial paint worn on their face, don Western clothing and wigs, and humbly approach individuals in various public forums airports, bus stations, state fairs. Communication is initiated by handing a person a small gift and then attempting to sell religious literature or phonographic recordings.


This case arises because ISKCON seeks to perform the peripatetic ritual of sankirtan at the New York State Fair. The Fair is an annual event held in late August and early September on fairgrounds owned by the State in the town of Geddes, New York, near Syracuse. The Fair is a cooperative enterprise between two public agencies: the Division of the State Fair of the State Department of Agriculture and Markets...

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