Zhang Jingrong v. Chinese Anti-Cult World Alliance, 15–CV–1046
| Citation | 314 F.Supp.3d 420 |
| Decision Date | 30 May 2018 |
| Docket Number | 15–CV–1046 |
| Parties | ZHANG JINGRONG, Zhou Yanhua, Zhang Peng, Zhang Cuiping, Wei Min, Lo Kitsuen, Cao, Lijun, Hu Yang, Guo Xiaofang, Gao Jinying, Cui Lina, Xu Ting, Bian Hexiang, Plaintiffs, v. CHINESE ANTI–CULT WORLD ALLIANCE (CACWA), Michael Chu, Li Huahong, Wan Hongjuan, Zhu Zirou, and Does 1–5 Inclusive, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Terri Ellen Marsh, Human Rights Law Foundation, 1875 K Street NW Suite 400, Washington D.C. 20006, (202) 697–3858, Joshua S. Moskovitz, Bernstein Clarke & Moskovitz PLLC, 11 Park Place, Suite 914, New York, New York 10007, (212) 321–0087, Jonathan C. Moore, Keith M. Szczepanski, Beldock Levine & Hoffman LLP, 99 Park Avenue, PH/26th Floor, New York, New York 10016, (212) 490–0400, for Zhang Jingrong, Zhou Yanhua, Zhang Peng, Zhang Cuiping, Wei Min, Lo Kitsuen, Cao, Lijun, Hu Yang, Guo Xiaofang, Gao Jinying, Cui Lina, Xu Ting, and Bian Hexiang
Tom M. Fini, Jacques Catafago, Esq., Catafago Fini LLP, The Empire State Building, 350 Fifth Avenue, Suite 7412, New York, NY 10118, 212–239–9669, Edmond W. Wong, Esq., Law Office of Edmond W. Wong, 35–10 Farrington Street, Flushing, NY 11354, 718–886–3188, for Chinese Anti–Cult World Alliance (CACWA), Michael CHU, Li Huahong, and Zhu Zirou
Edmond W. Wong, Esq., Law Office of Edmond W. Wong, 35–10 Farrington Street, Flushing, NY 11354, 718–886–3188, for Wan Hongjuan
MEMORANDUM AND ORDER DENYING CONSTITUTIONAL CHALLENGE AND CERTIFYING CASE FOR INTERLOCUTORY APPEAL
This memorandum and order addresses a question raised by defendants: has Congress exceeded its authority granted by the Commerce Clause of the United States Constitution in passing the portion of the Freedom of Access to Clinic Entrances Act ("FACEA") that protects "place[s] of religious worship." 18 U.S.C. § 248(a)(2).
FACEA was adopted in 1994 primarily to protect women seeking access to abortion services. The abortion clinic part of FACEA has been upheld as constitutional by every circuit court of appeals that has considered the issue. Late in the legislative processes, FACEA was amended to protect "any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship." 18 U.S.C. § 248(a)(2). No court, so far as this court is aware, has considered whether this religion section is constitutional. This court now finds that FACEA is a constitutional exercise of congressional Commerce Clause power.
Nevertheless, the court is dubious about whether the Commerce Clause, U.S. Const. art. I, § 8, cl. 3. ("The Congress shall have Power ... [t]o regulate Commerce ... among the several States"), permits government protection of religion by FACEA because the First Amendment, U.S. Const. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"), requires a barrier between religion and government. A specific amendment to a statute or constitution should have more force than a generalized clause.
It is an anomaly of our religious jurisprudence that the basic structure of the relationship between government and religion requires government to keep its hands off religion. Yet, carrying out the disestablishment rule has not prevented a strong economic relationship between the two: religion and government. Local, state, and federal governments grant religious exemptions and aid with economic advantages, see, e.g. , Burwell v. Hobby Lobby Stores, Inc. , ––– U.S. ––––, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014) (), supply assistance to religious schools, see, e.g. , Zelman v. Simmons–Harris , 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (), Erica L. Green, De Vos Pushes Federal Aid for Religious Universities , N.Y. Times, May 10, 2018, at A16, and provide tax benefits, Walz v. Tax Comm'n of City of New York , 397 U.S. 664, 680, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (); see also infra Section IV(B) (Commerce clause analysis), Section III(C)(3) ().
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.
This case arises out of a religious and political dispute between adherents of Falun Gong—a Chinese religious group—and a group of their opponents—organized under the umbrella of the Chinese Anti–Cult World Alliance. See Zhang Jingrong v. Chinese Anti–Cult World All. ("Zhang I") , No. 15-CV-1046, 311 F.Supp.3d 514, 2018 WL 1916617, at *1–14 (E.D.N.Y. Apr. 23, 2018). The People's Republic of China ("Chinese Government") has allegedly suppressed the practice of Falun Gong in China and is attempting to do so abroad, including in the United States. Id. The parties have debated and at times been violent with one another around a temple and tables used by Falun Gong members in Queens, New York for prayer, proselytizing, and protesting against the Chinese Government's position. Id.
The tables used by plaintiffs to proselytize have printed materials that are said to come from outside of the state. See Decl. of Yuebin Yu ("Yu Decl.") at ¶ 2, ECF No. 171, Ex. 2(f). Parts of tables themselves may flow through commerce. Congregants make substantial donations of time and money to the Falun Gong temple and tables affecting the stream of commerce. Id. at ¶ 8.
A prior opinion decided summary judgment motions and set the case for trial. See Zhang I , 311 F.Supp.3d 514, 2018 WL 1916617. That opinion concluded that Falun Gong is a religion for the purposes of the instant case and construed the scope of FACEA. Defendants then contended that FACEA is unconstitutional. Upon examination of the statute, briefing, argument, and research, the court finds that FACEA is constitutional; it is authorized by Congress' power over interstate and foreign commerce.
FACEA's constitutionality is not obvious. It was passed in 1994—one year before the Supreme Court's Commerce Clause jurisprudential shift—a time when Congress' commerce power was thought to be virtually limitless. See infra Section III(C)(1). Defendants make powerful arguments that the statute exceeds Congress' commerce power: (1) "Acts of violence or intimidation at places of worship are not economic activity, and are plainly analogous to the acts of violence covered by the Violence Against Women Act that the Supreme Court expressly held in [ United States v. Morrison , 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) ] cannot properly be considered economic activity"; (2) FACEA contains no express commerce-based jurisdictional statement of justification as do other similar statutes, see, e.g. , 18 U.S.C. § 247 (); 18 U.S.C. § 249 (same) ; (3) FACEA contains no legislative findings linking religion and commerce; and (4) the link between religion and commerce is too attenuated to survive scrutiny. Defs.' Br. on Unconstitutionality ( ) at 2–3, ECF No. 172, May 21, 2018.
A two month jury trial looms—demanding substantial time, effort, and money of the parties, a jury, and the court. Prudence dictates that this case not be tried with a substantial, dispositive question of constitutional law undecided by any appellate court. This opinion, and the prior opinion construing the scope of FACEA, are therefore certified for an interlocutory appeal. See infra Part V.
A comprehensive recitation of the facts is contained in the court's opinion of April 23, 2018. See Zhang I , 311 F.Supp.3d at 521–37, 2018 WL 1916617, at *1–14. A condensed, excerpted version of the facts relevant to this opinion is set out below.
Plaintiffs are members of a group, Falun Gong, developed in the second half of the twentieth century in China. The Chinese Government, they allege, has acted to suppress this group in both China and abroad, including in the United States, because it deems the group a threat to the hegemony of the Chinese State and Communist Party.
Adherents of Falun Gong live in the United States. Some are citizens of this country. It is contended by them as pl...
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...motion for summary judgment based on the Commerce Clause challenge to § 248(a)(2). See Zhang Jingrong v. Chinese Anti-Cult World All ., 314 F. Supp. 3d 420 (E.D.N.Y. 2018) (" Zhang II "). It concluded that, because the provision proscribes misconduct "at a place of religious worship," Congr......
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Zhang Jingrong v. Chinese Anti-Cult World All.
...motion for summary judgment based on the Commerce Clause challenge to § 248(a)(2). See Zhang Jingrong v. Chinese Anti-Cult World All., 314 F.Supp.3d 420 (E.D.N.Y. 2018) ("Zhang II"). It concluded that, because the provision proscribes misconduct "at a place of religious worship," Congress w......