From Casetext: Smarter Legal Research

Henderson v. Kennedy

United States Court of Appeals, District of Columbia Circuit
Oct 2, 2001
265 F.3d 1072 (D.C. Cir. 2001)

Summary

finding no substantial burden where religious group was restricted from selling T-shirts on the National Mall, but had numerous alternatives

Summary of this case from PINEDA-MORALES v. DE ROSA

Opinion

Nos. 00-5070 and 00-5071.

Filed October 2, 2001.

On Appellants' Petition for Rehearing.

Before: HENDERSON, RANDOLPH, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.


The petition for rehearing directs us to amendments of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., enacted a year ago, but not mentioned by either side when the case was last before us. The petition argues that the amendments render erroneous our decision sustaining, as against a claim under RFRA, the National Park Service's regulation prohibiting the sale of t-shirts on the National Mall.

RFRA had defined "exercise of religion" as "the exercise of religion under the First Amendment to the Constitution." 42 U.S.C. § 2000bb-2(4) (1999). The Religious Land Use and Institutionalized Persons Act (RLUIPA), Pub.L. No. 106-274, §§ 7-8, 114 Stat. 803, 806 (2000), altered the definition to mean "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A), incorporated by 42 U.S.C. § 2000bb-2(4).

The amendments remove the doubt expressed in our opinion, see Henderson v. Kennedy, 253 F.3d 12, 16 (D.C. Cir. 2001), that the portion of RFRA remaining after City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) — the portion, that is, applicable to the federal government (and not enacted pursuant to § 5 of the Fourteenth Amendment) — survived the Supreme Court's decision striking down the statute as applied to the States.

The amendments did not alter RFRA's basic prohibition that the "[g]overnment shall not substantially burden a person's exercise of religion." 42 U.S.C. § 2000bb-1(a). See also Henderson, 253 F.3d at 15; Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001); Murphy v. Zoning Comm'n of the Town of New Milford, 148 F.Supp.2d 173, 188 (D.Conn. 2001). Our opinion assumed that plaintiffs Henderson and Phillips wanted to sell t-shirts on the Mall because of their religious beliefs. Our focus was on whether the Park Service regulation imposed a "substantial burden" on their exercise of religion. See Henderson, 253 F.3d at 16-17. In reaching our judgment we examined the importance of selling t-shirts on the Mall to the plaintiffs. Our conclusion was this: "Because the Park Service's ban on sales on the Mall is at most a restriction on one of a multitude of means [by which petitioners may engage in their vocation to spread the gospel], it is not a substantial burden on their vocation. Plaintiffs can still distribute t-shirts for free on the Mall, or sell them on streets surrounding the Mall." Id. at 17. That conclusion is unaffected by the amendments of RFRA. Although the amendments extended the protections of RFRA to "any exercise of religion, whether or not compelled by, or central to, a system of religious belief," 42 U.S.C. § 2000cc-5(7)(A), incorporated by 42 U.S.C. § 2000bb-2(4), the amendments did not alter the propriety of inquiring into the importance of a religious practice when assessing whether a substantial burden exists. The petition for rehearing is therefore denied.

So ordered.


Summaries of

Henderson v. Kennedy

United States Court of Appeals, District of Columbia Circuit
Oct 2, 2001
265 F.3d 1072 (D.C. Cir. 2001)

finding no substantial burden where religious group was restricted from selling T-shirts on the National Mall, but had numerous alternatives

Summary of this case from PINEDA-MORALES v. DE ROSA

denying rehearing en banc

Summary of this case from Priests for Life v. U.S. Dep't of Health & Human Servs.

denying a petition for rehearing in a suit under the still valid portion of the RFRA, the court stated that the amendments to the definition of "religious exercise" did not alter the propriety of inquiring into the importance of a religious practice when assessing whether a substantial burden exists

Summary of this case from Adkins v. Kaspar

denying petition for rehearing

Summary of this case from Levitan v. Ashcroft

explaining that RFRA incorporates the definition from the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq.

Summary of this case from Sabra ex rel. Baby M. v. Pompeo

declaring that RLUIPA's amendments to RFRA regarding exercise of religion "remove the doubt . . . that the portion of RFRA remaining after [ Flores] . . . survived the Supreme Court's decision striking down the statute as applied to the States"

Summary of this case from Sample v. Lappin

noting that the definition of religious exercise in RLUIPA expanded upon the protections of RFRA

Summary of this case from Marria v. Broaddus

In Henderson, the District of Columbia Circuit held that a park service regulation which prohibited the plaintiffs from selling T-shirts on the National Mall was not a substantial burden on the plaintiffs' religious exercise because the ban on T-Shirt sales was, at most, only a restriction on one of a multitude of means by which the plaintiffs could engage in their vocation to spread the gospel.

Summary of this case from Grace United Methodist Church v. City of Cheyenne

noting that the definition of religious exercise in RLUIPA expanded upon the protections of RFRA

Summary of this case from Marria v. Broaddus

noting the expansion in the definition of religious exercise while holding that the amendments to the protections of RFRA "did not alter the propriety of inquiring into the importance of a religious practice when assessing whether a substantial burden exists"

Summary of this case from Marria v. Broaddus
Case details for

Henderson v. Kennedy

Case Details

Full title:Augustine David HENDERSON, Appellant, v. Roger A. KENNEDY, et al.…

Court:United States Court of Appeals, District of Columbia Circuit

Date published: Oct 2, 2001

Citations

265 F.3d 1072 (D.C. Cir. 2001)

Citing Cases

Grace United Methodist Church v. City of Cheyenne

The District of Columbia Circuit denied a petition for rehearing under RLUIPA without addressing its…

Rasul v. Rumsfeld

The D.C. Circuit, however, answered this question in the affirmative. Henderson v. Kennedy, 265 F.3d 1072,…