Amicus Curiae Brief — Zhang Jingrong, et al., Petitioners v. Chinese Anti-Cult World Alliance, Inc., et al.

No. 21-1429

IN THE

Supreme Court of the United States

___________

ZHANG JINGRONG, ET AL.,

v.

Petitioners,

CHINESE ANTI-CULT WORLD ALLIANCE, INC., ET AL.,

Respondents.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

___________

BRIEF OF PROFESSOR JOHN D. INAZU

AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

___________

Kate Stith

Nicholas R. Reaves*

Counsel of Record

Chris Pagliarella*

YALE LAW SCHOOL

FREE EXERCISE CLINIC

127 Wall Street

New Haven, CT 06511

(202) 349-7212

nicholas.reaves@yale.edu

Counsel for Amicus Curiae

June 9, 2022

*Barred in DC; practicing

under the supervision of a

Connecticut attorney.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF THE AMICUS CURIAE ................... 1

INTRODUCTION AND SUMMARY OF ARGUMENT ...................................................................... 3

ARGUMENT ............................................................... 5

I. Protecting Religious Assemblies Is Necessary for Religious Communities to Worship. ...... 6

A. Religious assembly is the seedbed of religious worship. .............................................. 7

B. Attacks on religious assembly threaten

religious communities and stifle worship. ................................................................ 9

C. Congress enacted FACEA with primary

concern for protecting religious assemblies. ............................................................. 12

II. FACEA Protects a Broad Understanding of

Religious Assembly. .......................................... 14

A. FACEA supports an assembly-based understanding of the phrase “place of religious worship.” ............................................. 14

B. Petitioners’ booths are a place of religious

worship under FACEA. ................................ 17

C. The Second Circuit’s atextual approach

wrongly assumes courts will be able to

adequately define “religious worship.” ........ 18

CONCLUSION ......................................................... 22

(i)

ii

CASES

TABLE OF AUTHORITIES

Page

De Jonge v. Oregon,

299 U.S. 353 (1937) ............................................... 6

Heffron v. Int’l Soc’y for Krishna

Consciousness, Inc.,

452 U.S. 640 (1981) ............................................. 19

Int’l Soc’y for Krishna Consciousness, Inc. v.

Barber,

650 F.2d 430 (2d Cir. 1981) ................................. 19

Kunz v. New York,

340 U.S. 290 (1951) ............................................. 20

Murdock v. Pennsylvania,

319 U.S. 105 (1943) ............................................. 20

Walz v. Tax Comm’n,

397 U.S. 664 (1970) ............................................. 19

STATUTE

18 U.S.C. § 248 ..................................................... 3, 5

LEGISLATIVE MATERIALS

Abortion Clinic Violence: Hearings Before the

Subcomm. on Crime & Crim. Just. of the H.

Comm. on the Judiciary, 103d Cong. (1993) ....... 13

H.R. Rep. No. 103-488 (Conf. Rep.) (1994) ............. 14

140 Cong. Rec. 10,295 (1994) ............................. 3, 13

140 Cong. Rec. 5412 (1994) .................................... 13

140 Cong. Rec. 5408 (1994) ................................ 3, 13

139 Cong. Rec. 29,361 (1993) ............................. 3, 13

iii

TABLE OF AUTHORITIES—continued

SCHOLARLY AUTHORITIES

Page

Marion Crain & John Inazu, Re-Assembling

Labor, 2015 U. Ill. L. Rev. 1791 ............................ 2

Stephanie Hall Barclay & Michalyn Steele,

Rethinking Protections for Indigenous

Sacred Sites, 134 Harv. L. Rev. 1294 (2021) ...... 20

Vaughn E. James, The African-American

Church, Political Activity, and Tax

Exemption, 37 Seton Hall L. Rev. 371 (2007) ..... 19

John D. Inazu, A Confident Pluralism, 88 S.

Cal. L. Rev. 587 (2015) .......................................... 2

John D. Inazu, Factions for the Rest of Us, 89

Wash. U. L. Rev. 1435 (2012) ................................ 1

John D. Inazu, The First Amendment’s Public

Forum, 56 Wm. & Mary L. Rev. 1159 (2015) ........ 2

John D. Inazu, The Forgotten Freedom of

Assembly, 84 Tul. L. Rev. 565 (2010) .................... 1

John D. Inazu, The Four Freedoms and the

Future of Religious Liberty, 92 N.C. L. Rev.

787 (2014) ...................................................... 1, 7, 9

John D. Inazu, The Freedom of the Church

(New Revised Standard Version), 21 J.

Contemp. Legal Issues 335 (2013) .................. 1, 18

John D. Inazu, More Is More: Strengthening

Free Exercise, Speech, and Association, 99

Minn. L. Rev. 485 (2014) ....................................... 2

John D. Inazu, The Strange Origins of the

Constitutional Right of Association, 77 Tenn.

L. Rev. 485 (2010) .................................................. 1

iv

TABLE OF AUTHORITIES—continued

Page

John D. Inazu, The Unsettling “Well-Settled”

Law of Freedom of Association, 43 Conn. L.

Rev. 149 (2010) ...................................................... 1

John D. Inazu, Virtual Assembly, 98 Cornell L.

Rev. 1093 (2013) .................................................... 1

John Inazu, Unlawful Assembly as Social

Control, 64 UCLA L. Rev. 2 (2017) ....................... 2

Amitava Ray, Circumventing Sankirtan:

Public Spaces, Religious Solicitation, and

Decisions of the United States Supreme

Court, 7 NUJS L. Rev. 1 (2014)........................... 20

Ellis M. West, The Free Exercise Clause and

the Internal Revenue Code’s Restrictions on

the Political Activity of Tax-Exempt

Organizations, 21 Wake Forest L. Rev. 395

(1986) ................................................................... 19

OTHER AUTHORITIES

Acts 2:42 .................................................................... 8

Kiara Alfonseca, Synagogue Attack Puts

Jewish Community on Edge, ABC News

(Jan. 19, 2022), https://perma.cc/RV86-8TKB .... 12

Akhil Reed Amar, The Bill of Rights: Creation

and Reconstruction (1998) ..................................... 8

Arson, Vandalism, and Other Destruction at

Catholic Churches in the United States, U.S.

Conf. of Cath. Bishops, https://perma.cc/

7YP4-3HJT (last visited May 22, 2022) .............. 11

4 Karl Barth, Church Dogmatics pt. 3, § 72

(G.W. Bromiley & T.F. Torrance eds., G.W.

Bromiley trans., T&T Clark 1961) ...................... 19

v

TABLE OF AUTHORITIES—continued

Page

Margaret Barthel & Nathan Diller, Proud

Boys Leader Takes Credit for Burning D.C.

Church’s Black Lives Matter Banner, NPR

(Dec. 21, 2020), https://perma.cc/E6LM7U75 .................................................................... 10

Niala Boodhoo & Russell Contreras, Attacks

Rise on Houses of Worship, Axios (Oct. 26,

2021), https://perma.cc/8YVR-UARR .................... 4

Archibald Cox, The Court and the Constitution

(1987) ............................................................... 9, 10

Debbie Elliott, 5 Years After Charleston Church

Massacre, What Have We Learned?, NPR

(June 17, 2020), https://perma.cc/GGF74BRZ .................................................................... 11

Ruth Graham, F.B.I. Director Calls Texas

Synagogue Attack an Act of Antisemitism,

N.Y. Times (Jan. 20, 2022), https://perma.cc/

WQ8R-HQDC ...................................................... 11

Clifford Grammich et al., U.S. Religion Census:

Religious Congregations and Membership

Study, 2010 (County File), Ass’n of Religion

Data Archives, https://perma.cc/FRV3-W6Y9 .... 18

Cathy Lynn Grossman & Natalie DiBlasio,

‘Instant Churches’ Convert Public Schools to

Worship Spaces, USA Today (July 19, 2011),

https://perma.cc/L44L-52JU ................................ 20

John Inazu, Close the Churches, The Atlantic

(Mar. 18, 2020), https://perma.cc/W89A6DPV...................................................................... 6

vi

TABLE OF AUTHORITIES—continued

Page

John D. Inazu, Confident Pluralism:

Surviving and Thriving Through Deep

Difference (2016) ................................................ 3, 8

John D. Inazu, Liberty’s Refuge: The Forgotten

Freedom of Assembly (2012) .......................... 5, 6, 8

Martin Luther King, Jr., I’ve Been to the

Mountaintop (Apr. 3, 1968) ................................... 8

G. Jeffrey MacDonald, Churches Without the

Church, Christian Sci. Monitor (June 4,

2009), https://perma.cc/8B7E-F525 ..................... 20

Krishna Maheshwari, Worship, The Hindu

Encyclopedia, https://perma.cc/86TR-K8DZ

(last visited May 24, 2022) .................................. 18

Michael W. McConnell, Freedom by Association,

First Things, Aug./Sept. 2012, at 39 ................. 7, 8

Mo. Exec. Order No. 44 (1838),

https://perma.cc/57TP-ADNJ ................................ 9

Reid L. Neilson, Mormon Mission Work, in

THE OXFORD HANDBOOK OF MORMONISM 182

(Terryl L. Givens & Philip L. Barlow eds.,

2015) .................................................................... 20

Shawn Francis Peters, Judging Jehovah’s

Witnesses: Religious Persecution and the

Dawn of the Rights Revolution (2000) .................. 9

Campbell Robertson et al., 11 Killed in

Synagogue Massacre; Suspect Charged with

29 Counts, N.Y. Times (Oct. 27, 2018),

https://perma.cc/9T9K-HZ3E .............................. 11

vii

TABLE OF AUTHORITIES—continued

Page

Amy Taxin et al., Authorities: Hate Against

Taiwanese Led to Church Attack, U.S. News

& World Rep. (May 17, 2022), https://perma.

cc/G7C6-6U3H ..................................................... 11

The Vigil for Civil Rights, Christianity Today,

June 5, 1964, at 45, https://perma.cc/4BU62YLQ .................................................................... 21

What Do Jehovah’s Witnesses Believe?,

Jehovah’s Witnesses, https://perma.cc/K85EPS96 (last visited Mar. 7, 2022) .......................... 19

Justin Whitaker, Buddhist Temple in Los

Angeles Vandalized amid Rise in Hate

Crimes, Buddhistdoor Glob. (Mar. 2, 2021),

https://perma.cc/MT9L-XRHN ............................ 10

George F. Will, Opinion, Inviolable Clinics,

Wash. Post, Dec. 9, 1993, at A25 ........................ 13

Jürgen Wolf, Place, Sacred, in 3 THE BRILL

DICTIONARY OF RELIGION (Kocku von

Stuckrad ed., 2006).............................................. 20

INTEREST OF THE AMICUS CURIAE 1

Professor John D. Inazu is the Sally D. Danforth Distinguished Professor of Law and Religion at Washington University in St. Louis. 2 He is widely considered

one of the nation’s leading authorities on the First

Amendment’s Assembly Clause. In his ten years as a

law professor, he has published two books on the subject: Liberty’s Refuge: The Forgotten Freedom of Assembly (Yale University Press, 2012) and Confident Pluralism: Surviving and Thriving Through Deep Difference (University of Chicago Press, 2016). He has also

authored twelve articles that analyze the Assembly

Clause and related rights. 3

1 All parties have consented to the filing of this brief. No coun-

sel for a party authored this brief in whole or in part, and no person or entity other than the amicus curiae or their counsel made

a monetary contribution intended to fund the preparation of this

brief. This brief was prepared in part by a clinic operated by Yale

Law School but does not purport to represent the School’s institutional views, if any.

2 Professor Inazu submits this brief in his individual capacity,

not as a representative of Washington University.

John D. Inazu, The Strange Origins of the Constitutional

Right of Association, 77 Tenn. L. Rev. 485 (2010); John D. Inazu,

The Forgotten Freedom of Assembly, 84 Tul. L. Rev. 565 (2010);

John D. Inazu, The Unsettling “Well-Settled” Law of Freedom of

Association, 43 Conn. L. Rev. 149 (2010); John D. Inazu, Factions

for the Rest of Us, 89 Wash. U. L. Rev. 1435 (2012); John D. Inazu,

Virtual Assembly, 98 Cornell L. Rev. 1093 (2013); John D. Inazu,

The Freedom of the Church (New Revised Standard Version), 21

J. Contemp. Legal Issues 335 (2013) [hereinafter Inazu, Freedom

of the Church]; John D. Inazu, The Four Freedoms and the Future

of Religious Liberty, 92 N.C. L. Rev. 787 (2014) [hereinafter

3

2

Professor Inazu has lectured on the Assembly

Clause at Yale Law School, Harvard Law School, Stanford Law School, Duke Law School, the University of

Virginia, the Newseum, the United States Department

of State, and the United States Commission on Civil

Rights, and he has written about the Assembly Clause

for The Atlantic, The Washington Post, and USA Today.

This case presents an important opportunity to recognize the role that the Assembly Clause, and the doctrinal underpinnings of assembly rights, have historically played, and should continue to play, in protecting

and defining the rights of religious groups. Accordingly, Professor Inazu urges the Court to consider the

Assembly Clause dimensions of this case.

Inazu, Four Freedoms]; John D. Inazu, More Is More: Strengthening Free Exercise, Speech, and Association, 99 Minn. L. Rev. 485

(2014); John D. Inazu, The First Amendment’s Public Forum, 56

Wm. & Mary L. Rev. 1159 (2015); John D. Inazu, A Confident Pluralism, 88 S. Cal. L. Rev. 587 (2015); Marion Crain & John Inazu,

Re-Assembling Labor, 2015 U. Ill. L. Rev. 1791 (with Marion

Crain); John Inazu, Unlawful Assembly as Social Control, 64

UCLA L. Rev. 2 (2017).

3

INTRODUCTION AND

SUMMARY OF ARGUMENT

Throughout American history, the freedom to assemble—the right of individuals to form and participate in peaceable noncommercial groups—has been

crucial to protecting religious pluralism, creating

space for dissent from majoritarian views, and ensuring a robust civil society. Without the ability to freely,

publicly, and safely gather, the remaining First

Amendment freedoms would ring hollow. See generally John D. Inazu, Confident Pluralism: Surviving

and Thriving Through Deep Difference 30-36 (2016).

When considering the Freedom of Access to Clinic

Entrances Act (FACEA), Congress considered extensive testimony from religious communities facing

threats to this most basic freedom. Members of Congress described how “[t]he right of Americans of various religions to attend their places of worship in peace

[was] under attack throughout the country” because of

“an interstate campaign of harassment, physical assaults, and vandalism.” See, e.g., 139 Cong. Rec.

29,361 (1993) (statement of Sen. Orrin Hatch). Members of Congress also repeatedly expressed concerns

that “members of the congregation … exercising their

First Amendment right of free speech” continue to face

threats and even violence for speaking out on social

and political issues. 140 Cong. Rec. 5408 (1994) (statement of Rep. Barbara Vucanovich); see also, e.g., 140

Cong. Rec. 10,295 (1994) (statement of Rep. Duke Cunningham). In response, Congress included in FACEA

protection for persons “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). The protection for religious freedom encompasses not only the free exercise of religion but also

4

related First Amendment freedoms of speech and assembly.

Today, this protection remains crucial as religious

communities continue to confront violent attacks,

threats, and intimidation when they gather. E.g., Niala Boodhoo & Russell Contreras, Attacks Rise on

Houses of Worship, Axios (Oct. 26, 2021), https://

perma.cc/8YVR-UARR (documenting attacks).

This case asks the Court to consider what qualifies

as a “place of religious worship” in FACEA, a phrase

the statute does not specifically define but clearly

gives an expansive scope. Even if this Court concludes

that the plain text is not dispositive, additional tools of

statutory interpretation confirm it must be read

broadly. First, our nation’s history reinforces the undisputed importance of religious assembly to the formation of religious communities and to religious worship. Second, the legislative history makes clear Congress’s concern for threats to religious assemblies. And

third, the challenge of translating a theologically complex concept like “worship” into a workable statutory

definition—while avoiding religious entanglement, see

Pet. 22-27—requires a religiously neutral test.

By looking to the places where individuals gather as

a religious community, courts will be able to make

sense of the statute’s text and legislative history without having to translate and define the outer bounds of

inherently theological concepts like “worship.”

So understood, FACEA extends to the five booths on

the sidewalks of Flushing, as they are undoubtedly a

place where Petitioners gather as a religious community to pray and proselytize. See Pet. 7-9; Pet. App.

147a (finding that “Plaintiffs and others proselytize

and meditate” at the booths).

5

The Second Circuit saw things differently, manufacturing two (atextual) hurdles to invoking FACEA’s

protections. The court required places of religious worship to be (1) recognized by church leadership or by

“religious adherents collectively” as (2) places used

“primarily” for religious worship. Pet. App. 28a-29a.

This approach dramatically narrows FACEA’s protections. It excludes many mixed-use spaces, disfavors idiosyncratic forms of worship, and denies FACEA protections to “a religion [which] may disavow the concept

of designating any particular locations for worship.”

Id. at 29a. And it requires courts to accept threshold

determinations by religious leaders or “collectives” of

FACEA’s scope and coverage, which should apply to

religious believers engaged in religious worship irrespective of these hierarchical determinations. This

Court should reject the Second Circuit’s deeply problematic reading of FACEA and affirm that “places of

religious worship” cannot be so narrowly circumscribed.

ARGUMENT

FACEA both constrains and safeguards exercises of

assembly. It constrains assemblies traditionally regulated or limited by the state—assemblies that aim at

intimidating or harming others—by attaching civil

and criminal penalties to violence and threats of violence at places of religious worship. 18 U.S.C.

§ 248(b)-(c). But it does so in the service of protecting

peaceful assembly, helping to ensure that individuals

can freely, safely, and publicly gather as religious communities. Cf. John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 3 (2012) (describing

“prayer or meditation group[s]” as quintessential examples of gatherings that require distinct assembly

protection).

6

Though the constitutional right of assembly has all

but been read out of the Constitution, see id. at 61-62,

the need for, and the intuition behind, this important

constitutional principle remains. The pure act of gathering—even without any outwardly expressive elements—can have significant social and personal value.

See id. at 2 (“The rituals and liturgy of religious worship often embody deeper meaning than an outside observer would ascribe to them.”). And for many religious

believers, these restrictions are requirements, not just

suggestions. Cf. John Inazu, Close the Churches, The

Atlantic (Mar. 18, 2020), https://perma.cc/W89A-6DPV

(documenting religious practices that require or encourage in-person gatherings).

A meaningful right of assembly not only limits unjustified government interference, e.g., De Jonge v. Oregon, 299 U.S. 353, 364 (1937), but also requires private actors to allow its peaceable exercise. FACEA reinforces this latter protection. FACEA’s legislative history confirms that Congress sought to secure the right

to assemble free from violence and threats by private

actors.

I. Protecting Religious Assemblies Is Necessary for Religious Communities to Worship.

The ability of individuals to gather is a necessary

precursor to forming a defined religious community

and engaging in shared worship practices. The importance of free assembly was not lost on our Founders

(who rejected a bid to remove this right from the Constitution “by a ‘considerable majority,’” Inazu, Liberty’s

Refuge, supra, at 25). But assembly must also be protected from private actors seeking to “eradicate” religious communities, and who use threats and violence

to disrupt religious gatherings with this goal in mind.

7

Petitioners’ religious practices are especially susceptible to such attacks both because their religious exercise includes proselytizing on public sidewalks and because their religiously motived social and political

views generate strong opposition from groups and individuals, including Respondents. See Pet. 29 (noting

the “particular risk to religions for whom a history of

subjugation or persecution may provide reason for

their worship to include a political dimension”). Petitioners allege they suffered violence while gathered as

a religious community to pray and proselytize. This is

exactly what Congress was concerned about when it

enacted FACEA.

A. Religious assembly is the seedbed of religious worship.

The ability of individuals to gather freely and peaceably is a necessary first step to the flourishing of religious, social, and political communities. Civic organizations do not spring into being fully formed. Instead,

organic assemblies—often without a set purpose or

goal—serve as important precursors to the organizations and associations which eventually exercise the

freedoms of speech, worship, or expressive association.

See Inazu, Four Freedoms, supra, at 798 (“Most assemblies flow out of groups of people who gather to eat and

talk and share and pray long before they make political speeches or enact agendas.”).

As Professor Michael McConnell has observed, “the

freedom of assembly is preparatory to the freedom of

speech. The freedom of speech presumably suffices to

protect what is said at an assembly. Freedom of assembly or association is necessary to protect the seedbed

of free speech: the group that plans and guides the

speech.” Michael W. McConnell, Freedom by Association, First Things, Aug./Sept. 2012, at 39, 41. For a religious community, this “seedbed” may often take the

8

form of small, informal gatherings. E.g., Acts 2:42

(“They devoted themselves to the teaching of the apostles and to the communal life, to the breaking of the

bread and to the prayers.”); Inazu, Confident Pluralism, supra, at 39-41 (describing prayer gatherings of

Muslim Student Associations).

Religious, social, and political communities often assemble in public spaces. Cf. McConnell, supra, at 40

(“[F]reedom of assembly by its nature involves public

spaces ….”); Inazu, Confident Pluralism, supra, at

108–11 (describing impact of protests and boycotts, including the Claiborne County Boycott). When the Boston Female Anti-Slavery Society gathered in 1835, for

example, antiabolitionists—recognizing that this public gathering might undermine their own cause—fomented a riotous crowd to disrupt the public assembly.

Inazu, Liberty’s Refuge, supra, at 34. And, throughout

much of our country’s history, Black Americans faced

frequent restrictions on their efforts to gather in public. Id. at 32-33 (restrictions on assembly “suppress[ed]

worship”). As Akhil Amar notes, the right of assembly

for religious worship was “a core right that southern

states had violated.” Akhil Reed Amar, The Bill of

Rights: Creation and Reconstruction 245 (1998).

Years later, Martin Luther King, Jr. saw immense

value in public assembly, recognizing that the ability

to freely gather was foundational to the Civil Rights

Movement. As Dr. King explained on the eve of his assassination, “[i]f I lived in China or even Russia, or any

totalitarian country, … maybe I could understand the

denial of certain basic First Amendment privileges, because they hadn’t committed themselves to that over

there. But somewhere I read of the freedom of assembly.” Martin Luther King, Jr., I’ve Been to the Mountaintop (Apr. 3, 1968).

9

What King and so many others recognized is that

neither political movements nor religious communities

can flourish without the ability to assemble freely and

peaceably.

B. Attacks on religious assembly threaten

religious communities and stifle worship.

Minority religious communities have faced threats,

persecution, and even attempts at “extermination”

throughout this country’s history. These attacks have

often been motivated not only by competing religious

beliefs but by fear and distrust of social or political

views out of step with majoritarian norms.

In the nineteenth century, members of the Church

of Jesus Christ of Latter-day Saints suffered brutal

persecution and faced calls for “extermination,” as

much for their political and social beliefs (including

their hostility to slavery) as for their religious convictions. See Mo. Exec. Order No. 44 (1838), https://

perma.cc/57TP-ADNJ; Archibald Cox, The Court and

the Constitution 189 (1987) (describing mobs destroying Latter-day Saints communities in Missouri and Illinois and driving adherents west “to the Utah deserts”). Cf. Pet. App. 93a (describing Reynolds v.

United States, 98 U.S. 145 (1879)).

Decades later, Jehovah’s Witnesses also encountered widespread public and private violence against

them. See Inazu, Four Freedoms, supra, at 803. The

Witnesses suffered extreme persecution because of

their religiously motivated positions on social and political issues—like their pacifist stance and their refusal to salute the American flag while the nation was

engaged in two world wars. See Shawn Francis Peters,

Judging Jehovah’s Witnesses: Religious Persecution

and the Dawn of the Rights Revolution 2-4 (2000); see

10

also Pet. App. 95a (describing W. Va. State Bd. of Educ.

v. Barnette, 319 U.S. 624 (1943)). Jehovah’s Witnesses

were also especially vulnerable to persecution because

their religious exercise included impassioned public

proselytizing, door-to-door canvasing, and preaching

on street corners. See Cox, supra, at 189 (calling the

Jehovah’s Witnesses “[t]he principal victims of religious persecution in the United States in the twentieth

century”).

Today, religious communities still face threats, violence, and intimidation due to their religious beliefs,

their religiously motivated social and political views,

and their mere identity. Places of religious worship—

including Buddhist and Sikh temples, Islamic

mosques, Jewish synagogues, and Christian

churches—have suffered devastating attacks meant to

deter worship, stamp out faith communities, and silence unpopular opinions. Adherents of Falun Gong allege similar challenges. See Pet. 8-9; Pet. App. 77a

(cataloguing threats of violence, including threat of

“extermination and strangulation” directed at Petitioners).

Violent attacks on religious communities are not always the result of religious disagreement. Sometimes

attackers target the political views and ethnic or religious identities of those gathering for religious worship. In the past few years, a historically Black church

was attacked in retaliation for the Black Lives Matter

protests, Margaret Barthel & Nathan Diller, Proud

Boys Leader Takes Credit for Burning D.C. Church’s

Black Lives Matter Banner, NPR (Dec. 21, 2020),

https://perma.cc/E6LM-7U75; a Buddhist temple in

Los Angeles was vandalized because of anti-Asian sentiment, see Justin Whitaker, Buddhist Temple in Los

Angeles Vandalized amid Rise in Hate Crimes,

Buddhistdoor Glob. (Mar. 2, 2021), https://perma.cc/

11

MT9L-XRHN; and many attacks on Jewish synagogues have been motivated by anti-Semitic rhetoric,

Ruth Graham, F.B.I. Director Calls Texas Synagogue

Attack an Act of Antisemitism, N.Y. Times (Jan. 20,

2022), https://perma.cc/WQ8R-HQDC.

Just last month, a gunman targeted a Taiwanese

Presbyterian congregation in California, reportedly

motivated by the political history of China and Taiwan. Amy Taxin et al., Authorities: Hate Against Taiwanese Led to Church Attack, U.S. News & World Rep.

(May 17, 2022), https://perma.cc/G7C6-6U3H (noting

the Presbyterian Church was “closely identified …

with the Taiwan independence cause”).

Some of the most deadly and despicable attacks in

recent memory have had similar motivations. In

Charleston, South Carolina, a white supremacist murdered nine Black worshippers at Emanuel African

Methodist Episcopal Church. Debbie Elliott, 5 Years

After Charleston Church Massacre, What Have We

Learned?, NPR (June 17, 2020), https://perma.cc/

GGF7-4BRZ. And in Pittsburgh, Pennsylvania, a gunman shouting anti-Semitic slurs opened fire inside the

synagogue of the Tree of Life Congregation, killing

eleven congregants and wounding six others. Campbell Robertson et al., 11 Killed in Synagogue Massacre;

Suspect Charged with 29 Counts, N.Y. Times (Oct. 27,

2018), https://perma.cc/9T9K-HZ3E. These attacks on

places of worship are far from rare, isolated incidents.

For example, the United States Conference of Catholic

Bishops has documented at least 134 attacks across 35

states on Catholic Churches alone since May 2020. Arson, Vandalism, and Other Destruction at Catholic

Churches in the United States, U.S. Conf. of Cath.

Bishops, https://perma.cc/7YP4-3HJT (last visited

May 22, 2022).

12

These attacks also stifle religious adherents more

broadly. Reflecting on the violence perpetrated against

Jewish communities in recent years, one news source

summed up community sentiment this way: “[r]ecent

attacks on Jewish institutions … have cast a dark

shadow on the simple act of walking into a Jewish institution.” Kiara Alfonseca, Synagogue Attack Puts

Jewish Community on Edge, ABC News (Jan. 19,

2022), https://perma.cc/RV86-8TKB. As one Jewish

leader explained, “[t]he basis of our religion is the community”; “[i]f people are afraid to take their kids to a

JCC or to summer camp or afraid to go to synagogue

to pray with their community, that would be the ultimate tragedy.” Id.

The purpose and effect of these attacks is to stifle

religious assemblies. Whether it is during a weekday

prayer meeting or weekend service, attacks on places

of religious worship tend to focus on times and places

where religious individuals gather. And if religious individuals cannot assemble in peace, neither can they

form and maintain religious communities. Supra at 7.

C. Congress enacted FACEA with primary

concern for protecting religious assemblies.

In passing FACEA, Congress—recognizing the danger posed to religious communities by violent attacks—made clear that one of its central concerns was

protecting religious persons from violence and intimidation in their communal gatherings and assemblies.

Senators, Representatives, witnesses, and outside

commentators alike discussed ongoing threats to religious assemblies and places of worship, typically as a

result of the political speech taken by members of

these religious communities.

13

In introducing the language into FACEA that expanded its protections to places of worship, Senator

Orrin Hatch highlighted “an interstate campaign of

harassment, physical assaults, and vandalism” and

noted a wide variety of incidents targeting Christian

and Jewish communities. 139 Cong. Rec. 29,361

(1993). Senator Hatch expressed concern not merely

with attacks on physical structures, but with “attacks

against Catholic leaders,” and other “congregation[s],”

and “churchgoers,” based on their perceived social and

political views. Id. (discussing, e.g., multiple incidents

involving the throwing of condoms at congregants in

connection with church stances on sexuality). Other

Members of Congress echoed similar concerns, noting

that recent “violence directed at places of worship”

arose from instances “when members of the congregation have been exercising their [F]irst [A]mendment

right of free speech.” 140 Cong. Rec. 5408 (1994) (statement of Rep. Barbara Vucanovich) (discussing arson

and vandalism connected with religious stances on political and social issues); see also 140 Cong. Rec. 10,295

(1994) (statement of Rep. Duke Cunningham) (referring to ACT UP protest); 140 Cong. Rec. 5412 (1994)

(statement of Rep. Bob Dornan) (likewise referencing

the ACT UP protest).

Religious communities and commentators opposing

the bill also highlighted destructive protests resulting

from the Catholic Church’s stance on sex education

and abortion rights. See, e.g., Abortion Clinic Violence:

Hearings Before the Subcomm. on Crime & Crim. Just.

of the H. Comm. on the Judiciary, 103d Cong. 135

(1993) (statement of Rabbi Yehuda Levin); George F.

Will, Opinion, Inviolable Clinics, Wash. Post, Dec. 9,

1993, at A25. Bishop James McHugh of the USCCB

highlighted an incident where “those seeking to interfere with peaceful pro-life gatherings at Catholic

14

churches”—political expression motivated by religion—“poured glue into the locks of five churches and

parish buildings.” That incident of targeting made its

way into the House Conference Report explaining the

protection for houses of worship. See H.R. Rep. No.

103-488, at 9 (Conf. Rep.) (1994) (“pouring glue in the

locks” of a house of worship counts among “[e]xamples”

of conduct “giv[ing] rise to a civil cause of action under

this Act”).

The right of peaceable public assembly and its necessary protection—from private as well as public actors—was therefore top of mind in the public debate

about FACEA and its protection for places of worship.

II. FACEA Protects a Broad Understanding of

Religious Assembly.

Courts should look to places where individuals assemble as a religious community to define “a place of

religious worship” under FACEA. This approach is

consistent with FACEA’s text, supported by legislative

history, and avoids the pitfalls of the Second Circuit’s

atextual reading. Under this approach, the Falun

Gong’s religious booths would indisputably qualify as

a place of religious worship.

A. FACEA supports an assembly-based understanding of the phrase “place of religious worship.”

While “a place of religious worship” is not defined in

FACEA, the statute’s plain text, together with the

canon of constitutional avoidance, require a broad interpretation of this phrase. See Pet. App. 124a-126a;

id. at 126a (“The FACEA’s language counsels for an

expansive interpretation.”); see also Pet. 13-18 (explaining why FACEA’s text cannot support the Second

Circuit’s narrowing construction). This interpretation

15

clearly includes Petitioners’ booths as places of religious worship. See infra at 17–18.

However, should this Court conclude (as the Second

Circuit did) that the phrase “a place of religious worship” is susceptible to multiple interpretations, it

should adopt a broad interpretation rooted in concepts

of religious assembly. Both the legislative record and

our nation’s history confirm that the District Court’s

reading of FACEA’s scope—protecting all places where

“religious worship” (broadly understood) occurs—is

the best reading. See Pet. App. 124a-126a (further defining “place of religious worship”).

Looking to the legislative history of FACEA, it is

clear that Congress was concerned with protecting religious gatherings. As explained above, the threats and

attacks Congress was reacting to were perpetrated

against individuals gathering in religious communities. Supra at 12–14. These threats also were not limited to, or solely motivated by, specific religious beliefs.

Instead, they frequently targeted the political and social views of those gathered. Supra at 13. This is also

consistent with attacks on religious places of worship

throughout our nation’s history. Supra at 9–12.

As also explained above, these attacks on religious

assemblies undermine the formation and flourishing

of religious communities—and that is frequently the

attackers’ goal. Supra at 12. This makes protecting religious assembly not only crucial for promoting religious pluralism but is also directly responsive to the

history of religious attacks in our nation that Congress

sought to prevent. Protecting any location where individuals clearly assemble as a religious community is

the best way to define “a place of religious worship.”

The benefits of this approach are numerous.

16

First, defining a place of religious worship by reference to the assembly of a religious community helps

translate a statutory provision that relies on a deeply

religious concept like “worship” (which has widely varied meanings across religious denominations, infra at

18–19), into a religiously neutral test that looks at the

observable act of gathering. This interpretation also

ensures minority religious communities receive equal

treatment under FACEA in two ways. It protects informal religious gatherings not formally designated as

such by hierarchical leaders. And it protects non-traditional locations used by some religious communities

who may not be able to afford designated, single-use

religious spaces. Infra at 19–21; cf. Pet. 6-7 (“Falun

Gong … traditionally lacks fixed worship spaces and

clergy ….”).

Second, this approach best addresses the harm Congress sought to address in passing FACEA: violent attacks and threats to religious communities. Supra at

12–14. History and common sense both confirm that

religious adherents are most vulnerable when they

gather as religious communities, regardless of their

size. Thus, protecting the places where those religious

communities gather best serves the interests Congress

sought to advance.

Finally, this approach avoids the serious translation

problems inherent in the Second Circuit’s atextual

reading of FACEA. Courts will not be called upon to

make the fraught determination of how much or what

percentage of religious activity at a specific location

qualifies as “worship.” See Pet. 22-27. Nor would

courts need to scrutinize the religious group’s leadership structure or determine the consensus position of

its adherents. See id. Notably, these translation challenges would be especially hard for courts evaluating

17

Falun Gong’s “decentralized” structure and its lack of

distinct congregations and leadership. See id. at 6-7.

B. Petitioners’ booths are a place of religious worship under FACEA.

Petitioners’ booths undoubtedly qualify as a “place of

religious worship” under FACEA. While the evidence

regarding whether the “primary” use of the booths is

for worship may be mixed (and sorting it out entangling), the evidence is clear that Petitioners’ booths are

a place where Falun Gong adherents gather as a religious community.

“Petitioners pray and proselytize daily at five sidewalk booths,” “which are located in fixed spots within

three blocks of the [Spiritual] Center.” Pet. 7. This is

abundantly supported by the record, which confirms

that Falun Gong practitioners gather at these booths

as a religious community. E.g., Pet. App. 147a (“Plaintiffs and others proselytize and meditate” at the

booths). Even the Second Circuit begrudgingly

acknowledged as much, though it found the booths not

“primarily” religious. Id. at 33a (“Certainly, the record

contains some evidence that volunteers who staffed

the tables would pray or promote the Fa there.”

(cleaned up)); id. at 9a (tables arranged by Spiritual

Center leadership). And the record further confirms

that the booths “are ‘like an extension’ of the Spiritual

Center,” id. at 12a, which is undisputedly a place

“where Falun Gong practitioners gather,” id. at 9a.

In addition, Petitioners’ religious exercise is precisely the type of assembly most vulnerable to threats

and violence—and thus most in need of protection. By

gathering as a religious community in highly trafficked public locations to pray and proselytize, Petitioners are exposed to threats and violence from any-

18

one who might approach them. And their fixed physical location and daily use of the same booths further

make Petitioners an easy target for attacks, as their

whereabouts are known in advance. The record thus

confirms that Petitioners have alleged precisely the

type of threats and harassment Congress sought to

prevent by passing FACEA. Pet. 8-9.

C. The Second Circuit’s atextual approach

wrongly assumes courts will be able to

adequately define “religious worship.”

By requiring courts to determine whether a place is

used primarily for “religious worship,” the Second Circuit’s gloss on FACEA runs headlong into religious

translation problems. See Inazu, Freedom of the

Church, supra, at 338-41 (describing the “three-step”

“process of translation” and how the “increasingly diverse forms of religious belief in the United States”

make “draw[ing] meaningful boundaries” around theological concepts almost impossible). The Second Circuit’s approach assumes courts can define the outer

boundaries of what constitutes “worship” for each of

the over 230 religious groups practicing in the United

States. See Clifford Grammich et al., U.S. Religion

Census: Religious Congregations and Membership

Study, 2010 (County File), Ass’n of Religion Data Archives, https://perma.cc/FRV3-W6Y9. But relying on

secular courts to make these determinations will undoubtedly privilege well-established religious institutions over minority and upstart religious assemblies.

See Pet. 28-30.

Religious communities have diverse, sometimes

competing understandings of what it means to engage

in religious worship and where that worship may occur. For many, worship encompasses far more than

traditional prayer. It may include activities like dancing, see Krishna Maheshwari, Worship, The Hindu

19

Encyclopedia,

https://perma.cc/86TR-K8DZ

(last

visited May 24, 2022) (describing certain forms of

dance as an aspect of worship), or singing, see 4 Karl

Barth, Church Dogmatics pt. 3, § 72, at 866 (G.W.

Bromiley & T.F. Torrance eds., G.W. Bromiley trans.,

T&T Clark 1961). For some, it may also include carrying out charitable projects, see What Do Jehovah’s Witnesses Believe?, Jehovah’s Witnesses, https://perma.

cc/K85E-PS96 (last visited Mar. 7, 2022) (describing

“[s]haring in disaster relief” and “[c]onstructing and

maintaining … facilities used to further [their] worldwide Bible educational work” as “[k]ey aspects of

[their] worship”); Walz v. Tax Comm’n, 397 U.S. 664,

674 (1970) (agreeing that “some churches” provide “social welfare services or ‘good works’” for the community). For others, religious worship might involve soliciting donations, see Heffron v. Int’l Soc’y for Krishna

Consciousness, Inc., 452 U.S. 640, 645 (1981); Int’l

Soc’y for Krishna Consciousness, Inc. v. Barber, 650

F.2d 430, 433-34 (2d Cir. 1981) (describing the role of

the solicitation of contributions for practitioners). And

for still other religious groups, engaging in political activity can itself be a form of worship. See Vaughn E.

James, The African-American Church, Political Activity, and Tax Exemption, 37 Seton Hall L. Rev. 371,

388-96 (2007) (describing the inextricable relationship

between the African-American Church and political

advocacy); Ellis M. West, The Free Exercise Clause and

the Internal Revenue Code’s Restrictions on the Political Activity of Tax-Exempt Organizations, 21 Wake

Forest L. Rev. 395, 396 (1986) (“For some religious persons, political activity may even be a form of worship.”).

And while majoritarian understandings of “a place

of religious worship” may focus on sacred spaces, cf.

20

Jürgen Wolf, Place, Sacred, in 3 THE BRILL DICTIONARY OF RELIGION (Kocku von Stuckrad ed., 2006), this

does not hold true for all religious communities. Many

religious communities meet in locations that are not

exclusively or primarily used for religious purposes.

See Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134

Harv. L. Rev. 1294, 1303-04 (2021) (describing the significance of sacred, land-based sites to worship for Indigenous peoples); Cathy Lynn Grossman & Natalie

DiBlasio, ‘Instant Churches’ Convert Public Schools to

Worship Spaces, USA Today (July 19, 2011), https://

perma.cc/L44L-52JU (describing religious communities that worship in public schools); G. Jeffrey MacDonald, Churches Without the Church, Christian Sci.

Monitor (June 4, 2009), https://perma.cc/8B7E-F525

(describing religious communities that meet in coffeehouses, on hiking trails, in canoes, and in outdoor amphitheaters).

Many religious communities also use public sites for

their advocacy. Some Baptist ministers preach on sidewalks and street corners, see, e.g., Kunz v. New York,

340 U.S. 290, 292 (1951). Jehovah’s Witnesses share

their good news “door to door,” see Murdock v. Pennsylvania, 319 U.S. 105, 106-07 (1943). Members of religious communities like the Church of Jesus Christ of

Latter-day Saints and the International Society for

Krishna Consciousness distribute religious literature

in public spaces. See Reid L. Neilson, Mormon Mission

Work, in THE OXFORD HANDBOOK OF MORMONISM 182,

185 (Terryl L. Givens & Philip L. Barlow eds., 2015);

Amitava Ray, Circumventing Sankirtan: Public

Spaces, Religious Solicitation, and Decisions of the

United States Supreme Court, 7 NUJS L. Rev. 1, 42-43

(2014) (“[S]ankirtan included chanting, preaching, dis-

21

tributing literature, recruiting members, and soliciting donations in public spaces … like airport lounges,

national parks, and state fairs.”). Some Christian

clergy hold public prayer vigils for political causes, see,

e.g., The Vigil for Civil Rights, Christianity Today,

June 5, 1964, at 45, 45, https://perma.cc/4BU6-2YLQ

(describing, for example, a group of seminarians who

“maintain[ed] a round-the-clock vigil at the Lincoln

Memorial” to support passage of the Civil Rights Act).

In an effort to translate “religious worship” into a

generally applicable legal test, the Second Circuit inadvertently cabined this concept in a way that ignores

the text, undermines the purpose of FACEA, and fails

to protect religious minorities. This Court should grant

certiorari to correct these grave errors and to recognize

the central importance of protecting the ability of religious individuals of all faith traditions to gather. Looking to religious assembly would better reflect our

longstanding commitment to religious pluralism and

the many forms and sites of religious worship that

flourish within that pluralism.

22

CONCLUSION

For the foregoing reasons, the petition should be

granted.

Respectfully submitted,

Kate Stith

Nicholas R. Reaves*

Counsel of Record

Chris Pagliarella*

YALE LAW SCHOOL

FREE EXERCISE CLINIC

127 Wall Street

New Haven, CT 06511

(202) 349-7212

nicholas.reaves@yale.edu

Counsel for Amicus Curiae

June 9, 2022

*Barred in DC; practicing

under the supervision of a

Connecticut attorney.