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.,

Petitioners,

v.

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 AMICUS CURIAE OF

THE BECKET FUND FOR RELIGIOUS LIBERTY

IN SUPPORT OF PETITIONERS

__________

ERIC C. RASSBACH

Counsel of Record

REBEKAH RICKETTS

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. NW

Suite 400

Washington, D.C. 20006

(202) 955-0095

erassbach@becketlaw.org

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether historical practices and understandings

show that outdoor gatherings like Petitioners’ are

“places of religious worship.”

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ..................................... iii

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

INTRODUCTION ....................................................... 2

ARGUMENT ............................................................... 4

I. Historical practices and understandings

confirm that outdoor religious gatherings

are “places of religious worship.” .................... 4

A. Historical practices and understandings

before the Founding treated outdoor

gatherings as places of religious

worship........................................................ 5

B. Historical practices and understandings

from the Founding until 1994 treated

outdoor gatherings as places of religious

worship...................................................... 15

II. Gatherings like Petitioners’ fall squarely

within traditional notions of “places of

religious worship.” ......................................... 22

CONCLUSION ......................................................... 24

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Agudath Israel of Am. v. Cuomo,

141 S. Ct. 889 (2020) ........................................ 1, 22

Apache Stronghold v. United States,

No. 21-15295 (9th Cir.) .................................... 1, 21

Bear Lodge Multiple Use Ass’n v.

Babbitt,

175 F.3d 814 (10th Cir. 1999) .......................... 1, 21

Capitol Hill Baptist Church v. Bowser,

496 F. Supp. 3d 284 (D.D.C. 2020) .................. 1, 22

Maryville Baptist Church, Inc. v.

Beshear,

957 F.3d 610 (6th Cir. 2020) ................................ 22

Ramirez v. Collier,

142 S. Ct. 1264 (2022) ...................................... 4, 22

Slockish v. U.S. Dep’t of Transp.,

No. 21-35220 (9th Cir.) .................................... 1, 21

Town of Greece v. Galloway,

572 U.S. 565 (2014) ................................................ 4

Statutes

18 U.S.C. 248 ............................................................. 22

Act of Uniformity 1662, 14 Car.II, c.4 ........................ 9

iv

Conventicle Act 1664, 16 Car.II c.4 ....................... 9-10

Five Mile Act 1665, 17 Car.II, c.2 ............................. 10

De hæretico comburendo, 2 Hen.IV c.15

(1401) ...................................................................... 8

Records of the Parliaments of Scotland

1670/7/11......................................................... 11, 12

Second Conventicle Act 1670, 22 Car.II,

c.1 .......................................................................... 10

Other Authorities

I Chaucer’s Canterbury Tales

(Alfred W. Pollard ed., 1894) ................................. 7

27,000 Prayer Pilgrims Hear Randolph,

Wilkins And King in D.C. March,

Cleveland Plain Dealer,

May 24, 1957 ........................................................ 19

Terence Bailey, The Processions of

Sarum and the Western Church

(1971) ...................................................................... 6

Bible, Revised Standard Version (RSV) ................. 5, 6

Michael J. Braddick, State Formation in

Early Modern England c. 1550-1700

(2000) ...................................................................... 9

Irving Brant, The Bill of Rights: Its

Origin and Meaning (1965). ................................ 11

v

Joseph Epes Brown & Emily Cousins,

Teaching Spirits: Understanding

Native American Religious

Traditions (2001) .................................................. 21

Steven G. Calabresi & Abe Salander,

Religion and the Equal Protection

Clause: Why the Constitution

Requires School Vouchers,

65 Fla. L. Rev. 909 (2013) ........................ 15, 16, 17

Paul K. Conkin, Cane Ridge: America’s

Pentecost (1990) .............................................. 17, 18

Michael J. Crawford, ed., The Spiritual

Travels of Nathan Cole,

33 Wm. & Mary Q. 89 (1976) ............................... 12

Joseph H. Dahmus, The Prosecution of

John Wyclyf (1952) ................................................. 8

Daniel L. Dreisbach, Reading the Bible

with the Founding Fathers (2017) ......................... 5

Natalie Eilbert, For Hindus in Green

Bay and Fox Valley, Holi Festival

splashes vibrant colors across a world

dulled by a pandemic, Green Bay

Press-Gazette, Mar. 22, 2022............................... 21

Marian Fam, US Muslims Try to

Balance Eid Rituals with Virus

Concerns, Associated Press,

May 24, 2020 ........................................................ 22

vi

Raymonde Foreville, Le Jubilé de Saint

Thomas Becket (1958) ............................................ 7

Annie Groer, A Home for the Holiday:

Prefab Sukkahs Help Preserve a

Centuries-Old Jewish Tradition,

Wash. Post, Oct. 9, 2003 ...................................... 21

Geoffrey Holmes, The Making of a Great

Power: Late Stuart and Early

Georgian Britain, 1660-1722 (1993) ...................... 9

Anne Hudson, The Premature

Reformation: Wycliffite Texts and

Lollard History (1988)............................................ 7

John D. Inazu, Liberty’s Refuge: The

Forgotten Freedom of Assembly

(2012) .................................................................... 10

Charles A. Johnson, The Frontier Camp

Meeting: Religion’s Harvest Time

(1955) .................................................................... 18

Thomas S. Kidd, George Whitefield:

America’s Spiritual Founding Father

(2014) .............................................................. 12, 13

Knighton’s Chronicle 1337-1396

(G.H. Martin ed. & trans., 1995) ........................... 7

Bernard Lafayette, Jr. & Kathryn Lee

Johnson, In Peace and Freedom: My

Journey in Selma (2013) ...................................... 20

vii

Kurt T. Lash, The Second Adoption of

the Free Exercise Clause: Religious

Exemptions Under the Fourteenth

Amendment, 88 Nw. U. L. Rev. 1106

(1994) .................................................................... 17

Lewis P. Little, Imprisoned Preachers

and Religious Liberty in Virginia

(1938) .............................................................. 13, 14

Lollards of Coventry 1486-1522

(Shannon McSheffrey & Norman

Tanner eds. & trans., 2003) ................................... 8

Howard Loxton, Pilgrimage to

Canterbury (1978) .................................................. 7

James Madison, Letter to William

Bradford (Jan. 24, 1774) ...................................... 14

William C. Martin, A Prophet with

Honor: The Billy Graham Story

(rev. 2018) ............................................................. 19

Lisa McClain, Without Church,

Cathedral, or Shrine: The Search for

Religious Space Among Catholics in

England, 1559-1625, 33 The

Sixteenth Century J. 381 (2002)............................ 8

Michael W. McConnell, Establishment

and Disestablishment at the

Founding, Part I: Establishment of

Religion, 44 Wm. & Mary L. Rev.

2105 (2003) ........................................................... 13

viii

Neil McIntyre, Presbyterian

Conventicles in Restoration Scotland,

45 Scottish Church History (2016) ................ 11, 12

Josh McMullen, Under the Big Top: Big

Tent Revivalism and American

Culture, 1885-1925 (2015) ................................... 18

Andrew R. Murphy, Liberty, Conscience,

and Toleration: The Political

Thought of William Penn (2016).......................... 10

Musalla, 3 The Grove Encyclopedia of

Islamic Art and Architecture 32

(Jonathan M. Bloom & Sheila S.

Blair eds., 2009) ................................................... 21

Ben Nilson, Cathedral Shrines of

Medieval England (1998) ....................................... 7

Robert A. Pratt, Selma’s Bloody Sunday:

Protest, Voting Rights, and the

Struggle for Racial Equality (2017) ..................... 20

“Prayer Pilgrimage Program, 1957,”

Papers of A. Philip Randolph

(on file with Library of Congress) ........................ 19

Albert J. Raboteau, Slave Religion: The

“Invisible Institution” in the

Antebellum South (2004) ............................... 15, 16

Jack N. Rakove, Beyond Belief, Beyond

Conscience: The Radical Significance

of the Free Exercise of Religion (2020) ....... 9, 12, 14

ix

Peter Randolph, Sketches of Slave Life:

or, Illustrations of the ‘Peculiar

Institution’ (1855) ................................................. 16

Jeffrey L. Rubenstein, A History of

Sukkot in the Second Temple and

Rabbinic Periods (2020) ......................................... 6

Robert Baylor Semple, I History of the

Rise and Progress of the Baptists in

Virginia (rev. 1894) .............................................. 13

C.H. Spurgeon, Open Air Preaching

(1877) ...................................................................... 5

James Taylor, The Scottish Covenanters

(1887) .............................................................. 11, 12

Alexandra Walsham, The Reformation of

the Landscape: Religion, Identity,

and Memory in Early Modern Britain

and Ireland (2011) ................................................. 9

We’ll March: Prayer Pilgrimage to

Capital Planned, The Baltimore

Afro-American, Feb. 23, 1957 .............................. 19

INTEREST OF THE AMICUS CURIAE1

The Becket Fund for Religious Liberty is a nonprofit, nonpartisan law firm that protects the free expression of all religious faiths. Becket has represented

agnostics, Buddhists, Christians, Hindus, Jains, Jews,

Muslims, Native Americans, Santeros, Sikhs, and Zoroastrians, among others, including in multiple cases

at this Court.

Becket has frequently represented religious people

and entities that have sought a place to worship, including outdoors. See, e.g., Apache Stronghold v.

United States, No. 21-15295 (9th Cir. argued Oct. 22,

2021) (outdoor worship by San Carlos Apache); Slockish v. U.S. Dep’t of Transp., No. 21-35220 (9th Cir. en

banc rehearing denied May 6, 2022) (outdoor worship

by Klickitat and Cascade Tribes of Yakama Nation);

Agudath Israel of Am. v. Cuomo, 141 S. Ct. 889 (2020)

(indoor and outdoor worship by Orthodox Jews during

COVID pandemic); Capitol Hill Baptist Church v.

Bowser, 496 F. Supp. 3d 284 (D.D.C. 2020) (outdoor

worship by Baptist church during COVID pandemic;

amicus); Bear Lodge Multiple Use Ass’n v. Babbitt, 175

F.3d 814 (10th Cir. 1999) (outdoor worship by Cheyenne River Sioux and other tribes; amicus).

Becket offers this brief to demonstrate that from

the perspective of history and tradition, outdoor religious gatherings have always been considered places

of religious worship.

No counsel for a party authored any portion of this brief or

made any monetary contribution intended to fund its preparation

or submission. All parties have consented to the filing of this

brief. Notice was provided in accordance with Rule 37.2.

1

2

INTRODUCTION

For all of known human history, people have worshipped outside. From Mount Sinai to the Sermon on

the Mount, from the pilgrimage to Canterbury to the

Prayer Pilgrimage for Freedom, outdoor worship has

been a primary and essential form of religious practice

across many traditions, countries, and centuries.

As we explain below, there is a long and rich history that treats outdoor religious gatherings, whether

planned or spontaneous, as “places of religious worship.” Indeed, across Anglo-American history, many

minority religious groups—Lollards, Quakers, Virginia Baptists, American slaves—were persecuted for

worshipping outdoors and fought back against those

prohibitions.

Outdoor worship was well known to the Founding

generation, both because of their knowledge of outdoor

gatherings described in the Bible, and because of long

experience in England and the colonies. They knew

about celebrity field preacher George Whitefield, who

attracted tens of thousands to his open-air sermons,

and about the itinerant Virginia Baptist preachers,

whose imprisonment outraged the young James Madison.

After the Founding, outdoor worship played a pivotal role in major religious and social movements in

this country, including in the camp meetings and tent

revivals of the 19th and 20th centuries, and in the

Civil Rights movement. And to this day, Americans of

many religious traditions engage in outdoor worship

in diverse forms, from Sukkot to Holi to Apache sunrise ceremonies and Christian worship services during

the COVID pandemic.

3

The existence of this unbroken history of religious

practice has both constitutional and statutory consequences. No account of the First Amendment could

plausibly exclude the ability of religious believers to

gather outdoors for worship. And no account of the

FACE Act could pretend that the Act was meant to

narrow the set of places of worship already protected

by the First Amendment, or that in 1994 Congress silently excluded most outdoor religious gatherings from

the statutory category “places of religious worship.”

The historical baseline does not permit such absurd

inferences.

Here, Petitioners’ practice of gathering at sidewalk

booths to pray and proselytize for the Falun Gong faith

falls squarely within the historical tradition. The Second Circuit concluded otherwise only by grafting atextual limitations onto the FACE Act, holding that

“places of religious worship” qualify as such only when

their “primary purpose” is worship, as determined by

an undefined religious “leader” or “collective.” Those

limitations would have disqualified most historical

outdoor worship, which was frequently practiced in

multipurpose locations (e.g., fields, parks, streets) and

by people at odds with the religious “leader[s]” and

“collective[s]” of their day.

More troubling still, the Second Circuit’s rule

would remove the FACE Act’s protections from a large

array of outdoor worship activities commonly practiced by many different faith traditions. An American

celebrating Sukkot, Eid, Holi, baptism in a river, or a

eucharistic procession should not enjoy any less protection under the FACE Act than someone worshipping inside a church, synagogue, mosque, or temple.

4

In short, the Second Circuit’s protestations notwithstanding, that court effectively read into the statute a principle that arbitrarily disfavors outdoor worship. Requiring official designation of a location as a

“place of worship” by a hierarchical authority means

that many outdoor worship activities will not meet the

Second Circuit’s standard. Such a principle is no more

tenable than claiming that outdoor pickup games or

impromptu political protests are not true sporting

events or political assemblies because no hierarchical

authority provided some official designation beforehand. The Court should therefore grant the petition.

ARGUMENT

I. Historical practices and understandings

confirm that outdoor religious gatherings are

“places of religious worship.”

In Town of Greece v. Galloway, the Court recognized that whatever other test might apply, the Establishment Clause “must be interpreted by reference to

historical practices and understandings.” 572 U.S.

565, 576 (2014) (cleaned up). Applying that same principle to the Religious Land Use and Institutionalized

Persons Act of 2000, this Court recently looked to the

“rich history of clerical prayer” in holding that the

Texas Department of Criminal Justice was required to

accommodate a prisoner’s religious exercise at the

time of execution. Ramirez v. Collier, 142 S. Ct. 1264,

1278 (2022). That same historical inquiry should inform the Court’s analysis here. As we show below, historical practices and understandings treat outdoor

gatherings as places of religious worship.

5

A. Historical practices and understandings

before the Founding treated outdoor

gatherings as places of religious worship.

The history of religious exercise before the Founding—in England, the colonies, and elsewhere—demonstrates that outdoor gatherings were treated as places

of religious worship.

1. In the first instance, the worship traditions described in the Bible—the touchstone of English and

American religious belief for many centuries—plainly

encompassed outdoor gatherings.2 Thus Exodus recounts that “Moses brought the people out of the camp

to meet God; and they took their stand at the foot of

the mountain”—Mount Sinai—where the Ten Commandments were handed down. Exodus 19:17 3 ; see

also Exodus 20:1-17. The Israelites later constructed

the Mishkan, or Tabernacle, to serve as their portable

place of worship during their 40 years of wilderness

wandering. See Exodus 25-30, 36-40. The people made

burnt offerings on the altar in the Tabernacle’s openair courtyard. See Exodus 27:1-8, 38:1-7; Leviticus 1.

The role of sukkot, or booths, in Jewish practice

bears special mention given the nature of Petitioners’

religious practice. In the book of Leviticus, the people

“The Bible, more than any other written word, informed the

world of the founding fathers and the society around them.” Daniel L. Dreisbach, Reading the Bible with the Founding Fathers 5

(2017). And as leading English evangelist Charles Spurgeon later

recognized, outdoor worship was squarely within the biblical tradition: “[I]t can be argued, with small fear of refutation, that open

air preaching is as old as preaching itself.” C.H. Spurgeon, Open

Air Preaching 5 (1877).

2

3

All biblical citations are to the Revised Standard Version.

6

of Israel were instructed to observe Sukkot, or the

“feast of booths.” Leviticus 23:33-44. During the holiday, Jews are to build and inhabit booths—temporary

open-air structures—in order to “commemorate the

booths in which the Israelites dwelled during the desert sojourn.” Jeffrey L. Rubenstein, A History of Sukkot in the Second Temple and Rabbinic Periods 18

(2020).

Other examples of outdoor gatherings for worship

are common in the Christian New Testament. John

the Baptist preached “in the wilderness of Judea” and

baptized people “in the river Jordan.” Matthew 3:1, 6.

Jesus delivered the Sermon on the Mount to disciples

and crowds gathered “on the mountain.” Matthew 5:1.

And the Apostle Paul addressed the “[m]en of Athens”

both “in the market place” and on Mars Hill. Acts

17:17, 22.

2. Aside from the biblical examples that were wellknown to the Founding generation, the history of religious practice in England reflects a long and varied

tradition of outdoor worship.

Outdoor eucharistic processions—fostered especially in the 11th century by Archbishop of Canterbury

Lanfranc of Bec—were a longstanding feature of Catholic worship. See Terence Bailey, The Processions of

Sarum and the Western Church 116 (1971). The earliest of these were Palm Sunday processions, which

were “almost always out of doors,” and in which “it became the practice to carry the Blessed Sacrament to

represent the person of Christ.” Ibid.

Pilgrimages were also outdoors, the most prominent example being the pilgrimage to Canterbury Ca-

7

thedral, where Archbishop Thomas Becket was murdered in 1170. See Howard Loxton, Pilgrimage to Canterbury 64-72 (1978). “Over the next three centuries

the pilgrimage to Canterbury became one of the most

important in all Christendom.” Id. at 11. A written

record from the jubilee year of 1420 reports that “the

people, in estimate, then arrived to the number of one

hundred thousand men and women.” Ben Nilson, Cathedral Shrines of Medieval England 113-114 & n.154

(1998) (quoting Raymonde Foreville, Le Jubilé de

Saint Thomas Becket 180 (1958)). Chaucer famously

memorialized the pilgrimage experience in his Canterbury Tales. See I Chaucer’s Canterbury Tales 1 (Alfred

W. Pollard ed., 1894) (“Thanne longen folk to goon on

pilgrimages”).

3. Religious dissenters worshipped outside from

the beginning. In the late 14th century, itinerant

preachers known as the Lollards began to propagate

the dissenting religious views of Oxford theologian

John Wyclif, who was condemned as a heretic. See

generally Anne Hudson, The Premature Reformation:

Wycliffite Texts and Lollard History (1988). Although

the location of Lollard gatherings “varied according to

the degree to which secrecy was necessary,” id. at 153,

Lollards frequently preached or gathered outdoors.

The medieval historian Henry Knighton records that

when Lollard William Swinderby was “suspend[ed] * * * from preaching in the said chapel, or

in any other church or churchyard in the diocese,” he

“made his pulpit” between “a pair of millstones for

sale, standing in the street,” and “preached there

many times in defiance of the bishop.” Knighton’s

Chronicle 1337-1396 311-313 (G.H. Martin ed. &

trans., 1995).

8

The government responded by suppressing outdoor

religious gatherings. In 1382, Parliament condemned

“wicked persons” who “go from county to county and

from town to town,” and “preach daily, not only in the

churches and churchyards, but also in markets, fairs,

and other public places where there is a large congregation of people.” Joseph H. Dahmus, The Prosecution

of John Wyclyf 98 (1952) (quoting Rotuli Parliamentorum 3, 124-125). In 1401, Parliament established the

death penalty for heretics who among other things

“make unlawful Conventicles.” De hæretico comburendo, 2 Hen.IV c.15 (1401). 4 Lollards nevertheless

continued to “practise[] their faith” by gathering in illegal conventicles that met both in “private homes”

and “out of doors,” including in parks. Lollards of Coventry 1486-1522 35-36 (Shannon McSheffrey & Norman Tanner eds. & trans., 2003).

4. After the Reformation, the cycle of religious persecution leading to outdoor worship continued, now directed at both Catholic and nonconformist Protestant

worship.

Much Catholic worship was thrust outdoors after

1559, when Elizabeth I’s Act of Uniformity required

adherence to the Church of England. See Lisa

McClain, Without Church, Cathedral, or Shrine: The

Search for Religious Space Among Catholics in England, 1559-1625, 33 The Sixteenth Century J. 381,

381-382 (2002). As Protestants “converted Catholic

churches, chapels, and cathedrals to sites of

Protestant worship,” ibid., Catholics “were compelled

“Conventicle” was the legal term for an unauthorized religious meeting.

4

9

to perform mass outdoors” (and in “humble farms, cottages, alehouses, and barns”). Alexandra Walsham,

The Reformation of the Landscape: Religion, Identity,

and Memory in Early Modern Britain and Ireland 177

(2011).

Nonconformist Protestants were also targeted after

the restoration of the Stuart monarchy in 1660, which

“led to the full reestablishment of the Church of England.” Jack N. Rakove, Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise

of Religion 28 (2020). The new King Charles II “was

willing to seek practical accommodations with religious dissenters,” but “the long Cavalier Parliament

(1661-1678) had other intentions.” Ibid. What followed

was a series of statutes to restrict religious speech and

reduce non-conformity, including the Act of Uniformity 1662, the Conventicle Act 1664, the Five Mile

Act 1665, the Second Conventicle Act 1670, and the

Test Act 1673. Michael J. Braddick, State Formation

in Early Modern England c. 1550-1700 315-316 & n.85

(2000); see also Geoffrey Holmes, The Making of a

Great Power: Late Stuart and Early Georgian Britain,

1660-1722 454-457 (1993) (summarizing statutes).

The Act of Uniformity 1662—which required all

clergy to declare their “unfeigned assent and consent”

to the revised Book of Common Prayer, 14 Car.II, c.4—

resulted in the ejection or resignation of more than 900

clergy. See Holmes 41 (approximately 2,029 ministers,

lecturers, and fellows were ejected from their posts between 1660 and 1662). The Conventicle Act 1664 made

it illegal to attend a meeting of more than five people,

excluding members of the same household, for worship

(“under colour or pretence of any Exercise of Religion”)

10

outside the Church of England. 16 Car.II, c.4.5 The Second Conventicle Act 1670 introduced greater fines

against preachers and anyone hosting the meeting. 22

Car.II, c.1. And the Five Mile Act 1665 forbid the

ejected ministers and other unlicensed preachers from

coming within five miles of their former parishes or of

any city or town. 17 Car.II, c.2.

Nonconformists turned to outdoor worship when

the church doors were closed to them. In one famous

example, William Penn and fellow Quaker William

Mead were arrested in August 1670 for “preaching in

the street” just outside a Quaker Meeting House in

London that the government had closed under the

Conventicle Act. Andrew R. Murphy, Liberty, Conscience, and Toleration: The Political Thought of William Penn 59 (2016). As Penn later told the jury, “we

were by force of arms kept out of our lawful house, and

met as near it in the street as their soldiers would give

us leave.” Id. at 59-60. The two were arrested and

charged with disturbing the peace and addressing a

tumultuous assembly. See id. at 60. A jury acquitted

the two men following a “dramatic sequence of events”

at trial that “included a contempt of court charge because they wore hats in the courtroom.” John D. Inazu,

Liberty’s Refuge: The Forgotten Freedom of Assembly

24 (2012). “The case gained renown throughout England and the American colonies.” Ibid. “[E]very

Quaker in America knew of the ordeal suffered by the

founder of Pennsylvania,” and “every American lawyer

Notably, the Conventicle Acts expressly forbade outdoor worship gatherings, levying fines against anyone hosting such a

meeting “in his or her House, Outhouse, Barne[,] Roome[,] Yard

or Backside Woods or Grounds.” 16 Car.II, c. 4; 22 Car.II, c.1

(same).

5

11

with a practice in the appellate courts was familiar

with it, either directly or through its connection with

its still more famous aftermath.” Irving Brant, The

Bill of Rights: Its Origin and Meaning 67-68 (1965).

Even as the Conventicle Acts drove the Quakers to

preach in the streets, dissenting Scottish Presbyterian

“Covenanters” took to the fields to do the same. Approximately 350 Scottish ministers—“upwards of onethird of the whole number”—were ejected from their

pulpits in 1662. James Taylor, The Scottish Covenanters 41 (1887). The ejected ministers first performed religious services in their homes, and “when the number

of their hearers increased they repaired to the open

fields.” Id. at 43. “[I]nspired by the conduct of ‘primitive’ Christians under the Roman Empire,” these conventicles became “the most readily identifiable feature

of Scottish presbyterian dissent in the Restoration

era.” Neil McIntyre, Presbyterian Conventicles in Restoration Scotland, 45 Scottish Church History 66, 68

(2016).

After a brief period of moderation, the Scottish Parliament enacted the oppressive “Act against Conventicles” in 1670. RPS 1670/7/11. Ejected ministers were

prohibited from preaching or even praying except in

their own houses and to members of their own family.

Heavy fines were imposed on anyone who attended a

conventicle. And preaching or praying at “field conventicles” was punishable by death:

Whosoever without licence or authority shall

preach, expound Scriptures, or pray at any of

these meetings, in the field, or in any house

where there be more persons than the house

contains, so as some of them be without doors

12

(which is hereby declared to be a field-conventicle) * * * shall be punished with death and

confiscation of their goods.

Ibid. But “[t]he more * * * that these conventicles

were forbidden and punished, the more they multiplied.” Taylor 72. Field conventicles were “usually requested by local laymen” and advertised by “word-ofmouth,” a method that “could be remarkably successful.” McIntyre 76-77. “By 1677 both presbyterians and

the authorities were reporting attendances in their

thousands at outdoor conventicles.” Id. at 75.

5. Outdoor worship featured prominently in the

religious life of the American colonies, most notably in

the open-air preaching of George Whitefield. See Rakove 62. During Whitefield’s grand tour of the colonies

in 1739-40, “[w]ord of his coming ran in advance, and

farmers would drop their tools to hurry to the meeting

site, which was often an open field where Whitefield

would preach atop his traveling stool.” Ibid.; see also

Michael J. Crawford, ed., The Spiritual Travels of Nathan Cole, 33 Wm. & Mary Q. 89 (1976) (recounting a

farmer’s journey to see Whitefield).

Whitefield—an Anglican priest and early proponent of the Methodist movement—began “preaching

out of doors” in England, a practice that allowed him

to “accommodate many more listeners,” and to “preach

in places where he was banned from the pulpit.”

Thomas S. Kidd, George Whitefield: America’s Spiritual Founding Father 65 (2014). Upon arriving in

Philadelphia in November 1739, Whitefield “spoke

from the Philadelphia courthouse stairs to a crowd he

estimated at six thousand,” who “‘stood in awful silence’ as they listened.” Id. at 89 (internal citation

omitted). By October 1740, Whitefield preached to a

13

“mammoth throng” on Boston Common that “was

larger than the population of Boston, and possibly the

largest ever gathered in the history of the English colonies.” Ibid.

6. The Founders were also familiar with outdoor

worship because of the experience of the Virginia Baptists, who “were still being horsewhipped and jailed as

late as 1774 for preaching without a license.” Michael

W. McConnell, Establishment and Disestablishment at

the Founding, Part I: Establishment of Religion, 44

Wm. & Mary L. Rev. 2105, 2119 (2003). Itinerant Baptist ministers in the 1770s preached not only in private

homes and meeting-houses, but also outdoors. See

Robert Baylor Semple, I History of the Rise and Progress of the Baptists in Virginia 4 (rev. 1894). One account, taken from a June 15, 1771 diary entry by the

Baptist minister Daniel Fristoe, reads as follows:

The next day (being Sunday) about 2000 people came together; after preaching, heard others that proposed to be baptized, 13 of which

were deemed properly qualified. Then went to

the water where I preached and baptized 29

persons. The trees about the water were so

overloaded with spectators that some trees

came down, but none hurt * * * . When I had

finished we went to a field and making a circle

in the center, there laid hands on the persons

baptized.

Lewis P. Little, Imprisoned Preachers and Religious

Liberty in Virginia 242-243 (1938) (internal citation

omitted).

Imprisoned Baptist ministers continued to preach

through the “grates”—the iron bars that secured the

14

cell windows—to gathered crowds outside. Little 105.

For example, when William Webber and Joseph Anthony were imprisoned in December 1770 for “misbehaviour by Itinerant preaching,” “[t]hey made regular

appointments for preaching twice a week, and, as they

could not go to the congregations, the congregations

came to them.” Id. at 210, 212 (internal citations omitted). “The space around the jail was the meeting place,

and the sill of the jail window was the desk upon which

lay their Bible and hymn book.” Id. at 212 (internal

citation omitted). When the imprisoned Baptists persisted in preaching to crowds outside the jail, “a wall,

or fence, was built around the Chesterfield jail to prevent the people from hearing the imprisoned preachers when they preached through ‘the grates.’” Id. at

355-357 (collecting sources).

The persecution of the Virginia Baptists particularly outraged James Madison. In 1774, when a group

of itinerant Baptist ministers was imprisoned for

preaching without a license in a neighboring county,

Madison “railed against the narrow prejudices of the

established clergy who pressed the charges,” calling

them a “Quota of Imps.” Rakove 1. In a letter to a college friend, Madison wrote that “5 or 6” men were imprisoned in an “adjacent County” for “publishing their

religious Sentiments,” and decried “[t]hat diabolical

Hell conceived principle of persecution rages among

some.” James Madison, Letter to William Bradford

(Jan. 24, 1774), reproduced in National Archives,

Founders Online, https://founders.archives.gov/documents/Madison/01-01-02-0029.

Given this history, by the time the First Amendment was adopted and ratified, the concept of outdoor

worship—and its equal station—was very familiar to

15

the Founders. The First Amendment and freedom of

religion generally can only be understood in light of

that historical tradition.

B. Historical practices and understandings

from the Founding until 1994 treated

outdoor gatherings as places of religious

worship.

Experience after the Founding, including the adoption of the Fourteenth Amendment, carried on the understanding of outdoor worship as an integral part of

religious practice.

1. During the antebellum period, outdoor worship

played a central role in the lives of slaves in the American South, for whom religion “was both institutional

and noninstitutional, visible and invisible.” Albert J.

Raboteau, Slave Religion: The “Invisible Institution”

in the Antebellum South 212 (2004).

Some slave owners did not allow their slaves to attend church, either because they refused to believe

their slaves had souls, Raboteau 220, or because they

feared that “religion was leading to abolition and to

slave rebellion.” Steven G. Calabresi & Abe Salander,

Religion and the Equal Protection Clause: Why the

Constitution Requires School Vouchers, 65 Fla. L. Rev.

909, 984 (2013). Other slave owners “did permit—

some even required—their slaves to worship on the

Sabbath, either at the local church or at meetings conducted on the plantation by white ministers or slave

preachers.” Raboteau 220. But “[s]ermons urging

slaves to be obedient and docile were repeated ad nauseam” in these authorized church services. Id. at 213.

16

It was “[i]n the secrecy of the quarters or the seclusion of the brush arbors”—known as “hush harbors”—

that slaves “made Christianity truly their own.” Raboteau 212. At these “illicit, or at least informal, prayer

meetings,” “[p]reachers licensed by the church and

hired by the master were supplemented by slave

preachers licensed only by the spirit.” Ibid. To avoid

detection, slaves held religious gatherings in their cabins or in “secluded places—woods, gullies, ravines, and

thickets,” where they could “pray and sing as they desired.” Id. at 215. Peter Randolph, a former slave in

Prince George County, Virginia, described the location

of one secret prayer meeting as follows:

Not being allowed to hold meetings on the

plantation, the slaves assemble in the swamp,

out of reach of the patrols. They have an understanding among themselves as to the time

and place of getting together. This is often

done by the first one arriving breaking boughs

from the trees, and bending them in the direction of the selected spot.

Peter Randolph, Sketches of Slave Life: or, Illustrations of the ‘Peculiar Institution’ 68 (1855).

Slaves faced draconian penalties if they were

caught attending secret prayer meetings. In the decades preceding the Civil War, “southerners established harsh laws restricting slaves’ ability to exercise

their religion, including draconian regulations on

black religious assemblies.” Calabresi & Salander, 65

Fla. L. Rev. at 984. In South Carolina, for example, it

was “unlawful for ‘assemblies of slaves, free negroes,

mulattoes and mestizoes’ to meet ‘in a confined or secret place,’” and violations were punishable by “such

corporal punishment, not exceeding twenty lashes,

17

upon such slaves, free negroes, &c., as [the magistrate]

may judge necessary for deterring them from the like

unlawful assemblage in the future.” Kurt T. Lash, The

Second Adoption of the Free Exercise Clause: Religious

Exemptions Under the Fourteenth Amendment, 88 Nw.

U. L. Rev. 1106, 1134 n.133 (1994) (internal citation

omitted). In the District of Columbia, “all meetings for

religious worship, beyond the hour of ten o’clock at

night, of free negroes, mulattoes or slaves” were “declared to be unlawful.” Ibid. (internal citation omitted). Other laws “prohibited slaves from preaching or

religious practice unless in the presence of whites,”

and “prohibit[ed] blacks from reading the Bible, becoming ministers, [and] preaching.” Calabresi & Salander, 65 Fla. L. Rev. at 984-985 (internal citations

omitted).

Abolitionists saw the cumulative effect of these

laws as “devastating slaves’ ability to exercise their religious faith.” Lash, 88 Nw. U. L. Rev. at 1137. Proclaiming these violations of religious freedom as “one

of the greatest evils of the peculiar institution,” abolitionists “joined a growing chorus of voices calling for a

broader interpretation of the original Bill of Rights.”

Ibid. That coalition ultimately led to the adoption of

the Fourteenth Amendment. See id. at 1146.

2. Yet another strain of outdoor worship after the

Founding appears in the tradition of American revival

gatherings known as the “Second Great Awakening,”

which began with the “camp meetings” of the early

19th century. In July 1800, a multi-day communion

service at the Gasper River meetinghouse in Logan

County, Kentucky, “drew people from distances of

‘even a hundred miles.’” Paul K. Conkin, Cane Ridge:

America’s Pentecost 60 (1990). Because the numbers

18

exceeded the capacity of the meetinghouse, “woodsmen cleared away the underbrush around the tiny

church and built a preaching stand and simple log

seats.” Charles A. Johnson, The Frontier Camp Meeting: Religion’s Harvest Time 36 (1955). At a still larger

gathering in August 1801, thousands flocked to Cane

Ridge, Kentucky, for a six-day communion service that

featured tumultuous crowds—one attendee described

the noise as “like the roar of Niagara”—and “continual” preaching from “both the meetinghouse and the

tent.” Conkin 88-89. That “climactic event” at Cane

Ridge precipitated a series of outdoor revivals in Kentucky that “attracted a cumulative attendance of over

100,000 people, even by conservative estimates.” Id. at

115. Similar events erupted in New England, New

York, and New Jersey in 1800 and 1801, and “by the

1820s Charles Finney led revivals * * * in upstate

New York that rivaled in fervor those in Kentucky.”

Id. at 117.

Future generations of evangelists—to include

Dwight L. Moody, Billy Sunday, and Aimee Semple

McPherson, among others—adapted the outdoor revival tradition to the urban context. “Theaters, abandoned warehouses, outdoor pavilions, dance halls, and

roller rinks could all serve as meeting houses for revivals”—but “[o]ne of the most common gathering

places * * * was the tent.” Josh McMullen, Under the

Big Top: Big Tent Revivalism and American Culture,

1885-1925 24 (2015). Nearly every evangelist at the

turn of the twentieth century “at some point in their

ministerial career found themselves preaching inside

a tent.” Id. at 25. The use of tents and “tabernacles”—

temporary structures erected to house revivals, see id.

19

at 26-27—allowed traveling evangelists to both “distance themselves from the established churches” and

“connect their ministry to the simple camp meetings of

early evangelicalism.” Id. at 49-50. In 1949, it was a

tent revival in Los Angeles—held in a massive circus

tent known as the “Canvas Cathedral”—that famously

launched the career of evangelist Billy Graham. William C. Martin, A Prophet with Honor: The Billy Graham Story 116, 123 (rev. 2018).

3. Still further examples of outdoor worship gatherings appeared at critical stages of the American civil

rights movement. In 1957, Martin Luther King, Jr. announced plans for the Prayer Pilgrimage for Freedom

to Washington, DC, publicly stating that the march

“will be rooted in deep spiritual faith.” We’ll March:

Prayer Pilgrimage to Capital Planned, The Baltimore

Afro-American, Feb. 23, 1957, at 1. On May 17, 1957,

nearly 27,000 people gathered on the steps of the Lincoln Memorial, where “[t]he prayers of the clergy for

divine guidance in the struggle for human rights were

re-inforced by the pleas of veteran civil rights advocates.” 27,000 Prayer Pilgrims Hear Randolph, Wilkins And King in D.C. March, Cleveland Plain Dealer,

May 24, 1957, at 1. The written program for the event

resembles an order of worship. It includes a clergy-led

invocation, numerous hymns (such as “A Mighty Fortress Is Our God”), Old Testament and New Testament Scripture readings, prayer, musical solos (by

prominent gospel singer Mahalia Jackson), remarks

by King, and a benediction. “Prayer Pilgrimage Program, 1957,” Papers of A. Philip Randolph (on file with

Library of Congress).

In 1965, the civil rights marchers in Selma, Alabama, engaged in spontaneous acts of outdoor worship

20

at key moments of those historic demonstrations. On

March 7—thereafter known as “Bloody Sunday”—

John Lewis and Hosea Williams led roughly 600 demonstrators across the Edmund Pettus Bridge, where

they were blocked by state troopers and ordered to disperse. Robert A. Pratt, Selma’s Bloody Sunday: Protest, Voting Rights, and the Struggle for Racial Equality 1 (2017). “Hosea and John knelt down, and the hundreds of marchers likewise knelt in a wave behind

them. John began to pray out loud.” Bernard Lafayette, Jr. & Kathryn Lee Johnson, In Peace and Freedom: My Journey in Selma 125 (2013). As Lewis

prayed, “the troopers lined up and prepared themselves for battle, putting on their gas masks and pulling out their nightsticks.” Pratt 60. “And then all hell

broke loose.” Ibid.

Two days later, King led some 2,000 marchers

across the Pettus Bridge to the city limits of Selma.

Once again, the crowd was ordered to disperse—and

once again, they prayed instead.

After the singing of “We Shall Overcome”

King then knelt and asked Rev. Ralph Abernathy to lead the demonstrators in prayer.

“We come to present our bodies as a living sacrifice,” Abernathy prayed. “We don’t have

much money, but we do have our bodies, and

we lay them on the altar today.”

Pratt 73. After the prayer, King rose and led the

marchers back across the bridge. He would later call

the second Selma march a “Confrontation of Prayer.”

Lafayette & Johnson 128.

21

4. There are also many non-Christian religious

traditions that have long held outdoor gatherings in

this country.

For example, Native Americans have conducted

outdoor religious ceremonies on sacred lands since before recorded history. See generally Joseph Epes

Brown & Emily Cousins, Teaching Spirits: Understanding Native American Religious Traditions

(2001). In recent decades, these practices have frequently resulted in litigation. See, e.g., Apache Stronghold v. United States, No. 21-15295 (9th Cir. argued

Oct. 22, 2021) (outdoor worship by San Carlos Apache

at sacred site on government land); Slockish v. U.S.

Dep’t of Transp., No. 21-35220 (9th Cir. en banc rehearing denied May 6, 2022) (outdoor worship on government land by Klickitat and Cascade Tribes of

Yakama Nation); Bear Lodge Multiple Use Ass’n v.

Babbitt, 175 F.3d 814 (10th Cir. 1999) (outdoor worship on government land by Cheyenne River Sioux and

other tribes).

As they have for millennia, Jews celebrate Sukkot

by building sukkot and then sleeping and eating meals

there during the weeklong festival. See, e.g., Annie

Groer, A Home for the Holiday: Prefab Sukkahs Help

Preserve a Centuries-Old Jewish Tradition, Wash.

Post, Oct. 9, 2003. Hindus celebrate the spring holiday

of Holi outdoors. See, e.g., Natalie Eilbert, For Hindus

in Green Bay and Fox Valley, Holi Festival splashes

vibrant colors across a world dulled by a pandemic,

Green Bay Press-Gazette, Mar. 22, 2022. Muslims typically pray the special Eid prayers outdoors in a

musalla, or large prayer ground. See Musalla, 3 The

Grove Encyclopedia of Islamic Art and Architecture 32

(Jonathan M. Bloom & Sheila S. Blair eds., 2009).

22

5. The tradition of outdoor gatherings continued

during the COVID pandemic. Facing unprecedented

restrictions on indoor religious worship, believers of

many traditions gathered to worship outdoors, including in parks and parking lots. See, e.g., Agudath Israel

of Am. v. Cuomo, 141 S. Ct. 889 (2020) (indoor and outdoor worship by Orthodox Jews); Maryville Baptist

Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020)

(drive-in Easter service by Baptist church); Capitol

Hill Baptist Church v. Bowser, 496 F. Supp. 3d 284

(D.D.C. 2020) (outdoor worship by Baptist church); see

also Marian Fam, US Muslims Try to Balance Eid Rituals with Virus Concerns, Associated Press, May 24,

2020 (mosque in Florida “held the Eid prayer outdoors

in the parking lot after announcing social distancing

rules”).

II. Gatherings like Petitioners’ fall squarely

within traditional notions of “places of

religious worship.”

As Petitioners have ably shown, the Second Circuit’s cramped and atextual definition of “place of religious worship” does not square with the language of

the FACE Act, 18 U.S.C. 248. See Pet. 13-20. That conclusion is buttressed by the “rich history” of outdoor

worship over many centuries—indeed, millennia—of

human experience. See Ramirez, 142 S. Ct. at 1278.

Petitioners’ practice of gathering at sidewalk

booths to pray and proselytize for the Falun Gong faith

(see Pet. 7-8) falls squarely within that historical tradition. As we have explained, see Section I above, the

practice of gathering for outdoor worship has been

part of human culture since time immemorial, has continued through each stage of American history, and

continues today.

23

Ignoring this tradition, the Second Circuit grafted

additional limitations onto the face of the statute. Under the Second Circuit’s rule, only places “primarily”

used for worship are protected by FACE Act, and a

place satisfies that “primary purpose” requirement

only when a religious “collective” or “leader” deems it

so. Pet.App.27a-29a. But these novel criteria would

have disqualified the vast majority of historical instances of outdoor worship. Indeed, for entire generations of persecuted minority groups—the Lollards, the

Quakers, the Virginia Baptists, the American slaves—

the very reason they worshipped outdoors is that the

religious “leader[s]” and “collective[s]” of their day expressly prohibited their religious practice. And most

historical examples of outdoor worship have taken

place in multipurpose outdoor locations like fields,

parks, and streets.

To be sure, the Second Circuit suggested in dicta

that there might be a fact pattern where one form of

outdoor worship—Native American religious ceremonies at sacred sites—might qualify for FACE Act protection during a “given” (but unspecified) “period of

time.” Pet.App.29a-30a. But the rule the Second Circuit announced in fact disfavors spontaneous or nonhierarchically determined outdoor religious observances, withdrawing the protections of the FACE Act.

It also wrongly treats some religious worship practices

worse than other forms of worship.

A prime example would be sukkot, which are generally placed where a family chooses to place them, not

where a religious authority designates them to be

placed. Because this appeal also involves booths, sukkot will be at special risk if the Second Circuit’s rule is

left in place.

24

Many other religious worship practices would also

be put in peril. Protestant worship services in a park,

Catholic religious processions, Muslim Eid celebrations, Hindu festivals like Holi—all could well be withdrawn from the protections of the FACE Act.

*

*

*

Worship does not take place only behind closed

doors. And sometimes it is spontaneous. The Second

Circuit’s atextual and ahistorical rule runs directly

counter to these realities and should not stand.

CONCLUSION

The petition should be granted.

Respectfully submitted.

ERIC C. RASSBACH

Counsel of Record

REBEKAH RICKETTS

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. NW

Suite 400

Washington, D.C. 20006

(202) 955-0095

erassbach@becketlaw.org

Counsel for Amicus Curiae

JUNE 2022