Henderson, Augustine v. Kennedy, Roger, et al, No. 00-5070 (D.C. Cir. 2001)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed October 2, 2001

No. 00-5070

Augustine David Henderson, Appellant

v.

Roger A. Kennedy, et al., Appellees

Consolidated with No. 00-5071

On Appellants' Petition for Rehearing

Before: Henderson, Randolph, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: The petition for rehearing di- rects us to amendments of the Religious Freedom Restora- tion Act (RFRA), 42 U.S.C. s 2000bb et seq., enacted a year ago, but not mentioned by either side when the case was last

before us. The petition argues that the amendments render erroneous our decision sustaining, as against a claim under RFRA, the National Park Service's regulation prohibiting the sale of t-shirts on the National Mall.

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

The amendments remove the doubt expressed in our opin- ion, see Henderson v. Kennedy, 253 F.3d 12, 16 (D.C. Cir. 2001), that the portion of RFRA remaining after City of Boerne v. Flores, 521 U.S. 507 (1997)--the portion, that is, applicable to the federal government (and not enacted pursu- ant to s 5 of the Fourteenth Amendment)--survived the Supreme Court's decision striking down the statute as applied to the States.

The amendments did not alter RFRA's basic prohibition that the "[g]overnment shall not substantially burden a per- son's exercise of religion." 42 U.S.C. s 2000bb-1(a). See also Henderson, 253 F.3d at 15; Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001); Murphy v. Zoning Comm'n of the Town of New Milford, 148 F. Supp. 2d 173, 188 (D. Conn. 2001). Our opinion assumed that plaintiffs Henderson and Phillips wanted to sell t-shirts on the Mall because of their religious beliefs. Our focus was on whether the Park Service regulation imposed a "substantial burden" on their exercise of religion. See Henderson, 253 F.3d at 16-17. In reaching our judgment we examined the importance of selling t-shirts on the Mall to the plaintiffs. Our conclusion was this: "Because the Park Service's ban on sales on the Mall is at most a restriction on one of a multitude of means [by which petition- ers may engage in their vocation to spread the gospel], it is not a substantial burden on their vocation. Plaintiffs can still

distribute t-shirts for free on the Mall, or sell them on streets surrounding the Mall." Id. at 17. That conclusion is unaf- fected by the amendments of RFRA. Although the amend- ments extended the protections of RFRA to "any exercise of religion, whether or not compelled by, or central to, a system of religious belief," 42 U.S.C. s 2000cc-5(7)(A), incorporated by 42 U.S.C. s 2000bb-2(4), the amendments did not alter the propriety of inquiring into the importance of a religious practice when assessing whether a substantial burden exists. The petition for rehearing is therefore denied.

So ordered.