Henderson, Augustine v. Kennedy, Roger ( 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.