United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 13, 2001 Decided June 26, 2001
No. 00-5070
Augustine David Henderson,
Appellant
v.
Roger A. Kennedy, et al.,
Appellees
Consolidated with
No. 00-5071
Appeals from the United States District Court
for the District of Columbia
(95cv00850)
(95cv01081)
James M. Henderson, Sr. argued the cause and filed the
briefs for appellant.
Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellees. With her on the brief were Wilma
A. Lewis, U.S. Attorney at the time the brief was filed, and R.
Craig Lawrence, Assistant U.S. Attorney.
Before: Henderson, Randolph, and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: Plaintiffs Henderson and Phillips
allege that they are evangelical Christians. They want to sell
t-shirts on the National Mall--a practice presently prohibited
by a regulation of the National Park Service. Initially they
claimed that the Free Speech Clause of the First Amendment
guaranteed them this right. When we ruled against that
claim in another case, they amended their complaints to add,
among other claims, causes of action based on the Religious
Freedom Restoration Act and the Equal Protection compo-
nent of the Due Process Clause. For the reasons that follow,
we affirm the district court's grant of summary judgment in
favor of the government.
I.
The Park Service's regulation, promulgated in 1995, flatly
prohibits the sale of goods in designated sections of the
National Mall such as the areas immediately surrounding the
Lincoln Memorial and the Washington Monument. 36 C.F.R.
s 7.96(k)(2). In other Mall areas, during "special events or
demonstrations," the sale of "books, newspapers, leaflets,
pamphlets, buttons and bumper stickers" is permitted. Id.
Before this regulation, t-shirts could be sold in conjunction
with demonstrations or special events. But "excessive com-
mercialism" had "degraded aesthetic values" and converted
much of the Mall area into a "flea market." National Capital
Region Parks; Sales, 59 Fed. Reg. 25,855, 25,857 (May 18,
1994). The Park Service therefore decided to ban certain
commercial transactions from the Mall, including the sale of
t-shirts. National Capital Region Parks; Special Regula-
tions, 60 Fed. Reg. 17,639 (Apr. 8, 1995).
Lawsuits challenging the regulation included one brought
by seven non-profit organizations that had been selling
t-shirts on the Mall, and separate pro se complaints by
Henderson and Phillips. See Friends of the Vietnam Veter-
ans Memorial v. Kennedy, 899 F. Supp. 680 (D.D.C. 1995)
("Friends I"), rev'd, 116 F.3d 495 (D.C. Cir. 1997) ("Friends
II"), on remand, 984 F. Supp. 18 (D.D.C. 1997) ("Friends
III"), rev'd sub nom. Henderson v. Stanton, 172 F.3d 919
(table), 1998 WL 886989 (D.C. Cir. 1998) (unpublished opin-
ion) ("Henderson III"); Henderson III, on remand, 76
F. Supp. 2d 10 (D.D.C. 1999) ("Henderson IV").1 The suits
alleged that the ban on the sale of t-shirts abridged the
freedom of speech in violation of the First Amendment.
The International Society of Krishna Consciousness
(ISKCON) also brought an action claiming, among other
things, that an earlier Park Service regulation violated the
First Amendment to the extent that it prohibited the sale of
audio tapes and religious beads on the Mall. Our decision,
rendered in August 1995, sustained the regulation's ban on
the sale of beads and audio tapes. ISKCON of Potomac, Inc.
v. Kennedy, 61 F.3d 949 (D.C. Cir. 1995). Nonetheless, the
district court later granted summary judgment in favor of the
non-profit organizations. Friends I, 899 F. Supp. at 688.
The district court reasoned that message-bearing t-shirts
were "a unique and especially effective means" of communi-
cating a viewpoint, id. at 684, and that the Park Service's
allowing other forms of commercial activity on the Mall
undercut the rationale of its ban. Id. at 686. We reversed,
holding that the case was controlled by ISKCON, and that
the regulation did not violate the First Amendment. Friends
II, 116 F.3d 495.
After Friends II, counsel for Henderson and Phillips en-
tered an appearance, and moved for leave to file an amended
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1 Henderson I, Henderson v. Lujan, 768 F. Supp. 1 (D.D.C.
1991), and Henderson II, Henderson v. Lujan, 964 F.3d 1179 (D.C.
Cir. 1992), challenged different provisions of an earlier version of
the same regulation, and are not relevant here.
complaint, seeking to add equal protection claims and claims
under the Religious Freedom Restoration Act (RFRA) and
the Administrative Procedure Act. Friends III, 984 F. Supp.
at 20. The district court initially granted leave to amend, but
reconsidered, and denied leave on the ground that the amend-
ments would be futile in light of Friends II. Id. In
Henderson III, an unpublished opinion, we reversed because
the court had not explained its holding. 172 F.3d 919 (table).
Henderson and Phillips then amended their complaints to
add the new causes of action and to allege that they "hold[ ]
the sincere religious belief that [they are] obliged by the
Great Commission to preach the good news, the gospel, of
salvation through Jesus Christ to the whole world." The
amended complaints also alleged that they have "a religious
vocation to communicate by all available means the message
of the Gospel." As part of their religious "outreaches" on the
National Mall, both had sold t-shirts in the past, and both
want to continue doing so. To that end, they sought declara-
tory and injunctive relief. The government moved to dismiss
or, in the alternative, for summary judgment. Both sides
submitted declarations in support of their pleadings. The
district court, apparently treating the government's motion as
one for summary judgment, granted it. Henderson IV, 76
F. Supp. 2d at 16.
II.
A.
We begin with plaintiffs' claims that the regulation's ban on
selling t-shirts on the Mall violates their rights under the
Religious Freedom Restoration Act (RFRA), 42 U.S.C.
s 2000bb et seq. Congress enacted RFRA in response to
Employment Division v. Smith, 494 U.S. 872 (1990). The
Smith Court held that the Free Exercise Clause of the First
Amendment--"Congress shall make no law ... prohibiting
the free exercise" of religion--did not exempt individuals
from complying with "neutral, generally applicable" laws,
even if the laws substantially burdened religious exercise.
494 U.S. at 881. In RFRA Congress sought to overturn the
Smith decision by restoring the test set forth in Sherbert v.
Verner, 374 U.S. 398 (1963), as the standard for Free Exer-
cise challenges to laws of general applicability. See City of
Boerne v. Flores, 521 U.S. 507, 512-13 (1997); Michael W.
McConnell, Institutions and Interpretation: A Critique of
City of Boerne v. Flores, 111 Harv. L. Rev. 153, 157 (1997).
Under Sherbert, the question had been whether the law
"substantially burdened" a religious practice and, if so, wheth-
er the burden was justified by a compelling governmental
interest. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972).
RFRA incorporated the "substantial burden" standard. It
prohibited any "branch, department, agency, instrumentality,
[or] official" of a state or federal government or "other
persons acting under color of law" from "substantially bur-
den[ing] a person's exercise of religion" unless the govern-
ment demonstrated that the burden "(1) is in furtherance of a
compelling governmental interest; and (2) is the least restric-
tive means of furthering that ... interest." 42 U.S.C.
s 2000bb-1. Branch Ministries v. Rossotti, 211 F.3d 137,
144 (D.C. Cir. 2000).
City of Boerne struck down the portion of RFRA regulat-
ing state and local governments because Congress had ex-
ceeded its power under s 5 of the Fourteenth Amendment.
521 U.S. 507. RFRA was not "remedial, preventive legisla-
tion." Id. at 532. It did not enforce the Free Exercise
Clause. Id. at 519, 532. Instead Congress had attempted to
alter the Supreme Court's interpretation of that constitutional
provision.
An initial question in light of City of Boerne is whether the
remainder of RFRA--the portion applicable to the federal
government (and not enacted pursuant to the s 5 of the
Fourteenth Amendment)--survives the Court's decision. If
severance of the invalid part of a statute results in legislation
that it is evident Congress would not have enacted, then the
entire statute should be considered invalid. See Alaska Air-
lines, Inc. v. Brock, 480 U.S. 678, 684-86 (1987); United
States v. Raines, 362 U.S. 17, 23 (1960). We mentioned this
issue at oral argument, but the government failed to argue
the point in its brief. And so we will leave to another day the
question whether RFRA is severable, as the Eighth and
Tenth Circuits believe. See Kikumura v. Hurley, 242 F.3d
950, 959 (10th Cir. 2001); In re Young, 141 F.3d 854, 858-59
(8th Cir. 1998).
As to the validity of the regulation under RFRA, we start
with the proposition that the regulation is neutral; it is
generally applicable and it does not discriminate among view-
points. Our decision in ISKCON settled as much. 61 F.3d at
957-58. Under RFRA, then, the question is: does the ban on
selling t-shirts on the Mall "substantially burden" plaintiffs'
exercise of their religion? The answer is clearly no. We are
not aware of any religious group that has as one of its tenets
selling t-shirts on the National Mall, even if the t-shirts bear
a religious message. Plaintiffs do not claim to belong to any
such group, nor do they allege that selling t-shirts in that
particular area of the District of Columbia is central to the
exercise of their religion. In their identical declarations,
submitted in opposition to summary judgment, Henderson
and Phillips stated only that they "hold the sincere religious
belief that [they] are obligated by the Great Commission to
preach the good news, the gospel, of salvation through Jesus
Christ to the whole world ... by all available means...."
With respect to t-shirts, they stated that in "obedience to
[their] vocation, [they] have distributed at a price publications
and t-shirts that [they have] written or designed, or contain-
ing content that conforms with [their] beliefs, because the
preparation of these materials requires money; [their] voca-
tion includes the distribution of such materials for an amount
that covers the cost to create them and to enable [them] to
carry out [their] vocation."
Given these representations, plaintiffs cannot claim that the
regulation forces them to engage in conduct that their reli-
gion forbids or that it prevents them from engaging in
conduct their religion requires. See Goodall by Goodall v.
Stafford Country Sch. Bd., 60 F.3d 168, 172-73 (4th Cir.
1995); Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir. 1995);
Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995) (per curiam).
Their declarations do not suggest that their religious beliefs
demand that they sell t-shirts in every place human beings
occupy or congregate. There is no indication that they have
followed--or attempted to follow--any such practice. If they
had, there is no doubt that they would have come in conflict
with a host of federal, state and local restrictions on commer-
cial activities in many areas, including for instance the interi-
ors of government buildings open to the public. Nor does the
regulation "significantly inhibit or constrain conduct or ex-
pression that manifests some central tenet of [Henderson's or
Phillips's] individual beliefs." Wener v. McCotter, 49 F.3d
1476, 1480 (10th Cir. 1995). Plaintiffs have not treated selling
t-shirts on the Mall as rising to that level of significance in
their religion. Further, plaintiffs have merely alleged that it
is their vocation to spread the gospel by "all available means."
Because the Park Service's ban on sales on the Mall is at
most a restriction on one of a multitude of means, 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. See Weir v. Nix, 114 F.3d 817 (8th
Cir. 1997) (considering alternatives in determining whether
burden was "substantial"); Bryant, 46 F.3d 948 (no "substan-
tial burden" where alternatives were available).
We acknowledge that the Seventh Circuit, in a pre-Boerne
state prison case arising under RFRA, listed among the tests
for determining whether there is a substantial burden on the
exercise of religion the question whether the governmental
restriction forced "adherents of a religion to refrain from
religiously motivated conduct," Mack v. O'Leary, 80 F.3d
1175, 1178 (7th Cir. 1996) (citing Brown-El v. Harris, 26 F.3d
68, 70 (8th Cir. 1994)).2 We are not applying that standard
for several reasons. First, plaintiffs did not advocate it.
Second, our opinion in Branch Ministries relied on a narrow-
__________
2 The full text of the court's holding is as follows:
We hold, therefore, that a substantial burden on the free
exercise of religion, within the meaning of the Act, is one that
forces adherents of a religion to refrain from religiously moti-
vated conduct, inhibits or constrains conduct or expression that
manifests a central tenet of a person's religious beliefs, or
compels conduct or expression that is contrary to those beliefs.
Mack, 80 F.3d at 1179.
er test. 211 F.3d at 142. To our court, "substantial burden"
in RFRA is what the Supreme Court had in mind in its pre-
Smith opinion in Jimmy Swaggart Ministries v. Board of
Equalization, 493 U.S. 378, 384-85 (1990): the proper free
exercise inquiry was whether "the government has placed a
substantial burden on the observation of a central religious
belief or practice and, if so, whether a compelling governmen-
tal interest justifies the burden." The idea that a restriction
on religiously motivated conduct requires a compelling gov-
ernmental interest is inconsistent with the formulation just
quoted. One can conceive of many activities that are not
central or even important to a religion, but nevertheless
might be religiously motivated. In fact it is hard to think of
any conduct that could not potentially qualify as religiously
motivated by someone's lights. To make religious motivation
the critical focus is, in our view, to read out of RFRA the
condition that only substantial burdens on the exercise of
religion trigger the compelling interest requirement. Despite
the language we have quoted from the Mack opinion, see
supra note 2, we do not think this is what the Seventh Circuit
intended. Later in its opinion, the court of appeals indicated
that under its test courts must "separate center from periph-
ery in religious observances," that only practices that are
"important" (if not central) to the religion qualify, and that
the "proper and feasible question for the court is simply
whether the practices in question are important to the votar-
ies of the religion...." 80 F.3d at 1179-80.
B.
Plaintiffs also mount an equal protection attack on the
t-shirt sales ban. They argue that the Park Service has not
applied its regulations equally because there have been dem-
onstrations in which--they allege--t-shirts were sold on the
Mall without the Park Service taking action against the
vendors. The contention is, in essence, one of selective
enforcement, a claim plaintiffs have not come close to making
out.
The Park Service submitted the declaration of Richard
Merryman, Chief of the Division of Park Programs, National
Capital Parks-Central, who explained that the Service "seeks
to monitor the activities of permittees on parkland to ensure
permit and regulatory compliance.... Whenever violations
are discovered ... action is taken to ensure compliance with
permits and regulations." Plaintiffs presented nothing in
rebuttal. Even if there had been lapses in enforcement,
there was no indication that these were attributable to imper-
missible discrimination. Plaintiffs, in short, failed to adduce
admissible evidence showing inconsistent treatment based on
"an unjustifiable standard such as race, religion, or other
arbitrary classification." United States v. Armstrong, 517
U.S. 456, 464 (1996) (citing Oyler v. Boyles, 368 U.S. 448, 456
(1962)); see also Sanjour v. EPA, 56 F.3d 85, 92 n.9 (D.C.
Cir. 1995); United States v. Grace, 778 F.2d 818, 822 n.7
(D.C. Cir. 1985).
Plaintiffs also allege an equal protection violation because
the Park Service permits Guest Services, Inc., a concession-
aire, to operate a number of facilities on the Mall in which it
sells various items, including food and t-shirts. In Friends II
we rejected an argument, based on these kiosk sales, that "in
areas where the Park Service already allows a certain degree
of commercialism," the First Amendment's Free Speech
Clause requires that it also allow t-shirt sales. 116 F.3d at
498. So here. Plaintiffs have not shown that they are
"similarly situated" to the commercial vendor. See Cleburne
v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1984);
Women Prisoners of D.C. Dep't of Corrections v. District of
Columbia, 93 F.3d 910, 924 (D.C. Cir. 1996). The concessions
at issue are expressly authorized by statute, 16 U.S.C.
ss 5951-5966, they are carefully regulated to ensure that
they do not have a negative impact on the Mall, and they are
"limited only to those facilities and services necessary and
appropriate for the convenience of the public." 60 Fed. Reg.
at 17,647. So far as the record reveals, plaintiffs have not
applied to become concessionaires and they have not sought
to meet any of the regulatory requirements governing conces-
sionaires. Id.
In essence, plaintiffs ask us to hold that equal protection
requires the Park Service to ban t-shirt sales by all possible
vendors, or by none. However, "[i]t is not a requirement of
equal protection that all evils of the same genus be eradicated
or none at all." Railway Express Agency v. New York, 336
U.S. 106, 110 (1949). Congress has decided that some conces-
sions may be appropriate to serve park visitors, and the Park
Service has adopted a reasonable scheme to accomplish that
end while preserving the aesthetic integrity of the National
Mall. The classification of which plaintiffs complain "does not
contain the kind of discrimination against which the Equal
Protection Clause affords protection." Id. The district court
rightly held that they had not made out a colorable equal
protection claim.
C.
Plaintiffs also attempted to raise several First Amendment
claims. We say "attempted" because it is not clear to us what
arguments plaintiffs were trying to convey. For a few pages
of their brief they characterized themselves as members of
the press entitled to the protection of the freedom of the
press guarantee in the First Amendment. The argument, to
the extent it may be considered as such, goes nowhere. The
Washington Post is no more entitled to sell t-shirts on the
Mall than anyone else. In Friends II and ISKCON, we
applied time, place and manner analysis to determine that the
Park Service's regulation was valid under the First Amend-
ment because it was content neutral, narrowly tailored to
achieve a significant government interest, and left open ample
alternative channels of communication. Friends II, 116 F.3d
at 497; ISKCON, 61 F.3d at 958. Those decisions are
controlling here, regardless of the identity of the prospective
t-shirt sellers.
We also reject plaintiffs' contention that the regulation
should receive some heightened scrutiny because they are
presenting some sort of "hybrid claim" resting on both the
Free Exercise Clause and the Free Speech Clause of the
First Amendment. For this argument to prevail, one would
have to conclude that although the regulation does not violate
the Free Exercise Clause, see Employment Division, 494
U.S. 872, and although they have no viable First Amendment
claim against the regulation, see Friends II, 116 F.3d at 498,
the combination of two untenable claims equals a tenable one.
But in law as in mathematics zero plus zero equals zero.
Plaintiffs appear to recognize as much in their reply brief,
where they admit that their "hybrid claim" "depends for its
success on [plaintiffs] succeeding with either their free speech
or free press claims." At any rate, we have already rejected
the sort of "hybrid claim" they are making here. See
ISKCON, 61 F.3d at 958.
Plaintiffs' remaining arguments have insufficient merit to
warrant discussion. We have considered and rejected each of
them. Accordingly, the judgment of the district court is
Affirmed.