Religious protections don't apply to Falun Gong protest sites

While not disputed that the group is persecuted by China's communist government, its reputation as a cult makes its bid for sympathy a complicated one.



EMILEE LARKIN
Courthouse News Service
October 14, 2021

MANHATTAN (CN) — Followers of a 30-year-old Chinese spiritual practice called Falun Gong cannot designate their protest sites as places of worship to silence counter-protesters, the Second Circuit ruled Thursday.

“The record here shows that at most that there were only sporadic instances of worship at the tables,” the 28-page lead decision states. “Plaintiffs and their fellow practitioners instead understood the primary purpose of the tables as a site from which to disseminate information about the Chinese Communist Party’s treatment of Falun Gong.”

Founded in China in 1992 by Li Hongzhi, Falun Gong does not have any temples, churches or religious ritual — the usual trappings of a religious group. Rather, as summarized by the Second Circuit, its followers believe that meditation and other forms of regular spiritual practice known as “cultivation” will allow them to “return” to their “True Sel[ves]” or “Primary Soul[s].”

The Taiwan Cultural Center in Flushing, Queens, is a common gathering spot for Falun Gong cultivation, which includes physical exercises like qigong and the study of the “Zhuan Falun,” a book of Li’s lectures. For roughly a decade, leaders of the group assembled tables outside the cultural center to raise awareness about the torture Falun Gong adherents in China.

Some of the posters depict organ harvesting. There is no meditation, but the Falun Gong insist that their tables should be treated as an extension of their faith. About six years ago, 13 individuals brought the underlying suit in Brooklyn, saying that a counter-protest group called the Chinese Anti-Cult Alliance harassed them in violation of a federal law called FACEA, short for the Freedom of Access to Clinic Entrances Act.

The alliance denies that it has ever been the aggressor in any of the protest scenes, and Thursday's ruling notes that the Falun Gong teachings that the alliance highlights as troubling are not in dispute: "Defendants object, for instance, to Falun Gong teachings that followers should not take medication for illness, that aliens have visited earth, and that the heavens are divided into racial zones and a person of a mixed racial background will 'go to the heaven that belongs to the race of
his Main Spirit.'"

A federal judge sided with the Falun Gong at summary judgment in 2018, but the Second Circuit reversed Thursday after finding that the Falun Gong practitioners passing out pamphlets in Queens is not entitled to protection under the law meant to protect women from being harassed while seeking abortion services.

“At most, the evidence shows that the activity at the tables was motivated by teachings of the Falun Gong leader, akin to how Quaker groups may protest wars or Catholic groups may protest abortion laws in public streets motivated by their respective religious beliefs,” U.S. Circuit Judge Susan Carney wrote in Thursday's lead opinion. “But that such political and social action may be rooted in religious belief does not transform the public spaces where the action occurs into “places of religious worship.”

Specifically, the religious section of the FACEA prohibits a person from intentionally injuring, intimidating, or interfering with another who is exercising her religion at a place of religious worship. In reaching its decision, the court dissected what can be considered a “place” of worship.

U.S. Circuit Judge Pierre Leval, a Clinton appointee, concurred with Carney, an Obama appointee, in full, as did U.S. Circuit Judge John Walker, who also wrote a separate concurring opinion.

“Although we have previously sustained the provision of FACEA that prohibits violence at abortion clinics, in part based on legislative findings that women, doctors, and medical supplies may travel interstate for reproductive health services, those findings were limited to regulating violence at abortion clinics,” said Walker, a George H. W. Bush appointee. “They have no bearing on whether violence against worshippers at places of religious worship substantially affects interstate commerce.”

Reacting to the decision Wednesday, Elizabeth Hurd, a professor of political science and religious studies at Northwestern University, said that religious freedom hinges on what the law views as a religion.

“Protecting a right to religious freedom in law requires defining what the state means by ‘religion’. There will always be groups left out of that definition, particularly when powerful actors, like the Chinese government, have a say in who gets protected as a religion and who does not,” Hurd said in an email. “This is a casualty of legalizing religious freedom. It is not surprising that Falun Gong would not be privy to these protections. The challenge, then, is to reconsider whether religious freedom is equipped as a legal construct to do the work we are asking it to do. I think not.”

Led by Zhang Jingrong, the practitioners were represented by Terri Marsh with the Human Rights Law Foundation. The alliance was represented by Tom Fini of Catafago Fini law firm. Neither party immediately responded to emails seeking comment.

https://www.courthousenews.com/religious-protections-dont-apply-to-falun-gong-protest-sites/