Former CNN anchor Don Lemon was arrested last week after entering a Minnesota church and covering protesters who disrupted a service there; protesters allege that the pastor is a senior ICE official. Mr. Lemon and several protesters now face federal charges under the FACE Act. My colleague Walter Olson has explained reasons why the prosecution may fail, including the initial rejection of an arrest warrant for Lemon by a federal magistrate judge and the Act’s requirement that any disruption of a religious service has to be somewhat forceful. Cato’s Tommy Berry further notes that if Mr. Lemon were charged in retaliation for protected First Amendment activity, the prosecution would be unconstitutional. Yet another reason for concern: the FACE Act itself may be unconstitutional.
FACE stands for “Freedom of Access to Clinic Entrances.” Enacted in 1994 as compromise legislation, it bans forcefully disrupting people’s ability to enter abortion clinics and to carry out religious services. During the Biden administration, the FACE Act was used to charge a number of pro-life protesters, sometimes following dramatic arrests by militarized police.
The Act purports to be an exercise of Congress’s powers under the Commerce Clause as well as the Fourteenth Amendment. To quickly dispense with the first argument, the FACE Act does not regulate interstate activity or commerce, and the Supreme Court struck down an attempt to criminalize domestic violence relying on Commerce Clause rationales. It seems unlikely that the Court would uphold the FACE Act using them.
The Fourteenth Amendment reasoning goes that the amendment ensures that no state can deny due process, certain privileges or immunities, or equal protection, and it gives Congress the power to enforce that guarantee through “appropriate legislation.” Free religious exercise is a constitutional right, and when the Act was passed, the Supreme Court had said abortion was, too. So the law seemed to be justified.
Pro-lifers have long argued that the law is unconstitutional as applied to abortion protests. Now that the Supreme Court has reversed Roe v. Wade and held that there is no constitutional right to abortion, that argument enjoys new force.
What about the parts of the Act concerning disrupting religious services? The analysis is more complicated, but there are still reasons to doubt the law’s constitutionality. The Supreme Court has held that the federal government does not have a general police power to enact criminal laws; most law enforcement is reserved to the states.
While the Fourteenth Amendment does allow Congress to enforce its provisions, those provisions forbid states from denying people their rights. So the Supreme Court has held that Congress must show that a state is failing to uphold a constitutional right before the federal government can intervene. That showing has to be empirical and documented. For example, the Court upheld Congress’s ability to protect state prisoners’ religious liberties, but the law in question was passed after three years of legislative hearings that compiled an extensive record of abuse. By contrast, the Court held that states were not systematically failing to prohibit violence against women to the degree that would justify a federal law criminalizing domestic violence. The default is state-level enforcement of laws against local crimes, and Congress cannot simply send in the FBI and the Department of Justice on a whim.
It is conceivable that the federal government could bring forward enough evidence of regular state indifference toward protests disrupting religious services to successfully defend that part of the FACE Act. But just like pro-life protesters a few years ago, Mr. Lemon and his co-defendants should push that challenge. And perhaps pro-life Republicans and anti-Trump administration Democrats could agree that it’s time to finally scrap this outdated and unjustified federal criminalization of local offenses.