FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

November 21, 2002

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

Nos. 01-14872 and 01-15080

________________________

D. C. No. 99-00026-CR-01-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAY SCOTT BALLINGER,

 Defendant-Appellant.

________________________

Appeals from the United States District Court

Northern District of Georgia

_________________________

(November 21, 2002)

Before BIRCH, HILL and HALL*, Circuit Judges.

______________________

*Honorable Cynthia Holcomb Hall, U.S. Circuit Judge for the Ninth Circuit, sitting by

designation.

HILL, Circuit Judge:
2

Jay Scott Ballinger pled guilty to four counts of church arson in violation of

18 U.S.C. § 247(a)(1). He also pled guilty to one count providing for enhanced

penalties for violation of the statute “if death results from [the defendant’s] acts,”

18 U.S.C. § 247 (d)(1) or “if bodily injury results to any person . . . and the

violation is by means of fire . . . .” 18 U.S.C. § 247 (d)(2). Pursuant to Rule

11(a)(2) of the Federal Rules of Criminal Procedure, Ballinger conditioned his plea

upon a judicial determination of the constitutionality of § 247, both on its face and

as applied to him. The district court upheld the constitutionality of the statue in

both respects, and this appeal followed.

I.

The district court recited the following facts, stipulated to by Jay Scott

Ballinger and the government, as relevant to the constitutional issues. Jay Scott

Ballinger deliberately set fire to five churches in the Northern and Middle Districts

of Georgia between December 22, 1998, and January 16, 1999. Ballinger’s fires

completely destroyed the Amazing Grace Baptist Church in Chatsworth, Georgia 

(“Amazing Grace”), the New Salem United Methodist Church in Commerce,

Georgia (“New Salem”), and the fellowship hall of the Sardis Full Gospel Church

in Monroe, Georgia (“Sardis Full Gospel”). The New Salem fire resulted in the

death of one volunteer firefighter and bodily injury to three other firefighters. 
3

Ballinger’s two additional fires badly damaged the Johnson United Methodist

Church in Watkinsville, Georgia (“Johnson United”) and the fellowship hall of the

Mountain View Baptist Church in Chatsworth, Georgia (“Mountain View”).

Prior to its destruction, Amazing Grace had purchased song books from

Knoxville, Tennessee, pew coverings and hymnals from Cleveland, Tennessee, and

fund-raising supplies (candy) from Montgomery, Alabama. Its 300-member

congregation, some of whom resided in neighboring Tennessee, had recently

purchased the church building and one acre of land from the North Georgia

Conference of the United Methodist Church, headquartered in Evanston, Illinois. 

To finance this acquisition and repair storm damage, the congregation held yard

sales, bake sales, and sold cookbooks. The congregation commissioned the

printing of these cookbooks in Collierville, Tennessee. Amazing Grace also

collected donations for the poor, some of which were provided to needy travelers

in the form of food, household items, and hotel or motel lodging.

Mountain View, a 372-member congregation, had acquired Bible school

materials from California, building supplies from Alabama and other out-of-state

vendors, and plumbing and electrical supplies from Collierville, Tennessee. The

church belonged to the 14-member Coosawattee Baptist Association and donated

money to the Georgia Baptist Children’s Home, which provided housing, clothing,
4

food, and classroom instruction to foreign children intercepted by the United States

Immigration and Naturalization Service, as well as children from other domestic

states. In 1998, Mountain View donated $1,536 in such funds. The church

contributed an additional $1,536 to Georgia Baptist Hospital’s indigent-care fund

which, in part, provided medical services to children whom its doctors brought to

Georgia from the Dominican Republic, Russia, and various South American

countries. At the time of the fire, at least one of Mountain View’s members was

living out-of-state; this member was serving in the United States military but

returned to the church while on leave. Mountain View also used a fifteenpassenger van shipped from Orlando, Florida to transport its youth choir and

elderly women’s groups.

Sardis Full Gospel, a 60-member congregation, regularly held week-long

revivals, hosting visiting pastors from Canada, Florida, Mississippi, Ohio, and

South Carolina. These out-of-state pastors would either stay with church members,

in a local hotel, or in the church itself, which was equipped with showers and

sleeping facilities. Further, the congregation prepared and served meals to the

visiting pastors in its fellowship hall, which defendant destroyed on December 25,

1998. The church had also acquired, via donation, a fax machine/copier from

Panasonic, Inc., a donation that was approved by the company’s New Jersey
5

headquarters.

Like Amazing Grace, New Salem was a member of the North Georgia

Conference of the United Methodist Church, whose national headquarters were in

Evanston, Illinois. Through this conference, New Salem, which had roughly 120

members at the time of its destruction, regularly sent money to the national office. 

The national office used these funds for a variety of purposes, including foreign

and domestic missions. To subsidize its pastor’s pension, New Salem also

contributed, through the conference, to the Illinois-based pension administrator. 

The church property itself was held in trust for the General Conference of the

United Methodist Church in Illinois.

Prior to its destruction, New Salem had acquired office supplies from

Ottawa, Illinois; Bible school materials from Grandview, Missouri; banners from

Nashville, Tennessee; church bulletin and newsletter-making materials from

Canton, Ohio; and a steeple from Alabama. The congregation had several out-ofstate members and several out-of-state recipients of its monthly newsletters. To

finance youth group trips and outings, including trips to Orlando, Florida and

Chattanooga, Tennessee, New Salem members held fund-raising barbeques, bake

sales, car washes and sold candy.

Johnson United, a 132-member congregation, also belonged to the North
6

Georgia Conference of the Evanston, Illinois-based United Methodist Church, to

which it regularly sent monetary apportionments. Like New Salem, Johnson

United subsidized its pastor’s pension plan and health insurance by contributing,

through the conference, to the United Methodist Church’s General Board of

Pension and Health Benefits. The church property itself was held in trust for the

General Conference of the United Methodist Church in Illinois. Several of

Johnson United’s members lived in other states, including Illinois, yet continued to

attend services. Additionally, the congregation purchased Sunday school and

Bible school materials from Nashville, Tennessee; Boy Scout and Girl Scout troops

used the church for meetings; and the church served as a voting precinct for

citizens in its district.

All five of the damaged or destroyed churches received annual visits from

the Nashville, Tennessee-based Gideon Bible Ministry, which conducted worship

services and collected monetary donations used for placing Bibles throughout the

United States and in 175 different countries. Further, all five of the churches

purchased all of their propane gas from out-of-state suppliers, though local services

delivered it. Mountain View was also insured by an out-of-state carrier, Church

Mutual Insurance Company of Wisconsin.

Finally, the parties agreed that Ballinger and his girlfriend, Angela Wood,
1

Ballinger and Wood traveled to Georgia from Indiana. On their way back, they

committed three additional church arsons. 

2

If these acts result in a death, conviction may result in life imprisonment or execution. 

18 U.S.C. § 247(d)(1). One of Ballinger’s arsons did result in a death, and he has been

sentenced to life imprisonment on that count. He received concurrent twenty-year sentences on

the remaining counts.

3

Ballinger was charged in two separate indictments.

7

traveled in interstate commerce to commit the arsons, purchasing goods and

services en route, including the gasoline used to start the fires.1

II.

Title 18 U.S.C. § 247(a)(1) provides that whoever “intentionally defaces,

damages, or destroys any religious real property, because of the religious character

of that property, or attempts to do so” is guilty of a federal crime.2

 Ballinger

concedes that he committed the church arsons with which he was charged, but

contends that the district court should have, nevertheless, dismissed the

indictments3

 against him because § 247 is unconstitutional both on its face, and as

applied to him. We review these issues of law de novo. United States v. Scott, 263

F.3d 1270, 1271 (11th Cir. 2001).

A. The Facial Challenge

Ballinger claims that the statute is unconstitutional on its face because its

enactment exceeded Congress’ authority under the Commerce Clause. We

disagree. 
8

Congress’ authority under the Commerce Clause extends to the regulation of

activities which are in or affect interstate commerce. United States v. Lopez, 514

U.S. 549, 559 (1995). Congress included within § 247 a jurisdictional element

which expressly requires the government to prove this interstate commerce nexus. 

18 U.S.C. § 247( b). The statute applies only when “the offense is in or affects

interstate or foreign commerce.” Id. In the absence of sufficient proof of the

interstate commerce connection, the statute does not apply to the arson charged. 

Id. We have previously held that a statute enacted under the Commerce Clause is

constitutional on its face if it contains a jurisdictional element that “ensure[s],

through case-by-case inquiry, that the activity in question affects interstate

commerce.” United States v. Cunningham, 161 F.3d 1343, 1346 (11th Cir. 1998)

(quoting Lopez, 514 U.S. at 562). We conclude, therefore, that Congress did not

exceed its authority under the Commerce Clause when it enacted 18 U.S. C. § 247,

and the statute is constitutional on its face. Accordingly, we have jurisdiction to

determine whether the statute was applied constitutionally to Ballinger.

B. The “As Applied” Claim

Ballinger claims that § 247 does not apply to the acts for which he was

convicted, namely the arson of five small, rural churches in Georgia, because there

was an insufficient connection between these arsons and interstate commerce, as
9

required by the Constitution. If so, the Constitution forbids the application of the

statute to him.

We must decide all statutory issues, however, before addressing

constitutional ones. United States v. Odom, 252 F.3d 1289, 1293 (11th Cir. 2001)

(“A fundamental and longstanding principle of judicial restraint requires that a

court avoid reaching constitutional questions in advance of the necessity of

deciding them”) (citing Lyng v. Northwest Indian Cemetery Protective Ass’n, 485

U.S. 439, 445 (1988)). Since § 247contains an express jurisdictional element

requiring that the charged arson be “in or affect interstate commerce,” whether the

statute applies to Ballinger’s arsons, is, in the first instance, an issue of statutory

interpretation. We must decide what burden the jurisdictional element of § 247

places upon the government, and whether the government met this burden. If the

government did so, then and only then, should we address any remaining

constitutional issues. 

1. The “Offense Is In or Affects Interstate Commerce”

Section 247(b) extends federal jurisdiction to the arson of religious real

property when the “offense is in or affects interstate commerce.” Ballinger

contends that this language requires the government to prove that his arsons had a

substantial effect on interstate commerce. The government contends that by using
10

these words Congress intended to invoke its full power under the Commerce

Clause, so that even a de minimis connection between Ballinger’s arsons and

interstate commerce satisfies the statute. As we have not previously construed the

jurisdictional element of § 247, this is an issue of first impression in this circuit. 

Under the authority of the Commerce Clause, Congress may always regulate

the instrumentalities and the use of the channels of interstate commerce. Lopez,

514 U.S. at 558-59. The instrumentalities of interstate commerce are those

“persons or things” that move in interstate commerce, including all cars and trucks,

ships, aircraft and anything else that travels across state lines, as do interstate

shipments. Id. The channels of interstate commerce include interstate highways,

shipping lanes, rivers, lakes, canals, railroad track systems, the mail, telegraph

lines, air traffic routes electronic and all other modes of interstate or foreign

movement of commerce. Id. The instrumentalities and channels of interstate

commerce encompass the concept of movement of commerce across state lines,

and there has never been any serious question about Congress’ authority to

regulate and protect them. Id.

Arson, however, is a an activity. Furthermore, it is a purely intrastate

activity. Therefore, it is neither an instrumentality nor a channel of interstate

commerce. For a long time in our jurisprudence, congressional authority to
11

regulate such intrastate activities was not recognized by the Supreme Court. 

United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895) (“Commerce succeeds to

manufacture and is not part of it”). Later, the Court recognized the necessity to

protect interstate commerce from the burdens and obstructions that might be

imposed by intrastate activities that have a “close and substantial relation” to it. 

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). Under such

circumstances, the Court held, the regulation of intrastate activities that “affect”

interstate commerce is within Congress’ commerce power. Id. at 37. 

 Recently, the Court has acknowledged that, within this last category of

regulation, its “case law has not been clear whether an activity must ‘affect’ or

‘substantially affect’ interstate commerce in order to be within Congress’ power to

regulate it under the Commerce Clause.” Lopez, 514 U.S. at 559. The Court

concluded, however, that the “great weight” of its decisions make clear that a

“substantial effect” on interstate commerce is constitutionally required. Id. See

also United States v. Robertson, 514 U.S. 669, 671 (1995) (“[t]he ‘affecting

commerce’ test . . . define[s] the extent of Congress’s power over purely intra state

commercial activities that nonetheless have substantial inter state effects”)

(emphasis in original)).

Thus, Congress’ power to regulate intrastate activities is more limited than is
12

its power to regulate the instrumentalities and channels of interstate commerce. 

Whereas Congress may regulate any instrumentality or channel of interstate

commerce, the Constitution permits Congress to regulate only those intrastate

activities which have a substantial effect on interstate commerce, and such

regulation of purely intrastate activity reaches the outer limits of Congress’

commerce power.

To hold otherwise, the Court noted, would “convert congressional authority

under the Commerce Clause to a general police power of the sort retained by the

States.” Lopez, 514 U.S. at 567. This the Constitution does not permit. Id.; see

also Maryland v. Wirtz, 392 U.S. 183, 197, n. 27 (1968) (the Constitution does not

permit Congress to use a relatively trivial impact on commerce as an excuse for

broad general regulation of state or private activities). 

It is in this sense that the government is correct when it says that § 247(b)’s

punishment of church arsons that “affect” interstate commerce invokes Congress’

full power under the Commerce Clause. Such regulation of a purely intrastate

activity – arson – invokes Congress’ full authority under the Commerce Clause not

because it may, but because it must.

The talismanic repetition over the years of the phrase “fullest extent” of

congressional commerce power has led some to confuse this concept of the outer
13

limits of congressional authority for an independent grant of authority. Somewhere

along our jurisprudential way, the mantra developed that “de minimis” effects are

sufficient when Congress invokes its “full authority” through regulation of an

activity “in or affecting” interstate commerce. In fact, just the opposite is true. 

When Congress pushes its commerce power to its constitutional limit by seeking to

regulate a purely intrastate activity, only a substantial effect on interstate

commerce by that activity will do.

Perhaps this confusion springs from a failure to distinguish between

regulation of economic as opposed to non-economic activity. When the regulated

intrastate activity is a commercial or economic one, the Constitution permits the

required substantial effect on interstate commerce to be located in the aggregate

impact of the regulated activity upon interstate commerce. Wickard v. Filburn, 317

U.S. 111 (1942). The Court has held that “where a general regulatory statute bears

a substantial relation to commerce, the de minimis character of individual instances

arising under that statute is of no consequence.” Wirtz, 392 at 197, n. 27. The

Constitution permits such aggregation of effects to justify congressional regulation

of purely intrastate economic activity when the absence of such regulation would

undercut a larger regulatory scheme affecting interstate commerce. Lopez, 514

U.S. at 561.
4

In Morrison, the Court held the civil remedy provision fo the Violence Against Women

Act an unconstitutional exercise of Congress’ commerce power. The Court found that genderbased violence is a non-economic, purely intrastate crime, without a substantial effect on

interstate commerce, that Congress is without power to regulate. 

5

In Lopez, the Court held that Congress exceeded its authority when it criminalized the

knowing possession of a firearm in a school zone because this activity is not in commerce, nor

does it substantially affect interstate commerce. 514 U.S. at 567-68.

14

No such aggregation of local effects is constitutionally permissible in

reviewing congressional regulation of intrastate, non-economic activity. United

States v. Morrison, 529 U.S. 598, 617 (2000). Where such regulation is at issue,

the Constitution requires that the activity, by itself, have economic consequences

that substantially affect interstate commerce. Lopez, 514 U.S. at 561. No

aggregation of local effects is permissible to elevate a non-economic activity’s

insubstantial effect on interstate commerce into a substantial one in order to

support federal jurisdiction. Id.

This is especially true when Congress seeks to federalize common-law state

crimes. Morrison, 529 U.S. at 617. In Morrison, the Court explicitly “reject[ed]

the argument that Congress may regulate non-economic, violent criminal conduct

based solely on that conduct’s aggregate effect on interstate commerce.” Id.4

 The

Court made clear that “a fair reading of Lopez shows that the non-economic,

criminal nature of the conduct at issue was central to our [rejection of such

regulation] in that case.” Id. at 610.5

 Recently, we have recognized and applied
6

In the only reported appellate interpretation of § 247, the Tenth Circuit appears to have

overlooked this distinction. United States v. Grassie, 237 F.3d 1199, 1209 (10th Cir. 2001).

Although the interstate commerce nexus was stipulated to in that case, the court nonetheless

upheld a jury instruction requiring the government to prove only a de minimis effect on interstate

commerce by the church arson. The court predicated its decision upon the fact that § 247's

jurisdictional element triggers the “fullest reach” of Congress’ commerce power. Id. The

presence of a jurisdictional element, however, preserves the constitutionality of the statute only

so long as that element requires a constitutionally adequate modicum of proof. Odom, 252 F.3d

at 1296. 

15

the Court’s clarification of this distinction. United States v. Gray, 260 F.3d 1267,

1273-74 (11th Cir. 2001) (reaffirming that a de minimis effect is sufficient under

Hobbs Act because “the Supreme Court’s rejection of an aggregation theory” for

regulation of non-economic activity is “wholly inapposite” to Hobbs Act which

“plainly and undeniably regulates economic activity”).6

To allow Congress to regulate local crime on a theory of its aggregate effect

on the national economy would give Congress a free hand to regulate any activity,

since, in the modern world, virtually all crimes have at least some attenuated

impact on the national economy. Morrison, 529 U.S. at 615. Furthermore, it

would transfer to Congress a general police power that the Constitution denies the

federal government and reposes in the states. Id. at 618 (“The regulation and

punishment of intrastate violence that is not directed at the instrumentalities,

channels, or goods involved interstate commerce has always been the province of

the States).
16

We conclude that § 247 regulates the activity of arson and applies to the

church arson, which, by itself, substantially affects interstate commerce. See

Lopez, 514 U.S. at 559-61; Morrison, 529 U.S. at 617. 

We find support for our conclusion in two recent decisions rejecting the

government’s expansive view of Congress’ authority to regulate local, noneconomic, criminal activities. In Jones v. United States, 529 U.S. 848, 859 (2000),

the Court was called upon to interpret the federal omnibus arson statute, 18 U.S.C.

§ 844, which extends federal jurisdiction over the burning of any real property

“used in interstate or foreign commerce or in any activity affecting interstate or

foreign commerce.” 

The government, seeking to prosecute the arson of an owner-occupied,

private residence, invoked the mantra that Congress’ use of the words “affecting”

interstate commerce signaled Congress’ intent to exercise its full authority under

the Commerce Clause. The Court, however, held that the receipt of natural gas, a

mortgage and an insurance policy from out-of-state were insufficient to establish

that the residence was used in an activity affecting interstate commerce. Id. at 857. 

The Court rejected these connections as too de minimis, holding that § 844 “does

not reach an owner-occupied residence that is not used for any commercial

purpose.” Id. “Given the concerns brought to the fore in Lopez,” the Court wrote,
7

In construing the statute not to reach the arson of a purely private residence, the Court

avoided Jones’ constitutional claim that criminalization of such an arson is beyond the

commerce power of Congress. 529 U.S. at 852.

17

“it is appropriate to avoid the constitutional question that would arise were we to

read § 844(i) to render the ‘traditionally local criminal conduct’ in which petitioner

Jones engaged ‘a matter for federal enforcement.’” Id. at 858. (quoting United

States v. Bass, 404 U.S. 336, 350 (1971)).7

 The Court concluded that § 844 is not

“soundly read to made virtually every arson in the country a federal offense.” Id.

In Odom, we too were asked to interpret the constitutional reach of § 844. 

The government sought to apply the statue to the arson of a church. As did the

Jones Court, we asked first whether § 844 could ever apply to the arson of such

property. Unlike the private residence in Jones, however, we recognized that,

although a church is not ordinarily considered a business enterprise, “churches can

and do engage in commerce.” Id. at 1294.

Since § 844 might apply to a church, we were required to determine what

quantum of interstate commerce connection would satisfy the statute’s jurisdiction

element. We observed, first, that, in view of Lopez and Morrison, the “mere

engagement in commercial activities may not necessarily provide the requisite

nexus between the function of the [church] and interstate commerce.” Id. at 1295. 

In order to avoid the constitutional problem that would arise were § 844(i)
18

interpreted to apply to criminal conduct without a sufficient interstate commerce

nexus, we concluded that its jurisdictional element had to be construed in accord

with the requirements of the Commerce Clause, as explained in Lopez, Morrison,

and Jones. Id. Thus, we held that § 844 requires the government to prove that the

burned church’s activities had a “substantial effect” on interstate commerce.” Id.

at 1297. We said:

Allowing the government to meet the interstate commerce

requirement through only a nominal showing of a connection to

interstate commerce would do as much to ‘completely obliterate’ the

distinction between national and local authority as if no jurisdictional

requirement existed at all. The presence of a jurisdictional element

may preserve the constitutionality of the statute so long as a case-bycase analysis requires sufficient proof of a connection to interstate

commerce. Otherwise, Congress could circumvent the requirement of

the constitution’s interstate commerce clause by inserting a

jurisdictional element into every statute and allowing the government

to rely on the most minimal proof of that element. (emphasis added)

Id. at 1296 (citations omitted).

We also rejected the government’s argument that it could rely on the

aggregate effect on interstate commerce of local church arsons in order to justify

federal jurisdiction under § 844. Id. at 1297. We held that “the Morrison court

clearly rejected Congress’ ability to ‘regulate [non-economic criminal ] conduct

based solely on that conduct’s aggregate effect on interstate commerce.’” Id.

After reviewing the evidence, we concluded that “[t]he Government has
8

There are numerous federal statutes which do, explicitly, forbid movement in interstate

commerce in order to commit a traditional common-law crime. See, e.g., 18 U.S.C. § 43

(traveling to engage in animal terrorism; 18 U.S.C. § 228 (traveling to avoid paying child

support); 18 U.S.C. § 1073 (flight to avoid prosecution); 19 U.S.C. § 1074 (flight to avoid

prosecution for destroying property); 18 U.S.C. § 1231 (interstate travel to engage in

strikebreaking); 18 U.S.C. § 1958 (traveling to engage in murder for hire); 18 U.S.C. § 2101

19

failed to set forth sufficient evidence establishing that St. Joseph’s Baptist Church,

the building destroyed by Defendants’ act of arson, was used in or affected

interstate commerce according to the requirements of § 844(i),” and we reversed

the defendants’ convicitions. Id.

As we did with § 844, we have avoided construing § 247's jurisdictional

element in a way that would bring it into conflict the Constitution. Since the

Constitution requires a substantial interstate commerce nexus before Congress can

regulate an intrastate activity, § 247(b) requires the government to prove that each

of Ballinger’s church arsons had a substantial effect on interstate commerce.

The dissent disagrees. The dissent asserts that § 247 prohibits not only the

arson of a church, but also “travel for the purpose of committing [church] arson,”

thereby falling within Congress’ authority to regulate the channels of interstate

commerce. We disagree for two reasons.

First, this is not what the statute says. Although it could easily have done so,

the statute does not prohibit travel, or the use of any of the channels of interstate

commerce, to commit a church arson.8

 In fact, when Congress amended the statute
(traveling to cause a riot); 18 U.S.C. § 2118 (traveling to engage in robbery involving controlled

substances); 18 U.S.C. § 2261 (traveling to commit interstate domestic violence); 18 U.S.C. §

2261A (traveling to commit interstate stalking); 18 U.S.C. § 2262 (traveling to violate domestic

protective order); 18 U.S.C. § 2423 (interstate travel to provide minors for sex). These statutes

regulate crime by focusing on the criminal’s movement in the channels of interstate commerce.

20

in 1996, it specifically removed all reference to travel to commit the arson as a

jurisdictional predicate for § 247. Prior to that time, the statute had prohibited the

destruction of a church when “in committing the offense, the defendant travels in

interstate or foreign commerce, or uses a facility or instrumentality of interstate or

foreign commerce . . .”. Pub. L. No. 100-346, § 1, 102 Stat 644 (1988). After

amendment, the statute prohibits church arson when the “offense is in or affects

interstate or foreign commerce”. The plain language of § 247 now does not

provide for travel in interstate commerce as a basis for federal jurisdiction. 

Recognizing that the statute lacks any reference to interstate travel to

commit the crime, the dissent argues that this language should be read into the

definition of the “offense” criminalized by § 247. Thus, travel to commit church

arson would be part of the offense, placing that offense “in” the channels of

interstate commerce. 

The difficulty with this argument is that the statute does not say this either,

defining the offense solely as the “damage, defacement or destruction” of a church. 

18 U.S.C. § 247(a)(1). Nevertheless, the dissent argues that the meaning of
21

“offense” in the statute is “ambiguous” and can be made clear by reference to the

legislative history. In this history, the House Committee Report does refer to

“interstate travel to commit, plan, or prepare to commit” a church arson as

satisfying the statute. 1996 U.S.C.C.A.N. 1082, 1087-88. The dissent urges that

the offense, defined by the statute as the “damage, defacement or destruction” of a

church, should be read to include this interstate travel gloss from the legislative

history.

In interpreting § 247, it is our duty to give effect to the intent of Congress. 

To divine that intent, however, we must first look to the language of the statute. 

Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). In interpreting

this language, the Supreme Court has “stated time and again that courts must

presume that a legislature says in a statute what it means and means in a statute

what it says there.” Id. at 254 (citations omitted). “When the words of a statute are

unambiguous, then, this first canon [of construction] is also the last: ‘judicial

inquiry is complete.’” Id. (citation omitted).

The Court has also considered and rejected the argument that the plain

meaning of a statute is undermined if the “legislative history points to a different

result.” Id. To the contrary, judicial inquiry into the applicability of the plain

words of a statute “begins and ends with what [the statute] does say and with what
9

While we agree with the dissent that some proponents of the 1996 amendment thought

they were broadening the jurisdictional scope of § 247 by insertion of the “in or affects”

interstate commerce requirement, thereby applying it to purely intrastate activity [church arson]

which affects interstate commerce, a category of regulation still thought to be virtually unlimited

at the time the amendment was adopted, we do not agree with the dissent that they achieved this

result. Congress did not know then that, less than four years later, the Supreme Court would

22

[it] does not.” Id. (referring to interplay between two different statutes). See also

United States v. Barlow, 41 F.3d 935, 942 (5th Cir. 1994) (applying these canons of

construction to the earlier version of § 247).

In effect, the dissent wants this court to repeal the 1996 amendment and

reinsert the deleted statutory language targeting interstate travel. However

appealing, we cannot do this. If Congress wants the statute to prohibit travel in the

channels of interstate commerce to commit arson, then it may say so, just as it has

done in the statutes cited earlier. Since, however, the statute does not so define the

offense, we must adhere to the statute as written and may not supply the missing

language. West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 98-99

(1991) (reversed on other grounds) (plain statutory language not to be expanded or

contracted by statements of individual legislators or committees during enactment

process); Union Bank v. Wolas, 502 U.S. 151 (1991) (failure to foresee all the

consequences of a statutory enactment is insufficient reason for refusing to give

effect to the statute’s plain language). For now, federal jurisdiction under § 247

cannot be predicated upon the defendant having traveled in interstate commerce.9
hold that in order to regulate a non-economic activity, such as the crime of arson, the activity,

standing alone, must have a substantial effect on interstate commerce. Morrison, 529 U.S. at

610. Ironically, by redefining § 247 to require that the offense affect interstate commerce and

simultaneously deleting the statutory language predicating federal jurisdiction upon interstate

travel to commit the offense, Congress effectively narrowed § 247's jurisdictional reach. 

23

The only issue remaining in this case is whether the stipulated facts were

sufficient to establish that each of Ballinger’s arsons had a substantial effect on

interstate commerce. If not, the trial court should not have accepted Ballinger’s

guilty plea and entered a judgment of guilty.

2. The Sufficiency of the Evidence

 The arson of a church has a substantial effect on interstate commerce if its

activities prior to the arson substantially affected interstate commerce and the arson

of that church terminated those activities. The final issue in this case, then, is

whether each of these churches’ activities substantially affected interstate

commerce.

The government argues that the stipulated facts recited above attest to the

many and varied connections between these churches and interstate commerce. 

The problem with this argument, however, is that we have previously rejected

many of these connections as insufficient to establish the requisite substantial

effect.

In Odom, we specifically considered many of these same putative interstate
24

connections: donations from out-of-state donors; use of Bibles and prayer books

that were purchased from out-of-state vendors; and contributions to out-of-state

church organizations through membership in intrastate church organizations. We

held that “[t]hese ‘connections’ to interstate commerce are too passive, too

minimal and too indirect to substantially affect interstate commerce.” 252 F.3d at

1297.

The Fifth Circuit has also rejected some of the government’s other theories

of the interstate connection in this case: membership in an intrastate church

organization that contributed financially to the national church organization that

then redistributes the money throughout the world; receipt of insurance proceeds

from an out-of-state insurer. United States v. Johnson, 246 F.3d 749, 752 (5th Cir.

2001). These connections were not substantial enough to provide factual support

for a guilty plea. Id.

Similarly, in United States v. Rea, the Eight Circuit held that the church’s

use of materials and natural gas purchased in interstate commerce were insufficient

to prove the requisite effect on interstate commerce. 223 F.3d 741 (8th Cir. 2001).

At least one district court has found connections similar to those posited here

to be insufficient. United States v. Rayborn, 138 F. Supp. 2d 1029, 1036 (W.D.

Tenn. 2001) (money spent on goods and services including radio broadcasts, food,
10In Rayborn, the court took the position that:

[T]hese non-commercial functions have economic consequences interstate

in nature. However, in today’s society, it is difficult to fathom a situation that

would not have some interstate nexus. Therefore, to categorize the church’s

activities that tend to congregant’s spiritual needs a commercial enterprise would

be to obliterate the distinction between commercial and non-commercial activity,

a distinction that Lopez explicitly sought to maintain. (emphasis added)

Id. at 1035.

25

flowers, and groceries).

The only remaining evidence of an interstate connection offered by the

government is attendance at the churches by out-of-state members and hosting of

out-of-state guests such as visiting pastors. The dissent argues that the provision of

spiritual services to out-of-state members and guests “demonstrates active

employment in interstate commerce.” Although we did say in Odom that the

“business” of a church might involve the provision of spiritual services,10 these

out-of-state memberships, like the churches’ other connections to interstate

commerce, are too insubstantial to support federal jurisdiction. At most, the

evidence was that three of the five churches had some out-of-state members. One

of these had only one such member – a military man whose permanent residence

was in-state. Of the other two, the evidence was only that they had “some” out-ofstate members. These memberships do not substantially affect interstate

commerce.
11That is not to say, and we do not decide, that there may never be a church whose

activities have the required substantial effect on interstate commerce.

26

Taken separately, the connections of each church to interstate commerce are

too insubstantial to satisfy the jurisdictional element of § 247. Nor can we

aggregate the effects of all five arsons in order to reach the level of effect on

interstate commerce required by the statute. Morrison, 529 U.S. at 617; Odom,

252 F.3d at 1297. Although the destruction of these churches undoubtedly had

economic consequences, the mere existence of such consequences does not trigger

§ 247. While Ballinger’s crimes are heinous, they are state crimes. To allow the

government to prosecute him for these arsons would be to obliterate the distinction

between national and local authority that undergirds our federal system of

government. Lopez, 529 U.S. at 617-18.

We hold, therefore, that § 247 does not apply to Ballinger’s arsons.11

III.

Section 247 requires proof of a substantial affect on interstate commerce by

each charged church arson. That proof being insufficient in this case, Ballinger’s

convictions are reversed.

REVERSED AND REMANDED.
27
28

HALL, Circuit Judge, dissenting:

I agree with the majority that 18 U.S.C. § 247 is facially constitutional. I do

not agree with its conclusion that the statute is unconstitutional as applied to

Ballinger. The facts to which Ballinger stipulated provide not one but two bases

for finding that he committed acts which Congress may prohibit: 1) the effects of

his crimes on interstate commerce, and 2) his travel across state lines in order to

commit them. While the majority simply ignores the second of these bases,

Ballinger’s use of the channels of interstate commerce in order to burn churches in

Georgia unambiguously places him within Congress’ power of sanction. 

Moreover, even were this not so, I would still reject Ballinger’s “as applied”

challenge because his acts of arson did substantially affect interstate commerce. 

To find to the contrary, the majority ignores the extent to which the churches

provide services to out-of-state members and guests, adopting a cramped notion of

church commerce at odds with both Supreme Court precedent and this circuit’s

own holding in United States v. Odom, 252 F.3d 1289 (11th Cir. 2001). 

I. Ballinger’s Use of the Channels of Commerce

Because the majority relegates all discussion of Ballinger’s interstate travel

to a single sentence appended to the end of its fact recitation and an associated

footnote, I begin with a full accounting of the relevant facts to which he stipulated.
29

Ballinger, a resident of Indiana, was a practicing “Luciferian,” who

expressed hostility toward organized Christianity and described his burning of

churches as his “work” and “business.” At some point prior to the crimes before

the Court, Ballinger became aware of a call placed by the FBI to his parents’ home. 

Partly out of concern about that call, he and his girlfriend packed his Indianaregistered van and drove to Georgia. Along the way, Ballinger used the interstate

highway system, purchased gasoline and other goods, and stayed in various hotels. 

He also deliberately set fire to three churches, one each in Indiana, Kentucky, and

Tennessee.

Ballinger then arrived in Georgia, upon which he immediately began his

arson spree in that state. Within hours of checking into a hotel in Dalton on

December 22, 1998, Ballinger committed the first of the church arsons for which

he was indicted. He first used his Indiana VISA card to purchase a large plastic

gas can from a local K-Mart. He then waited until after midnight in order to reduce

the danger of being seen, and drove to the Amazing Grace Baptist Church. Using a

tool brought with him from Indiana, Ballinger broke one of the church’s windows

and then poured gasoline from his van into the opening and ignited it with a

cigarette lighter. Afterwards, Ballinger drove back to the hotel where he spent the

night.
30

The next night, Ballinger committed another church arson in a similar

manner, and on the third night, he did so again, this time in Walton County. At

that point, the Christmas holiday had arrived, and he waited for it to pass before

burning the fourth and fifth churches on New Years Eve. Ballinger then stayed in

Athens for several days before taking the return trip home to Indiana. Along the

way, he set fire to three more churches in Kentucky. 

These facts are sufficient to subject Ballinger to Congress’ commerce clause

authority independent of any connection between the churches he burned and

interstate commerce. It is well established that Congress may forbid or punish the

use of channels of interstate commerce "to promote immorality, dishonesty, or the

spread of any evil or harm to the people of other states from the state of origin." 

Brooks v. United States, 267 U.S. 432, 436, (1925); see also Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241, 256 (1964); North American Co. v.

SEC, 327 U.S. 686, 705 (1946) ("Congress may impose relevant conditions and

requirements on those who use the channels of interstate commerce in order that

those channels will not become the means of promoting or spreading evil, whether

of a physical, moral or economic nature."); Caminetti v. United States, 242 U.S.

470, 491 (1917) (“[T]he authority of Congress to keep the channels of interstate

commerce free from immoral and injurious uses has been frequently sustained, and
31

is no longer open to question.”). In early Supreme Court cases applying this

proposition, the facts and statutes at issue involved one person causing another

person or thing to be transported across state lines for harmful purposes. See e.g.,

Brooks, 267 U.S. at 436 (transportation of stolen automobiles across state lines); 

Caminetti, 242 U.S. at 482-483 (transporting women across state lines for the

purpose of concubinage); Hoke v. United States, 227 U.S. 308, 317 (1913)

(inducing a woman to travel in interstate commerce for the purpose of

prostitution); Champion v. Ames, 188 U.S. 321, 323 (1903) (transportation of

lottery tickets across state lines); see also United States v. Orito, 413 U.S. 139, 143

(1973) (interstate transportation of obscene materials for private use). However,

the principle also applies to transportation of oneself across state lines for the

purpose of committing a harmful or immoral act, since it is no less commerce to

cause oneself to be transported over state lines in order to interact with those from

other states than to cause another to be so transported. See e.g., Hoke, 227 U.S. at

320 (“Commerce among the states, we have said, consists of intercourse and traffic

between their citizens, and includes the transportation of persons and property.”). 

Thus, in United States v. Morrison, the Supreme Court noted that Courts of

Appeals have uniformly upheld Section 40221(a) of the Violence Against

Women’s Act, codified 18 U.S.C. § 2261(a)(1), which punishes interstate travel
32

with the intent to injure, harass, or intimidate a spouse. 529 U.S. 598, 613 fn. 5

(2000) (citing United States v. Lankford, 196 F.3d 563, 571 (1999) for a survey of

jurisdictions). In short, Congress may prohibit travel across state lines undertaken

in order to commit immoral acts.

It is precisely such regulation that is at issue in this case. Ballinger’s actions

placed him squarely within the bounds of Congress’ power to regulate because he

used interstate commerce as an agency to promote criminal acts of arson. In

addition to the obvious fact that it was necessary for him to travel across state lines

in order to commit arson in Georgia (as well as Tennessee and Kentucky), the

immediacy with which he set out to destroy churches once he arrived and the

absence of any indication that he had other business in Georgia demonstrate that he

used the channels of interstate commerce for the purpose of committing arson. 

That he additionally may have been attempting to evade the FBI or conceal his

connection to a pattern of offenses is of no import, as we recognize that the use of

interstate travel to conceal the trail of crime and avoid capture is itself a “gross

misuse of interstate commerce.” Brooks, 267 U.S. at 439. 

Indeed, all of this is so plain that Ballinger does not challenge the

proposition that his actions can be punished as a misuse of the channels of

commerce under the Constitution. Rather, he contends that Section 247 does not
33

cover such actions. This claim can be disposed of quickly. The jurisdictional

“hook” contained is Section 247(b) states that the statute’s substantive provisions

apply when “the offense is in or affects interstate or foreign commerce.” 18 U.S.C.

§ 247(b). The Supreme Court has repeatedly held that such “in or affects”

language indicates Congress’ intent to invoke its full authority under the

Commerce Clause. See e.g., Jones v. United States, 529 U.S. 848, 854 (2000); 

Scarborough v. United States, 341 U.S. 563, 571 (1977); United States v.

American Bldg. Maint. Indust., 422 U.S. 271, 280 (1975). In this instance, it

signals the intent to include travel for the purpose of committing arson. 

Ballinger nevertheless argues that he is not covered because the text of

Section 247(b) states that it is the offense that must be “in” or “affect” interstate

commerce; a fact which he reads to signify that the statute’s prohibition on arson

extends to use of the channels of interstate commerce only to the extent that the

ignition of a match or other flammable object and its use to damage or destroy

religious real property occurs while “in” commerce. In addition to the fact that

such a nonsensical reading would make a mockery of Congress’ intent in passing

the statute, any ambiguity created by use of the term “offense” in combination with

the term of art “in or affects” is immediately clarified by the legislative history. 

In the face of a what was perceived as national epidemic of attacks on
34

churches, Congress unanimously passed the Church Arson Prevention Act of 1996

in order to broaden the scope of the old arson law, which had required that “in

committing the offense, the defendant travels in interstate or foreign commerce, or

uses a facility or instrumentality of interstate or foreign commerce in interstate or

foreign commerce.” Pub. L. No. 100-346, § 1, 102 Stat 644 (1988). The House

Report accompanying the amended language explained that the new version:

broadens the jurisdictional scope of the statute by applying criminal

penalties if the offense "is in or affects interstate or foreign

commerce." This formulation grants Federal jurisdiction, and thus

extends the Attorney General's ability to prosecute cases, as to any

conduct which falls within the interstate commerce clause of the

Constitution. 

Under this new formulation of the interstate commerce

requirement, the Committee intends that where in committing,

planning, or preparing to commit the offense, the defendant either

travels in interstate or foreign commerce, or uses the mail or any

facility or instrumentality of interstate or foreign commerce, the

statute will be satisfied. 

1996 U.S.C.C.A.N. 1082, 1087-88 (emphasis added). The corresponding Senate

Report, while terse, also emphasizes the breadth of Congress’ intent. See 142

Cong. Rec. S7908-4 (“[I]t is the intent of Congress to exercise the fullest reach of

the Federal Commerce Power.”) As these statements show, Congress was using a

notion of “offense” broader than the actus reus necessary to establish that a

defendant has gone far enough in carrying out a criminal plan to be generally

sanctionable under doctrines of criminal law. Rather, offense “in” is most
35

reasonably interpreted as specifying the intent to apply the substantive provisions

of Section 247 in part to cases in which the offender has undertaken an interstate

trip or otherwise entered into interstate commerce in order to destroy churches and

as a necessary part of a plan to do so.

In sum, Section 247 invokes the entirety of Congress’ Commerce Clause

authority to prohibit acts of church arson in connection with interstate or foreign

commerce. This authority includes the power to regulate use of the channels of

interstate commerce for the purpose of committing such arson. As Ballinger has

used the interstate highway system for precisely this purpose, the statute is

constitutional as applied to him.

II. Church Connections to Interstate Commerce

Because Ballinger’s travel across state lines provides an independent basis

for finding Section 247 constitutional as applied to him, I would not consider

whether each of the churches’ own activities provide a sufficient nexus to interstate

commerce to do so. However, were I to assume along with the majority that the

power to regulate the channels of commerce does not resolve the issue, I would

still find application of the statute constitutional in this case because the stipulated

facts demonstrate that the destruction of each of the church buildings had a

substantial effect on interstate commerce.
1

In resolving the constitutional question on the particular facts of this case, it is not

necessary to decide whether church arson is an economic activity or whether the relation to

interstate commerce under a statute employing a jurisdictional “hook” such as the one in Section

247 must be “substantial.” I assume without deciding that the majority applies the correct test by

requiring the government to show that Ballinger’s actions substantially affected interstate

commerce without use of aggregation. 

It is worth noting, however, that the majority’s conclusions in this regard do not follow

unproblematically from prior precedent. The Supreme Court acknowledged in Morrison, that

the economic/non-economic distinction is an awkward one, see 529 U.S. at 610, and the

emerging case law attempting to apply it betrays a fair amount of inconsistency. In the most

closely analogous case, United States v. Odom, this Court held that the defendant could not be

prosecuted for arson of a church under 18 U.S.C. § 844(i) using an aggregation theory. 252 F.3d

at 1297. However, prior case law found aggregation under Section 844 appropriate where the

property subjected to arson was used for a commercial enterprise. See United States v.

Dascenzo, 152 F.3d 1300, 1303 (11th Cir. 1998) (rental property); United States v. Chowdhury,

118 F.3d 742, 745 (11th Cir. 1997) (restaurant). This result can only be explained in one of two

ways: either arson is an economic activity under such circumstances, or it is not economic but

the commercial nature of the target permits aggregation. Since Odom also found that the church

at issue was actively used in commerce, 252 F.3d at 1295, it is difficult to discern the basis on

which the Court distinguished that case. Meanwhile, this Circuit has also recently found that the

Hobbs Act, which makes robbery a federal offense so long as it affects commerce, regulates an

economic activity. United States v. Gray, 260 F.3d 1267, 1274 (11th Cir. 2001). I fail to see

why taking personal property is an economic activity while destroying real property that is used

in commerce is not. 

 Nor is the result reached in Odom required by recent Supreme Court precedent. While

Morrison identified violence against a person as a traditional province of state regulation, it

limited the holding that such crime was non-economic to “intrastate violence that is not directed

36

Pursuant to its authority under the Commerce Clause, Congress may regulate

intrastate activities of a non-economic nature where the regulation is limited to a

discrete set of actions which can be individually shown to have a concrete

connection with or substantial effect on interstate commerce. See Morrison, 529

U.S. at 611-612; United States v. Lopez, 514 U.S. 549, 561-562 (1995); see also

Odom, 252 F.3d at 1295-96; Bellflower v. United States, 129 F.3d 1459, 1461

(11th Cir. 1997).1

 
at the instrumentalities, channels, or goods involved in interstate commerce.” 529 U.S. at 617-

18. Since churches are at least sometimes used in interstate commerce, Section 247 is

distinguishable from the Violence Against Women Act. Similarly, while Jones v. United States,

529 U.S. 848, 854-57 (2000), held that 18 U.S.C. § 844(i) must be read, consistent with the

concerns articulated in Lopez, as limited to property actively used for commerce or in activities

affecting commerce, it did not speak to the question of aggregation. 

As to the question whether the government must show that the effect is “substantial,” the

case law again provides inconsistent guidance. Although Lopez held that “the proper test

requires an analysis of whether the regulated activity ‘substantially affects’ interstate commerce”

514 U.S. at 559, it did so in the context of discussing prior case law regulating intrastate

economic activity. In the economic sphere, individual acts within a state may have no

appreciable impact on interstate commerce or traceable connection to persons or things in

another state, and yet it is recognized that the proper functioning of interstate markets may

require regulation of the category of acts of which they are a part. This is the basis of the

aggregation principle. See Wickard v. Filburn, 317 U.S. 111, 128 (1942). In this case the

Commerce Clause inquiry is framed in terms of the effect that a category of activities has as a

whole on interstate commerce writ large--a determination that is susceptible to the noise of large

numbers--and a determination of substantiality is arguably required to demonstrate that a

sufficient connection to interstate commerce exists despite the fact that it has not been

demonstrated on a case by case basis. However, where a statute requires that a regulated person

or associated object must be “in” or “affect” commerce, a concrete traceable connection to

interstate commerce must be demonstrated at the individual level, and the same concerns do not

apply. 

Perhaps for this reason, this court has on several occasions read the substantiality

requirement articulated in Lopez as limited to statutes that regulate intrastate activities without

including a jurisdictional element ensuring a connection to interstate commerce in each case. 

See e.g., Dascenzo, 152 F.3d at 1320-1303 (expressing “doubt”); Castleberry, 116 F.3d 1384,

1387 (11th Cir. 1997) (only a minimal effect on interstate commerce required under the Hobbs

Act due to jurisdictional element); U.S. v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996) (finding

a “minimal nexus” sufficient where a jurisdictional element written into a statute criminalizing

possession of a firearm shows that the statute is aimed at regulating an object connected to

interstate commerce). On the other hand, both Odom, and United States v. Denalli, 73 F.3d 328

(11th Cir. 1996) (modified, 90 F.3d 444 (11th Cir. 1996)) apply the “substantially affects” test in

this context. 

37

What it means to “substantially affect” interstate commerce in this context is not

entirely clear. However, it must at least include the destruction of buildings that

are actively and regularly employed in interstate commerce. In both Lopez and

Morrison, the Supreme Court reaffirmed that Congress may legislate to “protect. . .
2

Obviously, under such circumstances the protection of the organization “in commerce”

requires protection of the property it employs in order to be “in commerce.”

38

persons or things in interstate commerce.” Lopez, 514 U.S. at 558, Morrison 529

U.S. at 609. By noting that this was true “even though the threat may come only

from intrastate activities,” Lopez, 514 U.S. at 558, the Court recognized that in this

context the quantum of effect on interstate commerce generally required of purely

intrastate activities is present by definition. More plainly, a person who destroys a

thing “in” interstate commerce substantially affects such commerce. Further, when

an organization engages in interstate commerce, it is “in commerce” and may be

regulated or protected. See United States v. Robertson, 514 U.S. 669, 672 (1995)

(per curiam) (no need to show that a mining operation “affected” interstate

commerce to fall within Congress’ power to regulate because the effects test

applies to purely intrastate activities and the mine “engaged ‘in commerce.’”). 

Correspondingly, when it uses its real property for that purpose, the property is

also “in commerce” and its destruction “substantially affects” such commerce.2

Consistent with this principle, case law interpreting the omnibus arson

statute, 18 U.S.C. § 844(i), to conform to the requirements of the Commerce

Clause has consistently held the arson of property actively used in interstate

commerce to be within its purview. See Jones, 529 U.S. at 859; Russell v. United
39

States, 471 U.S. 858, 862 (1985); U.S. v. Williams, 2002 WL 1752293, *3-4 (3rd

Cir. 2002); Odom, 252 F.3d at 1995; U.S. v. Cristobal, 293 F.3d 134, 145-46 (4th

Cir. 2002); United States v. Grassie, 237 F.3d 1199, 1207-08 (10th Cir. 2001). 

Indeed, in Jones, the Supreme Court interpreted Section 844(i) to require merely

“active employment for commercial purposes” without any mention of the term

“interstate,” thereby preserving it prior holding in Russell v. United States, 471

U.S. 858, 862 (1985) that the statute applied to a building used as rental property

without further evidence of an interstate connection. 529 U.S. at 848, 859

(distinguishing “active employment” from “merely a passive, passing, or past

connection to commerce.”) In interpreting Section 844(i) in this way, the Court

noted that doing so allowed it to avoid the constitutional question related to

regulating “traditionally local criminal conduct” raised in Lopez. Id. at 858. This

Circuit has required more in the church context, finding that mere engagement in

local commerce was too nominal a connection to interstate commerce to preserve

the distinction between spheres of national and local authority. Odom, 252 F.3d at

1295-96. Even in Odom, however, the distinction was held to be preserved by

interpreting Section 844(i) to require the government to show “that the function of

the property involves the active engagement in commerce and the property either

has a direct and regular connection to interstate commerce or a substantial
40

connection to interstate commerce.” 252 F.3d at 1296 (internal citations omitted). 

Odom also provides specific guidance on the types of activities that qualify

as commerce in this context. Although the Court noted that churches are not

commonly considered business enterprises, it concluded that they nevertheless

“can and do engage in commerce.” Id. at 1289. As the Court held:

The business or commerce of a church involves the solicitation and

receipt of donations, and the provision of spiritual, social, community,

educational (religious or non-religious) and other charitable services. .

. . In general, churches engage in activities and provide services to

their members, to their community and to the public at large; churches

solicit contributions to provide these services; and they purchase

goods necessary to provide these services. Accordingly, the evidence

proving that a church building is used in or affects interstate

commerce must relate to these activities–i.e. whereby it engages in

activities relating to its “business” as a church. 

The purchase and receipt of goods or services necessary for or

common to the maintenance of any building, such as gas, electricity,

insurance, or mortgage loans, do not prove that the function of the

building is to engage in commerce. . . . On the other hand, the receipt

of donations, the purchase of hymnals and payment of dues are the

type of commercial activities by which a church would conduct its

business as a church, and therefore engage in commerce.

Id. at 1295-96 (internal citations omitted). The fact that churches do not engage in

trading for profit, does not alter this conclusion. Id. at 1295; see also Camps

Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 584-6 (1997)

(concluding that the Commerce Clause applies to charitable and non-profit

organizations). Churches are institutions that facilitate the interchange of ideas,
3

As Justice Marshall wrote long ago, “The subject to be regulated is commerce. . . . The

counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of

commodities, and do not admit that it comprehends navigation. This would restrict a general

term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic,

but it is something more: it is intercourse.” Gibbons v. Ogden 22 U.S. 1, 189-190 (1824).

41

goods and services across a religious community that may span multiple states, as

well as between that community as such and the outside world. This is

paradigmatic “commerce.”3

 

Thus, the destruction of real property owned by a church may have a

substantial affect on interstate commerce depending on the territorial scope of the

religious community served by the church, the specific commercial activities in

which it engaged or engages, and the extent to which it used the property in

conducting those activities. Because destroying churches is an activity aimed at

institutions generally engaged in commerce, it is not necessary to resort to the logic

of aggregation to find that it may substantially affect interstate commerce. Nor is

the effect on interstate commerce so attenuated as to raise structural concerns about

regulation of issues that are not truly national. Rather, the subject of 18 U.S.C. §

247 is, in part, actions which constitute a direct attack on the functioning of

commerce through institutions that may operate on an interstate scale.

In light of these principles, I would find that the stipulated facts in this case
4

Although there was some ambiguity in the stipulated facts, the District Court also relied

on the assertions of the parties before it to find that Johnson United served as a voting precinct

for local and national elections.

42

establish that each of the 5 church buildings burned was sufficiently involved in

interstate commerce to satisfy the jurisdictional requirements of Section 247. Each

church purchased religious materials, not merely generic supplies or insurance

used in buildings generally, from a variety of out-of-state sources. As held in

Odom, the purchase, delivery, and dissemination of religious and related materials

is church commerce. 252 F.3d at 1295. Further, several of the churches also

participated in interstate charities and engaged in fund raising on an interstate

level. Most importantly, all five of the churches regularly used their buildings

either to host out-of-state guests, such as visiting pastors, or hold services that were

attended by one or more out-of-state members.4

 While the purchases of religious

materials and fairly minimal evidence of participation in national charities in some

instances might constitute connections between the churches and interstate

commerce that are “too passive, too minimal and too indirect” to satisfy the

Commerce Clause, that fact that each church building was in addition regularly

used to provide religious and other services to a community including out-of-state

members and guests demonstrates active employment in interstate commerce. 

To find to the contrary, the majority attempts to exclude consideration of the
5

 It also engages in an oddly segmented and formalistic analysis of the facts, describing

each category of activity in which the churches were involved seriatim and employing prior

cases in which activities of the type described were found to be insufficient as support for the

proposition that they must also be so here. In taking this approach, the majority appears not to

consider the extent of these activities even in cases, such as charitable operations and purchases

of religious materials, where the activity is of a type that may show that the function of a

building is to engage in interstate commerce. See Odom, 252 F.3d at 1295. The logical fallacy

of such an approach is demonstrated by the fact that each of the authorities cited by the majority

save United States v. Rayborn, 138 F. Supp. 2d 1029, 1036 (W.D. Tenn. 2001)--the opinion from

which the majority derives its narrow notion of commerce--involved substantially less evidence

of use in interstate commerce than is the case here. See Odom, 252 U.S. at 1292 (purchase of

natural gas, a small amount of religious materials, receipt of donations from one out of state

couple, and membership in a intrastate church organization with national umbrella); United

States v. Johnson, 194 F.3d 657, 659 (5th Cir. 2001) (reconsidered 246 F.3d 749) (out of state

insurer, contributions to an in-state organization that were then sent out of state); United States v.

Rea, 223 F.3d 741, 743 (8th Cir. 2000) (reversing United States v. Rea, 169 F.3d 1111 (8th Cir.

1999) in light of Jones) (gas and religious texts purchased out of state).

43

hosting services that the churches provided to out-of-state members and other

visitors, enlisting a single district court opinion for the proposition that the

provision of services which are spiritual in nature does not qualify as interstate

commerce even if those services are provided to members from out of state.5

 Such

a categorical exclusion is inappropriate because it is in direct conflict with this

Circuit’s own holding in Odom. See 252 F.3d 1294-95. Moreover, it is also at

odds with the long line of cases extending back to Ogden, that establish that

intercourse between peoples of different states and the travel or transportation that

is necessary to its accomplishment is commerce without regard to whether such

intercourse is for material gain. See e.g., Heart of Atlanta, 379 U.S. at 255-56

(quoting Ogden and concluding, “that the ‘intercourse’ of which the Chief Justice
44

spoke included the movement of persons through more than States than one was

settled as early as 1849. . . . Nor does it make any difference whether the

transportation is commercial in character.”); U.S. v. Hill, 248 U.S. 420, 423

(1919) (“Importation into one state from another is the indispensable element, the

test, of interstate commerce.”); Caminetti, 242 U.S. at 491 (holding that

importation of a woman for immoral purposes may constitutionally be regulated

even when it is not for material gain). The provision of spiritual services may not

be an “economic” activity is some senses, but a religious community that interacts

across state lines is engaged in interstate commerce. 

Nor is such a rule required by the structural concerns raised in Lopez. 

Contrary to the opinion cited by the majority, Lopez did not seek to maintain a

distinction between materially and non-materially motivated activities of an interstate nature. Rather, it sought to maintain a distinction between the national and

the local, and used the distinction between economic and non-economic activities

merely to cabin the power of Congress to regulate purely intrastate activities. 

Lopez, 514 U.S. at 559-560, 568; see also Morrison, 524 U.S. at 617-618. To

recognize that a particular Church may provide spiritual or religious services to an

audience that reaches beyond state lines is not to obliterate such a distinction.

In sum, Ballinger’s travel in interstate commerce was sufficient to subject
45

him to the punishment Congress intended in enacting 18 U.S.C. § 247. Moreover,

the regular and active use of the church buildings he destroyed in interstate

commerce and the effects of their destruction on such commerce serve as an

independent basis for the statute’s application. I respectfully dissent.