253 F.3d 12 (D.C. Cir. 2001)
Augustine David Henderson, Appellantv.Roger A. Kennedy, et al., Appellees
No. 00-5070 and No. 00-5071
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 13, 2001Decided June 26, 2001

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:


1
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 component 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.

2
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.   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 commercialism" 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 Regulations, 60 Fed. Reg. 17,639 (Apr. 8, 1995).


3
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 Veterans 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 opinion) ("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.


4
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 communicating 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.


5
After Friends II, counsel for Henderson and Phillips entered an appearance, and moved for leave to file an amended 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 amendments 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).


6
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 declaratory 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.

7
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.   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 Exercise 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, whether 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 burden[ing] a person's exercise of religion" unless the government demonstrated that the burden "(1) is in furtherance of a  compelling governmental interest;  and (2) is the least restrictive means of furthering that ... interest."  42 U.S.C.   2000bb-1.  Branch Ministries v. Rossotti, 211 F.3d 137,  144 (D.C. Cir. 2000).


8
City of Boerne struck down the portion of RFRA regulating state and local governments because Congress had exceeded its power under  5 of the Fourteenth Amendment. 521 U.S. 507.  RFRA was not "remedial, preventive legislation."  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.


9
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  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 Airlines, 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).


10
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 viewpoints.  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 containing content that conforms with [their] beliefs, because the  preparation of these materials requires money;  [their] vocation 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."


11
Given these representations, plaintiffs cannot claim that the  regulation forces them to engage in conduct that their religion 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 commercial activities in many areas, including for instance the interiors of government buildings open to the public.  Nor does the  regulation "significantly inhibit or constrain conduct or expression 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 "substantial burden" where alternatives were available).


12
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 narrower test.  211 F.3d at 142.  To our court, "substantial burden"  in RFRA is what the Supreme Court had in mind in its preSmith 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 governmental interest justifies the burden."  The idea that a restriction  on religiously motivated conduct requires a compelling governmental 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 periphery 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 votaries of the religion...."  80 F.3d at 1179-80.

B.

13
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 demonstrations 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.


14
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 impermissible 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).


15
Plaintiffs also allege an equal protection violation because  the Park Service permits Guest Services, Inc., a concessionaire, 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.  §§ 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 concessionaires.  Id.


16
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 concessions 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.

17
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 Amendment 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.


18
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


19
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.


20
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


21
Affirmed.



Notes:


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.


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 motivated 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.


