Cowboy Weathervane_Pai Shih_72dpi_cropBelow are news items from the past week involving local government, religion, and land use that may be of interest to our readers.

  • The New York Times reports that the Ten Commandments monument on the Oklahoma Capitol grounds has been removed following the State Supreme Court’s decision that the monument violated the Oklahoma Constitution (prior post here). The State was facing a Monday deadline to remove the monument.  Reportedly, a conservative policy group will display the monument on private property only a few blocks from the Capitol.
  • The Department of Justice announced that it has filed suit against Des Plaines, Illinois in connection with the American Islamic Center’s efforts to rezone property to construct a mosque. The complaint is available here.  We reported on what appears to be a very similar matter here.  A post about the new lawsuit is forthcoming.
  • The Blaze reports that the City of Jacksonville, Florida and Church of Our Savior have settled a federal lawsuit taken under RLUIPA that will allow the Church to move forward with plans to build a house of worship. Reverend David Ball stated of the settlement: “We are so thankful to finally be free to build a house of worship in the place we believe God has called us.”  As we reported in a prior post, the Church, represented by Daniel P. Dalton, prevailed in this matter by establishing an RLUIPA equal terms violation (decision available here).  The City appealed that decision, but the merits were not heard as a result of the settlement.
  • Radio Station WHMI 93.5 FM reports that Genoa Charter Township, Michigan has rejected Livingston Christian School’s offer to settle a RLUIPA case involving the Township’s denial of a special land use permit to operate a religious school (prior post here). Reportedly, the School offered to drop the lawsuit if the Township issued the permit, but the Township did not respond because it believes the offer “is not a good faith proposal,” since it had previously rejected the same offer.
  • LifeSiteNews reports that The Satanic Temple has sued the State of Missouri and the federal government, arguing that laws restricting abortions violate its members’ religious beliefs. According to the news article, The Satanic Temple believes that abortion is an “essential religious duty” for Satanists and opposed Missouri’s “Informed Consent” and 72-hour waiting period laws.  Satanic Temple Founder Doug Mesner (pseudonym) whose Satanist name is Lucien Greaves stated that Missouri’s law violates the federal Religious Freedom Restoration Act (RFRA) because “[t]he question of when life begins is absolutely a religious opinion.”  The defendants have moved to dismiss the lawsuit.
  • According to Religion Clause, “a  Colorado federal district court held that the White supremacist Creativity Movement may qualify as a ‘religion’ for purposes of the First Amendment and RFRA.”  The court, in its decision, noted that whether Creativity is a religion is a factual question and the plaintiff had presented enough facts in his complaint to survive the defendant’s motion to dismiss by identifying certain “commandments” of Creativity.  The complaint “alleges that ‘Creativity addresses all the ultimate questions of life, including the meaning of life and its purpose,’ which, for Creators, is to halt the mixing of races and devote themselves to the salvation and survival of the white race.”  According to the Southern Poverty Law Center, Creativitiy is a Neo-Nazi Ideology and is “the latest of several incarnations of the racist group (and religion) originally known as Church of the Creator. The movement promotes what it sees as the inherent superiority and ‘creativity’ of the white race.”

Original Photography by Pai Shih (Licensed, cropped from original)

Upcoming Webinar: Planning for Religious Uses Under the Religious Land Use & Institutionalized Persons Act

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Planning for Religious Uses Under The Religious Land Use & Institutionalized Persons Act on Thursday, October 22, 2015 from 1:00 to 2:30 PM ET. Registration is $20 for PLD members, $40 for nonmembers, and $45 for the webinar and PLD membership.

Enacted in 2000, the Religious Land Use & Institutionalized Persons Act (RLUIPA) has significantly affected the ways in which local governments plan for religious uses. In some cases, local governments have capitulated under the threat of RLUIPA litigation. In many others, local governments have instead vigorously defended their comprehensive plans of development and review of religious land use applications against such claims. The presenters, who advise local governments and represent religious land use applicants, will explain several different strategies and approaches that can be used to avoid RLUIPA litigation, including through revisions to local zoning codes and accommodating religious uses when appropriate. The presenters, all with RLUIPA litigation experience, will also discuss the different types of RLUIPA claims, the life of an RLUIPA case from start to finish, and approaches that they have found successful.

Speakers include: Daniel P. Dalton, Dalton & Tomich, PLC (Detroit, MI); John B. Murphey, Rosenthal, Murphey, Coblentz & Donahue (Chicago, IL); Noel W. Sterett, Mauck & Baker, LLC (Chicago, IL); and Evan J. Seeman, Robinson & Cole, LLP (Hartford, CT).

Click here to register for this webinar.

Life is Beautiful! Stevie Wonder Concert Not a Burden on Religious Exercise

StevieA federal court in Nevada recently dismissed a church’s claim that a music festival in “Sin City” Las Vegas featuring the likes of Stevie Wonder, Duran Duran, and Twenty One Pilots burdened its religious exercise.  According to the church, the three-day art, music, culinary and learning festival known as “Life is Beautiful” results in large crowds, road closings and concert noise that interfere with its ability to hold weekend worship services.  The festival covers 11 city blocks, attracts thousands of people, and showcases 70 musical acts on 4 stages.  The church, Amistad Christiana Church, sued the City of Las Vegas and Life is Beautiful, LLC to bar the music festival or, in the alternative, for the defendants to put in place “mature noise buffers” or come up with some other method to prevent the music from the stages from drowning out the church’s services.

The Court dismissed the church’s § 1983 claim against the City because the City took no action to prohibit, regulate, or coerce the church’s religious beliefs or practices.  It merely issued a permit for a music festival.  The church’s freedom of speech claim failed because “[t]he record reflects no indication that the City’s action was motivated by the City’s disdain of [the church’s] religious orientation … or by the message to be communicated to the students/parishioners at the Property.”  These same claims failed against the LLC because a § 1983 claim can be brought only against a state actor.

Lastly, the Court dismissed the church’s state law nuisance claims since the musical festival is only a temporary event in a location frequently used for festivals.  Further, the nuisance claim was premised largely on the alleged constitutional violations.  However, the Court noted that there may be other ways in which the church could establish a nuisance and dismissed the claim without prejudice, but noted that any such claim must be brought in state court.

The decision in Amistad Christiana Church v. Life is Beautiful, LLC (Dist. Nevada 2015) is available here.

Original Photography by Louis Fernando Reis (Some Rights Reserved)

Tear Down This Wall! Botched Demolition and Apartment Conditions Lead to RLUIPA Dispute

On September 24, Rock Church of Easton (Rock Church) filed an “Emergency Motion for a Temporary Restraining Order and /or Preliminary Injunction” against the City of Easton, Pennsylvania (the City or Easton) and its Bureau of Codes and Inspections.  Rock Church seeks a Temporary Restraining Order (TRO) to stop the City from enforcing “local code and property management ordinances” against Rock Church and its non-profit subsidiary corporation, Church Redevelopment Corporation (CRC).party wall

According to Rock Church, “property acquisition and renovation, through CRC as the designated property manager, is a core part of its religious mission of community development and restoration to provide people in need with help and families in distress with security and hope in a close knit community of Church members as leasehold tenant.”  Since 1979, CRC and the Church have purchased approximately 20 properties and rehabilitated 16 through member donations and construction efforts.

The controversy between Rock Church and Easton began in 1994 when the building directly abutting CRC’s property at 505-507 Northampton Street (the Property) was demolished.  According to Rock Church, the demolition was incomplete and has left part of the wall of the demolished building standing against the west wall of the Property.  Rock Church claims that the City’s failure to enforce its demolition ordinance has caused damage to the Property, the very same damage “which the city has been and continues to predatorily execute code violations against Plaintiffs….”

In its brief in opposition to Plaintiffs’ motion, the City contends that any problems associated with the wall (instability, detaching façade) are the responsibility of CRC and Rock Church and that these Plaintiffs have already accepted responsibility for the wall through their previous actions.  Additionally, the City is concerned with health and safety violations at the Property unrelated to the wall and has issued violations “concerning sanitation, storage, and insects and rats.”  The City also cites concerns not only for the Property, but also CRC’s property at 501-503 Northampton Street.

In addition to the factual contentions raised in the City’s brief, it claims (1) the court lacks jurisdiction because Plaintiffs never filed a complaint; (2) the court should abstain from hearing Rock Church’s motion because the parties are already embroiled in a criminal proceeding where Rock Church and CRC are facing criminal citations for property violations; and (3) the Plaintiffs cannot establish irreparable injury because Plaintiffs have a right to assert any available defenses in the criminal action and have a right to appeal from any decision thereof.

This case presents some interesting new questions regarding the scope of RLUIPA.  Is CRC a religious institution?  Can the provision of low income housing constitute religious exercise?  We know that money-raising efforts, where the capital is used for religious exercise, are not protected under RLUIPA (See “Sale of Property for Secular Use Does Not Constitute Religious Exercise.”)  As far as the authors of RLUIPA Defense are aware (dedicated readers please inform us if you are otherwise aware) the provision of rental housing has never been raised as a potential religious exercise in the RLUIPA context.

Of course, we will continue to monitor this case.  Rock Church’s motion is available here and the City’s opposition is available here.

Original photography by Paul Simpson, Licensed

Supreme Judicial Court Hears Case Involving Access to Sweat Lodges in Prisons

This is a guest post contributed by Joseph N. Schneiderman.*

PrisonOn October 5, 2015, the Supreme Judicial Court of Massachusetts heard argument in Trapp v. Commissioner of the Department of Corrections, SJC-11863. At issue is whether RLUIPA (and the Massachusetts Constitution) recognize Native American inmates’ rights to access sweat lodges—or a sacred location for spiritual purification and reconciliation and prayer.

Randall Trapp is an inmate at Massachusetts Correctional Institution-Norfolk (MCI-Norfolk) serving a mandatory life sentence without possibility of parole for first degree murder. See Comm. v. Trapp, 396 Mass. 202 (1985), S.C., 423 Mass. 356 (1996). In 1995, Trapp first sued Massachusetts Department of Correction (DOC) over violations of his religious freedom. Subsequently, in February 2003, Trapp entered into a settlement with the DOC. In relevant part, the DOC agreed to provide sweat lodges at MCI-Norfolk and the North Central Correctional Institution in Gardner (medium security facilities) as well as at the Souza-Baranowski Correctional Center (SBCC) in Shirley—a maximum security facility sometimes known as a “supermax” facility (also where Aaron Hernandez is incarcerated).

Sweat lodges are small, enclosed dome-like structures consisting of sixteen saplings and a covered dome with tarps and blankets. The lodges also contain pits at their center where rocks are heated with wood fires during ceremonies.  One individual is designated as a fire tender and is responsible for starting and maintaining the fire. The lodge represents the mother’s womb and provides participants the opportunity to “sweat out” any impurities, communicate with their ancestral spirits, and offer prayer. Kinnick-kinnick (a form of Tobacco) is uniquely important to this ceremony as a vehicle for communication with ancestral spirits.

The DOC currently permits Native American inmates access to ceremonial pipes, cedar, sage, certain forms of kinnick-kinnick, smudge bowls, and other Native American cultural items. However, the continual presence of Native American volunteers to tend the sweat lodge fire has been difficult to maintain. In September 2010, Trapp revived his lawsuit asserting that the DOC had breached the settlement, denied him access to authentic kinnick-kinnick and authentic regalia during sweat lodge ceremonies, and that MCI-Norfolk and SBCC had closed their sweat lodges. Trapp joined fellow MCI-Norfolk inmate Robert Ferreira (who is now incarcerated at SBCC) asserting state and federal constitutional violations as well as a claim under RLUIPA that the DOC’s actions have substantially burdened his religious exercise.

The case survived motions to dismiss and summary judgment and eventually proceeded to a full bench trial in July 2012 in the Worcester Superior Court. A judge there issued a declaratory judgment that the DOC had violated the settlement, RLUIPA and the Massachusetts Constitution by closing the sweat lodge at SBCC but not by closing the sweat lodge at MCI Norfolk because of a lack of an available qualified volunteer. The DOC appealed, and the Supreme Judicial Court transferred the case to itself from the Appeals Court on its own motion.

The crux of the dispute under RLUIPA is whether the failure to provide sweat lodges imposes a substantial burden on Mr. Trapp’s religious exercise, and if so, whether the DOC has a compelling government interest to justify its actions. Initially, the DOC and Trapp agree on the definition of “substantial burden” as “substantial pressure on an adherent to modify his behavior and violate his beliefs.”

The DOC contends that because of SBCC’s construction, there is no way to adequately ventilate the sweat lodge and asserts that smoke has entered the prison and caused respiratory distress for inmates and staff alike. SBCC is a fairly new prison (built in 2000) and employs a closed ventilation system with windows that are permanently closed.  The DOC emphasized a study performed by an environmental analyst about ventilation and the public health threat posed by the sweat lodge.  The DOC further contends that it has a compelling interest in maintaining the health of inmates, noting that the Supreme Court has held that exposure to second-hand smoke poses a potential Eighth Amendment violation. The DOC also notes that sister courts have held that prisons may ban tobacco smoking, pipe sharing, and smudging.  Indeed, federal courts in Massachusetts have held that the risk of smoke exposure through SBCC’s ventilation system does not violate RLUIPA.  Nor does denial of a sweat lodge at the Massachusetts Treatment Center at Bridgewater.

Trapp contends that the trial court correctly rejected assertions of respiratory distress as unsubstantiated hearsay and lacking an adequate expert foundation. Trapp further contends that complete closure of the sweat lodge is not the least restrictive means to accomplish the DOC’s ends of protecting inmate health and safety and that the DOC has not explored any alternative means to ventilate the sweat lodge at SBCC. Lastly, Trapp attempts to distinguish the federal decisions finding that preventing smoke exposure does not violate RLUIPA on the ground that those decisions involved pro se litigants.

Per the Court’s solicitation, several amici have supported Trapp’s position. One notes that a prison in Arizona was able to facilitate construction of a sweat lodge-and two federal appellate courts have held that total closures does not satisfy RLUIPA’s least restrictive means requirement. Huy (pronounced Hoyt), a non-profit organization devoted to promoting the needs of incarcerated Native Americans, notes also that Native Americans have the highest per capita incarceration rate. Huy emphasizes that sweat lodges are fundamental to the continued spiritual well-being of Native American inmates that cannot be replaced by prayer alone. Huy further notes that Colorado, New Mexico, and Oregon have successfully established sweat lodges-and spurred rehabilitation of Native American Inmates. Finally, Prisoner’s Legal Services echoes Huy and asserts that prison administrators are not entitled to deference on health issues rather than security issues. Because of this, they allege, the DOC failed to establish a compelling interest by competent evidence.

As one of the leading State High Courts in the country, the SJC’s decision on this front may have resonance for years to come not just for inmates in the Commonwealth, but also throughout the nation.

The Supreme Judicial Court inspired Joseph N. Schneiderman to be a lawyer in the first place. Joe is building an appellate practice “on circuit” in Connecticut and Massachusetts alike. Joe gratefully thanks the authors of RLUIPA Defense for this opportunity to blog!

*This is a guest commentary from Joseph N. Schneiderman who is not affiliated with Robinson+Cole, and RLUIPA-Defense.com is not responsible for the content of this post.

Original Photography by miss_millions (Some Rights Reserved)


Cowboy Weathervane_Pai Shih_72dpi_cropBelow are news items from the past week involving local government, religion, and land use that have caught our attention.

  • The United States District Court for the Eastern District of New York has issued a Memorandum and Order on the parties’ cross-motions for summary judgment in Roman Catholic Diocese of Rockville Centre, New York v. Incorporated Village of Old Westbury. A guest post about this decision is forthcoming.**
  • The United States District Court for the Southern District of New York, in a 145 page decision, has issued its Opinion and Order on the parties’ cross-motions for summary judgment in Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona.**
  • Christian News Network reports that the Coral Springs, Florida City Council will no longer permit pre-Council meeting invocations. The decision follows a request by Satanist Chaz Stevens to offer an invocation.  Stevens threatened to sue the city if his request was denied.  Instead, Coral Springs decided to scrap its invocation policy altogether.  Mayor Skip Campbell sums up Coral Springs’ position: “I don’t think our citizens would be in favor of Satanic invocations before City Commission meetings.  The cost of fighting that could be astronomical.  I don’t see [how] we as a city should be paying lawyer fees for fights on principle.  I can find a lot of better things to do with a couple hundred thousand dollars than to give to a lawyer.”
  • The City of Hawkins, Texas has decided to remove a “Jesus Welcomes You to Hawkins” sign on public property after receiving a letter from the Freedom From Religion Foundation that the sign violates the Establishment Clause. Hawkins Mayor Will Rogers reacted to the letter by stating that “Jesus is not a religion, Jesus is in every religion across the globe.”  Hawkins citizens have responded by posting their own smaller versions of the signs on their lawns.  World Religion News reports on this story.
  • Law of the Land blog reports on a Michigan federal court’s RLUIPA decision in Muslim Community Association of Ann Arbor v. Pittsfield Charter Township. The decision considers the Muslim group’s motion to reconsider the Court’s earlier decision dismissing the group’s RLUIPA claims as unripe (prior post here).  The Court adhered to its earlier decision.
  • The St. Cloud Times reports that the St. Cloud zoning board of appeals has denied a church’s request to allow a homeless person to reside in a tiny house consisting of 132-square feet that sits on wheels and is located on church grounds. A local attorney wrote an editorial noting that the zoning board received into evidence a law review article summarizing RLUIPA and its potential application to this matter.
  • Duluth News Tribune reports that a Minnesota woman alleged to have smoked marijuana in violation of her probation for a drug charge is arguing that smoking pot is a part of her sincerely held religious beliefs as a member of Indiana’s First Church of Cannabis. Her lawyer contends that, due to the illegality of marijuana, the woman “cannot adhere to the principal ideologies of her church, namely the positivity cannabis provides to the world.”  The lawyer further argues that the state cannot demonstrate a “compelling interest” by banning marijuana and that her client’s use of the drug does not create a danger to the “peace or safety of the public.”

**Robinson & Cole represents parties in this case.

Original Photography by Pai Shih (Licensed, cropped from original)

Hope Rising Church Hoping for a Preliminary Injunction

In June 2014, Plaintiff Hope Rising Community Church sought to establish a place of worship in Penn Hills, Pennsylvania.  According to its complaint, Pastor Harry Hoff met with Penn Hill’s planning and code enforcement officials, discussed Hope Rising’s plan to locate at a warehouse in a non-residential zone, and was told Penn Hills had no objection to that use.  After meeting with municipal officials, Hope Rising entered a three year lease and spent over $7,000 on renovations plus approximately $10,000 in donated material and equipment.  In September 2014, the municipality, after inspection, issued Hope Rising an occupancy permit.IMG_20150821_070935520_HDR

In January 2015, Penn Hills ordered that Hope Rising cease holding assembly services at the warehouse property.  On March 9, Hope Rising applied for a variance but was denied after the Zoning Hearing Board, according to Hope Rising, “improperly inferr[ed] that the Church misled the City as to the use of the building….”  Currently, Hope Rising is allowed to use the property for clothing distribution, a food bank, small meetings for church volunteers, and individual counseling.  But it is still prohibited from conducting religious worship services at the property.

Hope Rising claims that since March 2015, it has been forced to meet in inadequate locations, significantly reducing attendance for religious services.  Given Penn Hill’s enforcement notice and variance denial, Hope Rising claims it is substantially burdened in violation of RLUIPA.  Hope Rising also pleads a facial RLUIPA Equal Terms violation. According to the complaint, churches and religious assemblies are allowed only as conditional uses within residential districts.  Other non-religious assemblies and institutions such as lodges, clubs, meeting halls, educational institutions, planned industrial developments, parks and playgrounds are allowed by right in other zones within Penn Hills.

In a third RLUIPA claim, Hope Rising alleges a violation of RLUIPA’s Unreasonable Limitations provision.  Additionally, Hope Rising claims a violation of  Equal Protection under the U.S. Constitution and a violation of the Pennsylvania Religious Freedom Protection Act.

Approximately two weeks after filing its complaint, Hope Rising filed a motion for a preliminary injunction, claiming a high likelihood of success on both its RLUIPA Unreasonable Limitations and Equal Terms claims.  It asserts that RLUIPA’s Unreasonable Limitations provision is violated when a municipal zoning ordinance does not allow places of worship in any zoning district by right.  Further, Hope Rising claims that there is no property available in Penn Hill’s residential zones, the only zones where places of worship are conditionally allowed.

Hope Rising also claims a high likelihood of success on its Equal Terms claim, correctly noting that the Third Circuit uses a strict liability standard for Equal Terms violations—if religious uses are treated unequally, such diversity in treatment cannot be justified by a narrowly tailored, compelling government interest.  (See Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir. 2007)).

Hope Rising’s complaint and brief in support of its motion for a preliinary injunction are available here and here, respectively.

Mosque’s RLUIPA Claims Move Forward

Almost a year ago, we reported on The Bensalem Masjid, Inc.’s lawsuit against Bensalem Township, Pennsylvania following the Township’s denial of Masjid’s use variance application to build a 16,900-square foot mosque, including a 500-square foot conference room, a 4,000-square foot multipurpose room and 154 parking spaces (prior post here).  After five sessions of the public hearing and deliberations over the course of nine months, the Township’s Zoning Hearing Board denied the application.  Masjid currently worships in a rented fire hall with another Muslim group, which it alleges violates its religious beliefs in several ways discussed in our prior post.

Masjid sued the Township and its agencies under the Religious Land Use & Institutionalized Persons Act (RLUIPA), the U.S. Constitution, and state law.  Almost a year after commencing suit, a Pennsylvania federal court largely denied the Township’s motion to dismiss these claims as unripe and ruled that all but two of Masjid’s claims could proceed.

First, the Township argued that Masjid’s lawsuit was not ripe for the court’s review because Masjid could have, but did not, seek to rezone the property it sought to develop.  Under the Township’s zoning code, houses of worship are allowed only in the Institutional zoning district.  The property that Masjid wants to develop, however, is partially located in two of the Township’s residential zones (R-A and R-11) and the business zone, none of which permit houses of worship.  The Court concluded that Masjid’s claims are ripe for review, even though Masjid never sought a rezone of the subject property, because the Board denied the use variance application.

The Court next concluded that Masjid had alleged colorable violations of RLUIPA and could proceed with those claims.  First, Masjid alleges that the use variance denial substantially burdens its religious exercise by forcing it to continue to worship from a rented fire hall that it asserts cannot accommodate its religious needs.  Second, Masjid alleges a violation of RLUIPA’s nondiscrimination provision because it contends the Board applied different and more rigorous use variance standards when reviewing its application and also displayed anti-Muslim animus.  Third, Masjid alleges that the Township’s zoning plan has so few locational opportunities for religious organizations that it violates RLUIPA’s unreasonable limits provision.

Masjid’s fourth and final claimed RLUIPA violation is under the statute’s equal terms provision.  According to Masjid, several uses that are permitted on the subject property would have a greater land use impact than the proposed mosque, such as municipal buildings.  The Township argued that the equal terms claim should fail because Masjid was required to, but did not, identify a secular comparator that owned one parcel of land located in three separate zoning districts, like the property that Masjid sought to develop.  But the Court rejected this argument and concluded that a comparator need not be identical to establish an equal terms violation.  The Court also permitted Masjid to move forward with its Free Exercise, Equal Protection and certain state law claims.

The Court’s Memorandum of Decision in The Bensalem Masjid, Inc. v. Bensalem Township, Pennsylvania (E.D. PA 2015) is available here.

Original photography by Tony Hisgett (Some Rights Reserved).

No TRO: Here’s Why

Original Photography by Kevin Dooley (Some Rights Reserved)

Original Photography by Kevin Dooley (Some Rights Reserved)

The U.S. District Court for the Eastern District of Michigan, approximately two weeks after it denied Livingston Christian Schools’ (“LCS” or “School”) request for a temporary restraining order (“TRO”), has issued a written decision that explains why Genoa Charter Township, Michigan’s (“Township”) denial of a permit that would allow LCS to operate a private school is unlikely to substantially burden its religious exercise.  As we reported previously, LCS had entered into a lease with Brighton Church of the Nazarene to use the Church’s property as a religious school.

LCS claims that the building it had used for the past nine years is not large enough for its current needs. Denial of the Church’s application, according to the School, has substantially burdened its religious exercise, as well as the religious exercise of its students.  Five days after commencing suit, the School filed an emergency motion for a TRO to allow it to use the leased property to begin the new school year. But after filing its emergency motion, the School found another location and entered into a short-term lease.

On August 31, the Court denied the School’s emergency motion without a written decision. On September 15, the Court issued a written decision, primarily detailing why LCS is unlikely to prove it was substantially burdened.

First, the court concluded that LCS does have standing to challenge the denial of the Church’s special use permit. Although LCS was not the applicant, the “denial of the church’s amended special use permit directly impacts LCS’s ability to operate its school at the location it desires.”

Next, the court considered the merits of LCS’s RLUIPA claim and whether it had a strong likelihood of success in showing the permit denial caused a substantial burden. The court relied heavily on the reasoning provided in Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729 (6th Cir. 2007):

Applying the substantial burden standard articulated in Living Water, LCS is required to show that, “though the government action may make religious exercise more expensive or difficult, . . . the government action place[s] substantial pressure on [it] to violate its religious beliefs or effectively bar[s] [it] from using its property in the exercise of its religion[.]” …. At this juncture, LCS has not made a strong showing of a substantial burden. LCS can still operate its school at the Pinckney location, and, more recently, has found a second location where it plans to operate for the 2015-16 school year.

Further, when “it may be less convenient or more expensive for LCS to operate its school from a different location, Living Water instructs that this does not equal a substantial burden on LCS’s ability to freely exercise its religious tenets.”  Since LCS had “ready alternatives” to operate its religious school, the Township’s denials is unlikely to burden its religious exercise.

Will the recent decision encourage the parties to seek an out of court settlement?  Prior to the written decision, LCS firmly stated that it continued to incur damages in the form of rental payments and had experienced “significant de-enrollment” that has caused a loss in tuition: expenses, plus attorneys’ fees, it seeks to recover in this case.

The Court’s decision in Livingston Christian Schools v. Genoa Charter Township (E.D. MI 2015) is available here.

Arkansas Senate Opens the Door; Baphomet Walks In

417820288_13d42684b6_bThe Arkansas Senate, in  passing Bill no. 939 (now Act 1231), authorized the placement of a Ten Commandments monument on the grounds of the Arkansas State Capitol to purportedly “help the people of the United States and of the State of Arkansas to know the Ten Commandments as the moral foundation of the law.”  While the “Ten Commandments Monument Display Act” was passed to direct the Secretary of State to arrange to place the monument and prepare for any challenge to “the legality or constitutionality of the monument,” it also triggered responses from atheists, Hindus, vegans, and the Satanic Temple, according to the Arkansas Times.

We previously reported on the Satanic Temple of Detroit’s unveiling of “The Satanic Temple Baphomet monument” at an approximately 700-person party, here.  Now the Satanic Temple has formally requested that the Baphomet monument be placed next to the planned Ten Commandments display.  According to a press release, posted by the Arkansas Times, the Temple believes that the State, through Bill no. 939, has opened public grounds to privately funded donations.  Thus, the State, also argues the Temple, cannot engage in viewpoint discrimination and deny donations of a similar manner.

According to the Temple, the “monument is a memorial to the various historical witch hunts, and homage to the persecuted free-thinkers and “heretics” who helped inform American secular jurisprudence.”  The inscription on the monument will read:

Be it known to all that this statue commemorates the history of law in the United States of America. From the deplorable Satanic Witch Hunts, the cherished doctrines of due process, presumption of innocence and the protection of minorities from the tyranny of mob rule became part of the established foundation of American jurisprudence.

RLUIPA Defense will continue to monitor the Temple’s efforts in Arkansas and keep an eye out for an almost inevitable Establishment Clause challenge.

Original photography by brandi (Licensed).