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Holt v. Hobbs Aftermath: Supreme Court Remands Native American Prisoners’ RLUIPA Claims
Posted on 1/27/15 by Evan Seeman, Dwight Merriam, and Karla Chaffee

Less than a week after its decision in Holt v. Hobbs, the Supreme Court in Knight v. Thompson, No. 13-955 (2015), granted the petition for a writ of certiorari, vacated and remanded the Eleventh Circuit’s rejection of Native American prisoners’ claims challenging prison policy requiring all male inmates to have a “regular hair cut,” defined as having the hair “off neck and ears.”  Although the Eleventh Circuit found that “long hair has great religious significance for many Native Americans,” it concluded, like most other courts, that the prison policy was in furtherance of a compelling safety interest.  Here, there was evidence of (a) a prisoner escaping and drastically changing his appearance by cutting his hair; (b) reports that inmates have hidden ice picks, handcuff keys, wires, bolts, and other contraband items in their hair, including a razor which cut the hands of prison staff while searching an inmate’s hair; and (c) “an incident in which a black widow spider wove a nest in an inmate's dreadlocks . . . .”  The Eleventh Circuit observed that “Although the RLUIPA protects, to a substantial degree, the religious observances of institutionalized persons, it does not give courts carte blanche to second guess the reasoned judgments of prison officials."

According to the Eleventh Circuit, the “regular hair cut” policy was the least restrictive means of furthering the prison’s safety interest, because: “The RLUIPA asks only whether efficacious less restrictive measures actually exist, not whether the defendant considered alternatives to this policy.  As already explained, the [prison] has shown that no efficacious less restrictive measures exist and has therefore carried its burden.”  The Eleventh Circuit’s decision is available here.

The Supreme Court, in its January 26, 2015 Order List (available here), granted the prisoners' petition for a writ of certiorari, vacated and remanded the decision back to the Eleventh Circuit “for further consideration in light of Holt v. Hobbs” in which the Court refused to blindly defer to prison policy based on the specific facts of the case.

We previously reported on Holt v. Hobbs and the impact it may have on local governments defending zoning decisions involving religious uses (post available here).  Could this be the first of many post Hobbs decisions trimming the deference usually afforded local governments in preserving public health and safety?

New Article re How to Avoid and Defend Against RLUIPA Claims
Posted on 1/26/15 by Evan Seeman, Dwight Merriam, and Karla Chaffee

The recent issue of West’s Zoning and Planning Law Report features an article by Evan Seeman that will be of special interest to our readers: RLUIPA Defense Tactics; How to Avoid & Defend Against RLUIPA Claims.  The article is available here.  Early reviews of the article include these:

  • “An excellent article for the municipal practitioner, demonstrating that with proper planning, knowledge of the law, and education, it is possible for local governments to reasonably regulate religious institutions, and still prevail in the inevitable lawsuit that will be filed when they do.”  Steven Elrod, Holland & Knight.
  • “Evan’s article is a ‘must read’ for any local government zoning official or attorney who wants to avoid expensive and lengthy RLUIPA litigation.  The article is full of practical tips for governments, such as carefully and deliberately planning for religious uses in the community.”  Julie Tappendorf, Ancel Glink.
  • “Evan has offered several clear and practical suggestions as to how to avoid and defend RLUIPA cases.  This article is worth your time to read.”  Daniel Dalton, Dalton & Tomich.

Supreme Court Holds Prison Grooming Policy Violates RLUIPA: Did Local Government Take a Haircut in the Process?
Posted on 1/21/15 by Karla Chaffee, Dwight Merriam, and Evan Seeman

Remember the scene in Home Alone where Kevin McCallister (Macaulay Culkin) shaves for the first time, applies aftershave, and then screams in pain from the sting of the alcohol touching his skin (watch it here)?  Local governments may similarly feel the burn after reading the Supreme Court’s decision in Holt v. Hobbs, decided on January 20, which considered the portion of the Religious Land Use and Institutionalized Persons Act (RLUIPA) that governs religious exercise by institutionalized persons (Section 3, 42 USC § 2000cc–1).  Although the case does not discuss the land use provisions of RLUIPA, the Court’s interpretation of the standard applicable to governmental action imposing a substantial burden on religious exercise—whether the government furthered a compelling interest through the least restrictive means—could have a major influence on all RLUIPA substantial burden decisions and make defending land use decisions more difficult for local governments. 

As we reported previously: Gregory Holt a/k/a Abdul Maalik Muhammad is serving a lifetime sentence in an Arkansas prison for burglary and domestic battery.  Mr. Holt seeks to grow a beard in accordance with his Muslim faith, but Arkansas prison officials prohibited him from doing so, citing to state policy that “[n]o inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip.”  Although the policy had no exceptions for inmates who objected on religious grounds, it did provide an exception for inmates with a documented “dermatological problem.”  In response to the denial of his request for accommodation, Holt suggested that he be allowed to grow only a half-inch beard.  This request was also denied. 

According to the Arkansas Department of Corrections (Department), the beard policy is necessary to (1) help prevent inmates from concealing contraband, drugs, or weapons and (2) prevent inmates from growing beards to change their appearance by shaving.

The Supreme Court overturned the decisions of the district court and the United States Court of Appeals for the Eighth Circuit. The Eighth Circuit had reasoned that, even if the grooming policy burdened religious exercise, the Department and prison officials “met their burden under RLUIPA of establishing that [the Arkansas Department of Corrections’] grooming policy was the least restrictive means of furthering a compelling penological interest.”  The Eighth Circuit’s decision in Holt v. Hobbs (8th Cir. 2013) is available here. The Supreme Court’s reversal was unanimous (despite the fact that only one justice appears to present a personal preference for facial hair).  

The Court first found that Holt’s religious exercise was substantially burdened because he was faced with the choice of violating his sincerely held religious belief (shaving his beard) or suffering serious disciplinary action.  The Court noted that the district court erred in reasoning that since the prisoner was provided with alternative means of worship (including a prayer rug and access to religious advisors), the prisoner was not substantially burdened.  The district court relied on a string of First Amendment cases, which the Court distinguished: “Under those cases, the availability of alternative means of practicing religion is a relevant consideration, but RLUIPA provides greater protection.”

Next, the Court assessed whether the Department’s asserted interests were compelling and achieved through the least restrictive means.  The Court rejected the Department’s “broadly formulated interest” in safety and security.  RLUIPA, the Court mused, “contemplates a ‘more focused’ inquiry and ‘requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”––the particular claimant whose sincere exercise of religion is being substantially burdened.’  RLUIPA requires us to ‘scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants’ and ‘to look to the marginal interest in enforcing’ the challenged government action in that particular context.”  (quoting Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014)) 

Rejecting the Department’s first purported and specific interest (preventing concealment of contraband) the Court considered the assertion that allowing a half-inch beard would compromise this interest “hard to take seriously.”  Why, the Court wondered, could the beard not be searched, just like an inmate’s clothes, head of hair (for which there is no half-inch limitation), or allowed mustache?  In assessing the Department’s purported interest, the Court made several observations that extended Hobby Lobby’s assessment of the “least restrictive means” standard to the RLUIPA context: “‘The least-restrictive-means standard is exceptionally demanding,’ and it requires the government to ‘sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].’”  (quoting Hobby Lobby

The Supreme Court again relied on its decision in Hobby Lobby to observe that, “Congress stated that RLUIPA ‘may require a government to incur expenses in its own operations to avoid a substantial burden on religious exercise.’”  What burden on the government is acceptable to accommodate religious exercise and when does that burden cross the line? Will religious organizations seek infrastructure improvements at government expense to accommodate their development plans?  Suppose the sewage treatment plant is at capacity and a religious use wants to expand to meet the needs of its members.  Can the religious use force the government to upgrade the facility because the cost of relocating elsewhere for expansion is prohibitive?

Based on the facts of the case before it, the Supreme Court found little weight to the Department’s argument that allowing beards might facilitate a prisoner quickly changing his appearance by shaving his facial hair.  The Court found that the Department’s interests could easily be served by photographing an inmate beardless upon admittance to the prison and again once his beard reached half-an-inch.  The Court also found the grooming policy is substantially underinclusive since the Department does not require shaved heads, allows mustaches, and permits one-quarter-inch beards with a doctor’s recommendation.

Justice Ginsburg and Justice Sotomayor provide a joint, brief, concurring opinion.  Each joined the decision because “[u]nlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.”  Justice Sotomayor provided an additional, separate concurrence in which local governments defending RLUIPA land use claims may find solace.  She noted, “nothing in the Court’s opinion suggests that prison officials must refute every conceivable option to satisfy RLUIPA’s least restrictive means requirement.  Nor does it intimate that officials must prove that they considered less restrictive alternatives at a particular point in time.”

It wouldn’t be splitting hairs to say that the Court apparently has reinforced, at least a bit, the least-restrictive means test.  The overworked phrase these days is “getting into the weeds” so here we’ll just say that the Court seemed to get into the stubble in this case, shaving it close on the facts in unusual detail. The cautionary signal from the court is that anyone restricting religious rights within the reach of RLUIPA must take special care to have a defensible factual basis, something good local governments have had all along. 

What is interesting, though not surprising, about this decision is the Supreme Court’s steadfast reliance on Hobby Lobby, a case involving the Religious Freedom Restoration Act (RFRA), in the context of an RLUIPA prisoner case.  This suggests that Hobby Lobby, and now Holt v. Hobbs, are fair game in RLUIPA land use cases.  Could the Supreme Court’s reliance on Hobby Lobby strengthen the fear of some justices, as noted in Justice Ginsburg’s dissent in Hobby Lobby, that commercial enterprises may now be able to invoke RLUIPA in the land use context?  Justice Ginsburg writes in her dissent, “[I]t is passing strange to attribute to RLUIPA any purpose to cover entities other than ‘religious assembl[ies] or institution[s].’ …  That law applies to land use regulation. … To permit commercial enterprises to challenge zoning and other land-use regulations under RLUIPA would ‘dramatically expand the statute’s reach’ and deeply intrude on local prerogatives, contrary to Congress’ intent.”  But this is exactly what the Supreme Court did under RFRA, RLUIPA’s “sister statute,” and what some savvy commercial enterprises may seek to do before local land use agencies throughout the country.

The Court’s decision in Holt v. Hobbs is available here.

Wiccan Prisoner Seeking 14 Feet of Rope, Combustible Oils, and Candles Loses First Amendment, RLUIPA, and Equal Protection Challenges
Posted on 1/19/15 by Evan Seeman, Dwight Merriam, and Karla Chaffee

Ronald Reiske, a Wiccan prisoner incarcerated in a Connecticut prison, thought it reasonable that the correctional facility provide him with the necessary materials and equipment to practice his Wiccan religion – including 14 feet of rope, candles, oils, a three-by-two-foot pile of wood, a pendant cord, and a “summoning horn.”  Should he have such things in prison?  What threat might rope, candles, combustible oils, a pile of wood, and the rest of the items pose in such a facility? Reverend Anthony Bruno, Director of Religious Services for the Department of Corrections (DOC), found that they were indeed a substantial threat and denied many of the requests.  Requests for less threatening items were also denied because similar items were already available for purchase in the commissary.

Displeased with the result, Reiske – whose record includes charges for fighting, gang affiliation, security tampering, flagrant disobedience, and possession of contraband – did what many other inmates do when they don’t get what they want.  He sued.  According to Reiske, the DOC’s denial substantially burdened his practice of his Wiccan religion in violation of the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA).  He also asserted an Equal Protection violation under the Fourteenth Amendment.

The Court determined that only the oils and pendant cord claims should be considered on the merits, because Reiske failed to exhaust his administrative remedies for the remaining requested items.  That is, Reiske could have, but did not, pursue the available “grievance” remedy for the rest of the items.

All of Reiske’s remaining claims failed on the merits.  Reiske was unable to prevail on his First Amendment claim for several reasons.  First, the oils would pose a threat to safety: “Historically, oils have been problematic in correctional facilities.  Inmates have used oils to interfere with the odor-detecting abilities of canines, used them as a form of currency or barter, and combined them with other substances to create combustible materials.”  Second, Reiske could use other oils available in the commissary instead of the requested oils, and provided no reason why this alternative would not be suitable.  Third, allowing Reiske to have a special cord (when all other inmates have to wear their religious medallions on a bead chain available for purchase in the commissary) “could lead to unrest among the inmates and threaten institutional security” due to a perceived “favoritism.”  Finally, Reiske could exercise his Wiccan beliefs through alternative means, “including meeting with a spiritual advisor, reading written or listening to recorded materials, creating a small shrine in his cell, and using tarot cards.”

The court rejected the RLUIPA claim because there was no evidence of how the denial of the oils and pendant cord would burden (much less, substantially burden) Reiske’s religious exercise.  It noted that, “the record contains no evidence of the precise use of the oils in Reiske’s religious practices.  Thus, the Court cannot evaluate whether Reiske can otherwise exercise this particular religious right.  Other than a bald statement, Reiske has provided no evidence showing why the use of the oils available in the commissary is not a reasonable accommodation of the request.”  The Equal Protection claim also failed because Reiske did not identify any other inmate allegedly treated better under similar circumstances, a required element of any such claim.  In fact, there was evidence that other Wiccan prisoners requested items similar to those sought by Reiske and they were also denied.

The decision in Reiske v. Bruno, No. 3:13-cv-1089 (D. Conn. 2014) is available here.

The High Court Hears Argument: Is Gilbert’s Sign Ordinance Content-Neutral? What Standard of Review Should Apply?
Posted on 1/15/15 by Karla Chaffee, Dwight Merriam, and Evan Seeman

Last summer, we reported that the U.S. Supreme Court granted Good News Community Church’s (Church) petition for a writ of certiorari to review the decision of the U.S. Court of Appeals for the Ninth Circuit in Reed v. Town of Gilbert, No. 11-15555 (9th Cir. 2013). The case involves a sign ordinance in the Town of Gilbert that the Church alleges violates its right to free speech.  The Supreme Court heard argument in Reed on Monday, January 12, 2015 and a transcript from the hearing is available here.

Although the justices did not consider a Religious Land Use and Institutionalized Persons Act claim, or a specific “religious speech” issue, the Court’s decision will likely have a large impact on how local governments approach sign regulation.  Professor Daniel R. Mandelker[i] of Washington University School of Law, observes, “The case is critical to sign regulation as it applies to land use law, as it deals with the standard of judicial review and should provide direction on how local governments can include exceptions in sign ordinances.”

The Church alleged that the ordinance makes impermissible content-based distinctions between “Temporary Directional Signs, Ideological Signs, and Political Signs.”   The Church, which does not have a permanent place of worship, would regularly place signs within the Town indicating the location of its next service.  The Town deemed the signs as “Temporary Directional Signs” which, according to the ordinance, could be erected for less than 24 hours and must be limited in size.  The Church complained that ideological and political signs were granted more favorable treatment.

The Ninth Circuit concluded that the sign ordinance, including the distinction between sign types, was content-neutral for purposes of free speech. The court held that the “restrictions are based on objective factors… and do not otherwise consider the substance of the sign. . . .”

At Monday’s hearing, the Church’s attorney David Cortman argued that the Town’s ordinance “discriminates on its face by treating certain signs differently based solely on what they say.” Cortman immediately compared the regulation of the Church’s signs to political signs.  “For example,” argued Cortman, “political signs may be 32 square feet, may be unlimited in number, and may be placed in the right-of-way of the entire town for five months before the election; but the church's signs can only be one-fifth of that size, only placed in the dark of night, the night before the church service.”

The Church argued that all temporary, private signs must be treated in the same manner.  Justice Kennedy examined the potential result of the Church’s view:  “I guess you see the concern, if an affluent person wants to celebrate a birthday, he can put ‘Happy birthday, Uncle Fred’ as many places as a political sign, and for as long. . . .   ‘Happy birthday, Uncle Fred can have as many signs and for as long as the political campaign.”  “I think—I think that is right,” Cortman responded.

Next, Eric Feigin provided the United States’ position as amicus curiae.  The United States supports neither party, but agrees with the Church that Gilbert’s sign ordinance is unconstitutional.  The United States’ argument focused on the level of judicial review appropriate in the sign-regulation context.  Feigin argued that “a context-specific intermediate scrutiny approach should apply in evaluating speech-permissive exceptions to a sign ordinance where those exceptions are based on the same longstanding traditional rationales that justify the sign ordinance as a whole.”  In other words, application of strict scrutiny to municipal ordinances that increase opportunities for speech (allowing signs that do not interfere with public health or safety) would have an adverse impact on free speech.  Strict judicial review without some degree of deference may, for example, cause municipalities to place a blanket (content-neutral) restriction on more signage than it would have otherwise. 

Brian J. Connolly, Attorney with Otten Johnson Robinson Neff & Ragonetti, P.C. in Denver, CO.,[ii] observed that the Court might be interested in revisiting the applicable standard of review: “the fact that the justices’ questioning did not reference a lot of the historical cases on content neutrality (Mosley, Ward, Hill, etc.) might suggest that the justices are willing to take a fresh look at the content neutrality doctrine as opposed to trying to wade through past inconsistencies.”

Attorney for Gilbert, Philip Savrin, argued that application of the strict scrutiny standard to ordinances like Gilbert’s will result in municipalities adopting “one size fits all” regulation that will effectively limit speech. “And in order to pass strict scrutiny,” Savrin argued, “the legislatures in these towns and cities across this country would be inclined to ban all signs except those that the First Amendment absolutely allows.”  Explaining the differing treatment of directional signs, Savrin maintained “that directional signs are functionally different from an ideological sign or even from a political sign, that the directional signs do not need to be larger and also that there are more of them…. this town has decided the tradeoff is that they need to be smaller because they need to guide travelers along a route.”

Despite several pointed questions from Justices Scalia and Kagan (and a hearty “My goodness!” from Justice Breyer), Savrin maintained throughout the argument that Gilbert’s ordinance did not make distinctions based on a sign’s content. It is permissible, Savrin argued, that a municipality regulate based on a sign’s function.   Another Court observer noted that the Bench gave a few hints that it was willing to grant municipalities some leniency in outdoor sign regulation, but also concluded that as the argument developed, Gilbert’s attorney was “constantly badgered by questions from the bench, and the Justices’ sympathy for the little church became more apparent.”

For additional analysis, see a guest post by Randall R. Morrison of signlaw.com, which is available at Hamilton and Griffin on Rights.

[i] Professor Mandelker’s relevant publications include Street Graphics and the Law (2004) (American Planning Association, PAS No. 527), a text and model code on regulations for on premise signs that has been widely followed, and Sign Regulation and Free Speech: Spooking the Doppelganger in Trends in Land Use Law from A to Z (American Bar Association, 2001).  His articles on sign regulation include Decision Making in Sign Codes: The Prior Restraint Barrier, Zoning and Planning Law Report, Sept. 2008.

[ii] Mr. Connolly’s article, Environmental Aesthetics and Free Speech: Toward a Consistent Content Neutrality Standard for Outdoor Sign Regulation, 2 Mich.J.Envtl. & Admin. L. 185 (2012) was cited in Reed v. Gilbert briefing papers, including the certiorari petition.  He is also a co-author of The Michigan Sign Guidebook: The Local Planning and Regulation of Signs (Scenic Michigan 2011), which discusses the legal aspects—particularly the First Amendment issues—relating to outdoor sign and advertising regulation, and The Protecting Free Speech and Expression Book, currently in process.


Kennesaw, Georgia Back in the News: Suffa Dawat Center Files “Preventative” Lawsuit
Posted on 1/8/15 by Karla Chaffee, Dwight Merriam, and Evan Seeman

In December, we reported that Kennesaw, Georgia’s City Council reversed its initial decision to deny an Islamic place of worship and education center in a retail shopping plaza.  Despite the approval, the applicant, Suffa Dawat Center at Kennesaw (the “Center”) filed a lawsuit in the Northern District of Georgia, Suffa Dawat Center v. City of Kennesaw, Case No. 1:14-cv-04110 (N.D. GA 2014).  The complaint is available here.

The lawsuit was filed to protect the Center’s right to challenge the City’s initial denial if the approval is challenged and invalidated. The lawyer for the Center, Doug Dillard, explained to one news source, “If the opposition to the mosque filed a lawsuit and for some reason the vote that [the City Council] took on December 15 was declared null and void, then all we’ve got to fall back on is their actions on Dec. 1.”  According to Dillard, there is still a possibility that the approval may be challenged within 30 days of the Council’s December 15 decision.    

Also according to Dillard, the Center is moving full speed ahead to obtain all other necessary permits and approvals to modify the 2,200-square-foot suite in a shopping center as an Islamic prayer and education facility.  “If the 30-day appeal period goes by and there is no appeal, we can always dismiss the lawsuit, but we had to file it as a preventative measure just in case someone challenged the December 15 action,” Dillard said.

The complaint seeks declaratory and injunctive relief, as well as attorneys’ fees for claimed violations of the  First, Fifth, and Fourteenth Amendments, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and state law.  The Center claims that the City violated RLUIPA’s substantial burden, equal terms, nondiscrimination, and limitations and exclusions provisions.  

“Integral Yoga” Group and Swami Hope to Find Their Inner Balance in Federal Court; Lawsuit Alleges Religious Discrimination by Maui County, Hawaii
Posted on 1/6/15 by Evan Seeman, Dwight Merriam, and Karla Chaffee

The Spirit of Aloha Temple (“Spirit”) and Fredrick R. Honig a/k/a Swami Swaroopananda are suing the County of Maui and the Maui Planning Commission (“Commission”) over the Commission’s denial of their proposal to use an 11-acre site for religious observance (including yoga), services (including weddings), and education.  Spirit currently leases the site, located at 800 Humana Road, Haiku, Maui (“Property”), and uses it as a botanical garden, bird sanctuary, and staff housing.  Spirit’s religious faith and practices are known as “Integral Yoga,” a worldwide religious organization established in the U.S. in 1966 that believes “the goal and the birthright of all individuals is to realize the spiritual unity behind the diversity throughout creation and to live harmoniously as members of ‘one universal family.’”  Members of Integral Yoga strive to achieve this goal through asanas (yoga postures), pranayama (extension of the life force), the chanting of holy names, self-discipline, selfless action, mantra japa (sacred utterances), meditation, study, and reflection.

In 2012, Spirit and Honig applied for a State Land Use Commission Permit to observe and practice their religion at the Property, which is managed by a “volunteer team of ‘Nature Guardians,’ who see God as Nature and their service to Nature as worship.”  While the Property is open to the public for secular use, their application sought to expand their use of the Property to allow them to exercise their religion in several other ways.  They sought approval for “weekly church services for up to 20 people on Saturdays from 10:00 [a.m.] to 2:00 [p.m.], operate a living classroom for nature guardian skills for up to 23 people 4 times per week, and conduct sacred programs, educational, inspirational and spiritual, and spiritual ceremonies such as weddings for up to 80 persons 24 times per year and up to 40 persons 24 times per year at the Property.”  Thereafter, Spirit and its swami amended the application “to request only 12 events per year for up to 20 people, 12 events per year for up to 40 people, 12 events per year for up to 60 people, and 12 events per year for up to 80 people.”  They agreed to further limitations after consultation with the Maui Planning Department (“Department”). 

Although the Department recommended approval of the application subject to 21 conditions, the Commission denied the application on March 25, 2014.  The Commission’s denial was based in part on concerns for safety caused by increased traffic on a narrow road, and concerns for water and wastewater.  In support of the denial, one commissioner stated, “while I respect [Spirit’s] rights to religion, it's not safe. Okay, maybe the Planning Commission, the State Department of Health recommended [approval with conditions] as satisfactory, but it's still not safe not to the degree where I would be comfortable with. Okay. I respect human life. I wanna protect it.”  Minutes from the March 25 public hearing are available here.  Less than a month later, Spirit requested reconsideration of the denial and submitted a reduction in the proposed use, but this was also denied by the Commission.  The second denial was based on similar safety concerns.

Spirit and its swami sued in the U.S. District Court for the District of Hawaii and alleged defendants’ actions violate the Religious Land Use and Institutionalized Persons Act (RLUIPA), the state and federal constitutions, and state law.  They claim the Commission’s denial of their application substantially burdens their religious exercise under RLUIPA, and state:  “[Spirit] does not have any realistic opportunity to purchase land elsewhere on Maui in order to construct its proposed religious facility with botanical use, and any such course of action would involve unreasonable delay, uncertainty, and expense due to Defendants’ land use regulations . . . .”

They also allege that defendants have treated Spirit less favorably than other secular and religious uses in violation of RLUIPA’s nondiscrimination and equal terms provisions.  They claim “Kaulanapueo Church and Door of Faith Church in Huelo, Maui are accessed by Door of Faith Road, which at points is approximately 10 feet wide” and that “organized wedding services are conducted at a minimum of five other botanical gardens on the Island of Maui, presumably with appropriate approvals from the Defendants,” and that “traffic conditions at several of these locations are less safe than at the subject Property.”  In addition, they allege the Commission applied unwritten and ad hoc “standards” to constitute a prior restraint on Spirit’s protected First Amendment activity, because “[t]he standards set forth in the County of Maui’s zoning regulations governing special permits for places of worship, and the standards applied by the Commission in reviewing and denying [Spirit’s] and Honig’s Special Use Permit do not provide a person of ordinary intelligence a reasonable opportunity to understand whether such land uses are permitted or prohibited” and confer the Commission with unbridled discretion to review and decide such applications for places of worship.  The complaint is available here.

Glee Camp Not So Happy: Auburn’s Zoning Enforcement Action Alleged to Violate RLUIPA’s Equal Terms Provision
Posted on 1/5/15 by Karla Chaffee, Dwight Merriam, and Evan Seeman

The First Presbyterian Church of Auburn (the “Church”) has hosted a musical theater day camp (“Glee Camp”) in Auburn, New York for approximately three years.  In July of 2014, Auburn’s code enforcement officer issued a citation that alleged the Glee Camp was a commercial use, a use that is prohibited in the subject R-2 zoning district.  On December 17, the Church filed a brief in the City’s pending enforcement action to dispute the City’s characterization of the Glee Camp as a commercial use, and to claim that the City’s actions violate the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment.

The Glee Camp has been held in Case Mansion, by nonprofit lessee, Ministro Ministries.  According to one news source, the property is owned by the Church and is also used as an affordable housing shelter, a youth center and a vocational training center.  Apparently, the City had not attempted to regulate the Glee Camp’s first two years of operation but issued a citation only after near-by residents complained about the multiple uses of the property.

The Church is represented by the Liberty Institute and attorney Andrew Leja of Hiscock & Barclay.  The Church’s brief explains “three principal grounds” on which it contests the enforcement action:

  • The Glee Camp is not a “commercial use” under the City Zoning Code, thus the City’s citation was improperly issued;
  • Even if the Glee Camp use was assumed to be a commercial use, the City’s attempt to ban it from the Church’s campus violates RLUIPA’s Equal Terms Clause, because the Church can make a prima facie showing that the City is banning activity, i.e. alleged commercial activity, that it allows others to engage in within the same R-2 Zoning District classification; and
  • Even if the Glee Camp use is a commercial use, the City’s attempt to ban it from the Church’s campus is a violation of the Free Exercise Clause of the First Amendment—because the City’s zoning code contains exceptions and exemptions allowing commercial activity in the R-2 District, the City’s ban by definition is not the neutral enforcement of a generally applicable law and thus cannot stand.

According to the Church’s brief, the $100-per-student Glee Camp registration fee is used to cover material and instructor costs.  The Church’s motivation is not profit-driven, but is religious-based, according to the brief, and is in furtherance of the Church’s longstanding religious mission to support arts in the community. 

In support of its equal terms claim, the Church likens the City’s enforcement action to that at issue in Third Church of Christ, Scientist v. City of New York, 626 F.3d 667 (2d Cir. 2010).  In Third Church, the Second Circuit found that New York City’s differing treatment of a church’s and two hotels’ catering activities, which all violated the terms of their occupancy permits, violated RLUIPA’s Equal Terms provision.   Since there are commercial uses operating in the R-2 District and some commercial operations are allowed in the R-2 District, the Church claims, the City’s enforcement action similarly violates RLUIPA’s Equal Terms provision.

The Church has requested dismissal of the enforcement action as well as fees and costs.  We will continue to monitor this situation as we ponder the potential that the Church will decide to go on the offensive and file its own complaint.

Zombies Outshine Satan? More Controversial Holiday Displays, Including Baby, Fanged, Undead Jesus and Dogs in Costumes. Happy Holidays from RLUIPA Defense Part Deux.
Posted on 12/31/14 by Karla Chaffee, Dwight Merriam, and Evan Seeman

Last week we reported on several controversies regarding public displays of traditional and not-so-traditional religious iconography.  Well, it seems that the issue isn’t dead yet. Since our last holiday post, several new stories have come to surface.

Oh Holy Zombies? The manager of “13 Rooms of Doom Haunted House,” Jasen Dixon, wanted to celebrate Christmas like many do in Sycamore Township, Ohio—erect a front yard nativity scene.  Dixon’s display is special, however, because he decided to work with the materials he had at hand.  That’s right, zombies from the haunted house he manages.   

Describing the undead scene, Dixon explained, “It's a different take. I handmade everything but Joseph and baby Jesus so it's kind of artsy….”  A crowned wise man presents baby, fanged Jesus with a skull as undead Mary and Joseph look on.  The somewhat ghoulish crowd is protected by an eight foot structure with roof, hay, lights, and what appears to be the skeleton of a dog.   

Although Dixon might be prepared for a future zombie apocalypse, he may also have to prepare for a fight with the Township over its zoning code.  Apparently, the subject zone does not allow front or side yard structures that cover 35% or more of the area.  Dixon claims that the zombie scene makes up only about 14 to 17% of the area.  Zoning officials requested that Dixon remove the display by Friday, December 26 or face a $1,000 fine.  A report from the same day, however, indicates that Dixon refused to remove the display as requested. In fact, Dixon has established a crowd-funding site “to make a better zombie nativity scene for everyone to see next year and funds to pay the township citations for having the structure.”  

Satan Not Welcome? Last time, we reported that the Satanic Temple in Florida erected an “Angel in Hellfire” display in the state Capitol Rotunda.  The display portrays an angel falling from the sky into a fiery pit. 

Since our initial report, the angel has fallen—literally.  According to the Associated Press, Susan Hemeryck, 54, of Tallahassee attacked the display, after announcing to an on-duty police officer, that she was “sorry and had to take the satanic display.”  Hemeryck was advised to leave the display alone, but she then reached forward and began to rip the display apart.

John Porgal, regional director of American Atheists, later visited the Capitol and stated “the angel’s dead.”  Hemeryck was later charged with criminal mischief, a second degree misdemeanor.

The Winter Solstice Takes Revenge: The courthouse in Mountain Home, Arkansas has displayed a nativity scene on its front lawn for years.  For the past two years, however, the courthouse’s chief administrator has refused to make a new addition—a “Happy Solstice” banner.

After the second denial and two days prior to Christmas, the American Humanist Association (“AHA”) and Baxter County resident Dessa Blackthorn filed a complaint in the U.S. District Court for the Western District of Arkansas against the County and County Judge Mickey Pendergrass.   The lawsuit, according to Blackthorn, isn’t meant to take anything away from anyone. “It’s about equality,” said Blackthorn.  

According to the Baxter Bulletin, the AHA sent a letter on two occasions after the 2013 denial, requesting that the crèche be removed unless other religious and non-religious groups were allowed to make a holiday display on the courthouse lawn. 

In an interview, Judge Pendergrass provided his view that the display is constitutional and that the Winter Solstice banner was denied because no banners are allowed on the courthouse lawn.  However, the complaint, available here, claims that "[o]n or about January 24, 2014, a large, unattended banner was displayed on or near the Courthouse property."

More Notable Nativity Scenes: Although the “25 Most Awesomely Inexplicable Nativity Scenes” may not raise questions of constitutional law, they are fun to gawk at (or just plain cute).  Thanks to BuzzFeed for assembling the entertaining list (albeit in 2011) full of comic book heroes and villains, star trek and star wars characters, dogs and dinosaurs.

Fed. Dist. Court in FL Dismisses RLUIPA Equal Terms Claim Following Notice of Violation
Posted on 12/30/14 by Evan Seeman, Dwight Merriam, and Karla Chaffee

A pro se plaintiff filed a claim against a city code enforcement department and its officers alleging various constitutional violations as well as a violation of RLUIPA for code enforcement activity. Plaintiff owned real property known as “Al Moroc Humanity Park” that Moorish Nationals (like plaintiff) congregated at every Sunday to practice Islam, among other things. The property has several signs, make shift structures and installations on the property placed there without permits. Code enforcement officers had temporarily blocked access to the property while viewing it with an eye toward code enforcement. The city sent plaintiff a “Notice of Violation” listing various infractions of the city code.

A special magistrate conducted a hearing and determined plaintiff was guilty of the alleged violations. He ordered plaintiff to correct the violations and advised that failure to comply would result in a fine of $100 per day for any violation that continued past the date set for compliance. The special magistrate’s order was recorded and thus established a lien on plaintiff’s property.

Plaintiff [sued in] federal [district] court. Her alleged violations were vague and hard to understand. The district court gave her the benefit of the doubt in interpreting her complaint. She asserted without evidence that under RLUIPA the city enforcement action violated the equal terms clause because the city authorized others to use their property similarly. The district court stated that while the gathering of people to practice Islam on the property was a religious assembly, plaintiff produced no evidence that she was treated on any terms unequal to any other similarly situated person. Further the court stated that to the extent plaintiff alleged an unconstitutional search of her property, the court cited the United States Supreme Court decision in Camara v. Municipal Court of City and County of San Francisco, 387 US 523 (1967) which decided that: “‘Inspection programs aimed at securing city-wide compliance with minimum physical standards for private property’ are reasonable under the Fourth Amendment.”  The court dismissed the complaint stating it failed to allege a claim. Plaintiff has appealed the dismissal of her complaint to the Eleventh Circuit.

The decision in Nura Washington Bey v. City of Tampa Code Enforcement (M.D. FL 2014) is available here.

*The following is reprinted with the permission of Wendie Kellington, Esq., who provided this abstract in her materials for the December 2014 ALI Land Use Institute.

RLUIPA Defense is your one-stop comprehensive blog stocked with cases, trial materials, briefs and scholarly articles all about avoiding and defending against claims taken under the Religious Land Use and Institutionalized Persons Act (RLUIPA).


is a lawyer at the law firm of Robinson & Cole. More

Dwight Merriam,
FAICP is a lawyer at the law firm of Robinson & Cole. More


is a lawyer at the law firm of Robinson & Cole. More



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