RLUIPA Round-UP

Here are some developments that we are following involving religious land use and the intersection of religion and local government.

  • New Life Evangelistic Center, which runs a homeless shelter in downtown St. Louis, and the City of St. Louis to explore potential resolution to RLUIPA suit involving either City’s blessing for Church to host up to 275 people at the existing facility or give church title to a different building to continue operations. ( Louis Post-Dispatch has more) (previous post here)
  • Southern Colorado high school sued by teacher for religious discrimination. The Cowboy Church at Crossroads rents cafeteria space at Florence High for Sunday morning services, hosts prayer every morning before school around the flagpole and hosts Bible study and pizza during lunch in a school classroom. (local coverage by the Denver Post)
  • S. Marine files an appeal after discharge for bad conduct when she failed to remove bible verse from cubicle: “No weapon formed against me shall prosper.” (coverage from the Military Times)
  • Pastor Jared Pierson of ActivateChurch.tv denied conditional use permit to continue worship services in his garage and to house parishioners in need. (local coverage from Wisconsin Channel 3 News)
  • Nevada school apologizes to twelve year old Mackenzie Fraiser after censoring her “All About Me” power point presentation, which included a Bible verse as her “inspirational saying.” (BreitBart Texas provides coverage)
  • Neighbors sue after All Shores Wesleyan Church allowed to raze home and build an extra driveway in residential area. (coverage by the Grand Haven Tribune)
  • Federal courts consider whether filing an exemption request from Obamacare’s contraceptive mandate imposes a substantial burden. (Caroline Mala Corbin of University of Miami School of Law and Elizabeth Slattery, legal fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, ponder the issue)
  • Surry County Board of Commissioners attorney warns Board that prayer policy consisting of mainstream Christian prayers may violate U.S. Constitution. TM Gerber comments that the Board’s attorney “is a perfect example of what is wrong with America. He needs to be stripped of his title, disbarred, and shipped off to Mexico or Canada.” (The Mount Airy News reports)
  • Indiana First Church of Cannabis Founder Bill Levin continues plans to hold first church service on July 1 – the day Indiana’s controversial Religious Freedom Restoration Act takes effect. Levin, who holds the church title of “grand poobah” and “minister of love” states that: “This is what I live by, and I have more faith in this religion than any other,” said Bill Levin. “This is my lifestyle. This is millions of people’s lifestyle.”  (USA Today reports).

Prisoner in Seventh Circuit to Receive Venison and Religious Headband; Impact of Hobby Lobby and Holt on the Land Use World Continues to Grow.

Last week, we reported on a case where the Southern District of Florida decided against the Florida Department of Corrections, finding its refusal to provide kosher meals to inmates violates the Religious Land Use and Institutionalized Persons Act (RLUIPA). The court’s decision was noteworthy for its application of two recent Supreme Court decisions – Burwell v. Hobby Lobby (2014) and Holt v. Hobbs (2014) – to find a violation of RLUIPA.

Today’s post regarding the Seventh Circuit’s decision in Schlemm v. Wall (7th Cir. 2015) is cut from the same cloth. Specifically, the Seventh Circuit’s heavy reliance on Holt and Hobby Lobby confirms that denial of a prisoner’s request for a religious accommodation must be supported by more than concerns regarding costs and that any limitation on prisoner religious exercise must be achieved through the “least restrictive means” available. The Seventh Circuit overturned and remanded the lower court’s grant of summary judgment in favor of prison officials.

Prisoner Schlemm is a member of the Navajo Tribe and has been imprisoned in Wisconsin since 1999. In accordance with Navajo religious beliefs, Schlemm wished to celebrate the Ghost Feast, which is a “harvest celebration that honors the dead through dancing, praying, and eating traditional foods.” As part of his Ghost Feast observance, Schlemm sought to obtain game meat (venison), but would have been satisfied with ground beef to include in traditional Indian tacos. The prison rejected the requests for the venison and the alternative of ground beef, contending it would be too expensive to import venison to the prison, the request would “exceed the capacity of institutional kitchens,” and that importing game meat would violate the state-wide rule that prison foods must be inspected and certified by the United States Department of Agriculture (USDA). Schelmm also requested that he be allowed to wear a multi-color headband when praying in his cell and during group religious ceremonies. The prison only allows solid black or white headbands to reduce any indication of gang membership.

Relying on Holt and Hobby Lobby, the Seventh Circuit found the prison failed to point to a compelling government interest in denying Schlemm’s food requests or that the prison furthered any interest through the “least restrictive means.” The court noted, “Saving a few dollars is not a compelling interest, nor is a bureaucratic desire to follow the prison system’s rules.” It also found that the prison provided no evidence that it could not obtain USDA-inspected venison. With regard to limiting the color of religious head gear, the court doubted that limiting gang-related identification could prove “compelling,” since so many avenues were still available to convey gang membership (tattoos, hand signals, and gang related speech). Additionally, Schlemm proposed to wear his headband only in his cell or in group religious ceremonies, and the headband would not include red—“the only gang-signifying color at the prison.”

Perhaps the most interesting part of this case, however, was the Seventh Circuit’s reliance on Holt and Hobby Lobby to limit how the Circuit defines a “substantial burden” in the land use and prison contexts. Both Holt and Hobby Lobby are largely recognized as impacting how courts evaluate whether a governmental interest is “compelling” and furthered by “the least restrictive means” available. In Schlemm, however, the court relied on these cases to reject how the Seventh Circuit had previously addressed the RLUIPA substantial burden analysis. The court concludes that Holt and Hobby Lobby articulated a substantial burden standard “much easier to satisfy” than that used in Eagle Cove Camp & Conference Center, Inc. v. Woodboro, 734 F.3d 673, 680 (7th Cir. 2013) (“to be substantial, a burden must be ‘one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise … effectively impracticable.’”) (prior post about Eagle Cove available here).

It is remarkable that the court made explicit reference to the Eagle Cove case without reference to any of the Seventh Circuit’s numerous cases that evaluate the substantial burden standard—or the case from which the standard is derived: C.L.U.B. v. City of Chicago, No. 01-4030 (7th Cir. 2003). See also, e.g., Petra Presbyterian Church v. Village of Northbrook, No. 06-1329 (7th Cir 2007); Vision Church, United Methodist v. Village of Long Grove, Nos. 05-4144, 05-4234 (7th Cir. 2006); Sts. Constantine and Helen Orthodox Church, Inc. v. City of New Berlin, Nos. 05-4418, 05-4450 & 05-4451 (7th Cir. 2007).

Given the Schlemm decision, plaintiffs in the Eagle Cove case have recently asked that the Western District of Wisconsin vacate its grant of summary judgment to Oneida County, Wisconsin (February 1, 2013):

Application of the C.L.U.B standard to Count III [substantial burden] of this very civil action has now been expressly overruled by the same Seventh Circuit in Schlemm v. Wall, (2015 U.S.App. LEXIS 6592 April 21, 2015) based upon intervening United States Supreme Court decisions in Holt v. Hobbs, 135 S.Ct. 853 (2015) and Burwell v. Hobby Lobby Stores, 134S.Ct. 2751 (2014).

RLUIPA Defense will follow the Eagle Cove plaintiffs’ petition with interest—is the Seventh Circuit’s decision in Schlemm, a prisoner case largely focused on the compelling interest and least restrictive means analysis, a re-evaluation of the Circuit’s substantial burden precedent? Or does the court’s sparse evaluation of Seventh Circuit substantial burden cases law leave enough room for the Circuit to limit the future impact of Schlemm?

The Eagle Cove plaintiffs’ Motion For Relief From Grant To Defendants Of Summary Judgment and the supporting memorandum of law are available here and here.

RLUIPA Round-Up

RLUIPA Defense is excited to bring you week two of the RLUIPA Round-Up – a weekly run through of recent religious land use disputes and other matters involving local government and religion throughout the country, as well as other stories that are important to monitor, or are at least pretty entertaining.

Do you have a story you’d like to see in the next Round-Up? If so, feel free to email us at RLUIPA-Defense rluipa-defense@rc.com

  • Department of Justice ends investigation into potential RLUIPA violation of Kennesaw, Georgia, following amendment to zoning code and approval of mosque (local coverage here) (previous post here).
  • City of Ketchum, Idaho, to consider comprehensive amendments to zoning code, including standardizing all assembly uses to align with RLUIPA (local coverage here).
  • Mary of the Mount Parish seeks Pittsburg Zoning Board of Adjustment approval of special exception application to construct new parish center and social hall on vacant lot (local coverage here).
  • Attorney representing priest seeking zoning approval to convert Danbury, Connecticut, property into a church warns Danbury Zoning Board of Appeals that denial would violate RLUIPA (local coverage here).
  • Atheists planning lawsuit to challenge “In God we trust” on U.S. currency as violation of the Religious Freedom Restoration Act (local coverage here).
  • Alabama’s Homewood City Council approves rezone for church auxiliary site despite neighborhood opposition (local coverage here).
  • Tradition of high school prayer turns neutral and passes constitutional muster. Post from Religion Clause here.
  • West Forsyth, Georgia ZBA approves Hindu temple, despite opposition from local Polo Golf and Country Club Homeowners Association (local coverage here).
  • Churches may soon need a special permit to locate in Plainfield, Illinois’ business zones (local coverage here).

 

Kosher Meals for Prisoners: U.S. Department of Justice Wins Claim of Religious Discrimination against the Florida Department of Corrections

A federal court has ruled that the Florida Department of Corrections’ (Department) refusal to provide kosher meals to inmates violates the Religious Land Use and Institutionalized Persons Act (RLUIPA). The court’s decision in U.S. v. Florida Department of Correction (S.D. FL 2015) is noteworthy for its application of two recent Supreme Court decisions – Burwell v. Hobby Lobby (2014) and Holt v. Hobbs (2014) – to find a violation of RLUIPA.

After the U.S. Department of Justice (DOJ) sued the Department, the Department agreed to provide kosher meals under its Religious Diet Program (RDP), but would not agree to entry of an order that it was required by law to provide kosher meals. The DOJ alleged that the Department’s prior complete ban of kosher meals violated RLUIPA’s substantial burden provision. It also claimed that certain penalty provisions of the RDP violated RLUIPA: (1) its policy that prisoners who miss 10% or more of one of the kosher meal options are no longer eligible to receive kosher meals, and (2) its policy that a prisoner discovered purchasing, processing, or consuming food from the canteen or another source that violates religious diet requirements can no longer obtain kosher food under the RDP. A prisoner can challenge either of these penalties under the prison’s grievance process, but the process can take up to 30 days during which time the prisoner must eat from the mainline.

Regarding the Department’s earlier prohibition on providing kosher meals, the Department argued that RLUIPA does not mandate that it provide such meals “because cost containment is a compelling governmental interest which excuses them from providing kosher meals.” The Department asserted that it had already spent $3.9 million to implement the RDP, but did not provide a breakdown of that number. It claimed that future costs to continue the RDP would be between $384,400 and $12.3 million per year. Costs include the cost of kosher food, additional equipment to monitor prisoners using the RDP program (laptops and scanners), and more staff.

The Court relied on Hobby Lobby to reject the Department’s argument and find that “RLUIPA may require the government to expend additional funds to accommodate citizens’ religious beliefs.” It noted that the $12.3 million per year to operate the RDP would account for only five one thousandths (0.005) of the Department’s $2.3 billion annual budget. It added: “it is hard to understand how Defendants can have a compelling state interest in not spending money that they are already voluntarily spending on the exact thing they claim to have an interest in not providing.” Further, the Department represented that it is “committed to providing kosher meals and that the current RDP is ‘sustainable,’ both monetarily and security-wise.” The Department failed to provide any evidence that the cost of the RDP has forced it to cut any other programs or staff, or that there has been any harm to the Department’s operations.

Next, the court looked to Holt v. Hobbs to consider whether the Department’s kosher meal prohibition was similar to other prison systems. It was persuaded by the DOJ’s contention that the Department, apart from its kosher meal prohibition, is not unlike the Federal Bureau of Prisons and most major prison systems across the country that offer kosher meals to prisoners. Relying on Holt, the court noted that “when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here.”

Finally, the RDP’s penalty provisions were also found to violate RLUIPA, because denying a prisoner eligibility for up to 30 days when challenging a penalty under the grievance process “forces a prisoner, during the grievance process, to choose between violating his religious beliefs or not eating.” This can be especially burdensome to those prisoners who are penalized in error. The Department’s alleged compelling interest in cost-containment was again rejected, since “there is no record evidence indicating how much money is saved by immediately suspending violators, at least some of whom will be reinstated into the RDP after going through the grievance process.” Nor did the Department show how other cost-saving measures are not less restrictive alternatives to the penalty provisions.

RLUIPA Round-Up

Welcome to the inaugural edition of RLUIPA Round-Up, where we run through recent religious land use disputes and other matters involving local government and religion throughout the country. Some of the items below include updates of cases that we have previously reported, pending zoning applications for religious use, or other topics such as religious invocation before government meetings and most things involving The Satanic Temple. We hope you enjoy this new weekly post. If there are any matters that you believe should be included, please let us know. Now, onto the updates:

  • Indiana’s First Church of Cannabis to test pot-smoking as a sincerely held religious belief under Indiana’s religious freedom law (local coverage here).
  • New Life Evangelistic Center, which runs a homeless shelter in downtown St. Louis, and the City of St. Louis have reached a temporary agreement that allows the Center to continue operations under its current occupancy permit until October 15, 2015 (local coverage here) (previous post here).
  • San Antonio food truck chef to dispute $2,000 citation for feeding the homeless under the Texas Religious Freedom Restoration Act (local coverage here).
  • North Carolina County Commission Chairman states he will only allow Christian invocation to begin government meetings and that prayers from “minority religions” would not be welcome (local coverage here).
  • Neighbors continue to oppose church whose members use hallucinogenic Amazonian tea in Santa Fe, New Mexico (local coverage here) (previous post here).
  • The Satanic Temple sues to oppose anti-abortion legislation as a violation of the freedom to exercise religion (coverage here)
  • Joplin, Missouri Planning and Zoning Commission recommends special permit renewal to church to house volunteers working on tornado recovery (local coverage here).
  • West University Place, Texas considers land swap with church to allow construction of church youth facility (local coverage here).
  • The City of Auburn, New York withdrew its cease and desist order against a church hosting a “Glee Camp” in the historic Case Mansion (local coverage here) (previous post here).

Sixth Circuit Rules Against St. Johns, Michigan Ordinance Banning Charitable Donation Bins

In a decision that should be of interest to many of our readers, the Sixth Circuit has affirmed a federal district court’s ruling that an ordinance in the City of St. Johns, Michigan (City) prohibiting the use of charitable donation bins likely violates the First Amendment to the U.S. Constitution. A summary of Planet Aid v. City of St. Johns, Michigan (6th Cir. 2015) follows below.

Planet Aid’s mission it to “work to strengthen and organize communities, reduce poverty and promote small enterprise development, support sustainable local food production, improve access to training and quality education, and increase health awareness and encourage healthy lifestyles.” Planet Aid seeks to advance its mission by soliciting donations of clothing and shoes through unattended, outdoor donation bins. It places the donation bins on the property of private businesses that permit it to do so. The locations of the donation bins are meant to be “easily visible and accessible by individuals looking to deposit donations in the bins.” Planet Aid’s representatives typically visit each of the donation bins on a weekly basis to collect donated items and avoid bin overflow or goods accumulating outside of the bins. The donations it collects from the bins are distributed to organizations in other countries.

In January 2013, the City sent a letter to Planet Aid claiming that the “clothing donation containers have been found to create a nuisance as people leave boxes and other refuse around the containers,” and directed Planet Aid to remove the bins. The City later removed the donation bins after Planet Aid failed to do so. A year later, the City Council passed Ordinance #618 (Ordinance) to regulate charitable donation bins. Under the Ordinance, a “donation box” is defined as “[a]n outdoor, unattended receptacle designed with a door, slot, or other opening that is intended to accept donated goods or items.” While the City allowed existing donation bins to be “grandfathered,” the Ordinance prohibited all other donation boxes: “No person, business or other entity shall place, use or allow the installation of a donation box within the City of St. Johns.”

Planet Aid sued in February 2014 in federal court, arguing in part that its speech concerning charitable giving is protected by the First Amendment to the U.S. Constitution and that the Ordinance is a content-based restriction subject to strict scrutiny. The federal court granted Planet Aid’s motion for a preliminary injunction, finding that Planet Aid was likely to succeed on the merits of its claim since operation of donation bins to solicit and collect charitable donations is protected speech and the Ordinance was subject to strict scrutiny: “Plaintiff, in arguing that the ordinance fails strict scrutiny because it implements an overly broad, prophylactic ban on all bins so the City can avoid dealing with hypothetical nuisances or other issues that may arise with certain bins in the future, has borne its burden of proving a substantial likelihood of succeeding on the merits of its free speech claim.”

The Sixth Circuit affirmed the granting of the preliminary injunction. Relying on long-established Supreme Court precedent, the Sixth Circuit found that solicitation is a form of protected speech under the First Amendment:

A charitable donation bin can – and does – “speak” … A passer-by who sees a donation bin may be motivated by it to research the charity to decide if he wants to donate – in so doing, the passer-by will gain new information about the social problem the charity seeks to remedy. Indeed, the donation bin may ultimately motivate citizens to donate clothing or shoes even if they had not previously considered doing so. The speech may not be unidirectional, either – a citizen faced with a choice among several bins from different charities may be inspired to learn more about each charity’s mission in deciding which charity is consistent with his values, thus influencing his donation decision. In this way, donation bins in many respects mirror the passive speaker on the side of the road, holding a sign drawing attention to his cause.

Next, the Sixth Circuit determined that the Ordinance imposes a content-based restriction on speech and therefore strict scrutiny applies. The Ordinance is content-based because it “does not ban or regulate all unattended, outdoor receptacles. It bans only those unattended, outdoor receptacles with an expressive message on a particular topic – charitable solicitation and giving.”

Finally, the Sixth Circuit concluded that the Ordinance failed to survive strict scrutiny review. For the Ordinance to pass constitutional muster, it must be narrowly tailored to promote a compelling government interest. Although the Sixth Circuit assumed – without deciding – that the City’s stated interests in preventing blight and aesthetics were compelling, it found that the Ordinance was not narrowly tailored. The Ordinance “preemptively and prophylactically prevents all charities from operating outdoor, unattended donation bins within the City in the interest of aesthetics and preventing blight. This implies, without any evidence, that charities would be negligent in failing to conduct timely pickups of donated goods, in maintaining the appearance of the bins, etc. Further, it assumes that lesser, content-neutral restrictions such as requiring weekly or bi-weekly pickups or inspections of all outdoor receptacles would be ineffective.”

Orthodox Synagogue Sues Dallas, Texas

The City of Dallas, Texas is in a familiar position. It’s being sued for religious discrimination. Last year, the City Council agreed to pay $250,000 to settle a lawsuit brought by two churches ministering to the homeless (local coverage here) after a federal court ruled that a City ordinance violated the Texas Religious Freedom Restoration Act (TRFRA) (prior post here). Now, the City is being sued by a synagogue, Congregation Toras Chaim, alleging that the City’s attempt to shut down the synagogue for failure to obtain a certificate of occupancy violates religious freedom laws.

The action began when the City sued two residents who use their home as an Orthodox Jewish synagogue for 25 congregants. The City alleged that the subject property and the home had to be renovated to comply with certain handicap accessibility, fire safety, and parking requirements to obtain a certificate of occupancy for use as a synagogue. The City asserts that Defendants’ failure to “obtain[] a CO [for synagogue use] and comply[] with the life-safety requirements entailed therein, presents a substantial danger of injury or adverse health impact to persons and/or property of persons other than the Defendants” (prior post here) (City’s complaint available here).

In response, the synagogue has brought an 11-count counterclaim, alleging violations of the Religious Land Use and Institutionalized Persons Act’s (RLUIPA) substantial burden, equal terms, nondiscrimination and unreasonable limitations and exclusions provisions, the Free Exercise Clause, TRFRA, and other state law.

The synagogue’s complaint summarizes its position:

The City of Dallas contends that Defendants have not properly obtained a … [CO] for the religious use of the property. The City of Dallas has rejected Defendants’ request to obtain a CO because Defendants do not have thirteen parking spaces, an automatic fire sprinkler system, a separate second floor with a firewall, two first-floor exits, wheelchair-accessible walkways, and wheelchair-accessible restrooms. Installing thirteen parking spaces outside of the home would be physically impossible given the limited space and requiring Defendants to unnecessarily purchase these additional features would cost Defendants approximately $250,000, thereby effectively preventing Defendants from using the property as religious space.

The synagogue seeks $100,000 in monetary relief, injunctive relief allowing continued use of the property for religious worship, and attorney’s fees.

The synagogue’s counterclaim complaint is available here. Earlier this year, Collin County District Court Judge Jill Willis granted summary judgment in favor of the synagogue in a lawsuit brought by a private homeowner who sought to enforce restrictive covenants to prevent the religious use on the subject property.

 

Eleventh Circuit Dismisses RLUIPA Complaint of “Indigenous/Aboriginal Free Moorish National”

In Bey v. City of Tampa Code Enforcement (11th Cir. 2015), the plaintiff Nura Washington Bey (“Washington”) sued the City of Tampa and its Code Enforcement Officer, Steven Mateyka, after Mateyka cited Washington in connection with her use of property to practice her Islamic faith with “fellow Moorish nationals.”  The citation noted that Washington had displayed unpermitted signs without a building permit and that she failed to obtain a special use permit to operate a private recreational facility.  At an April 2, 2014 hearing, Washington claimed that the City’s special magistrate lacked jurisdiction to consider the citations, since she is not a “person” within the meaning of the Florida statutes but instead an “Indigenous/Aboriginal Free Moorish National.”  The special magistrate found Washington guilty of the code violations, ordered her to correct them, imposed a fine of $100 per day that the violations were not corrected, authorized the city clerk to place a lien on her property if the code violations remained uncorrected, and further authorized the City to foreclose the lien if any amount remained unpaid after 3 months.

Washington, pro se, alleged violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), her First Amendment right to exercise her religion and to assemble, and her Fifth Amendment right to procedural due process.

RLUIPA (Equal Terms and Nondiscrimination)

Washington’s RLUIPA claims were brought under the statute’s equal terms and nondiscrimination provisions.  While the Eleventh Circuit concluded that the district court had improperly found that Washington lacked standing, it nevertheless dismissed her RLUIPA claims for failure to state a claim.  Washington’s complaint made only a conclusory statement that the defendants permitted “other religious and nonreligious assemblies and institutions to operate in residential districts” without being subject to enforcement actions.  Notably, “[t]he complaint did not identify any particular nonreligious assembly or institution or allege with any specificity how the Defendants’ application of the City of Tampa’s code to Washington’s property resulted in her religious assembly being treated on less than equal terms.”

Similarly, Washington’s nondiscrimination claim “was equally threadbare, making only the conclusory statement that the Defendants’ actions to prevent organized religious services from taking place on the Al Moroc Humanity Park property constituted discrimination against her on the basis of religion.”  The Eleventh Circuit, however, instructed that the RLUIPA claims be dismissed without prejudice to allow the self-represented Washington the opportunity to amend her complaint.

First Amendment (Free Exercise and Free Assembly)

Washington alleged that the defendants’ actions in enforcing the City’s zoning code violated her First Amendment right to exercise freely her religion and to assemble.  This claim was rejected because Washington failed to allege any facts showing how the defendants’ actions burdened her religious or associational rights.  Specifically, the Eleventh Circuit noted that “the gravamen of Washington’s First Amendment claims, as alleged, appears to be that Washington is entirely exempt from local land use regulations by virtue of the First Amendment.  Washington cites no authority to support such a proposition and we could find none.” (emphasis in original).  This claim was also dismissed without prejudice to allow Washington to amend her complaint to properly state a claim.

Fifth Amendment (Procedural Due Process)

Washington’s procedural due process claim rested on her allegation that the special magistrate lacked jurisdiction over her because she is a “Moorish National” and therefore she is not subject to the City’s zoning code.  The Eleventh Circuit was not persuaded by this argument and, in particular, Washington’s reliance upon the 1787 Treaty of Peace and Friendship between the U.S. and Morocco or the Free Moorish Zodiac Constitution.  Instead, the Eleventh Circuit determined that since Washington owned the subject property within the City, the special magistrate had jurisdiction to adjudicate code violations on Washington’s property and to assess fines if they were not corrected.

The Ultimate Deus Ex Machina – Swingers Club Becomes a Church!

Every so often RLUIPA Defense feels the need to expand its reporting horizons. We usually stick to run-of-the-mill, pending or threatened litigation related to religious-land uses and RLUIPA. Sometimes we stray a bit and review strictly First Amendment cases (Satanic Temple at it Again). In this story, there was no permit denial and the applicant’s plans are moving forward to completion. What comes next is the interesting part.

The swingers’ club turned church has garnered a lot of press coverage over the last few weeks—and who can blame the press given the extraordinary opportunity for sexy-pun headlines (i.e. “Sex Club Seeks Nashville Blessing”). For those unfamiliar with the case, here are the basic facts. The Social Club operated in downtown Nashville, providing an opportunity for couples and singles to “explore their sexual fantasies with and around each other.” According to one source, the club provided many amenities, including private beds, love swings, group play areas, a “Sybian” room, and “the dungeon.”

Feeling the crunch of a rapidly expanding downtown real estate market, The Social Club decided to sell its former location for large profit and relocate to Madison, a near-by suburb. The Social Club thought it found the perfect new location in a 22,000 square foot, former medical office building, neighboring the Goodpasture Christian School and New Jerusalem Baptist Church.

Madison residents responded to the plan with a predictable NSIMBY (No Swingers in My Back Yard) reaction. Seeking a legislative solution, opponents advocated for changes to the county zoning code as well as state law. Tennessee Governor, Bill Haslam signed HB 480 (Public Ch. 130) into law last month, which bans private clubs from locating within 1,000 feet of a child care center, school, public park, or place of worship. A “private club” is defined as “a club or organization that operates for the purpose of providing members of the club with the opportunity to engage in or view live specified sexual activities.” A similar bill is under consideration to amend the Nashville and Davidson County Zoning Code.

Not deterred by the uproar, The Social Club had a revelation—apply for approval to operate as a Church! In place of The Social Club, the United Fellowship Center (the “Fellowship”) now seeks all required building and occupancy approvals. Plans submitted to the county by the Fellowship replace the game room with a fellowship hall; private bedrooms with bride and groom dressing areas; and two dungeon rooms with choir and handbell areas. See a floor plan comparison here.

Religious Institutions are permitted by right in the county’s non-residential zones. Metro Zoning Administrator Bill Herbert reported that, so long as everything is up to code, his department will grant the required approvals—the zoning department takes applicants at their word. If the Fellowship is not actually operating as a church, the county may then take enforcement action.

The lawyer for United Fellowship Center, Larry Roberts, noted that the Fellowship has tenets of faith just like the Ten Commandments—sort of—“Do not steal. Do not lie. Do not cheat. Do not commit any act that will be harmful to others. Do not commit adultery without the knowledge and consent of your spouse.” Members of the Fellowship may bring their own alcohol to services, but no sexual intercourse is allowed at the property, Roberts noted. If members wish to “hook-up” they must do so off campus.

Of course this case raises the question, when is it appropriate for a municipality to question the sincerity of an organization’s religious belief? The Huffington Post recently reported on the case and provided a helpful primer on Supreme Court precedent regarding the sanctity of religious sincerity. A Stanford Law Review article provides additional background. As both articles note, U.S. courts have a long history of looking past potential religious pretext in order to question whether a litigant’s professed religious beliefs are sincere. The same is true in the RLUIPA context, and the sincerity of belief is regularly an issue in prisoner cases.

But is the question less about the sincerity of belief and more about what actually constitutes religion? In the Huff Post article noted above, Kutter Callaway, assistant professor of theology and culture at Fuller Theological Seminary in Pasadena, California, similarly speculates: “What is a church, what’s the point of it, and why have we as a society said religious groups are exempt from things other groups aren’t? Those are really core questions. We don’t get to them, because we founder upon the rocks of politics and legalese.”

Will the swingers bring to the forefront a potentially more alluring policy debate—what type of institutions are granted special, extra-Constitutional protections and privileges under state and federal law and why? At what point should such privileges be reexamined? It’s safe to say that the majority of Americans wouldn’t favor granting organizations like The Social Club additional statutory protections, but what about organizations like the Sunday Assembly, which describes itself as “non-religious community that meet regularly to celebrate life”?

Potential answers to these questions are well beyond the purview of RLUIPA Defense, but when a sex club turns church, there’s at least a good reason to ponder them.

New RLUIPA Suit: Kansas Church Sues Crawford County Commissioners

Liberty Baptist Church, a Kansas church founded in 1947 with a congregation of about 15 members (Church), is suing the Board of County Commissioners of Crawford County, Kansas over the denial of its application for a conditional use permit to operate its property as a church.

Since 2013, the Church has met and worshipped in the home of its pastor in Pittsburg (the most populous city in Crawford County and in southeastern Kansas) (see here).  It soon began a search for new property outside Pittsburg, but within the County.  It located a 2.8 parcel that met its needs.  The parcel is situated in the agricultural zone, but under the zoning code it is too small to put to agricultural use (10 acre minimum requirement).

While the County has seven zoning districts, religious assembly uses are not permitted as of right in any of them, but are only permitted as conditional land uses.  In September 2013, while the Church was under contract to purchase the parcel, it submitted an application for a “conditional land use” with the Crawford County Regional Planning and Zoning Commission.  Although the Planning and Zoning Board voted to send a recommendation of approval, the Board of County Commissioners subsequently denied the application for the following reasons:

  • Proposed use not in the same general character of the neighborhood which is residential and agricultural;
  • Concern about safety due to narrow road and sightlines at the entrance of the property;
  • Residents’ concerns about activity on church ground when property is not in use;
  • Concern from neighboring landowners about the viability of the church which would lead to an abandoned structure with no upkeep or maintenance.

On December 29, 2014, a state district court upheld the County’s denial as reasonable.  The district court did not consider claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

On November 1, 2013, the Church acquired title to the 2.8-acreparcel and filed another application for a “conditional land use” on January 19, 2015.  The Planning and Zoning Board again recommended approval, but the Board of County Commissioners again denied the application on the following grounds:

  • Proposed structure and use not in the same general character of the neighborhood which is residential and agricultural;
  • Concern about safety of the roadway and the entrance to the property.

In the current lawsuit, the Church alleges that “the County is interfering with the Church’s religious mission and growth and threatens the existence of the church.”  It also asserts that its “members have been humiliated and have endured mental anguish and suffering as a result of these events.”

The Church complains that the County’s zoning code and its actions violate RLUIPA’s total exclusion and unreasonable limits and substantial burden provisions.  It also challenges as a violation of the Free Exercise Clause the County’s Zoning Regulations and conditional use permit application process, and asserts violations of the Kansas Constitution and the Kansas Preservation of Religious Freedom Act (KPRFA).  The Church seeks as relief declarations that the County’s zoning code and its actions violate RLUIPA, the Free Exercise Clause, and state law, and seeks injunctive relief to enjoin the County from preventing it from using its property as a church.

The Complaint is available here.  For local coverage, click here.

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