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Islamic Center and City of Norwalk, Connecticut Reach Proposed Settlement in RLUIPA Suit
Posted on 8/27/14 by Evan Seeman and Dwight Merriam          

Al Madany Islamic Center and the Norwalk Zoning Commission have agreed to the terms of a proposed settlement stemming from the Commission’s 2012 denial of the Islamic Center’s proposal to construct a 27,000 square-foot mosque and multi-purpose hall on 1.5 acres in a residential neighborhood.  The U.S. Department of Justice intervened in the case after the City challenged the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA), and reportedly encouraged the parties to settle.  Before the terms of the settlement can be formally entered by the Court, state law requires that a public hearing be held by the Commission.  The public hearing is scheduled for September 4, 2014.  A summary of the proposed settlement agreement is found here.

The Commission will grant a special permit to the Islamic Center to use the property as a “house of worship” subject to certain conditions and limitations.  The Islamic Center has agreed to reduce the useable space in the recreational building, reduce the overall size of the building, and increase the amount of on-site parking provided.  It will do so in part by replacing the first floor usable space in the accessory or recreational building with a parking deck, reducing the amount of space to be used and increasing the amount of onsite parking.  There will also be a reduction in the cubic volume of the facility by approximately 11 percent.  The Islamic Center will increase the size and amount of plantings on the property, and will pay for undefined “traffic calming measures” at the site.  There will be no amplified or unamplified calls to prayer from the proposed mosque’s minaret, and no amplified calls to prayer outdoors on the property.  The proposed settlement would also require that the Islamic Center hold two prayer services on the Islamic High Holy Days to minimize the potential need for off-site parking, and hire police or other appropriate officers to direct traffic.

The City and its insurance carrier will pay the Islamic Center more than $307,000 as part of the settlement, to be approved by the City Council.  If the City instead pursued this matter to trial and lost, it would be subject to attorneys’ fees, which, in this case, its lawyers estimate could potentially reach several millions of dollars.

The City is represented by Marci Hamilton, the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, one of the foremost experts on RLUIPA.  Hamilton, in a statement with the online newspaper Nancy On Norwalk, has praised the settlement as an appropriate compromise between the City, the Islamic Center, and neighbors:

This is the best settlement that I have seen a city negotiate for its citizens of any of the settlements I have seen.  One of the reasons I say that is the city from the beginning has refused to be cowed by the RLUIPA club.  That meant that they basically insisted on their neutral land use principals to guide this. . . .

This is how land use was operating before RLUIPA, it’s how it should be operating and I give Norwalk a tremendous amount of credit for just sticking to principal, and for the mosque to also be willing to just say, “OK, we really want to be able to build our mosque.  We don’t really want to be in litigation for years and years.”  So I was really glad to see the rational heads prevail, but, to be honest, I’ve been impressed with Norwalk from the beginning because the city had an interest in challenging constitutionality.

Even with a good result like this, this case should never have been filed, in my view.  I think RLUIPA is a very bad law.  I think it’s unconstitutional, it’s unfair to local governments.  But once the lower court rightly said “I can’t hold it unconstitutional, it’s going to have to go up to the Second Circuit,” then the city had to decide.  Is it going to continue to litigate or is it going to try to figure out the answer?  I encouraged it to settle, not because I thought the facts were against the city, but because I always think it’s better to figure that out if you can. So they done good.

We previously reported on this case here and here.

New Mexico Federal Court Rules Ten Commandments Display Outside City Hall Violates Establishment Clause
Posted on 8/26/14 by Evan Seeman and Dwight Merriam          

In Felix v. City of Bloomfield (D. NM Aug. 7, 2014), the U.S. District Court for the District of New Mexico found that the display of a five-foot, granite Ten Commandments monument outside City Hall violated the Establishment Clause “because its conduct in authorizing the continued display of the monument on City property has had the primary or principal effect of endorsing religion.”  In April 2007, Kevin Mauzy, a member of the City of Bloomfield City Council, proposed that the City allow the erection of the Ten Commandments monument on the lawn in front of City Hall.  The City Council approved the request, and in July 2007 adopted a resolution establishing a forum policy for the placement of historical monuments on the City’s lawn.  In 2011, after Mauzy left the City Council, he constructed a five-foot tall granite monument of the Ten Commandments on the lawn. 

The monument was dedicated at a ceremony outside City Hall that was followed by prayer, and in which Mauzy stated the following:

Some would believe that this monument is a new thing.  They have been so busy trying to remove God from every aspect of our lives that they have overlooked our history.  Well, I’ve got news for you, it’s been here all along. . . . You and I are average citizens who believe just like most of our fellow Americans. We want the government to leave us alone and to keep our – their hands off our money, our religion, our Ten Commandments our guns, our private property, and our lives . . . God and his Ten Commandments continue to protect us from our evil. . . . May God bless us and protect this monument.

The Ten Commandments monument contains disclaimers that state “any message hereon is of the donors and not the City of Bloomfield” and that the information on the monument does not “necessarily reflect the opinions of the City.”

Monuments of the Declaration of Independence, the Gettysburg Address, and the Bill of Rights were also constructed on the same lawn outside of City Hall after the Ten Commandments monument was built.  The Ten Commandments monument commands a position of prominence, in front of the other three monuments.

Plaintiffs sued, alleging that the Ten Commandments monument violates the Establishment Clause of the First Amendment to the U.S. Constitution.  The District Court determined that plaintiffs had Article III standing, since they “have regular, direct and unwelcome contact with the Ten Commandments monument and therefore have suffered an ‘injury-in-fact,’ which was caused by Defendant’s conduct . . . .”  Specifically, Plaintiff Felix “sees the Ten Commandments monument five to six times a week while driving past City Hall.”  Plaintiff Coone “passes in sight of the Ten Commandments monument three to four times a week and observes it once a month in close proximity when he visits City Hall to pay the water bill for his family residence.”

The District Court next considered whether the Ten Commandments monument was government speech subject to a potential violation of the Establishment Clause.  It found that the monument was a form of government speech because (a) the monument is permanent within the practical and legal sense, since it has been authorized by the City for 10 years and can be renewed, and (b) the disclaimers on the monument do not overshadow the City’s decision to allow the monument on public property.  The District Court rejected the City’s contention that the City’s forum policy shows that public property is open to all private parties to express different historical viewpoints, and the Court must defer to this intent.  The District Court noted that “the City has not advertised its forum policy or taken any steps to encourage members of the community, other than Mr. Mauzy, to put monuments on the City Hall lawn.  The disclaimer sign that currently stands on the City Hall lawn announcing the existence of the forum policy was placed there by Mr. Mauzy in 2011, the same day he erected the Ten Commandments monument. . . .  Furthermore, prior to the placement of the Ten Commandments monument, there was no public declaration informing the community about the forum policy (aside from the resolution itself).  Thus, for almost four years, there was no obvious sign that Defendant had opened the City Hall Lawn as a public forum.”  Further, the City has discretion over the layout and appearance on the City Hall Lawn, along with the nature of the discourse on the lawn.  Accordingly, the City has not “transformed the City Hall Lawn into an open public forum; it has merely provided ‘selective access’ to the lawn.”

The District Court found that “[i]n view of the circumstances surrounding the context, history, and purpose of the Ten Commandments monument, it is clear that the City of Bloomfield has violated the Establishment Clause because its conduct in authorizing the continued display of the monument on City property has had the primary or principal effect of endorsing religion.”  It noted, however, that this is “a very close case,” the result of which could differ with a slight change of the facts.  “For example, had the Ten Commandments monument been established last in the series of monuments, after placement of the Declaration of Independence, Gettysburg Address, and Bill of Rights monuments, the First Amendment may not have been offended.  Had the Ten Commandments monument been arranged at the rear of the north lawn near the municipal building complex, with the other three monuments (consisting of six tablets) in front of it, the Ten Commandments monument may have passed muster.  Had the Ten Commandments monument been installed without a dedication event or with a ceremony absent religious overtones, the ultimate conclusion may have differed. Had the City of Bloomfield adopted the amended policy permitting monuments first, with language clearly allowing only temporary residence of a monument, the result might have changed.”

All this was foreshadowed in the opening paragraph of Judge Parker’s decision, in which he expressed his views on the ambiguity in the present state of the law:

In this case, the Court is tasked with deciding whether a monument, inscribed with a version of the Ten Commandments and standing on the lawn in front of the City of Bloomfield, New Mexico municipal building complex, violates Amendment I of the Constitution of the United States of America. This is a difficult endeavor. As United States Supreme Court Justice Clarence Thomas observed, the Supreme Court’s Establishment Clause “jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess. . . .” Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 132 S. Ct. 12, 13 (2011) (Thomas, J., dissenting from the denial of cert.) Amen! This is, indeed, one of the “difficult borderline cases” referenced by United States Supreme Court Justice Stephen G. Breyer in his concurring (and controlling) opinion in Van Orden v. Perry, 545 U.S. 677, 700 (2005) (Breyer, J., concurring in the judgment). A tweak of the facts (or of the reviewing jurist’s nose) could result in a different conclusion. Nonetheless, the Court will do its best, based on the facts it has found and honoring the precedent of higher courts it is bound to follow, to reach the correct result.

[Emphasis in original]

Town of Greece Adopts New Policy for Pre-Board Meeting Invocations
Posted on 8/25/14 by Evan Seeman and Dwight Merriam          

On the heels of the Supreme Court’s decision in Town of Greece v. Galloway, the Town of Greece has adopted a new policy for pre-board meeting prayers.  The new policy states in part that “It is the intent of the Town Board to allow a private citizen to solemnize the proceedings of the Town Board.  It is the policy of the Town Board to allow for an invocation, which may include a prayer, a reflective moment of silence, or a short solemnizing message, to be offered before its meetings for the benefit of the Town Board to accommodate the spiritual needs of the public officials.” 

The new policy (available here) already has its critics.  The Center for Inquiry (CFI), a nonprofit organization whose mission it is to foster a secular society based on science, reason, freedom of inquiry, and humanist values, says that the Town’s new policy appears to limit those who may give prayers to members of “religious assemblies.”  According to CFI, the Town has established an “assemblies list” of individuals it may select to give pre-board meeting religious prayers, but only allows leaders of religious assemblies to be included in the list, and excludes leaders of secular groups.  The new policy states: “The Assemblies list shall be compiled using reasonable efforts, including research from the Internet, to identify all ‘churches,’ ‘synagogues,’ ‘congregations,’ ‘temples,’ ‘mosques,’ or other religious assemblies in the Town of Greece.  All religious assemblies with an established presence in the Town of Greece are eligible to be included in the Assemblies List, and any such religious assembly can confirm its inclusion by specific written request to the Clerk.”  This controversy, however, comes in the wake of the Town opening its July 2014 board meeting with a secular invocation delivered by an atheist (prior post here).  To read more about the CFI’s concerns, click here.

We have also been tracking how local governments have responded to the Supreme Court’s decision in Town of Greece.  Here are some recent highlights.

--In response to allegations of discrimination by the Escambia County Board of County Commissioners (Pensacola, Florida), one board member states:

When you come to bring your Wiccan, Atheist, or Klingon invocation — I’ll politely excuse myself from the room and simultaneously invite anyone in the audience who wants to join me in a Christian invocation out back. You can give your invocation to those that want to hear it and stay in the room. Nobody will prevent you from your free exercise of your religion, just as I would expect for you not to attempt to block me from exercising my constitutional right to my Christian belief via a Christian invocation outside the back door.

  More on this story here.

--An atheist quotes from “Harry Potter” when giving a secular invocation at a Sioux Falls City Council meeting in South Dakota.  Read more here.

--A councilman in Concord, California says he would refuse to allow Satanists to give pre-council meeting prayer because “Satan is the devil.”  The Contra Costa Times reports.

--The Brevard County Board of Commissioners in Florida has voted to ban atheists from giving religious invocations before local meetings.  More on this story here.

SCOTUS Schedules Argument in RLUIPA Prisoner Beard Case
Posted on 8/21/14 by Evan Seeman and Dwight Merriam          

The U.S. Supreme Court has scheduled argument in Holt v. Hobbs for October 7, 2014.  The case has been drawing interest because it is the first major religion case of the Supreme Court’s new term, and comes shortly after the decision in Burwell v. Hobby Lobby Stores, Inc.

Gregory Holt a/k/a Abdul Maalik Muhammad, who is serving a lifetime sentence in Arkansas for burglary and domestic battery, sued the Arkansas Department of Corrections and certain prison officials because they would not let him grow a beard in accordance with his Muslim faith.  The Department cites state policy allowing only trimmed mustaches and one-quarter inch long beards for inmates with diagnosed dermatologic problems.  The purpose of the state policy is to promote “health and hygiene,” to minimize “opportunities for disguise” and to prevent the concealment of contraband.  Holt alleges that the actions of the Department and prison officials have imposed a substantial burden on his sincerely held religious belief of growing a beard. 

As a compromise, Holt proposed growing a half-inch beard and obtained temporary relief from the District Court to do so.  Ultimately, however, the District Court concluded that the Department had a compelling penological interest to uphold its prohibition on beards because (1) it helped prevent inmates from concealing contraband, drugs, or weapons, (2) an inmate who grew a beard could change his appearance by shaving; and (3) affording special privileges to some inmates but not others could cause them to become potential targets.  The U.S. Court of Appeals for the Eighth Circuit affirmed, finding that 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 granted Holt’s hand-written petition for a writ of certiorari (available here). 

Local governments may want to follow the Supreme Court’s consideration of the Holt case, particularly its treatment of the “compelling interest” and “least restrictive means” components of RLUIPA’s substantial burden provision.  The case is drawing interest coming on the heels of the Supreme Court’s decision in Hobby Lobby.  In considering whether the federal government’s requirement that employers provide contraceptive services under the Affordable Care Act violated the Religious Freedom Restoration Act, the court in Hobby Lobby observed:  “We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens' religious beliefs.”  Could the Court require the Arkansas Department of Corrections to bear some additional expense to accommodate Holt’s religious beliefs?  Might it arrange for a professional barber to trim Holt’s beard in such a way to meet the Department’s asserted interests?  We’re particularly interested in how any accommodation in Holt’s case might be extended to land use issues.

To help you in following Holt, here are two recent, notable free exercise of religion prisoner cases.

  • Holland v. Goord (2d Cir 2014):  Prison officials substantially burdened Muslim inmate’s religious beliefs by forcing him to choose between drinking water during a three-hour window in the holy month of Ramadan – when Muslims must fast during the day – to provide a urine sample or confining him to keeplock.  The officials did not allow the inmate to provide a urine sample after sunset, when his fast ended.
  • Haight v. Thompson (6th Cir. 2014):  Death-row inmates of the Native American Church allowed to proceed with RLUIPA claims concerning prison’s refusal to permit them to use sweat-lodge and consume buffalo meet at once-a-year powwow in accordance with their religious beliefs.

Church Ministering to Homeless Appeals Preliminary Injunction Denial to Ninth Circuit
Posted on 8/18/14 by Evan Seeman and Dwight Merriam          

We’ve been following the lawsuit filed by Harbor Missionary Church against the City of San Buenaventura, California over the City’s denial of the Church’s application for a conditional use permit to allow it to continue providing free food and other services to the poor and homeless from its property (prior post available here).  In May, the U.S. District Court for the Central District of California granted the Church’s ex parte motion for a temporary restraining order to enjoin the City from enforcing any regulation that would prevent the Church from continuing to operate the ministry from its property.  After conducting an evidentiary hearing a month-and-a-half later, the District Court denied the Church’s preliminary injunction motion, and stated that its granting of the temporary restraining order was based on “the limited factual record” available at the time, under which “the balance of the equities tip[ped] slightly in favor of Harbor.”

Since 2007, the Church has hosted gatherings on its property five days a week to provide the needy with meals and other services in accordance with its Christian faith.  The Church purchased the property from a Quaker congregation in 2004.  It believed that a conditional use permit for communal worship and day care services issued to the Quakers allowed the Church to provide its religious ministry from the property, because under California law, conditional use permits run with the land.  In 2012, however, the City informed the Church that it had to obtain a separate conditional use permit to continue its ministry at the property.  When the Church applied for the permit, City staff recommended that the Planning Commission grant the application. The commission denied the application in November 2013.  An appeal to the City Council resulted in a 2-2 deadlock, upholding the denial.

The Church sued under RLUIPA’s substantial burden provision and the Free Exercise Clause of the First Amendment to the U.S. Constitution.  It alleged that the permit denial effectively forces it to terminate its religious ministry, as there are no other alternative locations from which it might operate, and that, even if such alternatives did exist, “substantial delay, uncertainty, and expense” would result.  In granting the Church a temporary restraining order, the District Court found that the Church was likely to succeed on the merits of its substantial burden claim, since it was no longer able to operate its ministry, a “significant part of [its] religious expression.”  Although the District Court found that the City’s denial of the application was in furtherance of a compelling government interest – public safety – it determined that the City at that point had failed to demonstrate that the denial was narrowly tailored to further that interest, as required by RLUIPA.

But just two months later, the District Court denied the Church a preliminary injunction, concluding that the Church was unlikely to succeed on the merits of its RLUIPA and Free Exercise Clause claims.  In particular, it found that the City’s denial of the permit did not impose a substantial burden on its religious exercise for four reasons.  First, the church was seeking a change in use and was not restricted from what it was permitted to do. The District Court observed that “the burden on religious practices is not great when the government action, in the case of the denial of a use permit, does not restrict current religious practice but rather prevents a change in religious practice.”  (citing Christian Gospel Church, Inc. v. City & Cnty. of San Francisco, 896 F.2d 1221, 1224 (9th Cir. 1990)).  Because the Church did not provide services to the homeless from its property until 2008 – four years after it had purchased the property – its pre-2008 religious practice was not restricted.  Second, the denial did not terminate the Church’s ministry; it only restricted it.  The District Court rejected the Church’s assertion that the permit denial “effectively terminates the Church’s ministry,” because it merely limits the services the Church can provide to its congregants and to the public at a single location.  “Notwithstanding the permit denial, Harbor can still hold religious services, prayer meetings, bible studies, and other religious functions at the Property as it did between 2004 and 2008.  In other words, Harbor’s congregants, regardless of their housing status, can still come to Harbor for religious services and spiritual succor.”  Third, the Court found that the Church’s religious beliefs did not obligate it to provide these services from the subject property, the Church had previously sought to locate elsewhere, and its pastor admitted that the subject property was not an appropriate location to provide such services.  Finally, it determined that there were many alternative locations in the City where the Church could relocate.

Even though the District Court concluded that the City’s denial of the permit did not impose a substantial burden on the Church’s religious exercise, it still considered and found that any such burden was in furtherance of a compelling governmental interest taken in the least restrictive means possible.  Specifically, the Court credited the testimony of the City’s assistant police chief regarding a substantial rise in crime directly attributable to the Church’s activities.  Denial of the permit, the District Court noted, was in furtherance of public safety and crime prevention, compelling governmental interests.  These compelling interests were taken in the least restrictive means, as the City considered less restrictive alternatives – issuing the permit subject to conditions – but then determined that outright denial was the only way to protect public safety and prevent crime in the neighborhood.

The Church has appealed the District Court’s decision to the U.S. Court of Appeals for the Ninth Circuit, and filed an emergency motion to allow it to continue its religious ministry pending the outcome of the appeal.  The District Court’s order denying the preliminary injunction in Harbor Missionary Church Corp. v. City of San Buenaventura is available here.

Virginia Federal Court Distinguishes Town of Greece Where Board Members Themselves Give Religious Invocations
Posted on 8/12/14 by Evan Seeman and Dwight Merriam          

We’ve been following how some municipalities are dealing with the U.S. Supreme Court’s decision in Town of Greece v. Galloway, which ruled that religious prayer before government meetings did not violate the Establishment Clause to the U.S. Constitution (prior post available here).  One case that recently caught our attention is Hudson v. Pittsylvania County, Virginia, (WD VA, Aug. 4, 2014), wherein a federal court distinguished the Town of Greece decision in refusing to dissolve an injunction barring Pittsylvania County, Virginia from opening meetings with prayers associated with any one religion.  In distinguishing Town of Greece, the court in Hudson focused on the fact that it was the county’s board members – not invited clergy – who chose the prayers to open board meetings and who led the prayers.  In so doing, the county “involved itself ‘in religious matters to a far greater degree’ than was the case in Town of Greece”:

[U]nlike in Town of Greece, where invited clergy and laypersons offered the invocations, the Board members themselves led the prayers in Pittsylvania County.  Thus, in contrast to Town of Greece, where the town government had no role in determining the content of the opening invocations at its board meetings, the government of Pittsylvania County itself, embodied in its elected Board members, dictated the content of the prayers opening official Board meetings. . . .  [T]hat content was consistently grounded in the tenets of one faith.  Further, because the Pittsylvania County Board members themselves served as exclusive prayer providers, persons of other faith traditions had no opportunity to offer invocations. . . .

Not only did the Pittsylvania County Board members determine the content of the opening prayers at Board meetings, the Board members often directed the assembled citizens to participate in the prayers by asking them to stand.  For example, on September 20, 2011, the Pittsylvania County supervisor delivering the opening prayer directed: “If you don’t want to hear this prayer, you can leave.  Please stand up.”  In Town of Greece, the majority opinion noted that such a request from the government makes a difference. 134 S. Ct. at 1826. (“The analysis would be different if town board members directed the public to participate in the prayers.”).

While the court in Hudson indicated it was willing to slightly modify the injunction to bring it in line with Town of Greece, by clarifying that “that opening prayers offered at the start of Pittsylvania County Board of Supervisors meetings need not be generic or nonsectarian,” it concluded that it could not do so unless the U.S. Court of Appeals for the Fourth Circuit, where the case has been appealed, granted at least a limited remand.

Second Circuit Rejects Atheists’ Challenge to 9/11 Museum’s “Cross at Ground Zero”
Posted on 8/11/14 by Evan Seeman and Dwight Merriam          

In American Atheists v. Port Authority of New York and New Jersey, No. 13-1668 (2d Cir. July 28, 2014), the U.S. Court of Appeals for the Second Circuit held that the National September 11 Museum’s (Museum) display of a 17-foot high column and cross-beam retrieved from World Trade Center debris that gave many the impression of a Latin cross (a symbol associated with Christianity) did not violate the U.S. Constitution’s Establishment and Equal Protection Clauses.  The column and cross-beam, known as “the Cross at Ground Zero,” is a part of the Museum’s exhibition called “Finding Meaning at Ground Zero” (to view the Cross at Ground Zero, click here).  The exhibit includes the following textual panel:

Workers at Ground Zero struggled to come to terms with the horrific circumstances in which they found themselves.  Some sought to counter the sense of utter destruction by holding on to something recognizable, whether a metal bolt or shard of glass or a marble salvaged from the debris.  Others, grappling with the absence of survivors and the regular recovery of human remains, found purpose by forging relationships with relatives of a particular victim, carrying a photograph or memorial card to bolster their resolve.

Some questioned how such a crime could have been perpetrated in the name of religion, and wrestled with how a benevolent god would permit the slaughter of thousands of innocent people.  Many sought comfort in spiritual counseling, religious symbols, and the solace of ceremonies and ritual.

Some workers turned to symbols of patriotism to reinforce a sense of commitment and community, hanging flags across the site.  American flags reinforced a sense of commitment and community, and the repeated promise of “God Bless America” inspired a sense of duty.  The words “Never Forget” commanded a pledge of unswerving dedication.

Three years before the Museum opened, the American Atheists, Inc. and certain of their members (Atheists) sued, contending that any display of the Cross at Ground Zero would violate the U.S. Constitution, but the United States District Court for the Southern District of New York found against them.  On Appeal, the Atheists conceded that the Cross at Ground Zero is an historic artifact worthy of display in the Museum, and limited their challenge to the manner in which the Museum would display the cross.  In particular, they asserted that the display of the cross would impermissibly promote Christianity in violation of the Establishment Clause and would also deny the Atheists equal protection of the laws, because the Museum does not display items acknowledging atheists, even though atheists were among the victims and rescuers on September 11.  Although the Atheists acknowledge that there is no historic artifact that speaks to the atheists who lost their lives or atheists’ rescue efforts, they alleged the District Court erred in ruling against them because they were willing to finance an “atheists’ recognition plaque” for display in the Museum with the Cross at Ground Zero.

In evaluating the Atheists' Establishment Clause claim, the Second Circuit applied the test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), which “instructs that for challenged government action to satisfy the neutrality principal of the Establishment Clause, it must (1) ‘have a secular . . . purpose,’ (2) have a ‘principal or primary effect . . . that neither advances nor inhibits religion,’ and (3) ‘not foster an excessive government entanglement with religion.’”

The Second Circuit found that the display of the Cross at Ground Zero does not violate the Establishment Clause because the stated purpose of displaying it – to tell the story of how some people used faith to cope with September 11 – is genuine, and an objective observer would believe the purpose of the display to be secular.  In addition, “an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled ‘Finding Meaning at Ground Zero;’ the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context.”  Finally, “there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.”

The Second Circuit also rejected the Atheists’ Equal Protection Clause challenge: “In the absence of any evidence of discriminatory animus toward the atheists, the Museum did not deny equal protection by displaying the Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.” 

Florida Church’s RLUIPA Suit Against City of Jacksonville Headed to Trial
Posted on 8/4/14 by Evan Seeman and Dwight Merriam          

The United States District Court for the Middle District of Florida has denied the City of Jacksonville’s motion to dismiss Church of Our Savior’s (formerly known as Resurrection Anglican Church) RLUIPA suit, and has scheduled the case for trial.  The Church was founded in 2006 and has about 110 members and weekly parishioners.  Its religious mission is “to revel in and share the grace that God has shown them,” and seeks to encourage members in the community to attend its religious services.  Aside from religious services, the Church provides bible study classes, serves the homeless, and assists nearby schools. 

Currently, the Church rents space from the City of Jacksonville Beach Historical Society on a six-month rolling basis.  Under its lease the Church can only hold services for four hours per week, and it wants to have more time for worship.  It also is not permitted to make repairs or alter the chapel of the space it leases to accommodate its religious needs.  The Church leases additional space from a separate owner for its administrative offices, and is relegated to holding its men’s bible study sessions in the back of “Colonel Mustard’s” – a popular hamburger restaurant.  These limitations, the Church alleges, prevent it from attracting new members to its congregation, in contravention of its religious beliefs.

To alleviate these burdens, the Church began searching for a single location from which it could practice its religion.  In 2012, the Church found property in the City’s “Residential, single family (RS-1)” zoning district, and acquired an option to purchase the property (Property).  In this zone, “public and private parks, playgrounds, and recreational facilities” are allowed as-of-right, but churches must obtain a conditional use permit (CUP) to locate there.  The Church alleges that the Property “is the only available property to ideally fit its needs . . . .”

In March 2013, the Church submitted a CUP application to construct a one-story, 7,440 square foot building containing a sanctuary and additional space that could hold more than 200 people, and with a children’s play area for the congregation.  The staff of the City’s Planning and Development Department prepared a report recommending approval of the application, because the proposal “represents a reasonable low intensity use of the undeveloped parcels surrounding the City’s lift station, and would serve as transition between the soon to be developed commercial parking facilities to the east, and the Hopson Road neighborhood to the west and south.”  Five residents from the neighborhood opposed the application, and the Planning Commission denied the application.

The Church submitted another CUP application in August 2013, this time characterizing the proposed children’s play area as a public park.  The Planning and Development Department staff again recommended approval for the same reasons as before.  Neighborhood residents spoke in opposition and the Planning Commission denied the CUP on the grounds that “(1) the proposal ‘is not consistent with the character of the immediate vicinity;’ (2) the proposal is ‘inconsistent’ with the City’s Comprehensive Plan, which requires future institutional uses, like churches, to be located outside of low-density residential areas; and (3) changing the designation of the children’s play area to a public park means the proposed building would exceed the maximum of 35% lot coverage for property zones RS-1.”

The Church brought a five-count RLUIPA suit against the City.  It alleges that the City’s CUP denial substantially burdens its religious exercise because “The Church wishes to build a facility on what it claims is the only available property to ideally fit its needs, and the City’s denial of its application for a CUP means the Church cannot do so.”  Instead, the Church “is left with its rolling, six-month lease on the Beaches Museum Chapel, a less than ideal location, with no guarantee the lease will continue to be renewed.”  The Church also claims that the City’s zoning ordinance violated RLUIPA’s equal-terms provision on its face by treating religious uses worse than secular assembly uses.  In support of this argument, the Church points to “public and private parks, playgrounds, and recreational facilities” uses that are allowed as-of-right in the subject zoning district, while religious institutions must obtain a CUP through discretionary review to locate there.  It also alleges that City violated RLUIPA’s equal-terms and nondiscrimination provisions as-applied by treating it worse than other secular and religious uses that obtained zoning approval to locate in the zone.  Finally, the Church argues that the City has violated RLUIPA’s unreasonable limitations provision by adopting policies that make it difficult for religious institutions to locate anywhere in the City.

On July 18, 2014, the District Court denied the City’s motion to dismiss the Church’s claims, concluding that the claims were properly pled to proceed to trial.  The District Court has agreed to expedite the case for trial – scheduled to occur on September 2, 2014.

Daniel P. Dalton, an experienced RLUIPA litigator who represents the Church, offered the following comment:

“The law ensures that a city’s zoning restrictions don’t single out ministries for discrimination and penalize them because of their religious viewpoint.  The city should do the right thing and grant Church of Our Savior a permit to build its church so it can fulfill its mission and continue to serve its community.”

Attorney Dalton is described by Bram Alden in his article “Reconsidering RLUIPA: Do Religious Land Use Protections Really Benefit Religious Land Users?” as “a leading RLUIPA proponent who has represented religious plaintiffs in a number of prominent RLUIPA cases,” including the Academy of Our Lady of Peace in its lawsuit against the City of San Diego (read more here).

The District Court’s decision denying the City’s motion to dismiss in Church of Our Savior v. City of Jacksonville, No. 3:13-cv-1346 (M.D. FL 2014), is found here.

U.S. DOJ Investigating James City County, Virginia for Possible RLUIPA Violation
Posted on 7/30/14 by Evan Seeman and Dwight Merriam          

The The United States Department of Justice (DOJ) has notified James City County, Virginia that it has opened an investigation over the County’s 2013 refusal to allow Peninsula Pentecostal (Church) to operate as-of-right in the County’s industrial zone following a 2012 amendment to its zoning ordinance.  In 2013, the Church met with the County’s planners to outline its proposed 130,000 square foot facility (that is about the floor area of a Home Depot with a garden center) that would include two worship areas, classrooms, a nursery, offices, gym, meeting rooms, kitchen, reception hall, day care center, convenience store, and fuel station along with a 7,200 square foot garage and storage shed. The church’s school, day care and supporting facilties could accommodate 115 children.  At this meeting, the Church was informed by County officials that, based on a recent amendment to the County’s zoning ordinance, churches were allowed as-of-right in the industrial zone. 

In 2013, the County alleges that it became aware of “a large formatting error” with regard to the zoning ordinance amendment.  It claims that it inadvertently included approximately 40 non-industrial uses – including a church use (“places of assembly”) – as permitted uses in the industrial zone.  The County’s Planning Commission approved the proposed correction to the “formatting error,” but recommended that churches continue to be allowed as-of-right in the subject zone.  The Board of Supervisors disagreed, and voted to approve the correction to the ordinance in its entirety.  Now, the Church would have to submit an application to rezone its property for its intended use.  A memorandum issued by the County’s zoning administrator and planner documenting the history of events is available here.

The DOJ has requested that the County provide its attorneys with a slew of information within 21 days, including “all letters, emails, correspondence, staff memos, notes, drafts, studies, resolutions, agendas, minutes and recordings regarding changes to the limited business/industrial and general industrial zoning districts.”  It also seeks any other land use request made by a church in the past 10 years, as well as applications and decisions involving non-religious places of assembly (i.e., schools, museums, theaters, indoor amusements parks).  The DOJ notes that its “investigation is preliminary in nature, and we have not made any determination as to whether there has been a violation of [the law] by James City County.”

For more information about the DOJ’s involvement in RLUIPA cases, click here.  For local coverage, click here.

New RLUIPA Suit: Bayview, Texas Sued Over Zoning Ordinance Prohibiting Churches & Religious Schools
Posted on 7/28/14 by Evan Seeman and Dwight Merriam          

On July 22, 2014, Cornerstone Church by the Bay (Church) and Laguna Madre Christian Academy (Academy) sued the Town of Bayview, Texas (Town) under the Religious Land Use & Institutionalized Persons Act (RLUIPA), the Texas Religious Freedom Restoration Act (TRFRA), and the U.S. and Texas constitutions over a zoning ordinance it claims prohibits it from operating a church and religious school on property it owns in the Town’s Single-Family Dwelling District.

Plaintiffs allege the following in their Complaint.  Previously, the Church and the Academy paid to rent property in Laguna Vista, Texas.  They then acquired property in the Single-Family zone and sought to operate a church and religious school there, but soon became aware that such uses were prohibited in this zone.  The property was formerly used as a community center with a gymnasium, a swimming pool, meeting facilities, and office space.  Plaintiffs allege that following several communications with the Town and its officials, they applied to amend the zoning ordinance to permit churches and schools as allowable uses in the zone.  They asserted that the zoning ordinance violated RLUIPA and TRFRA, and were told by Defendants that the best course of action would be to submit a draft of a new zoning ordinance that would remedy the alleged violations.  Plaintiffs submitted a proposed draft ordinance, but the Town took no action on it and, instead, rejected the zoning amendment request.  On June 26, 2014, Defendants sent a letter to Plaintiffs advising them of the decision to reject the zoning amendment, informing them that they are not allowed to operate a church or religious school on the property, and the Church and the Academy would face legal action if they did so.

Plaintiffs claim that the Town treats it worse than other secular assembly uses because while the zoning ordinance prohibits religious uses from the subject zone, it allows other secular assembly uses – golf courses, farms, truck gardens, orchards, green houses and nurseries.  They also claim they have been substantially burdened in their religious exercise because they are prohibited from operating on the property as a result of the zoning ordinance, and would face enforcement action if they do so.  Additional claims include violations of RLUIPA’s nondiscrimination provision for the purposeful discrimination against religious institutions and RLUIPA’s unreasonable limitations provision because the zoning ordinance “substantially and unreasonably limited the ability of religious institutions from operating within Bayview, and is both unwarranted by any legitimate government interest and unreasonable.” 

To review the rest of Plaintiffs’ claims in Cornerstone Church by the Bay v. Town of Bayview, Texas (SD TX 2014), you can view the Complaint here.  The Town’s zoning ordinance and zoning map can be accessed here and here.  The Liberty Institute has issued a press release which available here.

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).

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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