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Village of Northbrook, Illinois Facing Familiar Threat of RLUIPA
Posted on 4/24/14 by Evan Seeman and Dwight Merriam          

The Village of Northbrook, Illinois is no stranger to the Religious Land Use and Institutionalized Persons Act (RLUIPA), having successfully defended against claims that it violated the Act brought by Petra Presbyterian Church.  See Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846 (7th Cir. 2007).  The Village may once again find itself defending against an RLUIPA claim if it fails to issue a building permit to an Orthodox Jewish group seeking to build a synagogue.

Darchei Noam of Glenbrook, a modern Orthodox Jewish congregation of about 50 families, has applied for a building permit to construct an 8,300 square foot synagogue and parking lot on a 1.5 acre lot on property formerly used as a small garbage business in a residential zone.  Because religious uses, such as the proposed synagogue, are allowed as-of-right in the residential zone, the Jewish group only needs a building permit, with no public hearing.  Neighborhood opponents are concerned about increased traffic, potential drainage problems, and light pollution, and have collected over 200 signatures from those opposed to the synagogue.  The neighbors aired their complaints at a recent meeting of the Village Board of Trustees, even though it is the Village staff, not the Trustees, who will make the decision on the issuance of the building permit.

Some of the Trustees said that a public hearing should be held to consider proposals involving significant changes in use.  Their lawyer, Steven Elrod, who has considerable experience with RLUIPA, advised otherwise: “I strongly recommend that the village standby and not depart from its long-standing practices.  Let your professional staff handle this matter as it is required and obligated and authorized to do.” 

If the Village were to stray from this process, Darchei Noam might be able to make an RLUIPA equal-terms claim.  RLUIPA’s equal-terms provision states: “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”  42 U.S.C. Section 2000cc(b)(1).  Under this provision, municipalities considering applications from religious institutions must subject such applications to the same process under the same standards as those submitted by secular institutions, or else they may be found to violate RLUIPA.  Irshad Learning Ctr. v. County of DuPage, 804 F.Supp.2d 697, 713 (N.D. Ill. Mar. 28, 2011).  To avoid a potential equal-terms challenge, the Village may be well-advised to heed its lawyer’s advice.

For local coverage, click here.

City Wins When Federal Court Applies Narrow – “Apples to Apples” – Analysis to Identify "Comparators"
Posted on 4/22/14 by Evan Seeman and Dwight Merriam          

The District Court for the Southern District of Ohio, in Tree of Life Christian Schools v. The City of Upper Arlington, No. 2:11-cv-009 (Southern District of Ohio, 2014), has granted summary judgment in favor of the City of Upper Arlington (“City”) in its defense of RLUIPA and related claims brought by Tree of Life Christian Schools (“School”), which sought to develop a religious school on land it purchased in the City’s OCR Office and Research District.  To make out a prima facie case under RLUIPA’s equal-terms provision, a religious institution must identify a secular institution, called a “comparator,” that it alleges has been treated more favorably by a municipality than a religious institution.  42 U.S.C. Section 2000cc(b)(1).  The court’s decision is noteworthy for its treatment of identifying a comparator under RLUIPA’s equal-terms provision.  It used an “apples to apples” comparison to determine a comparator and found that a non-religious school was the only proper comparator to the religious school.  It rejected the School’s contention that other permitted uses, such as banks, barber shops, beauty parlors, daycare centers, coffee shops, hotels/motels, and hospitals were also comparators.  The court’s approach appears to restrict the types of uses that may be considered a proper comparator rather than permitting a comparison with all other secular assembly uses. 

In applying the Third Circuit’s “regulatory approach” test and the Seventh Circuit’s “accepted zoning criteria” test to consider whether non-religious schools were treated more favorably than religious schools, the court concluded that the City’s preservation of its limited commercial land for commercial use as set forth in its Master Plan serves a compelling state interest.  Further, the City treats all schools, religious or not, the same by excluding them from the ORC Office and Research District while permitting them in the City’s residential districts, which account for more than 95% of all the City’s land.  Because allowing a school in the commercial zone would conflict with the purpose of that zone and would threaten the City’s financial stability, the School’s equal-terms claim failed.

The School’s First Amendment free exercise claim also failed because, according to the court, “any burden imposed on Plaintiff was self-inflicted.  Plaintiff was fully aware of the zoning restrictions when it purchased the building. . . .  [and] was specifically informed by Upper Arlington City Council that ‘a private school is neither a permitted or a conditional use in the Office and Research District . . . .’”

The court found against the School in its remaining federal law claims, including those under the U.S. Constitution, and state law claims.

We first reported about this case after it was dismissed by the District Court for lack of ripeness and then remanded by the Sixth Circuit for a determination as to whether the School had cured the ripeness defect following the City’s denial of the School’s zoning amendment request.  It is not clear whether the School will appeal the District Court’s latest ruling.

New York City Church Asks Second Circuit to Reconsider Ruling in Bronx Household of Faith v. Board of Education of the City of New York
Posted on 4/21/14 by Evan Seeman and Dwight Merriam          

We reported earlier this month that the Second Circuit, in The Bronx Household of Faith v. Board of Education of the City of New York, No. 12-2730 (2d Cir. 2014), ruled that the Board of Education of The City of New York (“Board”) did not violate the Free Exercise and Establishment Clauses of the First Amendment by permitting certain groups to use school facilities outside school hours, while at the same time prohibiting the use of school facilities by those groups for religious worship services.  The battle continues, as The Bronx Household of Faith has filed a petition requesting an en banc rehearing by the Second Circuit to review the court’s recent 2-1 majority decision.  It contends that, among other things, the majority decision misapplied binding precedent for free exercise claims both by (1) failing to apply the U.S. Supreme Court’s test for such claims set forth in Employment Division v. Smith, 494 U.S. 872 (1990) and (2) misapplying the U.S. Supreme Court’s decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), by ruling that strict scrutiny review of a government policy applies only where the government acts with animus.  The petition builds off of Judge Walker’s dissent in which he states the Board’s policy of prohibiting religious worship services while allowing other uses on school facilities after hours “violates the Free Exercise Clause because it plainly discriminates against religious belief and cannot be justified by a compelling government interest.” 

The filing of the petition stays the Second Circuit’s April 3rd decision, meaning that religious institutions can continue to hold worship services at school facilities.  The petition for rehearing en banc can be accessed here.

Texas Court Rules Against Homeowners’ Association Seeking To Enjoin Rabbi From Using Home As Synagogue
Posted on 4/14/14 by Evan Seeman and Dwight Merriam          

Updating our previous post, a Texas court, in Schneider v. Gothelf, No. 429-04998-2013-00 (Collin Co. TX Dist. Ct.), has ruled against a homeowners’ association which sought a temporary injunction to stop a synagogue, Toras Chaim, from holding services a couple of times a day for 25 worshippers in a single-family residence subject to the association's deed restrictions.  The association alleges the synagogue use violates the deed restrictions limiting homes to residential use.  David Schneider, an association homeowner, sued his neighbor Rabbi Yaakov Rich, for using a 3,700-square-foot home as an Orthodox synagogue.  Mr. Schneider also claims the synagogue use has reduced the value of his property and he wants $50,000 in compensatory damages.  The homeowners’ association intervened and moved for a temporary injunction to enjoin the single-family home’s use as a synagogue. 

Rabbi Yaakov Rich, represented by the Liberty Institute (the Institute describes itself as: “an influential non-profit law firm, dedicated to defending and restoring religious liberty across America”), has asserted the Religious Land Use and Institutionalized Act (RLUIPA) in defending using his home as a synagogue.  Although the court did not consider whether RLUIPA applies to private agreements between private individuals, such as those in a homeowners’ association, the court was not persuaded by the association that the synagogue has changed the character of the neighborhood and denied the motion for a temporary injunction.  Reportedly, Toras Chaim had been operating elsewhere in the neighborhood for three years without objection.

The Liberty Institute lawyer representing Toras Chaim says that:  "There are tens of thousands of Americans who have prayer meetings and small groups at their homes.  We think those rights should be protected for everyone, whether it's a Christian family or a Jewish congregation."  The Liberty Institute’s brief in opposition to the association’s motion for a temporary injunction can be accessed here.  For local coverage of the story, click here.

U.S. Supreme Court Mulls Petition for Certiorari Involving RLUIPA Land Use Case
Posted on 4/10/14 by Evan Seeman and Dwight Merriam          

The United States Supreme Court has never granted certiorari in a Religious Land Use and Institutionalized Persons Act (RLUIPA) case involving land use.  But might it now?  Eagle Cove Camp & Conference Center, Inc. (Eagle Cove), whose RLUIPA claims were rejected by the Seventh Circuit, requests in its petition for a writ of certiorari that the high court provide clarity regarding the varying interpretations and applications of RLUIPA among the Courts of Appeal.

In our previous post, we discussed Eagle Cove’s RLUIPA claims arising out of its zoning application to operate a year-round Bible camp on 34 acres of land it owned on Squash Lake in Woodboro, Wisconsin.  The Seventh Circuit in Eagle Cove Camp & Conference Center, Inc. v. Town of Woodboro (7th Cir. 2013), rejected Eagle Cove’s claims that the County of Oneida and the Town of Woodboro violated RLUIPA’s substantial burden, equal-terms, and total exclusion provisions in denying Eagle Cove’s application.  Now, Eagle Cove is requesting that the Supreme Court review the Seventh Circuit’s decision both (1) because it erred in concluding there were no RLUIPA violations and (2) to resolve the conflict among the Courts of Appeal for this and apply RLUIPA in the land use context.

Eagle Cove challenges the Seventh Circuit’s decision that the denial of its application did not substantially burden its religious exercise because it could operate the camp elsewhere.  Although the Seventh Circuit found that Eagle Cove’s religion requires it to operate the year-round Bible camp on the subject property, the court concluded that because Eagle Cove could operate the camp elsewhere its religious practice was not substantially burdened by the zoning denial.  Eagle Cove points out the apparent inconsistency in the Seventh Circuit’s decision:

The Court of Appeals also held that no substantial burden within the meaning of [RLUIPA] upon Petitioners’ religious exercise arose because the Petitioners “had the opportunity to seek out other properties on which to build their camp” elsewhere in the County other than the Town of Woodboro “but chose not to do so.”  As noted above, the court acknowledged that forgoing the conversion of their own property to religious use in favor of such a search for other properties elsewhere in the County would have been contrary to their religious beliefs.

It also notes the split among the Courts of Appeal in their interpretation of what constitutes a substantial burden on religious exercise under RLUIPA.  At one end of the spectrum is the Seventh Circuit, which considers whether the alleged offensive conduct has rendered the religious institution’s religious practice “effectively impracticable.”  Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003).  On the other end of the spectrum, the Second Circuit has found a substantial burden on religious exercise where the land use agency rejected a land use application on arbitrary grounds, which “coerced” the religious institution to modify its religious practice.  Westchester Day School v. Village of Mamaroneck, 504 F.3d 338 (2d Cir. 2007).

It next asserts that the Seventh Circuit, in analyzing its equal-terms facial challenge, “adopted an extremely narrow view that the only non-religious ‘assembly or institution’ to be compared with the religious assembly or institution at issue is the ‘most comparable,’ in this case secular recreation camps.”  Further, Eagle Cove notes the split among the Courts of Appeal in their varying approaches to determine secular comparators under equal-terms challenges.  For example, the Eleventh Circuit has adopted an expansive approach to determine comparators in which it considers whether a specific use constitutes an “assembly” use as that term is understood in its “natural and ordinary” meaning, Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004), whereas the Third and Ninth Circuits look to the specific use in light of its “regulatory purpose” or “accepted zoning criteria,” respectively.  Lighthouse Institute for Evangelism v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007); Centro Familiar Cristiano Buenas Neuvas v. City of Yuma, 651 F.3d 1163 (9th Cir. 2011).   Even though the Seventh Circuit, in River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367 (7th Cir. 2010), established a variant of the Third Circuit’s test in which it examines the “[objective] zoning criteria rather than the purpose behind the land use regulation,” the court in Eagle Cove instead looked for the “most comparable” secular use and disregarded other permitted secular uses.

Finally, Eagle Cove argues that the Supreme Court should review the Seventh Circuit’s interpretation of RLUIPA’s total exclusion provision.  The Town of Woodboro ceded zoning authority to the County of Oneida, but retained certain local powers, including the ability to advise the County as to zoning matters.  In rejecting Eagle Cove’s total exclusion claim, the Seventh Circuit considered whether there were other locations for Eagle Cove to operate its camp in Oneida County rather than the Town of Woodboro.  In its petition for a writ of certiorari, Eagle Cove cautions that this finding could establish dangerous precedent:

The holding of the Court of Appeals is that RLUIPA’s total exclusion provision is not transgressed if the County totally excludes all religious assembly uses from all but one of the nineteen towns lying within the County and permits only one type of religious assembly use (e.g., assembly at a religious shrine) in the twentieth town.  The District Court, whose “total exclusion” interpretation the Court of Appeals fully adopted, admitted this result would pertain from its interpretation of the statute.  Under this reasoning, a state government exercising direct zoning authority over its entire jurisdiction could totally exclude all religious assembly uses from the entire state except for just one subordinate jurisdiction, allow just one type of religious assembly use (e.g., assembly at religious shrines) in that one subordinate jurisdiction, and yet be found not to have transgressed RLUIPA’s “total exclusion” provision, even though houses of worship and religious educational institutions were banned from the entire state.

This raises the issue of the interpretation of the term “jurisdiction” under the total exclusion provision, which provides: “No government shall impose or implement a land use regulation that – (A) totally excludes religious assemblies from a jurisdiction . . . .”

Eagle Cove’s petition outlines clearly the inconsistencies among the Courts of Appeal in their interpretation of RLUIPA.  These varying approaches may cause confusion for all interested parties, particularly in circuits where the law is less developed than others.  At some point, the Supreme Court may have to weigh-in to provide clarity.  Whether it will do so in the context of Eagle Cove’s case remains unclear.

Eagle Cove’s petition can be accessed here.  The County of Oneida and Town of Woodboro have filed waivers indicating that they will not file briefs in opposition to the petition.

Second Circuit: New York City Board of Education Can Refuse to Allow Religious Worship Services in School Facility After School Hours
Posted on 4/5/14 by Evan Seeman and Dwight Merriam          

In a potentially significant decision, the U.S. Court of Appeals for the Second Circuit, in The Bronx Household of Faith v. Board of Education of The City of New York, No. 12-2730-cv (2d Cir. 2014), has ruled that the Board of Education of The City of New York (“Board”) did not violate the Free Exercise and Establishment Clauses of the First Amendment when it permitted certain groups to use school facilities outside school hours, but would not allow religious worship services.

The Second Circuit, in reversing the District Court, rejected the Bronx Household congregation’s argument that the Board’s policy violated the Free Exercise clause because the congregation could not afford to gather as a full congregation at any other location without having to curtail other religious practices:

In the District Court’s view, because Bronx Household and its congregants have a constitutional right to worship as they choose without interference from government, and cannot afford to pay for a large enough site to accommodate the entire congregation, the Free Exercise Clause obligates the Board to provide them with a subsidized facility in which to exercise the right.  The Free Exercise Clause, however, has never been understood to require government to finance a subject’s exercise of religion.

In addition, the Second Circuit clarified that strict scrutiny review was not appropriate in this case because the Board’s purpose in prohibiting religious worship services is to avoid the perception that it has endorsed one religion over another:

[The Board was] motivated by the government entity’s reasonable interest in complying with the Establishment Clause. . . .  [R]ules and policies designed to keep a governmental entity in conformity with its obligations under the Religion clauses must of necessity focus on religious subject matter.  If the focus is not religious, the Religion Clauses have no application.  Such focus on religion is neither an invidious discrimination nor constitutionally suspect.  To the contrary, it is inevitable.

The Second Circuit observes, however, that it does “not mean to imply that merely by claiming the motivation of observing interests favored by the Establishment Clause a governmental entity gets a free pass, avoiding all scrutiny.”  Rather, the court “recognize[s] that a school authority’s prohibition of a religious practice, even if explained as an attempt to comply with constitutional responsibilities, can in some circumstances represent a suspect discrimination of religion, which violates one or both Religion Clauses.”

Judge Walker dissented from the majority opinion, concluding that the Board policy “violates the Free Exercise Clause because it plainly discriminates against religious belief and cannot be justified by a compelling government interest.”  He opines that the policy is neither neutral nor generally applicable, as it burdens and targets only religious conduct.  Further, in Judge Walker’s view, “forcing the Bronx Household to relocate or suspend its services sufficiently burdens the free exercise of religion. . . .”  For these reasons, he concludes that strict scrutiny review must apply, and believes that “the Board’s interest in enforcing [the policy] to avoid an Establishment Clause violation is not compelling because it does not violate the Establishment Clause to allow Bronx Household to worship in public school facilities made broadly available to the public on neutral terms.”

Reportedly, a petition for a writ of certiorari to the United States Supreme Court may be in store.

City Council Members in Des Plaines, Illinois Immune from Islamic Organization’s Religious Discrimination Claims
Posted on 3/31/14 by Evan Seeman and Dwight Merriam          

In an important decision for municipal officials across the country, the United States District Court for the Northern District of Illinois, in American Islamic Center v. City of Des Plaines, No. 13-C-6594 (N.D. Ill. 2014), ruled that city council members alleged to have discriminated against an Islamic organization in its application to rezone certain property are entitled to absolute legislative immunity.

The American Islamic Center (AIC) provides religious and educational services to Muslims throughout the Chicago metropolitan area.  The AIC, which had been looking for a permanent facility to conduct these activities since 2011, contracted to buy certain property in Des Plaines, Illinois in a manufacturing zoning district to conduct these activities in February 2013.  The contract to purchase the property was conditioned on it being rezoned to an industrial zoning district where religious and educational activities are permitted.  In June 2013, the Des Plaines Plan Commission conducted a public hearing at which it found that rezoning the property would neither significantly harm traffic and parking patterns nor require the expansion of public facilities.  It recommended that the Des Plaines City Council adopt the proposed amendment.  In July 2013, however, the City Council denied the proposed amendment by a vote of 5 to 3.

The AIC sued the City of Des Plaines and the five members of the City Council in their individual capacities who voted against the rezoning request.  The AIC sued under RLUIPA, the United States Constitution, and state law.  The only claims brought against the City Council members were violations of the free exercise of religion and the equal protection clause, under the First and Fourteenth Amendments to the U.S. Constitution. 

The District Court found in favor of the City Council members in their motion to dismiss the claims brought against them because they were entitled to absolute legislative immunity.  The AIC argued that the City Council members’ actions were administrative or executive in nature and not entitled to immunity, as opposed to legislative acts taken in their legislative capacity which are entitled to immunity.  In concluding that the City Council members were acting legislatively, thus entitling the members to absolute legislative immunity, the District Court observed:

There is no question that the denial of the proposed zoning amendment had its most direct and immediate impact on AIC.  But the impact of the denial was not limited to AIC.  It also affected the property’s owner, who lost the opportunity to sell the property to AIC.  In addition, the property that AIC wished to buy will remain zoned for manufacturing activity regardless of who comes to own it, unless and until the city council’s actions are properly characterized as legislative, not executive or administrative.  When the council denied the zoning amendment and passed the later resolution rejecting the amendment, it was engaging in legislative acts.

Although the court in this instance found that the local officials were entitled to absolute immunity because they were acting in their legislative capacity, what is “legislative,” “administrative,” or “quasi-judicial” may not always be obvious and varies among the states.  In view of the Des Plaines decision, local government lawyers may wish to review the classification of decision-making and its impact on immunity, and then spend some time briefing local decision-makers. 

City’s Prohibition of Donation Bins Prompts Constitutional Lawsuit
Posted on 3/18/14 by Evan Seeman and Dwight Merriam          

The City of St. Johns, Michigan is facing a lawsuit – Planet Aid v. City of St. Johns, Michigan, Docket No. 1:14-cv-00149 (W.D. Mich. 2014) – as a result of an amendment to its zoning ordinance to prohibit donation bins throughout the City.  The City justifies its actions on the ground that several “for-profit companies” were operating donation bins in the City without first obtaining permission to do so.  The Ordinance states that its purpose is to prevent blight, protect property values, avoid nuisances and criminal activity, and ensure the safe and sanitary maintenance of properties in the City.

The City is not being sued by a for-profit corporation; instead, it is being sued by Planet Aid, a non-profit corporation whose mission it is to reduce poverty and aid vulnerable children.  Planet Aid seeks to achieve its mission in part by placing donation bins at various sites in Michigan and other states at which it collects clothing, shoes, and textiles.  It then sells the donated items and uses the proceeds to fund development programs in impoverished communities in Latin America, Africa, and Asia.

In furtherance of its mission, in December 2012, Planet Aid placed donation bins at two locations in the City.  Approximately one month later, the City demanded that the donation bins be removed because they allegedly constituted a “nuisance.”  In February 2013, the City removed the bins and refused to allow Planet Aid to challenge its findings through an appeal to an administrative agency.  In December 2013, the City discussed a proposed ordinance to prohibit the operation of donation bins within the City.  The Ordinance passed on January 27, 2014 and prohibits any organization – for-profit and non-profit – from operating donation bins within the City.

Notably, the Ordinance includes a “grandfather” clause to exempt donations bins that existed prior to its adoption.  Because Planet Aid’s donation bins were removed by the City prior to the adoption of the Ordinance, it is unable to take advantage of the “grandfather” clause.

Planet Aid argues that the City’s actions violate both the state and federal constitutions.  It alleges that the Ordinance is unconstitutional because it prohibits Planet Aid from receiving charitable donations, an activity protected by the First Amendment to the U.S. Constitution.  Charitable organizations that operate permanent structures, such as Salvation Army and Goodwill, are unaffected by the Ordinance and can solicit and accept charitable donations.

Planet Aid seeks a temporary restraining order and preliminary injunction to enjoin the City from prohibiting the operation of donation bins.  Argument is scheduled for April 29, 2014.

Although this case does not involve a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the mission of many religious institutions is to provide free food, clothing, and other charitable services to the poor and homeless.  Many do so through the use of donation bins such as those outlawed by St. Johns, Michigan.  Planet Aid’s lawsuit may serve as an important reminder for municipalities to first consider whether their contemplated actions may be susceptible to RLUIPA and/or constitutional challenges and, second, whether they have a compelling governmental interest to justify such actions.  If municipalities fail to fully understand the risks associated with their actions, they may be in for a costly legal battle.

Religious Group Seeking Year-Round Bible Camp Petitions United States Supreme Court to Review Seventh Circuit’s Decision Rejecting RLUIPA Claims
Posted on 3/14/14 by Evan Seeman and Dwight Merriam          

We previously reported on the Seventh Circuit’s decision in Eagle Cove Camp & Conference Center v. Town of Woodboro, Wisconsin (7th Cir. 2013) in which plaintiff Eagle Cove sought to construct a year-round Bible camp in a residential zone on Wisconsin’s Squash Lake.  The Seventh Circuit found that the Town of Woodboro’s denial of Eagle Cove’s applications did not violate RLUIPA’s total exclusion, substantial burden, unreasonable limitation, and equal terms provisions.  Our previous post about the Seventh Circuit’s decision is available here.

On March 10, 2013, Eagle Cove filed a petition for certiorari with the United States Supreme Court seeking review of the Seventh Circuit's decision.  We will report back on the substance of the petition for certiorari after we have had a chance to review it.  The petition may be accessed here.

As we recently noted, the United States Supreme Court has never considered a RLUIPA case in the land use context, although earlier this month it agreed to review an RLUIPA prisoner case.

United States Supreme Court to Hear RLUIPA Case Involving Prisoner’s Request to Grow Beard in Accordance with Muslim Faith
Posted on 3/13/14 by Evan Seeman and Dwight Merriam          

Although not a land use case, a pending prisoner’s RLUIPA claim bears following because it may ultimately shed some light on how the U.S. Supreme Court interprets “compelling interest” and “least restrictive means.”

Gregory Holt a/k/a Abdul Maalik Muhammad is serving a lifetime sentence in Arkansas 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 allows only trimmed mustaches and ¼ inch 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.

Mr. Holt is suing under the Religious Land Use and Institutionalized Persons Act, alleging that prohibiting him from growing a beard substantially burdens his religious exercise for which the prison has no compelling interest.  Mr. Holt sought to grow a ½ inch beard as a compromise and obtained temporary relief from the District Court to do so.  The District Court later concluded, however, that the Arkansas Department of Corrections 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 United States Court of Appeals for the Eighth Circuit found that the Arkansas Department of Corrections 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.

On September 27, 2013, Mr. Holt petitioned the United States Supreme Court for a writ of certiorari to review the decision of the Eighth Circuit.  In the petition, Mr. Holt notes other court decisions that have stricken prison policies banning beards.   The handwritten petition is available here.  The Arkansas Department of Corrections opposed Mr. Holt’s petition by stating that weapons, such as homemade darts, and cellphone SIM cards could be concealed in ½ inch beards.  They also stated they did not wish to monitor the lengths of inmates’ beards.

The Supreme Court agreed to consider the case, limited to the following issues:

(1) whether the Arkansas Department of Corrections’ no beard growing policy violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) or the First Amendment; and

(2) whether a ½ inch beard would satisfy the security goals sought by the policy.

Although the Supreme Court has never considered a RLUIPA case in the land use context, Holt v. Hobbs may offer guidance as to the high court’s treatment of the “compelling interest” and “lease restrictive means” components of the substantial burden provision.

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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