In The NewsFlorida Inmate Requesting Circumcision Could Bring Suit Under RLUIPA
Posted on 6/19/13 by Evan Seeman and Dwight Merriam
Florida inmate Pablo Manuel Diaz, serving a life sentence in a Blackwater Correctional Facility in Milton, Florida for manslaughter, aggravated battery with a deadly weapon, and kidnapping, has submitted a request to the Florida Department of Corrections (DOC) that he be circumcised by a mohel in the prison’s infirmary. Diaz, whose mother is Jewish, reportedly has been active in the Jewish prison ministry. Brit Yosef Yitzchak, an organization that has performed 50,000 circumcisions across the world, has offered to circumcise Diaz free of charge. This is Diaz’s second request for a bris; his first request was denied by the warden.
In his second request for a bris, Diaz is being represented by law students from Stanford Law School’s Religious Liberty Clinic, recently formed to “offer participating students a dynamic, real-world experience representing a diverse group of clients in disputes arising from a wide range of religious beliefs, practices, and customs in a variety of circumstances.” The Clinic also represents religious organizations in zoning disputes. Learn more about Stanford Law School’s Religious Liberty Clinic here and here.
Diaz is awaiting a response from the DOC regarding his request. The DOC may think twice about denying Diaz’s request, as it is currently being sued by another inmate who was denied kosher meals in the case Rich v. Florida Department of Corrections, No. 12-11735 (11th Cir. 2013). The inmate in that case is serving a life sentence for murdering his parents. Here is more information about that case http://blogs.wsj.com/law/2013/05/15/man-who-murdered-parents-wins-kosher-diet-suit/. The official decision of the Eleventh Circuit in Rich v. Florida DOC is available at http://www.ca11.uscourts.gov/opinions/ops/201211735.pdf.
If Diaz’s request is denied, it is conceivable, if not likely, that he would commence litigation under RLUIPA and/or the First Amendment’s guarantee of the free exercise of religion in pursuit of a circumcision, a sincerely-held religious belief in the Jewish faith. See Genesis 17:10-14 (“Every male among you shall be circumcised.”). You can read more about Diaz’s request for a circumcision at http://www.sun-sentinel.com/florida-jewish-journal/news/palm-beach-county-news/fl-jjps-circumcision-0612-20130611,0,7702040.story.
Click here to see Pablo Manuel Diaz’s mug shot.
New York Federal Court Dismisses RLUIPA Suit Involving Faith-Based Rehabilitation Center
Posted on 6/10/13 by Evan Seeman and Dwight Merriam
Candlehouse Inc. v. Town of Vestal, New York, No. 3:11-cv-0093 (DEP) (N.D. NY 2013), involves Plaintiff Candlehouse Teen Challenge (Candlehouse), a Christian-based rehabilitation center that seeks “to restore individuals who struggle with life controlling problems such as alcohol abuse and/or who struggle with emotional disorders.” Opinion, p. 3. It is one of 234 accredited Teen Challenge programs operating across the nation with the purpose of allowing its residents “to live together with freedom, peace and joy.” Id. at 4. Candlehouse’s students are not chemically dependent, but “have demonstrated an inability to live independently and abstain from addiction in the long-term and/or live without support as a result of an emotional disability or illness.” Id. “The goal of the Candlehouse program is to restore students suffering from the disabling effects of addiction or mental health issues to a point where they are capable of living independently, finding and maintaining employment, mending relationships with family members, and caring for themselves.” Id. at 5.
Candlehouse’s students are generally enrolled in its program for twelve to thirty-six months. They live in a family-like environment in which they participate in Bible study, religious worship, life skills classes, work assignments, community projects, and free time. The students live, sleep, cook, and eat together. Candlehouse prefers to locate its facilities in residential neighborhoods, which its claims allows its students to go outdoors and motivates them to abstain from substance abuse.
Candlehouse, which has operated in New York for more than seventeen years, sought to combine its residential campus and work training programs with the religious component of its Teen Challenge programs at one central location. In September 2008, it purchased from the Episcopal Diocese of Syracuse two properties in Vestal, New York that had been a church campus for the previous fifty years (the “Property”). The proposed residential program at the Property would support up to twelve students, two staff, and a housemother.
The Property is located in a residential zoning district (the “R-1 Zone”) in which the following uses, among other uses, are permitted:
Boarding and/or rooming house providing accommodations, for not more than two (2) transient roomers, provided that off-street parking requirements can be met . . .
Church and other place of worship, including Sunday school building and rectory, provided said lot has a minimum frontage of one hundred fifty (150) feet, a minimum depth of one hundred fifty (150) feet, and contains a minimum of twenty-two thousand five hundred (22,500) feet.
The R-1 Zone prohibits the following uses, among others: (1) “Boarding house or rooming house”; (2) “Boarding and/or rooming house providing accommodations for not more than four . . . nontransient roomers and provided that off-street parking requirements are met”; (3) “Eleemosynary institution”; (4) “Multiple family dwelling”; (5) “Nursing or convalescent home or sanitarium”; (6) and “Two-family dwelling or modular home.”
When Candlehouse inquired of the Town’s Code Enforcement Officer (the “CEO”) about using the Property as a church and residence for its students, the CEO advised Candlehouse that temporary housing is not a permitted use in the R-1 Zone. Thereafter, at a public meeting of the Vestal Town Board, the Town’s attorney opined that the proposed use would be inconsistent with the R-1 Zone.
As neighbors began to voice concerns, Candlehouse held a neighborhood meeting in an attempt to assuage those concerns. Supporters, opponents, and even four members of the Town Board attended the informal meeting. Sometime after the meeting, Candlehouse’s attorney wrote to the CEO stating that Candlehouse sought to use the Property only as a church and rectory, defining rectory as “a residence for church personnel.” The CEO replied that although a church use is allowed in the R-1 Zone, the proposed residence “with twenty-four hour supervised, community-living accommodations and parental-style leadership for students, did not qualify as a rectory.” Id. at 10. Candlehouse’s attorney again wrote to the CEO, claiming that the proposed use of the Property constituted a “family/functional equivalent of a family use under the Town of Vestal Code.” Id. The CEO responded that, in his view, Candlehouse’s proposed use did not constitute a family/functional equivalent and he could not permit the use.
On March 25, 2010, the Town’s Zoning Board of Appeals (the “ZBA”) conducted a public hearing to consider Candlehouse’s proposed use of the Property. The ZBA found that Candlehouse did not meet the definition of the functional equivalent of a family under the Town’s zoning code. In particular, it concluded that “(1) the proposed assembly of students does not resemble a traditional family unit; (2) it is anticipated that the group will live and cook together as a single housekeeping unit; (3) Candlehouse students are anticipated to be transient in nature, rather than permanent, entering and leaving as they are either rehabilitated or expelled; and (4) the proposed bedroom would not be a ‘conventional’ bedroom but instead would contain rows of bunks for all students in one large room.” Id. at 13.
On May 5, 2010, Candlehouse argued to the Town Board, through counsel, that it was protected by the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA), and formally requested that the Town make a reasonable accommodation to allow it to operate at the Property. Specifically, Candlehouse requested that the Town waive the family requirement under its zoning code or, in the alternative, amend the zoning code to allow the desired use. In the litigation described below, Candlehouse argues that two letters from the Town’s attorney are in effect a denial of its request. The Town disputes this.
On January 26, 2011, Candlehouse sued the Town, alleging violations of (1) RLUIPA; (2) the FHA; and (3) the ADA. During the pendency of the lawsuit, Candlehouse has used the Property for various church-related uses, but has carried out the residential component of its program elsewhere. As a result, it has had to transport students each day between these locations. After the completion of discovery, Candlehouse and the Town filed competing motions for summary judgment, with the Town seeking dismissal of all of plaintiff’s claims and plaintiff seeking partial summary judgment as to its intentional discrimination and reasonable accommodation claims under the FHA and the ADA.
Candlehouse alleged that the Town’s conduct imposed a substantial burden on its religious exercise in violation of RLUIPA, which has been held by the Second Circuit to mean “a government action . . . [that] coerces the religious institution to change its behavior.” Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 349 (2d Cir. 2007). The District Court stated that for a plaintiff to establish a prima facie violation of RLUIPA, the plaintiff must show that the imposition or implementation of a land use regulation has (1) imposed a substantial burden (2) on the religious exercise (3) of a person, institution or assembly. If a plaintiff is able to establish a prima facie case, the burden shifts to the defendant to prove that the land use regulation is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.
The District Court found that Candlehouse had failed to provide any evidence to support a finding that the Town’s conduct substantially burdened its religious exercise. Although there was evidence that Candlehouse’s program was a form of religious exercise, Candlehouse failed to provide evidence that the Town’s denial of its use of the Property forced it to modify its religious behavior in any way. In particular, the zoning ordinance permits Candlehouse to operate a residential facility for up to five unrelated persons. Candlehouse, however, has not shown how precluding it from housing an additional seven students has “coerce[d] it to change how it operates its program in relation to its religious exercise.” The Court also found unpersuasive Candlehouse’s argument that it is financially burdened by operating two separate facilities because it ignores that it will have to operate two separate properties even if allowed to use the Property (400 and 401 Mirador Drive). Accordingly, the Court granted the Town’s motion for summary judgment on this claim.
FHA & ADA Claims
The FHA makes it unlawful “[t]o discriminate in the sale or rental, or otherwise to make unavailable or deny, a dwelling to any buyer or renter because of a handicap[.]” 42 U.S.C. § 3604(f)(1). The FHA defines “discrimination” as “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling[.]” 42 U.S.C. § 3604(f)(3)(b). There are three types of claims under the FHA and the ADA: (1) intentional discrimination or disparate treatment; (2) disparate impact; and (3) failure to make a reasonable accommodation.
Similarly, the ADA prohibits discrimination on the basis of disability by public entities: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12131.
To prevail on a claim under the FHA and the ADA, a plaintiff must establish that it is “handicapped” or “disabled” as defined by the ADA. “To demonstrate a disability under [the FHA and the ADA], a plaintiff must show: (1) a physical or mental impairment which substantially limits one or more major life activities; (2) a record of having such an impairment; or (3) that [he is] regarded as having such an impairment.” Reg’l Econ.Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 45, 46 (2d Cir. 2002).
Candlehouse and the Town contest whether Candlehouse’s students are “handicapped” or “disabled” under the FHA and the ADA. The Second Circuit has held that while “[a]lcoholism, like drug addiction, is an ‘impairment’ under the definitions of a disability as set forth in the FHA, [and] the ADA, . . . mere status as an alcoholic or substance abuser does not necessarily imply a ‘limitation’ under the second prong of that definition.” Id. at 46-47.
According to the District Court, the parties have asked it to determine how many of Candlehouse’s students must be found “disabled” or “handicapped” to be entitled to relief under the FHA and the ADA. Not all of Candlehouse’s students are alcohol or substance abusers. Rather, Candlehouse assists women with “life controlling issues,” a term not defined by the record. Thus, the District Court concluded that for Candlehouse to be entitled to relief under the FHA and the ADA, it must establish that a majority of its students are disabled. However, the parties have submitted information about only eleven of Candlehouse’s 110 students. Thus, even though there was evidence of only eleven students, the District Court found that there existed a genuine issue of material fact precluding the entry of summary judgment in favor of plaintiff on any of its FHA or ADA claims.
Intentional Discrimination Theory
Under FHA and ADA intentional discrimination claims, a plaintiff must establish a prima facie case by “present[ing] evidence that animus against the protected group was a significant factor in the position taken by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive.” Id. at 49. If a plaintiff is able to make out a prima facie case, “the burden of production shifts to the defendants to provide a legitimate, nondiscriminatory reason for their decision.” Id. Although the ZBA’s written decision to deny Candlehouse’s proposed use of the Property is facially neutral, focusing on the zoning ordinance’s definition of family, the District Court concluded that the ZBA Chairman’s acknowledgement that whether Candlehouse may operate in the area has created “a lot of issues” for the community indicates that he possessed some awareness of the community’s feelings in opposition to Candlehouse and, therefore, shows that the ZBA was not insulated from the community’s disapproval of Candlehouse. Based on this, the District Court concluded that there was a genuine issue of material fact as to whether the government was motivated by discriminatory intent in denying the request, precluding the entry of defendant’s motion for summary judgment on this claim.
Disparate Impact Theory
“To establish a prima facie case under [the disparate impact] theory, the plaintiff must show: (1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant’s facially neutral acts or practices.” Id. at 52-53. “To prove that a neutral practice has a significantly adverse or disproportionate impact ‘on a protected group, a plaintiff must prove the practice actually or predictably results in discrimination.’” Opinion, p. 37 (citation omitted). Plaintiff must also prove a “causal connection between the facially neutral policy and the alleged discriminatory effect.” Id. (citation omitted). If a plaintiff is able to satisfy these requirements, the burden shifts to the defendant to prove “that its actions furthered, in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect.” Id. (citation omitted).
The District Court granted summary judgment in favor of the Town on Candlehouse’s disparate impact theory claims under the FHA and the ADA due to the lack of statistical or other reliable evidence to support Candlehouse’s claim. Specifically, Candlehouse provided no statistical evidence to demonstrate that potential candidates suffered from a housing shortage as a result of the Town’s policies. Nor did Candlehouse provide evidence comparing itself to another group that does not suffer from the same impairment to show that its students have a greater need for housing. Because not all of Candlehouse’s students are recovering drug addicts or substance abusers, a comparison between a group of only alcoholics or only substance abusers is inappropriate. For this reason, Candlehouse cannot show that the Town’s admittedly facially neutral zoning ordinances discriminate against its students as a whole, who suffer from varying needs, and not a group of only alcoholics or drug addicts. Finally, Candlehouse has admitted in its complaint that there are other available group homes in the relevant residential areas where some of its students could live, demonstrating that the facially-neutral ordinance does not discriminate against at least some of its students.
Pursuant to the FHA and the ADA, “a governmental entity engages in a discriminatory practice if it refuses to make a ‘reasonable accommodation’ to ‘rules, policies, practices or services when such accommodation may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling.’” Id. at 43 (citation omitted). Under a reasonable accommodation claim, a plaintiff “must show that, but for the accommodation, [its residents] likely will be denied an equal opportunity to enjoy the housing of their choice.” Id. at 44 (citation omitted). Further, “[t]he [defendant] is not required to grant an exception for a group of people to live as a single family, but it cannot deny the variance request based solely on plaintiffs’ handicap where the requested accommodation is reasonable.” Id. at 44-45 (citation omitted). A defendant must take modest, affirmative steps to accommodate the handicapped if such steps do not cause defendant to suffer an undue hardship or substantial burden. The District Court declined to grant summary judgment in favor of the Town on this claim because there was at least some evidence to show that some of the members of the Board were biased against Candlehouse. In particular, at least two members of the Board spoke out against Candlehouse’s proposed use of the Property, with one member threatening to rezone the area to prohibit Candlehouse moving to the neighborhood.
The District Court opinion in Candlehouse, Inc. v. Town of Vestal, New York can be accessed at http://rluipa-defense.com/docs/Candlehouse%20v.%20Town%20of%20Vestal.pdf.
Prisoner Sues Under RLUIPA for Conjugal Visits
Posted on 5/24/13 by Evan Seeman and Dwight Merriam
The Religious Land Use and Institutionalized Persons Act (RLUIPA) applies in two contexts: (1) where a religious institution or individual seeks zoning approval or receives a zoning decision, and (2) where inmate seeks certain accommodations to fulfill his or her religious beliefs. The following is a tale of the latter situation in which an inmate in California state prison used RLUIPA in an attempt to be allowed conjugal visits with his wife.
Madero Pouncil is a California inmate serving a life sentence without the possibility of parole in Mule Creek State Prison. Pouncil is a Muslim who claims that he could not comply with his religious duties under Islam absent conjugal visits with his wife. Thus, in 2009, Pouncil requested conjugal visits with his wife. Prison officials, however, denied this request pursuant to a California Department of Corrections and Rehabilitation (CDCR) regulation prohibiting family visits for specific categories of inmates, including those sentenced to life in prison without the possibility of parole, such as Pouncil. Down, but not out, Pouncil filed a grievance and then a “Second Level” appeal to challenge the prison officials’ denial of his request for conjugal visits, but these were also denied.
Later, Pouncil divorced his wife and remarried in 2007. In 2008, Pouncil requested conjugal visits with his second wife, but prison officials again denied his request pursuant to the same state regulation prohibiting family visits to inmates serving lifetime sentences without the possibility of parole. Pouncil filed administrative appeals of the 2008 denial and exhausted all administrative remedies, but was denied conjugal visits at each level of review.
Two questions immediately come to mind. First, how on earth was Pouncil able to find, court, and marry his second wife behind prison walls? For further reading on this subject, see What Draws People to Marry Prison Inmates, by clicking here. Second, and more pertinent, can an inmate really challenge a prison official’s denial of access to conjugal visits as a form of religious exercise under RLUIPA?
In 2009, Pouncil brought a lawsuit pro se against the Director of the California Department of Corrections and Rehabilitation, the Facility Captain, and the Warden of the prison. Pouncil claimed that the refusal to permit him conjugal visits with his wife violated the United States Constitution and RLUIPA on the ground that “he is a Muslim, that marriage is one of the most important institutions in Islam and is incumbent on every Muslim, and that the main duties of a Muslim to his or her spouse are to consummate their marriage to solidify the validity of the marriage and to have sexual relations as a form of worship.” Pouncil’s Complaint alleges that he brought the lawsuit against the CDCR “for implementing a rule to the California Code of Regulation (3177(b)(2))” for violating his right to the free exercise of religion. The Complaint adds:
“. . . the California Code of Regulation . . . violates Petitioner[’s] Constitutional right to practice his religion and be married as a Muslim under the RLUIPA act. . . . Petitioner all so [sic] claims a violation of his 14th. and 8th. Amendment rights. . . . this rule dose [sic] not provide intimate time (family visiting for Muslim Inmates serving a life without parole term, wherefore making it impossible for Petitioner to consummate his marriage/have sexual relations with his wife as commanded by (ALLAH) and affirmed in the teaching of prophet Muhammad. [A]nd by denying Petitioner the right to perform his religious duties to his wife or potential wife is to deny him his right to be married as a Muslim.”
Pouncil’s Complaint does not expressly refer to his applications for conjugal visits in 2002 or 2008, or the denial of same, though it does describe the administrative process taken after each conjugal visit denial. Pouncil sought as relief: “Reinstate Family Visits for Lifers, and Life without the possibility of parole Inmate so I can fulfill my duties religiously to my wife, and guide my children in my family with direct understanding of my faith.”
The defendants filed a motion to dismiss Pouncil’s Complaint, arguing that his claims were time-barred by the statute of limitations. Specifically, the defendants alleged that Pouncil’s claims were facial challenges testing the legality of California’s regulation, in contrast to challenging the application of that regulation to Pouncil based on the 2008 conjugal visit denial with his second wife. The magistrate judge agreed, concluding that Pouncil’s claims amounted to challenges of the prison regulation itself without regard to whom he was married at the time. The magistrate judge therefore recommended that Pouncil’s claims be dismissed as time-barred. The district judge, however, declined to adopt the magistrate judge’s recommended findings. Instead, the district judge found that Pouncil’s Complaint alleged an injury from the 2008 denial of the requested conjugal visit, not the 2002 denial, and that the 2008 denial was an individual, actionable injury. Accordingly, the Court found Pouncil’s claims were not time-barred and denied the defendants’ motion to dismiss.
Defendant James Tilton, Director of the California Department of Corrections appealed the District Court’s decision to the Ninth Circuit. Tilton argued that as a facial challenge to the regulation, Pouncil’s claims, which had 2 year (§ 1983 claims) and 4 year (RLUIPA claims) statute of limitations periods, respectively, were filed too late. Tilton argued that: “[a]ll of the allegations in the Complaint regarding Pouncil’s inability to have sex with his second wife are merely the delayed, but inevitable, consequence of the original decision that he is subject to regulations preventing LWOP inmates from participating in conjugal visits.”
The Ninth Circuit has found that a statute of limitations commences on the date on which the plaintiff’s claim “accrues.” Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008). Thus, according to Tilton, Pouncil’s claims accrued in 2002 when he first filed a grievance regarding the denial of his 2002 request for a conjugal visit with his first wife, and the statute of limitations for his claims had run by the time he brought the lawsuit in 2009. Tilton further noted that Pouncil’s Complaint never even mentioned the 2008 conjugal visit denial and must therefore be construed as a facial challenge to the regulation.
The Ninth Circuit disagreed and affirmed the decision of the District Court. The Ninth Circuit construed Pouncil’s pro se complaint liberally, as it must, finding that Pouncil’s claims did not challenge the legality of the regulation, but rather challenged the 2008 denial of conjugal visits with his second wife. This, the Court found, could be seen from the following language in his complaint: “Reinstate Family Visits for Lifers, and Life without the possibility of parole Inmate [sic] so I can fulfill my duties religiously to my wife, and guide my children in my family with direct understanding of my faith.” (emphasis added). Pouncil’s failure to identify the 2008 denial was not dispositive of the nature of his claims. Although the Court did not address the merits of the claim, even if Pouncil is able to establish that the denial of conjugal visits imposes a substantial burden under RLUIPA on his religious exercise as a Muslim, the defendants may be able to show a compelling governmental interest in so doing if their actions were taken to protect the health and safety of the prison, its population, and its employees.
The Ninth Circuit’s decision is available at: http://cdn.ca9.uscourts.gov/datastore/opinions/2012/11/21/10-16881.pdf .
What is one supposed to make of this case, especially as it relates to land use and zoning applications and litigation? RLUIPA law, whether in the context of institutionalized persons or land use and zoning, is still evolving – the statute has been in existence for just over 12 years. While Mr. Pouncil’s attempt to use RLUIPA as a means to have sex with his wife as a form of religious worship may sound ridiculous to some, it is indicative of the statute’s far-reaching scope. Virtually any claimed religious belief or practice, so long as it is legitimate and sincerely-held, may fall within the purview of RLUIPA. Therefore, when faced with an applicant seeking zoning approval to accommodate a religious belief or practice, a municipality may wish to review the application with the understanding that it is very possible, if not probable, that the applicant may be protected under RLUIPA.
The other takeaway? Apparently, it is possible to find love from behind prison walls even after one is incarcerated.
FEDERAL COURT FINDS DALLAS ORDINANCE VIOLATES RELIGIOUS FREEDOM OF CHURCH MINISTERING TO HOMELESS
Posted on 5/17/13 by Evan Seeman and Dwight Merriam
The Religious Freedom Restoration Act
In 1993, Congress enacted the Religious Freedom Restoration Act (RFRA), which adopted the compelling interest test established in two prior U.S. Supreme Court cases (Sherbert v. Verner, 374 U.S. 398 (1936) and Wisconsin v. Yoder, 406 U.S. 205 (1972)). RFRA, which applied to both federal and state governments, prohibits a “[g]overnment from ‘substantially burdening’ a person’s exercise of religion even if the burden ‘(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’” City of Boerne v. Flores, 521 U.S. 507, 515-16 (1997). In 1997, the U.S. Supreme Court in Boerne found that RFRA was unconstitutional as applied to the states. Id. at 532-36. It remains in effect as to federal actions. Three years later, Congress enacted another federal law to overcome the problems as to applicability to state and local governments – the Religious Land Use and Institutionalized Persons Act (RLUIPA), which protects the religious freedom of (1) religious persons and institutions in the land use context and (2) prisoners.
Thirteen states, however, decided to take matters into their own hands by enacting state counterparts to RFRA. Texas is one of these states. The Texas Freedom Restoration Act (TRFRA) prohibits any governmental agency in Texas from “substantially burden[ing] a person’s free exercise of religion” unless the agency can “demonstrate that the application of the burden to the person . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that interest.” Tex. Civ. Prac. & Rem. Code § 110.003(a)(b).
Big Heart Ministries
Big Heart Ministries Association, Inc. (Big Heart) is a religious organization that serves and ministers to the unsheltered homeless population in Dallas, Texas. Big Heart was established in 1980 and believes that God and the Bible compel mankind to share food and prayer with the homeless. Big Heart is a church, but not in the traditional sense; instead of housing the church in a building, Big Heart is a “street church” that seeks to feed the homeless on the streets, where they often live. Edwin Don Hart, an ordained minister who established Big Heart, describes the homeless served by Big Heart as “street level people, and they’ve got to be reached where they are.”
Big Heart’s religious practice requires that each week it loads food and cookware into two trucks, one of which is equipped for food preparation, and travel to a feeding location to set up a “street church” to feed the poor. At the feeding location, Big Heart sets up large tents, generators, a propane stove, and pots and pans to be used for cooking. Big Heart typically has approximately 40 volunteers on site, 5 to 8 of whom have completed the City’s food safety course on food handling and storage. There is a worship service during each meal and everyone dines together. Big Heart also provides personal counseling and assistance to the homeless, such as help finding a job or getting in touch with their families. After each meal, Big Heart requires its patrons to pick up all of the trash to keep the property clean.
Rip Parker Memorial Homeless Ministry
Rip Parker Memorial Homeless Ministry (Rip Parker) is also a religious organization serving and ministering to the unsheltered homeless population in Dallas, Texas. Rip Parker’s philosophy is based on the religious belief that “if you see another person suffering, you help him right there, where he is. ‘You do not walk away; you pick him up, dress his wounds, and help him get on his way.’” “Rip Parker’s mission is to train its volunteers to find the hungry and homeless, provide them with nutritious meals, and develop a relationship with them, so over time, the volunteers can help the homeless become self-sufficient.” Rip Parker fulfills its religious mission by identifying the location of the homeless, going to them, and giving them food and comfort to begin to gain the homeless person’s trust, and develop a relationship with them in an attempt to alter or change their lives. Rip Parker describes this as a “very long process.”
Rip Parker feeds the homeless once each weeknight and twice on Saturdays. Each night, Rip Parker goes to 10 to15 different locations to feed the homeless. The volunteers “talk to [the homeless people] individually, one-on-one. [They] share with them,  take Bibles to them . . . [they] are constantly praying with them and sharing [their religious] beliefs with them, telling them that God loves them and trying to get them off the streets.”
Rip Parker serves the homeless through its mobile feeding site because it is difficult for the homeless to pack-up and carry their belongings to a central site. “The unsheltered homeless are very attached to their few belongings and it is difficult for them to leave that to go to a fixed feeding site.” Being mobile also allows Rip Parker’s volunteers to reach more people – approximately 60 to70 a night – people the shelters are unable to serve. It coordinates over 10,000 volunteers each year to help the homeless. At least one volunteer on-site feeding the homeless has completed the City’s food safety course.
City of Dallas’s Homeless Outreach Team
Like Big Heart and Rip Parker, the City of Dallas has undertaken measures to assist its homeless population. The City established a Crisis Intervention Unit under which there operates a Homeless Outreach Team made up of four former mental health professionals, whose job it is to link the unsheltered homeless with shelters, medical care, and other types of treatment. The Team’s goal is to “identify what is going on in these individuals’ lives and to connect them to treatment or shelter services.”
Unlike Big Heart and Rip Parker, the caseworkers never bring food to the homeless on the streets because they believe this would discourage the homeless from going to shelters. In other words, the City believes that the homeless are persuaded to leave the streets through promises of food and security. According to the City, the homeless individuals’ access to food, through such organizations as Big Heart and Rip Parker, inhibits its ability to persuade the homeless to leave the streets to receive services. The City seeks to “remove as much enabling as we possibly can.”
In 2005, the City enacted Dallas’s Food Establishment Ordinance, the stated purpose of which is “to safeguard public health and provide to consumers food that is safe, unaltered, and honestly presented.” Dallas City Code § 17-1.1; Tex. Admin. Code § 229.161 et seq. Section 17-1.6(5) of the Ordinance, known as the “Homeless Feeder Defense” provides that an organization does not have to comply with the Ordinance if it satisfies the following criteria: (1) obtain location approval from the City; (2) provide restroom facilities on-site; (3) have equipment and procedures for disposing of waste and washwater; (4) make available handwashing equipment and facilities, including a five-gallon container with a spigot and a catch bucket, soap, and individual paper towels; (5) register with the City (6) receive written approval from the property owner on whose property the homeless would be fed; (7) have a person present at all times who has completed the City’s food safety training course; (8) comply with food storage and transport requirements; and (9) ensure the feeding site is kept in a clean condition.
Big Heart attempted to comply with the Ordinance, but was unable to satisfy its requirements. Big Heart continued to feed the homeless despite non-compliance with Ordinance. Dallas police and code enforcement officials began to confront Big Heart’s volunteers at feeding sites and issued several notices of violation for allegedly operating in violation of the Ordinance. On one occasion, 13 police cars and police came to a feeding site and threatened volunteers with enforcement of the law. The presence and threat of police caused volunteers to stop volunteering. Ultimately, Big Heart was forced to terminate its services as a result of the Ordinance.
Rip Parker also was unable to comply with the Ordinance and has been issued hundreds of notices of violation. Police have confronted Rip Parker and its volunteers and made it very difficult to feed the homeless at different locations. The police would show up at feeding sites, aggressively engage the volunteers, and sometimes force them to leave. Rip Parker lost approximately 98% of all volunteers in recent years for fear of harassment by code enforcement officials. The homeless also feared harassment by the police, namely by having their belongings disposed of, or being sent to jail.
Big Heart and Rip Parker sued the City under TRFRA, alleging that the City’s actions in enacting the Ordinance have substantially burdened their religious exercise without a compelling governmental interest, and not under the least restrictive means possible.
First, the Court found that Big Heart and Rip Parker’s services were sincerely-held religious beliefs, even though Rip Parker’s members were primarily church groups of different Christian denominations who shared the unified mission of fulfilling Christ’s command to feed the poor.
Second, in analyzing TRFRA’s substantial burden clause, the Court focused on the degree the religious institutions’ conduct was curtailed and the impact on religious expression from the institutions’ perspective, not the government’s. The Court found the Ordinance substantially burdened Plaintiffs’ religious exercise because:
- Big Heart is unable to purchase, store, transport, or rent “portable toilets or other restroom facilities for the homeless and for persons preparing and serving food to the homeless,” pursuant to the Ordinance. Similarly, Rip Parker cannot transport toilet facilities in its volunteers’ cars or rent them at each site at each outing.
- It is impossible for every Rip Parker volunteer to transport a five-gallon container, a catch basin, soap, and paper towels at each location, as required by the Ordinance. Further, the amount of time Plaintiffs would have to spend complying with the requirement that they collect wastewater after each handwashing and dispose of it in a government-approved manner would place a substantial burden on their religious practice.
- The requirement that Plaintiffs obtain the consent of the landowner is intrusive, onerous, and substantially burdensome because the owners are unwilling to let Plaintiffs use their property as a feeding site when they learn they must fill out paperwork and have the City become involved.
Next, the Court concluded that the City was not able to demonstrate a compelling governmental interest in substantially burdening Plaintiffs’ religious exercise. It found the following interests were not compelling governmental interests because they were too “broadly formulated:” (1) protecting the health, safety, and welfare of its citizens; (2) protecting the homeless and the feeders; and (3) protecting the dignity of the homeless. It also found that the City failed to present specific evidence – rather than mere speculation – as to the following claims it contended were compelling governmental interests: (1) the Ordinance prevents the spread of foodborne illness; (2) protecting property owners’ rights and preventing trespassing; (3) ensuring the safety of the feeders; and (4) preventing the homeless from urinating and defecating in public. Further, there was no evidence of street congestion caused by Plaintiffs’ feeding the homeless, as the City alleged. Also, the City’s claim that providing services to homeless by persuading them to accept social services was a compelling governmental interest was belied by its admission of low success rates.
The decision is available at http://rluipa-defense.com/docs/Big%20Heart%20Ministries%20et%20al.%20v.%20City%20of%20Dallas.pdf
Information about Big Heart is available at http://www.bigheartministries.net/
Photographs of Big Heart’s “street church” are available at http://www.dallasnews.com/news/community-news/dallas/headlines/20111225-dallas-ministry-serves-christmas-dinner-for-needy-despite-city-battle-other-setbacks.ece?ssimg=412972#ssStory412973
Does RLUIPA Protect Polygamists?
Posted on 4/8/13 by Evan Seeman and Dwight Merriam
The Apostolic United Brethren (AUB) is a polygamist community consisting of approximately 7,500 members who consider themselves “Latter Day Saints” and whose members are primarily scattered in towns in the Salt Lake and Utah valleys in Utah. The Church of Jesus Christ of Latter Day Saints, however, has disavowed any connection with the AUB. In 2009, the AUB described its beliefs for the Utah Attorney General’s “Polygamy Primer,” a booklet providing “basic information about various polygamous communities so that service providers and others can be better prepared to help families in and from those communities.” The AUB believes in plural marriage between consenting adults over the age of 18: “We do not encourage or permit ‘child bride’ marriages or arranged marriages. Instead, it is a fundamental principle of our faith that it is the sacred privilege of all, male and female, when they are adequately mature, to change whom they will marry. Forced, arranged, or assigned marriages are not a part of our belief or practice.” (To read the “Polygamist Primer,” click here).
An AUB community in Bluffdale, Utah has applied for a zoning change to alter the property’s agricultural use to single-family residential use on approximately 26 acres of land to construct 8 homes for retirees. The AUB currently has 2 homes and a church on the property. The AUB also seeks to cluster the homes close together so the residents can watch out for each other. The City Council would have to approve the clustering of the homes, and, if approved, the AUB would have to leave an open acre on its property for each home in the cluster, resulting in up to 8 acres of open space based on the AUB’s proposal. One AUB member stated that the retirement homes are needed because the AUB has a lot of elderly women who have lost a husband.
The Bluffdale Planning Commission voted to table its consideration of the zoning change after a motion to approve the AUB’s proposal reached a 2-2 stalemate. Reportedly, the commissioners were not concerned about polygamy, but instead had reservations about a narrow road that serves as the sole means of access to the property. The AUB noted that 200 to 300 cars travel along the road each Sunday to attend church services. One member of the commission requested that the AUB conduct a traffic study funded by the AUB and that city staff examine whether the road could be widened.
However, if the AUB’s proposal is denied, could it bring a claim under RLUIPA, assuming the AUB could demonstrate that providing the retirement housing was within the four corners of its religious exercise? Does it matter that polygamy is illegal throughout the country? There is a distinction between holding a certain belief and acting on that belief. That is, holding certain beliefs is not a crime in and of itself. The courts are generally unwilling to question a religious institution’s beliefs. In fact, the United States Supreme Court has observed that “while a court can arbiter the sincerity of an individual’s religious beliefs, courts should not inquire into the truth or falsity of stated religious beliefs.” International Church of the Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1069 (9th Cir. 2011) (citing United States v. Ballard, 322 U.S. 78, 86-87 (1944)).
We’ll keep an eye on this situation in the “Beehive State” as it unfolds.
City of San Diego Agrees to Pay $500,000 & Demolish Homes to Settle RLUIPA Lawsuit
Posted on 3/29/13 by Evan Seeman and Dwight Merriam
The Academy of Our Lady of Peace (Academy) is an all-girls, Catholic private secondary school established in 1882 and has been located in the North Park area of San Diego since 1925. The Sisters of St. Joseph Carondelet sponsor and administer the Academy.
The Academy has done no building since 1965 and there is no possibility for adaptive reuse of existing structures. Thus, in 2007 the Academy sought to implement a modernization plan to renovate and construct new facilities and related amenities to allow it to remain competitive among the region's schools. Under the modernization plan, the Academy would construct state-of-the-art science laboratories, a new library and media center, additional classroom space, and off-street parking. The modernization plan would require the demolition of three houses, two of which the City characterized as "locally significant based on their architectural features." The proposed demolition became the rallying point for those opposed to the plan.
In May of 2007, the Academy submitted its plan to the City's Planning Commission for review and approval. During the Commission's year-long review of the proposal, the Academy repeatedly met with North Park residents in hopes of working with the community. In 2008, the Commission and the City's Development Services Department approved the Academy's plan. The City Council, however, rescinded its approval on the ground that the preservation of the three homes that would be demolished outweighed the Academy's need to modernize its educational facilities.
In 2009, the Academy brought a federal lawsuit against the City, alleging a violation of RLUIPA, as well as violations of federal and state constitutional rights. After a two-week trial, the jury returned a unanimous verdict that the City Council's denial substantially burdened the Academy's religious exercise, which was not justified by a compelling governmental interest fulfilled through the least restrictive means possible. The jury awarded the Academy more than $1.1 million in damages, based on the increased cost of construction for its plan from the time it was denied by City Council. This is believed to be the largest verdict ever awarded under RLUIPA.
The City threatened to appeal the verdict, but the two sides reached a settlement agreement to put an end to the five-plus year dispute. As part of the agreement, the City has agreed to pay the Academy a $500,000 cash settlement, as well as paying to relocate two homes and demolish a third by May 2014 to allow the Academy to proceed with its modernization plan. In addition, the settlement includes provisions to fast-track all permits for completion and limits the total cost of such permits and inspections to $100,000.
Daniel Dalton, the attorney representing the Academy, stated of the settlement: "Kudos to the city for working with us and [the Academy] to establish a settlement that works well for both sides, giving the Academy what it needs to move forward to continue educating the young women of San Diego."
Follow the links below to read more about this case:
RLUIPA Equal Terms Provision – It’s All About the “Benjamins”
Posted on 3/26/13 by Evan Seeman and Dwight Merriam
RLUIPA’s Equal Terms provision provides in part: “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. § 2000cc(b)(1). RLUIPA, however, does not expound any further upon the terms of this provision, leaving it up to the courts to interpret its meaning. This places religious institutions, municipalities, and other interested parties in the difficult position of having to guess at the viability of potential claims.
An article recently posted to the Social Science Research Network and available for download seeks to clear up this uncertainty. RLUIPA’s Equal Terms Clause and the Circuit Split: It’s All About the Money by Danielle Acker Susanj describes the different approaches taken by federal circuit courts of appeal across the nation in their interpretation and application of RLUIPA’s Equal Terms provision. Sometimes, the courts have focused on the economic consequences on local governments of religious uses, or as Puff Daddy says: “It’s All About the Benjamins.” See Wikipedia.org, It’s All About the Benjamins, http://en.wikipedia.org/wiki/It's_All_About_the_Benjamins (last visited March 26, 2013) (noting that “‘Benjamins’ are slang for $100 bills (USD), a reference to Benjamin Franklin’s image on the bills”).
The article’s abstract provides:
Families are not the only ones struggling to make ends meet in the Great Recession; so are cities. Some are even going bankrupt, and as municipalities struggle to find revenue and make ends meet, the temptation to eliminate those who get in the way — like religious institutions — may grow. Tax revenue and economic development have become the centerpiece of a new and spreading area of conflict in the law of church and state.
This Essay examines the roots of conflict between religious institutions and local governments, and adds a framework for considering the potential zones of conflict between them. In understanding what conflicts may arise, why they arise, and how they figure into litigation, we are better prepared to address litigation between these two entities.
While there are many different reasons for conflict resulting in litigation under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), one topic has made its way into the cases more often than the others — economic issues and revenue generation. The fact that churches do not add to a city’s revenue has become a deciding issue in many of the cases. As the circuits split over how exactly to apply the requirement of the Equal Terms clause in RLUIPA, the tests they have chosen weigh economic considerations differently in their analysis and in the outcome of litigation.
The article is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2209989.
Dwight Merriam Edits Book on the Latest Developments in Land Use Law
Posted on 3/11/13 by Evan Seeman
The American Bar Association has published Dwight Merriam's ninth book, At the Cutting Edge 2012: Land Use Law from The Urban Lawyer. This book, a valuable resource for practitioners, planning professionals, and students, is a compilation that includes the most up-to-date reports from The Urban Lawyer. Key topics include the Religious Land Use and Institutionalized Persons Act, Second Amendment jurisprudence, the regulation of fracking, and condemnation law, among others.
The book is available for purchase here.
RLUIPA Article: Individualized vs. Generalized Assessments: Why RLUIPA Should Not Apply to Every Land Use Request
Posted on 2/4/13 by Evan Seeman and Dwight Merriam
The Duke Law Journal recently published Individualized vs. Generalized Assessments: Why RLUIPA Should Not Apply to Every Land-Use Request, by Katie M. Ertmer. What is an “individualized assessment” and why does it matter? To invoke RLUIPA’s “substantial burden” provision, one of three jurisdictional predicates must be satisfied. Individuals asserting claims under the substantial burden provision most commonly do so by alleging that a municipal zoning agency provided a discretionary review (individualized assessment) of a zoning request as opposed to applying neutral and generally applicable zoning regulations, the topic of this article. Here is the abstract for the article:
“Courts and advocates alike have struggled to articulate a coherent rule regarding when the Religious Land Use and Institutionalized Persons Act (RLUIPA) should apply to local governments' land-use decisions. When it is applied too broadly, RLUIPA runs roughshod over the ability of state and local governments to control their own land-use patterns, and it is inconsistent with the Supreme Court's First Amendment and federalism precedents. When applied too narrowly, RLUIPA fails to provide a remedy for victims of religious discrimination. This Note explains the legally cognizable—but previously unrecognized—differences between the types of land-use decisions that local governments make, and it argues that RLUIPA should apply to individualized assessments, such as use permits and variances, but that RLUIPA should not apply to generalized assessments, such as requests for zoning-ordinance amendments. This Note uses two recent Ninth Circuit cases—one of which would have been decided differently if the court had used the proposed distinction—to illustrate how an analysis of individualized and generalized assessments would work in practice.”
So, what are the other two jurisdictional hooks allowing courts to consider a substantial burden claim? First, if “the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000cc(a)(2)(B). And, second, if “the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000cc(a)(2)(C).
The article is available at http://scholarship.law.duke.edu/dlj/vol62/iss1/2.
California City Grants Conditional Use Permit to Church Ministering to Homeless
Posted on 1/31/13 by Evan Seeman and Dwight Merriam
Mercy Way Rescue, formerly known as F.A.I.T.H. (Feeding and Inspiring the Homeless), a church whose mission it is to “spread the good, new and unconditional love, grace and unmerited mercy of Jesus to the homeless, poor, hungry, mentally ill and addicted people” has obtained approval to operate in the City of Pacerville, California over threatened legal action concerning religious freedom.
In December 2012, the City’s Planning Commission denied the Church’s conditional use permit application. During the hearing, City officials accused Mercy Way Rescue Mission of “masquerading as a church” and expressed concern over the types of congregants (the homeless) the church would attract. These sorts of comments, as we have seen in other cases, are sometimes the starting blocks for RLUIPA claims. A member of Pacific Justice Institute stated of the denial: “It’s not just illegal to base a planning decision on the members of a church, it’s an outrage! There should be a public outcry anytime a planning commission considers demographics in their decision for a church to be established.”
The church appealed the Planning Commission’s denial and Pacific Justice Institute intervened on the church’s behalf, writing a letter to the City warning it of potential legal action under RLUIPA and state and federal constitutions. Succumbing to threatened legal action, the City Council granted the Church’s application.
A video of Mercy Way Rescue’s pastor describe the church’s mission is available at http://www.pacificjustice.org/1/post/2013/01/city-tries-to-shut-down-church-for-homeless.html.