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City, Islamic Group Near Settlement in Mosque Suit; Proposed deal would curtail legal fees, end religious land use case
Posted on 9/18/14 by Evan Seeman and Dwight Merriam          

Jay Stapleton, The Connecticut Law Tribune, September 5, 2014

Lawyers representing an Islamic group that wants to build a mosque in Norwalk had run up an estimated $5.5 million legal tab. That number was making attorneys representing the city a bit nervous.

And so the two sides have agreed to settle a federal lawsuit filed by the Al Madany Islamic Center, which went to court after Norwalk zoning officials rejected a proposal for a 42,000-square-foot mosque and Islamic community center in a Norwalk residential neighborhood. Under the agreement, the city will allow a smaller mosque and the Islamic group will drop its lawsuit—and collect much less in legal fees.

The lawsuit was filed under the federal Religious Land Use and Institutionalized Persons Act, which gives religious groups seeking to build houses of worship added clout in bringing appeals in zoning cases. Under RLUIPA, municipalities that lose in court can be forced to pay the plaintiffs' legal costs.

Joseph Williams, who is representing the city, said in published interviews that city officials were well aware that if the case went to trial, they could face exposure north of $10 million. "If they won, they would have sought that and they would have been awarded something. Whether you get all of it, that's in the discretion of the judge, but they were running them up [legal costs] pretty fast," said Williams, of Shipman & Goodwin, in published interviews.

The Al Madany Islamic Center brought its lawsuit in 2012 after neighbors who expressed concerns about noise and traffic urged the zoning commission to reject the proposed mosque and Islamic center. Under the settlement agreement, the original plan for the mosque and accessory building on Fillow Street is to be reduced by nearly half, to 21,800 square feet. Meanwhile, the design will expand the number of on-site parking spaces by 50 percent, to 135, and additional trees will be planted around the site as noise and visual buffers.

At the same time, Al Madany will receive $307,500 to cover legal costs—$145,000 of that from Norwalk and the remaining $162,500 from the city's insurance carrier. Two out-of-state law firms that have represented the center for the past two years had, to this point, waived most of their legal costs. But it would have been a different story if the case went to trial.

The city zoning commission approved the settlement proposal on Sept. 4. The Common Council was scheduled to take it up on Sept. 8.

This is the second proposed settlement in the case. A previous deal, which would have allowed the mosque to retain its originally proposed size and included a $100,000 payment to Al Madany, was ultimately rejected by former Norwalk Mayor Richard Moccia. In a subsequent meeting, the zoning commission voted 6-1 to approve a settlement "if an acceptable agreement could be reached."

One important step in resolving the dispute came in August, when the Stonegate Condominium Association, which had opposed the mosque's plans, issued a letter of support for the current settlement agreement.

The settlement plan calls for the city to install "traffic calming measures" as needed near the mosque. Al Madany has agreed to submit notice with the city five days before any events that may attract more than 350 people, and will arrange for shuttle buses to transport visitors to off-site parking areas during those events.

"From a legal perspective, this settlement demonstrates how the federal statute RLUIPA is a positive tool in being able to balance the interests of the religious organization with the interests of the municipality and the neighbors," said Roman Storzer, a Washington, D.C., lawyer who is nationally known for his work representing religious organizations in RLUIPA cases. Storzer was hired early in the case to represent the mosque, along with Peter Vigeland and Christopher Bouchoux, of Wilmer Hale.

Storzer said the settlement is an important one for Al Madany as well, because it resulted in the protection of the mosque's constitutional rights.

His co-counsel, Bouchoux, agreed. "I think it is a good settlement from Al Madany's perspective," said Bouchoux in an earlier interview. "The most important goal for our client was that they see their rights vindicated and that they be able to construct and use, consistent with their faith, a mosque at the property that they own. This settlement will achieve that goal."

Connecticut Home Invasion Killer/Death Row Inmate Sues Under RLUIPA for Kosher Food
Posted on 9/18/14 by Evan Seeman and Dwight Merriam          

In 2007, Steven Hayes and Joshua Komisarjevsky invaded a home in Cheshire, Connecticut, where they horrifically murdered a mother and her two children.  Hayes and Komisarjevsky were sentenced to death for their crimes.  Now, Hayes is suing the Connecticut Department of Correction and several of its officials for being refused a kosher diet.  The handwritten complaint (available here) is brought under the First Amendment (Free Exercise) and the Eighth Amendment (Cruel and Unusual Punishment) to the U.S. Constitution, and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

In his complaint, Hayes claims that he “signed-up” for Judaism in 2013.  Before that, he followed the “philosophy of Taoism.”  He claims “[a]s an orthodox practicing Jew I am entitled to a kosher diet that follows the Jewish dietary laws of kashrut.”  He complains that the kitchen at the correctional institution where he is being held does not have an “orthodox kosher certificate or a Jewish overseer to maintain strict kosher storage, prep and cooking standards.” 

He alleges that the Department’s refusal to provide him with a kosher diet prevents him from freely exercising his religion and violates the First Amendment and RLUIPA.  He further alleges the refusal to feed him kosher food is cruel and unusual punishment in violation of the Eighth Amendment, “since the denial of the kosher diet forces me to eat non-kosher food in order to survive.  I have also experienced secondary weight loss due to refraining from eating non-kosher products.”

Hayes seeks injunctive and declaratory relief, as well as punitive and compensatory damages in the amount of $15,000 “due to the intentional infliction of pain, suffering and resulting weight loss from the deliberate denial of a kosher diet.

For local coverage, click here.

New RLUIPA Suit Accuses Two New York Municipalities of Anti-Semitism
Posted on 9/16/14 by Evan Seeman and Dwight Merriam          

The Village of Bloomingburg, NY (Village) and the Town of Mamakating, NY (Town) are facing allegations of religious discrimination in land use regulation.  On September 8, 2014, the Bloomingburg Jewish Education Center, Sullivan Farms II, Inc., Learning Tree Properties, LLC and other interested entities and individuals (Plaintiffs) sued the Village and the Town and certain municipal officials under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the federal Fair Housing Act, the U.S. Constitution, and state law.  Plaintiffs allege that the Village and the Town have engaged in an anti-Semitic conspiracy to “stop the Jewish infiltration,” and have prevented Plaintiffs from operating a religious school and planned development unit.  The following allegations are taken from Plaintiffs’ complaint.

For more than a year, Plaintiff Learning Tree has been seeking site plan approval to open a private religious school for Hasidic Jews, to be operated by Bloomingburg Jewish Education Center.  A religious school is a permitted use in the subject zoning district.  The complaint alleges: “The religious school is urgently needed by Hasidic residents, whose religious practices otherwise oblige them to home school their children or send them to parochial schools well outside the area.”  Residents opposed the site plan application allegedly to keep Jewish families from moving into the area.  The Village’s Planning Board was forced to cancel two of its meetings (August 29, 2013 and September 26, 2013) where it was to consider the site plan application, because hordes of angry residents would not allow the meetings to proceed.  Video of the forced cancellations of those meetings can be viewed here and here.  The State Police attended the December 12, 2013 meeting to control the crowd, and the Planning Board denied the site plan based in part on its determination that no more schools were needed, even though “need” is not a legitimate consideration for a site plan application regarding a permitted use. 

The New York Supreme Court (the trial court in New York) reversed the Planning Board’s decision in May 2014 and ordered the Planning Board to reconsider the site plan application.  Rather than comply with the court’s order, the Village dissolved its Planning Board and empowered the Town’s Planning Board to administer the Village Zoning Code, an act that Plaintiffs contend was meant to delay reconsideration of the site plan.  Allegedly, the Town’s Planning Board “has deliberately embarked on a wasteful and time-consuming review of the proposed private religious school, ignoring all previous information that Learning Tree and its engineers had provided to the Village Planning Board,” and “has enlisted multiple building consultants and engineers to review the projects.”  The school is not able to open in time for the 2014-2015 school year.

Plaintiffs allege that the Village and the Town have undertaken similar efforts to prevent Sullivan Farms from completing development of the fully approved Chestnut Ridge, a 396-unit townhouse project.  Although Chestnut Ridge will be open to all persons regardless of faith, Plaintiffs allege that the Village and the Town have prevented additional units from being constructed (48 out of 396 units have been constructed) because they believe many Hasidic Jews will live there.  The Village Planning Board granted Sullivan Farms final conditional subdivision approval on June 24, 2010.  On January 24, 2014, an opposition group called Rural Community Coalition sued the Village and the Town to enjoin construction of Chestnut Ridge on the theory that the Village’s annexation of the project site from the Town seven years earlier was invalid.  Although named as defendants, the Village and Town supported the opposition group’s application for an injunction.  In February 2014, the New York State Supreme Court issued a preliminary injunction that was later vacated by the Appellate Division, Third Department on June 5, 2014.  One week after the preliminary injunction was vacated, the Village enacted a Village-wide moratorium “suspending the receipt, consideration, or issuance of all residential and commercial building permits in the Village, essentially foreclosing all construction and repair in the Village, including at the fully approved Chestnut Ridge and the private religious school.”

The moratorium – premised on a “hazardous disposal” emergency – lasts 90 days, but can be extended for up to a year.  Plaintiffs assert that the purported “health and safety” complaints include allegations that a “Torah was observed being brought into a unit,” that a private residential pool was being used as a mikvah, a Jewish ritual bath, and “that a building appears to be a gathering place.  Maybe a shul [synagogue]?”

The Village has scheduled a September 30, 2014 referendum to ask its residents whether the Village should dissolve and cede all jurisdiction to the Town.  Plaintiffs claim that the Village “hopes that by dissolving itself, it may undo prior zoning and subdivision approvals for Jewish-owned development projects, cause Plaintiffs further discouragement and delay by impairing their constitutional rights, and wholly avoid its current court-ordered obligations."  The September 30 referendum falls during the Jewish High Holy Days, in the 10-day period between Rosh Hashanah and Yom Kippur.  Accordingly to Plaintiffs, “Defendants obviously hope that the Orthodox Jews of Bloomingburg will be distracted by their religious observances and therefore will refrain from participating in the referendum vote.”

Plaintiffs assert that the Village’s and the Town’s actions in denying their operation of the school and planned development unit substantially burdens their religious exercise without a compelling government interest and treats them worse than other secular and religious uses, in violation of RLUIPA.  Plaintiffs also assert claims under RLUIPA’s “total exclusion” and “unreasonable limitations” provisions.  They bring other claims under the Fair Housing Act, the U.S. Constitution, and state law.

Plaintiffs’ 66-page complaint in The Bloomingburg Jewish Education Center v. Village of Bloomingburg, New York (S.D. NY 2014) is available here.

Orthodox Jewish Temple & City of Sunny Isles Beach, Florida Settle RLUIPA Suit
Posted on 9/9/14 by Evan Seeman and Dwight Merriam          

Temple B’Nai Zion and the City of Sunny Isles Beach, Florida have settled their four-plus years of litigation over the Temple’s appeal of the City’s historic site designation of property owned by the Temple and used as a synagogue.  We previously reported on the case a year ago, after the U.S. Court of Appeals for the Eleventh Circuit reversed the lower court’s dismissal, finding the case ripe for review under traditional notions of ripeness, and choosing not to apply the Williamson County ripeness test.

The Temple purchased the property from the Epiphany Lutheran Church and claimed that the former church building, which it used as a synagogue, required certain renovations in accordance with the Temple’s religious beliefs: (1) have the seating area face east, not west; (2) change the floor plan, which was in the shape of a crucifix from when the building was used as a church; (3) create separate seating areas for men and women; and (4) change the building’s triangular shape, which was meant to symbolize Christianity’s Holy Trinity.  The City designated the Temple’s property a historic landmark based on a 2004 Holocaust remembrance ceremony, which was held on the property and attended by 200 Holocaust survivors.  The designation prohibited the Temple from altering or demolishing the synagogue. 

The Temple sued under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the U.S. Constitution, and state law.  It claimed that the City’s designation of its property was a pretext to prevent any modifications to the building. 

Under the settlement, the Temple’s property will retain its historic designation, but the Temple will be permitted to undertake some structural changes to the building.  The parties also agreed to execute a restrictive covenant that will maintain the historic character of the property as a religious institution.  Although no party was awarded attorneys’ fees, the City will pay the Temple $175,000 and will deposit transferable development rights (TDRs) in the amount of 15,000 square feet and five dwelling units to be set aside in a separate bank account designated by the Temple (TDR sub-account).  The Temple can either request that the City sell the TDRs, which, if sold at more than $100 per square foot will be split equally between the City and the Temple, or they can be transferred to sites designated as receiving sites under the City’s zoning code.  The remaining unused development rights on the property (40,000 square feet and 20 dwelling units) will be the maximum amount of allowable development rights that can be used for building purposes.

The City Commission’s resolution approving the settlement, the settlement agreement, and the restrictive covenant are available here.

DOJ Sues Minnesota City Over Denial of Islamic Somali Immigrants’ Mosque Proposal
Posted on 9/3/14 by Evan Seeman          

The U.S. Department of Justice (DOJ) has sued the City of St. Anthony Village under the Religious Land Use and Institutionalized Persons Act (RLUIPA) after the City Council, in 2012, denied the Abu Huraira Islamic Center’s application for a conditional use permit to develop and operate a 15,000 square foot religious and cultural center in the former Medtronic, Inc. headquarters.  The City Council claims it denied the application because the proposed use was incompatible with the site’s light industrial zone, the purpose of which is to create jobs.  The Council’s decision went against the City Planning Commission’s recommendation to approve the application. 

Allegedly, during the Council’s public hearing on the application, members of the public displayed overt religious animus, taking aim at Islam.  According to one report, one resident stated, “There is no other religion in the world that condones violence.  Islam is evil.”  Another resident said, “Where did you come from?  Change your own country.”  Abu Huraira’s members are mostly Somali immigrants.

The DOJ launched a formal investigation in 2012.  Reportedly, the DOJ tried to settle the matter with the City outside of litigation, but the City refused and last week the DOJ sued.  According to its press release, the DOJ alleges that the City violated RLUIPA’s equal-terms provision because it treats religious assembly uses in the light industrial zone less favorably than secular assembly uses allowed in the zone (assemblies, meeting lodges, and convention halls), and because the City allegedly treated Abu Huraira’s application less favorably than conditional use permit applications for secular assembly uses.  The DOJ also claims that the permit denial substantially burdens Abu Huraira’s religious exercise, because “members in the northern Twin Cities are burdened from praying together based on the length of time it takes to travel to the worship centers in south Minneapolis.  Moreover, prayer space at locations in south Minneapolis are too small to accommodate members, many of whom often have to pray in hallways or entryways, and hold multiple prayer sessions in shifts to accommodate crowds.”

U.S. Attorney Andrew M. Luger stated of the lawsuit:

Freedom of religion and the right to peaceably assemble are enshrined for all Americans in the Bill of Rights.  This office conducted a thorough investigation of the circumstances surrounding the City Council’s decision to deny Abu Huraira the right to worship in the St. Anthony Business Center.  We aggressively sought to resolve this matter without a lawsuit.  However, it is a solemn duty of all United States Attorneys to uphold the Constitution. The people of Abu Huraira have a right to peaceably assemble – they have a right to practice their religion, and it’s our job to enforce that right.

The City appears ready to vigorously defend the denial.  It issued a statement in response to the lawsuit, saying there was no discrimination:

The City Council’s decision to deny the conditional use permit for the Abu Huraira Islamic Center was made only after months of study and careful consideration of the impacts of allowing an assembly use in a zoning district specifically set aside for industrial uses.  That decision is consistent with past action of the council and with sound land use policy.  That decision is not a violation of RLUIPA.

The City of Saint Anthony Village welcomes all religious faiths into our community.  The conditional use permit was denied based on the appropriate need to restrict assembly and religious uses within the very limited amount of industrial area within the city.

There has been no discrimination.  As a matter of fact, the city has actually expanded the area in which religious uses, including an Islamic Center could be located.  The City doesn’t allow any religious uses in its industrial area.  The city has a very limited industrial area which is appropriately limited to uses that create jobs.

St. Anthony is located in Minnesota’s 5th Congressional District, represented by Keith Ellison, the first Muslim-American ever elected to Congress.

The DOJ's Complaint in United States of America v. City of St. Anthony Village, Minnesota (D. Minn. 2014) is available here.

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.

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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