Cockfighting Not Sincerely Held Religious Belief, Rules Federal Court

In United States of America v. Cruz (F.D.N.Y. 2018), Hector Cruz pled guilty to the charge of knowingly attending a cockfighting event (a fight between two roosters) for sport and entertainment in the Bronx, New York, in violation of 7 U.S.C. § 2156(a)(2)(A) (the “Animal Fighting Venture Prohibition”).  Despite pleading guilty, Cruz raised a bevy of arguments in his defense to have the charges against him dismissed, based on his contention that the Animal Venture Prohibition infringed on the “God given rights of New York gamecock farmers.”  He claimed that the Animal Venture Prohibition violated the First, Second, Fourth, Sixth, Eighth, Ninth, Tenth and Fourteenth Amendments to the US Constitution, but the Court elected not to address many of Cruz’s arguments because he failed to cite legal authority to support them, and many of the arguments were “incomprehensible or irrelevant.”  Among the arguments addressed by the Court were Cruz’s claims that the Animal Fighting Venture Prohibition violates his rights to the free exercise of religion protected by the First Amendment and the Religious Freedom Restoration Act (“RFRA”).  The Court also addressed Cruz’s claim that the Animal Fighting Venture Prohibition constituted an illegal taking of personal property under the Fifth Amendment.

Cruz’s First Amendment and RFRA claims were premised on an apparent Biblical reference that “God gave man dominion (control and rule) over the earth, animals, fish and fowl, and our Constitution is written to ensure that each person is equal in the freedom and exercise of our God given rights as each individual chooses to believe these rights exist.”  The Court ruled that the Animal Venture Prohibition passed constitutional muster, as it was a neutral law that was generally applicable, and was rationally related to the legitimate government interest of the “prevention of cruelty to animals.”

In analyzing Cruz’s RFRA claim, the Court noted that even laws that are neutral and generally applicable can violate RFRA if they substantially burden religious exercise without a compelling government interest advanced in the lease restrictive means possible.  The Court determined that Cruz could not prevail on his RFRA claim because his supposed religious beliefs were not sincerely held:

Here, Cruz has failed to make a showing that the act of engaging in animal fighting ventures stems from sincerely held beliefs that are religious in nature.  Although Cruz continually refers to the “God given”  dominion of man over animals, he does not identify any specific religious tenets or practices that are burdened by the statute.  Nor does he identify any religion or denomination from which his beliefs derive.  Indeed, in “attest[ing] to the importance of the God given rights of the American farmer,” Cruz cites quotations in which the founding fathers, including Thomas Jefferson, John Adams, James Madison, and Benjamin Franklin, exalted agriculture.  This suggests that Cruz’s beliefs are philosophical or political in nature.

The Court also rejected Cruz’s argument that the Animal Venture Prohibition was an illegal taking of personal property in violation of the Fifth Amendment.  Cruz argued that “animals are property” and that the Supreme Court held “the right of ownership of property includes the inherent right to use ones [sic] property.”  The Court was not persuaded, instead observing that the Supreme Court has held that there is no taking of personal property if the government proscribes only one particular use of the property (such as its sale), if the owner maintains other rights to the property.  Here, the Animal Venture Prohibition proscribed only one specific type of use (animal fighting), without affecting other allowable uses, and did not constitute a taking.

Photo by SUBHRO GANGULYsome rights reserved.

Mahwah, NJ Agrees to Settle Eruv Dispute

In December, we reported that the Mahwah Township Council (“Council”) voted to withdraw two ordinances at the center of RLUIPA litigation involving the expansion of an eruv proposed by Bergen Rockland Eruv Association (“BREA”).  According to, an eruv (pronounced (ay-roov) is “a technical boundary that allows Jews to carry in public areas on Shabbat.” The eruv at issue in this dispute encompasses a small portion in the northeastern corner of the Township (see photo above). Last week, the Council agreed to settle the lawsuit, subject to the following terms:

  • The existing eruv may remain, so long as BREA recolors or replaces it “to match the applicable utility pole as closely as practicable” within the next year.
  • In the event that BREA later seeks to expand the existing eruv within the Township, the parties must confer in good faith on such expansion, including reasonable alternatives to any proposed routes for expansion.
  • Maintenance of the existing eruv is to be the sole responsibility of BREA, but the Township “shall promptly respond to any acts of vandalism and/or any other illegal acts against the [eruv] tending to impair BREA’s ability to maintain the [e]ruv.”
  • The Township will pay BREA $10,000 in attorneys’ fees and costs.

The full text of the settlement agreement in Bergen Rockland Eruv Associations, Inc. v. The Township of Mahwah (D. N.J. 2018) is available here.

The photo above originally appeared in Plaintiffs’ Complaint.

Allenhurst, NJ Sued Under RLUIPA One Day and Settles the Next

The Borough of Allenhurst, New Jersey has settled a lawsuit against an Orthodox Jewish group just one day after the group filed suit in federal court alleging violations of RLUIPA’s unreasonable limits and exclusions and equal terms provisions.  As part of the swift settlement, the Borough will permit an addition to a residential home to be used as a synagogue, and will avoid having to pay attorneys’ fees, which are available to prevailing plaintiffs in RLUIPA cases.

The plaintiffs, Ohel Yis’hak Sephardic Synagogue of Allenhurst and Rabbi Moshe Shamah, sought to convert the Rabbi’s existing home into a synagogue.  Rabbi Shamah serves a Sephardic synagogue in Brooklyn, but spends his summers in Allenhurst.  For the past 20 years, he has used his home in Allenhurst to host religious worship for friends and family during the summer months, because there is no synagogue in the Borough.  Many members of the Brooklyn congregation follow the Rabbi to Allenhurst during the summer, and have caused the summertime Sephardic Jewish population in Allenhurst to steadily rise over the years.  To accommodate the growing Jewish population, the plaintiffs sought to build an addition to the Rabbi’s home to operate a “small religious facility where Sephardic Jews can gather to pray and learn.”  One hiccup in the plaintiffs plans – Allenhurst’s zoning code does not permit places of worship – either as of right or as conditional uses – in any of the 7 zoning districts.  Yet, the Borough allows similar secular assembly uses, such as art and cultural instruction, art galleries, fitness centers and restaurants.

The plaintiffs sued the Borough on January 23, 2018 in a two-count complaint alleging violations of RLUIPA (complaint available here).  The next day, the parties agreed to settle the case and the Court entered a Consent Order.  In the Consent Order, the Borough acknowledges that its “outdated zoning code, which the [Borough] intends to immediately address” completely “excludes religious facilities from its jurisdiction and unreasonably limits religious assemblies, institutions and structures within its jurisdiction.”  The Borough also acknowledges that its zoning code “treats religious assemblies and institutions on less than equal terms as nonreligious assemblies and institutions.”  Despite these acknowledgments, the parties agree that the “Consent Order represents a compromise of a disputed claim, and shall not in any way be construed as an admission of wrongdoing or liability on the part of any Party.  Therefore, the parties shall be responsible for their own attorneys’ fees and costs associated with this action.”

The Consent Order in Ohel Yis’hak Sephardic Synagogue of Allenhurst v. The Borough of Allenhurst (D. N.J. 2018) is available here.

City of Bayonne, NJ to Pay $400,000 to Settle Claims Over Mosque Denial

The City of Bayonne, New Jersey has agreed to settle a lawsuit filed this past summer by Bayonne Muslims, asserting that the city discriminated against the Muslim group after denying variances needed to convert an abandoned warehouse to a mosque (read our previous post about the lawsuit here).  As part of the settlement, the city will pay Bayonne Muslims $120,000 and Bayonne Muslims’ law firm $280,000.  Under the agreement, the city will allow the development of the mosque, subject to a favorable vote by the zoning board.  The proposed mosque is not to be used “for unrelated functions during prayer services,” there will be no on-site kitchen or cooking, and Bayonne Muslims “will add a second or third Friday services as needed if it exceeds capacity and seeks to accommodate additional worshippers.”  The zoning board will hold a hearing to consider the settlement agreement and Bayonne Muslims’ renewed application for variance relief to develop the mosque with 135 prayer mats.

Bayonne Muslims’ President, Abdul Hamid Butt, issued a statement: “We are so grateful for the support of so many of our fellow Bayonne residents through this long struggle and we commend the City of Bayonne for moving now to correct the wrong that was done to Bayonne’s Muslims. We are confident our application, considered on its merits, will be approved and we look forward to welcoming Bayonne residents of all faiths to the City’s first mosque.”

What is not clear is whether the U.S. Department of Justice will continue with its investigation into the city’s processing of the mosque application for possible religious discrimination, given that a settlement has been reached.  More on the DOJ’s investigation is available here.

The settlement agreement in Bayonne Muslims v. City of Bayonne (D. N.J. 2018) is available here.

CAFO Stinks, but Not a Substantial Burden

Do 1,400 cattle and 17.4 million gallons of cow waste in open-air lagoons, upwind and a half a mile from a religious youth summer camp, impose a substantial burden? As unpleasant as a concentrated animal feed operation (“CAFO”) may be, a neighboring religious organization cannot use RLUIPA as a shield to prevent its operation.

We originally posted about House of Prayer Ministries, Inc. d/b/a Harvest Christian Camp v. Rush County Board of Zoning Appeals, here. On January 16, the Court of Appeals of Indiana dismissed House of Prayer’s lawsuit that sought judicial review of a decision issued by the Rush County Board of Zoning Appeals (the “Board”) allowing a special exemption permit to Milco Dairy Farm, LLC (“Milco”) to operate a CAFO. One of five issues on appeal was whether the Board’s approval violated RLUIPA and Indiana’s Religious Freedom Restoration Act (“RFRA”).

The Court never considered whether the CAFO operations imposed a substantial burden on House of Prayer’s camp operations under RLUPIA, because it concluded that RLUIPA was not applicable. Under RLUIPA, no government may impose or implement a land use regulation in a manner that imposes a substantial burden on religious exercise. However, RLUIPA defines a land use regulation as “a zoning… law or the application of such a law, that limits or restricts a claimant’s use. . . of land. . . , if the claimant has. . . [a] property interest in regulated land. . . .”  42 U.S.C.A. § 2000cc-5(5).  Therefore, the Court concluded that “[b]y its plain terms, RLUIPA may be raised only by a claimant who has a ‘property interest in regulated land.’”  House of Prayer argued that RLUIPA was applicable because “regulated land” means any land affected by regulation, even if the regulation is directed at land where the claimant may not have a legal interest.

Interpreting RLUIPA in the broad manner advocated by House of Prayer, the Court reasoned, would lead to absurd results—Since the proposed CAFO could potentially impact the entire Country, every citizen of the County would potentially have a RLUIPA claim.

Next the Court examined House of Prayer’s RFRA claim. RFRA has a broader reach than RLUIPA and applies to any law of general applicability that may impose a substantial burden on religious exercise. The Court disagreed with the Board’s assertion that House of Prayer provided no evidence of a substantial burden.  It did, however, credit the Board’s finding that Milco submitted sufficient evidence of mitigation efforts intended to abate noxious odors and avoid waste run-off from Milco’s property. For these reasons, the Court found that the Board’s finding that House of Prayer would not be substantially burdened was supported by substantial evidence.

The Court’s decision in House of Prayer Ministries, Inc. d/b/a Harvest Christian Camp v. Rush County Board of Zoning Appeals, is available here.

Photo by Rose Craftsome rights reserved.

County of Ventura, California’s Permitting Scheme Stricken as Prior Restraint on Free Speech

The United States Court of Appeals for the Ninth Circuit has ruled that Ventura County, California’s conditional use permit (CUP) scheme for “temporary outdoor” events is an unconstitutional prior restraint on free speech.  Temporary outdoor events are defined in the County’s zoning code to include “[o]utdoor recreational events such as harvest festivals, amusement ride, historic re-enactments, animal events, art shows, concerts, craft fairs, weddings, and religious revival meetings.”  In this case, the plaintiff, Epona, LLC, owner of 40-acres in Ventura County, sought approval to host outdoor events, including weddings.  The Ninth Circuit determined that the zoning code lacked definite and objective guiding standards with respect to temporary outdoor events and afforded the County’s Planning and Zoning Commission (Commission) with unbridled discretion in violation of the First Amendment.

Epona, LLC sought a CUP for up to 60 temporary outdoor events per year, applied for a CUP, and obtained positive recommendations from county agencies reviewing the proposed use.  Zoning staff also recommended approval, but the Commission denied the application after neighbors complained, identifying the following reasons for denial:

(1) The venue is not compatible with the rural community …;

(2)  The venue has the potential to impair the utility of neighboring property or uses and is inconsistent with the finding set forth in the [zoning code]; and

(3)  The venue has the potential to be detrimental to the public interest, health, safety, and convenience, or welfare and is inconsistent with the finding set forth in the [zoning code]

Epona, LLC appealed the Commission’s denial to the Board of Supervisors.  This time, zoning staff recommended denial of the CUP application.  The Board’s vote was split evenly, having the effect of affirming the Commission’s denial.  Epona, LLC sued the County of Ventura, asserting that the zoning code violated the First Amendment on its face, as well as RLUIPA’s equal terms provision.

The Ninth Circuit found the CUP standards for temporary outdoor events to be without clear and definite standards, constituting a prior restraint on free speech.  The CUP standards are as follows:

(a) consistent with the intent and provisions of the County’s General Plan and of Division 8, Chapters 1 and 2 of the Ventura County Ordinance;

(b) compatible with the character of surrounding, legally established development;

(c) not [] obnoxious or harmful, [and must not] impair the utility of neighboring property or uses;

(d) not [] detrimental to the public interest, health, safety, convenience, or welfare;

(e) compatible with the existing and potential land uses in the general area where the development is to be located;

(f) on a legal lot; and

(g) approved in accordance with the California Environmental Quality Act and all other applicable laws.

The Ninth Circuit determined that while criteria (f) and (g) are objective, (a) through (e) are subjective and do not provide sufficient guidance to permitting officials.  The Court specifically took issue with criteria (c) and (d) (“have a harmful effect upon the health or welfare of the general public” or be “detrimental to the welfare of the general public … [or] to the aesthetic quality of the community or the surrounding land uses.”).  Even though the CUP scheme required specific factual findings, the Court stated that this was not “necessarily determinative of whether a statute confers excess discretion.”  The Court was also troubled that there was no time limit for the Commission to act on a CUP application.  The lack of a time limit, along with the lack of definite and clear standards, caused the Court to conclude that the CUP permitting scheme was not “content neutral” and was a prior restraint on free speech.

This decision is an important one for municipalities, as the conditional use permit criteria identified by the Ninth Circuit as granting unbridled discretion in county officials may be similar to criteria found in other zoning codes.  After all, an overarching purpose of zoning is to protect public health, safety, and general welfare.  It is not clear how this decision would have come out if there were, in fact, a time limit for the Commission to act on a CUP application.  Regardless, municipalities may wish to review their codes to ensure that permitting requirements provide property owners and land users with precise standards to be applied uniformly.

Epona, LLC also alleged that the zoning code violated RLUIPA’s equal terms provision, despite the fact that Epona conceded that it was not a religious assembly or institution.  The Court, however, rejected this claim, finding the equal terms provision inapplicable to a secular assembly or institutional use.

The decision in Epona v. County of Ventura (9th Cir. 2017) is available here.

Church Alleges Religious Discrimination Over Baltimore County’s Conditions on Approval of Development Plan

Hunt Valley Presbyterian Church (the “Church”) has sued Baltimore County, Maryland and the Board of Appeals of Baltimore County (together, “Baltimore County”), challenging Baltimore County’s conditional approval of the Church’s development plan, which sought to expand an existing house of worship.  This is the fourth congregation to bring RLUIPA claims against Baltimore County in the past year.  See our previous posts here and here.

Specifically, the Church alleges that the conditions imposed on approval require it to, among other things, provide its neighbors and other interested persons with advance notice of scheduled and special events and stagger its Sunday worship services.  Additionally, the Church contends that the condition regarding water runoff, which requires the Church to “take any and all immediate and reasonable measures to address and eliminate” any water collection issues connected to the Church’s property, will be “impossible to comply with,” as runoff, pooling and drainage are existing issues in the area and on the property.

The Church’s Complaint, available here, alleges that Baltimore County has violated RLUIPA’s substantial burden provision, as well as the First Amendment’s Free Exercise Clause, the Fourteenth Amendment’s Equal Protection Clause, and the Maryland Constitution.

Prisoner’s “My-iBible” RLUIPA Claim Thrown Out as Moot

What do a prisoner in administrative segregation, an MP3 player, an audio version of the Bible, and earbud headphones have to do with defending local governments in RLUIPA claims?  Read on.

The United States Court of Appeals for the Tenth Circuit recently ruled that a prisoner’s RLUIPA claim had been rendered moot and could not proceed, as prison officials had granted the relief sought by the prisoner.  A Messianic Jewish prisoner, Joshua James Robertson, claimed that his religious exercise was substantially burdened because he could no longer hear the Bible read aloud to him while in long-term administrative segregation.  He requested that he be allowed to have a “my-iBible,” an MP3 player that is loaded with an audio recording of the Bible.  The District Court dismissed Mr. Robertson’s substantial burden claim, but the Tenth Circuit reversed and remanded that decision in 2016.  Following the Tenth Circuit’s 2016 ruling, prison officials permitted Mr. Robertson to possess the my-iBible along with earbud headphones.  Based on this action by prison officials, the District Court ruled that Mr. Robertson’s RLUIPA claim was now moot.  Mr. Robertson appealed the mootness finding and, while his appeal was pending, prison officials seized his headphones because he had been using them to listen to an AM/FM mini-radio.

Mr. Robertson asserted that his appeal had been “un-mooted,” since his headphones were taken from him and he was no longer able to listen to his my-iBible.  The Tenth Circuit disagreed and affirmed the District Court’s decision on mootness because Mr. Robertson had been afforded the exact relief he requested in his suit.  The Tenth Circuit, however, noted that “[i]f anything, the subsequent events might create a new claim (although we express no opinion on that matter), but they do not revive the instant lawsuit.”  This decision should be of particular interest to local governments defending against possible RLUIPA violations.  RLUIPA’s safe harbor provision may provide an escape valve to grant the religious land use applicant the requested relief to render moot claims of religious discrimination.

The Tenth Circuit also affirmed the District Court’s refusal to award Mr. Robertson secretarial costs billed to him by his mother in connection with the litigation.

Original photography by Keith Davenportsome rights reserved.

The decision in Robertson v. Biby (10th Cir. 2017) is available here.

To Protect Wildlife, or Religious Freedom?

That was the question before the Deschutes County Board of Commissioners earlier this month.

The conflict arose as a result of John and Stephanie Shepherd’s continued attempts to host weddings on their property in Deschutes County, Oregon (the “County”), which is zoned for exclusive farm use (“EFU”) and subject to a wildlife protection overlay zone to protect mule deer, elk, and other animals.  The Shepherds initially sought approval to operate as a “private park”, a conditionally permitted use in the EFU.  Although the County approved this use in 2015, the Oregon Land Use Board of Appeals (“LUBA”) later reversed that decision, finding that the Shepherd’s proposed use did not qualify as a “private park”.  On appeal, the Oregon Court of Appeals affirmed LUBA’s decision, observing that the proposed use more closely resembled that of a “commercial event venue” than a private park.  See Landwatch v. Deschutes County, 276 Or. App. 282, 295 (2016).

Following the Court of Appeals’ 2016 decision, the Shepherds filed an application to operate a church on their property, which was approved by the County in September of the same year.  However, in April 2017, LUBA once again thwarted the Shepherd’s operations, upon a finding that the County Code explicitly prohibits churches in the wildlife protection overlay zone, and that the Shepherds’ claim under RLUIPA’s equal terms provision was “undeveloped”.  The full text of this decision is available here.

In the months since, the County has been reviewing the provisions of its Code that regulate religious use in the wildlife protection overlay zone, with an eye toward amendment.  Conservationists are concerned that allowing an increased intensity of use in the wildlife protection overlay zone, such as church use, would stress shrinking wildlife populations, while citizens like the Shepherds believe that the Code, as written, presents a clear violation of federally- and state-protected religious freedoms.

At a meeting of the Deschutes County Board of Commissioners on December 18, 2017, the Commissioners expressed their intentions to amend the Code to remove the word “church” from the list of uses prohibited in the wildlife protection overlay zone.  A final version of the proposed amendments is expected to be reviewed and acted upon at the Board’s meeting on December 27, 2017.

Question: What would happen if they amended the Code to prohibit without limitation all places of public assembly?  Could it help a municipality avoid a possible equal terms claim under RLUIPA?

Original photography by Lauren Sobkoviak, some rights reserved.

Mahwah Eruv Update

In an update to our previous post about an eruv dispute in New Jersey, the Mahwah Township Council has voted to withdraw two ordinances at the center of a religious discrimination lawsuit involving the construction of an eruv.  In September, we reported about Bergen Rockland Eruv Association, Inc.’s (“BREA”) lawsuit against the Township of Mahwah challenging certain township ordinances that prevented the expansion of an eruv, allegedly in violation of the First Amendment, RLUIPA, and other federal law.  One of these ordinances, which had been proposed but not yet adopted, would have prohibited the posting of PVC pipes, among other things, on utility poles, effectively prohibiting the construction of an eruv.  The second ordinance, which banned non-state residents from using Township parks, was adopted earlier this year., part of the USA Today network, reported that “[t]he parks ban emerged in June after numerous residents complained of overcrowding at local parks, particularly by Orthodox Jews.”  It is not clear if BREA will now withdraw its lawsuit, given the Township’s apparent concession.

At the same meeting, the Mahwah Township Council proposed an ordinance that would allow both residents and non-residents to use Township parks.  See page 68 of the Township Agenda Packet for more information on the newly proposed ordinance.