Pave it! RFRA Unlikely to Protect Sacred Burial Ground

A Federal Magistrate Judge for the United States District Court of Oregon recently issued findings and recommendations in Chief Wilder Slockish, et al. v. U.S. Federal Highway Administration, et al., concluding that federal highway construction work did not impose a substantial burden on plaintiffs’ religious exercise. Plaintiffs, including members of the Confederated Tribes of the Yakama Nation, alleged that defendants substantially burdened “their right to exercise religion by ‘damaging and destroying a historic campground and burial grounds through tree cutting and removal, grading, and ultimately burying the campground and burial grounds,’ and ‘by blocking off access to these by installation of a new guardrail.’”  Specifically, the plaintiffs objected to the Wildwood-Wemme highway widening project on U.S. Highway 26, in an area traditionally known to plaintiffs’ tribes as Ana Kwna Nchi nchi Patat (the “Place of Big Big Trees”) near Mount Hood. Plaintiffs’ allegations are further detailed in their complaint.

The Court concluded that plaintiffs’ RFRA substantial burden claim was foreclosed by the Ninth Circuit’s decision in Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008).  In Navajo Nation, the Ninth Circuit noted that RFRA was passed in order to restore the free exercise “compelling interest” test of pre-Employment Division v. Smith cases, wherein a substantial burden was evident when a plaintiff was forced to choose between following the precepts of her religion and forfeiting a governmental benefit (Sherbert v. Verner), or violating state law and following religious convictions (Wisconsin v. Yoder).  In Navajo Nation, plaintiffs contended that the use of wastewater to produce artificial snow on a scared mountain substantially burdened their religious exercise. The Ninth Circuit rejected this claim and held that

a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a ‘substantial burden’—a term of art chosen by Congress to be defined by reference to Supreme Court precedent—on the free exercise of religion…. Where …. there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no ‘substantial burden’ on the exercise of their religion… The presence of recycled wastewater on the Peaks does not coerce the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, nor does it condition a governmental benefit upon conduct that would violate their religious beliefs, as required to establish a ‘substantial burden’ on religious exercise under RFRA…

In light of this holding and its progeny, the Court concluded “that plaintiffs have failed to establish a prima facie case that their right to exercise religion has been substantially burdened.” Although na Kwna Nchi nchi Patat / Place of Big Big Trees is located on federal land, plaintiffs did not demonstrate that they are “being coerced to act contrary to their religious beliefs under the threat of sanctions or that a governmental benefit is being conditioned upon conduct that would violate their religious beliefs.”

Original photograph by Whatknotsome rights reserved.


Religious Land Use Controversy Brewing in Laurel, Maryland: Can a Church Worship in a Coffee Shop?

Redemption Community Church (the “Church”) has filed a federal lawsuit against the city of Laurel, Maryland (the “City”), after the City issued a cease and desist order prohibiting the Church from offering religious services at the coffee shop it owns in the City’s community-village zoning district (the “CV Zone”).

According to the complaint, the Church purchased a 0.12 acre lot located at 385 Main Street in the City in March 2015 (the “Property”), with the intention of operating a non-profit coffee shop Monday through Saturday, and a house of worship on Sundays.  When the Church first entered into a purchase agreement for the Property, non-profit businesses and houses of worship were permitted uses in the CV Zone.  Less than a month after the Church entered the purchase agreement, however, the City amended its Code on March 9, 2015, to exclude non-profit businesses from the CV Zone, and again on April 27, 2015, to require a special exception for houses of worship located on less than one acre in the CV Zone.  Together, these amendments prohibited both of the Church’s originally intended uses for the Property.

In November 2015, the Church decided to reorganize as a for-profit entity, so that it could operate the coffee shop as originally intended.  It thereafter undertook extensive renovations, and the City issued it a use and occupancy permit to operate a for-profit coffee shop on April 3, 2017; the shop opened for business two days later.  Beginning on April 9, 2017, the Church began hosting worship gatherings of twenty or fewer people in the basement of the coffee shop for two hours on Sundays, while the shop was closed.

After some two months of these Sunday gatherings, the City issued a cease and desist order on July 27, 2017.  The Church, however, continued to hold small worship gatherings on Sundays, believing it was not in violation of the City code or its use and occupancy permit.  It was not until the City issued a second cease and desist order, on January 26, 2018, that the Church stopped holding Sunday worship gatherings.

In its Complaint, the Church alleges that the City’s April 2015 Code amendment (requiring houses of worship on less than one acre in the CV Zone to undergo “a costly and onerous special exception process”) discriminates against the Church on the basis of its religion, both on its face and as applied (nondiscrimination claim).  Moreover, the Church alleges this is unequal treatment to which secular assemblies and institutions, such as community theatres, health club or spas, libraries, museums, or schools for business, art or music, are not subject (equal terms claim).

The Complaint in Redemption Community Church v. City of Laurel (D. MD. 2018), available here, also asserts claims under RLUIPA’s substantial burden provision, the First Amendment’s Free Exercise, Free Speech, Free Assembly, and Establishment clauses, and the Fourteenth Amendment’s Equal Protection clause.

Original photography by Mark, some rights reserved.

Satanists Sue Scottsdale, AZ Over Legislative Prayer Policy

The Satanic Temple and one of its members, Michelle Shortt, are suing the city of Scottsdale, Arizona and individual municipal officials in federal court, alleging that a Satanist was denied the opportunity to open a City Council meeting with prayer. The Temple and Ms. Shortt claim that by doing so, the defendants have violated the First Amendment’s Establishment Clause by permitting members of Judeo-Christian faith to give prayer, but preventing Satanists from doing so.  This is not the first time that The Satanic Temple has made news in Arizona, as the Temple locked horns with the cities of Scottsdale and Phoenix in 2016, with the latter temporarily banning its 65-year pre-meeting prayer policy rather than allow a Satanist to provide prayer (prior post here).

According to The Satanic Temple, its mission is “to encourage benevolence and empathy among all people. In addition, we embrace practical common sense and justice.  As an organized religion, we feel it is our function to actively provide outreach, to lead by example, and to participate in public affairs wheresoever the issues might benefit from rational, Satanic insights.  As Satanists, we all should be guided by our consciences to undertake noble pursuits guided by our individual wills.  We believe that this is the hope of all mankind and the highest aspiration of humanity.”

Ms. Shortt, a self-identified Satanist since age 14 and member of The Satanic Temple since its inception, and who holds an Associate’s of Applied Science degree in mortuary science and is self-employed as a model, requested permission to open a City Council meeting with prayer. The Satanic Temple and Ms. Shortt allege that the city initially approved Ms. Shortt’s request to give an invocation, but never provided her with the opportunity to do so.  Plaintiffs further allege that “[a] review of the invocations during 2008 through 2016 reveal that every invocation given was of the Judeo-Christian faith.”

According to the complaint, one defendant sent responses to constituents “stating that while she likes having the prayers, she does ‘NOT want the Satanists’ and considers allowing them to speak ‘taking equality too far.’” Another defendant allegedly made a public statement stating that she would leave the meeting if The Satanic Temple were allowed to give an invocation.  Finally, The Satanic Temple alleges that in an election pamphlet, “Mayor Lane listed that he ‘stopped so-called “Satanists” from mocking City Hall traditions with a ‘prayer.’”

The complaint in The Satanic Temple v. City of Scottsdale, Arizona is available here.

*Original photography by Ty Jamar, some rights reserved.

Registration Open: 32d Annual Land Use Institute

Registration is now open here for the 32d Annual Land Use Institute to be held April 19-20, 2018 in Detroit, Michigan.  This is the program, previously produced by ALI-ABA for many years, which is now produced by the American Bar Association’s Section of State and Local Government Law.  The web site includes the faculty list and agenda and registration links.

Planning Co-chairs Frank Schnidman and Dean Patricia Salkin have assembled faculty from across the country, including RLUIPA-Defense’s own Dwight Merriam.  The conference will cover just about any and every area of land use law of interest, including: Affordable Housing; Agricultural Land; Comprehensive Planning; Development Agreements; Eminent Domain; Environmental Justice; Exactions; First Amendment; Historic Preservation; Impact Fees; Moratoria; Non-Conforming Uses; Takings; Variances; Vested Rights and Wetlands.

Church’s RLUIPA Claims Unripe and Moot, Says Federal Court

A federal district court in Illinois has dismissed religious discrimination and related claims alleged by the Church of Our Lord & Savior Jesus Christ (“Church”) against the City of Markham, Illinois (“City”), in connection with the City’s denial of the Church’s application for a conditional use permit.  We previously posted about this case, Church of Our Lord & Savior Jesus Christ v. City of Markham, here and here.

The Church has been meeting at a residence previously owned by its pastor since 2003 (the “Property”).  In 2013, the Church applied to the City for zoning approval to operate the Property as a church in a residential zone.  During its review of the Church’s application, town officials questioned the sufficiency of parking at the site and ultimately denied the application after finding parking plans were inadequate.  After the City denied the Church’s application, the Church brought this suit.

In 2015, the Church’s nondiscrimination claims were dismissed for failing to allege facts to support the claim. However, the Court declined to dismiss claims brought by the Church under RLUIPA’s substantial burden provision, finding that these claims were adequately pled and the City’s reasons for denying the Church’s permit were not clear at the initial stage of the case. See Memorandum Opinion and Order, dated August 19, 2015.

In 2016, after reviewing the parties’ summary judgment motions and supplemental briefs, the Court struck without prejudice the dueling summary judgment motions, and ordered the Church to submit an application for a variance regarding the amount of parking required.  The Order did not opine as to whether the Church needed, or the City should approve, a parking variance, but nonetheless stayed the case until a decision on such application, allowing the parties to renew their summary judgment motions at a later date.  Accordingly, the Church submitted a variance application to the City, which was granted, in part, in March 2017.

Having concluded the variance application process, the parties renewed their motions for summary judgment, resulting in the instant decision.  See Church of Our Lord & Savior Jesus Christ v. City of Markham (N.D. Ill., Feb. 13, 2018).

After a lengthy discussion of the parties’ “inability to hone in on the relevant issues,” the Court determined that the Church’s substantial burden claim was not ripe at the time it was filed.  The Court found that the Church improperly chose to seek recourse through the court, rather than through the City’s administrative process, when there remained available to the Church administrative remedies that could grant the Church the relief it sought without the need for judicial intervention.  As for the Church’s “purported financial setbacks” or its members’ alleged “emotional harm” resulting from the Court’s delayed consideration of the merits of this case, the Court noted: “[T]hese injuries are of [the Church’s] own making given its failure to seek the variance earlier.”

Additionally, the Court explained that, because the Church has now received a variance, there is no present case or controversy, such that the Church’s substantial burden claim is moot.

Original photography by Anthony Austonsome rights reserved.

Third Time’s Not the Charm for Trump’s Travel Ban

The Fourth Circuit ruled earlier this month that the Trump Administration’s third attempt at an immigration and travel ban, imposed on eight predominately Muslim countries, was likely to violate the Establishment Clause. On September 24, 2017, President Trump issued Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (the “Proclamation”).  The Proclamation was the third iteration of the “travel ban” promised by Trump while he was a presidential candidate.  The most recent decision by the Fourth Circuit is consistent with its earlier decision that the second iteration of the travel ban likely violates the Establishment Clause (prior post here).

The Proclamation was based on a report compiled by the Department of Homeland Security (the “Department”).  The Department reviewed information sharing and other factors on a country-by-country basis and assessed whether each country supported the United States’ ability to confirm the identity of individuals seeking entry into the United States. This report provided rationale for the Proclamation, but was not made available for judicial review. Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen were included in the Proclamation’s travel ban after the Department found their support to the United States was inadequate. Somalia did not meet the baseline criteria of inadequacy, but was still added to the ban list because of the “government’s inability to effectively and consistently cooperate, combined with the terrorist threat that emanates from its territory….”  Iraq’s support to the United States was found inadequate, but Iraq was not included on the Proclamation’s list because  of “the close cooperative relationship between the United States and the democratically elected government of Iraq….”

The Court ultimately found that the plaintiffs challenging the Proclamation had a strong likelihood of success on the merits of their Establishment Clause claim. Howard Friedman’s Religion Clause Blog, quotes the majority opinion, which rejected the government’s basis for the Proclamation:

[H]ere the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2 [travel ban 1 and 2], addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2…..

The Court therefore concluded that the Proclamation lacked a secular purpose and that “[t]o the objective observer, the Proclamation continues to exhibit a primarily religious anti-Muslim objective.”  The Fourth Circuit’s decision in International Refugee Assistance Project v. Trump, (4th Cir. en banc, Feb. 15, 2018), is available here.

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.