An interesting decision regarding RLUIPA and COVID-19 emergency public health orders was recently issued by a federal court in Missouri. Recall that in the land use context, RLUIPA applies only to “land use regulations.” The statute defines land use regulations as “a zoning or landmarking law, or the application of such law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.” The statute also provides that it is to be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” Despite the statute’s broad protection, the court in Abundant Life Baptist Church of Lee’s Summit, Missouri v. Jackson County, Missouri dismissed the church’s RLUIPA claims challenging emergency public health orders which restricted large gatherings, including church gatherings. The court ruled that RLUIPA did not apply because the emergency orders were not “land use regulations” and therefore not subject to RLUIPA. Instead, the court concluded that the orders regulate “conduct,” not “land use,” and dismissed the church’s claims. Some of the church’s First Amendment Free Exercise Clause claims survived for another day because those claims can challenge any governmental law or action, not just land use regulations.
A federal court in Florida recently ruled that Pass-A-Grille Beach Community Church, Inc. (Church) was likely to prevail on its RLUIPA substantial burden claim challenging the City of St. Pete Beach’s enforcement of parking regulations. Since 1957, the Church has allowed the general public to use its parking lot free of charge to access the beach. According to the Church, providing free beach parking is part of its religious exercise in that free parking helps to attract people to the Church and affords the Church a “unique opportunity to serve the community and reach out to people who may not otherwise come to the Church.” Over the years, the Church’s youth group decided to evangelize, pray for, and seek donations for their mission trips from people who parked in the Church’s lot. Some of the Church’s neighbors were unhappy and complained to the City about the Church’s parking practices. In 2016, the City took the position that its land use ordinances prohibited the Church from allowing anyone who is not a “customer” or “patron” of the Church from parking in the Church’s lot.
On January 26, 2021, the court granted the Church’s motion for a preliminary injunction and enjoined the City from enforcing its land use ordinance “to prevent or attempt to prevent the Church from continuing to allow the general public to use its parking lot, soliciting charitable donations on the lot, and evangelizing those who park in its lot.”
The U.S. Court of Appeals for the First Circuit recently found in favor of the Town of Pembroke, New Hampshire regarding the Town’s denial of an application for an electronic sign permit for religious messages. The Town’s Zoning Board of Adjustment (Board) denied the permit because it believed the sign would “detract from the rural character of the Route 3 corridor” and noted the Town’s interest in maintaining its “quaint little New England village” aesthetic. Signs for Jesus and Hillside Baptist Church (collectively, the Church) sued the Town after the Board denied a permit to install an electronic sign on Hillside Baptist Church’s property which would transmit messages provided by Signs for Jesus. According to the Church, the denial of the permit and the Town’s local sign code violated the First Amendment to the U.S. Constitution, RLUIPA’s equal terms and substantial burden provisions, and state law. The First Circuit did not agree. It affirmed the District Court’s decision granting summary judgment to the Town. Our post regarding that decision is available here. Continue Reading First Circuit Rejects Signs For Jesus’ RLUIPA and Constitutional Appeal
If you are a municipality defending against a RLUIPA lawsuit, it is generally not a good sign when a court’s memorandum of decision begins with a string of biblical quotes. Wakulla County Florida experienced this earlier this summer. When granting a religious group’s motion for a preliminary injunction to operate a transition home, Judge Mark Walker opened his decision by writing:
“Lord, when did we see you hungry or thirsty or a stranger or needing clothes or sick or in prison and did not help you?” Matthew 25:44. To which the Lord replied, “Truly I tell you, whatever you did not do for one of the least of these, you did not do for me.” Id. 25:45. Scripture teaches that by serving those in need, particularly those shunned by society, one serves the Lord. See James 2:14-16 (“What good is it, my brothers and sisters, if someone claims to have faith but has no deeds? Can such faith save them? Suppose a brother or a sister is without clothes and daily food. If one of you says to them, ‘Go in peace; keep warm and well fed,’ but does nothing about their physical needs, what good is it?”).
The court went on to find that Wakulla County’s actions in prohibiting City Walk – Urban Mission Inc. (Urban Mission) from operating a transition home for three or more people, including registered sex offenders, violated RLUIPA’s substantial burden provision. Continue Reading Florida Court Finds RLUIPA Protects Transition Home for Registered Sex Offenders
Across the nation, religious institutions are challenging COVID-19-related restrictions on religious worship. There are too many cases to note. We recently posted about the U.S. Supreme Court’s (SCOTUS) decision denying an application for injunctive relief filed by South Bay United Pentecostal Church challenging California Governor Gavin Newsom’s Stay-At-Home order and 4-stage reopening plan which restricted religious worship gatherings. We also posted about district court cases from Kentucky and North Carolina where executive orders in those states were found to violate the Free Exercise Clause of the First Amendment. On May 30, the Third Circuit Court of Appeals, in a one-line order, upheld a decision by the District Court for the District of Delaware that declined a church’s request for a temporary restraining order against enforcement of Delaware Governor John Carney’s COVID-19 emergency orders. Continue Reading Judicial Restraint in the Time of COVID-19?
In a 5-4 decision, the U.S. Supreme Court denied an application for injunctive relief filed by South Bay United Pentecostal Church (Church) challenging California Governor Gavin Newsom’s Stay-At-Home order and 4-stage reopening plan as it relates to religious worship gatherings. The Church, which has between 3 and 5 services each week with 200 to 300 congregants, sought to enjoin the restrictions which limit attendance at places of worship to 25% of building capacity or a maximum of 100 people. The U.S. Court of Appeals for the Ninth Circuit denied the Church a temporary restraining order and preliminary injunction to enjoin the religious worship restrictions. A week later, the Supreme Court denied the Church’s application for injunction relief. Justices Ginsburg, Breyer, Kagan and Sotomayor voted to deny the injunction but did not write an opinion. Chief Justice Roberts concurred in denying the injunction and filed a short opinion. Justice Kavanaugh filed a dissenting opinion, which was joined by Justices Thomas and Gorsuch. Justice Alito dissented but did not write an opinion. Continue Reading U.S. Supreme Court Upholds California’s COVID-19 Restrictions on Religious Worship
Last week, a federal court in North Carolina issued a temporary restraining order enjoining the assembly of religious worship provisions in Governor Roy Cooper’s Executive Order 138 (EO-138). The court found that EO-138 was likely to violate the Free Exercise Clause of the First Amendment. Under EO-138, all worship services involving more than 10 people must be held “outdoors unless impossible.” Governor Cooper’s Director of Legislative Affairs issued a “Guidance for Religious Services and Mass Gathering Restrictions” that provides:
In situations where it is not possible to conduct worship services outdoors or through other accommodations – such as through, for example a series of indoor services of ten or fewer attendees or through on-line services – the ten-person attendance limit on indoor worship services does not apply. For example, there may be situations where particular religious beliefs dictate that some or all of a religious service must be held indoors and that more than ten persons must be in attendance.
Earlier this month, a federal court in Kentucky temporarily enjoined an order issued by the Mayor of Louisville on the grounds that the order likely violated First Amendment and Kentucky’s Religious Freedom Restoration Act. On Holy Thursday, Mayor Greg Fischer ordered Christians not to attend Sunday services, including for the Easter holiday, even if they remained in parked cars. On Fire Christian Center, Inc. (On Fire) wanted to hold its Easter worship service and planned to have its congregants attend by remaining in their parked vehicles 6-feet apart in accordance with CDC guidelines. The only people who would be outside of cars would be the pastor and a videographer. On Fire sued the Mayor and City of Louisville and sought a temporary restraining order (TRO) to prevent the enforcement of the order. The court issued agreed with On Fire and issued the TRO. According to the court, “if beer is ‘essential,’ so is Easter.” (The court was quick to point out that it did “not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it.”) Continue Reading Federal Court: “if beer is ‘essential,’ so is Easter.”
Excerpt of a contributed article published in the New York Law Journal on February 28, 2020.
Absent a petition for certiorari to the U.S. Supreme Court, the Feb. 6, 2020 denial of the plaintiffs’ petition for rehearing en banc by the U.S. Court of Appeals for the Second Circuit will bring to a close almost 13 years of litigation over the school zoning laws of the Village of Pomona. With the issuance of the court’s mandate, the Second Circuit panel decision of Dec. 20, 2019, Congregation Rabbinical College of Tartikov v. Village of Pomona, 945 F.3d 83, is now final. That decision overturned the district court’s finding that two Village zoning laws were enacted in 2001 and 2004 with the intent to discriminate against the Orthodox/Hasidic community, leaving those laws in effect.
Religious entities that wish to short-circuit the often lengthy zoning application process are tempted to bring a facial challenge under RLUIPA. As the decision in Calvary Chapel Bible Fellowship v. County of Riverside, 948 F.3d 1172 (9th Cir. 2020) demonstrates, this approach can face as many hurdles as the zoning application. Continue Reading Ninth Circuit Rejects RLUIPA Facial Challenge