Our friends at the Otten Johnson law firm in Denver, Colorado have launched a sign law blog –Rocky Mountain Sign Law Blog – that should be of interest to our readers. In addition to covering the latest issues in sign regulation, the blog also tracks all types of First Amendment issues. Check out their latest post $435,000 Damage Award to Milwaukee Strip Club Upheld. One of the blog’s authors, Brian Connolly, has contributed guest posts for us in the past. Read his guest post Life After Reed v. Gilbert and check out the new blog.
We don’t often report on RLUIPA prisoner cases (recall, that RLUIPA applies in the land use and prison contexts). But a recent federal decision in Nebraska – Cavanaugh v. Bartelt (D. Nebraska 2016), is just too good to pass up. Stephen Cavanaugh, a prisoner in the Nebraska State Penitentiary, claims that he is “Pastafarian” – a believer in the divine Flying Spaghetti Monster who practices “FSMism.” As noted by the court in its decision, FSM gospel states as follows:
Can I get a “Ramen” from the congregation?!
Behold the Church of the Flying Spaghetti Monster (FSM), today’s fastest-growing carbohydrate-based religion. According to church founder Bobby Henderson, the universe and all life within it were created by a mystical and divine being: the Flying Spaghetti Monster. What drives the FSM’s devout followers, aka Pastafarians? Some say it’s the assuring touch from the FSM’s Noodly Appendage. There are those who love the worship service, which is conducted in Pirate-Speak and attended by congregants in dashing buccaneer garb. Still others are drawn to the Church’s flimsy moral standards, religious holidays every Friday, and the fact that Pastafarian Heaven is way cooler. Does your Heaven have a Stripper Factory and a Beer Volcano? Intelligent Design has finally met its match—and it has nothing to do with apes or the Olive Garden of Eden.
Within these pages, Bobby Henderson outlines the true facts—dispelling such malicious myths as Evolution (“only a theory”), science (“only a lot of theories”), and whether we’re really descended from apes (fact: Humans share 95 percent of their DNA with chimpanzees, but they share 99.9 percent with Pirates!).
Mr. Cavanaugh requested the same accommodations afforded to prisoners of other religious faiths, including through ordering and wearing certain clothing (Pastafarians dress as pirates and believe that global warming is caused by the decreasing number of pirates on the high seas), weekly worship services and classes, and the right to receive communion. Prison officials rejected his requests because they determined that FSMism was a parody of a religion (not a religion itself). Cavanaugh sued under RLUIPA, the Free Exercise Clause, the Equal Protection Clause, and state law.
The federal court agreed with the prison officials and found “that FSMism is not a ‘religion’ within the meaning of the relevant federal statutes and constitutional jurisprudence. It is, rather, a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education. Those are important issues, and FSMism contains a serious argument – but that does not mean that the trappings of the satire used to make that argument are entitled to protection as a ‘religion.’” The court further elaborated:
This case is difficult because FSMism, as a parody, is designed to look very much like a religion. Candidly, propositions from existing caselaw are not particularly well-suited for such a situation, because they developed to address more ad hoc creeds, not a comprehensive but plainly satirical doctrine. Nonetheless, it is evident to the Court that FSMism is not a belief system addressing ‘deep and imponderable’ matters: it is, as explained above, a satirical rejoinder to a certain strain of religious argument.
In the end, all of Mr. Cavanaugh’s claims were rejected. The decision is especially interesting for its discussion about the role of the courts in evaluating whether a belief is or is not religious. Although the case involves a prisoner’s claim, most of the court’s discussion about religious exercise applies to the land use context. Consider when local zoning agencies are confronted with development proposals from “non-traditional” religious groups. As noted by the court in this case, it is not the role of the judiciary to question religious beliefs. This case, however, presents an example of when a belief is not sufficiently religious to invoke the RLUIPA statute.
For anyone interested in learning more about the Church of the Flying Spaghetti Monster, an informational video “introducing His Noodliness – the Flying Spaghetti Monster” – is available here.
The U.S. District Court for the Middle District of Alabama has ruled that Ricky Martin may proceed with his religious land use and other claims against the Chilton County District Attorney Randall Houston. The Middle District of Alabama case Martin v. Houston involves Pastor Ricky Martin’s Triumph Church in Clanton, Alabama. Martin began a transitional housing program for men recently released from Alabama correctional facilities, many of whom were sex offenders. As part of his religious mission, he strives to help these individuals transition back into society. To do so, he set up 5 mobile homes on his land, all within 300 feet of each other. Sex offenders Martin hoped to help lived together in these mobile homes.
Alabama lawmakers adopted legislation (Alabama Code § 45-11-82) (the “Act”) that prohibited individuals whose names were listed on the Alabama sex offender list from living together in the same home, and further provides that offenders cannot live on the same property as another offender unless the homes are at least 300 feet apart. Violation of the Act constitutes a public nuisance with fines between $500 and $5,000 for each violation. The Act does not apply to offenders who are married or related. The Act applies only to Chilton County (which includes Clanton), but nowhere else in Alabama.
Martin argues that the Act was designed to affect only his property – to eliminate the transitional housing settlement. Fearing fines, Martin evicted all men living at his property. Martin sued alleging that the Act violates RLUIPA’s substantial burden provision and the Free Exercise Clause of the federal Constitution. He also argues that the Act is an unconstitutional bill of attainder, and raises a Fourteenth Amendment procedural due process claim.
Defendant Houston moved to dismiss the claims, first arguing that the Court lacked subject matter jurisdiction, and, second, that each action fails to state a claim upon which relief could be granted. The Court found that the claims were justiciable and that it had subject matter jurisdiction over them.
The Court found that Martin had not sufficiently alleged one of the three “jurisdictional hooks” to present a colorable RLUIPA substantial burden claim. The Court, however, denied the motion to dismiss with respect to this claim, since Houston did not seek dismissal on this ground, and it will allow Martin to attempt to establish one of the hooks. For a court to entertain a substantial burden claim, the plaintiff must establish either that the substantial burden: (a) is imposed on a program that received federal financial assistance; (b) affects commerce among the several states; or (c) is imposed in the implementation of a land use regulation under which the government makes an individualized assessment. Here, the Court found that the Act was not an individualized assessment, since it did not involve a system of granting land use permits. Nor were there sufficient allegations to support either of the other two jurisdictional hooks.
The Court also found that Martin had sufficiently pleaded a Free Exercise Claim: “Martin’s pleading indicates that he holds sincere religious beliefs. As part of his Christian faith, he feels that he has a duty to serve others. He especially is compelled to serve those in need of help, and [sex offenders] fall into that category.” The Court also suggested that based on the facts before it, it appeared that Martin could prevail on such a claim. According to the Court, strict scrutiny should apply because it appears that the Act improperly targets Martin’s religious activity. Further, the Court observed that at this stage, there was no evidence that the Act served a compelling governmental interest advanced in a narrowly tailored manner:
Even if the Act serves a compelling governmental interest in preventing some type of harm posed by the clustering of sex offenders, it allows them to live in clusters so long as the sex offenders are related. What is more, it allows the same clustering to take place throughout the other sixty-six counties in the state. This indicates that the Act proscribes some conduct that is protected by the First Amendment, but fails to restrict other conduct that inflicts the same harm the Act was designed to prevent.
Martin’s unconstitutional bill of attainder and procedural due process claims were also allowed to proceed.
Rabbi Moshe Gourarie and the Chabad Jewish Center of Toms River Inc. (the “Center”) have sued the Township of Toms River, New Jersey, and the Township’s Zoning Board of Adjustment (“ZBA”) in the Federal District Court of New Jersey. The Center’s complaint is available here.
Rabbi Gourarie has run the Center from his home and garage on eight acres within the Township’s Conservation Residential Zone since 2011 (the “Property”). Prior to 2011, he operated the Center from a home he rented in another part of the Township. According to the complaint, the Property is bordered on three sides by non-residential uses. The Property is in a zone, however, that does not allow houses of worship by right or as a conditional use. In the complaint, the Center contends that under New Jersey law, a clergy residence or parsonage must be allowed in any zoning district, and that the Township cannot legally prevent small religious gatherings within a private residence.
According to the Center, the Property is primarily used as a residence, but is also used for small religious gatherings on Saturdays with between 10 to 15 people. The Property is also used to host occasional gatherings with an average of 12 people, various classes on topics within Judaism that attract an average of 10 people, and Hebrew school classes for five children. In December, 2015 the ZBA ruled that the Center had to obtain a use variance to continue operating from the Property. The Center’s ZBA application was filed after the Township cited Gourarie for eight zoning violations in 2014, including establishing a use not permitted and failure to obtain a development permit.
The complaint alleges significant anti-Semitic hostility in Toms River, including vandalism at a local playground where “burn the Jews” was etched on a piece of equipment. The complaint also cites pages of comments made by Township residents on media websites and Facebook as evidence of hostility towards Jewish individuals.
The complaint states that some residents have placed lawn signs on their properties reading: “Don’t Sell! Toms River Strong.” Residents in the North Dover section of Toms River claim that they have been the subject of high-pressure tactics by real estate agents seeking to buy property on behalf of Orthodox Jewish clients. The complaint alleges that the signs are part of a campaign to keep Ultra-Orthodox Jews out of Toms River. A neighboring town, Lakewood, has a large population of Ultra-Orthodox Jews and the Center claims that the Township has taken several discriminatory actions to keep the same population out of Toms River, including an ordinance limiting real estate canvassing.
The ZBA divided a review of the Center’s application into two phases: (1) to determine whether a variance is required; and (2) if a variance is required, whether it should be granted. After a public hearing, the ZBA concluded that the Center was a “House of Worship” because the Property was being utilized “for more than a casual prayer group.” The Center claims that the determination of use is a final determination under New Jersey law, making its claims ripe for judicial review. The Center also claims that it cannot afford to apply for a use variance. It therefore filed its lawsuit, claiming four counts in violation of RLUIPA (substantial burden, equal terms, nondiscrimination, and exclusion and limits), violation of the Federal Fair Housing Act, violation of its Constitutional rights to Free Exercise and Equal Protection, as well as violations of New Jersey law and the New Jersey Constitution.
I just returned from the American Planning Association’s National Conference in Phoenix, Arizona. I look forward to this conference every year to get together with planners from across the country, eat some local food, and drink some local beverages. This year, I spoke about the Religious Land Use & Institutionalized Persons Act as part of a session with Professor Alan Weinstein of Cleveland-Marshall College of Law and Don Elliot of Clarion Associates, with about 200 planners and lawyers in attendance. Alan and Don spoke about the Telecommunications Act and the Fair Housing Act. Here are 5 takeaways from the conference.
1) A large number of planners have not received RLUIPA training. About half of the planners listening to me speak responded that they have not been trained. This is a trend that needs to change, as at least one federal decision has found a RLUIPA violation in part because of a lack of proper training and knowledge of the federal statute. The United States Department of Justice has issued some great materials that all planners and local officials should have at their desks. They’re available here and here.
2) There is some confusion about what is a “land use regulation” under RLUIPA. Remember, the statute applies only to land use regulations, defined in part to mean “a zoning or landmarking law.” Building and safety codes do not invoke the statute, environmental review might, and eminent domain probably does not. Check out slide 7 of my PowerPoint, here.
3) When the unforeseen happens, sometimes you just have to go with the flow. During our presentation, Jefferson Airplane’s “Somebody to Love” suddenly started blaring throughout the auditorium. It was a little strange, but we continued on. This translates nicely into zoning hearings regarding religious land use proposals. Planners and local officials need to be prepared for the unexpected (including comments from members of the public and, even, fellow officials that do not reflect the views of a municipality).
4) Phoenix has a great selection of breweries. I recommend Mother Bunch Brewing. When you’re there, try the Old Skool IPA. Their smoked wings, pulled pork, macaroni and cheese, and baked beans are also highly recommended.
5) Phoenix is making great strides in promoting public transit, greenspace, and outdoor art. Check out the photo album from Lexington, Massachusetts planner David Fields here. There’s a lot to see in Phoenix if you have time to enjoy the dry heat and explore.
The District Court for the Northern District of Illinois has rejected RLUIPA and other claims asserted by a religious group in Affordable Recovery Housing v. City of Blue Island (N.D. Ill. 2016). The case stems from Affordable Recovery Housing’s (ARH) attempt to open a faith-based recovery home for adult men recovering from drug and alcohol addictions. The City’s Fire Chief found that ARH had failed to comply with safety regulations requiring sprinklers, and ordered that ARH cease operating the recovery house until it obtained the proper licenses. ARH appealed the Fire Chief’s order to the City Council but the order was upheld. According to ARH, 73 men living at the recovery house were then forced to leave.
When the Fire Chief’s order was issued, the City was evaluating a special use permit application to allow ARH to operate a “planned use development,” which is “a group of two (2) or more principal buildings designed to be maintained and operated as a unit in single or multiple ownership or control and which has certain facilities in common, such as yards and open spaces, recreation areas, garages and parking areas.” Although ARH had been renting space to operate at the site, following discussion with the City’s Mayor, it submitted the special use permit application at the City’s urging. The City’s Zoning Board of Appeals approved of ARH’s use of the property, but rejected ARH’s request to allow it three years to install the sprinkler system.
ARH sued under RLUIPA, the U.S. Constitution, the Federal Fair Housing Amendments Act, and the Illinois Religious Freedom Restoration Act (“IRFRA”). The District Court rejected the RLUIPA and Illinois RFRA substantial burden claims because it found that the sprinkler issue concerned safety regulations – not a “land use regulation,” subject to the protections of the statutes. Specifically, the eviction was made pursuant to the fire safety code, not a zoning ordinance, and the fact that ARH had raised the fire safety issue in the context of its special use permit application did not transform it into a land use regulation. ARH also claimed that the City acted in bad faith and sent it on a “fool’s errand” with respect to zoning compliance, but the District Court disagreed since the Zoning Board of Appeals approved the special use proposal.
One interesting aspect of the decision is that the Court noted that the substantial burden analysis in the Seventh Circuit is now easier for plaintiffs to satisfy:
For many years, the Seventh Circuit described a substantial burden under RLUIPA as one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise effectively impracticable… However, in Schlemm v. Wall … the Seventh Circuit recently revisited that standard, noting that two later decisions of the Supreme Court articulate a standard much easier to satisfy… The court explained that the relevant inquiry is whether a particular restriction seriously violated the plaintiff’s religious beliefs, including any exercise of religion, whether or not compelled by, or central to, a system of religious belief (internal quotes and citations omitted).
ARH’s First Amendment Free Exercise claim also failed because the sprinkler regulation at issue was neutral and generally applicable – meaning that it applied equally to all uses (religious or not), and any burden on religion was incidental. It failed to establish claims brought under RLUIPA’s equal terms and unlawful exclusion provisions, as well as the Fair Housing Amendments Act, since the City’s sprinkler requirement “does not hurt handicapped people by reason of their handicap” (emphasis in original).
Even though ARH was unsuccessful, the case may prove to be an important one for religious groups suing under RLUIPA given the Court’s application of a relaxed substantial burden standard. We previously reported on this trend in the context of the prisoner case – Schlemm v. Wall (post available here).
The Freedom From Religion Foundation sued the Morris County Board of Chosen Freeholders, the Morris County Preservation Trust Fund Review Board, and Joseph A. Kovalcik, Jr. (“Defendants”) in New Jersey Superior Court claiming that the use of taxpayer money to fund the restoration of churches violates the New Jersey Constitution and the New Jersey Civil Rights Act (“State Laws”). In response, the Defendants claimed that the State Laws were preempted by federal law, namely, the Fourteenth Amendment to the United States Constitution and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Given their federal defenses, the Defendants removed the case to the Federal District Court.
The District Court, however, remanded the matter back to state court after it recognized that the Plaintiffs’ complaint included no federal claims. While this was not dispositive to the remand decision, the District Court concluded that “[a]lthough Defendants’ arguments center around potential federal defenses they may raise, that does not bring Plaintiffs’ original cause of action within the jurisdiction of this Court.”
Although the decision in Freedom From Religion Foundation et al. v. Morris County Board of Chosen Freeholders, et al. (available here) is procedural in nature (and not particularly interesting), it caught our attention at RLUIPA Defense given the unusual position of the Defendants. It is not common for a municipal defendant to use RLUIPA as a defense and claim that a state’s constitution and statutes are unconstitutional.
Readers: If you know of similar cases, please do share with us, and we’ll be happy to share the same on RLUIPA-Defense.com. In the meantime, we’ll keep an eye or two on Morris County Board of Chosen Freeholders as it unfolds in state court.
Late last year, Summit Church of Elkins, West Virginia, sued the Randolph County Development Authority (“RCDA”) in the Northern District of West Virginia for preventing the Church from purchasing a local movie theater for its religious use. The theater was part of a former CSX rail-yard that was purchased in 1997 by RCDA, subdivided, and then sold to as individual parcels to buyers subject to covenants (the “Covenants”) with the express purpose of redeveloping the former rail-yard “as a commercial mixed-used district that reflects the history and culture of the site.” See our prior post for additional background on Summit’s complaint here.
Summit Church moved for summary judgment on all its claims, which were: (1) violation of Free Exercise, (2) violation of Equal Protection, (3) violation of the West Virginia Constitution, (4) a facial challenge under RLUIPA, and (5) violation of Substantive Due Process.
The court limited its analysis to Summit’s RLUIPA Equal Terms challenge. RLUIPA’s Equal Terms provision states that “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or denomination.” Noting the lack of a binding Fourth Circuit case law, the court stated various “tests” developed in other circuits to determine what constitutes a valid secular comparator. The court identified three different approaches to the comparator determination:
(1) the “regulatory purpose” test;
(2) the “accepted zoning criteria” test; and
(3) the “functional intents and purposes” test.
First, the court reviewed the Third Circuit case Lighthouse Institute for Evangelism v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007), which “explained that the Equal Terms provision requires a secular comparator that is similarly situated as to the regulatory purpose of the regulation in question….” (emphasis in original). Without explanation or discussion of the other two tests, the court adopted the Third Circuit approach.
The court then reviewed the “regulatory purpose” of the of the Covenants (“redevelop the former railyard ‘as a commercial mixed-use district that reflects the history and culture of the site’”) and explained its view that the defendants failed to show how a church would harm the Covenants’ objectives any more than the other permitted uses. It reasoned:
RCDA permits several types of non-religious assemblies without explanation of how their presence in the Railyard further the Covenants’ objectives. For instance, convention centers that could be used for unspecified meetings are permitted. Libraries and post offices are permitted. Government offices are permitted. This Court fails to see how these are either “commercial” uses or how they “reflect the history and culture of the site.” The defendants wholly fail to attempt to define what they believe the “history and culture of the site” even is.
Based on this reasoning, the court granted Summit’s motion for summary judgment. The court’s decision is available here. The complaint in Summit Church v. Randolph County Development Authority (N.D. WV 2015) is available here.
Original photo by Karla Chaffee
The U.S. Court of Appeals for the Ninth Circuit has reversed a district court’s decision that Harbor Missionary Church’s (Church) religious exercise was not substantially burdened by the City of San Buenaventura’s denial of a conditional use permit. In 2008, the Church began providing service to the poor and needy in accordance with its religious beliefs. These services included religious teachings, prayer, clothing, food, showers, counseling, and other support. Homeless individuals came to the church for care and assistance, and neighbors began complaining about incidents of threats, trespassing, public nudity, and substance abuse. The Church took several steps in an effort to address these concerns – such as employing a security guard, enforcing a no-loitering policy, coordinating with social service agencies, requiring identification, strengthening neighborhood patrols, and maintaining a public complaint hotline.
In 2013, the City told the Church that if it wished to continue providing these services to the poor and needy, it would have to obtain conditional use approval. The Church applied for the permit and City staff members issued a report recommending approval of the application, subject to certain conditions. The City Planning Commission, however, denied the application without considering an approval subject to any conditions.
The Church sued under the Religious Land Use and Institutionalized Persons Act’s (RLUIPA) substantial burden provision, along with the Free Exercise Clause of the First Amendment. The Church moved for a preliminary injunction, but the district court concluded that the Church was unlikely to succeed on the merits of its claim, and declined entering the injunction. According to the district court, the Church could relocate to another neighborhood to serve the poor and needy. It further found that even if there were a substantial burden, a flat out denial of the conditional use permit was the least restrictive means of furthering the City’s interest of protecting public health and safety.
The Ninth Circuit reversed: “The district court erred in its analysis by minimizing the burden imposed on the Church’s free exercise of religion. The district court also erred in failing to properly consider the conditions recommended by the City’s staff when it determined that a complete denial of the conditional use permit was the least restrictive means to achieve the City’s compelling interest in public safety.”
Denial of the conditional use permit prevented the Church from continuing with its religious practice of feeding, clothing, and caring for those less fortunate. Forcing the Church to relocate this religious practice to another neighborhood would cost at least $1.4 million, an expense undisputed by the City. The Ninth Circuit found that this significant cost substantially burdened the Church’s religious exercise.
While the district court did not err in finding that the City had a compelling governmental interest in protecting public health and safety – it erred in concluding that the City had exercised the least restrictive means of furthering its interest. That is, the City failed to consider any of the conditions for approval previously recommended by City staff, or the wide variety of measures taken by the Church in response to neighbors’ concerns. Evidence suggested that the Church may have been willing to comply with some of the recommended conditions of approval. The Ninth Circuit instructed the district court as follows:
On remand, the district court should make factual findings, after such proceedings as may be necessary, about what conditions, if any, the Church would or would not comply with if the City had granted a conditional use permit. The court should also detail why the conditional use permit recommended by the City’s staff would or would not sufficiently protect the neighborhood from any negative effects shown to be the result of the Church’s ministry to the homeless.
The decision in Harbor Missionary Church v. City of San Buenaventura (9th Cir. 2016) is available here.
In our post last month Satanists Score Victory in Phoenix, we reported on the controversy involving the Satanic Temple’s request to open Phoenix City Council’s meeting with prayer. Long story short, the City opted to end a 65-year prayer policy and replace it with a moment of silence following the Satanic Temple’s request. World Religion News reports that the City Council has reversed course and will now re-implement its prayer policy. Reportedly, prayer will be limited to Phoenix Police or Fire Department chaplains only.
The Phoenix City Attorney apparently indicated that “it is not possible for a city to modify its prayer style with intentions of preventing other Satanic Church members from speaking. Doing so will become a breach of the first Amendment.” Based on the U.S. Supreme Court’s 2014 ruling in Town of Greece v. Galloway, this concern appears valid (prior post on the Greece decision here).
The Satanic Temple’s Twitter account states that “Satan stands as the ultimate icon for the selfless revolt against tyranny, free & rational inquiry, and the responsible pursuit of happiness.” Judging from its recent tweets, the Satanic Temple appears ready to stand true to its creed in its battle with the Phoenix City Council:
The Satanic Temple @satanicpsalms
If @CityofPhoenixAZ reopens invocations, we’re first on the schedule or we will sue for clear discrimination. And we will win. @MRNowakowski
10:51 AM – 2 Mar 2016
The Satanic Temple @satanicpsalms
Guaranteed @CityofPhoenixAZ : if prayer forum is reopened, having closed temporarily to silence us, we will aggressively pursue legal remedy
11:20 AM – 2 Mar 2016
The Satanic Temple @satanicpsalms
Know this @MayorStanton : if the invocation forum is reopened, we are first on the schedule, or we’ll file suit for discrimination (and win)
11:28 AM – 2 Mar 2016
The Satanic Temple @satanicpsalms
Tucson News Now: Phoenix returns prayer, The Satanic Temple strategizes with legal counsel: http://www.tucsonnewsnow.com/story/31371589/public-prayer-returns-to-phoenix-city-council-chambers … http://fb.me/2HUTbOF3l
1:56 PM – 3 Mar 2016