The D.C. Circuit Court of Appeals today, in a case based on the Religious Freedom Restoration Act, eliminated a major hurdle that had been in the way of the expansion of Chicago's O'Hare Airport. In Village of Bensenville v. Federal Aviation Commission, (DC Cir., Aug. 4, 2006), the court rejected a petition challenging the Federal Aviation Administration's approval of an airport layout plan-- a necessary step in obtaining federal funding. The approved plan involved relocating the remains of those buried in a nearby cemetery. Members of a church that owned the cemetery and descendents of those buried in it argued that moving the remains would substantially burden their religious exercise because of their belief in the physical resurrection of the bodies of Christian believers. Relying on RFRA, the challengers insisted that the FAA was required by RFRA to show that the plan they approved was the least restrictive means of meeting the government’s compelling interests in reducing airport delay and enhancing airport capacity.
In a 2-1 decision, the majority held that the expansion plan that will impact the cemetery was developed and will be implemented by the city of Chicago. RFRA applies only to the federal government, not to state and local government action. FAA approval does not turn the city's implementation into into federal action. Judge Griffith dissenting argued that FAA approval of a plan that it screened, studied, chose and modified is enough to require the FAA to comply with RFRA.
In addition, the court the court unanimously held that it lacked jurisdiction to consider a challenge to the FAA letter expressing a nonbinding intention to obligate federal funding for O'Hare's expansion because the letter was not a final order.
The Chicago Tribune covers the court's decision. It explains that additional litigation remains. A suit now before the U.S. 7th Circuit Court of Appeals, among other things, is challenging a 2003 Illinois law that specifically exempted the cemeteries involved from the state's Religious Freedom Restoration Act. (See prior posting.)
