DOJ Sues Virginia County Over Restrictions On Creating Muslim Cemetery

Last week, the U.S. Department of Justice filed a federal RLUIPA lawsuit against Stafford County, Virginia. The complaint (full text) in United States v. Stafford County, Virginia, (ED VA, filed 5/19/2020) alleges in part that the county has imposed:

restrictive zoning requirements that preclude the All Muslim Association of America ... from establishing an Islamic cemetery on land it owns, thereby impeding its religious practice of providing low-cost burial services to persons of the Islamic faith. The County’s actions constitute a substantial burden on the free exercise of the religion of the All Muslim Association, in violation of the  Religious Land Use and Institutionalized Persons Act of 2000....

The Justice Department issued a press release announcing the filing of the lawsuit.

5th Circuit Upholds Texas Prison Chaplain Execution Protocol

In Gutierrez v. Saenz, (5th Cir., June 12, 2020), the U.S. 5th Circuit Court of Appeals vacated a stay of execution that had been granted to a convicted murderer who complained about Texas' exclusion of chaplains from the execution chamber.  The court said in part:

Gutierrez fails to make a strong showing of a likelihood of success in establishing that TDCJ’s execution policy is not “reasonably related to legitimate penological interests.” ...

Perhaps Gutierrez is being denied the final measure of spiritual comfort that might be available. As important as that is, government action does not rise to the level of a substantial burden on religious exercise if it merely prevents the adherent from enjoying some benefit that is not otherwise generally available.

Minnesota Amish Must Install Septic Tanks

In Mast v. County of Fillmore, (MN App., June 8, 2020), the Minnesota state Court of Appeals rejected claims by four members of the Amish community that laws requiring them to install septic systems to dispose of their waste water violate their freedom of conscience under the Minnesota Constitution and their rights under RLUIPA. The Court of Appeals said in part:

the district court appropriately concluded that respondents met their burden of demonstrating that appellants’ mulch-basin system does not provide a less-restrictive means of accomplishing the government’s compelling interests of protecting public health and the environment.

Rochester Post Bulletin reports on the decision.

Church's RLUIPA Zoning Claim Rejected

In New Harvest Christian Fellowship v. City of Salinas, (ND CA, May 29, 2020), a California federal district court rejected a church's claim that the City of Salinas, California's zoning code violates its rights under RLUIPA. In order to stimulate pedestrian friendly commercial activity, the zoning code bans clubs, lodges, places of religious assembly, and similar assembly uses on the ground floor of buildings facing three blocks of Main Street. The city refused to grant zoning amendments to allow the church to use a building it purchased for worship services. The court concluded that the zoning restrictions did not violate either the substantial burden or the equal terms provisions of RLUIPA, saying in part:

New Harvest has not presented any evidence to counter the City’s evidence of feasible alternative locations....

New Harvest’s own evidence establishes that [four theaters permitted in the area] ..., unlike New Harvest, offer numerous activities throughout the week that would reasonably be expected to attract the general public, such as first run films, weddings, concerts, comedy shows, and other events. By contrast, New Harvest offers no evidence that its activities actually draw any non-members, and no evidence that its activities have a positive impact on commercial activity or vibrancy within the Main Street restricted area.

DOJ Sues New Jersey Town Over Anti-Jewish Zoning Ordinances

Last week the Department of Justice filed suit against the Township of Jackson, New Jersey alleging that it has violated RLUIPA by using its zoning ordinances to target the Orthodox Jewish community.  The Township banned schools (including religious schools) in certain zoning districts and banned dormitories throughout the township so that boarding schools cannot operate.  The complaint (full text) in United States v. Township of Jackson, (D NJ, filed 5/20/2020), alleges in part:

The 2017 Ordinances were enacted in response to the growth of the Orthodox community and the complaints Township officials received from residents about the Orthodox community....

Hostility toward the Orthodox community by Township officials and residents in Jackson has continued since the enactments of Ordinances 03-17 and 04-17 to the present time.

The Department of Justice issued a press release announcing the filing of the lawsuit.

Catholic Order May Build School, Gift Shop and Barn

In Fraternité Notre Dame, Inc. v. County of McHenry, 2020 U.S. Dist. LEXIS 40030 (ND IL, March 2, 2020), an Illinois federal magistrate judge, after holding a public hearing, approved a settlement agreement that allows a conservative order of Catholic nuns to construct a barn-like building for wine making, beer brewing, and canning, and to build a boarding school and a gift shop. In entering the settlement agreement, the parties stipulated that the county had violated the "substantial burden" provision of RLUIPA in denying an amended conditional use permit. The court's public hearing elicited comments both in favor of and opposed to the settlement agreement. The court said in part:

The historical religious bigotry Plaintiff has been subjected to provides a painful backdrop to this case. Plaintiff, its members, and the Property have been subjected to repeated acts of religious bigotry. The Property has been vandalized and desecrated in the most vile ways. Plaintiff's members have been threatened with lynching. And they have been placed in peril. For example, Plaintiff's vehicles have been vandalized in ways that affected the operation of the vehicles, including the loosening of lug nuts and the severing of brake fluid lines. Because of these criminal acts, Plaintiff installed fencing and cameras to protect its members and the Property.

Stunningly, a community member then staked out Plaintiff's property for hours upon hours, taking photographs of the fencing and cameras, all to prove his point that Plaintiff and its members were not "inviting." ...

Lots of people were willing to share their opinions regarding how Plaintiff should use its Property. But none of those opinions considered the legal requirements of RLUIPA.

Chicago Tribune reports on the decision.

10th Circuit: Inedible Vegan Diet Burdened Buddhist Inmate's Religious Exercise

In Blair v. Raemisch, (10th Cir., March 2, 2020), the U.S. 10th Circuit Court of Appeals held that a Buddhist inmate's complaint about the vegan diet he was served adequately stated a claim under the 1st Amendment's free exercise clause and under RLUIPA. According to plaintiff's complaint, on 19 out of each 28 days, he was served a vegan patty made at the prison from left-over beans, yams, oatmeal, tomato paste, and seasoning combined in a blender and then baked. He alleged that these were inedible, and caused him to vomit. This forced him to go hungry or purchase vegan food from the commissary. The court concluded that, if true, this substantially burdened plaintiff's sincerely held religious beliefs and put pressure on him to abandon them. Colorado Politics reports on the decision.

DOJ Sues Nebraska Village For Refusing Building Permits To Church

The Justice Department announced yesterday that it has filed suit in a Nebraska federal district court against the village of Walthill, Nebraska alleging violations of the "substantial burden" and "equal terms" provisions of the Religious Land Use and Institutionalized Persons Act.  The complaint (full text) in United States v. Village of Walthill, Nebraska, (D NE, filed 2/20/2020), alleges in part:

This civil action is based on the Village’s unlawful refusal to allow Light of the World Gospel Ministries, Inc...., a non-denominational Christian church, to construct a new place of worship on property it owns in a commercial (“C-1”) district of the Village by denying the Church necessary permits. 

... Since 2007, LOTW has operated religious services out of a small, 1,250 sq. ft. building ... on another lot in the C-1 district. The space is no longer adequate to serve its religious needs, and the unstable condition of a dilapidated building next to the church on the property made the space unsafe. The Village refused to permit LOTW to build its noncommercial religious property in the C-1 district, but has permitted noncommercial nonreligious entities to construct buildings in the C-1 district during the same time period.

Zoning Requirement Violates RLUIPA

In Hunt Valley Baptist Church, Inc. v. Baltimore County, Maryland, (D MD, Feb. 10, 2020), a Maryland federal district court rejected federalism and Establishment Clause challenges to the constitutionality of RLUIPA against federalism and Establishment Clause challenges.The court went on to hold that the county's zoning ordinances that require a special exception process for churches to build in a conservation zone, but does not require this for schools, violate RLUIPA's equal terms provisions.

6th Circuit: Non-Recognition Substantially Burdened Christian Identity Inmates

In Fox v. Washington, (6th Cir., Feb, 6, 2020), the U.S. 6th Circuit Court of Appeals held that the trial court had misapplied RLUIPA in upholding Michigan's refusal to recognize prison inmates' Christian Identity, white separatist religion. The prison system denied Christian Identity adherents the right to group worship and full immersion baptism. The court said in part:

... [P]laintiffs have met their burden ,,, to show that the Department has imposed a substantial burden on their religious exercise with respect to group worship for the Sabbath and holidays....

At step three of RLUIPA, the burden shifts to the Department to make two showings. First, it must prove that the imposition of the substantial burden on plaintiffs’ religious exercise was “in  furtherance of a compelling governmental interest.” ... Second, the Department must establish that it used “the least restrictive means of furthering that compelling governmental interest.”... The district court made no such rulings, and the record is not well developed on these issues. “As ‘a court of review, not of first view,’ we will remand the case to the district court to resolve the point in the first instance.”

Jewish Day School May Move Ahead With Some Claims In Dispute With New York Village

A press release from First Liberty describes the claims that gave rise to an opinion by a New York federal district court last week:

The lawsuit, filed in November 2018, alleges that government officials in the Village of Airmont, New York and the Suffern Central School District engaged in a deliberate effort to dissuade Orthodox Jewish residents from staying in or moving to the Village of Airmont. Central UTA owns 21 acres of property within the Village of Airmont that for nearly 20 years served as both a children’s school and day camp. The Village granted multiple approvals for the private, non-Orthodox school to operate. However, since Central UTA purchased the property in 2016 and advised the Village of its plans to build new buildings, Village officials have repeatedly used discriminatory zoning tactics to prevent Central UTA from operating.

In a similar effort, the local school district, Suffern Central, denied Central UTA children transportation and special education services even though it provided these same services to the previous school.

In Central UTA of Monsey v. Village of Airmont, New York, (SD NY, Jan. 23, 2020), the court held that claims growing out of the attempt to obtain approval for building two new school buildings and renovating an existing building should be dismissed for lack of ripeness. However the court allowed plaintiffs to move ahead with their RLUIPA, 1st Amendment and 14th Amendment claims growing out of a Notice of Violation issued as to the operation of a school for 200 to 300 students in an existing building and the failure to provide transportation and special needs services. The Notice of Violation placed the school at risk for over $2 million in fines.

Settlement Reached In Suit Over Homeless Shelter

A settlement has been reached in the RLUIPA lawsuit filed last month (see prior posting) by the Shawnee Mission Unitarian Universalist Church against the city of Lenexa, Kansas over denial of zoning approval for an overnight winter homeless shelter. According to a press release from the church's law firm, the settlement agreement allows the shelter to operate from Dec. 13 to April 1, with various conditions.  In addition the city has agreed to work with the Church to produce an ordinance within the next 3 years to allow homeless ministries in city.

Lighting Regulations Limiting Use of Catholic School's Baseball Field Do Not Violate RLUIPA

In Marianist Province of the United States v. City of Kirkwood, (8th Cir., Dec. 13, 2019), the U.S. 8th Circuit Court of Appeals rejected a claim by Vianney High School in Kirkwood, Missouri that the city's lighting and sound regulations which limit use of its baseball field at night violate its rights under RLUIPA and state law.  The court said in part:

Vianney asserts that various forms of religious exercise “motivate the school’s use” of its baseball field at night. The school emphasizes that athletics is part of the “formation of young men” in the Catholic Marianist tradition and that nighttime sports games allow it to reach out to the community and engage in religious fellowship.... Assuming Vianney’s uses of its baseball field at night ... constitute religious exercise, we examine its claim that the regulations substantially burden this exercise.

Vianney has not demonstrated that its religious exercise is substantially burdened, rather than merely inconvenienced, by its inability to use its baseball field at night.

The court also rejected the school's RLUIPA "equal terms" claim, and held that its state law claims should be dismissed as well.

Supreme Court Review Sought In City Council Speech Limits At Meeting On Mosque

A petition for certiorari (full text) was filed on Dec. 9 with the U.S. Supreme Court in Youkhanna v. City of Sterling Heights. In the case, the U.S. 6th Circuit Court of Appeals rejected challenges to the manner in which the city of Sterling Heights, Michigan conducted a raucous city council meeting at which settlement of a RLUIPA lawsuit was being considered.  At issue was the city's settlement of a zoning dispute with backers of a mosque.  City Council placed limits on the scope of comments that citizens could make during the meeting, and eventually cleared the meeting room when the audience became disruptive. (See prior posting.)

Church Sues Under RLUIPA To Operate Homeless Shelter

The Shawnee Mission Unitarian Universalist Church has filed a RLUIPA lawsuit against the city of Lenexa, Kansas which has denied the church zoning approval to operate an overnight homeless shelter for the winter months.  According to KCUR News, the church, in cooperation with the nonprofit Project 1020, wants to use the former elementary school building in which it is located as a shelter for up to 40 people. The building now is zoned residential single family, though it borders commercial and office properties. Lexana has no areas zoned for homeless shelters.

Chabad House's Suit Against Zoning Officials Is Dismissed

In Friends of Lubavitch v. Baltimore County, Maryland, (D MD, Sept. 30, 2019), a Maryland federal district court dismissed a suit in which a Chabad House serving students at Towson University and Goucher College challenged a state court order requiring it to raze the expansion of its building which was constructed in violation of zoning rules and a deed restriction.  Plaintiff claimed that implementation of the county's land use rules infringed its rights under RLUIPA and the 1st and 14th Amendments.

Muslim Community Center's Claim of Discrimination In Permitting Process Must Proceed To Trial

In OT, LLC v. Harford County, Maryland, (D MD, Sept. 23, 2019), a Maryland federal district court refused to grant summary judgment to either side on almost all the claims by a Muslim group seeking permits to construct a community center. Plaintiffs contend that delays in approval were motivated by religious discrimination in violation of various constitutional and statutory provisions and imposed a substantial burden on their free exercise of religion in violation of RLUIPA.  The court said in part:

Importantly, “a government decision influenced by community members’ religious bias is unlawful, even if the government decision makers display no bias themselves....

Here, Plaintiffs contend that the sequence of events leading up to the County’s decision, departures from the County’s normal procedures, and contemporary statements by County decision-makers demonstrate that County Defendants’ actions were motived by the community’s anti-Muslim beliefs....

Conversely, County Defendants maintain that their decisions here were motivated by their desire to conform to existing practices and the County Code....

[T]he Court concludes that there is a genuine dispute of material fact as to the intent of the County Defendants....

The court similarly concluded that there was a genuine dispute of fact on whether the delay imposed a substantial burden on plaintiffs' right of religious exercise.

Justice Department Sues Michigan City Over Mosque Zoning

The Department of Justice announced yesterday that it has filed suit against the city of Troy, Michigan alleging that it has violated the Religious Land Use and Institutionalized Persons Act in denying zoning approval for a mosque to be built by Adam Community Center.  The complaint (full text) in United States v. City of Troy, Michigan, (ED MI, filed 9/19/2019), contends in part:

Troy specifically violated RLUIPA by: (a) imposing an unjustified substantial burden on Adam’s exercise of religion when it denied Adam’s variance requests, 42 U.S.C. § 2000cc(a)(1); and (b) requiring places of worship to abide by more onerous setback and parking restrictions than nonreligious places of assembly, id. § 2000cc(b)(1).

Detroit Free Press reports on the lawsuit.

Catholic High School Sues Over Restrictions On Athletic Field Use

A Madison, Wisconsin Catholic high school has filed suit challenging the manner in which the city's zoning code is being applied to the school.  The complaint (full text) in Edgewood High School of the Sacred Heart, Inc. v. City of Madison, Wisconsin, (WD WI, filed 8/21/2019), alleges violations of RLUIPA as well as various other federal, state and local constitutional and statutory provisions. Because a master plan filed by the school in connection with the renovation of its athletic field stated that it would be used for team practices and physical education classes, zoning authorities contend that it cannot be used for athletic contests, even though the field had been used for nearly a century to host such games. The complaint alleges:

All of the City’s public high schools and the University of Wisconsin-Madison share the same zoning classification as Edgewood, yet the City is imposing these restrictions on Edgewood alone....

The City has treated Edgewood on less than equal terms with the non-religious institutions located and operating within the City’s Campus-Institutional District. 

 Wisconsin State Journal, reporting on the case, explains:

Edgewood’s attorneys have contended that [the master plan] wasn’t meant to be an exhaustive list of uses, while residents have suggested games were intentionally left out to allay neighbors frustrated with the increased use of the field since it was upgraded in 2015.

Residents of the surrounding Dudgeon-Monroe neighborhood have organized against Edgewood’s attempts to bring further improvements to the field — especially a 2017 plan that would have added stadium seating, lights, a sound system and permanent bathrooms — arguing that the field disrupts their quiet neighborhood. Many put signs in their yard reading, “No new stadium.”

6th Circuit: City Did Not Ban All Mention of Religion At Council Meeting On Mosque Construction

In Youkhanna v. City of Sterling Heights, (6th Cir., Aug. 14, 2019), the U.S. 6th Circuit Court of Appeals rejected challenges to the manner in which the city of Sterling Heights, Michigan conducted a raucous city council meeting at which settlement of a RLUIPA lawsuit was being considered.  At issue was the city's settlement of a zoning dispute under which the American Islamic Community Center was permitted to build a mosque in the city.  City Council placed limits on the scope of comments that citizens could make during the meeting, and eventually cleared the meeting room when the audience became disruptive.

Plaintiffs objected that their 1st Amendment rights were infringed when the mayor told the audience at the meeting:

We do not need any comments about anybody’s religion, that is not the purpose of this meeting tonight and any comments regarding other religions or disagreements with religions will be called out of order.

The court responded:

This was not, as plaintiffs would have, a ban on talking about religion. This is clear from the fact that comments mentioning religion—including comments mentioning Islam specifically—were allowed when they were relevant to zoning issues....

The court also rejected a number of other challenges to the conduct of the meeting, including an Establishment Clause claim.  Detroit News reports that plaintiffs intend to seek en banc review of he decision.