Court Rejects Religious and Other Challenges To Takeover Of Abandoned Homes

Honkala v. U.S. Department of Housing and Urban Development,  (ED PA, Jan. 31, 2022) involves an unsuccessful challenge to the Philadelphia Housing Authority's (PHA) attempted eviction of homeless families who took over abandoned vacant housing owned by PHA.  A community activist and the Poor People’s Economic Human Rights Campaign staged a series of such takeovers.  Among the challenges raised by plaintiffs were religious freedom claims under RFRA and RLUIPA. The court explains:

[Plaintiffs assert] they are “currently possessed of ethical, moral, humanitarian and/or religious belief(s) and action(s), including but not limited to those rooted in a Judeo-Christian tradition of caring for the least and most needy amongst us, which federal law therefore respects and identifies as a ‘religious belief’ pursuant to the definition thereof as set forth in 42 U.S.C. §2000cc-5.”... Plaintiffs allege that their work “building and/or repairing and/or converting real property, such as the public housing property at issue…is therefore considered a ‘religious exercise,’ and Defendants are unable to satisfy their “burden of proving that eviction is the least restrictive means of fostering any compelling interest it may otherwise invoke.....

The Pennsylvania federal district court rejected plaintiffs' RFRA claim because RFRA applies only to actions of the federal government and not to that of states and municipalities.  While PHA holds the property in trust for HUD, HUD did not cause their injuries.  The court also rejected plaintiffs" RLUIPA claim because the claim does not involve a zoning issue and because plaintiffs have no property interest in the house.  The court additionally rejected several other legal theories put forward by plaintiffs, but said in part:

As a means of focusing attention on governmental failure to make effective use of assets available to reduce homelessness, this action succeeds. And if principles of natural law provided the controlling standard, Plaintiffs would have a compelling moral argument: “In cases of need, all things are common property, so there would seem to be no sin in taking another’s property, for need has made it common.” Thomas Aquinas, Summa Theologica 2.2, Question 66, Article 7. But civil law is not designed to answer such ultimate moral questions.

Church Challenges City's Limits On Its Offering Meals To Homeless

Suit was filed last week in an Oregon federal district court by a church challenging a city's ordinance that limits it from offering free meals to the needy more than two days per week.  The complaint (full text) in  St. Timothy’s Episcopal Church v. City of Brookings, (D OR, filed 1/28/2022), says that the new limits were imposed after city residents complained of the homeless gathering around the church. It contends that the restrictions violate RLUIPA as well as the 1st and 14th Amendments, saying in part:

Plaintiffs believe that God and scripture have directed them to continue serving their community by offering St. Timothy’s meal program more than two days per week to ensure that people in need can have access to at least one hot, nutritious meal every day of the week.

... The City’s land use and zoning regulations ... deny and restrict, and will deny and restrict, Plaintiffs’ religious use of St. Timothy’s’ property, is not supported by a compelling government interest, and is not the least restrictive means of furthering any compelling governmental interest.

Reason reports on the lawsuit.

Nevada Prison's Ban On Prayer Oil Violates RLUIPA

In Johnson v. Baker, (9th Cir., Jan. 26, 2022), the U.S. 9th Circuit Court of Appeals held that the Nevada prison system violated RLUIPA when it banned a Muslim inmate from possessing a small amount of scented oil in his cell for use when he prayed, saying in part:

Given that Nevada’s prison regulation prevents Johnson from praying according to his faith, it has substantially burdened his religious exercise. Nevada also fails to show that its regulation is the least restrictive means of furthering its compelling interest....

Nevada argues that prison officials depend on their sense of smell to detect contraband and scented oil could be used to cover the smell of contraband, such as drugs....

Nevada’s prison regulations as to other scented products undermines the State’s argument. It’s undisputed that Nevada prisoners may keep many scented products in their cells....  [T]hese products all have “strong scents” and are available to purchase in larger quantities than the half-ounce of scented oil sought by Johnson.

9th Circuit: Fact Issues Remain As To Prison's Confiscation of NOI Texts

 In Jones v. Slade, (9th Cir., Jan. 24, 2022), the U.S. 9th Circuit Court of Appeals reversed a district court's grant of summary judgment and held that there remains genuine issues of fact in connection with an Arizona prison's confiscation of six hip-hop music CD's and two Nation of Islam texts which plaintiff received by mail.  The Court held that questions remain as to selective enforcement of prison rules as to the music CD's.  It concluded that plaintiff's RLUIPA and Free Exercise claims relate to his religious practice of reading Nation of Islam texts authored by Elijah Muhammad during Ramadan.  The court said in part:

RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” ... That means that RLUIPA protects not only practices deemed orthodox by some recognized religious organization,  but also idiosyncratic practices—practices “not compelled by, or central, to a [given] system of religious belief.”

The court held that as to both plaintiff's RLUIPA claim and his 1st Amendment Free Exercise claim, "there is a genuine issue of fact as to whether denying Jones essential religious texts during Ramadan is a substantial burden on his religious exercise...."  Tucson Sentinel reports on the decision.

11th Circuit: Punitive Damages For Non-Physical Injuries Are Available To Inmate Under RLUIPA

In Mays v. Joseph, (11th Cir., Jan. 3, 2022), the U.S. 11th Circuit Court of Appeals held that a prisoner may recover punitive damages for violation of his religious exercise rights under RLUIPA in a suit against a prison warden in the warden's individual capacity.  In the case, plaintiff claimed that the Georgia Department of Corrections' grooming policy that barred him from growing his hair or a goatee longer than three inches violated his rights to express his religion. The court held that while an incarcerated plaintiff may not recover compensatory damages for mental or emotional injuries absent physical injury, he can recover punitive damages and nominal damages. Here plaintiff had waived his nominal damage claim.

Synagogue Can Move Ahead With Damage Claim for Zoning Denial

In Khal Anshei Tallymawr, Inc. v. Township of Toms River, New Jersey, (D NJ, Dec. 3, 2021), a New Jersey federal district court allowed an Orthodox Jewish congregation to move ahead with its free exercise, RLUIPA, equal protection and state law claims for damages growing out of the zoning denial of a permit to construct a synagogue in an area zoned rural residential. However, since subsequently the challenged regulations have been amended to permit houses of worship as conditional uses in residential zones, the court denied prospective relief while plaintiff determines whether the zoning board will now permit the construction. The zoning amendments were enacted pursuant to the settlement of a RLUIPA lawsuit brought by the Department of Justice. (See prior posting.)

Younger Abstention Applied While Santeria Priestess Is Tried Criminally

In Santeria Sanctuary v. Madison County, Tennessee, (WD TN, Dec. 2, 2021), a Tennessee federal district court applied the Younger abstention doctrine and stayed a federal civil suit while state criminal court proceedings are under way against a Santeria priestess who is under indictment on 676 counts of cruelty to animals. According to the court, plaintiffs claims under RLUIPA and the Tennessee Religious Freedom Restoration Act:

center on Defendants destruction of the Sanctuary and their forced entry into the house of worship during a religious ceremony, along with their seizure of tithes and offerings in violation of the Plaintiffs’ First Amendment right to free exercise of religion.... In addition, Plaintiffs contend the County officers raid on the property, as well as an unlawful search and seizure of money and animals, violates Plaintiffs’ Fourth Amendment rights.... Plaintiffs further maintain that such actions by Defendants imposed substantial burdens on the Plaintiffs by forcing them and the adherents of the Sanctuary to forego the practice of their religious precepts—namely, the sacrifice of live animals....

Conditions Of Special Use Permit For Church Upheld

In Alive Church of the Nazarene, Inc. v. Prince William County, Virginia, (ED VA, Nov. 10, 2021), a Virginia federal district court dismissed a suit brought by a church that sought to use its property for religious gatherings even though it could not yet afford to comply with conditions of its special use permit. The church was presently using space elsewhere in a farm winery/ brewery for religious services. It attempted to circumvent the special use permit requirements by obtaining approval to grow fruit trees and make non-alcoholic apple cider on its own property. However zoning authorities said that structures not associated with that agricultural use were not permitted, and that use of present structures for events such as wedding receptions would be allowed only if the church obtained a liquor license-- which the church refused to do because of its opposition to alcohol. The court rejected the church's RLUIPA, Free Exercise, Freedom of Assembly and Equal Protection challenges.

4th Circuit: Denial Of Church's Application For Water and Sewer Plan Amendment Violated RLUIPA

In Redeemed Christian Church of God (Victory Temple) Bowie, Maryland v. Prince George's County, Maryland, (4th Cir., Nov. 3, 2021), the U.S. 4th Circuit Court of Appeals held that the legislative amendment to the County’s Water and Sewer Plan which Victory Temple sought to recategorize its property constitutes a "land use regulation" subject to RLUIPA. It also concluded that the denial of Victory Temple's application for a recategorization imposed a substantial burden on its exercise of religion. The court concluded in part:

[T]he County never sought to show at trial that it considered alternatives — such as roadway improvements or additional road signs — before denying the Application. At bottom, we agree with the district court that the County’s denial of the Application fails strict scrutiny review. In these circumstances, the court did not abuse its discretion in granting Victory Temple the injunctive relief that is appealed from.

Mississippi City Is Sued Over Refusal To Approve Mosque Site Plan

Suit was filed yesterday in a Mississippi federal district court alleging that the City of Horn Lake denied approval of the site plan for a proposed mosque because of religious animus. The suit alleges violation of various provisions of RLUIPA as well as the 1st Amendment. The complaint (full text) in Abraham House of God and Cemetery, Inc. v. City of Horn Lake, (ND MS, filed 11/3/2021) alleges in part:

Despite the pretextual excuses for their decision, Board members did not work very hard to hide the true reason they denied approval for the project—anti-Muslim prejudice. As then Alderman John E. Jones Jr. told the local newspaper: “I don’t care what they say, their religion says they can lie or do anything to the Jews or gentiles because we’re not Muslims.” In making his motion to reject the mosque’s proposed site plan, Jones ominously warned his fellow Board members, “[I]f you let them build it, they will come. So I think we need to stop it before it gets here.”...

In sum, what should have been an uncomplicated approval of the site plan for the Abraham House of God foundered in a storm of anti-Muslim bias.

ACLU of Mississippi issued a press release announcing the filing of the lawsuit.

Home-Based Synagogue Sues Over Zoning Restrictions

Suit was filed this month in an Ohio federal district court by a home-based synagogue in a Cleveland suburb alleging that the city's land use regulations violate the Religious Land Use an Institutionalized Persons Act, as well as the federal and state constitutions. The complaint (full text) in Aleksander Shul v. City of University Heights, Ohio, (ND OH, filed 10/13/2021), alleges in part:

Since 2009, Rabbi Shnior Zalman Denciger ... has engaged in prayer services at his residence.... The Property has become known throughout the City as the “Aleksander Shul,” ... that offers Orthodox Jewish prayer services in the Polish Chassidic style, and according to the unique customs of the Aleksander Chassidic sect, which was decimated by the Nazis during the Holocaust.

The City for many years permitted the Aleksander Shul to operate informally at the Property. For many residents of the City, the Aleksander Shul is the only place for them to exercise their religion because, pursuant to their Orthodox Jewish beliefs, they do not travel in cars on the Sabbath....The City, however, has taken various actions to shut down Orthodox Jewish shuls, including the Aleksander Shul, and the City’s zoning scheme makes it impossible to locate any parcel within the City where a place of worship can legally operate.

News 5 Cleveland has additional background on the lawsuit.

Virginia County Allows Muslim Cemetery, Settling DOJ and Private Litigation

The  Justice Department yesterday announced that it had filed a Notice of Dismissal in United States v. Stafford County Virginia, (ED VA, Oct. 14, 2021). The Department said that it is dismissing its RLUIPA lawsuit because the county has repealed the ordinances that prevented the All Muslim Association of America (AMAA) from developing a religious cemetery for Muslims. the county has also approved a site plan for the new cemetery and has settled a private lawsuit by agreeing to pay AMAA $500,000 in damages.

6th Circuit: RLUIPA Requires More Than Vegan Sabbath And Holiday Meals For Jewish Inmates

In Ackerman v. Washington, (6th Cir., Oct. 12, 2021), the U.S. 6th Circuit Court of Appeals held that Michigan Department of Corrections universal religious meal plan is inadequate to meet the religious needs of Jewish prisoners. The court summarized its holding:

The Michigan Department of Corrections serves a universal religious diet to all prisoners with religious dietary needs. It created this meal plan to avoid forcing prisoners to eat foods that violate their sincere religious beliefs. And because some religious beliefs forbid eating animal products, the universal religious meals are vegan. Because other prisoners require kosher food, the vegan meal is also kosher.

Gerald Ackerman and Mark Shaykin are Jewish prisoners confined in MDOC facilities. Their religious beliefs require them to eat a meal with kosher meat and a meal with dairy on the Jewish Sabbath and four Jewish holidays. They also believe that they must eat cheesecake on the holiday of Shavuot to celebrate the holiday properly. So they claim that MDOC policies that force them to eat vegan meals on these days substantially burden their sincere religious beliefs. And they argue that the MDOC needs to accommodate their beliefs under the Religious Land Use and Institutionalized Persons Act (RLUIPA). We agree and affirm the district court’s judgment in the prisoners’ favor.

Law & Crime reports on the decision.

Zoning Ordinance Violates Equal Terms Provision of RLUIPA

In The Church at Jackson v. Hinds County, Mississippi, (SD MS, Sept. 23, 2021), a Mississippi federal district court held that the equal terms provision of the Religious Land Use and Institutionalized Persons Act is violated by provisions on Agricultural Districts in Hinds County's zoning ordinance. The court issued a preliminary injunction, holding that the ordinance treats religious assemblies on less than equal terms with nonreligious assemblies, specifically recreational facilities. Recreational facilities are permitted unconditionally to locate in areas zoned Agricultural, while religious institutions are required to obtain a Special Use Permit in order to do so.

Arkansas Supreme Court Rejects Inmate's Complaint Over Withholding Of NOI Publications

In Muntaqim v. Payne, (AR Sup. Ct., Sept. 16, 2021), the Arkansas Supreme Court affirmed the dismissal of a suit litigated pro se by a Nation of Islam inmate who contested prison officials' withholding of multiple copies of the NOI publication Final Call for review because of racist and inflammatory content. Plaintiff also alleged that the mailroom supervisor destroyed five copies of NOI books. Responding to appellant's RLUIPA and free exercise claims, the court said in part:

The prison must permit a reasonable opportunity for an inmate to engage in religious activities but need not provide unlimited opportunities to do so. Id. Muntaqim’s claims that the appellees restricted access to some but not all NOI religious literature did not state sufficient facts that appellees placed a substantial burden on the exercise of his religious practices.

The court also rejected free speech, equal protection, due process, access to courts and Establishment Clause claims.

No Judgment On Pleadings In Mosque's RLUIPA Lawsuit

In Minhal Academy of Turnersville, Inc. v. Township of Washington,(D NJ, Aug. 25, 2021), a New Jersey federal district court denied plaintiffs' motion for judgment on the pleadings in a RLUIPA challenge to the Township's refusal to allow a mosque to continue to operate in a commercial condominium complex. The court said in part:

Plaintiffs allege that Defendants’ denial of a use variance has made their religious exercise inconvenient and costly, but nothing more. The Court will therefore deny Plaintiffs’ motion on this ground because they have not conclusively shown that Defendants’ denial caused them substantial hardship....

Plaintiffs are not entitled to judgment on the pleadings on their equal terms claim because the Complaint does not identify a “nonreligious assembly or institution” that received comparatively better treatment under the zoning laws at issue here....

[I]n order to establish their RLUIPA nondiscrimination claim, Plaintiffs must show that the Township treated Plaintiffs worse than non-Muslim comparator institutions because Plaintiffs are Muslim.... 

Ultimately the Court finds that Plaintiffs’ fact intensive RLUIPA nondiscrimination claim should be resolved with a complete factual record.

9th Circuit: Arizona Prison Rules Did Not Substantially Burden Inmate's Religious Exercise

 In Yokois v. Ryan, (9th Cir., July 30, 2021), the U.S. 9th Circuit Court of Appeals affirmed the dismissal of an Arizona inmate's 1st Amendment and RLUIPA claims. The court said in part:

ADC’s policy requiring inmates to go through authorized vendors to purchase religious items was at most, an inconvenience, and not a substantial burden on Yokois’ ability to acquire religious items. Similarly, ... the ADC policy in question only prevented Yokois from pinning religious materials on his bulletin board while he was outside his cell and not using them. As a result, Yokois did not show that these policies so burdened his right to exercise his religion that he felt pressured to abandon his beliefs.

Free Exercise Challenges To Illinois COVID Orders Dismissed As Moot

In Elim Romanian Pentecostal Church v. Pritzker, (ND IL, July 26, 2021), an Illinois federal district court dismissed as moot religious freedom challenges by two churches to Illinois Governor Jay Pritzker's now-expired emergency COVID-19 orders. The court said in part:

[I]t is absolutely clear that the alleged wrongful behavior— restrictions on religion due to the COVID-19 pandemic— are not reasonably expected to recur.

Supreme Court GVR's Amish Families' Challenge To Septic Tank Requirements

On Friday, in Mast v. Fillmore County, Minnesota, (Sup. Ct., July 2, 2021), the U.S. Supreme Court granted certiorari, summarily vacated the judgment of the Minnesota Court of Appeals, and remanded for consideration in light of the Court's recent decision in Fulton v. Philadelphia, the case of Amish families who object to state sewage system regulations. In the case, the Minnesota appellate court rejected claims by Swartzentruber Amish community members that laws requiring them to install septic systems to dispose of their waste water violate their rights under the Religious Land Use and Institutionalized Persons Act. (See prior posting.) 

Two Justices filed opinions concurring in the Court's action. Justice Alito in a brief opinion said that the lower court "plainly misinterpreted and misapplied" RLUIPA. Justice Gorsuch, in a longer concurring opinion, said in part:

Perhaps most notably, the County and courts below erred by treating the County’s general interest in sanitation regulations as “compelling” without reference to the specific application of those rules to this community. As Fulton explains, strict scrutiny demands “a more precise analysis.”

Court Refuses To Allow Chabad To File Amended RLUIPA Complaint

In Friends of Lubavitch v. Baltimore County, Maryland,(D MD, June 3, 2021), a Maryland federal district court found no RLUIPA or other violations in denying a motion to file an amended complaint and a motion for reconsideration.  At issue was an earlier decision that 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.