Georgia's Prisoner Grooming Policy Struck Down

In Smith v. Dozier, (MD GA, Aug. 7, 2019), (on remand from the 11th Circuit) a Georgia federal district court in an 18-page opinion held that the Georgia Department of Corrections grooming policy violates the Religious Land Use and Institutionalized Persons Act. The state's policy allows inmates only to grow a beard up to one-half inch in length. No religious exemption from the requirement is provided.  The court went on to hold that for inmates who qualify for a religious exemption, the state must allow beards up to three inches in length. In its opinion, the court examined and rejected several justifications offered by the state for its challenged policy. Law.com reports on the decision.

County Sued Over Zoning Denial To Faith-Based Recovery Program

Suit was filed in a Georgia federal district court last week by a ministry offering a faith-based residential program for men recovering from addiction alleging discriminatory action by a county zoning board. the complaint (full text) in Vision Warriors Church, Inc. v. Cherokee County Board of Commissioners, (ND GA, filed 7/15/2019) alleges that the county's denial of zoning approval for operation of plaintiff's recovery program violates the federal Fair Housing Act, the ADA, RLUIPA and the 14th Amendment's Equal Protection clause. ACLJ issued a press release announcing the filing of the lawsuit.

Settlement Reached In Christian School's Zoning Fight

A settlement has been reached in Englewood Church of the Nazarene, Inc. v. Sarasota County, Florida. The suit filed in a Florida federal district court in March alleged violations of RLUIPA, the 1st and 14th Amendments and Florida's Religious Freedom Restoration Act. After the school had been operating in a church's building for more than three years, the county demanded that it seek a special exception to continue its operation and levied daily fines on the school. The school spent $10,000 to complete the application, only to have the special exception denied. (See prior posting.)  According to a press release from ADF, in settling the case the county has approved the church's use of its property. A joint stipulation of dismissal (full text) was filed in Florida federal district court on July 22.

5th Circuit Upholds Direct Supervision Requirement For Muslim Inmate Worship Services

In Brown v. Scott, (5th Cir., July 5, 2019), the U.S. 5th Circuit Court of Appeals in a 2-1 decision (56 pages long) written by Judge Owen held that a 1977 consent decree allowing Muslim inmates to gather for worship without direct supervision should be vacated. While Muslim inmates had met with only indirect supervision from 1977 to 2012, that arrangement was terminated after a Jehovah's Witness inmate successfully sued arguing that the more favorable treatment of Muslim inmates violates the Establishment Clause. The termination of the special treatment for Muslim inmates, however, violated the earlier consent decree. This led prison officials to ask that the earlier decree be vacated under provisions of the Prison Litigation Reform Act that allow lifting of the injunction if it is no longer needed to correct an ongoing violation of rights.

Muslim inmates argued that requiring direct supervision of their services would impose a substantial burden in violation of the Religious Land Use and Institutionalized Persons Act. The majority held, however, that it is not prison authorities that have imposed a substantial burden, but instead it is caused by a lack of Muslim volunteers from outside who will supervise services. The majority also rejected Free Exercise and Establishment Clause arguments.

The district court had concluded that Texas prison regulations favor Catholic, Jewish, Native American and Protestant inmates over Muslim inmates.  Judge Owen concluded that this does not create an Establishment Clause violation because in the prison context the more lenient Turner v. Safley test should be applied to Establishment Clause claims.

Judge King joined all of Judge Owen's opinion except for the Establishment Clause section. She held there was an Establishment Clause violation, but that the 1977 consent decree should be vacated nevertheless because it is broader than necessary to remedy the violation.

Judge Dennis in a separate opinion dissented as to the RLUIPA issue, and would not have reached the Establishment Clause or Free Exercise claims

Suit By Purchasers of Former PTL Club Properties May Move Forward

MorningStar Fellowship Church v. York County South Carolina, (D SC, June 17, 2019), involves a dispute between a South Carolina county and a large Christian evangelical church that had purchased properties once owned by PTL Club's Jim and Tammy Faye Bakker.  Jim Bakker resigned in the wake of a sexual scandal and was ultimately convicted and imprisoned for fraud. (Background.)  Plaintiff, MorningStar Fellowship, claims that the county prevented it from completing development of an $11 million building, known as the Tower, because of religious animus against the former owners, the Bakkers.  The development agreement between the county and MorningStar Fellowship called for demolition of the Tower if performance and payment bonds were not obtained within 180 days of approval of the site plan for the development. MoruningStar Claims that the county concealed its approval of the site plan in order to create a default.

The court dismissed on statute of limitations grounds MorningStar's claim for damages flowing from violation of its free exercise, due process and equal protection rights. However the court allowed plaintiff to move ahead on claims under the South Carolina constitution and the South Carolina Religious Freedom Act. It also allowed plaintiff to amend its complaint to add substantial burden and discrimination claims under the federal Religious Land Use and Institutionalized Persons Act.

Cert. Denied In Christian School Zoning Case

The U.S. Supreme Court today denied review in Tree of Life Christian Schools v. Upper Arlington, Ohio, (Docket No. 18-944, certiorari denied 5/13/2019). (Order List.)  In the case, the 6th Circuit in a 2-1 decision held that a private Christian school had failed to establish a prima facie case under the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act.  At issue was a  zoning prohibition on the operation of schools-- both secular and religious-- in the area zoned as an office and research center district. (See prior posting.)

Court Issues Permanent Injunction In RLUIPA Land Use Case

In Roman Catholic Archdiocese of Kansas City v. City of Mission Woods, (D KS, May 10, 2019), a Kansas federal district court issued a permanent injunction requiring the city of Mission Woods to approve the Catholic Archdiocese's land use application to allow it to convert a house next door to St. Rose Church into a meeting house.  In the case, a jury had found that the city violated the equal terms provisions of RLUIPA and awarded damages.  But the jury found for defendants on the Archdiocese's RLUIPA substantial burden and nondiscrimination claims, its First Amendment claims, and its Kansas state law claims. The court here held that, nevertheless, this amounts to success on the merits which supports the grant of an injunction. The court rejected defendant's argument that limited success on the merits is not enough to support an injunction.

4th Circuit: Inmate Fails To Prove Causation In His RLUIPA And Free Exercise Claims

In Wright v. Lassiter, (4th Cir., April 17, 2019), the U.S. 4th Circuit Court of Appeals rejected a Rastafarian inmate's claims that his rights under RLUIPA and the 1st Amendment were infringed when prison officials rejected his request to celebrate four annual religious holidays through communal feasts and three others that do not include feasts. The court, holding that "plaintiff must show that the prison's policies imposed a substantial burden on his exercise of sincerely held religious beliefs," concluded that plaintiff failed to show the required causation:

...Wright’s causation problem stems from the fact that he has requested communal gatherings and feasts. There is no such thing as a community of one, and Wright agreed at oral argument that he was not seeking a feast for himself alone. He therefore had to show that, but for the policies that allegedly prohibit the requested holiday gatherings, other inmates would join in the gatherings.... There was no testimony showing that any other Rastafarian at Central Prison or any other North Carolina prison had joined in his requests to celebrate in the manner he requested or would attend his gatherings if they were held....

Charitable Organization Avoids Dismissal of RLUIPA Claims

In Layman Lessons Church v. Metropolitan Government of Nashville/ Davidson County, (MD TN, April 18, 2019), a Tennessee federal district court allowed a religious charitable disaster relief organization to move ahead with many of its claims under RLUIPA and the comparable state statute.  Plaintiff alleges that the city of Nashville discriminated against it through arbitrary enforcement of zoning and building code provisions. The court said in part:

Plaintiff has sufficiently alleged ... that the actions of Defendant—including, but not limited to, Defendant’s issuance of demolition orders, stop work orders, and storm water orders...; Defendant’s insisting that Plaintiff complete additional repair work and get additional permits than what was previously required; Defendant’s erroneously asserting that a protected stream existed on the property; and Defendant’s erroneously fining Plaintiff for “grading without a permit”—created a “substantial burden” on its free exercise of religion, in violation of RLUIPA.

Plaintiff also alleges that Defendant discriminated against Plaintiff based on its religion. Defendant does not mention this discrimination claim. Plaintiff has alleged that it was treated differently than other property owners because it is a religious organization.... Plaintiff has sufficiently alleged, for purposes of a motion to dismiss, that it was treated differently from non-religious property owners.... In addition, for the same reasons, Plaintiff has sufficiently alleged that it was treated on less than equal terms with a non-religious institution...

DOJ Settles RLUIPA Zoning Claims With Texas City

The Department of Justice announced yesterday that it has reached an agreement with the City of Farmersville, Texas to resolve allegations that the city violated RLUIPA when in 2017 it denied a Muslim organization approval for construction of a cemetery:

The settlement agreement resolves a lawsuit the United States filed today in the U.S. District Court for the Eastern District of Texas. After the City denied the Islamic Association’s application to build a religious cemetery, the United States opened an investigation of the City’s actions in September 2017. In August 2018, the United States notified the City that it had concluded that the City had violated RLUIPA and intended to file suit, and offered the City an opportunity to negotiate a resolution. In September 2018, the City and the Islamic Association entered into a separate agreement allowing for the approval of the cemetery and in December 2018, the City approved the Islamic Association’s application to develop the land as a cemetery.

Here is the complaint in United States v. City of Farmersville, Texas, (ED TX, filed 4/16/2019) filed yesterday as part of the negotiations.

Suit Challenges Zoning Ban On Tarot Reading

A lawsuit was filed yesterday in a Virginia federal district court alleging that the Town of Richlands, Virginia violated plaintiff's rights in refusing to amend its zoning ordinance to allow him to operate a Tarot reading business in the town. The complaint (full text) in Mullins v. Town of Richlands, Virginia, (WD VA, filed 4/4/2019) alleges in part:

4.... Town of Richlands’ officials have used the Town’s licensing and zoning scheme to prohibit Mr. Mullins from reading Tarot as part of his business because of their disapproval of his religious views and practices.

5. Defendants’ effective prohibition on Tarot reading as part of Mr. Mullins’ business constitutes viewpoint discrimination and is an unconstitutional prior restraint.... Defendants further violate Mr. Mullins right to free exercise of religion .... Finally, Defendant Town of Richlands’ licensing and zoning scheme imposes a substantial burden on Mr. Mullins’ religious exercise in violation of RLUIPA and the Virginia Religious Freedom Act.

The complaint describes the hearing on plaintiff's zoning application:

Several local residents admonished the Town Council against amending the zoning ordinance by citing biblical scripture and warning of dire spiritual consequences for the Town if it allowed fortune telling in Richlands.

WSLS News reports on the lawsuit.

Court Says RLUIPA Claims By Mosque May Proceed

In Adam Community Center v. City of Troy, (ED MI, April 3, 2019), a Michigan federal district court refused to dismiss RLUIPA substantial burden, discrimination and unequal treatment claims brought against the city of Troy, Michigan and various of its zoning officials.  At issue was the city's denial of a zoning variance for setback requirements that would have allowed Adam Community Center to use an existing commercial building as a mosque. The court said in part:

Here, Plaintiff’s complaint sufficiently states a substantial burden claim. Plaintiff alleges that it cannot conduct prayer services in its current facility, that there are no Muslim places of worship within the City for Plaintiff and its community members to practice their religion, that there are no other properties available in the City that satisfy the City’s zoning requirements for places of worship, and that not having a place of worship within the City poses a substantial burden on its ability to engage in religious exercise. Plaintiff also alleges facts, which if true, would support its theory that the City acted with discriminatory intent and treated Plaintiff differently from other faith based organizations. Plaintiff specifically alleges that the zoning laws have not been applied neutrally to it and that commercial businesses and Christian churches are treated more favorably.

Detroit News reports on the decision.

Zoning Ordinance Violates RLUIPA Equal Terms Provision

In Christian Fellowship Centers of New York, Inc. v. Village of Canton, (ND NY, March 29, 2019), a New York federal district court granted a preliminary injunction, holding that Canton (NY) violated the "equal terms" provision of RLUIPA when it refused to permit a church to locate in a district zoned commercial. The court described the challenged zoning law:

Section 325-11 ... of the Canton Village Code prohibits houses of worship from operating in the downtown zone even though it permits not-for-profit organizations to use nearby properties to meet for secular purposes....

In barring its enforcement against the church, the court said in part:

First, the Ordinance treats religious assemblies less well than secular assemblies that have equivalent impacts on its purposes. Second, the “formal differences” relied on by the Village do not trump the “practical” similarities between churches and the secular organizations the Ordinance treats more favorably.... And third, no compelling interest justifies the unequal treatment.

The court rejected the village's argument that churches could be excluded because the state liquor control laws prevented bars from locating within 200 feet of a church.

Christian School Challenges Zoning Requirement

A suit was filed this week in a Florida federal district court challenging the denial of a zoning exception that would allow continued operation of a small Christian school that serves primarily children with learning disabilities and children from underprivileged homes. The complaint (full text) in Englewood Church of the Nazarene, Inc. v. Sarasota County, Florida, (MD FL, filed 3/25/2019), alleges violations of RLUIPA, the 1st and 14th Amendments and Florida's Religious Freedom Restoration Act. After the school had been operating in a church's building for more than three years, the county demanded that it seek a special exception to continue its operation and levied daily fines on the school. The school spent $10,000 to complete the application, only to have the special exception denied. ADF issued a press release announcing the filing of the lawsuit.

Pagan Temple Can Move Ahead With Its RLUIPA Claim

In Yetto v.City of Jackson, (WD TN, Feb. 5, 2019), the founders of a Pagan Temple in Jackson, Tennessee sought a declaratory judgment that the city's zoning ordinance does not apply to the type of religious gatherings held by them at their home.  They also sought an injunction against enforcement of the zoning ordinance against them.  A Tennessee federal district court dismissed their Section 1983 Free Exercise claim on statute of limitations grounds. However the court refused to dismiss their RLUIPA "equal terms" claim as well as their claim that their gatherings do not fall under the term "churches or similar places of worship" as used in the city's zoning ordinance.

4th Circuit Allows Church To Move Ahead With Challenges To Zoning Denial

In Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County, Maryland, (4th Cir., Feb. 7, 2019), the U.S. 4th Circuit Court of Appeals, reversing a Maryland federal district court, refused to dismiss a church's complaint regarding zoning denials that prevented it from operating a church on land that its pastor had purchased. The court held that plaintiffs had sufficiently alleged a substantial burden on their religious practice and discrimination based on religious denomination under RLUIPA. The court said in part:

Particularly relevant to this case, a government decision influenced by community members’ religious bias is unlawful, even if the government decisionmakers display no bias themselves.

The court also vacated the lower court's dismissal of plaintiffs' free exercise, equal protection and state constitutional claims. [Thanks to Will Wsser via Religionlaw for the lead.]

11th Circuit Grants Stay of Execution To Muslim Inmate Whose Imam Would Be Excluded From Execution Chamber

In Ray v. Commissioner, Alabama Department of Corrections, (11th Cir., Feb. 6. 2019), the U.S. 11th Circuit Court of Appeals granted an emergency stay of execution to a Muslim inmate on death row whose request to have his Imam with him during his execution by lethal injection was denied by prison authorities.  Prison rules call for the prison chaplain-- a Christian-- to be in the execution chamber, but allow his Imam to be only in the adjoining witness room. The prison was willing to waive the requirement for the Christian chaplain to be present, but was not willing to allow his Imam to be in the chamber.  The appeals court concluded that this amounts to an Establishment Clause violation, saying in part:

The central constitutional problem here is that the state has regularly placed a Christian cleric in the execution room to minister to the needs of Christian inmates, but has refused to provide the same benefit to a devout Muslim and all other non-Christians.

Alabama appears to have set up “precisely the sort of denominational preference that the Framers of the First Amendment forbade.”

The court went on:

We acknowledge again that we owe deference to the state’s assessment of its security requirements, and we are reluctant to substitute our judgment for the Commissioner’s.... But we cannot simply rely on the unexplained ipse dixit of the state that there are no less restrictive means in the face of Alabama’s obvious denominational preference. To do so would ignore our constitutional obligations and the unambiguous command of the First Amendment that forbids the state from putting its power, prestige, and support behind one religious belief to the exclusion of all others. It remains the state’s burden to demonstrate that there are no other less restrictive means by which to protect its interests....

The court added:

Ray’s claim may well fit under the rubric of RLUIPA as well, though it seems to us more naturally framed by the Establishment Clause.

AP reports on the decison. [Thanks to Doug Velardo for the lead.] 

Cert Petition Filed In RLUIPA Suit By Christian School

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Tree of Life Christian Schools v. City of Upper Arlington, Ohio. In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that a private Christian school had failed to establish a prima facie case that denial of zoning approval for its proposed new location violates the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act.  ADF issued a press release announcing the filing of the petition for review.

Synagogue Wins $2.5M Settlement For RLUIPA Violations

JNS reported this week that a New Jersey synagogue has won a $2.5 million settlement in a mediation proceeding against the town of Clifton, New Jersey. The synagogue claims that Clifton violated the Religious Land Use and Institutionalized Persons Act by creating over ten years of delays in approving construction of a building for Shomrei Torah congregation.  According to one of the synagogue's attorneys:

Shomrei Torah had been commanded to appear before the Planning Board 25 times between March 2013 and October 2015, and before the zoning board seven times between November 2008 and January 2013. They had to appear in state court four times.

The settlement terms, reached in December, were made public on Jan. 3. [Thanks to Steven H. Sholk for the lead.]

RLUIPA Suit By Chabad Challenges Demolition Order

The Baltimore Sun reports that a lawsuit was filed yesterday in a Maryland federal district court by the Chabad House serving Goucher College and Towson University alleging that authorities violated the Religious Land Use and Institutionalized Persons Act in requiring that a 2016 expansion of the Chabad House be razed because it violates a land covenant. State courts have given Chabad until mid-January to set aside funds to comply with the demolition order. According to the Sun:

In the lawsuit, Friends of Lubavitch alleges that Baltimore County officials required Chabad to take part in unnecessary hearings and issued citations that were without merit. The suit also says officials falsely claimed Chabad was operating as a “community center” instead of a residence because the Rivkins were hosting students for Shabbat dinners and Jewish instruction.