RLUIPA Suit Charges City Attempt To Prevent Growth Of Orthodox Jewish Population

Suit was filed earlier this month in an Ohio federal district court by a University Heights, Ohio homeowner who was told by the city that he needed to obtain a special use permit in order to hold Jewish prayer services with ten friends in his home. The complaint (full text) in Grand v. City of University Heights, Ohio, (ND OH, filed 9/8/2021), says in part:

3. Since Grand moved into his home in 2019, he experienced discrimination based on his religion. After Grand’s invitation for friends to join him in Orthodox Jewish prayer in January of 2021, the City, led by its mayor, waged a zealous campaign of capricious enforcement of its local ordinances specifically targeting Grand and several other Orthodox Jewish prayer groups. This campaign is directly responsive to a hostile segment of the mayor’s constituency that seeks to prevent the growth of the City’s Orthodox Jewish population by limiting the locations where Orthodox Jews can pray.

4. Additionally, the City has targeted Grand individually for intentional, arbitrary, and discriminatory application of its ordinances that have caused him substantial injuries.

5. This action challenges certain provisions of the [city ordnances under] ... the United States Constitution, the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”), the Ohio Constitution, and Ohio common law.

News5 Cleveland reports on the lawsuit. 

7th Circuit: Muslim Inmate Entitled To Religious Exemption From Strip Searches By Transgender Guards

In West v. Radtke, (7th Cir., Sept. 16, 2022), the U.S. 7th Circuit Court of Appeals held that a Muslim inmate's rights under RLUIPA were violated when prison authorities refused to exempt him from strip searches conducted by transgender men. Wisconsin first argued that the inmate, Rufus West, should not care that he is searched by a transgender inmate because Islam equally condemns exposing the naked body to any guard, male or female. The court responded that:

The substantial-burden inquiry does not ask whether West’s understanding of his faith obligations is correct.

Prison authorities went on to argue that the burden on West's religious exercise was justified by the state's compelling interest in complying with the anti-discrimination requirements of Title VII which bars discrimination against its transgender guards. The Court said, however:

The prison offers no argument under established Title VII doctrine that exempting West from cross-sex strip searches would inflict an adverse employment action on its transgender employees....

The prison’s Title VII argument would fail even if it could show that exempting West from cross-sex strip searches would lead to an adverse employment action. Title VII permits sex-based distinctions in employment where sex “is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise.” 42 U.S.C. § 2000e-2(e)....

Sex is a bona fide occupational qualification for performing strip searches of prisoners with sincere religious objections to cross-sex strip searches.

The Court also rejected the prison's equal protection defense. It remanded for further development the inmate's 4th Amendment claims. 

Qualified Immunity Denied In Muslim Woman's Challenge To Jail's Booking Photo Policy

In Chaaban v. City of Detroit, Michigan Department of Corrections, (ED MI, Sept. 2, 2022), a Michigan federal district court denied a motion in a RLUIPA case for reconsideration of the denial of qualified immunity to corrections officials who forced a Muslim woman to remove her hijab for a booking photograph. The court concluded that it was premature to grant immunity on a motion to dismiss, saying in part:

[D]iscovery is needed to determine “whether the state of the law . . . gave [the defendants] fair warning that [the plaintiff’s] alleged treatment was unconstitutional.”... Plaintiff plausibly alleged in her complaint that prison officers threatened to make Plaintiff “sleep on the concrete floor of the booking cell without a bed, blanket, mattress or pillow” if she did not remove her hijab.... Taking this and other allegations in Plaintiff’s complaint as true ... the Court properly determined that qualified immunity is not appropriate at this time.

Synagogue's Suit Over Zoning Denial Is Dismissed

In Chabad of Prospect, Inc. v. Louisville Metro Board of  Zoning Adjustment,(WD KY, Aug. 23, 2022), a Kentucky federal district court dismissed a suit brought against zoning officials by a synagogue that was denied a conditional use permit to use a home purchased by it for religious services. When the property was put up for sale, zoning rules allowed its use for religious purposes.  However, before plaintiff purchased the property the city removed that provision and required a conditional use permit. Plaintiff was unaware of the change. The court held that plaintiff's Sec. 1983 claim alleging 1st Amendment violations was barred by the statute of limitations. Additionally, it held that plaintiff failed to state a claim under RLUIPA, saying in part:

Chabad alleged only that it chose and purchased the property “specifically” to open a synagogue for the community given that there are “[v]ery few synagogues” in the area and having one in “Prospect is vital to its mission.”... It didn’t allege any delay, expense, and uncertainty due to the burden of the denial. And Chabad never alleged that alternatives are infeasible, nor any other facts that indicate a substantial burden.

The court also rejected a claim under RLUIPA's "equal terms" provision, saying in part:

Chabad hasn’t offered anything to rebut the prediction that a house of worship would be more likely to cause greater traffic problems than regular residential events, even if the religious services are currently smaller....

Finally, the court rejected plaintiffs' state law claims.

Jewish School Lacks Standing In Suit Claiming Religious Discrimination

In Ateres Bais Yaakov Academy of Rockland v. Town of Clarkston, (SD NY, July 12, 2022), a New York federal district court dismissed for lack of standing a suit under RLUIPA and federal civil rights laws brought by an Orthodox Jewish school ("ABY") against a New York town and a citizens group.  The suit alleged that the defendants, motivated by discrimination against Orthodox Jews, prevented the school from closing the purchase of a building owned by Grace Baptist Church. The court said in part:

... ABY fails to sufficiently establish that its claims based on the denial of the building permit application are ripe such that it suffered an “actual, concrete injury” because the ZBA never issued a final decision on ABY’s appeal and variance application. In other words, the ZBA’s nonfinal decision here does not “give rise to an injury that is sufficiently concrete and particularized to satisfy Article III.”...

... ABY fails to sufficiently allege how the Town Defendants’ conduct “constrained or influenced” GBC’s decision to stop agreeing to amend the contract and to terminate it on May 16, 2019.... Accordingly, the Court concludes that ABY has failed to sufficiently establish standing for its second alleged injury in fact with respect to the Town Defendants’ conduct. Consequently, the Court dismisses all of ABY’s claims against the Town Defendants and its § 1985 conspiracy claim against all Defendants....

11th Circuit: Jail's Procedure For Passover Participation Is Upheld

In Dorman v. Chaplain's Office BSO, (11th Cir., June 10, 2022), the U.S. 11th Circuit Court of Appeals upheld the procedures used by the Broward County, Florida jail that required inmates to register 45 days in advance in order to participate in Passover services and meals.  The court said in part:

First, the 45-day registration requirement did not constitute a substantial burden on Mr. Dorman’s exercise of his Jewish faith under the RLUIPA, and therefore it also did not violate the First Amendment’s more lenient reasonableness standard. Second, the electronic posting of the 45-day registration requirement on the Jail’s computer kiosk, which he and other inmates used to communicate with Jail staff, provided adequate notice of the registration requirement to satisfy due process.

9th Circuit OK's Refusal To House Muslim Inmate Only With Co-Religionists

 In Al Saud v. Days, (9th Cir., June 8, 2022), the U.S. 9th Circuit Court of Appeals rejected claims under RLUIPA and the 1st Amendment brought by a Muslim inmate who sought to be housed only with other Muslim inmates. He contends he is currently unable to pray five times per day as required by his religion because inmates with whom he is now housed harass him when he prays. The court summarized the holding in part as follows:

Al Saud’s RLUIPA claim failed because denying his request to be housed only with Muslims was the least restrictive means of furthering a compelling governmental interest. The panel concluded that the outcome of this case was largely controlled by Walker v. Beard, 789 F.3d 1125 (9th Cir. 2015), which held that a prison could deny a prisoner’s religious accommodation when he sought to be housed with only white people. Because both race and religion are suspect classes, the likelihood that equal protection liability would flow from housing prisoners based on religion was substantially identical to the likelihood of liability for housing prisoners based on race and, therefore, was sufficient to serve as a compelling interest.

Court Resolves Details Of Last Rites During Inmate's Execution

In Atwood v. Shinn, (D AZ, June 6, 2022), an Arizona federal district court entered a preliminary injunction detailing the manner in which a Greek Orthodox priest could administer last rites to a prisoner before and during the prisoner's execution by lethal injection.  The state consented to many of the provisions of the injunction. However the court, relying on RLUIPA as a basis, resolved the remaining areas of disagreement: (1) The inmate may be in a wheelchair rather than a restraint chair so he can fully participate in the tonsure ceremony; (2) the priest may be at the inmate's head during the execution so he can place a priestly stole over his head.

Asatru Inmate Loses RLUIPA and Equal Protection Challenges

In Watkinson v. Alaska Department of Corrections, (9th Cir., May 2, 2022), the U.S. 9th Circuit Court of Appeals held that Alaska did not violate the rights of a prisoner who was a practitioner of Asatru when it prevented him from using firewood purchased through the Prison Welfare Fund (PWF) for religious purposes, and when it did not allow use of the Prison Welfare Fund for inmates to pool funds to purchase juice and honey in bulk. The court said in part:

RLUIPA does not require a state to facilitate or subsidize the exercise of religion or pay for devotional accessories.... ADOC policies do not deny Plaintiff access to any item necessary for his religious ceremonies, and Plaintiff may procure all necessary items without access to the PWF. Defendants’ policies thus did not substantially burden the exercise of Plaintiff’s religious practice...

The court also rejected plaintiff's 1st Amendment claim.  In addition it rejected his Equal Protection claim, even though prison authorities allowed a Native American cultural group to use PWF-purchased firewood at the prison sweat lodge. According to the court:

The prison director testified that the groups are not similarly situated because the sweat lodge is a cultural rather than a religious activity.

Denial Of Permission To Build Buddhist Meditation Center Did Not Violate RLUIPA

In Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama, an Alabama federal district court dismissed a RLUIPA and 1st Amendment challenge to the city's denial of permission to build a meditation center and related structures in an area zoned residential. Plaintiff is a Buddhist religious organization.  The court said in part:

The Court finds Plaintiffs have shown, for the purposes of summary judgment, the City’s decision effectively deprives them of any viable means by which to engage in protected religious exercise, but the application of the City’s Zoning Ordinance generally does not since the meditation center could be located at a commercially zoned property as of right.... 

... Plaintiffs have not demonstrated the City’s zoning decisions substantially burdened their religious exercise, and even if Plaintiffs’ religious exercise was substantially burdened by the denial of their Applications, the Court finds the decision was the least restrictive means to further the City’s compelling interest in its Zoning Ordinance...

Court Enjoins Autopsy In Suit By Inmate Facing Execution

In Smith v. Li, (MD TN, April 20, 2022), a Tennessee federal district court, in a RLUIPA suit by an inmate about to be executed, enjoined the state's medical examiner from performing an autopsy after the execution, collecting fluids postmortem, or performing any other procedure violating plaintiff's the body's physical integrity after death. The court said in part:

It may be that the medical community does not consider the collection of fluid samples to constitute an “autopsy.” That fact, though, has no bearing on either the sincerity or the content of Smith’s religious beliefs, which do not depend on any such distinction. It is not the place of Dr. Li, the government, or the court to try to convince Smith that he should not consider the postmortem collection of his bodily fluids to be an impermissible intrusion on his religiously mandated bodily integrity. If Smith does sincerely believe that—and the court finds that he does— then Dr. Li’s stated intention to violate his beliefs implicates RLUIPA, whether Dr. Li finds Smith’s theological explanation persuasive or not....

Under these circumstances, where the decision whether to conduct an autopsy is left to the discretion of the county medical examiner and, alternatively, to that of the state chief medical examiner or the district attorney general, it is difficult to see how the government could show that conducting an autopsy is necessary to fulfill a compelling government interest. If the interest were truly compelling, the statute presumably would mandate it.

Michigan City Violated RLUIPA In Applying Special Requirements On Places Of Worship

In United States v. City of Troy, (ED MI, March 18, 2022), a Michigan federal district court enjoined the city of Troy, Michigan from enforcing its zoning ordinance that imposes stricter setback and parking standards on places of worship than it does on non-religious uses in the same zoning district. The Zoning Board of Appeal refused to grant a variance from these requirements to the Islamic Adam Community Center. The court held that the city had violated the "equal terms" provisions of RLUIPA, saying in part:

While it may be true that places of worship do cause some of the negative impacts to which Troy refers—a high number of visitors, traffic influxes during short periods of time, safety considerations due to increased traffic, and nuisances such as increased noise, light, or exhaust fumes—Troy fails to provide evidence as to how exactly these concerns are unique with respect to places of worship and not similar institutions such as schools or banquet halls.

The court also concluded that the city had violated the "substantial burden" provisions of RLUIPA.  [Thanks to John Kulesz for the lead.]

Supreme Court Says Pastor Should Be Allowed To Pray Audibly And Lay Hands On Prisoner Being Executed

In Ramirez v. Collier, (Sup.Ct., March 24, 2022), the U.S. Supreme court in n 8-1 decision held that a death row prisoner was likely to succeed in his RLUIPA lawsuit challenging limits on his pastor's activities in the execution chamber.  The Court held that petitioner is entitled to a preliminary injunction barring Texas from proceeding with his execution without permitting his pastor, during the execution, to lay hands on the prisoner and audibly pray with him. Chief Justice Roberts majority opinion said in part:

First, prison officials say that absolute silence is necessary in the execution chamber so they can monitor the inmate’s condition through a microphone suspended overhead. They say that audible prayer might impede their ability to hear subtle signs of trouble or prove distracting during an emergency.... But respondents fail to show that a categorical ban on all audible prayer is the least restrictive means of furthering their compelling interests....

Second, prison officials say that if they allow spiritual advisors to pray aloud during executions, the opportunity “could be exploited to make a statement to the witnesses or officials, rather than the inmate.” ... But there is no indication in the record that Pastor Moore would cause the sorts of disruptions that respondents fear...

Respondents’ categorical ban on religious touch in the execution chamber fares no better.... Under Texas’s current protocol, spiritual advisors stand just three feet from the gurney in the execution chamber.... A security escort is posted nearby, ready to intervene if anything goes awry.... We do not see how letting the spiritual advisor stand slightly closer, reach out his arm, and touch a part of the prisoner’s body well away from the site of any IV line would meaningfully increase risk.

Justices Sotomayor and Kavanaugh each filed a concurring opinion.  Justice Thomas filed a 23-page dissent, saying in part:

Petitioner John Henry Ramirez stabbed Pablo Castro 29 times during a robbery that netted $1.25. Castro bled to death in a parking lot. Since that day, Ramirez has manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas. This Court now affords yet another chance for him to delay his execution. Because I think Ramirez’s claims either do not warrant equitable relief or are procedurally barred, I respectfully dissent.

CNN reports on the decision.

No RLUIPA Or Free Exercise Violation In Denying Sewer Service To Proposed Church Building

In Canaan Christian Church v. Montgomery County Maryland, (4th Cir., March 22, 2022), the U.S. 4th Circuit Court of Appeals held that Montgomery County did not violate a church's rights under RLUIPA or the 1st Amendment when it refused to extend public sewer lines to properties on which the church proposed to construct a new larger building for its congregation. The land use and water plans covering the properties provided that no public sewer service would be permitted (except for public health requirements). The church's purchase contracts for the properties were contingent on the county's approval of sewer service. The court said in part:

Because Appellants were well aware of the difficulties in development of the Property when they entered into the contract to purchase the Property, they could not have a reasonable expectation of religious land use. Further, the land use restrictions are rationally related to the government’s interest in protecting the region’s watershed.

A concurring opinion by Judge Richardson took issue with some of the analysis in the majority opinion.

Code Enforcement Against Buddhist Temple Did Not Violate Free Exercise Clause Or RLUIPA

In Temple of 1001 Buddhas v. City of Fremont, (ND CA, March 4, 2022), a California federal district court dismissed a suit by a Miaolan Lee who lives on property owned by the Temple of 1001 Buddhas challenging the city's enforcement of the state's building, electrical and plumbing codes. Among others, the court dismissed plaintiff's free exercise and RLUIPA claims, saying in part:

Although the code enforcement does not permit her to use (for any purpose) the three buildings that are in severe noncompliance, Lee can exercise her religion elsewhere on her property. The code enforcement does not at all “coerce [her] into acting contrary to [her] religious beliefs or exert substantial pressure on [her] to modify his behavior and to violate [her] beliefs.” ...

Lee argues that the City violated RLUIPA when West “instruct[ed] Plaintiff Lee that she could only pray on the property in the main house or in the dome Meditation Hall and nowhere else on the Real Property.” ... Lee contends that this act was “an implementation of a land use regulation.”... [T]he Court now concludes that Lee does not state a claim on this basis because Lee does not plausibly allege that this remark constituted the “application of a zoning or landmarking law” within the meaning of RLUIPA.

Arrest Of Parishioners For Wrongful Eviction Did Not Violate RLUIPA

In Colorado Springs Fellowship Church v. City of Colorado Springs,  (D CO, Feb. 4, 2022), a Colorado federal district court dismissed  RLUIPA as well as 1st and 14th Amendment claims against the city and various law enforcement officials brought by a church and eight of its parishioners.  The church leased an apartment that was to be for the use of members who were in need of housing but could not afford to rent a habitable dwelling.  Amisha and Nicholas Gainer were identified as occupants of the Apartment in the lease. The church found that the Gainers had been acting in violation of the lease. Instead of following a formal eviction route, church members merely showed up at the apartment to move the Gainers out.  The Gainers threatened the parishioners with a gun and baseball bat.  The parishioners then retreated and called the police. When the police arrived, they arrested the parishioners, who now are suing. Dismissing plaintiffs' RLUIPA claim, the court said in part:

Defendants argue ... that their conduct ... has no relation to land use regulations and consequently does not fall within the scope of the statute....  Plaintiffs argue that the actions of the DAO and the CSPD were premised on the Plaintiffs’ failure to secure an eviction proceeding within the land use laws of the City..... Further, Plaintiffs argue that “leasing [the Apartment] (and all actions attendant thereto) were as much a part of its religious actions as a Sunday Service.”...

The Court finds that the Plaintiffs’ allegations do not implicate any land use regulations, as defined by the statute.

Ashram Loses RLUIPA "Equal Terms" Challenge

In Divine Grace Yoga Ashram Inc. v. County of Yavapai, (D AZ, Jan. 31, 2022), an Arizona federal district court rejected a RLUIPA claim by an Ashram that objects to the county's insistence it obtain a Conditional Use Permit to continue to operate its retreats and daily meditations on a 12.6 acre ranch property next to the Coconino National Forest.  Plaintiff contends that the Permit requirement violates the "equal terms" provision of RLUIPA because public and charter schools in the same area zoned Residential Single Family are exempt from the requirement.  The court concluded however that public and charter schools are not similarly situated to plaintiff.  State law prohibits localities from imposing zoning restrictions on such schools. That makes them different.

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.