RLUIPA.org
C.L.U.B. v. City of Chicago
In the fall of 2000, C.L.U.B. (Civil Liberties for Urban Believers), an association of churches in the Chicago area, added a RLUIPA claim to a lawsuit originally filed against the City of Chicago in December, 1998. (Earlier complaints had been filed as early as October 11, 1994, and were decided by five separate written opinions.)
C.L.U.B., along with six churches as co-plaintiffs, charged that Chicago zoning laws violate the U.S. Constitution, the Illinois RFRA statute, and RLUIPA (an amended complaint was filed after RLUIPA was passed in the fall of 2000), because they impose a substantial burden on churches wishing to occupy property in the city.
Chicago zoning law allows churches in residential areas, but plaintiffs argue that it is "almost impossible to find a parcel of vacant land large enough to build a church in a residential zone" in the city today.
Churches are allowed in business and commercial zones only if they are granted a special use permit, requiring that they go through a complicated process that in practice is too costly for smaller churches. Moreover, such permits are often denied because of the opposition of the local alderman or other political factors. In one particularly egregious case, an alderman was able to engineer the rezoning of a property being sought by a church, moving it from the "C" category, which allows churches with a special use permit, to the "M" category, in which churches are prohibited.
On March 30, 2001, Federal Judge William J. Hibbler issued a decision granting defendant's motions for summary judgment (PDF format). The portion of the complaint discussed at the greatest length in Judge Hibbler's decision, the alleged violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, was heavily impacted by the Chicago City Council's decision to amend the Zoning Ordinance in February, 2000. Prior to the amendment, "clubs and lodges," "meeting halls," and "recreation buildings and community centers" were permitted to locate in B and C districts as of right, while churches were required to obtain a special use permit. The amended Zoning Ordinance now requires these other groups to obtain special use permits as well. Persuant to those changes, Judge Hibbler found, "most of the uses allegedly similar to churches receive the same treatment."
Regarding the rezoning incident mentioned above, Judge Hibbler acknowledged that the behavior of the alderman in question [and others] "may be egregious and may even have risen to the level of dishonorable, [but] the system in which they operate is not unconstitutional and is acceptable under a rational basis test."
The Court did not address the constitutionality of RLUIPA, finding that the law "is inapplicable to the present matter by its own terms." As with the Court's holding on the Equal Protection complaint, it found that the City Council's February 2000 Zoning Ordinance amendments made the difference. "By removing any potential substantial burden, the City has avoided the threat of heightened scrutiny under RLUIPA."
On October 19, 2001, Judge Hibbler granted the city's motion for summary judgment on C.L.U.B.'s RLUIPA complaint (PDF format, 718K). On March 29, 2002, Judge Hibbler denied Plaintiff's Motion to Alter or Amend the Judgement of the Court (PDF format, 237K).
On November 20, 2001 C.L.U.B. appealed the case to the 7th U.S. Circuit Court of Appeals. C.L.U.B. filed its appellant brief (PDF format, 482K)with the court on June 19, 2002.
On June 26, 2002, The Becket Fund for Religious Liberty filed an amicus curiae brief (PDF format, 89K) with the appeals court on behalf of itself and Calvary Chapel O'Hare, a small suburban church represented by The Becket Fund in a similar case. The brief states that "the lower court addressed the churches' Equal Terms argument in a cursory fashion, holding that, since churches may exist as a permitted use in Chicago's residential districts, they are treated 'as well, if not better than similar, non-religious assembly uses.' But being able to locate in a residential district cannot be considered 'equal treatment' for churches." Such a conclusion "only increases Chicago's constitutional violation: it creats and enforces a model of the 'proper' church, one that belongs in residential districts." The brief concludes, "The principle that separate treatment is equivalent to equal treatment has long been rejected in the racial context, and this Court should likewise refuse to accept it in the religion context—particularly where it lacks any basis in First Amendment jurisprudence."
The City of Chicago filed its appellee brief (PDF format, 562K) on September 16, 2002. A group of governments and organizations represented by law professor Marci Hamilton (The Alabama Preservation Alliance; the National League of Cities; the International Municipal Lawyers Association; the City of Huntsville, Alabama; the City of New Milford, Connecticut; and the Village of Kings Point, New York - see note below) filed an amicus brief (PDF format, 191K) on September 23, 2002.
The U.S. Justice Department intervened in the case to defend RLUIPA's constitutionality, and filed its intervenor brief (PDF format, 181K) on October 22, 2002. DOJ also filed an addendum (PDF format, 696K) containing the text of an unpublished decision by U.S. District Judge Wayne Anderson, of the U.S. District Court for the Northern District of Illinois, in Christ Universal Mission Church v. City of Chicago, in which he rejected the City of Chicago's argument that RLUIPA is unconstitutional. The city filed an additional brief (PDF format, 342K) on November 7, 2002. Oral arguments were heard by the appeals court on January 17, 2003.
On August 20, 2003, in a 2-1 decision (PDF format, 110K), the Seventh Circuit panel affirmed the decision of the district court. It acknowledged that RLUIPA's definition of "'substantial burden on religious exercise' could be read to include the effect of any regulation that 'inhibits or constrains the use, building, or conversion of real property for the purpose of religious exercise,'" but it added, "this cannot be the correct construction of 'substantial burden on religious exercise' under RLUIPA."
"We therefore hold that, in the context of RLUIPA's broad definition of religious exercise, a land-use regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise—including the use of real property for the purpose thereof within the regulated jurisdiction generally—effectively impracticable," the court ruled. It declared that such factors as "scarcity of affordable land . . . along with the costs, procedural reequirements, and inherent political aspects of the Special Use, Map Amendment, and Planned Development approval processes . . . are incidental to any high-density urban land use [and thus] do not amount to a substantial burden on religious exercise."
The court also determined that the February 2000 amendments to the CZO brought it into compliance with RLUIPA's nondiscrimination provision. Having found no "substantial burden" violation by the city, and no violation of the nondiscrimination provision, the court concluded that "Appellants fail to make a sufficient showing on essential elements of their RLUIPA claims. Chicago is therefore entitled to summary judgment on those claims."
Finally, "Having found RLUIPA inapplicable to the facts of this case, we need not address the issue of RLUIPA's constitutionality."
The court then proceeded to dispose of the plaintiff's constitutional claims, rejecting free exercise, speech and assembly claims and stating, "Appellants have identified no constitutionally protected interest upon which the CZO infringes."
In a dissenting opinion, Judge Richard Posner wrote, "This is a difficult case, but I have come to the conclusion that the restrictions that Chicago's zoning ordinance places on churches (a term that I use broadly to include any religion's place of worship) violate the equal protection clause of the Fourteenth Amendment."
"The question," Posner wrote, "is whether the City's restrictions on where churches may locate are rational. But 'rationality' in the law of equal protection is not in fact a single standard, though the courts have been coy about admitting this." The Supreme Court's decision in City of Cleburne v. Cleburne Living Center, Inc. and decisions following it "idenfity a category of sensitive uses or activities, where judges are to be more alert for unjustifiable discrimination than in the usual case in which government regulations are challenged on equal protection grounds."
"Chicago's zoning ordinance imposes the same severe burden on new churches that the ordinance invalidated in the Cleburne case imposed on homes for the mentally retarded, and with no greater justification. In doing so, it denied the plaintiffs the equal protection of the laws," Posner concluded.
Apostle Theodore Wilkinson, Chairman of C.L.U.B., said in a statement after the Seventh Circuit decision was released, "“The forty (40) churches in C.L.U.B. and certainly people of all faiths throughout Chicago are outraged by the majority opinion which neuters the Religious Land Use and Institutionalized Persons Act passed unanimously by Congress in 2000. Also alarming is the Court’s conclusion that Chicago’s religious assemblies have no free speech protection from zoning laws. The majority opinion would apparently extend free speech protection to religious assemblies only if they allowed live nude dancing. The freedoms of speech, religion and assembly of all Chicagoans have all been trumped by aldermanic discretion.” He said they would consider whether to ask the Seventh Circuit to rehear the case en banc, or appeal to the Supreme Court.
Chicago attorney John Mauck, of the law firm of Mauck and Baker, represents C.L.U.B.
(C.L.U.B., et al., v. City of Chicago, U.S. District Court for the Northern District of Illinois, No. 94-CV-6151; U.S. Court of Appeals for the Seventh Circuit, Appeal No. 01-4030)
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The National League of Cities and the International Municipal Lawyer's Association vehemently opposed passage of RLUIPA, and have been looking for a case that would serve as a vehicle to challenge its constitutionality since the statute was signed into law in September 2000. This is the first case in which they have appeared.
The City of Huntsville, Alabama is the target of a lawsuit in Temple B'nai Sholom v. City of Huntsville, in which The Becket Fund represents a Jewish congregation that wants to tear down a dilapidated house on its property in a historic district of the city (the house itself has no historic significance). The Alabama Preservation Alliance is lending their support.
The City of New Milford, Connecticut, is the defendant in Murphy v. Zoning Commission of the Town of New Milford, a case in which the town has sued a local couple for having prayer meetings in their home.