Amicus Curiae Brief — Spirit of Aloha Temple, a Hawaii Nonprofit Corporation, et al., Petitioners v. Maui County, Hawaii, et al.

Supreme Court briefJul 30, 2025

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No. 24-1327

IN THE

Supreme Court

of the United States

___________

SPIRIT OF ALOHA TEMPLE, A HAWAII

NONPROFIT CORPORATION, ET AL.,

Petitioners,

MAUI COUNTY, HAWAII, ET AL.,

Respondents.

_________________________________

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

_________________________________

BRIEF OF AMICUS CURIAE

JEWISH COALITION

FOR RELIGIOUS LIBERTY

IN SUPPORT OF PETITIONERS

_________________________________

PHILIP DEVOE

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, NY 10019

GORDON D. TODD *

DANIEL J. HAY

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8760

gtodd@sidley.com

Attorneys for Amicus Curiae

July 30, 2025

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

INTEREST OF THE AMICUS CURIAE ............

INTRODUCTION

AND

SUMMARY

ARGUMENT .....................................................

ARGUMENT ........................................................

I. THE NINTH CIRCUIT’S DECISION

ERODES RLUIPA’S FREE EXERCISE

AND

ANTI-DISCRIMINATION

PROTECTIONS. ..........................................

A. RLUIPA

Empowers

Religious

Institutions to Defend their Chosen

Means of Religious Exercise. .................

B. The

Ninth

Circuit’s

Decision

Undermines RLUIPA’s Protection.........

II. MINORITY

RELIGIOUS

GROUPS

DEPEND ON RLUIPA TO DEFEND

THEIR OWN DECISION-MAKING AND

FIGHT DISCRIMINATION.........................

CONCLUSION ....................................................

TABLE OF AUTHORITIES

CASES

Page

Bethel World Outreach Ministries v.

Montgomery Cnty. Council, 706 F.3d 548

(4th Cir. 2013) ...........................................

Bikur Cholim, Inc. v. Vill. of Suffern, No.

7:05-cv-10759, 2011 WL 2893071

(S.D.N.Y. June 29, 2011) ..........................

Braunfeld v. Brown, 366 U.S. 599 (1961)....

Cent. UTA of Monsey v. Vill. of Airmont,

No. 18 CV 11103, 2020 WL 377706

(S.D.N.Y. Jan. 23, 2020) ...........................

Chabad Jewish Ctr. of Toms River, Inc. v.

Twp. of Toms River, No. 3:16-01599, 2018

WL 1942360 (D.N.J. Feb. 5, 2018) ...........

Chabad Lubavitch of Litchfield Cnty., Inc.

v. Litchfield Historic Dist. Comm’n, 768

F.3d 183 (2d Cir. 2014) .............................

Church of Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520 (1993) ................

Church of Scientology of Ga., Inc. v. City of

Sandy Springs, 843 F. Supp. 2d 1328

(N.D. Ga. 2012).........................................

City of Boerne v. Flores, 521 U.S. 507

(1997) .........................................................

Congregation Kollel, Inc. v. Twp. of Howell,

No. 16-2457, 2017 WL 637689 (D.N.J.

Feb. 16, 2017) ............................................

Congregation Rabbinical Coll. of Tartikov,

Inc. v. Vill. of Pomona, 280 F. Supp. 3d

426 (S.D.N.Y. 2017), aff’d in relevant

part, 945 F.3d 83 (2d Cir. 2019) ...............

Cutter v. Wilkinson, 544 U.S. 709 (2005) ....

Emp. Div. v. Smith, 494 U.S. 872 (1990) .... 6, 7

iii

TABLE OF AUTHORITIES - continued

Page

Fortress Bible Church v. Feiner, 694 F.3d

208 (2d Cir. 2012) ......................................

Guru Nanak Sikh Soc’y v. Cnty. of Sutter,

456 F.3d 978 (9th Cir. 2006) ..................... 5, 10

Holt v. Hobbs, 574 U.S. 352 (2015) ..............

Int’l Church of Foursquare Gospel v. City of

San Leandro, 673 F.3d 1059 (9th Cir.

2011) ..........................................................

Midrash Sephardi, Inc. v. Town of

Surfside, 366 F.3d 1214 (11th Cir. 2004) .

Murphy v. Zoning Comm’n, 223 F. Supp.

2d 377 (D. Conn. 2002)..............................

New Harvest Christian Fellowship v. City

of Salinas, 29 F.4th 596 (9th Cir. 2022) ...

O’Lone v. Est. of Shabazz, 482 U.S. 342

(1987) .........................................................

Ramirez v. Collier, 595 U.S. 411 (2022) ......

San Jose Christian Coll. v. City of Morgan

Hill, 360 F.3d 1024 (9th Cir. 2004) .......... 8, 13

Smith v. Cmty. Bd. No. 14, 491 N.Y.S.2d

584 (Sup. Ct. 1985)....................................

Sts. Constantine & Helen Greek Orthodox

Church, Inc. v. City of New Berlin, 396

F.3d 895 (7th Cir. 2005) ......................... 4, 8, 10

Tenafly Eruv Ass’n, Inc. v. Borough of

Tenafly, 309 F.3d 144 (3d Cir. 2002) ........

Westchester Day Sch. v. Vill. of

Mamaroneck, 504 F.3d 338 (2d Cir.

2007) ..................................................... 8, 10, 20

Whole Woman’s Health v. Smith, 896 F.3d

362 (5th Cir. 2018) ....................................

TABLE OF AUTHORITIES - continued

Page

STATUTES

42 U.S.C § 2000cc(a)(1) ................................

42 U.S.C § 2000cc(b)(2) ................................

42 U.S.C § 2000cc-2(a) .................................

42 U.S.C § 2000cc-3(e)..................................

42 U.S.C § 2000cc-3(g) .................................

Pub. L. No. 106-274, 114 Stat. 803 (2000)...

3, 8

LEGISLATIVE HISTORY

146 Cong. Rec. 16,698 (2000) ............... 7, 8, 13, 14

Religious Liberty: Hearing on Issues

Relating to the Constitutionality of a

Religious Protection Measure Before the S.

Comm. on the Judiciary, 106th Cong. 21

(1999) .........................................................

SCHOLARLY AUTHORITIES

Lucien J. Dhooge, A Case Law Survey of the

Impact of RLUIPA on Land Use

Regulation, 102 Marq. L. Rev. 985 (2019)

Von G. Keetch & Matthew K. Richards, The

Need for Legislation to Enshrine Free

Exercise in the Land Use Context, 32 U.C.

Davis L. Rev. 725 (1999) ...........................

Christopher Serkin & Nelson Tebbe,

Condemning Religion: RLUIPA and the

Politics of Eminent Domain, 85 Notre

Dame L. Rev. 1 (2009) ...............................

TABLE OF AUTHORITIES - continued

Page

Roman P. Storzer & Anthony R. Picarello,

Jr., The Religious Land Use and

Institutionalized Persons Act of 2000: A

Constitutional Response to Unconstitutio

nal Zoning Practices, 9 Geo. Mason L.

Rev. 929 (2001) ..........................................

OTHER AUTHORITIES

Anti-Defamation League, ADL H.E.A.T.

Map, https://perma.cc/Q7CW-J3PH (last

visited July 23, 2025) ................................

Barry Black, How Courts Paved the Way for

the Eruv, N.Y. Law J. (Mar. 1, 2019),

https://perma.cc/Q4AW-MQR2 .................

Ben Sales, Insisting It Is Not Anti-Semitic,

NJ Group Sees Haredi Orthodox as a

Threat to ‘Quality of Life,’ Jewish

Telegraphic Agency (Jan. 23, 2019),

https://perma.cc/L5MK-2LLZ ...................

Brandon Cruz, Long Island Mayor Quits

After Jacking Up Taxes 87%, Costing

Village Nearly $1.5 Million over

Antisemitism Lawsuit, NY Post (July 4,

2024), https://perma.cc/35BL-4Z3Q ..........

Diana Neeves & Evan Seeman, Mahwah,

NJ Agrees to Settle Eruv Dispute, RLUIPA

Defense Blog (Feb. 7, 2018), https://perm

a.cc/SAM3-9NYH ......................................

Evan Seeman, Clifton, NJ Pays $2.5 Million

to Settle RLUIPA Dispute, RLUIPA

Defense Blog (Jan. 10, 2019), https://per

ma.cc/J4JG-T87B ......................................

TABLE OF AUTHORITIES - continued

Page

Sharonne Cohen, What Is An Eruv?, My

Jewish Learning (Nov. 22 2017),

https://perma.cc/U66N-B7TX ...................

Justin Auciello, Police Investigating AntiSemitic Graffiti in Toms River, WHYY

(Mar. 2, 2016), https://perma.cc/HPZ4TFUZ .........................................................

Sarah Brown, Growing Anti-Semitism in

California and Globally, Pacific Council

on International Policy (Oct. 11, 2019),

https://perma.cc/MHR7-Q4ND .................

INTEREST OF THE AMICUS CURIAE 1

The Jewish Coalition for Religious Liberty

(“JCRL”) is an association of American Jews dedicated

to protecting the ability of all Americans to practice

their faith freely, to protect Jewish beliefs particularly,

and to foster cooperation between Jews and adherents

of other faiths. JCRL’s leaders have filed amicus briefs

in the U.S. Supreme Court and lower federal courts,

published op-eds in prominent news outlets, and

established an extensive volunteer network to spur

public statements and action on religious liberty

issues by Jewish communal leadership. See, e.g.,

Whole Woman’s Health v. Smith, 896 F.3d 362, 372

(5th Cir. 2018) (citing to JCRL brief for guidance on

First Amendment question), cert. denied sub nom.

Whole Woman’s Health v. Tex. Cath. Conf. of Bishops,

139 S. Ct. 1170 (2019) (mem.).

JCRL has a strong interest in religious rights of

particular importance to minority faiths, such as those

secured by the land-use provisions of the Religious

Land Use and Institutionalized Persons Act of 2000

(“RLUIPA”), and frequently briefs such issues. See,

e.g., Br. of Jewish Coal. for Religious Liberty & Chabad

Lubavitch of Nw. Conn. as Amici Curiae in Support of

Appellants, Spirit of Alpha Temple v. Cnty. of Maui,

No. 19-16839 (9th Cir. March 7, 2020); Br. of Jewish

Coal. for Religious Liberty as Amicus Curiae in

Support of Petitioner, Tree of Life Christian Schs. v.

City of Upper Arlington, 139 S. Ct. 2011 (2019) (mem.)

(No. 18-944), 2019 WL 949895 (urging certiorari grant

1 Counsel has obtained consent of all parties. No counsel for any

party authored this brief in whole or in part, and no entity or

person, aside from amicus and their counsel, made any monetary

contribution toward the preparation or submission of this brief.

on circuit split regarding RLUIPA, explaining impact

on observant Jewish communities).

INTRODUCTION AND

SUMMARY OF ARGUMENT

The importance of land to religious practice is as

ancient as religious practice itself. In Judaism, as in

many other traditions, the ability to establish places of

worship, to gather for prayer and reflection, and to

congregate in sorrow or celebration—including for

marriages—goes to the very heart of the free exercise

of religion. Indeed, dating back to God’s original

covenant to Abraham to deliver for him and his

successors a Promised Land, the use of land has played

a central role in Judaism for millennia.

Recognizing that local land regulation can—

inadvertently or perniciously—hamper this core

religious exercise, Congress enacted RLUIPA to

safeguard religious land use. See Pub. L. No. 106-274,

114 Stat. 803 (2000) (codified at 42 U.S.C. §§ 2000cc to

2000cc-5). For 25 years, RLUIPA has provided

important protections for all faiths, and particularly

faiths more likely to be overlooked or even targeted by

local land-use decisions.

This protection is at risk in the Ninth Circuit. In the

decision below, the Ninth Circuit held that an RLUIPA

claimant must first show that it is precluded from

using other sites within a municipality’s jurisdiction.

Only after satisfying this—and possibly another, see

Pet. Br. 12—extra-statutory precondition may the

religious institution receive a ruling on its substantial

burden claim. This imposes a burden that exists for no

other group simply seeking fair treatment from local

land-use officials. And it hollows out RLUIPA to serve

only as a protection against getting literally run out of

town.

RLUIPA does not impose such a requirement on

religious organizations. To the contrary, it protects

such organizations against any land-use decision that

“imposes a substantial burden” on their religious

exercise. 42 U.S.C. § 2000cc(a)(1). The Ninth Circuit,

though, converts the RLUIPA protection into its own

kind of burden, forcing organizations to conduct the

costly and time-consuming process of betting all

potential alternative sites. This rule will also raise

significant administrability questions in the lower

courts, which will further burden religious exercise.

For example, how are courts to assess whether there

is a suitable alternative—should lower courts second

guess religious leaders’ decisions of what locations are

appropriate for sacred ground?

Affirming the decisions below would thus weaken

protections guaranteed to all faiths—protections that

are particularly important today. As its members are

readily identifiable religious minorities, amicus is well

aware of the disturbingly frequent and concerted

discrimination against such groups, including antiSemitic opposition to the establishment, growth, and

flourishing of Jewish communities. RLUIPA and the

First Amendment form a valuable bulwark against

overt and subtle anti-Semitism. The decision below

dilutes these statutory and constitutional protections

and threatens to make some American communities

less hospitable homes for American Jews.

ARGUMENT

For a religious institution, “having ‘a place of

worship . . . is at the very core of the free exercise of

religion,’” since “‘[c]hurches and synagogues cannot

function without a physical space adequate to their

needs and consistent with their theological

requirements.’” Int’l Church of Foursquare Gospel v.

City of San Leandro, 673 F.3d 1059, 1069 (9th Cir.

2011) (omission and alteration in original). Yet in the

religious land use context, courts have observed the

“vulnerability of religious institutions—especially

those that are not affiliated with the mainstream”—

“to subtle forms of discrimination when, as in the case

of the grant or denial of zoning variances, a state

delegates essentially standardless discretion to

nonprofessionals operating without procedural

safeguards.” Sts. Constantine & Helen Greek Orthodox

Church, Inc. v. City of New Berlin, 396 F.3d 895, 900

(7th Cir. 2005). Because RLUIPA is concerned with

“subtle forms of discrimination,” its protections

against substantial burdens on religious exercise

extend to all “individualized” assessments—even

those based on “generally applicable land use

regulations.” Chabad Lubavitch of Litchfield Cnty.,

Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183,

193–95 (2d Cir. 2014).

Congress enacted RLUIPA to ensure that vulnerable

religious groups could defend their chosen means of

religious exercise against adverse land-use decisions.

Nothing in RLUIPA’s text or history suggests that

claimants must prove that their chosen site is the only

available option or that they must search exhaustively

for alternatives before bringing a claim. And yet the

Ninth Circuit, in the opinion below, did just that. To

make matters worse, the Ninth Circuit leaves the

initial land-use decision essentially unreviewable,

weakening the substantial burden provision’s

effectiveness as a backstop to RLUIPA’s antidiscrimination provision.

Amicus emphasizes that this decision will have a

significant impact on religious minorities. Recent

experience—and particularly the experience of the

Orthodox Jewish community represented by amicus—

suggests that the concerns animating RLUIPA persist.

See Guru Nanak Sikh Soc’y v. Cnty. of Sutter, 456 F.3d

978, 994 (9th Cir. 2006) (noting that in nine hearings

preceding RLUIPA’s enactment, Congress heard how

“governmental entities nationwide purposefully

exclude unwanted religious groups by denying them

use permits through discretionary and subjective

standards and processes”). For example, when an

Orthodox Jewish organization recently sought to open

an outreach center in an insular beach community and

the town leadership responded by attempting to seize

the property through eminent domain, RLUIPA and

the First Amendment protected that organization’s

right to use their property for their religious mission.

See Brandon Cruz, Long Island Mayor Quits After

Jacking Up Taxes 87%, Costing Village Nearly $1.5

Million over Antisemitism Lawsuit, NY Post (July 4,

2024), https://perma.cc/35BL-4Z3Q. Under the Ninth

Circuit’s rule, that organization may have been forced

to prove, to the satisfaction of a secular judge, that no

other parcel in town would have similarly advanced

the group’s religious mission.

This Court should not ratify reasoning that could

increase the burden on RLUIPA claimants while

simultaneously

undercutting

valuable

antidiscrimination protections. Amicus therefore urges

this Court to preserve RLUIPA by granting certiorari.

I. THE

NINTH

CIRCUIT’S

DECISION

ERODES RLUIPA’S FREE EXERCISE AND

ANTI-DISCRIMINATION PROTECTIONS.

RLUIPA empowers religious communities targeted

by adverse land-use decisions. But the Ninth Circuit

now requires those communities to prove that an

adverse decision not only burdens or discriminates

against their religious practice, but first that it

precludes them from using other sites within a

jurisdiction before ruling on their RLUIPA claim. The

decision below thus undercuts religious communities’

autonomy and enables discriminatory land-use

denials.

A. RLUIPA

Empowers

Religious

Institutions to Defend their Chosen

Means of Religious Exercise.

RLUIPA is a powerful statutory defense of religious

communities’ autonomy. Before RLUIPA, these

communities had little recourse against most land-use

decisions. This Court has long held that the First

Amendment does not require carve-outs for a

practitioner’s chosen means of expression. For

example, heavily burdensome prison rules do not

violate the First Amendment where faithful prisoners

were not “deprived of ‘all means of expression’”—just

their chosen means. O’Lone v. Est. of Shabazz, 482

U.S. 342, 352 (1987) (quoting Turner v. Safley, 482

U.S. 78, 89–90 (1987)); see also Braunfeld v. Brown,

366 U.S. 599, 605–06 (1961) (plurality op.). And under

Employment Division v. Smith, this Court held that

municipalities could outlaw all forms of religious

exercise incidentally impacted by neutral, generally

applicable laws. 494 U.S. 872, 878–82 (1990).

Especially relevant for RLUIPA, all but the most

egregious land-use regulations fall well within the

Smith formulation of the Free Exercise Clause. See cf.

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 542, 545–46 (1993) (City of Hialeah’s

anti-Santeria

activity

involved,

part,

gerrymandering zoning ordinances). Smith offers no

help to religious communities hoping for permission to

build new churches on sites appropriate for their

needs. Indeed, if denied, these communities have one

option: “‘[M]igrate to some other and more tolerant

region.’” Smith, 494 U.S. 872, 920 (1990) (Blackmun,

J., dissenting) (quoting Wisconsin v. Yoder, 406 U.S.

205, 218 (1972)).

Congress determined this would not do. Amid the

fallout from Smith—and then City of Boerne v. Flores,

521 U.S. 507, 515–16 (1997)—Congress recognized the

need for change. See Cutter v. Wilkinson, 544 U.S. 709,

714–16 (2005). Uniquely concerning to Congress was

Smith’s impact on religious communities’ authority to

defend the kind of exercise they believe their faith

dictates. Congress found it “indispensable” to the First

Amendment that religious institutions determine

what “physical space [is] adequate to their needs and

consistent with their theological requirements,”

endeavoring to protect their “right to build, buy, or

rent such a space.” 146 Cong. Rec. 16,698, 16,698

(2000) (joint statement of Sens. Hatch and Kennedy).

Congress also recognized that permitting neutral

land-use

regulations

would

leave

religious

communities exposed to discriminatory land-use

decisions. Id. (“[D]iscrimination lurks behind such

vague and universally applicable reasons as traffic,

aesthetics, or not consistent with the city’s land use

plan.”) (quotations omitted). Congress had no trouble

finding an epidemic of such decisions, especially

against religious minorities. It noted prevalent

“discrimination against small and unfamiliar

denominations,” finding “massive evidence” that land

controls “frequently violate[]” religious rights,

especially those of “new, small, or unfamiliar” houses

of worship. 146 Cong. Rec. at 16,698–99.

Congress enacted RLUIPA to meet these goals.

RLUIPA prohibits governments from imposing or

implementing land-use regulations in two relevant

ways: First, in a manner “that imposes a substantial

burden on the religious exercise of a . . . religious

assembly or institution,” 42 U.S.C. § 2000cc(a)(1); and

second, in a manner “that discriminates against any

assembly or institution on the basis of religion or

religious denomination,” id. § 2000cc(b)(2).

RLUIPA does separately prohibit discriminatory

and substantially burdensome land-use decisions. But

“RLUIPA’s substantial burden provision usefully

‘backstops the explicit prohibition of religious

discrimination in the later section of the Act.’”

Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d

338, 351 (2d Cir. 2007) (quoting Sts. Constantine &

Helen, 396 F.3d at 900). Indeed, a substantial burden

claim may lie where the “nature of a defendant’s

challenged action suggests that a religious institution

received less than even-handed treatment.” Id.; see

also San Jose Christian Coll. v. City of Morgan Hill,

360 F.3d 1024, 1035 (9th Cir. 2004); see also cf. Sts.

Constantine & Helen, 396 F.3d at 900 (“If a land-use

decision . . . imposes a substantial burden on religious

exercise . . . and the decision maker cannot justify it,

the inference arises that hostility to religion . . .

influenced the decision.”); Fortress Bible Church v.

Feiner, 694 F.3d 208, 219 (2d Cir. 2012). The two

provisions, in other words, work in tandem.

RLUIPA also dictates that an affected religious

institution need take no action before bringing a claim.

The institution’s cause of action arises upon the

government’s implementation of the land-use

regulation. 42 U.S.C. § 2000cc-2(a). And while it

provides that a claim vanishes if the government

“alleviat[es] [the] burdens on religious exercise,”

RLUIPA places no corollary obligation to cure on the

claimant. Id. § 2000cc-3(e). RLUIPA even has a special

provision establishing that it should “be construed in

favor of a broad protection of religious exercise.” Id.

§ 2000cc-3(g).

If Congress had expected an afflicted religious

institution to attempt to unburden itself, it could

easily have said so. Indeed, RLUIPA represents a

departure—in favor of free exercise—from the

restrictive constitutional analysis. This Court has

recognized as much. In a prisoner case, this Court

noted that an RLUIPA claimant need not show

whether it “is able to engage in other forms of religious

exercise” permitted by a regulation; the question is

simply whether the proscribed or limited religious

exercise reflects a substantial burden that cannot

satisfy strict scrutiny. Holt v. Hobbs, 574 U.S. 352,

361–62 (2015); see also Ramirez v. Collier, 595 U.S.

411, 425–26 (2022); Pet. Br. 15. RLUIPA, in other

words, does not look back—it marches forward.

Indeed, many other civil rights statutes have an

exhaustion requirement—though RLUIPA does not.

Murphy v. Zoning Comm’n, 223 F. Supp. 2d 377, 382

& n.3 (D. Conn. 2002). But Congress did not require

RLUIPA claimants to vet and rule out all alternative

locations; it simply asked whether the decision under

review imposed a substantial burden. Even where

other suitable properties exist, requiring a religious

community to move from its chosen site only

compounds the institution’s burden. “[S]elling the

current property and finding a new one” brings with it

“‘delay, uncertainty, and expense.’” Bethel World

Outreach Ministries v. Montgomery Cnty. Council, 706

F.3d 548, 557 (4th Cir. 2013); see also Westchester Day

Sch., 504 F.3d at 349; Sts. Constantine & Helen, 396

F.3d at 901; New Harvest Christian Fellowship v. City

of Salinas, 29 F.4th 596, 602 (9th Cir. 2022) (“[O]ther

circumstances may create a substantial burden even

where an alternative location is technically

available.”). And a religious institution that has

already faced one zoning board denial “would

understandably be hesitant to propose [building] on

another” similar site without some sense that it would

be successful. Guru Nanak, 456 F.3d at 991.

In practice, whether a religious community can build

elsewhere in the jurisdiction does not make sense as a

precondition to a claim. Consider an example involving

two Florida synagogues. The town in which the two

congregations were meeting demanded that they

relocate to a zone permissible for churches. Midrash

Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214,

1219–22 (11th Cir. 2004). The Eleventh Circuit did not

require the synagogues to move to the new site, apply

for a variance to remain at the current site, or look for

compliant sites. Merely by being asked to relocate from

their chosen site, the synagogues stated an RLUIPA

claim: “[E]ven if a ‘suitable property’ existed in [the

other] district, the congregations believe they have a

legal right to remain in the business district.” Id. at

1224.

The Eleventh Circuit recognized here the key theme

underlying RLUIPA—religious communities, not local

officials or courts, should be able to defend a location

they believe complies with their faith.

B. The Ninth Circuit’s Decision Undermines

RLUIPA’s Protection.

Contrary to RLUIPA’s text and history, the Ninth

Circuit now requires claimants to show that a

municipality has precluded a claimant from building

anywhere within its boundaries. This not only

eliminates RLUIPA’s assurance that a religious

institution can defend its preferred site but also

undermines RLUIPA’s anti-discrimination goals.

The Ninth Circuit’s analysis was wrong nearly from

the start. It stated at the outset that it would consider

the “totality of the circumstances,” including “whether

[the Spirit of Aloha Temple (“the Temple”) was]

precluded from other locations in the county” and

“whether the County’s reasons for denying the special

use permit were arbitrary and could apply to [the

Temple’s] future applications.” Pet. App. 16a. But it

considered no circumstances besides these two, despite

ample evidence of the Temple’s burden. See Pet. Br.

16–18. And perhaps more concerning, it then

scrutinized the Temple’s behavior: The Temple “did not

attempt to relocate,” the Temple “was looking

specifically for agricultural land,” and there was no

“evidence that [the Temple] even considered other

locations.” Pet. App. 18a. This “blame the victim”

approach has nothing to do with whether the land-use

regulation imposes a substantial burden on the

Temple’s decision to exercise its religion at a certain

location.

Practically, the decision will prove a headache for

courts and congregations alike. The Ninth Circuit

offers religious communities little guidance as to how

it will judge whether there are any alternatives. For

one, the court does not explain how far a claimant

must look, suggesting a distant second site might be

sufficient. Maui County—like many others—is vast,

covering more than 2,000 square miles and spanning

four islands. Further, lower courts will struggle to

interpret the faith principles driving a claimant’s

search and dictating what sites are available. Many

churches will be left with three bad options: build

distantly, build insufficiently, or do not build at all.

No other civil right is so geographically

circumscribed—nor should any be. It would make no

sense to ask a black man denied a meal or a room at a

hotel whether there were other restaurants and other

hotels nearby that would welcome him. Nor may a

bank remain inaccessible simply because other banks

in town are ADA compliant. So too here, the County

should not be absolved of its unduly burdensome landuse regulations simply because a court did not think

the Temple devoted enough time to vetting a fallback

option.

For any future RLUIPA claimant within the Ninth

Circuit, the message is clear. Once burdened by an

adverse land-use decision, it must conduct an

exhaustive and expensive search for any possible

alternative site within the local official’s territory. It

must do this while already suffering from the

consequences of an initial adverse land-use decision.

And if it does not search thoroughly enough, the Ninth

Circuit will boot it out of court.

Worse still, the Ninth Circuit will now be reviewing

only the most clearly discriminatory land-use

decisions. Religious communities will rarely have

“evidence of intentional or purposeful discrimination,”

which is necessary to make out a prima facie case

under RLUIPA’s anti-discrimination provision.

Church of Scientology of Ga., Inc. v. City of Sandy

Springs, 843 F. Supp. 2d 1328, 1370 (N.D. Ga. 2012)

(collecting cases); see also id. at 1360 (noting “few

published cases” in RLUIPA’s first decade). In the real

world, discriminatory animus often manifests in

subtler ways. The Ninth Circuit used to fill this gap

while deciding substantial burden claims, see San Jose

Christian Coll., 360 F.3d at 1035, but those claims are

now significantly harder to bring. Without the

substantial burden backstop, religious communities

lose a valuable weapon against discrimination.

II. MINORITY RELIGIOUS GROUPS DEPEND

ON RLUIPA TO DEFEND THEIR OWN

DECISION-MAKING

AND

FIGHT

DISCRIMINATION.

The Ninth Circuit’s decision harms all religious

communities. But perhaps the most disadvantaged

will be minority religious groups. Without broad social

support and often misunderstood, these groups rely on

RLUIPA not only to protect their basic faith practices

but also to counter discrimination.

In enacting RLUIPA, Congress took note of

prevalent “discrimination against small and

unfamiliar

denominations,”

finding

“massive

evidence” that land controls “frequently violate[]”

religious rights, especially those of “new, small, or

unfamiliar” houses of worship. 146 Cong. Rec. at

16,698–99. In fact, Congress recognized that Jewish

communities were some of the most at-risk, finding

that “zoning board members or neighborhood

residents explicitly offer race or religion as the reason

to exclude a proposed church, especially in cases of

black churches and Jewish shuls and synagogues.” 146

Cong. Rec. at 16,698.

Adverse

zoning

decisions

are

particularly

problematic for amicus’s Orthodox Jewish members,

whose observance of the Jewish Sabbath and other

festivals requires locating synagogues and ritual baths

within walking distance of residential neighborhoods.

Testifying in support of RLUIPA, the Director of the

Union of Orthodox Jewish Congregations of America

(“Orthodox Union”) explained that the “flourishing of

traditional Jewish communities has given rise to

another, more unfortunate trend, the use of land-use

regulations and zoning boards to discriminate against

religious communities.” Religious Liberty: Hearing on

Issues Relating to the Constitutionality of a Religious

Protection Measure Before the S. Comm. on the

Judiciary, 106th Cong. 21, 24 (1999) (prepared

statement of Nathan J. Diament, Dir. of Inst. for Pub.

Affairs, Orthodox Union).

Because RLUIPA allows a religious institution to

defend its chosen form of religious exercise—rather

than demand it show the absence of other options—it

is particularly protective of Jewish congregations.

Facially neutral land-use regulations can impede

practices essential to Jewish life. For example, local

governments have long sought to prevent Orthodox

Jewish communities from constructing eruvs,

symbolic enclosures that allow practitioners to push

strollers, transport food, and carry basic items like

keys outside their homes on the Sabbath. See, e.g.,

Diana Neeves & Evan Seeman, Mahwah, NJ Agrees to

Settle Eruv Dispute, RLUIPA Defense Blog (Feb. 7,

2018), https://perma.cc/SAM3-9NYH; Smith v. Cmty.

Bd. No. 14, 491 N.Y.S.2d 584 (Sup. Ct. 1985); see also

Barry Black, How Courts Paved the Way for the Eruv,

N.Y. Law J. (Mar. 1, 2019), https://perma.cc/Q4AWMQR2 (noting that eruv litigation “goes back decades”

and is often “hard fought”).

Local governments have also blocked the

construction of mikvahs, ritual immersion baths that

Orthodox women visit after completing their

menstrual cycle and before resuming marital

intimacy. See, e.g., Complaint, United States v.

Borough of Woodcliff Lake, No. 2:18-cv-10511 (D. N.J.

June 13, 2018); Evan Seeman, Clifton, NJ Pays $2.5

Million to Settle RLUIPA Dispute, RLUIPA Defense

Blog (Jan. 10, 2019), https://perma.cc/J4JG-T87B.

Unfamiliarity with religious requirements such as

eruvs and mikvahs leads to confusion and

misunderstandings, resulting in zoning denials that

overlook or disparage the Orthodox community’s

needs. See, e.g., Tenafly Eruv Ass’n, Inc. v. Borough of

Tenafly, 309 F.3d 144, 153 (3d Cir. 2002) (describing

the “vehement objections” of community members

leading to denial of a proposed eruv, including one

council member’s “serious concern that UltraOrthodox Jews might stone cars that drive down the

streets on the Sabbath” (internal quotation marks and

alteration omitted)); Sharonne Cohen, What Is An

Eruv?, My Jewish Learning (Nov. 22 2017),

https://perma.cc/U66N-B7TX. Preventing Orthodox

Jews from building such foundational structures can

prevent Jews from moving into a community as

effectively as a restrictive covenant barring selling

homes to Jews.

The Ninth Circuit’s new precondition thus

substantially disadvantages Jewish communities.

Confusion and misunderstanding surrounding the

requirements of the Jewish faith will spill over into

courtrooms, as the Jewish communities try

desperately to explain why they were not completely

precluded from building within the jurisdiction. It is

not hard to imagine a court and the community

disagreeing about whether other sites were available.

The Ninth Circuit’s erosion of RLUIPA’s antidiscrimination objectives, too, will have a significant

effect on Jewish communities. Land controls and

community planning have long served as vehicles for

discrimination by state and private actors against

religious Jews. See Lucien J. Dhooge, A Case Law

Survey of the Impact of RLUIPA on Land Use

Regulation, 102 Marq. L. Rev. 985, 1022–25 (2019)

(finding only 5 successful outcomes and 1 settlement

in the 37 reported RLUIPA claims brought in state

court). Robust enforcement of RLUIPA is thus crucial

for members of amicus, whose free religious exercise

at home, in synagogue, and at community centers can

face prejudice by local decisionmakers.

Unabashed anti-Semitic vitriol too often seeps into

local land controls. In 2016, a New Jersey town

prohibited a Chabad-Lubavitch rabbi from hosting

small weekly prayer services of ten to fifteen people at

his residence. Complaint ¶ 2, Chabad Jewish Ctr. of

Toms River, Inc. v. Twp. of Toms River, No. 3:16-cv01599 (D.N.J. Mar. 22, 2016). In the lead-up to the

denial, the town’s mayor likened ultra-Orthodox Jews

moving in to an “invasion.” Id. ¶¶ 3, 128. When asked

if he regretted this remark, he stated “I have nothing

to apologize for. . . . I don’t feel like I did anything

wrong.” Id. ¶ 3 (omission in original). Town residents

also evinced anti-Semitic hostility, etching “Burn the

Jews” on local playground equipment, referring to

Orthodox Jews in offensive and derogatory terms,

placing lawn signs reading “DON’T SELL!” and

issuing veiled threats against Jewish residents if

prayer meetings were permitted. Id. ¶¶ 127–50; see,

e.g., Justin Auciello, Police Investigating Anti-Semitic

Graffiti in Toms River, WHYY (Mar. 2, 2016),

https://perma.cc/HPZ4-TFUZ.

In early 2019, another group in the same New Jersey

county counseled their neighbors against selling their

homes to Orthodox Jews. The group blamed the

Jewish community for “pressure sales,” “build[ing]

homes at the expense of the environment,” and

“[seizing] control” of the local governing bodies, but it

insisted that its concerns were only about “zoning,

housing density and local support for public schools”

rather than motivated by anti-Semitism. See Ben

Sales, Insisting It Is Not Anti-Semitic, NJ Group Sees

Haredi Orthodox as a Threat to ‘Quality of Life,’

Jewish Telegraphic Agency (Jan. 23, 2019),

https://perma.cc/L5MK-2LLZ.

A similarly ugly chapter played out in the Gatsbyesque beach community of Atlantic Beach in 2023.

Another Chabad organization bought a long-vacant

commercial building for use as a center for religious

worship, education, and outreach. Local officials days

later moved swiftly to seize the property through

eminent domain—ostensibly to build a community

center, but in practice to keep Chabad out. After the

district court entered a preliminary injunction,

discovery revealed concerted action by the village’s

leadership to “move fast” to prevent Chabad and

groups like it from “buying the world – town by town

city by city.” Admitting in private what was apparent

to the public, the mayor and a member of the local

judiciary mused that “most people don’t want the

Chabad and just don’t want to say it. Any secular Jew

doesn’t want them.” [Proposed] First Amended

Complaint ¶ 5, 7, 8, Chabad Lubavitch of the Beaches,

Inc. v. Vill. of Atlantic Beach, No. 2:22-cv-04141-JSARL (E.D.N.Y Dec. 6, 2024), ECF No. 89-1; see also

Order, Chabad Lubavitch of the Beaches, Inc. v. Vill.

of Atlantic Beach, No. 2:22-cv-04141-JS-ARL (E.D.N.Y

July 29, 2025), ECF No. 116 (order granting joint

motion for entry of consent decree).

The rising tide of anti-Semitism is not limited to

Greater New York. Multiple third-party organizations

have observed a spike since 2017 in anti-Semitic hate

crimes in the United States nationwide and in

California specifically. Sarah Brown, Growing AntiSemitism in California and Globally, Pacific Council

International

Policy

(Oct.

11,

2019),

https://perma.cc/MHR7-Q4ND; see Anti-Defamation

League, ADL H.E.A.T. Map, https://perma.cc/Q7CWJ3PH (last visited July 23, 2025) (estimating 18,226

reported incidents of anti-Semitism in 2023 and 2024,

with more than 2600 in California alone).

RLUIPA has provided crucial protection for

religiously oriented land users. For example, after the

incidents discussed above, Chabad Jewish Center of

Toms River brought an RLUIPA suit in federal court,

alleging, in part, a substantial burden without a

narrowly tailored or compelling government interest.

The judge entered judgment on the pleadings,

determining that the local board’s denial of the

application to use the property as a Chabad house

violated RLUIPA. See Chabad Jewish Ctr. of Toms

River, Inc. v. Twp. of Toms River, No. 3:16-01599, 2018

WL 1942360 (D.N.J. Feb. 5, 2018).

Sadly, discriminatory denials like this one remain a

feature of zoning regulations. See, e.g., Cent. UTA of

Monsey v. Vill. of Airmont, No. 18 CV 11103, 2020 WL

377706 (S.D.N.Y. Jan. 23, 2020) (rejecting motion to

dismiss Hasidic school’s RLUIPA claims against

municipality for preventing its expansion and refusing

to provide transportation and special-needs services);

Congregation Kollel, Inc. v. Twp. of Howell, No. 162457, 2017 WL 637689 (D.N.J. Feb. 16, 2017) (finding

ripe Orthodox seminary’s RLUIPA substantial burden

and religious discrimination challenge to zoning

denial); Bikur Cholim, Inc. v. Vill. of Suffern, No. 7:05cv-10759, 2011 WL 2893071 (S.D.N.Y. June 29, 2011)

(awarding attorneys’ fees in successful RLUIPA

challenge to municipality’s denial of a zoning permit

for use of property as a guesthouse within walking

distance of hospitalized patients).

Even where hostility is not as overt as in some of the

examples above, suspicion and misunderstandings

about Orthodox Jews often inform adverse land-use

decisions. Yet these improper motives can be invisible

on the record, insulating a local decision against

review under RLUIPA’s anti-discrimination provision.

See Von G. Keetch & Matthew K. Richards, The Need

for Legislation to Enshrine Free Exercise in the Land

Use Context, 32 U.C. Davis L. Rev. 725, 726 (1999)

(describing how “ignorance and even hostility toward

religion sometimes operate behind the facade of

ostensibly neutral land use regulations”); Christopher

Serkin & Nelson Tebbe, Condemning Religion:

RLUIPA and the Politics of Eminent Domain, 85 Notre

Dame L. Rev. 1, 5, 21 (2009) (explaining that

“discrimination is so hard to unearth” in land-use

decisions because they are “often handed down with

insufficient reasoning, and so commonly governed by

standards that leave ample room for subjectivity, that

courts have a difficult time policing them for

antireligious activity”). Discrimination cloaked in

neutral terms is especially problematic for visibly

different minority faiths like amicus. See Roman P.

Storzer & Anthony R. Picarello, Jr., The Religious

Land Use and Institutionalized Persons Act of 2000: A

Constitutional Response to Unconstitutional Zoning

Practices, 9 Geo. Mason L. Rev. 929, 941 (2001) (noting

that religions with practices unfamiliar or distasteful

to the general public face a higher risk of

discrimination in land-use decisions).

Robust scrutiny often exposes the ostensible neutral

basis for an adverse land-use decision against

Orthodox groups as pretextual. For example, the

Second Circuit affirmed a district court finding that

Pomona, New York used its zoning laws as a pretext

for discriminating against an Orthodox rabbinical

college. See Congregation Rabbinical Coll. of Tartikov,

Inc. v. Vill. of Pomona, 280 F. Supp. 3d 426, 463, 465

(S.D.N.Y. 2017) (anti-discrimination provision), aff’d

in relevant part, 945 F.3d 83 (2d Cir. 2019).

Similarly, in Mamaroneck, New York, a local zoning

board denied an Orthodox day school a permit to

expand. Westchester Day Sch., 504 F.3d at 345–46. The

Second Circuit ultimately concluded that the zoning

board substantially burdened the school where the

concerns the board advanced failed to justify denying

the permit. Id. at 346. The real reason for opposition

was to appease a “small but influential group of

neighbors who were against the school’s expansion

plans.” Id. As the court explained, an “arbitrary,

capricious, or unlawful” denial “suggests that a

religious institution received less than even-handed

treatment.” Id. at 351.

Thus, Jewish communities also depend on RLUIPA

to vitiate the particular burden of discriminatory landuse denials. And as discussed above, these decisions

are often too subtle to make out an RLUIPA antidiscrimination claim. Unfortunately, in the Ninth

Circuit, those decisions will now escape review

entirely—unless the Jewish community undertakes an

expensive, exhaustive, and very likely fruitless search

for alternative sites.

RLUIPA empowers religious institutions to defend

their chosen form of religious expression and to strike

back against discrimination in land-use decisions.

Minority religious groups, including the Jews, thus

depend on RLUIPA. But the Ninth Circuit’s decision

substantially weakens the law by establishing

extratextual preconditions. By granting the Temple’s

petition, this Court can remedy the Ninth Circuit’s

error and send a clear message about the continued

need to enforcement RLUIPA enforcement.

CONCLUSION

Amicus respectfully requests the Court to grant the

petition.

Respectfully submitted,

July 30, 2025

GORDON TODD *

DANIEL J. HAY

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

gtodd@sidley.com

(202) 736-8760

PHILIP H. DEVOE

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, NY 10019

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.