Amicus Curiae Brief — Petra Presbyterian Church Church v. Village of Northbrook (No. 07-585)

Al, Mono! FILES

DEC 3 - 2007 @

No. 07-585

Sn The

Supreme Court of the Gnited States

PETRA PRESBYTERIAN CHURCH,

Petitioner,

v.

VILLAGE OF NORTHBROOK,

Respondent.

S

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

+

MOTION TO FILE AMICUS CURIAE BRIEF

AND AMICUS CURIAE BRIEF OF PACIFIC

JUSTICE INSTITUTE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

*

KEVIN T. SNIDER,

CA Bar No. 170988*

“Counsel of Record

MATTHEW B. MCREYNOLDs,

CA Bar No. 234797

PACIFIC JUSTICE INSTITUTE

Post Office Box 276600

9851 Horn Road, Suite 115

Sacramento, California 95827

916-857-6900 (Telephone)

916-857-6902 (Facsimile)

Attorneys for Amicus Curiae

(*M# KEE LAW BRIEF PRINTING © 0) sot 225-6964

OR «ALL ¢ OLD FA $2 442 PRI

1

MOTION TO FILE AMICUS CURIAE BRIEF

To the Honorable Chief Justice of this Court:

Pacific Justice Institute (PJI) requests leave to

file an amicus brief in support of Petitioner, Petra

Presbyterian Church. PJI has obtained the written

consent of counsel for Petra Presbyterian Church.

Counsel for the Village of Northbrook has been noti-

fied of PJI’s intention to file this amicus brief, but the

Village did not consent.

Pursuant to Rule 37.2(b), PJI moves for leave to

file a brief in support of Petitioner on the grounds

that there are pertinent points of law which have not

been brought to the Court’s attention by the parties.

So as not to burden the Court, the arguments in this

brief are succinct and are set out so that they will

serve to assist this Court.

Dated: December 3, 2007

KEVIN T. SNIDER,

CA Bar No. 170988*

*Counsel of Record

MATTHEW B. MCREYNOLDS,

CA Bar No. 234797

PACIFIC JUSTICE INSTITUTE

Post Office Box 276600

9851 Horn Road, Suite 115

Sacramento, California 95827

916-857-6900 (Telephone)

916-857-6902 (Facsimile)

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

Page

MOTION TO FILE AMICUS CURIAE BRIEF ..... 1

yr 2a gtk os. y 5 . MURR aren mCeN mnt ae te

pet F ak gies. 8 fay | - SE nnCenE ill

INTEREST OF AMICUS CURIAE ............::cccc0c000 1

SUMMARY OF THE ARGUMENT ..................:c00 1

FEE cicciheiscsirniiteiartdsetnistaiihniaricheidiaaicamiisineiiainbiaeiian 2

I. THE COURT SHOULD GRANT CERTIO-

RARI BECAUSE THE CIRCUITS ARE

SPLIT AS TO WHAT CONSTITUTES A

SUFFICIENT SHOWING OF “SUB-

FT RAAET E Ae ITRRMTNET trecsevinncisntvonaccnlaniconenee 2

A. The Second, Seventh, And Tenth Cir-

cuits Interpret “Substantial Burden”

In A Constrictive Manner .................0000 3

B. “Substantial Burden” Under RLUIPA

Is Interpreted Liberally In The Fifth,

Sixth, Ninth, And Eleventh Circuits..... 7

i. The Ninth, and Eleventh Circuits

have explicitly rejected the CLUB

I cisictecceesnaceieanadaneaciiisechianiivsiten 7

ii. The Fifth Circuit has adopted a

more liberal construction of “sub-

WEITERE DREN accede ndesstenanioctcsiiaes §

C. The Supreme Courts Of Oregon And

Washington Have Adopted Liberal Con-

structions Of “Substantial Burden” ....... 10

1]

TABLE OF CONTENTS -— Continued

Page

Il, A LIBERAL INTERPRETATION OF “SUB-

STANTIAL BURDEN” IS CONSISTENT

WITH LEGISLATIVE INTENT................... 1]

A. The Clear Language Of RLUIPA Man-

dates A Broad And Liberal Construc-

tion Of “Substantial Burden” ................ 11

B. The “Effectively Impracticable” Stan-

dard Of CLUB Is Inconsistent With

The “Substantial Burden” Jurispru-

ID TIE TO IG wiciicnscecncnscstsesterssevnin 12

eT ceeiiiictomncaceiciadincdseraincninnensideneisnnnantte 14

ill

TABLE OF AUTHORITIES

CASES

Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004)...... 8,9

Blue Chip Stamps v. Manor Drug Stores, 421

Roe Fe SUPE stethiadestsaccksivticcoasdaasie ledicsdeisaeets 13, 32

Civil Liberties for Urban Believers v. City of

Chicago, 342 F.3d 752 (7th Cir. 2003)....3, 4, 7, 8, 12

Corp. of Presiding Bishop of Church of Jesus

Christ of Latter-Day Saints v. City of West

Linn, 111 Fie TIZS (Ore, QO0G) ccecicesacsesccoccesceress 10

First Covenant Church v. City of Seattle, 840

A SEE CPN CI iasskisicsinccecteniniisiticcticidodens 10

Guru Nanak Sikh Society of Yuba City v. County

of Sutter, 456 F.3d 978 (9th Cir. 2006)........... 8,10, 11

Lakewood, Ohio, Congregation of Jehovah’s

Witnesses, Inc. v. City of Lakewood, 699 F.2d

Pe SE AN PR iiciincsndigescsAbictidea abc bias aden ees: 5

Lighthouse Institute for Evangelism, Inc. v.

City of Long Branch, 406 F. Supp. 2d 507 (D.

DE, SP ibtecsinidstoeriiisieslseiaenseaeieaiaieaeal: 6

Messiah Baptist Church v. County of Jefferson,

SSG F.26 C20 CID Cit, TOG) vivccscvcvericssccsccciciercasiess: 4

Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214 (11th Cir. 2004) ...............c000e. 8, 10, 13

Rector, Wardens & Members of Vestry v. City of

New York, 914 F.2d 348 (2nd Cir. 1990)...............00. 5

iv

TABLE OF AUTHORITIES —- Continued

Sherbert v. Verner, 374 U.S. 398 (1963)............... 12,13

Spratt v. Rhode Island Dept. of Corrections, 482

fe La AS Fy | ee 6

Thomas v. Review Bd. of the Ind. Employment

Sec. Div., 450 U.S. 707 (1981) .........ccsccseeees 12, 13, 14

Vineyard Christian Fellowship of Evanston,

Inc. v. City of Evanston, 250 F. Supp. 2d 961

IC i alice 5

Vision Church, United Methodist v. Village of

Long Grove, 397 F. Supp. 2d 917 (N.D. III.

Williams Island Synagogue, Inc. v. City of

Aventura, 358 F. Supp. 2d 1207 (S.D. Fila.

| EE Ea A Ae ne ene eee EN TL SMe ETP Pe 6

STATUTES

42 U.S.C.A. § 2000cc et seq. (RLUIPA)............. passim

RULES

RISERS | I ade dacs ovcniphenieibeniiipenniaaniiaaeseseunneenaaeeteld 3

INTEREST OF AMICUS CURIAE’

Pacific Justice Institute (“PJI”) is a nonprofit

corporation, operating under 501(c\(3) of the Internal

Revenue Code, which engages, in part, in litigation

affecting the public interest as it relates to the de-

fense of speech, association, religious exercise, and

the establishment clause. As such, PJI routinely

represents religious organizations in both adminis-

trative proceedings and litigation when rights under

the Religious Land Use and Institutionalized Persons

Act (RLUIPA) are implicated. The case before the

Court will have a profound impact on those whom PJI

represents as well as this organization’s ability to

provide legal assistance. Thus, PJI has a strong

interest in the outcome of this matter.

¢

SUMMARY OF THE ARGUMENT

Circuit Courts and several] state courts of last

resort are split over what constitutes a “substantial

burden” under RLUIPA. In one camp, the Second,

Seventh, and Tenth Circuits have adopted a very

' Pursuant to revised Sup. Ct. R. 37 et seq., counsel of

record for all parties received notice at least 10 days prior to the

due date of amicus curiae’s intention to file this brief. No counsel

for a party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

amicus curiae, its members or its counsel made a monetary

contribution to its preparation or submission.

2

strict interpretation of “substantial burden” requiring

a plaintiff to show that a regulation has made her

exercise of religion “effectively impracticable.” In an

opposing camp, the Fifth, Sixth, Ninth, and Eleventh

Circuits, in addition to the supreme courts of Wash-

ington and Oregon have adopted a liberal interpreta-

tion of “substantial burden.” In light of these inter-

circuit and state court conflicts, the amicus urges this

Court to grant the petitioner’s writ of certiorari to

resolve this split in authority.

Moreover, in light of the plain language of

RLUIPA mandating a broad construction of the

statute in favor of religious freedom, and the previous

jurisprudence of this court in Free Exercise cases, PJI

argues that the liberal construction of “substantial

burden” is consistent with legislative intent.

+

ARGUMENT

I. THE COURT SHOULD GRANT CERTIO-

RARI BECAUSE THE CIRCUITS ARE

SPLIT AS TO WHAT CONSTITUTES A

SUFFICIENT SHOWING OF “SUBSTAN-

TIAL BURDEN.”

The Supreme Court should grant the petitioner’s

writ of certiorari to resolve the conflict between the

Circuits regarding the interpretation of “substantial

burden.” The Court of Appeals of the Second, Seventh

and Tenth Circuits have “entered decision[s] in con-

flict with the decision[{s] of” the Fifth, Sixth, Ninth,

3

and Eleventh Circuits “on the same important mat-

ter”; namely the requirements for a showing of “sub-

stantial burden” in Religious Land Use cases which

involves an increasingly important segment of Free

Exercise jurisprudence of the Court. Sup. Ct. R. 10.

Moreover, the Fifth, Sixth, Ninth, and Eleventh

Circuits have decided this important federal question

“in a way that conflicts with decisions by” the Su-

preme Courts of Oregon and Washington. /d. In light

of these splits between Circuit courts and state courts

of last resort, the Supreme Court should grant the

petitioner’s writ of certiorari to resolve these conflicts.

A. The Second, Seventh, And Tenth Cir-

cuits Interpret “Substantial Burden”

In A Constrictive Manner.

The Second, Seventh, and the Tenth Circuits

have interpreted “substantial burden” to impose a

significantly heavy burden on religious assemblies.

The Seventh Circuit held that in RLUIPA cases,

in order to establish a prima facie case, a plaintiff

must show a “substantial burden” by proving that the

land use regulation “necessarily bears direct, pri-

mary, and fundamental responsibility for rendering

religious exercise effectively impracticable.” Civil

Liberties for Urban Believers v. City of Chicago, 342

F.3d 752, 761 (7th Cir. 2003) (“CLUB”) (emphasis

added). The Seventh Circuit reasoned that,

Application of the substantial burden provi-

sion to a regulation inhibiting or constraining

4

any religious exercise, including the use of

property for religious purposes, would render

meaningless the word “substantial,” because

the slightest obstacle to religious exercise in-

cidental to the regulation of land use — how-

ever minor the burden it were to impose —

could then constitute a burden sufficient to

trigger RLUIPA’s requirement that the regu-

lation advance a compelling governmental

interest by the least restrictive means.

Id.

Therefore, under the Seventh Circuit standard,

“the use of property for religious purposes” is pre-

sumptively not an important enough exercise of

religion to trigger a “substantial burden” on religion.

The religious assembly can only rebut this presump-

tion by making the extremely difficult showing that

the regulation necessarily bears direct, primary, and

fundamental responsibility for rendering religious

exercise effectively impracticable. Id.

Similarly the Tenth Circuit, in Messiah Baptist

Church v. County of Jefferson, 859 F.2d 820, 824-25

(10th Cir. 1988), held that a zoning regulation forbid-

ding a congregation from building a house of worship

did not place a substantial burden on the church

because regulation of the location of church construc-

tion was not an impediment to religious observance in

the sense of a prohibition. The court held that finan-

cial burdens do not rise to the level of infringement of

religious freedom. Jd.

5

In another pre-RLUIPA religious land use case,

the Sixth Circuit observed that “building and owning

a church is a desirable accessory of worship, not a

fundamental tenet of [a congregation’s] religious

beliefs.” Lakewood, Ohio Congregation of Jehovah’s

Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 307

(6th Cir. 1983). In Lakewood the defendant city’s

zoning plan barred construction of the church on a lot

the congregation owned. Under the city’s plan, only

ten percent of the city’s property was land on which a

church could be built. Nevertheless, because the effect

of the Lakewood ordinance did not completely prohibit

the congregation or any other faith from worshiping in

the city, the court affirmed the judgment of the district

court, stating that “[iJnconvenient economic burdens

do not rise to a constitutionally impermissible in-

fringement of free exercise.” Id. at 306.

Similarly, in Rector, Wardens & Members of

Vestry uv. City of New York, 914 F.2d 348, 355 (2nd Cir.

1990), the court held that “no First Amendment

violation has occurred absent a showing of discrimi-—

natory motive, coercion in religious practice or the

Church's inability to carry out its religious mission in

its existing facilities.” Some other circuits and district

courts have followed the lead of the Second, Seventh,

and the Tenth Circuits by imposing a strict interpre-

tation of “substantial burden” in RLUIPA cases. See,

Vineyard Christian Fellowship of Evanston, Inc. v.

City of Evanston, 250 F. Supp. 2d 961 (N.D. Ill. 2003)

(holding that church congregation’s right to free

exercise of religion was not substantially burdened by

6

zoning ordinance prohibiting religious institutions

from conducting worship services within district, and

therefore ordinance did not violate Religious Land

Use and Institutionalized Persons Act); Lighthouse

Institute for Evangelism, Inc. v. City of Long Branch,

406 F. Supp. 2d 507 (D. N.J. 2005) (requirement that

church locate in other available areas of city and not

in redevelopment zone did not impose substantial

burden on religion); Williams Island Synagogue, Inc.

vu. City of Aventura, 358 F. Supp. 2d 1207 (S.D. Fla.

2005) (holding that city denial of conditional use

permit to operate church at proposed location based

on parking and pedestrian access problems did not

“substantially burden” religious exercise); Vision

Church, United Methodist v. Village of Long Grove,

397 F. Supp. 2d 917 (N.D. Ill. 2005) (holding that

denial of special permit to build church did not im-

pose substantia! burden on religion, since size of

existing building seemed reasonable); Spratt v. Rhode

Island Dept. Of Corrections, 482 F.3d 33, 38 (1st Cir.

2007) (assuming, without holding, that a “substantial

burden” is one that “put[s] substantia] pressure on an

adherent to modify his behavior and to violate his

beliefs”).

These strict constructions of “substantial burden”

under RLUIPA conflict, not only with the language of

RLUIPA itself, but also with the more liberal inter-

pretation of “substantial burden” adopted by the

Ninth, Fifth, and Eleventh Circuits.

7

B. “Substantial Burden” Under RLUIPA

Is Interpreted Liberally In The Fifth,

Sixth, Ninth, And Eleventh Circuits.

The strict interpretation of “substantial burden”

in the Second, Seventh, and Tenth Circuits conflicts

with the more liberal construction of “substantial

burden” adopted by the Fifth, Sixth, Ninth, and

Eleventh Circuits. In fact, the Fifth, Ninth, and

Eleventh Circuits have explicitly rejected the strict

standard of “substantial burden” adopted by the

Seventh Circuit. The Sixth Circuit also has adopted a

much more liberal interpretation of “substantial

burden” under RLUIPA.

i. The Ninth, and Eleventh Circuits

have explicitly rejected the CLUB

approach,

The Ninth and Eleventh Circuits have explicitly

repudiated and criticized the Seventh Circuit’s “effec-

tively impracticable” definition of “substantial bur-

den.” To prevent a burdensome repetition of these

circuits’ positions, amicus refers the Court to Peti-

tioner’s Petition For Writ of Certiorari at 19-21. In

addition, the Fifth Circuit, after discussing the differ-

ent standards for “substantial burden” in Religious

Land Use cases, has refused to adopt the ‘effectively

impracticable” test of the Seventh Circuit and has

instead adopted a more liberal approach.

8

ii. The Fifth Circuit has adopted a

more liberal construction of “sub-

stantial burden.”

In a very informative decision in Adkins v. Kas-

par, 393 F.3d 559 (5th Cir. 2004), the Fifth Circuit

first took note of the split between the circuits as to

the exact meaning of “substantial burden” by pointing

to the fact that “the RLUIPA does not contain a

definition of ‘substantial burden,’ and the courts that

have assayed it are not in agreement.” Jd. at 568. The

Adkins court went on to explain the differences

between the Seventh Circuit “effectively impractica-

ble” approach and the Ninth Circuit and Eleventh

approaches by showing the difference between the

tests explained in CLUB; Midrash Sephardi, Inc. v.

Town of Surfside, 366 F.3d 1214 (11th Cir. 2004); and

Guru Nanak Sikh Society of Yuba City v. County of

Sutter, 456 F.3d 978 (9th Cir. 2006). The Fifth Circuit

did not adopt any of the above approaches and in-

stead adopted an approach that most resembles a

mixture of the Ninth Circuit and Eleventh Circuit

approaches. Adkins, 393 F.3d at 569-570. The Fifth

Circuit explained “substantial burden” as follows,

For purposes of applying the RLUIPA in this

circuit, a government action or regulation

creates a “substantial burden” on a religious

exercise if it truly pressures the adherent to

significantly modify his religious behavior

and significantly violate his religious beliefs.

And, in line with the foregoing teachings of

the Supreme Court, the effect of a govern-

ment action or regulation is significant when

9

it either (1) influences the adherent to act in

a way that violates his religious beliefs, or (2)

forces the adherent to choose between, on the

one hand, enjoying some generally available,

non-trivial benefit, and, on the other hand,

following his religious beliefs. On the oppo-

site end of the spectrum, however, a govern-

ment action or regulation does not rise to the

level of a substantial burden on religious ex-

ercise if it merely prevents the adherent

from either enjoying some benefit that is not

otherwise generally available or acting in a

way that is not otherwise generally allowed.

Id.

The Adkins Court rejected the Eighth Circuit

requirement that a burdensome practice must effect a

“centra] tenet” or fundamental aspect of the religious

belief by emphasizing that “no test for the presence of

-a ‘substantial burden’ in the RLUIPA context may

require that the religious exercise that is claimed to

be thus burdened be central to the adherent’s reli-

gious belief system.” Jd. Further, the Fifth Circuit

also refused to adopt the “effectively impracticable”

standard of the Seventh Circuit and instead requires

only a showing that the challenged regulation “truly

pressures the adherent to significantly modify his

religious behavior and significantly violate his reli-

gious beliefs.”

Therefore, the definition of “substantial burden”

in the Second, Seventh, and Tenth Circuits conflicts

with the definition of “substantial burden” adopted by ,

10

the Fifth, Ninth, and Eleventh Circuits. But the split

as to the definition of “substantial burden” does not

end there. The conflict over the meaning of “substan-

tial burden” has also reached several state courts of

last resort.

C. The Supreme Courts Of Oregon And

Washington Have Adopted Liberal Con-

structions Of “Substantial Burden.”

The Supreme Courts of Oregon and Washington

have also refused to follow the “effectively impracti-

cable” approach of the Seventh Circuit and have

adopted a more liberal construction of “substantial

burden” similar to that of the Eleventh Circuit in

Midrash.

In First Covenant Church v. City of Seattle, 840

P.2d 174, 184 (Wash. 1992), the Supreme Court of

Washington, following this Court’s jurisprudence in

religious taxation cases, stated that “a financial bur-

den on religious activity, if too gross, may unconstitu-

tionally infringe on free exercise.” This formulation of

the rule is in direct conflict with the “effectively im-

practicable” requirement in the Seventh Circuit. See

Petitioner’s Petition for Writ of Certiorari at 21.

Moreover, in Corp. of Presiding Bishop of Church

of Jesus Christ of Latter-Day Saints v. City of West

Linn, 111 P.3d 1123, 1130 (Or. 2005), the Supreme

Court of Oregon adopted a definition of “substantial

burden” that closely resembles the definition of

Eleventh and Ninth Circuits in Midrash, and Guru

11

Nanak, holding that “a government regulation im-

poses a substantial burden on religious exercise only

if it ‘pressures’ or ‘forces’ a choice between following

religious precepts and forfeiting certain benefits, on

the one hand, and abandoning one or more of those

precepts in order to obtain the benefits, on the other.”

Thus, in Oregon, a religious assembly need not show

that the challenged regulation made it’s practice of

religion “effectively impracticable.” Instead, there is a

lesser showing that the regulation “pressured” the

religious assembly to make a choice between follow-

ing religious percepts and forfeiting benefits. Id.

Il. A LIBERAL INTERPRETATION OF “SUB-

STANTIAL BURDEN” IS CONSISTENT

WITH LEGISLATIVE INTENT.

A. The Clear Language Of RLUIPA Man-

dates A Broad And Liberal Construc-

tion Of “Substantial Burden.”

The language of the statute states that “this

chapter [RLUIPA] shall be construed in favor of a

broad protection of religious exercise, to the maxi-

mum extent permitted by the terms of this chapter

and the Constitution.” 42 U.S.C.A. §§ 2000cc-3(g). As

Justice Powell articulated the legal maxim, the plain

meaning of the words of the statute are always the

starting point in statutory construction. Blue Chip

Stamps v. Manor Drug Stores, 421 U.S. 723, 756

(1975) (Powell, J., concurring). Thus, according to

the language on the face of the statute, the courts

should construct the words of the statute, including

12

“substantial burden,” liberally and “in favor of a

broad protection of religious exercise.” Jd.

The “effectively impracticable” standard imposed

on religious assemblies in the Seventh Circuit cannot

be reconciled with the legislative intent to provide

“broad protection” to religious exercise to the “maxi-

mum extent permitted by the terms of ... [RLUIPA]

and the Constitution.” In sum, the question that

courts should ask when interpreting substantial

burden is: What is the maximum extent to which a

local government can accommodate the free exercise

of religion? Therefore, the constrictive interpretations

by some of the circuits is inconsistent with the intent

of Congress when it provided for “broad protection” of

religious exercise.

B. The “Effectively Impracticable” Stan-

dard Of CLUB Is Inconsistent With The

“Substantial Burden” Jurisprudence Of

This Court.

The previous jurisprudence of this Court, as

evidenced from the decisions in Sherbert v. Verner,

374 U.S. 398 (1963) and Thomas v. Review Bd. of

the Ind. Employment Sec. Div., 450 U.S. 707 (1981),

mandates a liberal interpretation of “substantial

burden” in RLUIPA cases.

This Court has held that unemployment compen-

sation regulations may impose a “substantial burden”

on a beneficiary's free exercise if the regulations

pressure the beneficiary to modify her religious

13

beliefs in order to receive unemployment benefits.

Sherbert, 374 U.S. 398; Thomas, 450 U.S. 707. Thus,

in Sherbert, this Court held that where a Seventh

Day Adventist terminated her employment because

she refused to work on Saturdays due to her religious

beliefs, the unemployment compensation benefits

that denied her compensation “substantially bur-

dened” her free exercise of religion. Sherbert, 374 U.S.

at 406.

In a similar ruling in Thomas, this Court held

that a choice between unemployment benefits or

religious duties imposed a “substantial burden”

because it exerted “substantial pressure on an adher-

ent to modify his behavior and to violate his beliefs.”

Thomas, 450 U.S. at 717-18. These cases demonstrate

“that a ‘substantial burden’ must place more than

an inconvenience on religious exercise.” Midrash

Sephardi, 366 F.3d at 1227.

In neither Sherbert nor Thomas was the plaintiff

required to show that the unemployment benefit

regulations made the exercise of her religion “effec-

tively impracticable.” Indeed, it is doubtful that

either plaintiff could have made such a showing,

since both plaintiffs were free to exercise their relig-

ion with minor modifications or compromises or forgo

their unemployment benefits. Therefore, the regula-

tions in Sherbert and Thomas did not make the

practice of religion, “effectively impracticable” for the

plaintiffs. Nonetheless, this Court found that the

regulations in those cases did in fact impose a substan-

tial burden on plaintiffs because these regulations

14

exerted a “substantial pressure on an adherent to

modify his behavior.” Thomas, 450 U.S. at 717-18.

Since the “effectively impracticable” approach

adopted by the Seventh Circuit is inconsistent with

the previous jurisprudence of this court in Free

Exercise cases, the Fifth, Ninth, and Eleventh Cir-

cuits have refused to adopt a strict interpretation of

“substantial burden,” and have instead interpreted

“substantial burden” more liberally.

In light of the plain language of RLUIPA in favor

of a broad construction and the previous jurispru-

dence of this court in Free Exercise cases, the amicus

respectfully urges the Court to adopt a liberal inter-

pretation of “substantial burden” as explained by the

Ninth Circuit.

CONCLUSION

In view of the inter-circuit conflict between the

Circuit Courts and the split of authority between the

Circuits and the state courts of last resort regarding

the meaning of RLUIPA’s “substantial burden,” the

petitioner for certiorari should be granted. Indeed, a

primary function of this Court is to provide clarity in

interpretation of the laws of the land. Both religious

assemblies and local governments are in need of a

clear standard relative to RLUIPA. Such a uniform

understanding of the law will serve to reduce litiga-

tion in this area. It is in the public interest to avoid

litigation due to the law’s uncertainty in this area in

1

aN

that said lawsuits deplete the coffers of both local

government as well as religious nonprofits.

Dated: December 3, 2007

Respectfully submitted,

By: PACIFIC JUSTICE INSTITUTE

KEVIN T. SNIDER,

CA Bar No. 170988*

*Counsel of Record for

Amicus Curiae

MATTHEW B. MCREYNOLDS,

CA Bar No. 234797

Post Office Box 276600 (mail)

9851 Horn Road, Suite 115

(deliveries only)

Sacramento, California 95827

916-857-6900 (Telephone)

916-857-6902 (Facsimile)

Attorneys for Amicus Curiae