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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1652%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1652%3A3. Public record. Not legal advice.