Petition for Writ of Certiorari — St. John's United Church of Christ v. City of Chicago (No. 07-1127)
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® 071127 MAR 3- 2008
OFFICE OF THE CLERK
No. 07
| IN THE
Supreme Court of the United States
St. JOHN’S UNITED CHURCH OF CHRIST, et al.,
Petitioners,
v.
CITY OF CHICAGO, et al.,
Respondents.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Seventh Circuit
PETITION FOR A WRIT OF CERTIORARI
RONALD D. ROTUNDA CHRISTOPHER T. HANDMAN*
GEORGE MASON UNIVERSITY ROBERT E. COHN
SCHOOL OF LAW DOMINIC F.. PERELLA
3301 Fairfax Drive HOGAN & HARTSON L.L.P.
Arlington, VA 22201 555 Thirteenth Street, N.W.
(703) 993-8041 Washington, D.C. 20004
(202) 637-5719
*Counsel of Record Counsel for Petitioners
(additional counsel listed on inside cover)
WILSON-EPES PRINTING CO., INC. — (202) 789-0086 — WasninGTon, D. C. 20002
QUESTION PRESENTED
Illinois amended a state law to withdraw from one
religious group a_ statutory protection that it
continues to offer to all other religious. groups in the
State. In evaluating a Free Exercise challenge to
this law, a divided panel of the Seventh Circuit
refused to apply strict scrutiny: It held that the law
remained neutral and of general applicability
because the State, in treating this religious group
differently, was pursuing a secular objective, not a
religiously motivated one.
The rule adopted by the Seventh Circuit has been
embraced by the First, Fifth, and Ninth Circuits. In
contrast, four other Circuits—the Third, Sixth,
Tenth, and Eleventh—have held that legislative
motivation is irrelevant; a law that singles out
religion for unique burdens is categorically not
neutral and of general applicability, regardless of
whether the law’s goals are secular and benign.
The question presented is: Whether the Seventh
Circuit correctly held that a law extending a benefit
to some religious groups but withholding it from
others is neutral and of general applicability simply
because “the legislature had [a] nondiscriminatory
purpose” in adopting the law.
(i)
ii
PARTIES TO THE PROCEEDINGS
Petitioners are St. John’s United Church of Christ,
Helen Runge, and Shirley Steele. They were
plaintiffs in the District Court and appellants before
the United States Court of Appeals for the Seventh
Circuit.
Respondents are the City of Chicago (“Chicago”),
the Federal Aviation Administration (“FAA”), and
FAA Acting Administrator Robert A. Sturgell.
Chicago, the FAA, and former FAA Administrator
Marion C. Blakey were defendants in the District
Court and appellees before the United States Court
of Appeals for the Seventh Circuit.
TABLE OF CONTENTS
Page
QUESTION PRESENTED..u.....ceccccccsssssessscesssseeccessssee i
PARTIES TO THE PROCEEDINGG........cccccccssseeestes ii
TABLE OF AUTHORITIES. ...........ccccosesscccscsseeccccssove v
SS EAR RE a 1
ee as 2
CONSTITUTIONAL PROVISION
Gere 2
DINE 2
STATEMENT OF THE CASE .......essccccccssssesesccsssossees: 5
REASONS FOR GRANTING THE WRIT.............- 12
I. THE RULING BELOW EXACER-
BATES AN EXISTING CIRCUIT
A. Four Circuits Hold That Laws
Singling Out Religion For
Differential Treatment Are
Categorically Not Neutral And
Generally Applicable....................ccesesseeseeeess 13
B. Four Circuits Have Adopted A.
eis dsdupcuanadocs 18
II. THE SEVENTH CIRCUIT’S RULING
CONFLICTS WITH THIS COURT'S
Pe NSE co cchrivissedsiansitcdsiansinarssidsecssncisecss 23
Ill. THE CASE PRESENTS AN IDEAL
VEHICLE TO ADDRESS AN
IMPORTANT AND RECURRING
NE iss cn destissnostastskopsschobeoateigdintceas init 30
accom
iv
TABLE OF CONTENTS—Continued
LE ED TELE
APPENDICES
APPENDIX A:
Opinion of the Court of Appeals,
dated September 13, 2007...................
APPENDIX B:
Memorandum Opinion and Order of
the District Court, dated
November 16, 2006.......:..:.00..0......0000
APPENDIX C:
Order Denying Rehearing, dated
OUI Be IEE oo nc sess ccc nchacabnasaccs
TABLE OF AUTHORITIES
Page
Cases:
Blackhawk v. Pennsylvania,
BO1l F.30 202 (3a Cir. 2004) ........cscccseccccccsocees 16,
Braxton v. United States, 500 U.S. 344
ERIN Biases ces asaeadandsdsunakonenenses Giidchstiens mcacaaninedcesdianes be
Central Va. Cmty. Coll. v. Katz,
BOT ois ects estan crsens 31
Church of Lukumi Babalu Aye Inc. v.
City of Hialeah, 508 U.S. 520 (1998)........... passim
Columbia Union College v. Clark,
Bee Oe Be Chk ceschecobiasersteiieiscosccesessnsesstens 22
Employment Div., Dep’t of Human Res.
of Or. v. Smith, 494 U.S. 872 (1990)........... passim
Fraternal Order of Police Newark Lodge
No. 12 v. City of Newark, 170 F.3d 359
(3d Cir.), cert. denied, 528 U.S. 817
KDM ex rel. WJM v. Reedsport Sch.
Dist., 196 F.3d 1046 (9th Cir. 1999),
cert. denied, 531 U.S. 1010 (2000)................. 19,
KDM ex rel. WJM v. Reedsport Sch.
Dist., 210 F.3d 1098 (9th Cir. 2000).......... §, 21,
Kissinger v. Board of Trustees, 5 F.3d
177 (6th Cir. 19998).............. i iikguiiae Nees cknantane 7,
Larson v. Valente, 456 U.S. 228 (1982)..............00.
Locke v. Davey, 540 U.S. 712 (2004) 0... eens
(v)
vi
TABLE OF AUTHORITIES—Continued
Page
Lyng v. Northwest Indian Cemetery
Protective Ass’n, 485 U.S. 439 (1988).................. 11
Maislin Indus. U.S., Inc. v. Primary
Steel, Inc., 497 U.S. 116 (1990) .............2...00000e0ee 32
Midrash Sephardi v. Town of Surfside,
366 F.3d 1214 (11th Cir. 2004), cert.
denied, 543 U.S. 1146 (2008)............. 15, 16, 17, 21
Shrum v. City of Coweta, 449 F.3d 1132
CIE SII ci hnsedisdnbaipsbiduboincdebasesaocsace passim
Strout v. Albanese, 178 F.3d 57 (1st Cir.),
cert. denied, 528 U.S. 931 (1999)............. 18, 19, 20
Tenafly Eruv Ass'n, Inc. v. Borough of
Tenafly, 309 F.3d 144 (3d Cir. 2002)................... 17
Village of Arlington Heights v.
Metropolitan Housing Dev. Corp., 429
ns cancabeconens 25, 26
Village of Bensenville v. FAA,
457 F.3d 52 (D.C. Cir. 2006)...................02.220. 12, 31
World Wide St. Preachers Fellowship
v. Town of Columbia, 245 Fed. Appx.
es pemnsebepuniiah 21
Constitution:
SS ETE AMR Tae 2
ee I, I oi od iu ccs ve cuhutadbateen 26
vii
TABLE OF AUTHORITIES—Continued
Page
Statutes:
Be Asa ED aiilen sh descasonnsuenapsovornsnsnetubesnnnandannti 2
716 Tl. Comm. Stat. & SEINE wince. scsces0ccosccs.neeaee 7
Te ee Is Ss a oinistncccdicendsccoccccasniciadewiess 7
Rules:
RN Te ID Biss soi sdesoncaeackisvicbinbgsbaecedssmienabuons eres
i ME HI ait cisliniisaainiudicasabiitilenieipisitwanabinpsmesuteeeisns 23
ie asia anes nictcis chsnlincconaas 2
Other Authorities:
Carol M. Kaplan, The Devil Is in the
Details: Neutral, Generally Applicable
Laws and Exceptions from Smith,
75 N.Y.U. L. Rev. 1045 (2000) ......sssssccccssssessesssseees 5
Douglas Laycock, The Supreme Court
and Religious Liberty, 40 Cath. Law.
ii cthatiivechanninleesskihacibtanssccpianas sxeooieds 22, 21, 20
Douglas Laycock, Theology Scholarships,
The Pledge of Allegiance, and
Religious Liberty: Avoiding the
Extremes but Missing the Liberty,
118 Harv. L. Rev. 155 (2004)...............c0c0cecceccss000 27
Michael W. McConnell, Institutions and
Interpretation: A Critique of City of
Boerne v. Flores, 111 Harv. L. Rev. 153
Rika ha decisis ica Lt gelesen iia igh ce hanes Zedtninaeneeamintios 27
Vili
TABLE OF AUTHORITIES—Continue
Page
The New Shorter Oxford English
I aa ii in api ssiseninjansiunsccdnbnenkeie
Laurence H. Tribe, American
Constitutional Law § 5-16 (3d ed. 2000).............
5 Ronald D. Rotunda & John E. Nowak,
Treatise on Constitutional Law:
Substance and Procedure § 21.6 (3d ed.
Sarah Waszmer, Taking It Out of
Neutral: The Application of Locke’s
Substantial Interest Test to the School
Voucher Debate, 62 Wash. & Lee L.
BU SIE CE aiksakncicsn cies pusatccibenptpnndaschbeonbieonin
On Cats CEN eT:
Syftas Sy.
ts Nek a hy i Sate oS a Me a ek ts ig Sota earl &
IN THE
Supreme Court of the United States
No. 07-
St. JOHN’S UNITED CHURCH OF CHRIST, et ai.,
Petitioners,
v.
CITY OF CHICAGO, et al., :
Respondents.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Seventh Circuit
PETITION FOR A WRIT OF CERTIORARI
St. John’s United Church of Christ and two of its
members, Helen Runge and Shirley Steele
(collectively “St. John’s”), respectfully petition for a
writ of certiorari to review the judgment of the
United States Court of Appeals for the Seventh
Circuit.
OPINIONS BELOW
The opinion of the Seventh Circuit affirming the
District Court’s dismissal of petitioners’ Free
Exercise claim is reported at 502 F.3d 616 and
reprinted in the appendix hereto (“App.”) at la. The
opinion of the District Court is reported at 401 F.
Supp. 2d 887 and reprinted at App. 64a.
2
JURISDICTION
The judgment of the Court of Appeals was entered
on September 13, 2007. App. 2a. A timely petition
for rehearing and rehearing en banc was denied on
December 4, 2007. App. 105a. The jurisdiction of
this Court rests on 28 U.S.C. § 1254(1).!
CONSTITUTIONAL PROVISION INVOLVED
The First Amendment to the United States
Constitution provides in pertinent part: “Congress
shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.”
INTRODUCTION
In Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872 (1990),
and Church of Lukumi Babalu Aye Inc. v. City of
Hialeah, 508 U.S. 520 (1993), this Court held that a
law does not offend the Free Exercise Clause so long
as it is neutral and generally applicable.
In the 15 years since, the lower courts have divided
over a fundamental question: whether a law that
singles out religious activity for differential
treatment categorically lacks neutrality or general
applicability. Four circuits have held that it does.
But with the decision below, the Seventh Circuit
joins three other circuits that have taken the
opposite approach: They have held that a law
' Because their lawsuit challenges the constitutionality of a
state statute, petitioners. named state officials in their
complaint. The State of Illinois, however, moved to dismiss,
arguing that Chicago was the proper defendant. The District
Court dismissed the State on March 29, 2005. Since then, none
of the parties has served the State with any pleadings.
Nevertheless, petitioners have served a copy of this Petition on
the Attorney General of Illinois. See S. Ct. R. 29.4(c).
3
imposing this sort of differential treatment remains
neutral and generally applicable unless the law’s
object was to target the affected religious activity
because of its religious nature.
At issue below was the Illinois Religious Freedom
Restoration Act (“Illinois RFRA”). As first enacted,
the Illinois RFRA provided all religious exercise with
across-the-board protection against governmental
‘intrusion. In 2003, however, the legislature
amended the [Illinois RFRA to withdraw its
protections from one religious group: those who
worship at religious cemeteries located adjacent to
O’Hare International Airport. The legislature
stripped RFRA protection from this group because
the religious cemeteries supposedly interfered with
Chicago’s desire to expand O’Hare.
A divided panel of the Seventh Circuit deemed this
amendment “neutral,” even though it singles out a
tiny subset of religious observers,. and “generally
applicable,” even though it leaves the Illinois RFRA’s
protections applicable to some religious observers but
not others. App. 36a. The court so held because it
reduced the Free Exercise inquiry to one outcome-
determinative question: “whether the object of the
flaw] was ‘to infringe upon or restrict practices
because of their religious motivation.’” App. 32a
(quoting Lukumi, 508 U.S. at 533). Concluding that
the legislature was motivated not by religion but by
a desire to ease O’Hare’s expansion, the court
answered in the negative and ended the inquiry.
The panel majority thus embraced a rule that three
other circuits—the First, Fifth, and Ninth—have
endorsed: Unless the object of a law is to impose
special burdens on certain religious groups because
of religion, strict scrutiny is not triggered. But the
4 ;
dissenting judge below (Ripple, J.) and four
circuits—the Third, Sixth, Tenth, and Eleventh—
have taken exactly the opposite approach: They
have rejected a motive requirement and held that
strict scrutiny applies whenever religious practice is
subjected to objectively unequal treatment, even if
that unequal treatment “was the means to an
entirely secular end.” Shrum v. City of Coweta, 449
F.3d 1132, 1144 (10th Cir. 2006).
This latter approach is the correct reading of Smith
and Lukumi. A statute that objectively treats one
religious group differently than all other religious
groups categorically lacks neutrality and general
applicability and therefore triggers strict scrutiny.
To be sure, the Lukumi majority suggested that a
government motive to burden religion unequally
because of its religious nature may be sufficient to
trigger strict scrutiny, but it did not hold that such a
motive inquiry is necessary in cases where religious
practice is being subjected to demonstrably unequal
treatment. And to clarify matters, Justice Scalia
' Goined by Justice Thomas) emphasized in Lukumi
that “(t]he First Amendment does not refer to the
purposes for which legislators enact laws, but to the
effects of the laws enacted.” Lukumi, 508 U.S. at 558
(Scalia, J., concurring in part and in the judgment).
The rule adopted by the Seventh Circuit rejects that
principle. Under the panel majority’s approach, the
unequal “effects of the laws enacted” will not trigger
strict scrutiny unless they are coupled with evidence
about the “purposes” animating those laws. Id.
The deep division over this issue has not gone
unnoticed. Six judges of the Ninth Circuit have
recognized “growing confusion among the lower
courts” about Free Exercise and predicted that “[i]t is
only a matter of time before the Supreme Court
confronts this confusion.” KDM ex rel. WJM v.
Reedsport School Dist., 210 F.3d 1098, 1099 (9th Cir.
2000) (O’Scannlain, J., joined by Kozinski, Nelson,
Kleinfeld, Tashima, and Wardlaw, dissenting from
denial of rehearing en banc). Scholars likewise have
noted that “confusion abounds in the lower courts,
which interpret [Smith and Lukumi] in significantly
divergent ways.” Carol M. Kaplan, The Devil Is in
the Details: Neutral, Generally Applicable Laws and
Exceptions from Smith, 75 N.Y.U. L. Rev. 1045, 1046
(2000). The Court should grant certiorari to resolve
this entrenched conflict and to provide much-needed
clarity on this recurring and important question.
STATEMENT OF THE CASE
A. Facts
1. St. John’s is a Christian church established in
1849 in Bensenville, Illinois. That same year, St.
John’s consecrated St. Johannes Cemetery. The
remains of about 1,300 people are buried there.
St. John’s is part of the United Church of Christ, a
Protestant denomination with nearly two million
members in the United States. A central belief of the
Church is that on the Day of Resurrection, the bodies
of Christian believers will be resurrected to live with
God. Church members believe that because God
ordained St. Johannes as their loved ones’ final
resting place, the remains should not be disturbed
until judgment day. They believe the salvation of
deceased members’ souls would be impaired if their
remains were removed. The District Court and the
Seventh Circuit accepted that Chicago’s plan to
condemn and destroy the cemetery is a “sacrilege to
6
[St. John’s] religious faith”; the sincerity of that
belief is not at issue. App. 3la-32a, 81a.
Among the St. John’s members who hold these
beliefs are petitioners Helen Runge and Shirley
Steele. Ms. Runge, now in her 80s, was baptized,
married in, and intends to have her funeral at St.
John’s. About 25 of Ms. Runge’s relatives, including
her husband and infant son, are buried at St.
Johannes. Ms. Runge visits the cemetery to honor
those buried there; she also owns a plot next to her
husband, where she intends to be buried. She
believes disturbing the graves of her husband and
son would be a sacrilege. Likewise, Ms. Steele visits
the cemetery to care for and exercise her beliefs at
the graves of her grandparents and others.
2. In 2001, Chicago announced a massive
expansion plan for O’Hare International Airport.
App. 5a. As part of this redevelopment, Chicago
decided to acquire 433 acres of land in the Villages of
Elk Grove and Bensenville, adjacent to O’Hare. Id.
6a. The properties scheduled for condemnation
included homes, businesses, and two religious .
cemeteries—St. Johannes and a cemetery owned by
the Rest Haven Cemetery Association (“Rest
Haven”). Id. St. John’s and Rest Haven responded
by filing separate suits to block the City’s
acquisition, with St. John’s arguing (among other
things) that the City could not destroy the cemetery
without violating the Illinois RFRA. The Villages of
Bensenville and. Elk Grove filed a parallel suit; the
state court hearing that suit agreed with the
localities’ claim that the expansion needed a state
permit and granted a preliminary injunction. Jd. 7a.
Faced with this setback, Chicago turned to the
Illinois legislature for relief. The legislature
responded by enacting the O’Hare Modernization Act
(“OMA”), which re-wrote more than a dozen laws to
remove legal obstacles to O’Hare’s expansion. Most
pertinent here are two provisions: First, the OMA
granted Chicago the power to acquire any property
needed for the O’Hare project. App. 8a. Second, the
OMA amended the Illinois RFRA to eliminate the
protections St. John’s had previously enjoyed. Before
the OMA’s amendment, the Illinois RFRA—like its
federal namesake—provided that:
Government may not substantially burden a .
person’s exercise of religion, even if the burden
results from a rule of general applicability, unless
it demonstrates that [the burden] (i) is in
furtherance of a compelling governmental
interest and (ii) is the least restrictive means of
furthering that compelling governmental interest.
775 Ill. Comp. Stat. § 35/15. _But the OMA revoked
this across-the-board protection by adding a new
. Section 30 to the Ilhnois RFRA: “Nothing in [the
Illinois RFRA] limits the authority of the City of
Chicago to exercise its powers under the [OMA] for
the purpose of relocation of cemeteries or the graves
located therein.” Id. § 35/30. Section 30, in other
words, transformed the Illinois RFRA from a statute
that provided strict-scrutiny protection to all
religious exercise into a statute that provided that
protection to almost all religious exercise. The one
exception: religious exercise involving cemeteries
adjacent to O’Hare. Religious adherents in this
category are now excluded from the law’s benefits.
B. Proceedings Below
1. In hght of Section 30, St. John’s state-court
Illinois RFRA claim was dismissed as moot. St.
8
- John’s, Rest Haven, and the localities responded by
filing suit in the United States District Court for the
Northern District of Illinois. App. 9a. In a proposed
second amended complaint, St. John’s? noted that
absent Section 30, Chicago would be required to meet
strict scrutiny under the Illinois RFRA before it
could destroy or move St. Johannes. The complaint
alleged that Section 30 was unconstitutional under
the Free Exercise Clause because it stripped from St.
John’s members a_ benefit—RFRA protection—
available to all other religious activity in the state.
2. The District Court found the Free Exercise
claim to be without merit and therefore rejected the
second amended complaint as futile, effectively
dismissing it. The court correctly noted that this
Court has deemed laws that are “‘neutral and of
general applicability’” to pass muster under the Free
Exercise Clause. App. 83a (quoting Lukumi, 508
U.S. at 531). But rather than analyze the neutrality
and general-applicability requirements, the court
read Smith to mean that “strict scrutiny applies only
to laws that discriminate against religion.” Jd. 84a.
Continuing in this vein, the court asked only
whether Section 30 was intended to burden St.
John’s religious exercise because of religion. The
answer, the court found, was no: There was “no
indication in the complaint that the object of the law
is to infringe upon or restrict practices because of
their religious motivation” and Section 30 did not
“single out St. Johannes or any other cemetery
because of its religious affiliation.” Id. 84a-85a
(emphasis in original). The District Court concluded:
2 The Rest Haven relocation had by then been deleted from
the O’Hare expansion plan.
9
“Nothing in the complaint supports the proposition
that Chicago wants the St. Johannes land for any
reason other than *** the expansion of O’Hare
Airport. Because [there] is no indication that § 30
discriminates against religion, this Court applies
rational basis review.” Id. 86a.
3. On appeal, the Seventh Circuit divided two-to- .
one, with the majority adopting the same approach
as the District Court. The majority accepted that the
destruction of St. Johannes would be a sacrilege to
church members and would impose a burden on their
religious exercise. App. 31a-32a. The majority also
acknowledged the “obvious point” that St. Johannes
is “the only cemetery in the State of Illinois affected
by the new § 30.” Jd. 35a-36a. But it concluded that
‘this differential treatment was not sufficient to state
a Free Exercise claim. That was so because St.
John’s had failed to show something more—that “the
object of the OMA was ‘to infringe upon or restrict
practices because of their religious motivation.’” Id.
32a (quoting Lukumi, 508 U.S. at 533) (emphasis
added). Having framed the question this way, the
majority found it immaterial that St. John’s alone
was singled out by Section 30. In fact, precisely
because St. John’s was the only religious group
targeted, the majority was all the more convinced
“that the legislature had the nondiscriminatory
purpose of clearing all land needed for O’Hare’s
proposed expansion.” I[d.. 36a. The majority also
found that Section 30 was facially neutral because it
did not “‘refer[ ] to a religious practice without a:
secular meaning discernible from the language or
context.’” Jd. 33a (quoting Lukumi, 508 U.S. at 533).
The majority, in short, concluded that the
government could treat St. John’s differently than all
10
other religious groups in the State, and could thereby
impose unique burdens on its members’ religious
practice, so long as the legislature’s underlying
motive was unrelated to religion. Because the
underlying motive was indeed unrelated to religion,
the majority held that “the OMA, including the
portion that amends [Illinois RFRA], is a neutral law
of general applicability.” App. 36a.
This sufficed to dispose of petitioners’ claim. The
majority nonetheless opined, in dicta, that if strict
scrutiny had applied, Section 30 would have satisfied
it. Though the task of assessing compelling interest
and least-restrictive means is highly fact-bound—
and though the case was on appeal from a grant of a
motion to dismiss—the majority hypothesized:
“Although we think it unnecessary to ask whether |
the plan passes the strict scrutiny test * * * we add
for the sake of completeness that *** the plan
passes muster.” App. 36a.
Judge Ripple dissented. He first rejected the
majority’s conclusion that Section 30 was neutral on
its face. Explaining that “‘[a] law lacks facial
neutrality if it refers to a religious practice without a
secular meaning discernable from language or
context,’” App. 59a (quoting Lukumi, 508 U.S. at
533), Judge Ripple concluded that “it is clear that the
OMA’s amendment to the Illinois RFRA is not
facially neutral.” Jd. 59a-60a. He emphasized that
the majority’s “analysis fails to appreciate that, when
read in context,” Section 30—an amendment to a law
that addressed nothing but religion—had no possible
secular referent. Id. 60a.
Judge Ripple then turned to the majority’s other
proposition—that a Free Exercise claim requires not
just differential treatment but also a showing that
oe
the government singled out a religious group because
of religion—and rejected it too. Judge Ripple
explained that “[t]he effect of the amendment is to
remove from the protections afforded to every other
individual’s religious observance, those individuals
whose religious practices would be substantially
burdened by the relocation of cemeteries in
connection with the expansion of O’Hare,” Id. 60a-
6la. That unequal treatment was sufficient to
trigger strict scrutiny: “The OMA amendment * * *
offends the Free Exercise Clause by penalizing those
individuals whose religious observance is affected by
the expansion project by denying them ‘an equal
share of the rights, benefits, and privileges enjoyed
by other citizens. *** ([S]trict scrutiny must be
applied.” Jd. 61a (quoting Lyng v. Northwest Indian
Cemetery Protective Ass'n, 485 U.S. 439, 449 (1988)).
Finally, Judge Ripple rebuked the majority for
addressing in dicta, and at the motion-to-dismiss
stage, how the state’s action would have fared under
the strict-scrutiny inquiry. He emphasized that the
court could not reach the merits of strict scrutiny
because “accepting the City’s assertions [regarding
narrow tailoring] at this stage in the litigation is
inconsistent with our obligation * * * to accept all
well pleaded facts as true.” App. 63a. Since “there
has been none of the factual development necessary
to determine whether the means chosen by the City
are narrowly tailored to meet the compelling interest
asserted here,” Judge Ripple chided the majority for
needlessly speculating that Chicago could satisfy
strict scrutiny. Id.
3 Judge Ripple’s conclusion was consistent with that of the
only judge to actually review the full panoply of evidence and
12
REASONS FOR GRANTING THE WRIT
I. THE RULING BELOW EXACERBATES
AN EXISTING CIRCUIT SPLIT.
The Seventh Circuit's decision deepens an
entrenched circuit split on a question federal courts
regularly face: whether selectively imposing burdens
on certain religious practices is enough to trigger
strict scrutiny under the Free Exercise Clause, or
whether plaintiffs must also show that the
government specifically burdened their religious
practice because of its religious nature. The Seventh
Circuit held that this extra showing is necessary.
That same rule has been embraced by the First,
Fifth, and Ninth Circuits. In contrast, at least four
other circuits—the Third, Sixth, Tenth, and
Eleventh—have held just the opposite. This Court
should grant the writ to resolve the four-to-four split.
See S. Ct. R. 10(a); Braxton v. United States, 500 U.S.
344, 347 (1991) (a “principal purpose for which we
consider on the merits whether the O’Hare plan could survive
strict scrutiny. In Village of Bensenville v. FAA, 457 F.3d 52
(D.C. Cir. 2006), the D.C. Circuit denied a petition for review
brought by, among others, St. John’s, which challenged under
federal RFRA the decision by the FAA to approve the O’Hare
plan. Jd. at 68. A majority of the D.C. Circuit held, as a
threshold matter, that FAA’s approval of Chicago’s expansion
plan was not governed by federal RFRA. Judge Griffith
dissented, concluding that federal RFRA did apply. He
therefore went on to apply strict scrutiny and found that the
FAA had failed to carry its burden under that exacting
standard. Petitioners, he explained, had presented alternative
designs that would permit O’Hare's expansion while preserving
St. Johannes. /d. at 77 (Griffith, J., concurring in part and
dissenting in part). Indeed, one of these alternatives involves
nothing more than “shifting one runway 350 feet” and would
“still achieve the FAA's objectives.” Id.
13
use our certiorari jurisdiction *** is to resolve
conflicts among the United States courts of appeals”).
A. Four Circuits Hold That Laws Singling
Out Religion For Differential Treatment
Are Categorically Not Neutral And
Generally Applicable.
The decision below squarely conflicts with the
decisions of four circuits. These circuits have applied
strict scrutiny to laws singling out religious practice
for unequal burdens regardless of the government’s
underlying motivation for imposing those burdens.
The Tenth Circuit. Most recently, the Tenth
Circuit so held in Shrum, 449 F.3d 1132. Shrum
concerned a police officer who also worked as a
minister. He alleged that the police chief rearranged
his work schedule so that it would conflict with his
ministerial duties, forcing him to quit his police job.
Id. at 1134. The allegation was not that the chief
had burdened Shrum’s religious practice because of
its religious nature, but instead that he had done so
to achieve an underlying goal unrelated to religion—
forcing Shrum to quit the force.
Writing for a unanimous panel, Judge McConnell
held that this act triggered strict scrutiny even
though the chiefs motivation was, at base, secular.
“To be sure, Officer Shrum does not allege that Chief
Palmer held Officer Shrum’s faith against him or
acted from religious prejudice,” Judge McConnell
wrote. “Rather, the claim is that religious
discrimination was the means to an entirely secular
end: Chief Palmer wanted to force Officer Shrum
out, and making him choose between his duties as a
police officer and his duties as a minister was the
method at hand.” /d. at 1144. But that fact did not
14
immunize the chief's action. “[T]he. Free Exercise
Clause,” Judge McConnell wrote,
is not limited to acts motivated by overt religious
hostility or prejudice. As its language suggests,
the animating ideal of the constitutional provision
is to protect the ‘free exercise of religion’ from
unwarranted governmental inhibition whatever
its source. * * * True to this history, the Free
Exercise Clause has been applied numerous times
when government officials interfered with
religious exercise not out of hostility or prejudice,
but for secular reasons, such as saving money,
promoting education, obtaining jurors, facilitating
traffic law enforcement, maintaining morale on
the police force, or protecting job opportunities.
(Id. at 1144-45 (collecting cases) (citations
omitted). ]
The Tenth Circuit’s decision in Shrum squarely
conflicts with the rule adopted by the Seventh
Circuit. In the case below, as in Shrum, the
government singled out a religious actor for a special
burden. The government entities in both cases did so
not out of religious hostility, but instead as “the
means to an entirely secular end”—airport expansion
here and. work-force reduction in Shrum. The panel
below held that because of this “secular reason[ J,”
the Illinois law was neutral, generally applicable,
and outside the Free Exercise Clause’s protection.
The case would have come out the other way under
the Tenth Circuit's rule.
The majority below denied that its ruling conflicted
with Shrum. App. 42a. But its attempt to
distinguish Shrum on its facts misses the point:
Unlike the rule the majority adopted, Shrum held
that laws that treat religious practices differently are
15
categorically not neutral or generally applicable. —
Whether the governmental actor was motivated by
religious prejudice or animus is simply irrelevant
under the Tenth Circuit’s decision in Shrum. The
Tenth Circuit’s rule thus squarely conflicts with the
decision below, which required plaintiffs to show that
the government burdened religious practice because
of its religious nature.
The Eleventh Circuit. The Eleventh Circuit has
adopted the same rule as the Tenth. In Midrash
Sephardi v. Town of Surfside, 366 F.3d 1214 (11th
Cir. 2004), plaintiffs challenged a zoning ordinance
that excluded religious assemblies from a downtown
business district but allowed private clubs. Jd. at
1219. Applying the Smith-Lukumi rubric, the court
held that the ordinance was non-neutral: It
“target[ed]” religious practice in the sense that it
“treat[ed] religious assemblies differently than
secular assemblies.” Jd. at 1233. According to the
court, strict scrutiny was appropriate even though
there was no reason to believe that the differential
treatment was motivated by a desire to suppress
religious exercise: “We reject Surfside’s contention
that the [business district] is neutral because there is
no evidence of selective and discriminatory intent
against Orthodox Jews, a pattern of hostility or
discriminatory animus toward the synagogues, or
evidence that Surfside directly targeted religion.” Id.
at 1234 n.16. As the court explained, “[uJnder
Lukumi, it is unnecessary to identify 2n invidious
intent in enacting a law—only Justices Kennedy and
Stevens attached significance to evidence of the
lawmakers’ subjective motivation.” Jd. (citing
Lukumi, 508 U.S. at 540-542; id. at 558 (Scalia, J..,
concurring in part and concurring in judgment)).
16
The Eleventh Circuit, in short, understood Lukumi
to condemn not just the imposition of unequal
restrictions on a religious practice because it is
religious, but also the imposition of unequal
restrictions for any reason at all. Applying that
approach here, the decision below would have come
out the other way. For although Section 30 was
enacted for secular reasons—to make room for a new
runway at O’Hare— it nevertheless targeted one type
of religious practice for special treatment. Under the
Eleventh Circuit’s decision in Midrash, that alone
would have triggered strict scrutiny.
The Third Circuit. The Third Circuit has aligned
itself with the Tenth and Eleventh, most notably in
decisions authored by now-Justice Alito. See
Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir.
2004); Fraternal Order of Police Newark Lodge No.
12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999).
In Blackhawk, the appellant was a Native
American who kept bears for religious reasons.
State officials demanded that Blackhawk obtain a
special permit, and he applied for a waiver, which
was denied. Jd. at 205. Blackhawk sued on Free
Exercise grounds, arguing that the waiver process
constituted a “system of individualized exemptions”
that entitled him to an exemption of his own. Id. at
206; see Smith, 494 U.S. at 884 (“[W]here the State
has in place a system of individual exemptions, it
may not refuse to extend that system to cases of
‘religious hardship’ without compelling reason.”).
The Third Circuit, per Judge Alito, agreed that
the waiver process at issue created an exemption
system sufficient to trigger strict scrutiny. Jd. at
209. That was so even though there was no evidence
that the state had denied Blackhawk’s waiver
17
because of a desire to burden his religious practices.
Judge Alito explained why with a quote from his
earlier opinion in Fraternal Order: “‘[T]he * **
exemption raises concern because it indicates that
the Department has made a value judgment that
secular * * * motivations * * * are important enough
to overcome its general interest in uniformity but
that religious motivations are not.’” Id. at 208
(quoting Fraternal Order, 170 F.3d at 366)
(alteration in Blackhawk). And “‘when the
government makes a value judgment in favor of
secular motivations, but not religious motivations,
the government’s actions must survive heightened
scrutiny.’” Jd. (quoting Fraternal Order, 170 F.3d at
366). See also Tenafly Eruv Ass’n, Inc. v. Borough of
Tenafly, 309 F.3d 144, 165-168 (3d Cir. 2002).
The Third Circuit’s decisions in Fraternal Order
and Blackhawk square with those of the Tenth and
Eleventh Circuits. As in Shrum and Midrash, the
Third Circuit found Free Exercise violations based
solely on unequal treatment. Blackhawk, 381 F.3d
at 208. The court never paused to ask why
government had _ treated’ religious practice
differently—whether the officials involved had
disliked the groups at issue, or conversely whether
they had had some wholly benign underlying motive.
The mere fact that government had engaged in
unequal treatment, which inherently “devalues”
religious practice, Fraternal Order, 170 F.3d at 366,
was sufficient to trigger strict scrutiny.
The Sixth Circuit. In Kissinger v. Board of
Trustees, 5 F.3d 177 (6th Cir. 1993), the Sixth Circuit
likewise held that illicit motive is merely a sufficient,
not a necessary, condition to trigger strict scrutiny.
Kissinger involved a student’s claim that her college
18
offended the Free Exercise Clause by requiring her
to dissect animals despite her religious beliefs. Jd. at
178-179. The court applied a disjunctive test drawn
from Smith. Id. at 179. One part focused on the
‘motive inquiry: It asked whether the curriculum
was intended to “attack or exclude any individual on
the basis of his or her religious beliefs.” Jd. But a
separate part of the analysis—a part unconcerned
with motive—asked only whether “evidence exist[ed]
that any student was allowed to graduate without”
participating in the challenged program. Id. If the
answer had been “yes,” the college’s curriculum
would not have been “generally applicable” and strict
scrutiny would have applied. See id.
Kissinger squares with Shrum, Midrash, and
Blackhawk. Like those cases, it stands for the
proposition that laws singling out religious groups
are categorically non-neutral or non-generally
applicable. These holdings cannot be reconciled with
the Seventh Circuit’s ruling.
B. Four Circuits Have Adopted A Contrary
Rule.
The First, Fifth, and Ninth Circuits have adopted a
rule that squarely conflicts with the decisions above.
In these circuits—and in the Seventh Circuit now—
laws that impose differential treatment on religious
groups do not categorically trigger strict scrutiny.
Instead, such laws remain neutral and generally
applicable unless their object was to target religious
activity because of its religious nature. Certiorari is
warranted to resolve this entrenched split.
The First Circuit. In Strout v. Albanese, 178 F.3d
57 (1st Cir. 1999), parents challenged a Maine law
that allowed the state to fund students’ private-
19
school educations, provided the private schools were
“non-sectarian.” Jd. at 59. The court rejected a Free
Exercise challenge to this law, concluding that the
Smith-Lukumi line of cases was “inapposite.” Jd. at
65. This was so because in Lukumi “the record
showed a substantial animus against [religion] that
motivated the law in question. No such showing has
been made here.” Jd. The First Circuit, in other
words, treated a showing that government singled
out religion because of its religious nature as
necessary, not merely sufficient, to state a Free
Exercise claim, just as the Seventh Circuit did below
The Ninth Circuit. The Ninth Circuit adopted
this same approach in KDM ex rel. WJM v. Reedsport
School District, 196 F.3d 1046 (9th Cir. 1999), cert.
denied, 531 U.S. 1010 (2000). KDM involved an
Oregon regulation allowing the provision of state-
funded special-education services to private-school ©
students, but only if the services were provided in a
“religiously-neutral setting.” Jd. at 1048. When
KDM, a disabled child, transferred to a Christian
school, the school district no longer allowed a vision
specialist to visit him at his schoolhouse. The
district instead required KDM—who was blind and
suffered from cerebral palsy—to leave the school and
travel to a firehouse down the street. Jd.
KDM argued that the Oregon rule was non-neutral
and non-generally applicable because the rule, on its
face, treated students at private sectarian schools
differently than students at private non-sectarian
schools: The latter would not have had to leave their
school grounds to receive services. A divided Ninth
Circuit panel rejected this challenge. The majority
recognized that “the Oregon regulation is not
‘neutral.’” Jd. at 1050. Even so, the majority held
20
that strict scrutiny was not triggered because “as
applied here [the regulation] does not have ‘the
object or purpose * * * [of] suppression of religion or
religious conduct.’” Id. (quoting Lukumi, 508 U.S. at
533). It concluded: “We agrce with the [First
Circuit] in Strout v. Albanese, [which] distinguished
Lukumi because there was no evidence of ‘a
substantial animus * * * that motivated the law in
question.’” Jd. (quoting Strout, 178 F.3d at 65).
The Ninth Circuit, in short, did just what the
Seventh Circuit did below: It conceded that a law
singled out religion for unequal treatment but held
that that was not enough; the plaintiff also had to
show that the law’s goal was to burden religious
conduct precisely because it was religious conduct.
This holding inspired a pair of impassioned
dissents. Judge Kleinfeld, dissenting from the panel
decision, explained that “[t]he regulation at issue
here is not neutral on its face. By requiring a
‘religiously-neutral setting, the government
expressly and intentionally discriminates against
religious as opposed to secular private schools.” Id.
at 1053 (Kleinfeld, J., dissenting) (emphasis in
original). He concluded: “When the government, by
a law not neutral on its face, treats people of one or
all religions better or worse than others, the
constitutional question is traditionally formulated so
that the answer has to be ‘No!’” Zd.
KDM’s petition for rehearing en banc was denied,
but not before six judges heaped criticism on the
panel’s rule. Judge O’Scannlain, writing on behalf of
Judges Kozinski, Nelson, Kleinfeld, Tashima, and
Wardlaw, explained that the panel decision suffered
from a “fundamental inconsistency with Supreme
Court precedent” because under Lukumi, “a law that
21
is non-neutral on its face, like the Oregon regulation
at issue here, triggers strict * * * scrutiny—even in
the absence of extrinsic evidence suggesting that the
law was the result of anti-religious bigotry or
animus.” KDM ex rel. WJM v. Reedsport Sch. Dist.,
210 F.3d 1098, 1099 (9th Cir. 2000) (O’Scannlain, J.,
dissenting from denial of rehearing en_ banc)
(emphasis in original). _ Underscoring the need for
this Court to provide clarity and uniformity, Judge
O’Scannlain criticized the panel for “contribut[ing] to
the growing confusion among the lower courts over
the demands of the First Amendment.” Id.
The Fifth Circuit. Finally, the Fifth Circuit has
adopted the approach of the First, Seventh, and
’ Ninth Circuits. In World Wide Street Preachers
Fellowship v. Town of Columbia, 245 Fed. Appx. 336
(5th Cir. 2007), the Fifth Circuit announced in an
unpublished opinion that “[t]he constitutional test[ ]
for whether governmental action unconstitutionally
infringes on the free exercise of -religion” is
“dependent on whether the restriction was motivated
by the nature of the conduct that is restricted.” Id.
at 344. “[A] restriction of religious practices because
of their religious nature must survive strict scrutiny.
* ** Thus, the motivation for the restriction on the
exercise of religion must be established before the
restriction can be legally analyzed.” Id. (emphasis
added). This holding is, by its plain terms,
irreconcilable with decisions like Shrum and
Midrash. After all, in those cases, the courts
recognized that a restriction on religious exercise
can—and should—be analyzed by examining nothing
more than the restriction’s unequal treatment of
religion. In contrast, the Fifth Circuit—like the
panel majority below—requires courts to divine “the
22
motivation for the restriction” before reaching any
conclusion about its constitutionality.
* * *
The circuits thus divide four-to-four on the question
presented by this petition. This persistent division
has drawn the attention of not just prominent jurists
but also academics. Professor Laycock, a leading
religion-law scholar, has noted that “we have the
Smith/Lukumi test, but we have considerable
disagreement over what exactly that test means.”
Douglas Laycock, The Supreme Court and Religious
Liberty, 40 Cath. Law 25, 26 (2000). Other
commentators likewise have noted that “[t]he federal
circuits. have split on whether Lukumi requires an
object to infringe upon religious practice before a law
must be supported by a compelling government
interest” and that “the Supreme Court has not
addressed this split.” Sarah Waszmer, Taking It out
of Neutral: The Application of Locke’s Substantial
Interest Test to the School Voucher Debate, 62 Wash.
& Lee. Rev. 1271, 1285 (2005).
On a broader level, the legal academy has long
documented the lower courts’ confusion about what it
means to say government must be “neutral” toward
religion. See, e.g., Laycock, supra. That confusion
has not escaped the attention of the Justices of this
Court. In 1999, Justice Thomas noted that the
“lower courts *** are struggling to reconcile our
conflicting First Amendment pronouncements,” and
suggested that the Court provide “much needed
guidance.” Columbia Union College v. Clark, 527
U.S. 1013 (1999) (Thomas, J., dissenting from denial
of certiorari). That guidance is needed more urgently
today than it was then. This Court should exercise
23
its certiorari jurisdiction to resolve the deep divisions
- within the country.
Il. THE RULING BELOW CONFLICTS WITH
THIS COURT’S PRECEDENTS.
The rule adopted below also conflicts with this
Court’s Free Exercise jurisprudence. This Court’s
cases establish that an underlying motive to burden
religion may be a sufficient, but is not a necessary,
condition to trigger strict scrutiny: Where unequal
treatment exists, that is enough to render the
governmental action non-neutral and non-generally
applicable. The Seventh Circuit’s contrary holding
leads to absurd results in practice, immunizing
religion-targeting laws simply because they were
adopted in good faith and for secular reasons. The
Court should grant the writ and clarify that
“neutrality” and “general applicability” do not turn
on any showing of religious hostility. See S. Ct. R.
10(c) (certiorari is warranted when “a United States
court of appeals *** has decided an important
federal question in a way that conflicts with relevant
decisions of this Court”).
1. The Free Exercise Clause’s modern history
begins with Smith. Smith involved two men who
were denied unemployment benefits after being fired
for using peyote. 494 U.S. at 874. They challenged
the denial, arguing that they were entitled to a
religious exemption for their peyote use. The Court
declined to apply strict scrutiny. It concluded that
“the right of free exercise does not relieve an
4 It does not matter whether the treatment is unequal vis a
vis another religious group or vis a vis a secular group. Either
type of singling-out runs afoul of the First Amendment. See
Larson v. Valente, 456 U.S. 228, 245-246 (1982).
24
individual of the obligation to comply with a valid
and neutral law of general applicability.” Jd. at 879
(quotation omitted). The Court explained that “if
prohibiting the exercise of religion” is “merely the
incidental effect of a generally applicable and
otherwise valid provision, the First Amendment has
not been offended.” Jd. at 878.
The Court subsequently considered in Lukumi
several municipal ordinances that were designed to
prohibit Santeria animal sacrifice, while leaving
activities such as fishing untouched. Lukumi, 508
U.S. at 543. The Court, per Justice Kennedy, held
that the ordinances triggered strict scrutiny.
Justice Kennedy analyzed’ separately the
“neutrality” and “general applicability” inquiries. As
to the first, he noted that “/aj/t a minimum, the
protections of the Free Exercise Clause pertain if the
law at issue discriminates against some or all
religious beliefs or regulates or prohibits conduct
because it is undertaken for religious reasons.” Id.
at 531 (emphasis added). He explained that “the
minimum requirement of neutrality is that a law not
discriminate on its face.” Jd. at 533. That “minimum
requirement” is violated if the law “refers to a
-religious practice without a secular meaning
discernible from the language or context.” Id.
In a separate section of his neutrality analysis—a
section joined only by Justice Stevens—Justice
Kennedy wrote that “[i]n determining if the object of
a law is a neutral one under the Free Exercise
Clause, we can also find guidance in our equal
protection cases.” Id. at 540. He suggested that
“(hjere, as in equal protection cases, we may
determine the city council’s object from both direct
and circumstantial evidence,” including legislative
25
history. Id. (citing Arlington Heights v. Metropolitan
Housing Dev. Corp., 429 U.S. 252, 267-268 (1977)). .
Having examined this evidence, Justice Kennedy
concluded that the ordinances “were enacted
‘because of,’ not merely ‘in spite of,’ their suppression
of Santeria religious practice.” Id. (quoting Arlington
Heights, 429 U.S. at 279).
Writing for a majority again, Justice Kennedy
“turnfed] next to a second requirement of the Free
Exercise Clause, the rule that laws burdening
religious practice must be of general applicability.”
Id. at 542. Here he abandoned his concerns for
“legislative object” and focused on the differential
treatment of similarly situated actors: § “The
principle that government, in pursuit of legitimate
interests, cannot in a selective manner impose
burdens only on conduct motivated by religious belief
is essential to the protection of the rights guaranteed
by the Free Exercise Clause.” Jd. at 542-543. He
concluded that the ordinances were non-generally
applicable because they burdened Santeria animal
sacrifice while not burdening other practices—
fishing, for example—that also undermined the
ordinances’ ostensible goals. Id. at 544-545.
Justice Scalia, joined by Chief Justice Rehnquist,
concurred in part but rejected Justice Kennedy’s
analogy to the Equal Protection Clause. He
explained that First Amendment analysis does not
require “determination of legislative motive.” Id. at
558 (Scalia, J., concurring in part and concurring in
the judgment). He explained that “[t}]he First
Amendment does not refer to the purposes for which
legislators enact laws, but to the effects of the laws
enacted.” Jd. at 559. For that reason, it would not
matter “that a legislature consists entirely of the
26
pure-hearted, if the law it enacts in fact singles out a
religious practice for special burdens.” Id.
2. The panel majority below viewed Smith and
Lukumi as cases about motive. According to the
panel, Smith and Lukumi require not just that
religious activity be singled out but also that the
singling-out be motivated by the activity’s religious
aspects. That rule, however, conflicts with Smith
and Lukumi in at least three ways.
a. First, a motive requirement cannot be extracted
from Lukumi. The Court focused on legislative
“object” only when analyzing one of the two Free
Exercise inquiries—neutrality—and not the other—
general applicability. The general-applicability
inquiry was instead concerned with differential
treatment of similarly situated entities. See Lukumi,
508 U.S. at 542-544. Indeed, the majority’s
explanation of “general applicability” used language
that cannot be reconciled with a motive requirement:
It wrote that government, even “in pursuit of
legitimate interests, cannot in a selective manner
impose burdens only on conduct motivated by
religious belief.” Jd. at 542-543 (emphasis added).
Further, even the neutrality discussion was not so
limited. Lukumi did not announce that an intent to
suppress religion was required to deem a law non-
neutral, but only that it was sufficient. See id. at 532
(“At a minimum,” the Clause pertains to a law that
“regulates or prohibits conduct because it is
undertaken for religious reasons.”) (emphasis added).
And importantly, the portion of Lukumi tying the
Free Exercise Clause to Arlington Heights-style
“because of, not in spite of’ equal-protection analysis
garnered only two.votes.
27
These points have led four circuits to conclude that
the Smith-Lukumi line does not announce a motive
requirement—a conclusion with which the legal
academy agrees. “Whatever else it may be, Lukumi
is not a motive case. * * * Seven Justices failed to
find bad motive, but nine voted to strike down the
ordinances.” Laycock, 40 Cath. Law at 28. Then-
Professor (now Judge) McConnell reached the same
conclusion: “Smith did not limit free exercise
protection to laws motivated by ‘religious bigotry,’
‘persecution,’ or even ‘animus or hostility to the
burdened religious practices’ * * *. Rather, Smith
held that the Free Exercise Clause applies to laws
that are not neutral or generally applicable
(regardless of their motivation).” Michael W..
McConnell, Institutions and Interpretation: A
Critique of City of Boerne v. Flores, 111 Harv. L.
Rev. 153, 167 (1997); see also Laurence H. Tribe,
American Constitutional Law § 5-16, at 956 (3d ed.
2000) (same); 5 Ronald D. Rotunda & John E.
Nowak, Treatise on Constitutional Law: Substance
and Procedure § 21.6, at 106 (3d ed. 1999) (same).5
5 This Court has decided one Free Exercise case since
Lukumi, but it is not to the contrary. In Locke v. Davey, 540
U.S. 712 (2004), the Court held that a government’s decision
not to fund certain religious instruction is permissible unless it
(1) burdens religious practice or (2) is the product of bad motive.
See Locke, 540 U.S. at 720; see also Douglas Laycock, Theology
Scholarships, The Pledge of Allegiance, and Religious Liberty:
Avoiding the Extremes but Missing the Liberty, 118 Harv. L.
Rev. 155, 216 (2004). Here, Section 30 concededly imposes a
substantial burden on religious practice. Locke’s “motive”
discussion therefore is irrelevant. In any event, Shrum,
Midrash and Blackhawk—all of which rejected a motive
requirement—were decided after Locke was handed down.
Locke therefore has not ameliorated the circuit split.
28
The Seventh Circuit ignored this guidance—and
the holdings of four sister circuits—when it
announced its contrary rule. In so doing it saw fit to
rely explicitly on the equal-protection portion of
- Lukumi, even though that portion attracted just two
votes. App. 34a. Its motive requirement, in short,
relies on portions of Lukumi that were rejected by
most of the Court and cannot in any event be
squared with the rest of Lukumi’s text.
b. Second, the inclusion of a motive requirement,
even in cases where unequal treatment and burden
have been shown, is unfaithful to the plain language
of both the Free Exercise Clause and the Court’s test.
As to the former, the Court was careful to note in
Smith that the rule adopted there was a “permissible
reading of the [constitutional] text.” 494 U.S. at 878.
Not so with the Seventh Circuit’s approach:. It looks
only to “the purposes for which legislators enact
laws,” and not, like the Clause itself, “to the effects of
the laws enacted.” Lukumi, 508 U.S. at 558 (Scalia,
J., concurring in part and concurring in the
judgment). And as to the latter, the Seventh
Circuit’s approach hews to the plain meaning of
neither the word “neutral” nor the phrase “generally
applicable.” “Neutral” means “taking neither side,”
The New Shorter Oxford English Dictionary (2005); it
can hardly be said that a law extending benefits to
all religious adherents and then withdrawing them
from a small group is neutral. It is still more
difficult to claim such a law is generally applicable.
“Taking ‘generally applicable’ at its literal English
meaning, the law has to apply to everyone, or nearly
everyone.” Laycock, 40 Cath. Law at 26-27. Not so
with Illinois RFRA after the addition of Section 30.
29
Because the Seventh Circuit’s approach strays from
the plain meaning of “neutral” and “generally
applicable” it creates the potential for absurd results.
Say, for example, that a Virginia law provided: “All
religious adherents shall be entitled to strict-scrutiny
protection for their religious exercise, except those
who belong to churches or synagogues in downtown
Richmond.” It is difficult to imagine how such a law
could be considered “neutral” or “generally
applicable,” regardless of the legislature’s motivation
in enacting it. And yet this hypothetical law is
identical in every relevant respect to the law deemed
neutral and generally applicable by the court below.®
c. Third, and finally, the approach adopted by the
Seventh Circuit conflicts with this Court’s cases
because it effectively collapses the Free Exercise
inquiry announced in Smith and Lukumi from two
stages into one. Under Smith and Lukumi, a court
must first determine whether a law is neutral and
generally applicable; if it is not, strict scrutiny
applies and the court then considers’ the
government's interest, determining whether it is
“compelling.” Under the Seventh Circuit’s approach,
by contrast, consideration of the government’s
interest is imported into stage one of the analysis
and permitted to distort the neutrality and general-
applicability inquiries. Under the Seventh Circuit’s
6 That the hypothetical law mentions “church” and
“synagogue,” while Section 30 avoids words that connote
religion, is not a relevant difference. After all, “a law lacks
facial neutrality if it refers to a religious practice without a
secular meaning discernible from the language or context.”
Lukumi, 508 U.S. at 533 (emphasis added). Section 30 lacks a
discernible secular meaning when read in context, for it amends
a law—the Illinois RFRA—that has religion as its only subject.
30
approach, so long as the government can identify
some legitimate, secular reason for its differential
treatment, that is the end of the inquiry. This rule
radically restricts the Free Exercise Clause
protection that Smith-Lukumi carefully preserved.
Ill. THE CASE PRESENTS AN _ IDEAL
VEHICLE TO ADDRESS AN IMPORTANT
AND RECURRING QUESTION.
1. Free-exercise cases are far from rare—several
hundred have been decided just in the federal
appellate courts in the past decade—and this case
presents an ideal vehicle to address a question about
free-exercise doctrine that has vexed the lower courts
since Smith and Lukumi were handed down. The
question presented was squarely raised and
addressed below. App. 3la-36a. Other circuits have
weighed in with analyses so clearly incompatible as
to be outcome-determinative. Supra at 13-19. And
there are no procedural complications that would
prevent the Court from reaching the merits.
The fact that the panel majority speculated in dicta
that Chicago could satisfy strict scrutiny creates no
barrier to this Court’s review. Indeed, even
respondents have admitted that this portion of the
majority's opinion was “wholly unnecessary to the
decision.” Answer of Defendants-Appellees to
Petition for Pane] Rehearing or, in the Alternative,
Rehearing En Banc 13 (filed Nov. 16, 2007). [t was
also inappropriate because the strict-scrutiny test is
a heavily fact-bound inquiry—one which an appellate
court is ill-suited to resolve in the first instance on
an appeal arising from a motion to dismiss. See App.
63a (Ripple, J., dissenting). Moreover, the only
federal judge ever to apply strict scrutiny to the
O’Hare plan on a fully developed factual record
31
concluded that the government had failed to carry its
burden of demonstrating the existence of “least
restrictive means.” Village of Bensenville, 457 F.3d
at 77 (D.C. Cir. 2006) (Griffith, J., concurring in part
and dissenting in part). Judge Ripple was therefore
exactly right to criticize the majority for ruminating
in dicta on the strict-scrutiny test when “there has
been none of the factual development necessary to
determine whether the means chosen by the City are
narrowly tailored to meet the compelling interest
asserted here.” App. 63a. Because this Court is not
bound even by its own dicta, see Central Va. Cmty.
Coll. v. Katz, 546 U.S. 356, 363 (2006), it need not be
detained by that of the panel majority below.
Nor should this Court be deterred by any fear that,
as a practical matter, petitioners’ victory on the
merits would block an expansion of O’Hare.
Petitioners are not Luddites seeking to block modern
improvement to O’Hare. They instead simply want
to ensure that their religious cemetery is not
destroyed if there are in fact less destructive
alternatives—the very purpose of the strict-scrutiny
analysis. To that end, petitioners themselves have
identified alternative designs that would save St.
Johannes while allowing the O’Hare expansion to
proceed almost exactly as Chicago has envisioned it.
See supra at 12; Village of Bensenville, 457 F.3d at
77 (Griffith, J., concurring in part and dissenting in
part) (noting petitioners’ alternative designs and
finding that the FAA offered only “conclusory
responses” that did not allow the court to “determine
if any of these alternatives are a less restrictive
means”). The Court therefore may take this
opportunity to clarify the Free Exercise Clause’s
meaning without fear that “strict mechanical
32
adherence” to the _ resulting doctrine would
“produce[ | absurd results.” Maislin Indus. U.S., Inc.
v. Primary Steel, Inc., 497 U.S. 116, 151 (1990)
(Stevens, J., dissenting).
2. It has been 15 years since the Court squarely
addressed the issues presented by this case. In that
time, an impressive list of legal lights—judges,
scholars, even a Justice of this Court—have
recognized that the lower courts’ Free Exercise
jurisprudence is hopelessly divided. Because the
question whether governmental conduct violates the
Constitution should not turn on accidents of
geography, this Court should grant the »rit.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
RONALD D. ROTUNDA CHRISTOPHER T. HANDMAN*
GEORGE MASON UNIVERSITY ROBERT E. COHN
SCHOOL OF LAW DOMINIC F. PERELLA
3301 Fairfax Drive HOGAN & HARTSON L.L.P.
Arlington, VA 22201 555 Thirteenth Street, N.W.
(703) 993-8041 _ . Washington, D.C. 20004
(202) 637-5719
JOSEPH V. KARAGANIS
A. BRUCE WHITE
JOHN W. KALICH
KARAGANIS, WHITE &
MAGEL LTD.
414 North Orleans Street
Suite 810
Chicago, Illinois 60610
(312) 836-1177
*Counsel of Record Counsel for Petitioners
APPENDICES
la
APPENDIX A
In the
UNITED STATES COURT OF APPEALS
for the SEVENTH CIRCUIT
No. 05-4418 ©
ST. JOHN’S UNITED CHURCH OF CHRIST, HELEN
RUNGE, and SHIRLEY STEELE,
Plaintiffs-Appellants,
v.
THE CITY OF CHICAGO, the FEDERAL AVIATION
ADMINISTRATION, and MARION C. BLAKELY,
Administrator of the Federal Aviation
Administration,
Defendants-Appellees.
Nos. 05-4450 & 05-4451
VILLAGE OF BENSENVILLE, VILLAGE OF ELK
GROVE, ROXANNE MITCHELL, REST HAVEN
CEMETERY ASSOCIATION, ROBERT PLACEK,
and LEROY H. HEINRICH,
Plaintiffs-Appellants,
2a
THE CITY OF CHICAGO, the FEDERAL AVIATION
ADMINISTRATION, and MARION C. BLAKELY,
Administrator of the Federal Aviation
Administration, 3
Defendants-Appellees.
Nos. 05-4418, 05-4450 & 05-4451
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 03 C 3726—David H. Coar, Judge.
ARGUED JAN. 10, 2006; JUNE 7, 2006— —
DECIDED SEPT. 13, 2007 -
Before: BAUER, RIPPLE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Mention Chicago to almost
any person who has been on an airplane, and that
person will immediately think of Chicago’s O’Hare
International Airport. It is one of the busiest airports
in the world: in 2005, more than 76.5 million
passengers passed through its facilities, along with
1.7 million tons of freight. See
http://www.flychicago.com/events/KidsPage2006/OHare
History.shtm (last visited August 27, 2007). It is also
of central importance to the economy of Chicago and
3a
Northern Illinois, generating approximately 514,000
jobs for the region and nearly $37 billion a year in
economic development. Jd. Responding to growth in
demand for O’Hare’s services, the Illinois. General
Assembly passed the O’Hare Modernization Act (OMA),
620 ILCS 65/5, in 2003, in order to improve and expand
the airport. This case deals with certain land
_ acquisitions contemplated by that legislation.
We consolidated these appeals for decision because
each raises challenges to the same district court order
in lawsuits filed by objectors to the modernization
project. In that order, the court denied a motion for
leave to file a second amended complaint (for all but
one count) and refused to enjoin the City of Chicago’s
plan to acquire each plaintiffs property in order to-
build additional runways at O’Hare. In appeal number
05-4418, the St. John’s United Church of Christ and
two of its parishioners (collectively, St. John’s)
challenge the district court’s denial of their motions for
leave to file a second amended complaint and for a
preliminary injunction. St. John’s claims that the
City’s attempt to condemn a cemetery located on
church property violates the First Amendment’s Free
Exercise Clause, the Fourteenth Amendment’s Equal
Protection Clause, and the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc et seg. We consider only the claims St. John’s
has asserted against the City; its claims against the
Federal Aviation Administration (FAA) were resolved
in the FAA’s favor by the court of appeals for the
4a
District of Columbia Circuit in Village of Bensenville v.
FAA, 457 F.3d 52 (D.C. Cir. 2006).!
In appeal number 05-4450, the Villages of
Bensenville and Elk Grove (Municipal Plaintiffs)
contend that the district court erred in concluding that
it lacked jurisdiction to review their claims against the
FAA. Lastly, in appeal number 05-4451, we consider
the challenge of the Rest Haven Cemetery Association
and two members of its board of directors (collectively,
Rest Haven) to the district court’s dismissal of the first
amended complaint. Rest Haven was not named in the
proposed second amended complaint because the City
no longer plans to acquire its cemetery. The district
court concluded, for that reason, that its claim was
1 The main issue before the D.C. Circuit concerned whether the
FAA had violated the federal Religious Freedom Restoration Act
(RFRA), 42 U.S.C. § 2000bb et seg., by approving the City's plan
and determining that the plan was eligible for federal funding. As
an ‘agency .. . of the United States,” § 2000bb-2(1), the FAA,
unlike the City, falls within the scope of RFRA and thus must
meet the requirements of strict scrutiny when its actions
substantially burden exercise of someones religion. The D.C.
Circuit considered whether any potential burden on the exercise of
religion in this case could be fairly attributable to the FAA by
virtue of its having approved the City’s plan. Because ‘[t]he
expansion plan for the airport, which is owned by the City, was
prepared and will be implemented by the City, which is prepared
to proceed without federal funds if necessary, the court found that
it was the City, not the FAA, that was responsible for any ©
potential burden on religion that resulted from the plan.
Bensenville, 457 F.3d at 57. It thus rejected the RFRA claims
against the FAA without reaching the question whether the FAA
had shown a compelling governmental interest supporting its
decision.
Re mk
5 paps eh ee en a
5a
moot; Rest Haven disagrees with that assessment. In
Rest Haven’s appeal, we also consider the same
question raised by the Municipal Plaintiffs, namely,
whether the district court had jurisdiction to consider
Rest Haven’s claims against the FAA. We conclude
that the district court navigated its way through these
complex issues successfully, and we thus affirm its
judgment in all respects.
\
I
In the summer of 2001, the U.S. Senate Commerce,
Energy, and Transportation Committee held hearings
in Chicago to discuss the ways in which delays at
O’Hare contribute to excessive aviation delays
throughout the United States. During the course of
these hearings, the Committee strongly hinted that if
the City of Chicago and the State of Illinois did not
reach a decision on airport expansion before September
1, 2001, Congress would likely intervene.
On June 29, 2001, the City announced its plan to
increase O’Hare’s capacity; this plan later developed
into the O’Hare Modernization Program (OMP). The
OMP proposed to correct some of the inefficiencies
created by the airfield’s outdated configuration of seven
intersecting runways (which include a “runway
triangle” created by the three original intersecting
runways that lie north of the present terminals) by
creating six parallel and two crosswind runways. The
proposed design resembles the more effective runway
architecture that has been employed at Hartsfield-
Jackson Atlanta International Airport and_ the
Dallas/Fort Worth International Airport. In contrast to
6a
the current layout of intersecting runways, in which
the ability to use one runway is limited by whether an
aircraft is using any of the others, the proposed
configuration would permit a constant stream of take-
offs and landings on each parallel runway, regardless
of the activity that may simultaneously be occurring on
adjacent runways.
On December 5, 2001, the Mayor of Chicago and the
Governor of Illinois announced that they had reached
an agreement on the central components of the
proposed OMP. Shortly thereafter, the FAA submitted
its Notice of Intent to Prepare an Environmental
Impact Statement (EIS), which is a “detzviled
-analysis .. . conducted to determine if, or the extent to
which, a particular agency action will impact the
environment.” Heartwood, Inc. v. United States Forest
Serv., 230 F.8d 947, 949 (7th Cir. 2000). All federal
agencies are required to prepare an EJS for any “major
Federal actions significantly affecting the quality of the
human environment.” See the National Environmental
‘Policy Act (NEPA), 42 U.S.C. § 4332(2)(C).
In June of 2002, the City announced its plan to
acquire 433 acres of land located in the Villages of Elk
Grove and Bensenville, two municipalities adjacent to
, OHare, in anticipation of the airport’s expansion. A
wide variety of properties were scheduled for
condemnation, including a number of homes and
businesses, a police and fire station, an elementary
school, several parklands, and the two cemeteries at
issue here—St. Johannes and Rest Haven, owned by
the St. John’s United Church of Christ and the Rest
Haven Cemetery Association, respectively. The
7a
Municipal Plaintiffs responded by filing suit in state
court seeking both a declaration that any effort to
acquire the desired property without first obtaining a
“certificate of approval” from the Illinois Department of
Transportation was beyond the City’s authority under
the Illinois Aeronautics Act, see 620 ILCS 5/47, and a
preliminary injunction preventing the City from
proceeding with its land acquisition plan. On July 9,
2002, the Circuit Court of DuPage County granted the
municipalities’ requested relief; the Illinois Appellate
Court affirmed its decision. See Philip v. Daley,
790 N.E.2d 961 (Ill. App. Ct. 2003).
Faced with this setback, the City turned to
‘ Springfield and the Illinois General Assembly for help.
It was successful in persuading the legislature to enact
the OMA in May of 2003. See 620 ILCS 65/5. The
Act’s statement of findings and purposes notes the
importance of O’Hare to both the state and national air
transportation system and affirms the necessity of
acquiring adjacent properties as part of the
modernization program. See OMA § 5(a)(1), (2), (5). In
addition, the Act proclaims that “[i]t is the intent of the
General Assembly that all-agencies of this State and its
subdivisions shall facilitate the _ efficient and
expeditious completion of the O’Hare Modernization
Program to the extent not specifically prohibited by
law, and that legal impediments to the completion of
the project be eliminated.” OMA § 5(b).
The Act specifically addresses the issue of acquisition
of property in several places. It does so generally in
section 15, which grants to the City “liln addition to
any other powers the City may have, and
8a
notwithstanding any other law to the contrary,” the
power to
acquire by gift, grant, lease, purchase,
condemnation . . . or otherwise any right, title,
or interest in any private property, property
held in the name of or belonging to any public
body or unit of government, or any property
_ devoted to a public use, or any other rights or
easements, including any property, rights, or
easements owned by the State, units of local
government, or school districts, including forest
preserve districts, for purposes related to the
O’Hare Modernization Program.
OMA § 15. Lest there be any doubt on the particular
topic of cemeteries, the Act continues: “The powers
given to the City under this Section include the power
to acquire, by condemnation or otherwise, any property
used for cemetery purposes within or outside of the
City, and to require that the cemetery be removed to a
different location.” See also id. § 92 (amending the
Illinois Municipal Code, 65 ILCS 5/11-51-1, to make it
clear that the City of Chicago need not obtain the
consent of a cemetery’s owner in order to exercise its
powers under § 15 of the OMA, even though such
consent is normally required).
The OMA amends many statutes—indeed, as counsel
for-the City argued, it seems to have amended every
statute that someone thought might stand in the way
of the OMP. Thus, for example, it amends the
Downstate Forest Preserve District Act, 70ILCS
805/5e, OMA § 93; the Vital Records Act, 410 ILCS
. 9a |
535/21, OMA §98.5; the Illinois Aeronautics Act,
- 620ILCS 5/38.01, OMA § 94; and the Code of Civil
Procedure, 735 ILCS 5/2-103, OMA § 95. Among these
many modifications is the one that is central to this
litigation: the addition of a new section 30 to the
Illinois Religious Freedom Restoration Act (IRFRA),
775 ILCS 35/1 et seg. OMA § 96. The IRFRA provides
generally that the “[glovernment may not substantially
burden a person’s exercise of religion, even if the
burden results from a rule of general applicability,
unless it demonstrates that application of the b rden
to the person (iis in furtherance of a compelling
governmental interest and (ii) is the least restrictive .
means of furthering that compelling governmental
interest.” 775 ILCS 35/15. That broad language was
qualified by the new section 30, which states: “Nothing
in this Act [.e. IRFRA] limits the authority of the City
of Chicago to exercise its powers under the [OMA] for
the purpose of relocation of cemeteries or the graves
located therein.” 775 ILCS 35/30.
On May 30, 2003, shortly after the legislature
enacted the OMA, the Municipal Plaintiffs, St. John’s,
and Rest Haven filed suit in the United States District
Court for the Northern District of Illinois against the
City of Chicago, Mayor Richard M. Daley, the State of
Illinois, Governor Rod Blagojevich, and both the FAA
and its administrator alleging a number of violations of
federal law. On June 19, 2003, Plaintiffs filed an
amended complaint. Most of the counts of the
amended complaint challenged the City’s plan to
acquire land before the FAA issued its EIS or Record of
Decision (ROD). Additionally, all of the Plaintiffs
10a
alleged that the City, along with the Mayor, violated
NEPA and its implementing regulations, the National
Historic Preservation Act (NHPA), 16 U.S.C. § 470, et
seq., § 4() of the Department of Transportation Act,
49U.S.C. §303(c), as well as provisions of the
Administrative Procedures Act, 5 U.S.C. § 706.
In the amended complaint, St. John’s and Rest Haven
also asserted a number of claims based on religion
against the City. They alleged that the City, in
proposing to condemn their cemeteries without
demonstrating a compelling governmental interest and
use of the least restrictive mechanism, as IRFRA
ordinarily requires, violated their constitutional rights
under the Free Exercise Clause of the First
Amendment and the Equal Protection Clause of the
Fourteenth Amendment. These plaintiffs charged that
the City is “targeting” their religious activities and
posing a substantial burden on their ability to practice
their religion. Plaintiffs also alleged that the City’s
plan to condemn their cemeteries violated the federal
Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. § 2000cc et seg. Additionally,
they asserted violations of the Fifth Amendment’s
Takings Clause and the Fourteenth Amendment’s Due
Process clause. Finally, these Plaintiffs raised similar
religion-based claims against the State of [linois and
Governor Blagojevich, and against the FAA and its
administrator, including an allegation that the FAA
violated the federal RFRA. On March 29, 2005, the
district court dismissed the State of Illinois and
Governor Blagojevich from the case on Eleventh
Amendment immunity grounds.
lla
As this suit was pending before the district court, the
parties entered into a court-approved order under
which the City agreed that it would not acquire
property in Bensenville and Elk Grove, including the
St. John’s and Rest Haven Cemeteries, until the FAA
issued an EIS or a ROD. At the end of 2003, the City
began to move forward with other components of its
plan to expand O’Hare, seeking FAA approval for over
$1.3 billion in federal funds for “Phase One” of the
OMP. Specifically, the City requested about $300
million in airport improvement program discretionary
funds, $63 million in entitlement funds, and over $1
billion in Passenger Facility Charge (PFC) funds.
Phase One of the project was to include the demolition
of the cemeteries, as well as other property in the
villages. In late July of 2005, the FAA issued its final
EIS, which compared the environmental impact of the
City’s proposal with other alternatives and concluded
‘ that the City’s airport plan, with some minor revisions,
was the preferred course. The EIS also reviewed the
legal issues raised by St. John’s and Rest Haven,
ultimately concluding that if the City’s plan was
approved in the ROD, the St. Johannes Cemetery
would be relocated, while the Rest Haven Cemetery
would not.
On September 30, 2005, the FAA issued its ROD
granting the City’s request for approval of its airport
layout plan. The ROD considered St. John’s RFRA
claims and concluded that although the acquisition and
relocation of the St. Johannes cemetery was likely to
burden the exercise of the parishioners’ religion
substantially, the City had a compelling interest in
bi.
12a
relocating the cemetery in order to make O’Hare more
efficient. The same day that the FAA issued its ROD,
the Municipal Plaintiffs and St. John’s filed a petition
for review of the EIS and ROD in the D.C. Circuit.
Their petition alleged, among other things, that the
FAA’s approval of the airport layout plan violated a
number of provisions of federal law, including the First
and Fifth Amendments and RFRA. Along with their
petition for review, the Plaintiffs filed an emergency
motion for a stay pending appeal and a motion for an
administrative stay, which the D.C. Circuit granted.
Rest Haven was not a party to this litigation.
In light of the FAA’s approval of the airport layout
plan and the claims pending before the D.C. Circuit,
the district court issued an order to show cause why
certain parties and claims should not be dismissed.
Given that the Rest Haven Cemetery had by then been
excluded from the OMP and that the City was not
challenging this step, the district court suggested that
Rest Haven should voluntarily dismiss itself from the
suit. The district court also ordered the Plaintiffs to
show cause why Mayor Daley should noi be dismissed
from the suit, because suing him in his official capacity
and suing the City of Chicago amounted to the same
thing. The district court also questioned its
jurisdiction to review claims asserted against the FAA
involving the ROD.
Before the district court issued its show cause order,
however, the FAA informed the D.C. Circuit that it
planned to award the City the $363 million in
discretionary funds it had requested to begin the
implementation of the first phase of the OMP. It made
2 ae
13a
this announcement despite the fact that it had not yet
formally rendered a decision granting the City’s
request. The City argued that in the absence of the
FAA’s final order rendering a decision on funding, the
court was without jurisdiction to consider Plaintiffs’
NEPA and RFRA claims. On October 25, 2005, the
D.C. Circuit denied St. John’s and the Municipal
Plaintiffs’ emergency motion for a stay pending appeal,
determining that they had not demonstrated either the
irreparable injury or the likelihood of success on the
merits required for the issuance of a stay pending
review. At that point, the court did not address the
jurisdictional question.
On October 26, 2005, St. John’s and the Municipal
Plaintiffs returned to the district court and filed a
motion for leave to file a second amended complaint.
Rest Haven was not listed as a party to the motion for
leave to file the second amended complaint. The
proposed second amended complaint included a claim
that the FAA had violated the Freedom of Information
Act (FOIA), 5 U.S.C. § 552, et seq., when it allegedly
ignored the Plaintiffs’ requests for documents relating
to O’Hare’s expansion. On October 31, 2005, St. John’s
filed a motion for a temporary restraining order and a
motion for a preliminary injunction, seeking to halt all
action on the City’s part while all these challenges
were pending. The district court entered a temporary
restraining order as it reviewed these motions.
After filing these motions in district court, the
Plaintiffs then filed a docketing statement of issues in
the D.C. Circuit. In addition to the claims they raised
against the FAA before the district court, Plaintiffs
14a
asked the D.C. Circuit to decide whether it was
improper for the FAA to fail to rule on Chicago’s
funding applications, whether the FAA had issued an
unlawful ROD, and whether their First Amendment
and RFRA claims were entitled to de novo review of
disputed factual questions in an Article III court.
At that juncture, the district court dismissed Rest
Haven from the litigation. Because the City no longer
planned to acquire the Rest Haven Cemetery, and
because Rest Haven did not present any argument
explaining why or how it might be affected by either
_ the City’s or the FAA’s actions in their response to the
order to show cause, the district court held that its
claims were moot. The court also dismissed Mayor
Daley from the litigation, concluding that the Plaintiffs
had not responded to the issue it raised in the order to
show cause (whether it was redundant to sue both the
City and the Mayor in his official capacity). The
Plaintiffs do not challenge the dismissal of Mayor
Daley from this suit on appeal.
With respect to St. John’s religious claims against the
City, the district court concluded that the Plaintiffs
failed to state a claim upon which relief could be
- granted under the Free Exercise Clause or the Equal
Protection Clause. It found that the OMA was
constitutional on its face and that there was no
indication that any of the City’s proposed actions were
motivated by St. John’s religious affiliation. - The
district court also denied St. John’s motion for leave to
file a second amended complaint with respect to these
claims, finding them to be similarly lacking.
Additionally, the district court dismissed all counts of
l5a
the complaint that pertained to RLUIPA, concluding
that the City’s plan to condemn the St. Johannes
Cemetery was noi a “land use” regulation as
contemplated by that statute.
The district court also dismissed the bulk of
St. John’s and the Municipal Plaintiffs’ claims against
the FAA and its administrator. It concluded that it
lacked jurisdiction to review challenges to the FAA’s
actions concerning the ROD because under 49 U.S.C.
§ 46110, those claims fell within the _ exclusive
jurisdiction of the court of appeals. Indeed, as the
court recognized, the D.C. Circuit was already
considering these claims. After dismissing these
claims, all that remained was St. John’s and the.
Municipal Plaintiffs’ FOIA claim, for which the district
court granted the motion for leave to file a second
amended complaint. Given the dismissal of virtually
all of the Plaintiffs’ claims against the City and the
FAA, the district court vacated the temporary
restraining order and denied the motion for a
preliminary injunction as moot. Plaintiffs have
appealed from that decision. See 280U.S.C.
§ 1292(a)(1).
II
We review de novo the district court’s grant of a
motion to dismiss under Rule 12(b)(6) for failure to
state a claim upon which relief can be granted,
accepting as true “all of the factual allegations
contained in the complaint.” Erickson v. Pardus,.
127S. Ct. 2197, 2200 (2007) (quoting Bel/ Atlantic
Corp. v. Twombly, 1278S. Ct. 1955, 1965 (2007)). We
16a
may affirm the dismissal only if the complaint fails to
set forth “enough facts to state a claim to relief that is
plausible on its face.” Bel] Atlantic, 127 S. Ct. at 1974. °
As we held in Azrborne Beepers & Video, Inc. v.
AT&T Mobility LLC, 2007 WL 2406859 (7th Cir.
Aug. 24, 2007), a district court should dismiss a
complaint if “the factual detail... [is] so sketchy that
the complaint does not provide the type of notice of the
claim to which the defendant is entitled under Rule 8.”
Id. at *5. A district court’s decision whether to allow a
party to file a second amended complaint, however, is
reviewed for abuse of discretion. See Doherty v. Davy
Songer, Inc., 195 F.3d 919, 927 (7th Cir. 1999).
With respect to the district court’s decision that St.
John’s motion for a preliminary injunction is moot, we
review the court’s “findings of fact for clear error, its
balancing of the factors for a preliminary injunction
under the abuse of discretion standard, and its legal
conclusions de novo.” Linnemeir v. Bad. of Trs. of
Purdue Univ., 260 F.3d 757, 761 (7th Cir. 2001). In
assessing whether a preliminary injunction is
warranted, we must consider whether the party
seeking the injunction has demonstrated that “1) it has
a reasonable likelihood of success on the merits; 2) no
adecuate remedy at law exists; 3)it will suffer
irreparable harm if it is denied; 4) the irreparable
harm the party will suffer without injunctive relief is
greater than the harm the opposing party will suffer if
the preliminary injunction is granted; and 5) the
preliminary injunction will not harm the _ public
interest.” Jd.
17a
Il
Before turning to the merits, we must address two
jurisdictional issues that the Municipal Plaintiffs and
Rest Haven have raised. The first is whether the
district court erred in dismissing with prejudice all
claims brought by Rest Haven as moot, because the
City no longer plans to acquire that cemetery. Second
is the question whether the district court correctly
dismissed the Municipal Plaintiffs’ claims against the
FAA for lack of jurisdiction based upon 49 U.S.C.
§ 46110. We review de novo the district court’s grant of
a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure
12(b)(1), which includes a dismissal on mootness
grounds. See, eg. Franzoni v. Hartmarx Corp., ©
300 F.3d 767, 771 (7th Cir. 2002). “When reviewing a
dismissal for lack of subject matter jurisdiction, we
note that a district court must accept as true all well-
pleaded factual allegations and draw all reasonable
inferences in favor of the plaintiff.” Long v. Shorebank
Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). In
considering such a motion, “[t]he district court may
properly look beyond the jurisdictional allegations of
the complaint and view whatever evidence has been
submitted. on the issue to determine whether in fact
subject matter jurisdiction exists.” Jd.
A. Rest Haven
At the beginning of the EIS process, the City
submitted to the FAA a proposed revision to its airport
layout plan that included the construction of a runway
in an area that would require the relocation of existing
18a
air cargo facilities. In that proposed plan, the City
indicated that it wanted to move these facilities to the
site that is currently the Rest Haven Cemetery. The
FAA concluded in its final EIS, however, that it would
be possible to relocate the air cargo facilities without.
disturbing Rest Haven. Ultimately, on September 29,
2005, the FAA issued its ROD approving a revised
airport layout plan “that depictled] cargo building
repositioning, but also showled] that Rest Haven
Cemetery wiould] remain in private ownership.” The
ROD also reaffirmed that there would be no basis for
the mandatory reinterment of bodies at Rest Haven,
and it assured that the cemetery would “remain
available for future burials, and for visitation and care
of the-graves by members of the public.” This convinced
the district court that there was no longer a live
controversy among Rest Haven, the City, and the FAA;
it therefore dismissed all counts brought by Rest.
Haven in the first amended complaint with prejudice.
Like the district court, we see no reason why Rest
Haven should not be dismissed from this litigation.
Under Article III, § 2 of the United States Constitution,
federal court jurisdiction is limited to “actual, ongoing
- controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988).
“(W]hen the issues presented are no longer ‘live’ or the
parties ‘lack a legally cognizable interest in the
outcome,” the case is (or the claims are) moot and must
be dismissed for lack of jurisdiction. Powell v.
McCormack, 395 U.S. 486, 496 (1969); see also Stotts v.
Cmty. Unit. Sch. Dist. No. 1, 230 F.3d 989, 990-91.
(7th Cir. 2000). The fact that Rest Haven at-one point
was entitled to pursue this action makes no difference.
19a
In order to. satisfy Article III's jurisdictional
requirements, “[tlhe requisite personal interest that
must exist at the commencement of the litigation
(standing) must continue throughout its existence
(mootness).” Arizonans for Official English v. Arizona,
520 U.S. 43, 68 n.22 (1997) (quoting United States
Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980)).
As of July 2005, “the dispute between thelse] parties no
longer rages”; in fact, the FAA granted Rest Haven
precisely the relief it wanted—the agency approved a
layout plan that leaves it alone. AHolstein v. City of
Chicago, 29 F.3d 1145, 1147 (7th Cir. 1994). In fact,
the ROD goes one step further: it requires the City to -
provide a road to the cemetery to allow continued
access to its grounds and to ensure that its daily
activities are not unduly disturbed by the surrounding
construction. Once a plaintiffs entire demand is
satisfied, “there is no dispute over which to litigate,
and a plaintiff who refuses to acknowledge this loses
outright, under FED. R. CIV. P. 12(b)(1), because he
has no remaining stake.” Aand v. Monsanto Co.,
926 F.2d 596, 598 (7th Cir. 1991); see also North
Carolina v. Rice, 404 U.S. 244, 246 (1971) (noting that
a case becomes. moot when a court’s decision can no
longer affect the rights of litigants in the case before it
and would be nothing but an advisory opinion on
hypothetical facts).
In response to the district court’s order to show cause
why its claims should not be dismissed, Rest Haven
complained that it was uncomfortable without an
enforceable court order providing that “Chicago will
preserve and leave forever undisturbed the graves of
20a
the departed at Rest Haven,” as well as an order
requiring Chicago to “guarantee the Rest Haven
_ plaintiffs continued access to the Rest Haven
Cemetery.” In its reply brief here, Rest Haven concedes
that the City’s representation that it will not acquire
Rest Haven Cemetery “may moot the claim for
injunctive relief.” See Brown v. Bartholomew Consol.
Sch. .Corp., 442 F.3d 588, 596 (7th Cir. 2006) (‘In an
action seeking only injunctive relief . . . once the threat
of the act sought to be enjoined dissipates, the suit
must be dismissed as moot.”). At oral argument,
however, Rest Haven appeared to defend the necessity
of the order it requested on the ground that, without
such an order, the City might unilaterally terminate its
agreement not to condemn Rest Haven. This fear is
motivating some of Rest Haven’s religious adherents to
bury their loved ones elsewhere out of fear of future
disinterment.
If the City could change its mind at any time, Rest
Haven might have a point. But that is not the case
here. There is no indication on this record that the
City has the authority to modify the airport layout plan
without FAA approval. As the City represented at oral
argument, it took approximately four years for the FAA
to approve the plan at issue, and the City has no
immediate intention to seek modification of the
approved airport layout plan in favor of one that
requires it to condemn the Rest Haven Cemetery. To
the contrary, the City stated that it is quite eager to
implement the approved plan. Rest Haven’s fear that
the City may one day change its mind and seek to
acquire its cemetery is rooted in nothing but
2la
speculation. In order to satisfy Article III's
justiciability requirements, “(t]he injury or threat of
injury must be both real and immediate, not
conjectural or hypothetical.” O’Shea v. Littleton,
414 U.S. 488, 494 (1974). If and when the day comes
when the City or some other governmental entity
wants to condemn the Rest Haven Cemetery, Rest
Haven will have ample opportunity to defend itself
before all appropriate tribunals.
If what Rest Haven wants is a perpetual injunction
against the City requiring it to leave its cemetery
undisturbed until the end of time, it is overreaching.
The power of eminent domain is a fundamental power
of government, and a court cannot restrict future
governmental authorities from its proper use.
Moreover, any injunction issued by a court of equity is
itself subject to later modification. See Rufo v. Inmates
of Suffolk County Jail, 502 U.S. 367 (1992); New York
State Assn for Retarded Children Inc. v. Carey,
706 F.2d 956, 967 (2d. Cir. 1983) (“The power of a court
of equity to modify a decree of injunctive relief is long-
established, broad, and flexible.”). Courts grant
injunctive relief with the understanding that there will
be an “opportunity for modifying or vacating [the]
injunction when its continuance is no _ longer
warranted.” Milk Wagon ODrivers Union v.
Meadowmoor Dairies, 312 U.S. 287, 298 (1941).
Neither the district court nor this court is empowered
to enjoin the City from ever seeking to acquire Rest
Haven’s property, no matter what the reason. Rest
Haven also indicated at oral argument that it would be
satisfied with a court order finding as a fact that there
22a
would be a substantial burden to its First Amendment
rights in the event of a future taking. This will not do.
In the absence of a live controversy, such an order
would be no more than an advisory opinion, which, as
we are sure Rest Haven knows, federal courts are
without constitutional authority to issue.
Rest Haven also argues that its claims are not moot
because it wants a declaratory judgment establishing
that OMA’s amendment to IRFRA violates the First
Amendment and the RLUIPA. This, at least, looks
more like an ongoing controversy. Because Rest Haven
did not advance this argument either before the district
court or in its opening brief, however, we consider it
waived. See Nelson v. LaCrosse County Dist. Attorney,
301 F.3d 820, 836 (7th Cir. 2002) (arguments raised for
the first time in the reply brief are waived). Waiver or
forfeiture aside, the argument has no merit. Even
though someone may be affected by the IRFRA
amendment, that “someone” is no longer Rest Haven,
and it is well established that the “case or controversy”
requirement applies to declaratory judgments, just as
it apphes to every other kind of litigation in federal
court. See Powell, 395 U.S. at 518 (“The availability of
declaratory relief depends on whether there is a live
dispute between the parties. . . .”); see also Tobin for
Governor v. Ill. State Bd. of Elections, 268 F.3d 517,
528 (7th Cir. 2001) (noting that a claim for declaratory
judgment was moot where “relief . . . would have no
impact on the parties to thle] suit”). —
23a ;
B. Municipal Plaintiffs and Rest Haven: FAA Claims
The district court also found that it lacked
jurisdiction to review the Municipal Plaintiffs’ and Rest
Haven’s claims against the FAA because these claims
fell within the exclusive jurisdiction of the court of
appeals under 49 U.S.C. § 46110. After dismissing
Rest Haven from the litigation, the district court
decided that it lacked jurisdiction to review the claims
against the FAA that related to the issuance of the
ROD. Because Rest Haven was not a party to this
complaint, it has no “personal stake” in the appeal of
the district court’s denial of St. John’s and the
Municipal Plaintiffs’ motion for leave to file a second
amended complaint on this ground. See, e.g., Freedom
from Religion Foundation, Inc. v. Bugher, 249 F.3d
606, 609 (7th Cir. 2001) (Under Article III, only a
-plaintiff with a personal stake in a case or controversy
has standing.”). Even if Rest Haven were a party to
the second amended complaint and its claims were not
moot, the district court would still lack jurisdiction to
review either Rest Haven’s or the Municipal Plaintiffs’
claims against the FAA. The jurisdictional language in
49 U.S.C. § 46110 coud not be plainer. It says that
a person disclosing a substantial interest in an
order issued by . . . the Administrator of the
Federal Aviation Administration with respect to
aviation duties and powers designated to be
carried out by the Administrator . . . in whole or
in part under this part [or] part B . . . may apply
for review of the order by filing a petition for
review in the United States Court of Appeals for
the District of Columbia Circuit or in the court of
‘g
eS
4
BS.
hire
a
oa
Me
.
3
5
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24a
appeals of the United States for the circuit in
which the person resides or has its principal
place of business.
49 U.S.C. § 46110(a). “Part B” refers to the Airport
Development and Noise provisions of the same subtitle,
see 49 U.S.C. § 47107, et. seg., which include the
provision that grants the FAA the authority to review
airport layout plans. See 49 U.S.C. § 47107(a)(16).
The statute goes on to provide that the court of appeals
has “exclusive jurisdiction to affirm, amend, modify or
set aside any part of the order.” 49 U.S.C. § 46110(a).
The Plaintiffs’ arguments urging that the district
court had the authority to consider these claims are
without merit. First, Rest Haven argues that the
federal RFRA, which Rest Haven claims the FAA has
violated, commands that contested issues of fact
pertaining to violations of that statute be tried in the
federal district court. In support of this claim, they cite
§ 2000bb-1(c) of the Act, which provides that a person
alleging a violation of RFRA “may assert that violation
as a claim or defense in a judicial proceeding” and that
standing to assert such a claim is “governed by... .
article III of the Constitution.” Plaintiffs urge that this
language means that they are entitled to an Article III
proceeding in which to resolve disputed issues of fact.
Even assuming that Rest Haven’s claims are not moot,
however, the statute says nothing about exclusive
jurisdiction of district courts to find facts in RFRA
cases. Review of an agency action in the court of
appeals surely qualifies as an Article III judicial
proceeding. Nothing in RFRA purported to repeal the
authority of federal administrative agencies to find
25a
facts, subject to review by the courts of appeals; there
was no silent elimination of the judicial review
provisions of the Administrative Procedures Act. See
.5U.S.C. § 706. Furthermore, the fact that Rest
Haven’s claims against the FAA include allegations
that the FAA violated the Constitution does not allow
it to “bypass the administrative process” because “[t]he
effect would be that important and _ difficult
constitutional issues would be decided devoid of factual
content.” Gaunce v. DeVincentis, 708 F.2d 1290, 1293
(7th Cir. 1983) (holding that exclusive jurisdiction
rested in the court of appeals in a case in which a pilot
challenged an FAA order revoking her flight certificate
on due process grounds); see also Thunder Basin Coal
Co. v. Reich, 510 U.S. 200, 215-16 (1994) (indicating
that while the “[a]djudication of the constitutionality of
congressional enactments has generally been thought
beyond the jurisdiction of administrative agencies,”
such a “rule is not mandatory,” particularly when a
plaintiffs “statutory and constitutional claims can
meaningfully be addressed in the Court of Appeals”)
(internal citations omitted).
As further support for their argument that their
claims against the FAA should be heard by the federal
district court, both Rest Haven and the Municipal
Plaintiffs contend that the misconduct of various FAA
administrators made it impossible to develop the type
of factual record necessary for meaningful appellate
review. The Plaintiffs charge that the FAA has
developed a compensation program that provides
monetary rewards for FAA officials who make decisions
that allow the construction of new runway projects:
26a
that former Chicago employees (who had worked on
previous O’Hare expansion projects) are currently FAA
officials and employees; and that these administrators
withheld thousands of documents that are not a part of
the appellate record. Without the ability to present
their claims to the district court, they fear, they will be
stuck with the outcome of these tainted proceedings.
Appellate courts, however, are certainly competent to
hear a party’s argument that there were flaws in due
process at the agency level and remand the case to the
agency with instructions to correct these problems.
Additionally, any plaintiff can make an argument to
the court of appeals that there were problems with the
creation of the record before the administrative agency
and thus in the record on appeal. See FCC v. ITT
- World Commc‘ns, Inc., 466 U.S. 463, 468-69 (1984) (“If,
however, the Court of Appeals finds that the
administrative record is inadequate, it may remand to
the agency, see Harrison v. PPG Indus., Inc.
446 U.S. 578, 593-94 (1980), or in some circumstances
refer the case to a special master, see 28 U.S.C.
§ 2347(b)(3).”). In fact, Plaintiffs made these
arguments before the Court of Appeals for the D.C.
Circuit, which rejected them. See Bensenville, 457
F.3d at 72-73.
Lastly, Plaintiffs argue that the district court at least
has jurisdiction over their NEPA claims, pursuant to
40 C:F.R. § 1506.1. That regulation provides that
“{ulntil an agency issues a record of decision . . . no
action concerning the proposal shall be taken which
would [hlave an adverse environmental impact: or
(llimit the choice of reasonable alternatives.” According
27a
to Plaintiffs, the FAA has not made a substantive
funding decision about the disposition of certain
passenger facility charges (PFC) that amount to more
than one billion dollars. This is money that the City
needs to facilitate Phase One of the OMP. Without the
federal money, the City cannot proceed with the
implementation of Phase One, which includes the
acquisition of land from the Municipal Plaintiffs.
Plaintiffs argue that the City is attempting to subvert
the requirements of NEPA by adhering to a policy of
“destruction before decision,” in disregard of this
court’s ruling in Old Town Neighborhood Ass'n v.
Kauffman, 333 F.3d 732 (7th Cir. 2003), disapproving
such a strategy. The district court decided that it had
no jurisdiction over this claim either. 7
Perhaps because events continue to unfold, the
Plaintiffs’ argument in this respect seems to have
unraveled. The regulation to which Plaintiffs refer
prohibits action in the absence of an agency’s issuance
of a ROD. Here, though, the ROD and the
accompanying EIS have been issued. More than that,
in an agreed order between these parties, the City
stipulated that it “[would] not acquire property in the
Village of Bensenville and Elk Grove Village for the
OMP, or acquire the Rest Haven or St. Johannes
' Cemeteries, unless and until’ the FAA has issued a
Record of Decision following completion of an EIS for
the OMP.” At oral argument the FAA directed the
Court’s attention to § 12.3 of the ROD where the FAA
made specific factual findings on the airport layout
plan’s effect on natural resources, in compliance with
49 U.S.C. § 47106(c)(1)(B). Plaintiffs contend that this
28a
does not do the job, because while environmental
findings have been made with respect to the airport
layout plan, those findings did not focus on the specific
project for which the City is seeking funding—the
Phase One Project. Based on our reading of the record,
however, the Phase One Project is a part of the airport
layout plan for which the City has received FAA
approval. Furthermore, the regulation does not
prohibit action until the FAA has made a// decisions
with respect to funding; it says only that no action can
be taken before the issuance of the ROD, which we now
have. If these Plaintiffs wanted to challenge the
environmental findings made by the FAA, they
certainly could: have included those claims in the
petition for review. of the ROD that they filed in the
D.C. Circuit... -
This shows Plaintiffs’ NEPA challenge for what it is:
a matter so intertwined with the ROD that it falls
within the exclusive jurisdiction of the court of appeals.
If we needed further reassurance on the point, we have
it in the fact-that Plaintiffs actually made the identical
argument about NEPA -compliance im _ their
presentation to the D.C. Circuit. There, they argued
that the FAA violated NEPA by issuing a ROD that
approved of ‘the airport layout plan without making
any formal funding decisions. Before the district court
and on appeal here, they argue that the FAA is
violating NEPA by allowing the City to proceed with
the acquisition of property in these villages before a
funding decision has been made. Even if we did not
think that this'issue was under the court of appeals’
exclusive jurisdiction, we do not think it wise to allow
29a
either the Municipal Plaintiffs or Rest Haven to litigate
the same issues, either concurrently or seriatim, in
separate federal courts.
IV
We turn now to St. John’s part of this case. The first
question is whether St. John’s is entitled, as a matter
of state law, to the protection afforded by the Illinois
Religious Freedom Restoration Act, 775 ILCS 35/30. If
the OMA’s amendment of IRFRA can withstand legal
challenge, then the answer must be no; if not, then
St. John’s may have a point. Before the district court,
St. John’s argued that the OMA’s amendment of
IRFRA violated the Free Exercise Clause of the First
Amendment. The Free Exercise Clause prohibits the
government from “placling] a substantial burden on the
observation of a central religious belief or practice”
without first demonstrating that a “compelling
governmental interest justifies the burden.” Hernandez
v. CIR. 490 U.S. 680, 699 (1989). In Employment
Division v. Smith, 494 U.S. 872 (1990), however, the
Supreme Court held that neutral laws of general
applicability do not run afoul of the Free Exercise
Clause, even if these laws have the incidental effect of
burdening a religious practice. Jd. at 883; see also
Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 531-32 (1993). In order. to
determine whether a law is neutral, as the Court used
the term in Smith, we must examine the object of the
law. A law is not neutral if “the object of the law is to
infringe upon or restrict practices because of their
religious motivation.” Lukumi, 508 U.S. at 533. The
related principle of “general applicability” forbids the
30a
government from “impos[ing] burdens only on conduct
motivated by religious belief’ in a “selective manner.”
Id. at 543; see also id. at 531 (“Neutrality and general
applicability are interrelated, and failure to satisfy one
requirement is a likely indication that the other has
not been satisfied.”).
The Illinois legislature passed IRFRA in 1998 in
response to both Smith and the Supreme Court’s
subsequent invalidation (as applied to the states) of the
federal Religious Freedom and Restoration Act of 1993
(RFRA), 42 U.S.C. § 2000bb, et.seg. See City of Boerne
v. Flores, 521 U.S. 507 (1997) (holding that RFRA, as it
applied to the states and their subdivisions, exceeded
Congress’s remedial powers under the Fourteenth
Amendment). RFRA had been Congress’s attempt to
impose what it understood to be the pre-Smith
“compelling interest test” to state measures affecting
religious practices. Under RFRA, a governmental unit
could not “substantially burden a person’s exercise of
religion even if the burden resultled] from a rule of
general applicability . . . unless [the government’s
action was] in furtherance of a compelling
governmental interest and [was] the least restrictive
means of furthering that .. . interest.” 42 U.S.C.
§ 2000bb-1; see also Sherbert v. Verner, 374 U.S. 398
(1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).
Since the holding of Boerne was predicated on the
scope of Congress’s powers under section 5 of the
Fourteenth Amendment, the Illinois legislature
reasonably concluded that Boerne said nothing about
its own ability under Illinois’s Constitution to enact a
measure affording special protection to religion. It did
sla
so in IRFRA, using language that mirrors that of the
federal RFRA. See 775 ILCS 35/15 (“Government may
not substantially burden a person’s exercise of religion,
even if the burden results from a rule of general
_ applicability, unless it demonstrates that application of
the burden to the person (i)is in furtherance of a
compelling governmental interest and (ii) is the least
restrictive means of furthering that compelling
governmental interest.”). The legislation was expressly
designed to afford greater protection to religious
activity in Illinois than Smith holds is required under
the federal Constitution. The legislature acted again in
the OMA, however, taking back part of what IRFRA
gave: it put religious institutions on the same footing
as all other property owners for purposes of the O’Hare
project. The OMA accomplishes this goal by adding a
new § 30 to IRFRA; the new section states that nothing
in IRFRA “limit[s] the authority of the: City of Chicago
to exercise its powers under the [OMA] for the purpose
of relocation of cemeteries or graves located therein.”
775 ILCS 35/30. As St. John’s points out, the OMA
also mentions cemeteries in § 92, which amends the
Illinois Municipal Code, 65 ILCS 5/11-51-1, by allowing ©
the City to remove cemetery remains for airport
expansion without the assent of cemetery trustees or
owners.
According to St. John’s, a major tenet of its religious
beliefs is that the remains of those buried at the
St. Johannes Cemetery must not be disturbed until
Jesus Christ raises these remains on the day of
Resurrection. It asserts therefore that the City’s plan
to acquire and con¢emn the cemetery is a “sacrilege to
32a
[its] religious faith.” We accept those representations.
St. John’s continues with a claim that the OMA
impermissibly targets the religious cemeteries adjacent
to O'Hare, stripping them of the protection under
IRFRA that is afforded to every other religious
institution, including other religious cemeteries, in
Illinois. The district court decided, however, that this
was the wrong perspective: it saw no discrimination or
targeting of religious institutions because any property,
religious or otherwise, within the area designated for
O’Hare expansion is subject to the extraordinary
powers conferred in the OMA. It therefore dismissed
_ all counts in the first amended complaint that asserted
a free exercise violation and similarly denied the
motion for leave to file a second amended complaint
with respect to the free exercise claims, concluding that
the Plaintiffs failed to state any free exercise claim on
these facts.
Throughout these proceedings, St. John’s has insisted
that the relevant comparison is between the two
cemeteries potentially affected by the O’Hare project —
and all other cemeteries or religious properties in the
state. But this assumes the answer to the crucial
question: what is the proper comparison to make?
Lukumi requires us to approach that question by
asking whether the object of the OMA was “to infringe
upon or restrict practices because of their religious
motivation.” 508 U.S. at 533. In looking at OMA, we
2 Our dissenting colleague answers this critical question in
St. John’s favor. For the reasons we set forth in the discussion
that follows, we conclude that the City has the better of the
argument.
33a :
must consider the act as a whole, as well as the part
that the new § 30 of IRFRA (added by § 96 of the OMA)
plays in it.
We begin, as Lukumi instructs, with the text of the
OMA.. As we noted earlier, the new § 30 of IRFRA says
simply “Nothing in this Act limits the authority of the
City of Chicago to exercise its powers under the O’Hare
Modernization Act for the purposes of relocation of
cemeteries or the graves located therein.” In our view,
this language does not “refer ] to a religious practice
without a secular meaning discernible from the
language or context.” Lukum, 508 U.S. at 533. Some
cemeteries are affiliated with religious sects, others are
not; even graves in cemeteries with a. religious
affiliation may be relocated because of natural
necessity, for public health concerns, after a hurricane
or flood, or for many other private or public reasons.
We conclude there is nothing inherently religious about
cemeteries or graves, and the act of relocating them
thus does not on its face infringe upon a religious
practice, as Lukumi uses that term. (We acknowledge
the fact that the OMA addresses only cemeteries that
are entitled to invoke the protections of IRFRA, but
that is only because secular cemeteries presumably
would have no extraordinary defense to the power of
eminent domain to begin with.) We note in this
connection that the Supreme Court held in Lukumi
that the words “sacrifice” and “ritual” were not so
closely associated with religious practice that a finding
of facial non-neutrality was compelled. Jd. at 534. If
that was the case there, then it is straightforward here |
to conclude that the OMA is facially neutral.
34a
Even if a law passes the test of facial neutrality, it is
still necessary to ask whether it embodies a more
subtle or masked hostility to religion. See, e.g., Gillette
v. United States, 401 U.S. 437, 452 (1971) (indicating
that the Free Exercise Clause “forbids subtle
departures from neutrality”); see also Bowen v. Roy,
476 U.S. 693, 703 (1986) (noting that the First
Amendment prohibits the government from engaging
in the “covert suppression of particular religious
beliefs”). To answer that question, we must look at
available evidence that sheds light on the law’s object,
including the effect of the law as it is designed to —
operate, the “historical background of the decision
under challenge, the specific series of events leading to
the enactment or official policy in question, and the
[act’s] legislative or administrative history.” Lukumi,
508 U.S. at 540. Perhaps the most important of these
‘sources is the remainder of the statute of which the
new § 30 is a part. The OMA in its entirety is the law
that the Illinois General Assembly passed; by relying
on it we do not run the risk of selective use of
statements in legislative history that might not reflect
the intent of the legislature. The Supreme Court took
. this approach when it reviewed the Free Exercise and
Establishment Clause claims in Locke v. Davey,
540 U.S. 712 (2004). There, although the petitioner
challenged only the specific statutory provision of a
scholarship program that prohibited recipients from
pursuing post-secondary degrees in theology, the Court
observed that “the entirety of the Promise Scholarship
Program goes a long way toward including religion in
its benefits.” Jd. at 724 (emphasis added).
35a
Although St. John’s alleges in its complaint that the
City targeted its religious rights when the City asked
the Illinois General Assembly to amend IRFRA as part
of the OMA, in reviewing the sufficiency of the
complaint “we are not obliged to accept as true legal
conclusions or unsupported conclusions of fact.” Hickey
v. O'Bannon, 287 F.3d 656, 658 (7th Cir. 2002). There
are simply no facts in the voluminous record onsappeal
that support any such claim of targeting religious
institutions or practices. According to its stated
purpose, the OMA was enacted, in part, to insure that
“legal impediments to the completion of the [O’Hare]
project be eliminated.” OMA § 5(b). As we noted
earlier, most of the OMA’s provisions have absolutely
nothing to do with religion, cemeteries, or IRFRA. See,
e.g., id. § 20 (prohibiting local government units, other
than the City of Chicago, from condemning property
that is slated to become part of O’Hare); id. § 94
(amending the Illinois Aeronautics Act, 620ILCS
5/38.01, to exempt project applications under the
provisions of the Airport and Airway Improvement Act
submitted in connection with the OMP from the
general requirements for such applications); id. § 95
(amending the Illinois Code of Civil Procedure to
include a quick-take provision for property condemned
for the OMP). In fact, the record as a whole strongly
supports the position the City has urged throughout
these proceedings: the OMA was designed to remove
any and all state-law based impediments to the O’Hare
expansion project, no matter what their source.
St. John’s makes the obvious point that, as matters
have developed, it is now the only cemetery in the
36a
State of Illinois affected by the new § 30 of IRFRA.
That is true, but an “adverse impact will not. always
lead to a finding of impermissible targeting.” Lukumi,
' 5608 U.S. at 535. In fact, if this point matters at all, it .
may cut in favor of the City. As St. John’s repeatedly
mentions in its brief, no other religious cemetery in
Illinois, including other cemeteries similarly affiliated
with the United Church of Christ, is affected by the
OMA. The fact that the legislation leaves other
religious cemeteries untouched (including those
affiliated with churches or other religious institutions
that hold similar beliefs with respect to burial grounds)
reinforces the proposition that the legislature had the
nondiscriminatory purpose of clearing all land needed
for O’Hare’s proposed expansion. If there were ten
cemeteries in that area, then the new § 30 would apply
to all ten; while there were two, it applied to both. We
conclude that the OMA, including the portion that
amends IRFRA, is a neutral law of general
applicability. The Illinois legisiature was entitled to
restore Illinois law to the regime governed by Smith in
order to facilitate the airport project.
Although we think it unnecessary to ask whether the
plan passes the strict scrutiny test, and whether the
‘ City has shown that it is the least restrictive means of
furthering a compelling governmental interest, we add
for the sake of completeness that we agree with the
FAA’s conclusion in the ROD that the plan passes
muster. Unlike our dissenting colleague, we see no
disputed issues of material fact that would require
further proceedings.
37a
Virtually all involved parties, from the competent
committee in Congress, to the FAA, to the State of
Illinois, to the City of Chicago, have made a compelling
case that the OMP addresses a serious problem with
national—indeed international—consequences. O’Hare
is a vital transportation link for the Midwest region, for
North America, and for the world. It is the only airport
in the United States that is the hub of two major
airlines. Serving 47 scheduled passenger airlines and
23 cargo carriers, O’Hare provides nonstop service to
127 domestic and 48 international destinations. In
part because Chicago is the largesc population and
economic center in the middle of the country, O’Hare.
“plays an important role in the National Airspace
System (NAS) as a dual airline hub, a major mid-
continent market for nearly every major airline, and ¢ a
key international gateway.”
O’Hare is not only one of the busiest airports in the
world. Unfortunately, recently it has also become one
of the most congested. Its delay record is at least twice
as bad as that of the next two airports that suffer from
excessive delays, Atlanta and Newark. Nearly 70,000
airport operations at O’Hare were delayed in 2004, for
a total of almost 4,000,000 minutes. As the OMA
states, “The reliability and _ efficiency of air
transportation for residents and businesses in Illinois
and other States depend on efficient air traffic
operations at O’Hare.” 620 ILCS 65/5. Approximately
51% of total passengers traveling through O’Hare
connect to and. from other airports. As a major
international gateway, the effects of the congestion at
O’Hare are far-reaching. Delays at O'Hare spark
38a
further delays around the country and the world, with
serious economic and logistical consequences.
According to the ROD, “O’Hare has consistently been
the number one problem related to delays with the
National Airspace System in the United States today.”
Moreover, the problem seems unlikely to abate; the
FAA believes that “[alir traffic at O’Hare is projected to
increase in the future from some 31 million passengers
and 922.787 operations in 2002 to some 50 million
passengers and 1,194,000 operations by 2018.” Many
who have tried to connect through O’Hare have learned
the hard way that the airport simply lacks the capacity
to accommodate all the demand for its services. It is
for these reasons that the FAA concluded that the state
interests at stake are compelling and agreed to fund
one of the largest and most costly reconfigurations of
an airport in the United States.
The routes and networks that have developed around
O’Hare are vast and entrenched. The FAA considered
the option of diverting air traffic to other regional
airports or mid-continent hubs, but it found that local,
national and international dependence on O’Hare as a
national connecting hub and international] gateway had
developed to the point of making those ideas effectively
unworkable. To borrow a concept from the “essential
facilities” doctrine in antitrust law, as a practical
matter it is impossible reasonably to duplicate O’Hare
in a way that meets the crushing demand for its
important services. Compare MCI Commc'ns Corp. v.
AT&T Co., 708 F.2d 1081, 1132 (7th Cir. 1983). If the
decision were ours to make (a proposition that we find
doubtful), rather than that of the FAA or the competent
39a
authorities in Chicago and Illinois, we would find that
there really is “no realistic, economically practical
alternative,” City of Malden, Missouri v. Union Electric
Co., 887 F.2d 157, 163 n.6 (8th Cir. 1989), to the
restructuring of O’Hare to remedy those concerns.
Given O’Hare’s unique importance to the national
transportation infrastructure, we are persuaded that
the City and State have a compelling interest in fixing
the problems from which O’Hare suffers.
Even if the need is compelling, if IRFRA applied it
would be necessary to decide whether the OMP is the
least restrictive alternative. St. John’s has offered no
plausible evidence to suggest that it is not. See Bel/
Atlantic, 127 S. Ct. at 1974. The City and its many
partners carefully considered the concerns of the
religious entities in an exhaustive review. They
studied the alternatives thoughtfully, adopted some of
them, and came up with a final plan that represents
the City’s best effort to be solicitous of the religious
concerns involved without substantially undermining
the goals of the overall project. See Bensenville,
457 F.3d at 72 (stating that the FAA “appears to have
acted with great care in conducting its analyses for the
EIS and ROD” in this case). Cf. Lyng v. Northwest
Indian Cemetery Protective Ass’n, 485 U.S. 439, 453-55
(1988) oting that where the government
commissioned a comprehensive study of the effects its
’ proposed road would have on the religious concerns at
issue and had planned numerous ameliorative
measures to mitigate the intrusion as much as
possible, “it is difficult to see how the Government
could have been more solicitous”). The City discarded
40a
_ its original plan to relocate air cargo facilities to the
Rest Haven site, after the FAA concluded that “there is
a measure of flexibility in the design and location of
_ these buildings sufficient to accommodate the religious
liberty interests without impeding the air cargo
component” of the overall plan. Accordingly, Rest
Haven was spared in an effort to tailor the plan in as
accommodating a manner as possible.
Unfortunately, geography, and the needs of the
expansion project made it impossible similarly to
accommodate the St. Johannes cemetery. The FAA’s
review of alternative proposals illustrates, however,
that this conclusion was not reached lightly. The
proposals attempted to minimize encroachment on the
St. Johannes cemetery as much as possible by
considering options that would have shifted, shortened,
or eliminated various runways or other parts of the
overall plan. For example, one alternative called for
moving a key runway about 400 feet to the south and
shortening it to avoid the St. Johannes cemetery. The
FAA found that doing so would have moved the runway
into protected space for a new air control tower that
could not be moved without running afoul of FAA
safety standards. According to the ROD, the ultimate
result would have “compromisled]. the efficiency and
capacity of [other] runways in poor weather.” The ROD
noted that the responses to these concerns
“demonstrate [d] an unfamiliarity with the real-world
situation of operating a major airport in both a safe
and efficient manner.” Another proposal suggested
simply shortening the runway without moving it to
another part of the airport. The FAA found that this .
4la
alternative would “place severe operating constraints
on the airfield any time weather conditions presented a
ceiling below 4,500 feet and less than 7 miles of
visibility” which “would not accommodate anticipated
growth in aviation activity at acceptable levels of
delay.” :
More creative possibilities were considered as well,
such as simply constructing a necessary runway on the
surface of the cemetery ground without disturbing the
bodies underneath. Even though this would have made
access to and future use of the cemetery impossible and
may also have offended religious sensibilities, some
thought that this proposal was less restrictive because
the bodies would remain untouched. The FAA
consulted the Tennessee Valley Authority, a federal
agency with considerable experience in cemetery
relocation (derived over many years of building hydro-
power facilities in areas where cemeteries were
located), about this idea. The concept proved to be
infeasible as a matter of engineering. The FAA
concluded that “the depth of excavation needed for
runway construction, along with the ancillary activities
such as electrical cabling for airfield runway lighting
and storm sewer pipes for airfield drainage, presented
a substantial likelihood that the graves could be
disturbed.”
It is significant that this case involves physical
intrusion on a religious site, not the curtailment or
prohibition of a religious practice. The least restrictive
alternative analysis here comes down to concrete
measurements. The question is whether there is a way
to construct the vitally needed new runways and
42a
supporting structures at O’Hare—a defined physical
space—in a way that limits or avoids entirely physical
encroachment on an adjacent geographical area. An
airport layout and runway configuration is an intricate
web of interrelated parts where placements and
measurements are carefully calibrated to account for
variables such as wake turbulence, weather, and
visibility, as well as the size, speed, and schedules of
departing and arriving aircraft. The entire project is
constrained by demanding FAA standards. As the
ROD explains, “a change in one runway often has
consequences for other runways, nearby taxiways, and
the overall ability to handle greater levels of traffic.”
Each alternative proposal fell victim to that reality.
The City has demonstrated that it has accommodated
the religious concerns as much as is physically possible
without compromising its compelling interests. The
only plausible conclusion that the pleadings support is
that the OMP represents the least restrictive
alternative.
Lastly, St. John’s argues that the district court erred
in concluding that in order to state a free exercise claim
a plaintiff must allege two things: (1) that the
defendant’s actions were motivated by animus or
prejudice, and (2) that the law at issue is not neutral or
of general applicability. The first of these, it asserts, is
precluded by cases such as Shrum v. City of Coweta,
Okla., 449 F.3d 1132 (10th Cir. 2006). There, the
Tenth Circuit observed that “the Free Exercise Clause
has been applied numerous times when government
officials interfered with religious exercise not out of |
43a
hostility or prejudice, but for secular reasons.” /d. at
1144.
With respect, we think that St. John’s has misread
the district court’s opinion. Only after the court
decided that the OMA was a neutral law of general
applicability did it observe that “none of the allegations
in the complaint givels] rise to the inference that the
facially neutral language masks more _ insidious
underpinnings.” This comment reflects the inquiry
required by Lukumi. The district court was not
suggesting that a plaintiff is required to allege animus
or prejudice in order to state a free exercise claim.
In fact, a closer look at ShArum reveals that it is not of
much help to St. John’s. In that case, the plaintiff, a
police officer and minister, alleged that he was
assigned to a day shift precisely because this schedule
would conflict with his ministerial duties. Although
the defendant gave a neutral justification for the
assignment, the plaintiffs allegation was that the
decision to reassign him was “motivated by [plaintiff]’s
religious commitments.” Jd. at 1144. .A question
therefore existed with respect to whether the decision
at issue was actually neutral and of general
applicability; the court had no need to require the
plaintiff also to allege that the assigning officer had
held his faith against him or had acted out of religious
prejudice. The problem was that the assigning officer
wanted to force the plaintiff to choose between his
duties as a police officer and his post as a minister and
“religious discrimination was the means to [that]
entirely secular end... .” Jd. Here, in contrast,
St. John’s does not allege that the City is seeking to
44a
acquire its land because of its religious significance; the
City needs the land in spite ofits current dedication to
religious use. Cf Personnel Adm’. of Mass. v. Feeney,
442 U.S.-256, 279 (1979) (“ ‘Discriminatory purpose,’
however, implies more than intent as volition or intent
as awareness of consequences. It implies that the
' decisionmaker, in this case a state legislature, selected .
or reaffirmed a particular course of action at least in
part ‘because of,’ not merely ‘in spite of,’ its adverse
effects upon-an identifiable group.”) (internal citation
omitted). There are no facts in this record that could
support such a claim.
V
Moving on from its free exercise challenge to the
OMA’s amendment of IRFRA, St. John’s argues that
the OMA violated the Fourteenth Amendment's Equal
Protection Clause when it deprived St. John’s of
constitutional and statutory legal protections that are
available to every other cemetery in the state. The.
district court dismissed this aspect of the case, in both
the original ‘and the second amended complaint, for
failure to state a claim upon which relief could be
granted. The court’s error in this respect, according to
St. John’s, was its failure to review the equal protection
theory using strict scrutiny.
In deciding woether the OMA violates the Equal
Protection Clause, our first question is whether the act
targets a suspect class or addresses a fundamental
right. See Eby-Brown Co., LLC v. Wisc. Dep't of Agric.,
295 F.3d 749, 754 (7th Cir. 2002). If it does eituer of
these things, then the legislation must survive more
45a
demanding scrutiny. Normally, this means. that it
must be tailored narrowly to facilitate a compelling
state interest. See Arislov v. Rednour, 226 F.3d 851,
863 (7th Cir. 2000). If no fundamental rights or
suspect categories are at issue, “[t]he general rule is
that legislation is presumed to be valid and will be
sustained if the classification drawn by the statute is
rationally related to a legitimate state interest.” City of
Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,
440 (1985).
St. John’s first tries to repackage its free exercise
argument in equal protection language, by claiming
that the new § 30 unduly burdens its fundamental
right freely to exercise its religion. We have already
rejected the underlying point, however. “Where a.
plaintiffs First Amendment Free Exercise claim has
failed, the Supreme Court has applied only rational
basis scrutiny in its subsequent review of an equal
protection fundamental right to religious free exercise
claim based on the same facts.” Wirzburger v. Galvin,
412 F.3d 271, 282-83 (1st Cir. 2005) (citing Johnson v.
Robison, 415 U.S. 361, 375 n.14 (1974)).
St. John’s also argues that the new § 30 targets a
suspect class, namely, the two religious cemeteries
adjacent to O’Hare. It has not fleshed out this
argument particularly well. If it means to suggest that
“cemeteries adjacent to O’Hare” constitute a
constitutionally suspect class, we must disagree with
it. A suspect class either “possesses an immutable
characteristic determined solely by the accident of
birth,” Frontiero v. Richardson, 411 U.S. 677, 686
(1973), or is one “saddled with such disabilities, or
46a
subjected to such a history of purposeful unequal
treatment, or relegated to such a position of political
powerlessness as. to command extraordinary protection
from the majoritarian political process.” San Antonio
Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1978).
Although religion may fit the bill, see, e.g., City of New
Orleans v. Dukes, 427 U.S. 297, 303 (1976), strict
scrutiny has been reserved for laws that “discriminatle]
among religions.” Corp. of the Presiding Bishop of the
Church of Jesus Christ of Latter-Day Saints v. Amos,
483 U.S. 327, 339 (1987). The new § 30 neither
classifies on the basis of religion nor discriminates
among religions.
Once again, St. John’s notes that it is the only
religious cemetery currently affected by the OMA:
other religious cemeteries ir the state, including those
affiliated with the United Church of Christ, are beyond
the statute’s reach. As was the case with respect to its
free exercise claim, St. John’s own argument proves
that this statute does not treat St. John’s differently
from other religious cemeteries in the state because it
is a religious cemetery. Rather the statute puts
St. John’s in a different position from other religious
cemeteries in the state because it is near O’Hare and,
unlike the Rest Haven Cemetery, the City badly needs
the land to construct additional runways. Geography,
however, is not a suspect class for equal protection
purposes. If St. John’s is attempting to state a “class of
one” equal protection claim, see Village of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000), it has failed to do so.
This court has held that “la] class of one equal ©
protection claim may be brought where (1) the plaintiff
47a
alleges that he has been intentionally treated
differently from others similarly situated and (2) that
there is no rational basis for the difference in
treatment or the cause of the differential treatment is a
‘totally illegitimate animus’ toward the plaintiff by the
defendant.” Lunini v. Grayeb, 395 F.3d 761, 768
(7th Cir. 2005) (quoting McDonald v. Vill. of Winnetka,
371 F.3d 992, 1001 (7th Cir. 2004)). Even if St. John’s
could satisfy the first part of that test, it cannot survive
the second part. 3
The fact that this statute affects a religious group or
institution does not necessarily mean that the statute
classifies on the basis of religion. See, e.g., Johnson,
415 U.S. at 375 n.14 (declining to categorize group of
religious conscientious objectors as a suspect class);
Locke, 540 U.S. at 712 (applying rational basis review
to a statute that prohibited state aid to any post-
secondary student pursuing a degree in theology). As
we observed earlier, in a case like this, where a facially
neutral statute is challenged on equal protection -
grounds, the challenger must prove that the legislature
“selected or reaffirmed a particular course of action at
least in part ‘because of,’ not merely ‘in spite of,’ its
adverse effects upon an identifiable group.” Feeney,
442 U.S. at 279. Nothing supports the proposition that
the Illinois legislature singled out St. John’s for lesser
protection under IRFRA protection because it runs a
religious cemetery. Anyone or anything standing in
the way of the O’Hare project faces the prospect of the
City’s exercise of its eminent domain power. We have
no doubt that the legislature was unmoved by
St. John’s religious affiliation.
2 48a
In order to survive a motion to dismiss for failure to
state an equal protection claim, “a plaintiff must allege
facts sufficient to overcome the presumption of
rationality that applies to government classifications.”
Wroblewski v. City of Washburn, 965 F.2d 452, 460
(7th Cir. 1992). As the district court observed,
St. John’s does not even attempt to argue that the.
OMA’s amendment to IRFRA is not rationally related
to some legitimate government purpose. Certainly, the
expansion of O’Hare is a legitimate state purpose. As a
classic “public use”’—an airport to be operated by the
City of Chicago for the benefit of local, national, and
international transportation—it does not raise any of
the questions that concerned the dissenting Justices in
the Supreme Court’s decision in Kelo v. City of New
London, Conn., 545 U.S. 469 (2005). Enacting a
statute that removes legal barriers to the City’s ability
to acquire land in connection with the expansion of the
airport is not “wholly impossible” to relate to that
legitimate interest. Civz/ Liberties for Urban Believers
v. City of Chicago, 342 F.3d 752, 766 (7th Cir. 2003).
VI
Last, St. John’s invokes the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc, et seg. Congress enacted RLUIPA after the
Supreme Court invalidated the federal RFRA,
42 U.S.C. § 2000bb, et seg., as it applied to the states
and their subdivisions in City of Boerne, 521 U.S. 507.
“Less sweeping” than RFRA, RLUIPA is limited to
cases involving land use regulations or the religious
exercise rights of institutionalized persons. It applies
when a substantial burden to religious exercise is
49a
“imposed in a program or activity that receives Federal
financial assistance,” affects interstate commerce, or,
in a case involving a land use regulation, is imposed
pursuant to a procedure that permits the government
to make “individualized assessments of the proposed
uses for the _ property’ involved.” 42 U.S.C.
§§ 2000cc1(b)(1)-(2), 2000ce(a){2)(A)-(C).
The question before us is whether the “land use” part
of RLUIPA applies here. That part of the statute
prohibits any government from implementing a “land
use regulation” that “imposes a substantial burden on
the religious exercise of a person,” as well as on
religious assemblies and other religious institutions,
unless the government can show that the “imposition of
-the burden on that person, assembly, or institution is
in furtherance of a compelling governmental interest [ ]
and is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C.
§ 2000ec(a)(1). We must decide whether the City’s plan
to condemn the St. Johannes Cemetery is a “land use
regulation” within the meaning of RLUIPA. We agree
- with the district court’s conclusion that it is not.
Initially, we note that we are proceeding on the
assumption that RLUIPA as a whole does
constitutionally apply to the states. In Cutter v.
Wilkinson, 544 U.S. 709 (2005), the Supreme Court
held that § 3 of RLUIPA, which deals with the religious
exercise rights of institutionalized persons, is
constitutional as applied to the states. The Court
specifically declined to express any view on the validity
of §2 of the statute, which deals with land use
regulations. 544 U.S. at 715 n.3. Neither party has
- 50a
raised any challenges to the constitutionality of § 2:
because we conclude that the statute does not apply.
here, we save for another day the question whether
this part of the statute may be applied to the states.
The term “land use regulation” is defined by RLUIPA
as follows:
[A] zoning or landmarking law, or the application of
such a law, that limits or restricts a claimant’s use
or development of land (including a_ structure
affixed to land), if the claimant has an ownership,
leasehold, easement, servitude, or other property
interest in the regulated land or a contract or option
to acquire such an interest.
42 U.S.C. § 2000cc-5(5). St. John’s (as well as the
Municipal Plaintiffs and Rest Haven, for that matter)
have not objected, however, to any plan on the City’s
part to zone their property in an unfavorable way or to
impose’ restrictions on it under a landmarking law.
St. John’s claims instead that the OMA is a “zoning-
type law” because it changes the permitted use of its
land from a religious cemetery to land designated as
“airport property.” But this is a _ misleadingly
incomplete description of the City’s intentions under
the statute. The fact that the OMA refers to the land it
seeks to acquire from everyone living within the
footprint of the O’Hare expansion project as “airport
property” does not morph the OMA into a zoning
ordinance. The City is not attempting to dictate to
these plaintiffs what they are permitted to do with the
plot of land that is currently the St. Johannes
Cemetery; rather, the City seeks to exercise its takings
5la
power to assume full ownership of the land, after
paying St. John’s just compensation. As Illinois courts
have long recognized, the “police power [zoning] and
eminent domain are distinct powers of government.”
Sanitary Dist. of Chi. v. Chi. & Alton R.R. Co., 108 N.E.
312, 314 (Ill. 1915) (“Whatever restraints the
Legislature imposes upon the use and enjoyment of
property with the reason and principle of this duty the
owner must submit to. It is a regulation, and not a
taking; an exercise of police power, and not of eminent
domain.”). Because zoning and eminent domain are
“two distinct concepts” that involve land “in very
different ways,” we reject the argument that the City’s
plan to condemn the St. Johannes Cemetery under the
OMA is an act of zoning. Faith Temple Church v.
Town of Brighton, 405 F. Supp. 2d 250, 254 (W.D.N.Y.
2005).3
3 Some argue that the two concepts are not so distinct, and
that the problem with zoning is that it forces property owners to
limit the uses to which they put their property. In that sense, the
argument goes, zoning regulations are in fact partial takings of
private property. See Richard A. Epstein, Takings: Private
Property and the Power of Eminent Domain 100-03 (1985).
Professor Epstein argues that what government should do in
lieu of zoning is use its power of eminent domain, assuming of
course that there is a valid public purpose and the government is
willing to pay. He recognizes that the law has not adopted his
theory, however, noting that ‘the dominant line of opinion—one
that can be traced to Justice Holmes in [Pennsylvania Coal Co. v.
Mahon, 260 U.S. 393 (1922)]—is that regulation, far from being a
subclass of takings, its outside the scope of the eminent domain
clause unless it is taken ‘too far.’” Jd. at 102.
St. John's argument runs in the other direction; it claims that
the exercise of eminent, domain in this case has essentially zoned
52a
St. John’s relies on a district court case from the
Southern District of Indiana for the sweeping
proposition that “[wlhen an ordinance constitutes an —
attempt by the government to regulate the use of a
piece of property, it is an act of zoning.” Sagamore Park »
v. City of Indianapolis, 885F. Supp. 1146, 1150
(S.D. Ind. 1994). That decision, however, is inapposite.
It addressed the question whether a moratorium
imposed by the Board of Zoning Appeals amounted to
an act of zoning; it had nothing to do with the question
whether an exercise of the sovereign power of eminent
domain should also be regarded as “zoning.”
In addition to arguing that the OMA is a zoning law,
the Plaintiffs contend that eminent domain itself is a
‘land use” regulation under RLUIPA. Their best
authority for this point is a footnote in a district court
case from the Central District of California,
Cottonwood Christian Center v. Cypress
Redevelopment Agency, 218F. Supp. 2d 1203
(C.D. Cal. 2002). Briefly, in that case, the plaintiff,
Cotton-wood Christian Center, wanted to build a
church on an 18-acre parcel of land that it owned. The
City of Cypress planned to use that land for
commercial retail space and initiated eminent domain
proceedings. The plaintiff brought an action for a
preliminary injunction after the City denied it the
necessary land use permit it needed to begin
away its entire property. But the City has paid just compensation
for what it has taken in this case, which is exactly what
distinguishes it from a zoning regulation that has gone “toc far.” It
would strain the statutory definition beyond repair to equate a
buy-out with a ‘limitation’ or “restriction” on land use.
, ==
53a
constructing its place of worship. The district court
found that the City’s refusal to grant Cottonwood’s
application for a conditional use perrrit was a land use
regulation subject to RLUIPA. In a footnote, the court
commented that “elven if [it] were only considering the
condemnation proceedings, they would fall under
RLUIPA’s land use _ regulation.” Cottonwood,
218 F. Supp. 2d at 1222 n.9.
We are not persuaded by the district court’s brief
dicta in Cottonwood that eminent domain is always
and inevitably a land use regulation under RLUIPA.
Given the importance of eminent domain as a
governmental power affecting land use, we think that if
Congress had wanted to include eminent domain
within RLUIPA, it would have said something. Indeed,
before federal law (even under the Spending Clause)
starts interfering with the fundamental state power of
eminent domain, it is likely that we would need a clear
statement from Congress. See, e.g., Will v. Mich. Dep't
of State Police, 491 U.S. 58, 65 (1989) (“[I]f Congress
intends to alter the usual constitutional balance
between the States and the Federal Government,’ it
must make its intention to do so unmistakably clear in
the language of the statute.”) (internal quotation
omitted).- Congress did not mention eminent domain in
so many words in RLUIPA’s definition of a land use
regulation, which is enough for us to consider it
excluded. See Lamie v. United States Tr., 540 U.S.
526, 534 (2004) (“It is well established that where the
statute’s language is plain, the sole function of the
courts . . . is to enforce it according to its terms.”). The
handful of federal and state cases that have addressed
54a ©
this question have reached the same conclusion that we
have. See, e.g., Faith Temple Church, 405 F. Supp. 2d
at 255 (“By its terms . .. RLUIPA does not. apply to
eminent domain proceedings.”); City and County of
Honolulu v. Sherman, 129 P.3d 542, 547 (Haw. 2006)
(RLUIPA is not available as a defense to
condemnation....”); see also Prater v. City of
Burnside, Ky., 289F.3d 417, 434 (6th Cir. 2002)
(although not specifically addressing the question
whether condemnation is a land use regulation under
RLUIPA, indicating that the City’s property interest in
the land at issue gave it the right to develop the land
as it desired and thus the City’s decision to develop the .
roadway was not based on any zoning or landmarking
law). Because this case does not involve a “land use
regulation,” there is no need for us to address
RLUIPA’s other element—whether the City’s proposed
actions will substantially burden Plaintiffs’ religious
exercise. )
With RLUIPA inapplicable, we have exhausted the
possible reasons why the St. Johannes Cemetery might
be exempt from the City’s general eminent domain
power. Over the years, Illinois has condemned
cemeteries, both religious and otherwise, for a variety
of public uses, such as highways. See, e.g., J/linois
State Toll Highway Comm'n v. Eden Cemetery Ass’n,
158 N.E.2d 766 (Ill. 1956) (oft-cited case about the
appropriate uses of the state’s eminent domain power
involving condemnation of a religious cemetery); Dep't
of Transp. v. Bouy, 386 N.E.2d 1163 (Ill. App. Ct. 1979)
(resolving methods government was required to use to
determine the market value and _ appropriate
55a
compensation for the partial taking of a cemetery to
provide land for a highway). We recognize that
relocating St. Johannes will be a sensitive and labor
intensive task. The City has established a detailed
protocol, which includes identifying the next of kin for
each person buried at the cemetery and hiring
professional archaeologists and a licensed funeral
director to -carry out archaeological work and
disinterments for each person buried there. At oral
argument, the City assured us that it will comply with
these procedures. We take the City at its word and
trust that this process will be carried out with dignity
and respect for both living and dead. Of course, the
plaintiffs remain free to challenge any deviation from
the City’s proposed methods of relocation before an
appropriate tribunal should some controversy arise in
the future.
Given our conclusion that none of St. John’s religious
claims against the City survives, the district court was
- correct to deny its motion for a preliminary injunction.
Vil
Accordingly, we AFFIRM the judgment of the district
court.
RIPPLE, Circuit Judge, concurring in part and
dissenting in part. I join my colleagues in affirming
the judgment of the district court with respect to the
claims by Rest Haven and the municipal defendants.
However, I believe that the amendments to the Illinois
56a
Religious Freedom Restoration Act (“Illinois RFRA”)
made in the O’Hare Modernization Act (“OMA”),
Ill. Pub. Act No. 093-0450, violate the Free Exercise
Clause, and, for that reason, must be subject to strict
scrutiny. I further believe that there remain factual
questions regarding whether the City of Chicago
(“City”) has shown that the proposed modernization
and expansion plan of O’Hare Airport is narrowly
tailored to meet the compelling interest the City
claims. These factual issues render dismissal
inappropriate at this stage in the litigation. Therefore,
I respectfully dissent.
I
BACKGROUND
The majority’s thoughtful and comprehensive opinion
sets forth the facts of this case in great detail:
therefore, I shall provide only a brief description of the
pertinent facts.
In May 2003, the Illinois General Assembly enacted
the OMA. The legislation amended various provisions
of Illinois law to facilitate the planned expansion of
O’Hare Airport. One of the legal impediments that this
legislation sought to remove was a restriction on the
power of the City to condemn particular properties for
the expansion, including two _ religiously-affiliated
cemeteries, one of which, St. Johannes Cemetery
(“St. Johannes”); is owned by St. John’s United Church
of Christ (“St. John’s”). Among the changes aimed at
facilitating the condemnation of these cemeteries was
an amendment to the Illinois RFRA that repealed
otherwise generally applicable statutes only with
57a
respect to the relocation of cemeteries in connection
with the O’Hare expansion.
St. John’s and two of its congregants! filed this
action, challenging both the City’s attempt to acquire
the land on which St. Johannes is located and the
amendment to the Illinois RFRA. St. John’s asserted
that the City’s actions violated its rights under the
Free Exercise Clause of the First Amendment and the
Equal Protection Clause of the Fourteenth
Amendment.” St. John’s maintains that the relocation
of St. Johannes would violate a major tenet of its
religious beliefs, which requires that those buried in
St. Johannes must remain’ undisturbed until
resurrected by Jesus Christ on the Last Day.
St. John’s further contended that, because the
amendments to the Illinois RFRA singled out religious
cemeteries near O’Hare, the law was not neutral and of
general applicability, and therefore subject to strict
scrutiny under the Free Exercise Clause of the First
Amendment and the Equal Protection Clause of the
Fourteenth Amendment.
5 3
The district court dismissed St. John’s complaint for
failure to state a claim. The district court concluded
1 Because the congregants assert the same claims as St. John's,
I shall refer, for ease of reference, to the plaintiffs collectively as
St. Johns.
2 The owner of the second cemetery, Rest Haven Cemetery
Association, originally joined St. John’s in these claims. As noted
by the majority opinion, the City no longer seeks to acquire the
land on which Rest Haven is located, rendering Rest Haven's
challenges moot.
aes:
ee
a.
e
58a
that the OMA was a neutral law of general
applicability; thus, it was subject only to rational basis
scrutiny under both the Free Exercise Clause and the
Equal Protection Clause.
I
DISCUSSION
The First Amendment ensures religious freedom by
firmly committing the state to a position of neutrality
in the relationship between individuals and religion.
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 208,
226 (1963). The Supreme Court has observed that,
with respect to religious freedom, the principle of
government neutrality, the government “protectls] all,
it prefers not, and it disparages none.” Td. at 215
(quoting Minor v. Bd. of Educ. of Cincinnati (Super. Ct.
of Cincinnati, February 1870) (Taft, J., dissenting)
(unpublished case), reproduced in The Bible in the
Common Schools (Robert Clark & Co. ed., 1870)). The
Free Exercise Clause advances the command of
government neutrality by securing “religious liberty in
the individual by prohibiting any invasions thereof by
civil authority” and protecting against the coercive
effect of legislation “as it operates against him in the
practice of his religion.” Schempp, 374 U.S. at 223
(emphasis added); see also Jimmy Swaggart Ministries
v. Bd. of Equalization of California, 493 U.S. 378, 384
(1990); Vision Church v. Vill. of Long Grove, 468 F.3d
975, 996 (7th Cir. 2006). At a minimum, the Free
Exercise Clause protects against laws _ that
“discriminate[ ] against some or all religious beliefs.”
Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 532 (1993).
59a
State action that offends the Free Exercise Clause
must satisfy strict scrutiny, i.e., be narrowly tailored to
serve a compelling state interest. See Vision Church,
468 F.3d at 996; Civil Liberties for Urban Believers v.
City of Chicago, 342 F.3d 752, 763 (7th Cir. 2003).
Additionally, when a legislative classification offends a
fundamental right, such as the Free Exercise Clause,
an equal protection challenge to that classification is
subject to strict scrutiny. Vision Church, 468 F.3d at
1000. A law offends the Free Exercise Clause and its
requirement of government neutrality with respect to
religion in two circumstances. First, a law that
burdens the free exercise of religion and that is not
facially neutral and of general applicability will be
* subject to strict scrutiny. City of Hialeah, 508 U.S. at
531-32; Vision Church, 468 F.3d at 996. Second, a
facially-neutral law that “imposes a substantial burden
on religion” offends the Free Exercise Clause and
likewise is subject to strict scrutiny. Vision Church,
468 F.3d at 996. The QMA’s amendment to the Illinois
RFRA violates the Free Exercise Clause under either of
these approaches.
A law is not neutral on its face if its object or purpose
“Is the suppression of religion or religious conduct.”
City of Hialeah, 508 U.S. at 533 (emphasis added). To
determine whether a law is neutral and of general
applicability, we first look to the text of the statute to
determine whether it discriminates on its face. Jd. “A
law lacks facial neutrality if it refers to a religious
practice without a secular meaning discernable from
language or context.” /d. Applying these standards, it
is clear that. the OMA’s amendment to the Illinois
60a
RFRA is not facially neutral OMA added a new
section 30 to the Illinois RFRA which reads:
Nothing in this Act limits the authority of the
City of Chicago to exercise its powers under the
O’Hare Modernization Act for the purposes of
relocation of cemeteries or the ‘graves located
therein.
775 ILCS 35/30. The panel opinion determines that,
because cemeteries and the burial, or relocation,
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