# Petition for Writ of Certiorari — St. John's United Church of Christ v. City of Chicago (No. 07-1127) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0686%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text ® 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 My ae 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 ai [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0686%3A1. Public record. Not legal advice.