no. 05–4418 related cases: nos. 05-4450 and 05 …...no. 05-4418 disclosure statement pursuant to...
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No. 05–4418
Related Cases: Nos. 05-4450 and 05-4451_______________________________________________________________________
IN THEUNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
ST. JOHN’S UNITED CHURCH OF CHRIST,an Illinois not-for-profit corporation; HELEN RUNGE;and SHIRLEY STEELE,
Plaintiffs-Appellants,v.
THE CITY OF CHICAGO, an Illinois municipalcorporation; the FEDERAL AVIATIONADMINISTRATION; and MARION C. BLAKEY,Administrator of the Federal Aviation Administration,
Defendants-Appellees.
Appeal from the United States District CourtFor the Northern District of Illinois, Eastern Division
No. 03 C 3726The Honorable David H. Coar, Judge Presiding
APPELLANTS’ BRIEFREVISED PURSUANT TO DECEMBER 23, 2005 COURT ORDER
Joseph V. KaraganisA. Bruce WhiteJohn W. KalichKARAGANIS, WHITE & MAGEL LTD.414 North Orleans, Suite 810Chicago, IL 60610(312) 836-1177
Of Counsel:
John MauckAndy NormanHannah Valdez GarstMAUCK & BAKEROne N. LaSalle Street, Suite 2001Chicago IL 60602(312) 726-1243
Of Counsel:
Anthony R. Picarello, Jr.Derek L. GaubatzRoman P. StorzerTHE BECKET FUND FOR RELIGIOUS LIBERTY1350 Connecticut Ave., NW, Suite 605Washington, D.C. 20036(202) 955-0095
No. 05-4418
DISCLOSURE STATEMENT
Pursuant to Federal Rule of Civil Procedure 26.1 and Seventh Circuit Rule 26.1,the undersigned discloses the following:
1. The Full name of every party that the attorney represents in this case:
St. John’s United Church of ChristHelen RungeShirley Steele
2. The names of all law firms whose partners or associates have appeared forthe party in the case (including proceedings in the district court or before anadministrative agency) or are expected to appear for the party in this court:
Karaganis, White & Magel Ltd., 414 North Orleans, Suite 810, Chicago,Illinois 60610, (312) 836-1177.
The Becket Fund For Religious Liberty, 1350 Connecticut Ave., NW,Suite 605, Washington, D.C. 20036, (202) 955-0095.
Mauck & Baker, One N. LaSalle St., Suite 2001, Chicago Illinois 60602,(312) 726-1243
Shaw, Pittman, Potts & Trowbridge, 2300 N Street, NW, Washington,D.C., 20037, (202) 663-8000.
Walsh, Knippen, Knight & Diamond, 601 W. Liberty Drive, Wheaton,Illinois 60187, (630) 462-1980.
Steve Helm & Associates, 804 North Washington Street, Naperville,Illinois 60563.
3. St. John’s United Church of Christ has no parent corporation.
December 27, 2005 /s Joseph V. Karaganis Joseph V. Karaganis (Bar No. 1402404)A. Bruce White (Bar No. 2999102)John W. Kalich (Bar No. 6193109)KARAGANIS, WHITE & MAGEL LTD.414 North Orleans, Suite 810Chicago, IL 60610(312) 836-1177
KSJ133DS
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................................... i
JURISDICTIONAL STATEMENT................................................................................................ 1
STATEMENT OF ISSUES............................................................................................................. 1
STATEMENT OF THE CASE....................................................................................................... 2
A. St. John’s Religious Plaintiffs’ Claims For Protection Of St. JohannesCemetery And Their Religious Beliefs. ..................................................................... 2
B. St. John’s Religious Plaintiffs’ Claims Against the FAA. ......................................... 3
C. The District Court’s November 16, 2005, Decision................................................... 4
D. This Appeal And This Court’s Entry Of An Injunction Pending Appeal. ................. 4
STATEMENT OF FACTS.............................................................................................................. 4
1. Events leading to 2003. .................................................................................. 6
2. Events of 2003................................................................................................ 8
3. Events After 2003........................................................................................... 9
4. Petition For Review In The D.C. Circuit Of TheSeptember 30, 2005, FAA ALP Decision. ................................................... 11
5. Events in the District Court Below in 2005. ................................................ 12
6. The District Court’s November 16, 2005 Decision...................................... 13
7. FAA’s ALP Funding Decision of November 21, 2005................................ 13
8. This Appeal And This Court’s Entry Of An Injunction PendingAppeal. ......................................................................................................... 14
SUMMARY OF ARGUMENT .................................................................................................... 14
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ARGUMENT ................................................................................................................................ 15
I. THE SECTION 30 AMENDMENT TO THE ILLINOIS RELIGIOUS FREEDOMRESTORATION ACT VIOLATES THE FIRST AMENDMENT FREEEXERCISE CLAUSE. ......................................................................................................... 15
A. The 2003 §30 Amendment To Illinois RFRA Is Neither “Neutral” Nor ALaw Of “General Applicability.” ............................................................................. 16
B. There Is No Requirement Of Animus Or Hostile Intent Toward A GivenReligion In Order For A Law That Is Neither Neutral Nor Of GeneralApplicability To Be A First Amendment Free Exercise Violation.......................... 18
II. THE §30 AMENDMENT TO THE ILLINOIS RFRA – AND OMA’S STRIPPINGOF SECULAR PROTECTIONS FROM ONLY TWO RELIGIOUS CEMETERIES– REQUIRE THE APPLICATION OF THE STRICT SCRUTINY DOCTRINE.............. 21
III. ST. JOHN’S UNITED CHURCH OF CHRIST IS ENTITLED TO THEPROTECTION OF RLUIPA. .............................................................................................. 22
A. Chicago’s Proposed Acquisition And Destruction Of St. Johannes ImposesA “Substantial Burden” On The St. John’s Appellants’ Religious Beliefs.............. 22
B. The Terms Of RLUIPA Apply To This Case. ......................................................... 23
IV. ST. JOHN’S RELIGIOUS APPELLANTS ARE ENTITLED TO A TRIAL INTHE DISTRICT COURT, WHERE CHICAGO MUST ESTABLISH BYEVIDENCE THAT THERE IS A COMPELLING NEED TO DESTROY ST.JOHANNES CEMETERY, AND THAT THERE ARE NO AVAILABLEALTERNATIVES WHICH WOULD AVOID SUCH DESTRUCTION. ....................... 27
CONCLUSION ............................................................................................................................. 28
CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 30(D)
STATUTORY ADDENDUM
APPENDIX
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TABLE OF AUTHORITIES
Cases
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ............ 17, 18, 19
City of Boerne v. Flores, 521 U.S. 507 (1997)................................................................................ 6
Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203(C.D. Cal. 2002) .......................................................................................................... 25, 26
DiMa Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir. 1999) ...................................................... 19
Employment Division v. Smith, 494 U.S. 872 (1990)................................................................ 6, 17
Faith Temple Church v. Town of Brighton, ___ F.Supp. 2d ___, 2005 WL 3454309(W.D.N.Y. December 19, 2005) ....................................................................................... 26
Griffin High School v. Illinois High School Assoc., 822 F.2d 671 (7th Cir.1987)........................ 21
Hale O Kaula Church v. Maui Planning Commission, 229 F. Supp. 2d 1056(D. Hawaii 2002)............................................................................................................... 23
Mack v. O’Leary, 80 F.3d 1175 (7th Cir. 1996),vacated on other grounds, 522 U.S. 801 (1997) ......................................................... 22, 23
New Orleans v. Dukes, 427 U.S. 297 (1976) ................................................................................ 21
Old Town Neighborhood Association v. Kauffman, 333 F.3d 732 (7th Cir. 2003) ...................... 12
Pro-Eco, Inc. v. Board of Commissioners of Jay County, Indiana, 776 F. Supp. 1368(S.D. Ind. 1990), affirmed, 956 F.2d 635 (7th Cir. 1992)................................................. 24
Rest Haven Cemetery Association, et al. v. City of Chicago, Cir. Ct. DuPage Cty.(2003 MR 000016, filed January 7,2003) ........................................................................... 7
Sagamore Park v. City of Indianapolis, 885 F. Supp. 1146 (S.D. Ind. 1994)............................... 24
St. John’s United Church of Christ v. City of Chicago (11/16/2005)2005 WL 3078174...................................................................................................... passim
St. John’s United Church of Christ, et al. v. City of Chicago, Cir. Ct. DuPage Cty.(2002 MR 001175, filed November 12, 2002).................................................................... 7
Sts. Constantine and Helen Greek Orthodox Church, Inc., v. City of New Berlin,396 F.3d 895 (7th Cir. 2005)............................................................................................. 27
United States v. Batchelder, 442 U.S. 114 (1979) ........................................................................ 21
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Wirzburger v. Galvin, 412 F.3d 271 (1st Cir. 2005) ..................................................................... 21
Statutes
5 U.S.C. §552 .................................................................................................................................. 1
16 U.S.C. §470f............................................................................................................................... 9
28 U.S.C. §1291 .............................................................................................................................. 1
28 U.S.C. §1292(a)(1) ..................................................................................................................... 1
28 U.S.C. §1331 .............................................................................................................................. 1
42 U.S.C. §2000bb et seq. ............................................................................................................... 1
42 U.S.C. §2000cc.................................................................................................................. passim
42 U.S.C. §1983 .............................................................................................................................. 1
42 U.S.C. §4321 et seq. ................................................................................................................... 1
42 U.S.C. §4332(2)(C) .................................................................................................................... 9
49 U.S.C. §303 ............................................................................................................................ 1, 9
49 U.S.C. §40117 ...................................................................................................................... 9, 14
49 U.S.C. §47101 et seq. ............................................................................................................... 14
49 U.S.C. §47106 ................................................................................................................ 1, 13, 14
49 U.S.C. §47107(a)(16) ................................................................................................... 10, 11, 12
49 U.S.C. §47110(e)............................................................................................................ 9, 10, 13
49 U.S.C. §47115(d) ..................................................................................................................... 13
36 CFR §800.1 ................................................................................................................................ 9
40 CFR §1506 ................................................................................................................. 1, 9, 12, 13
20 ILCS 3435/.02(a)...................................................................................................................... 24
20 ILCS 3435/1.5 .......................................................................................................................... 24
20 ILCS 3435/3 ............................................................................................................................. 24
20 ILCS 3435/6(a)......................................................................................................................... 24
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20 ILCS 3440 et seq. ..................................................................................................................... 20
65 ILCS 5/11-51-1 ........................................................................................................................ 20
410 ILCS 35/21 ............................................................................................................................. 20
775 ILCS 35/1 et seq. ............................................................................................................. passim
Other Authorities
AMERICAN HERITAGE DICTIONARY OF THEENGLISH LANGUAGE (4th Ed. 2000) .......................................................................... 24
Laycock, The Supreme Court and Religious Liberty, 40 Cath. Law. 25 (2000) .......................... 19
Laycock, Theology Scholarships, The Pledge Of Allegiance, And Religious Liberty:Avoiding The Extremes But Missing The Liberty, 118 Harv. L. Rev. 155 (2004) .......... 19
JURISDICTIONAL STATEMENT
1. Bases for the district court’s jurisdiction: The district court has subject matter
jurisdiction under 28 U.S.C. §1331, because the action arises under the laws of the United States,
including: The First Amendment guarantee protecting the free exercise of religion and the equal
protection clause of the Fourteenth Amendment in the U.S. Constitution; the Religious Freedom
Restoration Act, 42 U.S.C. §2000bb et seq.; the Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. §2000cc, et seq.; the National Environmental Policy Act, 42 U.S.C.
§4321 et seq.; Section 4(f) of the Transportation Act of 1966, 49 U.S.C. §303(c); Section 509 of
the Airport and Airway Improvement Act of 1982, 49 U.S.C. §47106(c)(1)(B); and 42 U.S.C.
§1983.
2. Bases for the court of appeal’s jurisdiction: On November 16, 2005, the district
court entered an order which: dismissed all counts of plaintiffs’ Amended Complaint; denied
plaintiffs’ motion to file a Second Amended Complaint, with the exception of a single count
brought under the Freedom of Information Act, 5 U.S.C. §552; vacated a temporary restraining
order and denied plaintiffs’ motion for a preliminary injunction; made a finding under Fed. R.
Civ. Pro 54(b) that there is no just reason for delay of execution or appeal of the order; and made
an express direction for the entry of judgment.
This case is immediately appealable under 28 U.S.C. §1291 as a final decision of the
district court, made appealable with a district court finding under Fed. R. Civ. Pro 54(b). This
case also is appealable under 28 U.S.C. §1292(a)(1), for denial of an injunction.
3. Timeliness of appeal: This appeal was filed on November 23, 2005, appealing a
final order entered November 16, 2005, with a finding by the court under Fed. R. Civ. P. 54(b).
STATEMENT OF ISSUES
1. Does the 2003 amendment to the Illinois Religious Freedom Restoration Act –
which stripped the protection of the Illinois RFRA statute from two religious cemeteries adjacent
to O’Hare while preserving the protection of Illinois RFRA for all other religious institutions in
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Illinois (including all other religious cemeteries) – violate rights of the St. John’s Religious
Appellants under the Free Exercise Clause of the First Amendment?
2. If the First Amendment rights of the St. John’s Religious Appellants have been
violated, are those Appellants entitled to protection under the strict scrutiny doctrine of the Equal
Protection Clause?
3. Where a statute restricts the use of land owned by St. John’s United Church of
Christ (i.e., St. Johannes Cemetery) and changes the use from a religious cemetery to a
classification called “airport property,” is that statute a land use regulation within the meaning of
the federal RLUIPA statute?
STATEMENT OF THE CASE
The St. John’s Religious Plaintiffs appeal from the district court’s November 16, 2005,
dismissal of their complaint, the district court’s refusal to allow their filing of an amended
complaint, and the district’s refusal to enjoin Chicago from seizing ownership of and destroying
St. Johannes Cemetery – a sacred ground which the St. John’s Religious Plaintiffs and their co-
religionists have used for more than 150 years as the place where their loved ones will await the
coming of the Lord and Resurrection. A central tenet of their religious beliefs is that those
buried in the sacred ground of St. Johannes should and must remain undisturbed in their final
resting place until Judgment Day.
A. St. John’s Religious Plaintiffs’ Claims For Protection Of St. Johannes CemeteryAnd Their Religious Beliefs.
Chicago wants to seize and destroy St. Johannes for a new runway project at O’Hare
Airport called the “Phase 1” “project”. The “Phase 1” “project” is the only actual construction
that Chicago and the airlines say they are financially committed to at O’Hare. The “Phase 1”
“project” is part of a larger $15.4 billion concept plan that Chicago calls the “O’Hare
Modernization Plan” (“OMP”).
The St. John’s Religious Plaintiffs assert that St. Johannes Cemetery is sacred ground,
and is protected by the First Amendment Free Exercise Clause, the strict scrutiny doctrine of the
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Equal Protection Clause, and the Religious Land Use and Institutionalized Persons Act, 42
U.S.C. §2000cc, et seq. (RLUIPA) – each of which prohibit Chicago from seizing and destroying
St. Johannes unless and until Chicago satisfies its burden of proving in a federal district court:
(a) that there is a compelling governmental need to build the “Phase 1” “project” and to seize and
destroy St. Johannes for the “Phase 1” “project”; and (b) that there are no available alternatives
to seizing and destroying St. Johannes, to meet the asserted compelling governmental need.
B. St. John’s Religious Plaintiffs Claims Against the FAA.
In both the Amended Complaint (SA-1) and in the proposed Second Amended Complaint
(SA-104)1 the St. John’s Religious Plaintiffs had made several claims against the FAA and FAA
officials. These claims included allegations that FAA was knowingly assisting Chicago (by both
funding and by engaging in affirmative misstatements of fact, material omissions of fact, and
hiding relevant evidence) in taking action (acquisition and destruction of St. Johannes) that
violated the St. John’s Religious Plaintiffs’ rights under the First Amendment, the Strict Scrutiny
doctrine of the Equal Protection Clause, and various federal environmental statutes and
regulations. Per the order of this Court of December 23, 2005, the St. John’s Religious Plaintiffs
have removed from this brief all appellate arguments as to their claims against the FAA2.
In order to preserve these arguments, while at the same time conforming to this Court's
December 23, 2005 scheduling Order, the St. John's Religious Appellants are asking leave by
separate motion to join in the arguments as to the FAA and FAA officials that will be made in
the consolidated appeal in Nos. 05-4450 and 05-4451. Without such leave, the St. John's
1 All references to Plaintiffs-Appellants’ Short Appendix in Appellants’ Brief are made as“A-[no.]”; all references to Separate Appendix are made as “SA-[no.].”
2 The St. John’s Religious Appellants had in good faith raised these arguments as to the St. John’sReligious Appellants’ claims against the FAA and FAA officials in their brief filed on December 14,2005 in order to avoid a claim by FAA that the St. John’s Religious Appellants had waived these claimsagainst FAA and FAA officials on appeal.
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Religious Appellants will not have any opportunity to appeal the district court's judgment as to
their claims against the FAA and FAA officials.
C. The District Court’s November 16, 2005, Decision.
On October 26, 2005, Religious Plaintiffs (as well as Bensenville, Elk Grove Village and
Roxanne Mitchell) filed in the district court below a Motion for Leave to File an Amended
Complaint (SA-102) with a proposed 2d Amended Complaint. (SA-104). At the same time, all
the plaintiffs filed a joint motion for a temporary restraining order. (SA-322). The Religious
Plaintiffs also filed a motion for preliminary injunction (SA-312), and Bensenville, Elk Grove
Village and homeowner Roxanne Mitchell filed a separate motion for preliminary injunction.
On November 16, 2005, the district court denied plaintiffs’ Motion For Leave to File An
Amended Complaint except for Count XI (FOIA), denied the motion of Religious Plaintiffs, and
the separate motion of Bensenville, Elk Grove Village and homeowner Roxanne Mitchell, for a
preliminary injunction, and dismissed all of the counts of the 2003 Amended Complaint. (A-2).
The district court dismissed all of the Religious Plaintiffs’ claims against Chicago for failure to
state a claim. The Religious Plaintiffs’ motion for leave to file an amended complaint was
denied on the ground that such an amendment would be futile. The district court dismissed all
claims against FAA for lack of subject matter jurisdiction (with the exception of the FOIA
claim).
D. This Appeal And This Court’s Entry Of An Injunction Pending Appeal.
On November 23, 2005, St. Johannes filed this appeal, and moved for summary reversal
and an injunction pending appeal. On December 2, 2005, this Court enjoined Chicago from
taking title to St. Johannes pending the decision of this Court on the merits of the appeal.
STATEMENT OF FACTS
The facts alleged in the 2d Amended Complaint form the framework for this Court’s
analysis. Included in these admitted facts are:
(1) the religious beliefs of St. John’s Plaintiffs (2d Amended Complaint at ¶¶ 153-159,
and the sworn affidavits Exhibits H-L) (SA-104, 109, 142-44, 200-21, ¶¶13-17]);
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(2) that Chicago expressly chose a blended alternative in 1984 and found no
compelling need to destroy the religious cemeteries (SA-114-18, ¶¶ 37-47);
(3) that there are alternatives to destroying St. Johannes, such as the blended
alternatives adopted by Los Angeles and Boston (SA-146, ¶¶ 170, 171);
(4) that Chicago has made numerous material misstatements and material omissions in
order to support is expansion plan and the related destruction of St. Johannes
Cemetery (SA-123-24, ¶¶ 72-74);
(5) that Chicago’s proposed Phase 1 cannot be built without the more than $1.3 billion
in AIP and PFC money needed to complete the Phase 1 “project” (SA-132-33,
¶112);
(6) that FAA and Chicago have made material misstatements about the benefits and
costs of Phase 1 in order to further their efforts, which violate plaintiffs’
constitutional and statutory rights (SA-133, ¶113); and
(7) that FAA has engaged in a number of improper actions to assist Chicago in its
activities, including the proposed destruction St. Johannes Cemetery (SA-137-38,
¶132).
In addition, plaintiffs filed sworn affidavits below, which have not been disputed,
demonstrating the harm that Chicago’s acquisition and destruction of St. Johannes would have
on their religious beliefs and practices. (SA-200-21). Plaintiffs also filed below two sworn
affidavits by Mr. Joseph Del Balzo (the former Acting Administrator of the FAA) in support of
their motions for preliminary injunction. The Del Balzo affidavits describe: the facts of the
Chicago proposal for Phase 1 project and the full build OMP-Master Plan (SA-336, ¶¶9-12); the
FAA decisionmaking processes for ALP approval and funding (id. ¶¶13-21); the problems with
funding the Phase 1 project, and the related concerns by the DOT Inspector General that FAA
meet its statutory mandate (id. ¶¶23-25); and facts as to the issues of lack of a compelling need to
acquire and destroy St. Johannes and presence of alternatives to such destruction (id. ¶¶26-41
and 42-75).
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1. Events leading to 2003.
In 1984, Chicago faced a decision whether to add runways to O’Hare Airport. In order to
handle all of the forecast future traffic (without using other airports to handle the excess),
Chicago stated that it would need to build two new runways on the land south and west of the
existing airport boundaries. (Proposed 2d Amended Complaint ¶37, (SA-114).
Acting out of declared environmental concerns for airport neighbors, in 1984 Chicago
chose an airport development alternative which expressly did not require construction of
additional runways, or the taking of land for those new runways outside the then and current
existing boundaries of O’Hare. Chicago’s chosen alternative (under current terminology called a
“blended alternative”) would allow passenger traffic to grow within the existing airport footprint
without new runways, while using hub airports in other cities (as well as Midway) to
accommodate the excess passenger demand. (2d Amended Complaint ¶¶37-43), (SA-114-16).
In 1998, following the decision of the Supreme Court in City of Boerne v. Flores, 521
U.S. 507 (1997), the Illinois Legislature passed P.A. 90-806, the Illinois Religious Freedom
Restoration Act, 775 ILCS 35/1, et seq. (P.A. 90-806 is at SA-371, and the codified version of
P.A. 90-806 as it existed from 1998 to the 2003 events that preceded the filing of the district
court action below is at SA-374). The Illinois RFRA provides broad protection to all religious
activity in Illinois, and specifically states that such religious protection is not eliminated simply
because the law that imposes the burden on religion is of “general applicability”:
Government may not substantially burden a person's exercise of religion, even ifthe burden results from a rule of general applicability, unless it demonstrates thatapplication of the burden to the person (i) is in furtherance of a compellinggovernmental interest and (ii) is the least restrictive means of furthering thatcompelling governmental interest.
775 ILCS 35/15 (emphasis added). The express purpose of this statutory protection in Illinois
RFRA was to overcome the limitation created by Employment Division v. Smith, 494 U.S. 872
(1990), which stated that government action could injure religious activity if the action was
“neutral” or of “general applicability.” 775 ILCS 35/10(a)(4), 10(a)(6) and 10(b)(1).
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From 1998 through the events of 2003 which led to filing of the action below, Illinois
RFRA prohibited Chicago (or any other local government in Illinois) from taking any action
which imposed a “substantial burden” on the religious practices or beliefs of any religious
institution in the state – including St. Johannes and Rest Haven Cemeteries – without first
demonstrating: “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.” 775 ILCS 35/15.
In 2001, Chicago announced plans to physically expand O’Hare Airport in a project
called the “O’Hare Modernization Program,” or “OMP.” In 2002, Chicago announced that, as
part of the OMP, it intended to acquire and destroy two religious cemeteries adjacent to O’Hare
Airport: St. Johannes Cemetery and Rest Haven Cemetery. (Proposed 2d Amended Complaint
at ¶75). (SA-125).
In late 2002 and early 2003, St. John’s United Church of Christ (the owner of St.
Johannes Cemetery) and Rest Haven Cemetery Association (the non-profit successor-in-interest
to the religious institutions that once operated Rest Haven Cemetery) filed suit in Illinois state
court to invoke the protection of the Illinois RFRA. St. John’s United Church of Christ, et al. v.
City of Chicago, Cir. Ct. DuPage Cty. (2002 MR 001175, filed November 12, 2002), and Rest
Haven Cemetery Association, et al. v. City of Chicago, Cir. Ct. DuPage Cty. (2003 MR 000016,
filed January 7, 2003)3.
3 As stated in the June 2003 Amended Complaint (SA-1), Rest Haven Cemetery is a religiouscemetery that has been in continuous use since at least the 1870s for the Christian burials of the membersof two churches – the United Methodist Church of Itasca (formally known as the Evangelical UnitedBrethren Church of Bensenville and before that as the First Evangelical Church of Bensenville) and theEmmanuel First Evangelical Church of Elk Grove. In 1919, the two churches decided to create a separateentity, the Rest Haven Cemetery Association, a non-profit corporation, to operate, maintain, andperpetually preserve the consecrated ground and graves at Rest Haven Cemetery. The Rest HavenCemetery Association consists of all people with family members, most all of whom were Members ofUnited Methodist Church of Itasca (and its predecessor churches) and the Emmanuel First EvangelicalChurch of Elk Grove, buried in the consecrated ground at Rest Haven Cemetery. Amended Complaint¶24 (SA-8). In 2005, FAA and Chicago announced that Chicago did not need to destroy Rest HavenCemetery, and that Chicago would continue to make access to Rest Haven Cemetery available to the
Footnote continued on next page
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2. Events of 2003.
While the two state court actions to enforce Illinois RFRA were pending, in late May
2003 at Chicago’s request the Illinois Legislature passed an omnibus bill entitled the “O’Hare
Modernization Act,” or “OMA” (P.A. 93-450). (SA-377).
Among other things (described infra), the OMA declared the property on which the
religious cemeteries are located to be “airport property” to be used for Chicago’s airport project.
P.A. 93-450 stripped any zoning protection or other protections that the religious cemeteries
might have had to preserve their continued land use as religious cemeteries, and gave Chicago
broad authority to acquire and convert the cemetery properties from their current use (religious
cemeteries) to Chicago’s proposed use. P.A. 93-450 restricted plaintiffs St. John’s and Rest
Haven’s use of the land for religious cemeteries. (These elements of OMA are described in
Religious Plaintiffs’ discussion of RLUIPA, infra.)
Within the omnibus provisions of the OMA, the Illinois Legislature included an
amendment to the Illinois RFRA, adding a new Section 30, which removed the protections of
Illinois RFRA from St. Johannes and Rest Haven Cemeteries. The Chicago-sponsored Section
30 provides:
Nothing in this Act [Illinois RFRA] limits the authority of the City of Chicago toexercise its powers under the O’Hare Modernization Act for the purposes ofrelocation of cemeteries or the graves located therein.
775 ILCS 35/30 (emphasis added). (SA-4).
Upon passage of the OMA and its amendment to Illinois RFRA in May 2003, the
Religious Plaintiffs – along with the municipalities of Bensenville and Elk Grove Village, and
Bensenville homeowner Roxanne Mitchell – brought this action.4 Included in the June 2003 family members of persons buried at this religious cemetery. On October 26, 2005, Rest Haven ReligiousPlaintiffs asked the district court to embody the informal announcement by Chicago into an order so thatthe Rest Haven Plaintiffs could be assured that Chicago’s informal commitment was enforceable. (SA-91-92). The district court denied the requested relief and dismissed the Amended Complaint as to theRest Haven Plaintiffs. These plaintiffs are addressing their unique circumstances in a separate appeal tothis Court, Appeal No. 05-4451.
4 Upon the Governor’s signing of the OMA into law in August 2003, the Religious Plaintiffs’ stateFootnote continued on next page
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Amended Complaint (SA-1) were several counts based on injury to the religious legal rights of
the St. John’s and Rest Haven Religious Plaintiffs. This Amended Complaint charged that
Chicago’s proposed taking and destruction of the two religious cemeteries violated the First
Amendment Free Exercise Clause, the Equal Protection Clause, and the federal RLUIPA statute.
The Amended Complaint also charged that FAA was violating the federal RFRA statute because
FAA was allowing Chicago to destroy these two religious cemeteries before FAA made a legally
required approval decision regarding the ALP.5 (SA-63-70).
Following plaintiffs’ motion for a preliminary injunction, on July 10, 2003, Chicago
entered into an Agreed Order in which Chicago agreed that it would not attempt to acquire any
properties in Bensenville or Elk Grove Village – or the two religious cemeteries – before FAA
rendered its record of decision on the requested ALP approval. (SA-81).
3. Events After 2003.
In February 2005, Chicago applied to FAA for $360 million in AIP federal funding for a
project Chicago called “Phase 1,” in the form of a request for FAA to issue a “Letter of Intent”
(LOI) under 49 U.S.C. §47110(e). As FAA has stated repeatedly, the FAA’s decisionmaking on
Chicago’s request for the Phase 1 AIP funding, and any associated passenger facility charge
(PFC) funding under 49 U.S.C. §40117,6 are entirely independent and separate from FAA’s
court actions to enforce Illinois RFRA were dismissed as moot, since the Section 30 amendment haddestroyed the Religious Plaintiffs’ rights to invoke Illinois RFRA to protect their religious practices andbeliefs from Chicago’s destruction of their cemeteries.
5 Apart from the Religious Plaintiffs seeking to invoke the protection of religious laws, all of theplaintiffs asserted that the FAA decisionmaking on the proposed ALP was a proposal for “major federalaction” (ALP approval) which would have a “significant effect on the environment” (e.g., destruction ofhomes, businesses, park land and the religious cemeteries) within the meaning of the NationalEnvironmental Policy Act, 42 U.S.C. §4332(2)(c) (NEPA), §4(f) of the Department of Transportation Actof 1966, 49 U.S.C. §303, §106 of the National Historic Preservation Act, 16 U.S.C. §470f (NHPA), andimplementing federal regulations, 36 CFR §800.1 et seq., Under 40 CFR §1506.1, the applicant for theproposed federal action (here the ALP approval) is prohibited from taking any action which would causeenvironmental damage or limit alternatives before the federal agency makes the substantive decision(typically called a “record of decision”) which is the “proposed” “federal action.”
6 Chicago has announced its intent to apply for in excess of $1 billion in PFC funding for Phase 1.Footnote continued on next page
10
decisionmaking as to whether to approve an ALP under 49 U.S.C. §47107(a)(16)7. Thus, as of
February 2005 there was a second independent proposal for major federal action which would
have a significant impact on the environment (and on Religious Plaintiffs’ religious rights)
pending before the FAA: Chicago’s request that FAA approve over $300 million in AIP funds
through a LOI for the Phase 1 “project.” (SA-132, 160-62).
In July 2005, FAA issued a Final Environmental Impact Statement (FEIS) which, as
required by NEPA, presumably would accompany the two separate and independent proposals
for major federal action: (1) the request for ALP approval under §47107(a)(16); and (2)
Chicago’s separate request for over $300 million in AIP funding for the Phase 1 “project” under
the requirements of §47110(e). This FEIS was to provide information on impacts and alternatives
when FAA made its ALP decision under §47107(a)(16), and when FAA made its separate LOI
decision under §47110(e). (SA-135).
In the July 2005 FEIS, FAA announced that it had considered the contentions of the
Religious Plaintiffs. FAA agreed that the St. Johannes and Rest Haven Cemetery had
demonstrated that destruction of either of these two religious cemeteries would cause a
“substantial burden” on the religious beliefs and practices of the Religious Plaintiffs. FEIS 5.22-
6. Ostensibly acting pursuant to its statutory responsibilities under federal RFRA,8 FAA stated
(SA-289).
7 “Thus, while an approved ALP is a condition-precedent to awarding federal grant funds, the actualapproval of the application for funding is an entirely separate process. Of course, because the decision onthe City’s application for funding has not been made final, that agency action is not ripe for judicialreview and cannot be included in the present challenge to the [ALP] ROD.” FAA Response toEmergency Motion for Stay in No. 05-1383 at 17 (emphasis added). “Because no funding decision isfinal for O’Hare, Petitioners’ challenge to the merits of such a decision are not properly before thisCourt.” Id. at 19 (emphasis added) “The application by the City for $300 million in discretionaryfunding for Phase I of the OMP is a separate proceeding.” Id. at 24 (emphasis added). “These [the ALPdecisionmaking process vs. the ALP and PFC funding decisionmaking process] are two separateprocesses * * * [T]he actual approval of an application for funding is an entirely separate process.” Id. at25 (emphasis added).8 In the July 2005 FEIS and an accompanying letter, FAA claimed to make a finding thatChicago’s proposed destruction of St. Johannes did not violate the First Amendment Free Exercise Clausebecause the state law stripping St. Johannes of its Illinois RFRA protection was “neutral” and of “general
Footnote continued on next page
11
that there was an alternative to the destruction of Rest Haven Cemetery, but that there was no
alternative to the alternative known as the full build OMP-Master Plan. FAA therefore stated
that Chicago would preserve Rest Haven Cemetery but would have to destroy St. Johannes
Cemetery.
On September 30, 2005, FAA issued a “Record of Decision” (ROD) (i.e., FAA’s
substantive decision under §47107(a)(16)) to approve Chicago’s proposed ALP. In that “ROD,”
FAA again emphasized that funding requests under either the AIP grant program or the PFC
program were entirely separate and independent decisionmaking proceedings from FAA’s
substantive decision on the ALP under §47107(a)(16). (SA-136).
4. Petition For Review In The D.C. Circuit Of The September 30, 2005, FAA ALPDecision.
On September 30, 2005, the St. John’s Plaintiffs joined Bensenville and Elk Grove
Village in filing in the Court of Appeals for the D.C. Circuit a Petition for Review of FAA’s
September 30, 2005, ROD approval of the ALP. Village of Bensenville, et al. v. Federal
Aviation Administration (Appeal No. 05-1383). (SA-222). At the same time, Petitioners filed an
Emergency Motion for Stay Pending Appeal and a Motion for an Administrative Stay Pending
the Court’s Decision on the Emergency Motion for Stay Pending Appeal. The D.C. Circuit
granted the administrative stay on September 30, 2005.
In response, FAA first argued that the Court of Appeals lacked subject matter jurisdiction
to consider Petitioners challenge to the illegality of the funding (see discussion in Statement of
the Case, supra). FAA then proceeded to tell the D.C. Circuit that – although that court had no
jurisdiction to consider objections to FAA funding the Phase 1 project – FAA had made a
applicability” [FEIS at 5.22-4]. However, as of November 21, 2005, FAA apparently conceded that FAAhas no business adjudicating factual and legal issues relating to First Amendment Free Exerciseviolations. “…[T]he FAA declined the invitation of the religious objectors to pass upon theconstitutionality of the O'Hare Modernization Act [and the §30 amendment to Illinois RFRA stripping theprotection of Illinois RFRA from St. Johannes] adopted by the State of Illinois. It is not the role of theFAA to make such judicial determinations.” Attachment F to November 18, 2006 FAA LOI Analysis andReview (SA 550) at p. 3 of FAA response to Karaganis-Cohn letter to Smithmeyer (SA-304) (emphasisadded).
12
preliminary decision on October 6, 2005, to issue a LOI to provide Chicago with $337.2 million
in AIP funding. FAA therefore argued that petitioners’ expressed concerns about lack of
funding, or illegality of federal funding, for the $3 billion Phase 1 were "simply false.” FAA
Response at 24. (SA-249, at 271, 268).
On October 25, 2005, the D.C. Circuit denied the Emergency Motion for a Stay Pending
Appeal of FAA’s September 30, 2005, ALP decision under 49 U.S.C. §47107(a)(16). (SA-288).
5. Events in the District Court Below in 2005.
On October 26, 2005, plaintiffs filed their Response to the district court’s Show Cause
Order of October 11, 2005. (SA-91). In that pleading, plaintiffs advised the district court of the
D.C. Circuit’s order of October 25, 2005, and emphasized that FAA had told the D.C. Circuit
that it did not have jurisdiction over the funding issues because no funding decision had yet been
made. (SA-91, 94, ¶1, ¶4I)
Plaintiffs pointed out that Chicago was seeking over $1.3 billion in AIP and PFC funding
and that either or both of these funding requests for the Phase 1 project constituted “major
federal action” “significantly affecting the quality of the human environment,” within the
meaning of the NEPA statute and implementing CEQ and FAA regulations. (SA-94, ¶4E).
Further, plaintiffs maintained that 40 CFR §1506.1 prohibited any action under the Phase 1
project that would adversely affect the environment or limit alternatives until FAA made the
substantive decision on Chicago’s funding request. (SA-94,¶4H, J).
Plaintiffs also asserted that because Chicago was proposing to build the Phase 1 project
with federal funding that had not yet been approved, and because the federal funding would
require the federal decision maker to consider adverse impacts and alternatives at the time the
funding decision was made, the current controversy was controlled by this Court’s decision in
Old Town Neighborhood Association v. Kauffman, 333 F.3d 732, 736 (7th Cir. 2003). (SA-94-
96, ¶4L, M and n.2). Plaintiffs asserted that under either the enforcement of 40 CFR §1506 or
this Court’s decision in Old Town, an injunction should issue pending FAA’s substantive
decision on Chicago’s request for federal funding of Phase 1. (SA-95-96, ¶4N).
13
Finally, the St. John’s Plaintiffs asserted that Chicago’s actions in seeking to acquire and
destroy St. Johannes Cemetery violated the special legal protections for their religious rights on
three grounds: the First Amendment Free Exercise Clause, the strict scrutiny doctrine of the
Equal Protection Clause, and the federal RLUIPA statute.
6. The District Court’s November 16, 2005 Decision.
On November 16, the district court denied plaintiffs’ Motion For Leave to File An
Amended Complaint except for Count XI (FOIA), denied the separate motions of the St. John’s
Religious Plaintiffs, and of Bensenville, Elk Grove Village and homeowner Roxanne Mitchell
for a preliminary injunction, and dismissed all of the counts of the 2003 Amended Complaint.
(SA-83). As to all the plaintiffs’ complaints against FAA (with the exception of the FOIA claim)
the district court held that plaintiffs’ 40 CFR §1506.1(a) claim – i.e., that destructive activities
are barred before the substantive decision on the proposed major federal action (the AIP and PFC
funding requests) is made – was “inescapably intertwined” with the plaintiffs’ challenge to
FAA’s September 30, 2005, ALP ROD approval, Appeal No. 05-1383 in the D.C. Circuit.
7. FAA’s ALP Funding Decision of November 21, 2005.
On November 21, 2005, five days after the district court dismissed all of the Religious
Plaintiffs’ counts against Chicago, and all of the plaintiffs’ counts against FAA (except the FOIA
count), FAA issued a LOI for $332.2 million to Chicago for funding of the Phase 1 “project”.
(SA-550). FAA’s LOI decision purports to be issued under authority of 49 U.S.C. §47110(e),
and purports to comply with all of the statutory mandates, prohibitions and requirements which
apply to an LOI decision under various other statutory sections of the AAIA; e.g.: 49 U.S.C.
§47115(d) (benefits of project must exceed costs); 49 U.S.C.§47106(a)(3) (there must be a
finding that there are sufficient non-AIP moneys to complete the balance of the “project” not
14
funded by the AIP); and 49 U.S.C. §47106(b)(1) (applicant must have or be able to obtain “good
title” to the property underneath the “project”) 9.
8. This Appeal And This Court’s Entry Of An Injunction Pending Appeal.
On November 23, 2005, the St. John’s Plaintiffs filed this appeal of the district court’s
November 16, 2005, decision and moved for summary reversal and an injunction pending
appeal. On December 2, 2005, this Court enjoined Chicago from taking title to St. Johannes
pending the decision of this Court on the merits of the appeal.
SUMMARY OF ARGUMENT
The St. John’s Religious Plaintiffs have a deeply held religious belief that St. Johannes is
sacred ground held in trust for God by St. John’s United Church of Christ. A major tenet of their
religious beliefs is that the remains of their co-religionists buried in the sacred ground of St.
Johannes must be undisturbed until Jesus Christ raises them up on the Day of Resurrection.
They also believe that for Chicago, a secular government, to seize and condemn this sacred
ground from St. John’s would be a sacrilege to their religious faith and to the religious
consecration of this sacred ground to God.
In 2003 Chicago, coveting St. Johannes for an airport runway, persuaded the Illinois
Legislature pass a special §30 amendment to the Illinois RFRA which stripped the special
religious protection of that Act from just these two religious cemeteries adjacent to O’Hare while
preserving the protections of Illinois RFRA for all other religious institutions in the state,
9 The statutory term “project” has very special and different meanings as used by Chicago andFAA. The term “project” is not in the statutory language used for ALP decisionmaking but becomescritically important in dealing with the statutory requirements for AIP and PFC funding decisions underthe Airport and Airway Improvement Act of 1982, 49 U.S.C. §47101 et seq. (the AIP for federal grants),and the related Passenger Facility Charge (PFC) program under 49 U.S.C.§40117. See letter of December7, 2005 from Congressman Hyde and Congressman Jackson to DOT Inspector General Mead (SA-590).Congressmen Hyde and Jackson letter to the Inspector General charges that FAA’s November 21, 2005,LOI decision violated several mandatory statutory requirements and prohibitions, and contained seriousmisleading statements as to what Phase 1 “project” Chicago proposes to build. (SA-590). These chargesof statutory violation and the facts relating to these charges are highly relevant to any future trial in thedistrict court of First Amendment, Equal Protection or RLUIPA claims, since these charges bear directlyon the issues of compelling need and alternatives.
15
including all other religious cemeteries. This §30 amendment violated the Free Exercise Clause
guarantee of the First Amendment and the Equal Protection Clause. Under the strict scrutiny
doctrine applied to these constitutional protections, Chicago may not condemn and destroy St.
Johannes without first proving to a district court: (a) that there is a compelling governmental
need to destroy St. Johannes; and (b) that there is no alternative to meeting that need which
would not require the destruction of St. Johannes.
The special §30 amendment to Illinois RFRA was included in an omnibus bill (P.A. 93-
450) (the “OMA”) which contained a number of provisions that changed the existing permitted
land uses (in the area Chicago wished to acquire) from their existing and protected land uses
(including the use of St. Johannes as a religious cemetery) to “airport property.” The OMA is a
land use regulation within the meaning of the federal RLUIPA statute. It is clear that the
proposed condemnation and destruction of St. Johannes would impose a “substantial burden” on
the religious beliefs and practices of the St. John’s Religious Appellants within the meaning of
RLUIPA. Under RLUIPA, Chicago may not condemn St. Johannes and take this sacred ground
from St. John’s unless Chicago first demonstrates to a federal district court: (a) that there is a
compelling governmental need to destroy St. Johannes, and; (b) that there is no alternative to
meeting that need which would not require the destruction of St. Johannes.
ARGUMENT
I. THE SECTION 30 AMENDMENT TO THE ILLINOIS RELIGIOUS FREEDOMRESTORATION ACT VIOLATES THE FIRST AMENDMENT FREE EXERCISECLAUSE.
The 2003 OMA amendment to the Illinois RFRA, adding a new §30, removed the
protections of Illinois RFRA from St. Johannes and Rest Haven Cemeteries. The Chicago-
sponsored §30 provides:
Nothing in this Act [Illinois RFRA] limits the authority of the City of Chicago toexercise its powers under the O’Hare Modernization Act for the purposes ofrelocation of cemeteries or the graves located therein.
775 ILCS 35/30 (emphasis added).
16
Prior to passage of this Chicago-sponsored amendment, every religious institution in the State of
Illinois – including all religious cemeteries – were entitled to the strong protections of the state
RFRA statute. It is undisputed that after passage of the new §30, the only religious institutions
in the state not entitled to the protection of Illinois RFRA were St. Johannes and Rest Haven
Cemeteries. Every other religious institution in the state – including all other religious
cemeteries – still enjoyed the protection of the Illinois RFRA statute.
A. The 2003 §30 Amendment To Illinois RFRA Is Neither “Neutral” Nor A Law Of“General Applicability.”
Despite the fact that the 2003 §30 amendment stripped the protection of Illinois RFRA
from only the two religious cemeteries adjacent to O’Hare – leaving intact RFRA protection for
every other religious institution in the state (including all other religious cemeteries) – the court
below found that the language of §30 was “facially neutral” (2005 WL 3078174, *10), and that
the §30 amendment to Illinois RFRA is not limited just to St. Johannes and Rest Haven
Cemeteries, but rather applies to “any and all cemeteries (as well as other property) in the path of
O’Hare expansion.” (2005 WL 3078174, *12, emphasis added). The Court stated: “As noted
earlier, however, the text of the amendment to the Illinois RFRA and the facts alleged in the
complaint do not suggest that Illinois RFRA protection [§30] has been stripped for only St.
Johannes Cemetery.” Id.
These conclusions reflect serious and fundamental errors that infect the district court’s
entire decision:
(1) The amendment to Illinois RFRA only applies to religious activities and beliefs. §30 has
no application to any secular activity standing in Chicago’s way, but rather is directed by
both explicit terms and necessary implication at religious activity that would otherwise be
protected. The Illinois RFRA protects no secular activities; by its express terms it
protects only religious activities from government harm.
(2) Section 30 only applies to the religious cemeteries adjacent to O’Hare and within
Chicago’s planned expansion. There is no dispute that only two cemeteries are governed
17
by the §30 exception: St. Johannes and Rest Haven Cemeteries.10 The district court is
not at liberty to put blinders on and rely on the fact that the language of the §30
amendment to a religious protection statute does not use the adjective “religious” in front
of the word “cemeteries.” A stated by the Supreme Court:
“Official action that targets religious conduct for distinctive treatmentcannot be shielded by mere compliance with the requirement of facialneutrality.”
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993).
(3) Contrary to the district court’s suggestion, §30 does not apply to properties other than
cemeteries. The amendment to Illinois RFRA is expressly limited to “cemeteries or the
graves located therein”; and as noted above, the only cemeteries to which this exemption
from the religious protection statute applies are St. Johannes and Rest Haven Cemeteries.
Governmental action harming religious activity does not violate the First Amendment
Free Exercise guarantee if the governmental action is “neutral and of general applicability.”
Church of the Lukumi, supra, 508 U.S. at 531, citing Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U.S. 872 (1990). The concepts of “neutrality” and “general
applicability” have substantial overlap in meaning. See concurring opinion of Justice Scalia in
Church of the Lukumi, supra at 557.
Section 30 of Illinois RFRA fails both tests of “neutrality” and “general applicability.”
The exemption only strips the protection of Illinois RFRA from the two religious cemeteries
adjacent to O’Hare. Removing this protection from only two religious institutions – while
preserving Illinois RFRA protection for all others in the state (including all other religious
cemeteries) – cannot under any logical analysis be considered “neutral.” Nor can the §30
10 See Report of Proceedings Before FAA, August 18, 2005, at p. 212: “Mr. Karaganis: So to yourknowledge, there are not other religious properties, properties engaged in religious activities, in theacquisition area other than Rest Haven and St. Johannes, isn’t that right? Ms. Hacker [an official with theIllinois Historic Preservation Agency]: “That’s right.” (Emphasis added). (SA-505).
18
exemption be considered of “general applicability” when it applies only to St. Johannes and Rest
Haven Cemeteries.11
B. There Is No Requirement Of Animus Or Hostile Intent Toward A Given Religion InOrder For A Law That Is Neither Neutral Nor Of General Applicability To Be AFirst Amendment Free Exercise Violation.
The court below erroneously suggested that government could cause injury to a specific
religious group (here St. Johannes Cemetery) while protecting all other religious institutions
from this harm (i.e., by preserving their protection under Illinois RFRA) as long as the
government’s motives are not hostile toward that religious group.
“There is no indication in the complaint that the object of the law ‘is to infringeupon or restrict practices because of their religious motivation.’ See CL.U.B. at763 (emphasis added); see also City of Hialeah, 508 U.S. at 532 (governmentaction violates neutrality requirement if it ‘discriminates against some or allreligious beliefs or regulates or prohibits conduct because it is undertaken forreligious reasons.’)."
2005 WL 3078174, *9 (emphasis in italics inoriginal).
Justice Kennedy’s opinion in Church of the Lukumi, supra, held that as a minimum (but
certainly not as a necessary condition) governmental action which is harmful to religion and is
motivated by animus or ill will toward a given religion violates the Free Exercise guarantee.12
There was no basis for the district court to conclude, either from Smith or Church of the Lukumi,
that the Supreme Court holds government action which harms religion, and which is non-neutral
and not of general applicability, must also be motivated by hostility or animus toward a given
11 The district court appears to have mixed other provisions of the OMA (modifying several otherstate statutes not related to religious protection) with the challenged §30 amendment to Illinois RFRA. Itis true that the OMA modifies a number of other statutes dealing with secular subjects which applied toall of the property in the acquisition area. But the only law that stripped the two religious cemeteries oftheir protection under Illinois RFRA is the Section 30 amendment to Illinois RFRA, and that exemptiondoes not apply to any other properties to be acquired.
12 “At a minimum, the protections of the Free Exercise Clause pertain if the law at issuediscriminates against some or all religious beliefs or regulates or prohibits conduct because it isundertaken for religious reasons.” Church of the Lukumi, at 532.
19
religion. As Justice Scalia (who authored Smith) stated in his concurring opinion in Church of
the Lukumi:
“The First Amendment does not refer to the purposes for which legislators enactlaws, but to the effects of the laws enacted: ‘Congress shall make no law ...prohibiting the free exercise [of religion]....’ This does not put us in the businessof invalidating laws by reason of the evil motives of their authors. * * * Nor, inmy view, does it matter that a legislature consists entirely of the pure-hearted, ifthe law it enacts in fact singles out a religious practice for special burdens. Hadthe ordinances here been passed with no motive on the part of any councilmanexcept the ardent desire to prevent cruelty to animals (as might in fact have beenthe case), they would nonetheless be invalid.”
508 U.S. at 558-59. The Seventh Circuit agrees with Justice Scalia. DiMa Corp. v. Town of
Hallie, 185 F.3d 823, 828-29 (7th Cir. 1999). See also Laycock, Theology Scholarships, The
Pledge Of Allegiance, And Religious Liberty: Avoiding The Extremes But Missing The Liberty,
118 Harv. L. Rev. 155 (2004);13 and Laycock, The Supreme Court and Religious Liberty, 40
Cath. Law. 25 (2000) (“Whatever else it may be, Lukumi is not a motive case.” 40 Cath. Law. at
28 (emphasis added)).
Where as here governmental action is not neutral or of general applicability, there is no
additional requirement that the government’s harmful action be motivated by animus or ill will
toward a given religion. If Illinois (at Chicago’s behest) strips Illinois RFRA protection from
one religious institution while preserving that same protection for all other religious institutions
in the state, the fact that Chicago or Illinois has no special animus or ill will toward the injured
religious institution does not avoid the proscription of the Free Exercise Clause.
If Chicago could cause severe injury to one religious group – while protecting other
religious groups – simply by establishing Chicago had no religious animus, the protections of the
Free Exercise Clause would be eviscerated. For example, Chicago could decide to condemn for
13 “The persistent effort to read a bad motive requirement into the Smith-Lukumi rules distorts thestructure of those rules. Bad motive may be one way to prove a violation, but first and foremost, Smith-Lukumi is about objectively unequal treatment of religion and analogous secular activities.” Laycock, 118Harv. L. Rev. at 210 (emphasis added). “Insistence on proof of bad motive assumes that the treatment isnot really unequal unless badly motivated, or if there is a reason for it. But such assumptions wouldfundamentally rearrange the Smith-Lukumi burdens of justification. Id. at 210-211 (emphasis added).
20
economic development the religious properties of the Muslim faith (or the Jewish faith) while
avoiding condemnation of the property of the Catholic or Protestant faith. Under the district
court’s logic, such injury would not run afoul of the Free Exercise Clause because Chicago
would have no anti-religious animus or hostility toward the Muslim or Jewish religions. 14
Indeed, it would be a cruel irony if Chicago were allowed to eliminate, as to only two
religious institutions (St. Johannes and Rest Haven Cemetery), a religious protection law that
clearly has no requirement of animus or anti-religious bias as a necessary element of the
protection (i.e., the Illinois RFRA) and then claim as a defense to the resulting Free Exercise
violation that the stripping of the religious protection of Illinois RFRA was without animus, and
therefore acceptable under the First Amendment.15
14 Moreover, while not essential to plaintiffs’ claim, there are in fact disturbing indications in thelegislative history of the §30 amendment that special understandings were reached between thelegislation’s sponsors and certain religious groups: “The City has worked closely with the JewishFederation, with the Catholic Conference, with others to make sure that this language is acceptable.”Statement of Majority Leader of Illinois House, Transcript of Debate on House Bill 721 (the Houseversion of the OMA), May 31, 2003 at 134. The Majority Leader went on to say: “But again, this islanguage that the city has worked out with representatives of areas [sic] organizations, Christian as wellas Jewish.” Id. at 155. Whatever accommodations or arrangements Chicago or legislative leaders“worked out” with other Christian or Jewish organizations, apparently the legislative sponsors and “theCity” chose to strip the protection of the Illinois RFRA from these two little religious cemeteries wholacked the political influence to “work out” protection. Is not that the reason we have the Bill of Rights –to protect the weak and underrepresented from such chicanery?
15 While the singling out of St. Johannes and Rest Haven Cemeteries, to strip them of theirprotection under Illinois RFRA (while preserving the coverage of this important religious protection lawfor all other religious institutions), is the most blatant evidence of First Amendment Free Exerciseviolation, it is not the only evidence. Section 30 imposes a special penalty (loss of RFRA protection) ontwo religious institutions while retaining a special benefit (RFRA protection) for all other religiousinstitutions. But beyond the new Illinois RFRA exemption, the OMA also stripped these two religiouscemeteries of a number of secular legal protections that continued to apply to all other cemeteries in thestate – both religious and secular. The OMA also strips St. Johannes and Rest Haven Cemeteries ofprotections afforded all other cemeteries under the Illinois Municipal Code, 65 ILCS 5/11-51-1 (requiringassent of owners of cemetery before removal of remains) (OMA §92), under the Vital Records Act, 410ILCS 35/21 (requirement of notification and opportunity to object of next of kin) (OMA §93.5), andunder the Human Skeletal Remains Protection Act, 20 ILCS 3440 et seq. (OMA §91). Depriving onlytwo religious institutions (St. Johannes and Rest Haven Cemetery) of specific legal protections whilepreserving these protections for all other cemeteries, secular and religious alike, is in itself a violation ofthe Free Exercise Clause, and also demonstrates that OMA is neither neutral nor a law of generalapplicability as it relates to cemeteries.
21
II. THE §30 AMENDMENT TO THE ILLINOIS RFRA – AND OMA’S STRIPPING OFSECULAR PROTECTIONS FROM ONLY TWO RELIGIOUS CEMETERIES –REQUIRE THE APPLICATION OF THE STRICT SCRUTINY DOCTRINE.
The Equal Protection Clause calls for strict scrutiny when the government imposes
disadvantages according to the suspect classification of religion. See New Orleans v. Dukes, 427
U.S. 297, 303 (1976) (noting classifications presumptively unconstitutional if “drawn upon
inherently suspect distinctions such as race, religion, or alienage”). See also United States v.
Batchelder, 442 U.S. 114, 125 (1979) (“The Equal Protection Clause prohibits selective
enforcement based upon an unjustifiable standard such as race, religion, or other arbitrary
classification.”) (internal quotation omitted).
The discussion above demonstrates that the Section 30 amendment of the Illinois RFRA
violated the Free Exercise guarantee of the First Amendment. Where, as here, such a
fundamental right is subjected the substantial harm, the strict scrutiny doctrine of the Equal
Protection Clause necessarily applies. See e.g., Griffin High School v. Illinois High School
Assoc., 822 F.2d 671, 674 (7th Cir.1987) (“…[T]he Constitution requires heightened judicial
scrutiny in two situations: when a law classifies so as to burden a ‘suspect class,’ and when it
classifies in such a way as to infringe upon a constitutionally protected fundamental right”).
Here the constitutionally protected suspect class is the religious cemeteries and the
constitutionally protected right being harmed is First Amendment Free Exercise guarantee.16
Similarly, the only religious cemeteries stripped of the protection of a number of secular
statutory protections by the OMA are St. Johannes and Rest Haven. The strict scrutiny doctrine
applies here as well.
16 Wirzburger v. Galvin, 412 F.3d 271, 282-83 (1st Cir. 2005), relied upon by the district court,merely stands for the common sense principle that if no fundamental right is being harmed the strictscrutiny arm of Equal Protection analysis a fortiori does not apply. Strict scrutiny under the EqualProtection Clause only applies where a fundamental constitutional right or specially protected class issubjected to disparate treatment.
22
III. ST. JOHN’S UNITED CHURCH OF CHRIST IS ENTITLED TO THEPROTECTION OF RLUIPA.
A second major religious protection law which the St. John’s Plaintiffs sought to invoke
below is the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc, et seq.
(RLUIPA). Like its state and federal RFRA counterparts, RLUIPA contains no requirement that
the governmental action which causes the substantial burden on religion be based on government
animus or hostility toward religion:
No government shall impose or implement a land use regulation in a manner thatimposes a substantial burden on the religious exercise of a person, including areligious assembly or institution, unless the government demonstrates thatimposition of the burden on that person, assembly, or institution –
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmentalinterest.
42 U.S.C. §2000cc(a)(1) (emphasis added). RLUIPA defines “land use regulation” as follows:
The term “land use regulation” means a zoning or landmarking law, or theapplication of such a law, that limits or restricts a claimant’s use or developmentof land (including a structure affixed to land), if the claimant has an ownership,leasehold, easement, servitude, or other property interest in the regulated land or acontract or option to acquire such an interest.
42 U.S.C. §2000cc5(5) (emphasis added).17 The OMA is a land use regulation within the
purview of RLUIPA.
A. Chicago’s Proposed Acquisition And Destruction Of St. Johannes Imposes A“Substantial Burden” On The St. John’s Appellants’ Religious Beliefs.
There is no dispute that Chicago’s seizure and ultimate destruction of St. Johannes
Cemetery through condemnation will impose a “substantial burden” on the religious beliefs and
practices of the St. John’s Appellants. See, Mack v. O’Leary, 80 F.3d 1175, 1178 (7th Cir.
1996), vacated on other grounds, 522 U.S. 801 (1997) (“We hold, therefore, that a substantial
burden on the free exercise of religion, within the meaning of the Act, is one that forces
17 RLUIPA also states: “Broad Construction. This chapter shall be construed in favor of a broadprotection of religious exercise, to the maximum extent permitted by the terms of this chapter and theConstitution.” 42 U.S.C. § 2000cc-3(g).
23
adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains
conduct or expression that manifests a central tenet of a person's religious beliefs, or compels
conduct or expression that is contrary to those beliefs”).
Appellants hold a core religious belief that those buried at St. Johannes Cemetery should
not be disturbed until Judgment day when Christ will raise them up to Heaven. (See SA-200-21,
Exhibits 3H to 3L). Further, the St. John’s Appellants hold a core religious belief that St.
Johannes is consecrated ground held by St. John’s in sacred trust for God, and that seizure of
ownership of this consecrated ground through condemnation or otherwise will in and of itself be
a sacrilege and a serious injury to St. John’s Appellants’ religious beliefs. (SA-367-68).
Chicago has announced its intention to attempt to seize ownership of St. Johannes through
condemnation. Allowing the condemnation to go forward will cause serious and substantial
injury to St. John’s Appellants’ religious beliefs – incontrovertibly a “substantial burden” within
the meaning of Mack v O’Leary.18
B. The Terms Of RLUIPA Apply To This Case.
In the district court and in the 2d Amended Complaint, the St. John’s Appellants made
several distinct assertions as to why RLUIPA applies in this case. First, St. John’s contended
that the OMA itself is a zoning law that “limits or restricts a claimant’s [St. John’s] use or
development of the land [St. Johannes Cemetery].”19 The OMA statute changed the land use of
18 There is another harm that will result from Chicago’s condemnation of St. Johannes. It hasbecome clear that Chicago has a critical motive for trying to condemn St. Johannes Cemetery before thisCourt reaches final judgment on the merits of the RLUIPA claim. The condemnation action would bylegal effect strip St. John’s of any rights to RLUIPA protection, since RLUIPA protection under42 U.S.C.§2000cc-5(5) is limited to one who has an ownership or other property interest in the land.
19 The fact that the OMA was enacted by a state and not local government is immaterial. Hale OKaula Church v. Maui Planning Commission, 229 F. Supp. 2d 1056, 1070 (D. Hawaii 2002) (“the Courtfinds that [the state laws at issue] are ‘land use regulations’ for purposes of RLUIPA.”).
24
St. Johannes from a religious cemetery – permitted for more than 150 years – to “airport
property.”20
The OMA thus squarely fits within the common understanding of what a zoning-type law
is: “When an ordinance constitutes an attempt by the government to regulate the use of a piece
of property, it is an act of zoning.” Sagamore Park v. City of Indianapolis, 885 F. Supp. 1146,
1150 (S.D. Ind. 1994), referencing Pro-Eco, Inc. v. Board of Commissioners of Jay County,
Indiana, 776 F. Supp. 1368, 1371 (S.D. Ind. 1990), affirmed, 956 F.2d 635 (7th Cir. 1992). Such
regulation is a central purpose of the OMA – an omnibus bill that strips a wide variety of legal
requirements and protections for all of the land sought to be acquired by Chicago, and wipes out
existing zoning protections. See fn. 15, supra.21
20 Section 10 of the OMA classifies the two religious cemeteries and any other property to beacquired by Chicago for airport purposes as “airport property”. Section 25 of the OMA provides that any“airport property” “shall not be subject to the laws of any unit of local government except as provided byordinance of the City.” Section 15 of the OMA then authorizes Chicago to acquire “any property used forcemetery purposes within or outside the City” and gives Chicago the power to “require that the cemeterybe removed to a different location.”
21 By its own explicit terms, the OMA also affects landmarking law. It specifically exempts thesecemetery lands from the Illinois Historic Preservation Agency’s authority. See 20 ILCS 3435/1.5(“Nothing in this Act … requires that City … to obtain a permit [from the Historic Preservation Agency]under this Act when acquiring property or otherwise exercising its powers under the O'HareModernization Act.” (emphasis added)). The Historic Preservation Agency is charged with safeguardingthese historic interests: “The Historic Preservation Agency, in consultation with the various stateagencies owning or managing land for the use of the State of Illinois, shall develop regulations wherebypermits may be issued * * * These permits shall be issued by the Historic Preservation Agency afterconsultation with the head of the land managing agency.” 20 ILCS 3435/6(a) (emphasis added).
It is a violation of state law for any legal entity (excepting now the City of Chicago, and only when itregulates O’Hare lands) to “excavate or collect any of the archaeological … resources protected by thisAct, unless such person obtains a permit issued by the Historic Preservation Agency * * * [or] disturb anyarchaeological … resource protected under this Act.” 20 ILCS 3435/3 (emphasis added). An“archaeological resource” is defined under state law as “any significant material remains or localities ofpast human life or activities on public land, including but not limited to … historic … human skeletalremains ….” 20 ILCS 3435/.02(a) (emphasis added). The remains in the 150-year old cemetery clearlyqualify for such protection by the Historic Preservation Agency. Yet the OMA removes this permittingrequirement. In other words, the land use protections enjoyed by the cemeteries for their historic remains– including the necessity of a permit for excavation – have vanished. Coupled with the broad protectionfor religious liberty established by 42 U.S.C. § 2000cc-3(g), the burden on religious exercise has beenimplemented through “land use regulations.” See AMERICAN HERITAGE DICTIONARY OF THE
Footnote continued on next page
25
St. John’s Religious Plaintiffs also maintained that Chicago’s proposed condemnation of
St. Johannes falls within RLUIPA for two further reasons:
(1) First, the condemnation is the “application” (42 U.S.C. §2000cc-5(5)) or
“implementation” (42 U.S.C. §2000cc(a)(1)) of a land use law (i.e., the OMA).22
(2) Second, the condemnation is – in and of itself – a land use regulation because it
restricts the use of St. John’s land as a religious cemetery.
The district court simply ignored St. John’s demonstration that the OMA statute is a land
use regulation and “zoning” statute, and that Chicago’s condemnation of St. Johannes is an
“application” and “implementation” of the OMA.
Compounding this failure, the district court’s treatment of condemnation itself as a land
use regulation is intrinsically inconsistent. On one hand, the district court stated: “Condemnation
is, in one sense, the ultimate limitation on the use of property.” But then the district court –
though acknowledging Congress’s mandate that RLUIPA be construed broadly in favor of
protection of religious practices and institutions – concluded: “This Court is no[t] persuaded that
it should construe the concept of zoning so broadly that any acquisition of land by the City
pursuant to eminent domain proceedings is an act of zoning.” 2005 WL 3078174 *11.
Apart from the decision below, only one reported decision directly addresses the issue of
whether condemnation is a “zoning law” – i.e., a law that restricts the use of land – within the
meaning of RLUIPA. See Cottonwood Christian Center v. Cypress Redevelopment Agency, 218
F. Supp. 2d 1203 (C.D. Cal. 2002)23. In Cottonwood, the court held: ENGLISH LANGUAGE (4th Ed. 2000) (“landmark: n. … A building or site with historicalsignificance…” (emphasis added)).
22 “No government shall impose or implement a land use regulation” 42 U.S.C. §2000cc(a)(1). “Theterm ‘land use regulation’ means a zoning or landmarking law, or the application of such a law.” 42U.S.C. §2000cc(a)(1) (emphasis added).
23 The St. John’s Religious Appellants advise the Court that on December 19, 2005 — after the St.John’s Religious Appellants had filed their original brief with this Court on December 14, 2005 — theDistrict Court for the Western District of New York issued a decision disagreeing with Cottonwood andholding that condemnation in that case was not a “land use regulation” within the meaning of RLUIPA.
Footnote continued on next page
26
Even if the Court were only considering the condemnation proceedings, theywould fall under RLUIPA’s definition of "land use regulation" which is definedas "a zoning or landmarking law, or the application of such a law, that limits orrestricts the claimant's use or development of land ...." 42 U.S.C. §2000cc-5(5).The Redevelopment Agency's authority to exercise eminent domain to contraveneblight, as set forth in the Resolution of Necessity, is based on a zoning systemdeveloped by the City (the LART Plan). It would unquestionably "limit[ ] orrestrict [ ]" Cottonwood's "use or development of land."
Cottonwood Christian Center, 218 F. Supp. 2d at1222, n.9 (emphasis added).
The district court below disregarded Cottonwood saying that “This Court does not find the
Cottonwood court's reasoning persuasive as it relates to such an attenuated relationship between
eminent domain and zoning.” 2005 WL 3078174 *11, n.7. In so doing, the district court
ignored the key language of RLUIPA that governs governmental action harmful to religion if
that action is taken in the “application” or “implementation” of a land use regulation. Here the
land use regulation or zoning law is OMA, which wiped out all existing zoning protections and
classifications for the existing properties and replaced them all with the land use classification of
“airport property”. It is this land use or zoning law (i.e., a law that restricts the use of land) that
is the source of Chicago’s condemnation power over St. Johannes Cemetery. It is this law (the
OMA) that Chicago is applying and implementing in its proposed condemnation of St. Johannes
Cemetery.
Regardless of whether Chicago’s condemnation of St. Johannes Cemetery: (a) is itself a
“zoning law” (i.e., a law that restricts the use of land); or (b) the “application” or
“implementation” of a zoning law (the OMA), the RLUIPA applies and St. John’s is entitled to
RLUIPA’s protection.
Faith Temple Church v. Town of Brighton, ___ F.Supp. 2d ___, 2005 WL 3454309 (W.D.N.Y.,December 19, 2005). In order to comply with this Court’s direction in its December 23, 2005 order thatthe substantive arguments in this brief not be modified, the St. John’s Religious Appellants will addressthe Faith Temple decision in their reply brief.
27
IV. ST. JOHN’S RELIGIOUS APPELLANTS ARE ENTITLED TO A TRIAL IN THEDISTRICT COURT, WHERE CHICAGO MUST ESTABLISH BY EVIDENCETHAT THERE IS A COMPELLING NEED TO DESTROY ST. JOHANNESCEMETERY, AND THAT THERE ARE NO AVAILABLE ALTERNATIVESWHICH WOULD AVOID SUCH DESTRUCTION.
As shown above, Chicago’s proposed condemnation and destruction of St. Johannes
Cemetery violates three separate and important legal protections of religious freedom: The First
Amendment Free Exercise Clause, the Equal Protection Clause, and RLUIPA. Each of these
legal protections prohibits the government from taking the harmful action (here the
condemnation and destruction of St. Johannes) before the government first submits evidence to
the court that: (a) there is a compelling governmental need to condemn and destroy the religious
cemetery; and (b) there is no alternative which would meet the asserted governmental need
without the harmful action.24
We do not ask that this Court resolve factual disputes; that is a matter for trial in the
district court. But we respectfully ask that this Court accept the affidavits of Mr. Joseph Del
Balzo (SA-336 e.g., at ¶¶26-74 and at SA-397;) as evidence that there are serious good faith
factual questions as to whether: (a) there is a compelling governmental need to destroy St.
Johannes; and (b) whether there are other alternatives to avoid the destruction of St. Johannes.25
24 Under RLUIPA, once substantial burden is established (as it has been here), both the burden ofproof and the burden of coming forward with evidence falls on the local government. Sts. Constantineand Helen Greek Orthodox Church, Inc., v. City of New Berlin, 396 F.3d 895, 901 (7th Cir. 2005).
25 It is apparent that the district court uncritically succumbed to the public relations hype aboutlevels of delay at O’Hare. Compare the district court opinion at 2005 WL 3078174 *4, n.4, citing 2003delays. The 2003 circumstances are in sharp contrast to the current delay situation at O’Hare, as reflectedin FAA data, and in statements by the FAA and the Department of Transportation Inspector General (SeeDel Balzo affidavits, SA-397 at ¶¶6-18; and SA-344 at ¶38. As if to provide an imprimatur to Mr. DelBalzo’s factual assertions, on November 21, 2005, FAA released a previously undisclosed September 30,2005 letter regarding cost-benefit requirements which makes the following admission: “When thiscapacity is put into place, FAA forecasts suggest that after a few years, the additional capacity will beexhausted and a new cap will be necessary at the airport. As a consequence, average expected delay inthe future with the expansion will be about the same as it is today with the current cap.” September 30,2005 letter from FAA consultant GRA to FAA (emphasis added). (SA-596).
28
CONCLUSION
For all the reasons set forth above, the St. John’s Religious Appellants respectfully ask
this Court to reverse the November 16, 2005 decision of the district court as to Chicago and to
remand to the district court with direction to enter an injunction against Chicago prohibiting
Chicago from taking St. Johannes unless and until there is a trial in the district court where
Chicago demonstrates by a preponderance of the evidence that: (a) there is a compelling
governmental need to destroy St. Johannes; and (b) there are no alternatives to meeting
compelling governmental need without requiring the destruction of St. Johannes.
Respectfully submitted,
Joseph V. KaraganisAttorney for Plaintiffs-Appellants St. John’s UnitedChurch of Christ, Helen Runge and Shirley Steele
ksj134-9
CERTIFICATE OF COMPLIANCE WITHTYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS,
AND TYPE STYLE REQUIREMENTS
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because:
X this brief contains 10,578 words, excluding the parts of the brief exempted
by Fed. R. App. P. 32(a)(7)(B)(iii), or
___ this brief uses a monospaced typeface and contains [state the number of ]
lines of text, excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because:
X this brief has been prepared in a proportionally spaced typeface using
Microsoft Word 97 in 12-point Times New Roman, or
___ this brief has been prepared in a monospaced typeface using [state name
and version of word processing program] with [state number of characters
per inch and name of type style].
/s A. Bruce White A. Bruce WhiteAttorney for Plaintiffs-Appellants St. John’sUnited Church of Christ, Helen Runge andShirley Steele
Dated: December 27, 2005
KSJ133U
STATUTORY ADDENDUM
TABLE OF CONTENTSStatutory Addendum
U.S. Constitution: First Amendment........................................................................................ ST-1
U.S. Constitution: Fourteenth Amendment.............................................................................. ST-1
Illinois Religious Freedom Restoration Act, 775 ILCS 35/1 et seq.......................................... ST-2
Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc............................. ST-5
ST-1
U.S. Constitution: First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercisethereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably toassemble, and to petition the Government for a redress of grievances.
U.S. Constitution: Fourteenth Amendment
Section. 1. All persons born or naturalized in the United States and subject to the jurisdictionthereof, are citizens of the United States and of the State wherein they reside. No State shall makeor enforce any law which shall abridge the privileges or immunities of citizens of the United States;nor shall any State deprive any person of life, liberty, or property, without due process of law; nordeny to any person within its jurisdiction the equal protection of the laws.
Section. 2. Representatives shall be apportioned among the several States according to theirrespective numbers, counting the whole number of persons in each State, excluding Indians nottaxed. But when the right to vote at any election for the choice of electors for President and VicePresident of the United States, Representatives in Congress, the Executive and Judicial officers of aState, or the members of the Legislature thereof, is denied to any of the male inhabitants of suchState, being twenty-one years of age, and citizens of the United States, or in any way abridged,except for participation in rebellion, or other crime, the basis of representation therein shall bereduced in the proportion which the number of such male citizens shall bear to the whole number ofmale citizens twenty-one years of age in such State.
Section. 3. No person shall be a Senator or Representative in Congress, or elector of President andVice President, or hold any office, civil or military, under the United States, or under any State,who, having previously taken an oath, as a member of Congress, or as an officer of the UnitedStates, or as a member of any State legislature, or as an executive or judicial officer of any State, tosupport the Constitution of the United States, shall have engaged in insurrection or rebellion againstthe same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirdsof each House, remove such disability.
Section. 4. The validity of the public debt of the United States, authorized by law, including debtsincurred for payment of pensions and bounties for services in suppressing insurrection or rebellion,shall not be questioned. But neither the United States nor any State shall assume or pay any debt orobligation incurred in aid of insurrection or rebellion against the United States, or any claim for theloss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal andvoid.
Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions ofthis article
ST-2
Illinois Religious Freedom Restoration Act,775 ILCS 35/1
35/1. Short title
§ 1. Short title. This Act may be cited as the Religious Freedom Restoration Act.
35/5. Definitions
§ 5. Definitions. In this Act:
"Demonstrates" means meets the burdens of going forward with the evidence and ofpersuasion.
"Exercise of religion" means an act or refusal to act that is substantially motivated byreligious belief, whether or not the religious exercise is compulsory or central to a largersystem of religious belief.
"Government" includes a branch, department, agency, instrumentality, and official (orother person acting under color of law) of the State of Illinois or a political subdivision ofthe State, including a home rule unit.
35/10. Findings and purposes
§ 10. Findings and purposes.
(a) The General Assembly finds the following:
(1) The free exercise of religion is an inherent, fundamental, and inalienable rightsecured by Article I, Section 3 of the Constitution of the State of Illinois.
(2) Laws "neutral" toward religion, as well as laws intended to interfere with theexercise of religion, may burden the exercise of religion.
(3) Government should not substantially burden the exercise of religion withoutcompelling justification.
(4) In Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Courtvirtually eliminated the requirement under the First Amendment to the UnitedStates Constitution that government justify burdens on the exercise of religionimposed by laws neutral toward religion.
ST-3
(5) In City of Boerne v. P. F. Flores, 65 LW 4612 (1997) the Supreme Court heldthat an Act passed by Congress to address the matter of burdens placed on theexercise of religion infringed on the legislative powers reserved to the statesunder the Constitution of the United States.
(6) The compelling interest test, as set forth in Wisconsin v. Yoder, 406 U.S. 205(1972), and Sherbert v. Verner, 374 U.S. 398 (1963), is a workable test forstriking sensible balances between religious liberty and competinggovernmental interests.
(b) The purposes of this Act are as follows:
(1) To restore the compelling interest test as set forth in Wisconsin v. Yoder, 406U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963), and toguarantee that a test of compelling governmental interest will be imposed onall State and local (including home rule unit) laws, ordinances, policies,procedures, practices, and governmental actions in all cases in which the freeexercise of religion is substantially burdened.
(2) To provide a claim or defense to persons whose exercise of religion issubstantially burdened by government.
35/15. Free exercise of religion protected
§ 15. Free exercise of religion protected. Government may not substantially burden aperson's exercise of religion, even if the burden results from a rule of generalapplicability, unless it demonstrates that application of the burden to the person (i) is infurtherance of a compelling governmental interest and (ii) is the least restrictive means offurthering that compelling governmental interest.
35/20. Judicial relief
§ 20. Judicial relief. If a person's exercise of religion has been burdened in violation ofthis Act, that person may assert that violation as a claim or defense in a judicialproceeding and may obtain appropriate relief against a government. A party who prevailsin an action to enforce this Act against a government is entitled to recover attorney's feesand costs incurred in maintaining the claim or defense.
35/25. Application of Act; home rule powers
§ 25. Application of Act; home rule powers.
ST-4
(a) This Act applies to all State and local (including home rule unit) laws, ordinances,policies, procedures, practices, and governmental actions and theirimplementation, whether statutory or otherwise and whether adopted before orafter the effective date of this Act.
(b) Nothing in this Act shall be construed to authorize a government to burden anyreligious belief.
(c) Nothing in this Act shall be construed to affect, interpret, or in any way addressany of the following: (i) that portion of the First Amendment of the United StatesConstitution prohibiting laws respecting the establishment of religion, (ii) thesecond sentence of Article I, Section 3 of the Illinois Constitution, or (iii) ArticleX, Section 3 of the Illinois Constitution. Granting government funding, benefits,or exemptions, to the extent permissible under the 3 constitutional provisionsdescribed in items (i), (ii), and (iii) of this subsection, does not constitute aviolation of this Act. In this subsection, "granting", used with respect togovernment funding, benefits, or exemptions, does not include the denial ofgovernment funding, benefits, or exemptions.
(d) The corporate authorities of a municipality or other unit of local government mayenact ordinances, standards, rules, or regulations that protect the free exercise ofreligion in a manner or to an extent equal to or greater than the protectionprovided in this Act. If an ordinance, standard, rule, or regulation enacted underthe authority of this Section or under the authority of a unit of local government'shome rule powers prohibits, restricts, narrows, or burdens a person's exercise ofreligion or permits the prohibition, restriction, narrowing, or burdening of aperson's exercise of religion, that ordinance, standard, rule, or regulation is voidand unenforceable as to that person if it (i) is not in furtherance of a compellinggovernmental interest and (ii) is not the least restrictive means of furthering thatgovernmental interest. This subsection is a limitation under subsection (i) ofSection 6 of Article VII of the Illinois Constitution on the concurrent exercise byhome rule units of powers and functions exercised by the State.
35/30. O'Hare Modernization
§ 30. O'Hare Modernization. Nothing in this Act limits the authority of the City ofChicago to exercise its powers under the O'Hare Modernization Act for the purposes ofrelocation of cemeteries or the graves located therein.
35/99. Effective date
§ 99. Effective date. This Act takes effect on July 1, 1998.
ST-5
Religious Land Use and Institutionalized Persons Act,42 U.S.C. §2000cc
§ 2000cc. Protection of land use as religious exercise
(a) Substantial burdens
(1) General rule
No government shall impose or implement a land use regulation in a manner that imposesa substantial burden on the religious exercise of a person, including a religious assemblyor institution, unless the government demonstrates that imposition of the burden on thatperson, assembly, or institution--
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmentalinterest.
(2) Scope of application
This subsection applies in any case in which--
(A) the substantial burden is imposed in a program or activity that receivesFederal financial assistance, even if the burden results from a rule of generalapplicability;
(B) the substantial burden affects, or removal of that substantial burden wouldaffect, commerce with foreign nations, among the several States, or withIndian tribes, even if the burden results from a rule of general applicability;or
(C) the substantial burden is imposed in the implementation of a land useregulation or system of land use regulations, under which a governmentmakes, or has in place formal or informal procedures or practices that permitthe government to make, individualized assessments of the proposed uses forthe property involved.
(b) Discrimination and exclusion
(1) Equal terms
No government shall impose or implement a land use regulation in a manner that treats areligious assembly or institution on less than equal terms with a nonreligious assembly orinstitution.
ST-6
(2) Nondiscrimination
No government shall impose or implement a land use regulation that discriminatesagainst any assembly or institution on the basis of religion or religious denomination.
(3) Exclusions and limits
No government shall impose or implement a land use regulation that--
(A) totally excludes religious assemblies from a jurisdiction; or
(B) unreasonably limits religious assemblies, institutions, or structures within ajurisdiction.
§ 2000cc-2. Judicial relief
(a) Cause of action
A person may assert a violation of this chapter as a claim or defense in a judicial proceeding andobtain appropriate relief against a government. Standing to assert a claim or defense under thissection shall be governed by the general rules of standing under Article III of the Constitution.
(b) Burden of persuasion
If a plaintiff produces prima facie evidence to support a claim alleging a violation of the FreeExercise Clause or a violation of section 2000cc of this title, the government shall bear theburden of persuasion on any element of the claim, except that the plaintiff shall bear the burdenof persuasion on whether the law (including a regulation) or government practice that ischallenged by the claim substantially burdens the plaintiff's exercise of religion.
(c) Full faith and credit
Adjudication of a claim of a violation of section 2000cc of this title in a non-Federal forum shallnot be entitled to full faith and credit in a Federal court unless the claimant had a full and fairadjudication of that claim in the non-Federal forum.
(d) Omitted
(e) Prisoners
Nothing in this chapter shall be construed to amend or repeal the Prison Litigation Reform Act of1995 (including provisions of law amended by that Act).
(f) Authority of United States to enforce this chapter
ST-7
The United States may bring an action for injunctive or declaratory relief to enforce compliancewith this chapter. Nothing in this subsection shall be construed to deny, impair, or otherwiseaffect any right or authority of the Attorney General, the United States, or any agency, officer, oremployee of the United States, acting under any law other than this subsection, to institute orintervene in any proceeding.
(g) Limitation
If the only jurisdictional basis for applying a provision of this chapter is a claim that a substantialburden by a government on religious exercise affects, or that removal of that substantial burdenwould affect, commerce with foreign nations, among the several States, or with Indian tribes, theprovision shall not apply if the government demonstrates that all substantial burdens on, or theremoval of all substantial burdens from, similar religious exercise throughout the Nation wouldnot lead in the aggregate to a substantial effect on commerce with foreign nations, among theseveral States, or with Indian tribes.
§ 2000cc-5. Definitions
In this chapter:
(1) Claimant
The term "claimant" means a person raising a claim or defense under this chapter.
(2) Demonstrates
The term "demonstrates" means meets the burdens of going forward with the evidenceand of persuasion.
(3) Free Exercise Clause
The term "Free Exercise Clause " means that portion of the First Amendment to theConstitution that proscribes laws prohibiting the free exercise of religion.
(4) Government
The term "government"—
(A) means--
(i) a State, county, municipality, or other governmental entity created underthe authority of a State;
(ii) any branch, department, agency, instrumentality, or official of an entitylisted in clause (i); and
ST-8
(iii) any other person acting under color of State law; and
(B) for the purposes of sections 2000cc-2(b) and 2000cc-3 of this title, includesthe United States, a branch, department, agency, instrumentality, or official ofthe United States, and any other person acting under color of Federal law.
(5) Land use regulation
The term "land use regulation" means a zoning or landmarking law, or the application ofsuch a law, that limits or restricts a claimant's use or development of land (including astructure affixed to land), if the claimant has an ownership, leasehold, easement,servitude, or other property interest in the regulated land or a contract or option to acquiresuch an interest.
(6) Program or activity
The term "program or activity" means all of the operations of any entity as described inparagraph (1) or (2) of section 2000d-4a of this title.
(7) Religious exercise
(A) In general
The term "religious exercise" includes any exercise of religion, whether or notcompelled by, or central to, a system of religious belief.
(B) Rule
The use, building, or conversion of real property for the purpose of religiousexercise shall be considered to be religious exercise of the person or entity thatuses or intends to use the property for that purpose.
APPENDIX
TABLE OF CONTENTS
1. Rule 54(b) Judgment (Coar, J.) - November 16, 2005.............................................. A-1
2. Memorandum Opinion and Order (Coar, J.) - November 16, 2005.......................... A-2
3. Minute Order (Coar, J.) [stay pending appeal denied] - November 16, 2005........... A-35
4. Transcript of Proceedings before the Hon. David Coar - November 16, 2005......... A-36
CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 30(D)
The undersigned attorney certifies that all materials required by Circuit Rule 30(a) and
(b) of the United States Court of Appeals for the Seventh Circuit are included in the Brief
Appendix or in the Separate Appendix to Appellant’s Brief.
/s A. Bruce White A. Bruce WhiteAttorney for Plaintiffs-Appellants St. John’s UnitedChurch of Christ, Helen Runge and Shirley Steele
KSJ133AC
CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 31(E)(1)
The undersigned attorney certifies that Plaintiffs-Appellants’ digital version of this filing
contains Appellant’s Brief and all items in the Appendix, excepting those Appendix items which
are not available electronically.
/s A. Bruce White
A. Bruce WhiteAttorney for Plaintiffs-Appellants St. John’s UnitedChurch of Christ, Helen Runge and Shirley Steele
KSJ133CD
CERTIFICATE OF SERVICE
The undersigned attorney certifies that on December 27, 2005, two copies of Appellants’
Brief were served upon each of the persons below, in the manner indicated.
/s A. Bruce White A. Bruce WhiteAttorney for Plaintiffs-Appellants St. John’s UnitedChurch of Christ, Helen Runge and Shirley Steele
By Messenger DeliveryMara S. GeorgesCorporation Counsel, City of ChicagoBenna Ruth SolomonSuzanne M. Loose30 North LaSalle Street, Suite 800Chicago, IL 60602
By Messenger DeliveryPatrick W. JohnsonAssistant United States Attorney219 South Dearborn StreetChicago, Illinois 60604
By U.S. MailLisa MadiganAttorney General, State of Illinois100 West Randolph Street, 12th FloorChicago, IL 60601
By U.S. MailCharles ProckOffice of the Regional CounselFederal Aviation Administration2300 East Devon Avenue, Suite 479Des Plaines, IL 60018
KSJ133CS