River Of Life Kingdom Ministries v. Vill. Of Hazel Crest

• Decision Date: 02 July 2010
• Docket Number: No. 08-2819.,08-2819.
• Parties: RIVER OF LIFE KINGDOM MINISTRIES, Plaintiff-Appellant,v.VILLAGE OF HAZEL CREST, ILLINOIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

611 F.3d 367

RIVER OF LIFE KINGDOM MINISTRIES, Plaintiff-Appellant,v.VILLAGE OF HAZEL CREST, ILLINOIS, Defendant-Appellee.

No. 08-2819.

United States Court of Appeals Seventh Circuit.

Argued Feb. 24, 2010.

Decided July 2, 2010.

Vincent M. Auricchio, Attorney, Chicago, IL, David R. Langdon, Attorney (argued), Langdon Law, LLC, Cincinnati, OH, for Plaintiff-Appellant.

John B. Murphey, Attorney (argued), Rosenthal, Murphey, Coblentz & Donahue, Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and CUDAHY, POSNER, FLAUM, MANION, KANNE, ROVNER, WOOD, WILLIAMS, SYKES, TINDER, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge.

The court granted rehearing en banc to consider the proper standard for applying the equal-terms provision of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc. That provision states that “no government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” § 2000cc(b)(1).

The appellant, River of Life, is a small church (it has 67 members, only about half of whom attend services on an average Sunday) that at present operates out of rented space in a cramped, dirty warehouse in Chicago Heights, a town 27 miles south of downtown Chicago. It wanted to relocate to a building in the Village of Hazel Crest, a town of some 15,000 people located two miles north and slightly west of Chicago Heights. The building, however, is in a part of the town designated by the town's zoning ordinance as a commercial district. The district is in the town's oldest part, which is run down; indeed the entire town has been in economic decline for years. The area designated as a commercial district is close to the train station, and the presence of commuters might enable the district to be revitalized as a commercial center. The zoning ordinance has therefore been amended to exclude new noncommercial uses from the district, including not only churches but also community centers, schools, and art galleries.

River of Life sued the Village under the equal-terms provision and moved for a preliminary injunction against the enforcement of the zoning ordinance. The district judge denied the motion and a panel of this court affirmed, mainly on the ground that the church was unlikely to prevail when the case was fully litigated. 585 F.3d 364 (7th Cir.2009). The existence of an intercircuit conflict with respect to the proper test for applying the equal-terms provision, combined with uncertainty about the consistency of our decisions, persuaded the full court to hear the case in order to decide on a test.

Two of our sister courts of appeals have proposed tests. The Third Circuit in Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir.2007), ruled that “a regulation will violate the Equal Terms provision only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory purpose ” (emphasis in original). The court must identify first the goals of the challenged zoning ordinance and second the secular assemblies (meeting places) that are comparable to the plaintiff's religious assembly in the sense of having roughly the same relation to those goals. If the reasons for excluding some category of secular assembly-whether traditional reasons such as effect on traffic or novel ones such as creating a “Street of Fun,” see, e.g., Clifton Hill, “Fun by the Falls,” www. cliftonhill. com (visited May 25, 2010)-are applicable to a religious assembly, the ordinance is deemed neutral and therefore not in violation of the equal-terms provision. But if a secular assembly is allowed and the religious assembly banned even though the two assemblies don't differ in any way material to the regulatory purpose behind the ordinance, then neutrality has been violated and equality denied. That was the situation in the Lighthouse case. The zoning ordinance permitted meeting halls in the district in which the church wanted to locate and there was no way to distinguish between meeting halls and churches on the basis of the purpose of the ordinance. The Third Circuit therefore ordered summary judgment in favor of the church with respect to its challenge to the ordinance (though not its challenge to a newer redevelopment plan), saying that “Long Branch [the defendant] has failed to create a genuine issue of material fact as to whether the Ordinance treated religious assemblies or institutions on less than equal terms with non-religious assemblies or institutions that caused equivalent harm to its governmental objectives.” 510 F.3d at 272-73.

An alternative test was adopted by the Eleventh Circuit in Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1230-31 (11th Cir.2004), and followed in Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295, 1308-10 (11th Cir.2006), and Konikov v. Orange County, 410 F.3d 1317, 1324-29 (11th Cir.2005) (per curiam). The Eleventh Circuit reads the language of the equal-terms provision literally: a zoning ordinance that permits any “assembly,” as defined by dictionaries, to locate in a district must permit a church to locate there as well even if the only secular assemblies permitted are hospital operating theaters, bus terminals, air raid shelters, restaurants that have private dining rooms in which a book club or professional association might meet, and sports stadiums. In Midrash the court held that where private clubs are allowed, so must churches be.

Pressed too hard, this approach would give religious land uses favored treatment-imagine a zoning ordinance that permits private clubs but not meeting halls used by political advocacy groups. The court indicated, however, that a seemingly unequal treatment of religious uses that nevertheless is consistent with the “strict scrutiny” standard for determining the propriety of a regulation affecting religion would not violate the equal-terms provision. Midrash Sephardi, Inc. v. Town of Surfside, supra, 366 F.3d at 1232.

Our own cases dealing with that provision had cited Midrash without criticism but had not been centrally concerned with the interpretive issue presented in this case. In Digrugilliers v. Consolidated City of Indianapolis, 506 F.3d 612, 616-17 (7th Cir.2007), the issue was whether by granting churches rights that, though unlikely to be exercised, would conflict with rational zoning policy, a municipality could exclude churches from a district in which otherwise similar secular assemblies were permitted; we held it could not. In Vision Church v. Village of Long Grove, 468 F.3d 975, 1002-03 (7th Cir.2006), which we decided against the church plaintiff, the restaurants and health clubs that the church considered comparable land users that were treated more favorably than it was were located in a commercial district rather than in the residential district in which the church sought to build, and “the fact that [the church] and the elementary schools [which the church also contended were comparable, and which were permitted under a prior city ordinance but would have been excluded under the current ordinance] were subject to different standards because of the year in which their special use applications were considered compels the conclusion that there was no unequal treatment.” Id. at 1003.

Neither the Third Circuit's nor the Eleventh Circuit's approach, though in application they might yield similar or even identical results-and results moreover that would strike most judges as proper-is entirely satisfactory. We are troubled by the Eleventh Circuit's rule that mere “differential treatment” between a church and some other “company of persons collected together in one place ... usually for some common purpose” (the court's preferred dictionary definition of “assembly”) violates the equal-terms provision. Midrash Sephardi, Inc. v. Town of Surfside, supra, 366 F.3d at 1230-31. “Assembly” so understood would include most secular land uses-factories, nightclubs, zoos, parks, malls, soup kitchens, and bowling alleys, to name but a few (visitors to each of these institutions have a “common purpose” in visiting)-even though most of them have different effects on the municipality and its residents from a church; consider just the difference in municipal services required by different land uses, including differences in the amount of police protection. The land use that led the Eleventh Circuit in Midrash to find a violation of the equal-terms provision was, however, a private club, and it is not obvious that it has different effects on a municipality or its residents from those of a church. Thus our quarrel is not with the result in Midrash but with the Eleventh Circuit's test.

A subtler objection to the test is that it may be too friendly to religious land uses, unduly limiting municipal regulation and maybe even violating the First Amendment's prohibition against establishment of religion by discriminating in favor of religious land uses. See Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 900 (7th Cir.2005). The Supreme Court had held in Employment Division v. Smith, 494 U.S. 872, 878-80, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), that the clause of the First Amendment that guarantees the free exercise of religion does not excuse churches from having to comply with nondiscriminatory regulations, such as the prohibition of drugs believed to be dangerous, even if the regulation interferes with church rituals or observances: “we have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Id. at 878-79, 110 S.Ct. 1595. If they were excused, this might be deemed favoritism to religion and thus violate...