Warner v. City of Boca Raton

• Citation: 267 F.3d 1223
• Decision Date: 01 October 2001
• Docket Number: No. 99-13730,99-13730
• Parties: (11th Cir. 2001) RICHARD WARNER, MIRIAM WARNER, et al. Plaintiffs-Appellants, v. CITY OF BOCA RATON, Defendant-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1223

267 F.3d 1223 (11th Cir. 2001)

RICHARD WARNER, MIRIAM WARNER, et al. Plaintiffs-Appellants, v. CITY OF BOCA RATON, Defendant-Appellee.

No. 99-13730

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

October 1, 2001

Appeal from the United States District Court for the Southern District of Florida, D. C. Docket No. 98-08054-CV-KLR

Before EDMONDSON, DUBINA and POLITZ^*, Circuit Judges.

PER CURIAM:

In this case, we review the district court's dismissal of federal and state law claims involving a city's enforcement of cemetery regulations. Before ruling on the state law claims, we will ask the Florida Supreme Court for some advice about Florida law. Because it is possible that after we hear from the Florida Supreme Court, we will determine that the City's regulations violate state law and will have no reason to reach the federal questions, we decide nothing today. Instead, we certify some questions to Florida's highest court.

I. Background

Defendant-city, Boca Raton ("City") owns, operates, and maintains a cemetery for its residents. In 1982, the City passed a regulation prohibiting vertical grave markers, memorials, monuments, and other structures (collectively, "grave decorations").

Class plaintiffs ("Plaintiffs") are city residents who purchased burial plots in the City's cemetery. Plaintiffs desire to place vertical grave decorations on their cemetery plots to observe sincerely held religious beliefs. Despite the prohibitive regulation, some plaintiffs, between 1984 and 1996, decorated family graves with vertical grave decorations.

In 1991, the City notified plot owners who had placed vertical grave decorations at their plots that, if the plot owners did not remove the vertical decorations, then the City would remove the noncomplying structures. Not all plot owners removed their vertical grave decorations. A similar notice was sent in 1992; and again, some vertical grave decorations remained.

In response to objections from plot owners, the City Counsel postponed the removal of noncomplying structures and ordered a study to reevaluate the ordinance. Meanwhile, in 1996, the City amended the pertinent regulation to permit some vertical grave decorations up to 60 days from the date of burial and on certain holidays.

A study by researchers at Florida Atlantic University in 1997 concluded that most plot owners approved of the vertical grave decoration regulation, as amended in 1996. The City then announced its intention to begin enforcing the regulation as amended in 1996. All cemetery plot decorations had to be brought into compliance by 15 January 1998. Plaintiffs later filed this lawsuit.

Plaintiffs allege that the prohibition on vertical grave decorations violates the Florida Religious Freedom Restoration Act of 1998, Fla. Stat. § 761.01 ("Florida RFRA"), and state and federal constitutional protections for freedom of religious expression, freedom of speech, and due process of law. After a bench trial, the district court concluded that the prohibition violates no federal or state rights as alleged by Plaintiffs.¹ Plaintiffs timely appealed.

II. The State Law Claims

In the wake of the United States Supreme Court's decision, City of Boerne v. Flores, 117 S. Ct. 2157 (1997), the State of Florida passed the Florida RFRA.

The Florida RFRA statute provides that:

(1) The government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, except that government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person:

(a) Is in furtherance of a compelling governmental interest; and (b) Is the least restrictive means of furthering that compelling governmental interest.

Fla. Stat. § 761.03. Florida RFRA goes on to define "exercise of religion" as "an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief." Fla. Stat. § 761.02(3).

In this case, the federal district court, which was the first court to issue a published opinion interpreting Florida RFRA,² said the state statute applied only to conduct that "reflects some tenet, practice or custom of a larger system of religious beliefs," and not to "conduct that reflects a purely personal preference regarding religious exercise." Warner v. City of Boca Raton, 64 F.Supp.2d 1272, 1283 (S.D. Fla. 1999).

To determine if conduct is a tenet, practice or custom of a larger system of religious beliefs covered by Florida RFRA, the court adopted a four-part test that was suggested by Defendant's expert.

[A] court should consider whether the practice: 1) is asserted or implied in relatively unambiguous terms by an authoritative sacred text; 2) is clearly and consistently affirmed in classic formulations of doctrine and practice; 3) has been observed continuously, or nearly so, throughout the history of the tradition; and 4) is consistently observed in the tradition as we meet it in recent times. If a practice meets all four of these criteria, it can be considered central to the religious tradition. If the practice meets one or more of these criteria, it can be considered a tenet, custom, or practice of the religious tradition. If the practice meets none of these criteria, it can be considered a matter of purely personal preference regarding religious exercise.

Id. at 1285.

Applying this test, the district court concluded that, while marking graves with religious symbols is a custom or practice of Plaintiffs' religious traditions, maintaining grave markers in a vertical position is merely personal preference and no custom or practice of Plaintiffs' religion.

Plaintiffs argue that the district court's four-part test ignores the plain language in the state statute that the religious exercise need not be "compulsory or central to a larger system of religious belief." Plaintiffs also argue that the district court erred in equating the protection of religious expression afforded by the Florida Constitution to the protection afforded by the United States Constitution. Plaintiffs argue, in effect, that the Florida Constitution requires strict scrutiny of any statute that results in a restriction on religious practice.³

What practices amount to religious practice protected by the First Amendment has been a central question in Free Exercise jurisprudence. See, e.g. Wisconsin v. Yoder, 92 S. Ct. 1526, 1534 (1972) (court determined that Amish traditions and culture were so intimately related to their religious beliefs that state law mandating attendance at school until age 16 carried "a very real threat of undermining the Amish community and religious practice as they exist today.") In 1993, Congress passed the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb, et seq., in direct response to the United States Supreme Court's decision, Employment Div. Dept. of Human Resources of Oregon v. Smith, 110 S. Ct. 1595 (1990). In Smith, the Court had said that neutral laws of general applicability that incidentally conflict with religious practice would not be subject to strict judicial scrutiny. Id. at 1603.

RFRA was designed to require the courts to apply a strict scrutiny test to any law that "substantially burdened" a person's practice of religion. RFRA was invalidated by the Supreme Court's decision in City of Boerne v. Flores, 117 S.Ct. 2157 (1997). Before the Supreme Court ruled in Flores, a number of the circuit courts of appeals had been confronted with deciding what amounted to a substantial burden on religious practice for the purpose of RFRA. The courts of appeals took different approaches to answering this question. See Mack v. O'Leary, 80 F.3d 1175, 1178 (7th Cir. 1996), judgment vacated 118 S. Ct. 36 (1997), (collecting cases). The more...