In a Decision Involving O'Hare Airport's Planned Expansion, the U.S. Court of Appeals for the Seventh Circuit Rightly Rejects a Religious Land Use Claim

By MARCI HAMILTON

Thursday, Sep. 20, 2007

The U.S. Court of Appeals for the Seventh Circuit has now paved the way for O'Hare Airport to expand, in a persuasive opinion by Judge Wood, St. John's United Church of Christ v. City of Chicago. The opinion addresses questions involving the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (RLUIPA), but ultimately rejects these objections to O'Hare's expansion.

As the decision points out, anyone who travels by air knows that one of the most likely sources of delay in the sky is O'Hare. One of the busiest airports in the world, it has outgrown its current facilities, and local, state, and federal authorities all agree that it must expand. The problem, however, is that expansion requires the exercise of the government's eminent domain power because the surrounding land is already in use.

Moreover, some of the use is religious use: The original proposal included the necessity of the government's taking land currently used for two religiously-affiliated cemeteries, Rest Haven and St. John's United Church of Christ.

No governing body relishes having to move cemeteries, and the authorities in this case reconfigured the plan to be as accommodating as it could, making it possible for one of the cemeteries - Rest Haven - to continue undisturbed. (Thus, Rest Haven's claims were dismissed as moot.) But the plan will now go forward over the objection of St. John's.

IRFRA and the Free Exercise Clause

In opposing the taking, St. John's cited the Illinois Religious Freedom Restoration Act (IFRA), one of the rash of state RFRAs enacted following the Supreme Court's decisions in Employment Div. v. Smith and Boerne v. Flores.

Like most RFRAs, including the federal version, IRFRA imposes strict scrutiny on neutral and generally-applicable governing decisions. This is a higher standard than the First Amendment's Religion Clauses require, for they are more concerned with laws that target religion, than laws that sweep some religious institutions within their neutral scope.

IRFRA forces the government to prove that any regulation substantially burdening religious conduct was passed to serve a compelling interest and constituted the least restrictive means (vis-a-vis the religious entity) of achieving that interest. In other words, IRFRA created a privilege for religious entities to fight otherwise neutral regulation.

Why St. John's Was Unable to Win Under IRFRA: An Express Exception for O'Hare

The problem for St. John's, however, was that IRFRA was specifically amended to say that nothing in it "limits the authority of the City of Chicago to exercise its powers under the [O'Hare airport expansion plan] for the purpose of relocation of cemeteries or graves located therein."

Notably, the amendment covers both religious and non-religious cemeteries. Yet St. John's challenged the amendment on the ground that it "targeted" a religious use in violation of the Free Exercise Clause - a type of argument that is becoming more and more common in religious land use litigation, with or without the facts to support it.

Here, the Seventh Circuit rejected the "targeting" claim, pointing out that "[t]here are simply no facts in the voluminous record on appeal that support any such claim of targeting religious institutions or practices." The court was right to so hold: Perhaps there might be a circumstance where carving out some aspect of a religious freedom statute might be some evidence of intentional discrimination, but no such evidence exists here.

St. John's argument with respect to IRFRA amounts, at base, to this: Once a RFRA is in place, an entitlement has been created. Thus, removal of the privilege constitutes constitutionally-actionable discrimination under the Free Exercise Clause.

This argument defies both common sense and Supreme Court precedent. The amendment to IRFRA simply returned religious entities affected by the O'Hare airport expansion to the normal, constitutional environment, wherein neutral, generally applicable laws, consistent with the Supreme Court's jurisprudence, can be applied to religious entities. Such entities are still protected by the Takings Clause's requirement of "just compensation"; the point is that they otherwise have no greater constitutional protection from neutral laws than do secular entities. Granted, the goal of the federal RFRA and the state versions was to put in place what the drafters felt was an already constitutionally-required regime. However, the Supreme Court, in Boerne v. Flores, emphatically rejected such reasoning.

The truth here is that St. John's is not being targeted; it is being reluctantly included in a larger plan. Its land, unfortunately, is situated on land that multiple authorities now have concluded is necessary for O'Hare to expand. Indeed, St. John's has had to concede as much. As the court put it, "St. John's does not allege that the City is seeking to acquire its land because of its religious significance; the City needs the land in spite of its current dedication to religious use."

St. John's Equally Questionable Equal Protection Argument

The other constitutional argument that St. John's floated was that its rights under the Equal Protection Clause were violated, because it was the only entity that was affected by the IRFRA amendment. For this reason, St. John's contended that strict scrutiny was required. The court, however, rejected that notion, pointing out that there is no suspect class here, for equal protection purposes; neither "cemeteries adjacent to O'Hare" nor "geography" can qualify.

Once again, there simply was no evidence here that the relevant authorities were acting in ways to suppress St. John's religious beliefs or practices. To the contrary, the Seventh Circuit remarked, there was evidence that they had "studied the alternatives thoughtfully, adopted some of them, and came up with a final plan that represents the City's best effort to be solicitous of the religious concerns involved without substantially undermining the goals of the overall project."

St. John's Attempt to Invoke the Federal Religious Land Use and Institutionalized Persons Act

Finally, St. John's argued that the City's exercise of its eminent domain power was governed by the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), which governs "land use" law. (I have discussed RLUIPA at length in previous columns, including this one.) While RLUIPA plainly was intended to apply to zoning disputes, neither its legislative history nor language supports the conclusion that Congress intended to re-configure the boundaries of local and state governments' ability to exercise their constitutional power under the Takings Clause.

The Seventh Circuit rightly rejected the only dictum available supporting such a view, which appears in a footnote to a California federal district court's decision in Cottonwood Christian Center v. Cypress Redevelopment Agency. Instead, it followed the well-reasoned opinions of those courts that have found that eminent domain is simply not within the scope of RLUIPA.

Why the Dissent Was Unpersuasive

On a three-judge panel, St. John's arguments did draw one dissent, by Judge Ripple. However, it is unconvincing, for several reasons.

First, Judge Ripple seems to argue that strict scrutiny is the correct standard under the Free Exercise Clause in most circumstances, which is plainly incorrect. As the Court has recognized in a long line of cases, culminating in Employment Division v. Smith, "incidental burdens" on religious conduct are not constitutionally suspect when they arise out of neutral, generally applicable laws. (Smith upheld state unemployment compensation and banned substances laws as applied to the religious use of peyote.) There is simply nothing in the facts or issues raised by this case that argues in favor of bumping up the level of scrutiny to strict scrutiny.

In any event, as the majority points out, even if strict scrutiny were applicable, it would be satisfied here. The government's interest is compelling: O'Hare is a disaster for airline travelers. Moreover, there was no less restrictive alternative that could have achieved this interest. As noted above, the plan had already been reconfigured to avoid at least one of the two religious cemeteries, and no further accommodation was reasonably possible.

Strong Positive Developments in the Seventh Circuit's Land Use Jurisprudence

Like the St. John's/O'Hare decision, the Seventh Circuit's decision in Vision Church v Village of Long Grove is also encouraging in that it injects a wholesome common sense into the Circuit's religious land use jurisprudence. In that case, the court rejected the church's arguments against having to go through a special use permit process and size requirements, among other arguments. Essentially, the court reasoned that religious entities can be subject to standard zoning requirements.

These two decisions stand in sharp contrast to the Circuit's prior, strained decision in Sts. Constantine and Helen Orthodox Church v. New Berlin, involving a local government's refusal to change the zoning designation for a church, but willingness to permit the church's plan to go forward without the zoning change. There, the Seventh Circuit seemed to say that expense and delay in land use matters were "substantial burdens" sufficient to trigger RLUIPA claims. But such a suggestion would essentially give religious entities a trump card in zoning matters: Please show me a land use plan that does not involve expense or delay, including the simplest of home additions

In sum, the Seventh Circuit's O'Hare decision and its Vision Church decision are, together, a breath of fresh air. Let's hope the Seventh Circuit continues on this wise and sensible path with respect to religious land use claims.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Professor Hamilton's forthcoming book is titled, How to Deliver Us from Evil: What America Must Do to Protect Its Children (Cambridge University Press 2008).

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