Religious Land Use Appeal Looks to 'Hobby Lobby'

law.com

A federal appeals court on Monday will hear arguments for the first time on how to apply recent U.S. Supreme Court precedent to a federal statute that protects religious groups from unconstitutionally restrictive land-use regulations.

The case, before the U.S. Court of Appeals for the Ninth Circuit, partly hinges on the Burwell v. Hobby Lobby decision in June, in which the Supreme Court found that the federal government violated the Religious Freedom Restoration Act by requiring the retailer to provide health insurance coverage for contraceptives under the Patient Protection and Affordable Care Act.

The current case was brought by a Christian church that was denied a permit from city officials in Ventura, Calif., to feed the homeless on its property. The church asserts that the city’s actions violated the Religious Land Use and Institutionalized Persons Act, or RLUIPA, which prohibits zoning laws from imposing on religious practices without using “the least restrictive means of furthering a compelling governmental interest.” The city, however, has maintained its actions amounted to the need for public safety given an increase in crime in the area.

The church’s attorney, Lisa Freeman, an associate at Los Angeles-based Horvitz & Levy, has turned to Burwell v. Hobby Lobby to argue that denying the permit was a substantial burden on her client’s exercise of religion.

And in a decision closer to current case, she cited the Jan. 20 Supreme Court ruling in Holt v. Hobbs, in which the court concluded that Arkansas prison officials had violated RLUIPA when they refused to allow a Muslim inmate to grow a half-inch beard.

“This was very fortuitous timing for us because these are arguments we’re making in this case, and now we have a unanimous Supreme Court decision reaffirming the breadth of the federal law,” Freeman said.

Ira Lupu, a constitutional law professor at George Washington University Law School who focuses on religious rights, said both cases, in which religious interests prevailed over the government’s, could make it much harder for city officials to succeed before the Ninth Circuit.

“Those two decisions are quite firm in their language about how to read those statutes, and so some of the wiggle room the lower courts were playing with before has been removed or narrowed,” he said.

Thomas Brown, a partner in Burke, Williams & Sorensen’s Oakland office who represents city officials in the case, did not return a call for comment.

Harbor Missionary Church had been offering food, laundry and access to its showers to the homeless since 2008. In 2013, city officials in Ventura demanded that the church obtain a conditional use permit. When it applied, they denied its request.

The church, represented by Stanford Law School’s Religious Liberty Clinic, filed its suit on May 14, alleging violations of the RLUIPA and the First Amendment. It sought injunctive relief to lift the city’s ban so that it could continue to provide its homeless services.

After initially granting a temporary restraining order, U.S. District Judge Manuel Real of the Central District of California rejected the preliminary injunction on July 9. In a July 18 order, he concluded that city officials, who had provided declarations from 60 of the church’s neighbors, had a compelling governmental interest in curbing rising crime they attributed to its homeless program.

In a Sept. 8 brief on appeal, Brown noted that the church refused to consider alternatives, including relocating its homeless program from its current building, which is next to a daycare and a school.

But Freeman said city officials have failed to show they used the “least restrictive means to further their compelling interest.”

“One of the big arguments on this appeal is to the extent the city has concerns about crime, it can use its police force to address those concerns,” she said. “They argue that they don’t have that obligation, and if they did provide extra police that would be subsidizing the church’s religious practice. Hobby Lobby and Holt say that that’s not so.”

But in a Jan. 26 letter Brown disagreed, noting also that Holt dealt with the prisoner portion of RLUIPA—which protects the religious practices of institutionalized individuals—not the land-use side.

“Neither Holt nor Hobby Lobby describes when a government must incur expenses to ‘avoid imposing a substantial burden,’ ” he wrote. “And no court has held that RLUIPA requires government to subsidize religious exercise by financing measures to mitigate the impacts of a church’s irresponsible land use.”

Marci Hamilton, chairwoman of public law at Yeshiva University Benjamin N. Cardozo School of Law and a leading church/state scholar who is following the case, agreed. She also said that unlike previous examples when churches have successfully litigated their religious rights to feed the homeless, city officials in this case presented facts and the testimonies of police officers that crime had increased.

“It’s one thing for the local government to say as a general matter this kind of entity might increase crime,” she said. “It’s another thing to have the actual statistics that show that when this entered the district that’s in conjunction with residential homes there was an actual impact on crime. Those are facts on the city’s side.”

Eric Rassbach, deputy general counsel of The Becket Fund for Religious Liberty, a public interest organization that advocates for religious groups in the courts, predicted that RLUIPA’s land-use portion could end up before the Supreme Court— perhaps even in this case.

“It will be interesting to see how courts of appeals dealing with religious land use apply Holt v. Hobbs to that situation because it is the same statue, but it’s a different part,” he said.

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