The 7th Circuit Court of Appeals held yesterday (September 13, 2007) that the O’Hare Modernization Act (the “OMA”), which, among other things, amended the Illinois Religious Freedom Restoration Act (IRFRA) and excluded the O’Hare expansion project from IRFRA’s reach, does not violate the U.S. Constitution or the Religious Land Use and Institutionalized Persons Act (RLUIPA). The State Legislature passed the OMA in 2003 to facilitate improvements and expansion to the airport. St. John’s United Church claimed that the City’s attempt to condemn a cemetery located on Church property violated the First Amendment’s Free Exercise Clause, the Fourteenth Amendment’s Equal Protection Clause and the RLUIPA.
On the Constitutional claims the Court found that the “object” of the OMA was to clear all legal obstacles to the O’Hare expansion project, and not to target the religious cemeteries that (among many other properties) the City needs to acquire. Hence the inquiry required in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) was satisfied because the OMA did not “infringe upon or restrict practices because of their religious motivation.” The Court concluded that, “ there is nothing inherently religious about cemeteries or graves, and the act of relocating them thus does not on its face infringe upon a religious practice, as Lukumi uses that term.” In dismissing the Equal Protection claim, the Court found that the statute did not classify St. John’s cemetery on the basis of religion, and further that the airport expansion was a compelling governmental interest.
With respect to the RLUIPA claim, interestingly, the Court started by stating that they assumed the constitutionality of the statute based upon the U. S. Supreme Court holding in Cutter v. Wilkinson, 544 U.S. 709 (2005), but since the constitutionality of the land use section of RLUIPA was not raised by the parties here, they were saving that issue for another day. The Court next turned to the definition of “land use regulation” in the statute, which provides, “ [A] zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of 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 a contract or option to acquire such an interest.“( 42 U.S.C. § 2000cc-5(5)).The Court determined that RLUIPA did not apply here because the OMA was not a “land use regulation.” In doing so, the Court commented on the distinction between zoning and eminent domain and cited Faith Temple Church v. Town of Brighton, 405 F. Supp. 2d 250, 254 (W.D.N.Y. 2005).
St. John’s United Church of Christ v. The City of Chicago, http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=05-4418&submit=showdkt (both the opinion and the oral argument can be viewed at the above link).
Note: Although I agree with outcome here that RLUIPA does not apply because the action is not a “land use,” caselaw in other jurisdictions at the state level does suggest that in general a cemetary can be a religious use if it is operated by a religious organization.
