Civil Liberties v. City of Chicago ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4030
CIVIL LIBERTIES FOR URBAN BELIEVERS,
CHRIST CENTER, CHRISTIAN COVENANT
OUTREACH CHURCH, et al.,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94 C 6151—William J. Hibbler, Judge.
____________
ARGUED JANUARY 17, 2003—DECIDED AUGUST 20, 2003
____________
Before BAUER, POSNER, and EVANS, Circuit Judges.
BAUER, Circuit Judge. Appellants, an association of
Chicago-area churches and five individual member churches
thereof, appeal from the district court’s entry of summary
judgment in favor of Appellee, the City of Chicago, on Ap-
pellants’ claims challenging the Chicago Zoning Ordinance
(“CZO”), 17 MUNICIPAL CODE OF CHICAGO, ILL., §§ 1-11,
under the federal Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 UNITED STATES CODE § 2000cc
et seq., and the United States Constitution. For the reasons
set forth below, we affirm the decision of the district court.
2 No. 01-4030
BACKGROUND
The CZO broadly divides the city into R, B, C, and M
zones for residential, business, commercial, and manufac-
turing uses, respectively. Each zone, in turn, is subdivided
into numbered districts and subdistricts. A majority of
Chicago land available for development is zoned R. The
CZO’s stated purposes include the following: (i) “to promote
and to protect the public health, safety, morals, comfort,
convenience, and the general welfare of the people,” and (ii)
“to protect the character and maintain the stability for
residential, business, commercial, and manufacturing areas
within the City, and to promote the orderly and beneficial
development of such areas.” See 17 MUN. CODE CHI. § 2
(1), (3) (2001). Churches are permitted uses as of right in all
R zones, but are termed Variations in the Nature of Special
Uses (“Special Use”) in all B zones as well as C1, C2, C3,
and C5 districts. All Special Uses, whether of a religious or
nonreligious nature, require approval by the Zoning Board
of Appeals (“ZBA”) following a public hearing. See id. §§ 7.3-
1(4), 8.4, 9.4, & 11.10. Special Use approval is expressly
conditioned upon the design, location, and operation of the
proposed use consistent with the protection of public health,
safety, and welfare, and the proposed use must not substan-
tially injure the value of neighboring property. See id.
§ 11.10-4. Factoring such expenses as application, title
search, and legal fees, as well as appraisal and neighbor
notification costs, the aggregate cost of obtaining Special
Use approval approaches $5000. Before a church may locate
in a C4 district or an M zone, the Chicago City Council
must vote in favor of a Map Amendment, effectively
rezoning the targeted parcel. See id. §§ 9.4-4, 10, & 11.9.
Development for church use of land consisting of two or
more acres (necessary for congregations exceeding roughly
500 members) requires approval by City Council vote of a
Planned Development. See id. § 11.11-1(a) & 11.11-3.
No. 01-4030 3
Civil Liberties for Urban Believers (“CLUB”) is an
unincorporated association of 40 to 50 Chicago-area reli-
gious or not-for-profit Illinois corporations ranging in size
from 15 to 15,000 congregants. Five of these individual
member churches1 joined CLUB as plaintiffs in an action
challenging the validity of the CZO. The district court
summarized as follows the encounters of the five individual
plaintiff churches with Chicago’s zoning framework as
alleged in Appellants’ complaint:
Christ Center began meeting in a high school audito-
rium in 1990, but soon experienced difficulties at this
location due to various school functions that interrupted
weekly worship. As a result, Christ Center began
searching for a building to purchase. The church was
unsuccessful in locating an appropriate building in any
R districts. In the summer of 1992, Christ Center
located a suitable building at 1139-43 West Madison in
Chicago. The building was located in a C district and
Christ Center promptly applied for a special use permit.
After completing the application process, Christ Center
reached out to gain the support of neighbors and
Alderman Theodore Mazola. Most neighbors favored a
taxpaying entity in the neighborhood rather than a
church and Alderman Mazola stated that he would
support the church’s special use permit on any street
but Madison. The Zoning Board eventually convened a
special hearing on September 18, 1992. On October 18,
1992, the special use permit was denied. Christ Center
subsequently found a second building in an M district
at 123 South Morgan. The owner of the building also
agreed to provide financing. However, the Chicago
1
Those five Churches are (i) Christ Center; (ii) Christian
Covenant Outreach Church (“Christian Covenant”); (iii) His Word
Ministries to All Nations (“His Word”); (iv) Christian Bible Church
(“Christian Bible”); and (v) Monte de Sion Church (“Mount Zion”).
4 No. 01-4030
Department of Planning and Development informed
Christ Center that it would oppose any rezoning appli-
cation because the particular area was designated to
become an entertainment area and the presence of a
church would inhibit such development. Christ Center
subsequently choose not to file an application for
rezoning. In the fall of 1993, Christ Center obtained
property at 4445 South King Drive, successfully ob-
tained a special use permit and now operates a church
at this location. Christ Center now claims that it paid
substantial sums in attorneys fees, appraisal fees,
zoning application charges, title charges and other
expenses attempting to find suitable property.
Between 1986 and the summer of 1988, Christian Bible
met in a private home. The church eventually outgrew
this space and began meeting in a funeral home. The
funeral home, however, proved aesthetically and
administratively problematic. In 1990, Christian Bible
located a suitable building in a B district at 83rd and
Essex. Alderman Beavers promptly informed Christian
Bible that “he would not allow” a church at that loca-
tion. Consequently, Christian Bible did not apply for a
special use permit at this location. In March 1991,
Christian Bible purchased property in another B
district at 513-23 East 75th Street. The Park Manor
Neighbors Association and Alderman Steele both
opposed the church’s special use permit application. On
May 17, 1991, the permit was denied. Christian Bible
then unsuccessfully attempted to sell the building for
10 months. In February 1992, Christian Bible reno-
vated the building to enhance its appearance. During
these renovations, the church rented space at another
location, or held meetings at private homes. Christian
Bible later reapplied for a special use permit which was
granted on August 20, 1993 with the support of neigh-
bors in the district. Christian Bible now claims the
No. 01-4030 5
delay in obtaining a special use permit prevented the
church from obtaining a real estate tax exemption. The
church further alleges that it also paid substantial
sums in expenses related to the application process and
also suffered a decrease in membership. Christian Bible
now owns and meets at a church at 6210 S. St. Louis
and has successfully obtained a special use permit to
operate the church.
From February, 1988 to December, 1993, Mount Zion
rented space in a C district at 4545 North Kedzie.
During this period, Mount Zion never applied for a
special use permit. In 1990, a [Chicago] inspector
ordered Mount Zion to vacate the building. In April
1993, Mount Zion located suitable rental property at
3949 North Pulaski, and applied for a special use
permit. During this process, the Zoning Board informed
Mount Zion that the building lacked adequate parking
accommodations for a church and both the building and
each parking lot would require special use permits.
Alderman Wojcik and a neighborhood group also
opposed Mount Zion’s application. Consequently, Mount
Zion withdrew its application for a special use permit.
Mount Zion now owns and meets in a church at 3807 N.
Lavergne.
On November 1, 1992, Christian Covenant first rented
property in a C district. The owner of the building
offered to co-sign a loan enabling Christian Covenant to
purchase the property. However, [Chicago] inspectors
ordered Christian Covenant to stop using the building
as a church without a special use permit. As a result,
Christian Covenant did not purchase the building out
of fear [Chicago] would not allow the building to be
used as a church without a special use permit. Chris-
tian Covenant now owns and meets in a church located
in an R district.
6 No. 01-4030
Between 1990 and 1992, His Word met in the basement
of a private home until membership outgrew these
accommodations. In 1992, His Word located a suitable
building in a C district at 1616 West Pershing. On
March 27, 1992, the church signed a purchase contract
contingent upon the grant of a special use permit. After
filing their special use permit application, His Word
met with neighbors in the district who generally
supported it. Alderman Patrick Huels stated he would
neither support nor oppose the application. On three
separate occasions, at the request of Alderman Huels,
the [ZBA] postponed a hearing on His Word’s applica-
tion. On October 14, 1992, Alderman Huels introduced
an amendment to the [CZO] to rezone the property
located at 1616 West Pershing from a C district to an M
district. After a hearing on December 10, 1992, Alder-
man William Banks and other aldermen on the Chicago
Committee on Zoning of the Chicago City Council voted
to recommend approval of the amendment. Both His
Word and Citibank, the owner of the building, opposed
the rezoning. On December 15, 1992, the Chicago City
Council voted to enact the rezoning amendment chang-
ing 1616 West Pershing from a C district to an M
district. His Word subsequently withdrew its applica-
tion for a special use permit; the church spent a consid-
erable sum on filing, attorney’s and appraiser’s fees.
His Word now owns and meets in a church located in an
R district.
Civil Liberties for Urban Believers v. Chicago, 157
F.Supp.2d 903, 907-08 (N.D. Ill. 2001).
This appeal from the district court’s summary judgment
ruling in favor of Chicago on Appellants’ fourth amended
complaint reaches us via a long and tortuous procedural
No. 01-4030 7
path.2 Appellants amended their original complaint to
remove claims challenging the CZO under the federal
Religious Freedom Restoration Act, 42 U.S.C. 2000bb et
seq. (“RFRA”), after the Supreme Court invalidated relevant
provisions of RFRA in City of Boerne v. Flores, 521 U.S. 507(1997). In February 2000, in response to Appellants’
remaining constitutional challenges to the CZO’s designa-
tion of churches vis-à-vis various nonreligious assembly
uses in B, C, and M zones, the City Council amended the
CZO to require clubs, lodges, meeting halls, recreation
buildings, and community centers to obtain Special Use
approval in order to locate within any B and C zones and a
Map Amendment in order to locate within any M zone. The
amendments also (i) exempt churches from the requirement
that a Special Use applicant affirmatively demonstrate that
the proposed use “is necessary for the public convenience at
that location” and (ii) provide that a Special Use permit
shall automatically issue in the event that the ZBA fails to
render a decision within 120 days of the date of application.
Several months thereafter, Congress reacted to the Su-
preme Court’s decision in City of Boerne with the enactment
of RLUIPA and Appellants subsequently amended their
complaint once more to include claims against Chicago
pursuant to RLUIPA.3
2
The procedural history includes an opinion of this Court holding
that legislative immunity shields Chicago Aldermen William
Banks and Patrick Huels from any liability arising out of their
zoning-related actions. Plaintiffs Ira Iglesia de la Biblia Abierta
and His Word sought to hold the aldermen personally liable for
alleged civil rights violations resulting from the aldermen’s
introduction of legislation intended to rezone 1616 West Pershing
Road, effectively preventing its use as a church. See Iglesia de la
Biblia Abierta v. Banks, 129 F.3d 899 (7th Cir. 1997); and Civil
Liberties for Urban Believers, 157 F.Supp.2d at 908.
3
Noting that the district court’s opinion narrates more thor-
oughly the procedural history of this case, see 157 F.Supp.2d at
(continued...)
8 No. 01-4030
In addition to the RLUIPA claim, Appellants’ final
amended complaint argued, in part, that the CZO and the
administrative and legislative processes for obtaining
Special Use, Map Amendment, and Planned Development
approval violate Appellants’ rights to (i) free exercise of
religion, speech, and assembly under the First Amendment
of the United States Constitution, (ii) equal protection
under the Fourteenth Amendment of the United States
Constitution as well as the Illinois Constitution, and (iii)
procedural due process under the Fourteenth Amendment
of the United States Constitution. Appellants also claimed
that the rezoning of 1616 West Pershing Road (“Pershing”)
violated His Word’s constitutional rights.4
In granting summary judgment in favor of Chicago, the
district court determined that the February 2000 amend-
ments to the CZO removed “any potential substantial
burden” on religious exercise, such that Chicago
avoid[ed] the preemptive force of any provision of
[RLUIPA] by changing the policy or practice that
result[ed] in a substantial burden on religious exercise,
by retaining the policy or practice and exempting the
substantially burdened religious exercise, by providing
exemptions from the policy or practice for applications
that substantially burden religious exercise, or by any
other means that eliminate[ed] the substantial burden.
42 U.S.C. § 2000cc-3(e). With respect to Appellants’ equal
protection claims, the district court concluded that Chi-
cago’s zoning scheme is rationally related to a legitimate
3
(...continued)
905-08, we limit our opinion to include only those procedural
details directly relating to our disposition of this appeal.
4
Pursuant to 28 U.S.C. § 1367(c), the district court dismissed
without prejudice Appellants’ claim under the Illinois Religious
Freedom Restoration Act, 775 ILL. COMP. STAT. § 35/15.
No. 01-4030 9
government purpose and thus constitutional. The district
court also rejected Appellants’ due process claims, noting
that City Council and ZBA legislative procedures and
practices afforded Appellants what minimal process is due
in zoning cases. In its discussion of Appellants’ First
Amendment claims, the district court explained that the
CZO and its Special Use provisions are neutral and gener-
ally applicable law which do not impermissibly burden the
free exercise of religion, and that the operation of a church
is subject to zoning laws, even where such operation
involves conduct within the core of the First Amend-
ment—here, religious speech and assembly. Finally, while
acknowledging that the conduct of Alderman Huels in
connection with the Pershing rezoning was “egregious” and
perhaps “dishonorable”, the district court relied on this
Court’s decision in Biblia Abierta, 129 F.3d at 901-02, to
conclude that such legislative action was constitutional
insofar as it (i) afforded His Word procedural due process,
(ii) was taken subject to neutral and generally applicable
ordinances, and (iii) was rationally related to Chicago’s
legitimate interests in developing the commercial areas
adjacent to the parcel while avoiding land-use conflicts.
The district court subsequently denied Appellants’
motion, pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure (“FRCP”), to reconsider its summary judgment.
See Civil Liberties for Urban Believers v. Chicago, No. 94 C
6151 (N.D. Ill. Mar. 29, 2002). This appeal ensued.
ANALYSIS
We review the district court’s grant of summary judgment
de novo. See, e.g., Freedom of Religion Foundation v.
Bugher, 249 F.3d 606, 610 (7th Cir. 2001). Summary
judgment is proper where there is no genuine issue as to
any material fact. Such is the case where the nonmoving
party has failed to make a sufficient showing on an essen-
10 No. 01-4030
tial element of his case with respect to which he has the
burden of proof, because a complete failure of proof concern-
ing an essential element of his case necessarily renders all
other facts immaterial. In such a case, the moving party is
entitled to judgment as a matter of law and summary
judgment must issue against the nonmoving party. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); FED. R. CIV. P.
56(c).
I. Religious Land Use and Institutionalized Persons Act
Appellants argue that the CZO violates RLUIPA’s
substantial burden provision, which requires land-use
regulations that substantially burden religious exercise to
be the least restrictive means of advancing a compelling
government interest, see 42 U.S.C. § 2000cc(a), as well as its
nondiscrimination provision, which prohibits land-use
regulations that either disfavor religious uses relative to
nonreligious uses or unreasonably exclude religious uses
from a particular jurisdiction, see 42 U.S.C. § 2000cc(b).5
5
In relevant part, those provisions read as follows:
§ 2000cc. Protection of land use as religious exercise.
(a) Substantial burdens.
(1) General rule. No government shall impose or imple-
ment a land use regulation in a manner that imposes a
substantial burden on the religious exercise of a person,
including a religious assembly or institution, unless the
government demonstrates that imposition of the burden
on that person, assembly, or institution—
(A) is in furtherance of a compelling governmental
interest; and
(B) is the least restrictive means of furthering that
compelling governmental interest.
(continued...)
No. 01-4030 11
In order to prevail on a claim under the substantial
burden provision, a plaintiff must first demonstrate that
the regulation at issue actually imposes a substantial
burden on religious exercise. RLUIPA defines “religious
exercise” to encompass “any exercise of religion, whether or
not compelled by, or central to, a system of religious belief,”
including “[t]he use, building, or conversion of real property
for the purpose of religious exercise.” 42 U.S.C. § 2000cc-
5(7). This definition reveals Congress’s intent to expand the
concept of religious exercise contemplated both in decisions
5
(...continued)
(2) Scope of application. This subsection applies in any
case in which. . .
(C) the substantial burden is imposed in the implemen-
tation of a land use regulation or system of land use
regulations, under which a government makes, or has
in place formal or informal procedures or practices that
permit the government to make, individualized assess-
ments of the proposed uses for the property involved.
(b) Discrimination and exclusion.
(1) Equal terms. No government shall impose or imple-
ment 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.
(2) Nondiscrimination. No government shall impose or
implement a land use regulation that discriminates
against any assembly or institution on the basis of
religion or religious denomination.
(3) Exclusions and limits. No government shall impose or
implement a land use regulation that—
(A) totally excludes religious assemblies from a jurisdic-
tion; or
(B) unreasonably limits religious assemblies, institutions,
or structures within a jurisdiction.
42 U.S.C. § 2000cc.
12 No. 01-4030
discussing the precursory RFRA, see, e.g., Hicks v. Garner,
69 F.3d 22, 26 n. 22 (5th Cir. 1995) (collecting cases defin-
ing “substantial burden on religious exercise” under RFRA),
and in traditional First Amendment jurisprudence, see, e.g.,
Hernandez v. Commissioner, 490 U.S. 680, 699 (1989)
(religious exercise as “the observation of a central religious
belief or practice” (citations omitted)); Thomas v. Review
Bd. of the Indiana Employment Sec. Div., 450 U.S. 707, 718,
(1981) (religious exercise as behavior and beliefs compelled
by a particular religion); Sherbert v. Verner, 374 U.S. 398,
404 (1963) (religious exercise as adherence to the central
precepts of a religion). Although the text of the statute
contains no similar express definition of the term “substan-
tial burden,” RLUIPA’s legislative history indicates that it
is to be interpreted by reference to RFRA and First Amend-
ment jurisprudence. See 146 CONG. REC. 7774-01, 7776
(“The term ‘substantial burden’ as used in this Act is not
intended to be given any broader interpretation than the
Supreme Court’s articulation of the concept of substantial
burden or religious exercise”). Chicago cites a decision of
this Court which held that, within the meaning of RFRA, a
substantial burden on religious exercise “is one that forces
adherents of a religion to refrain from religiously motivated
conduct, inhibits or constrains conduct or expression that
manifests a central tenet of a person’s religious beliefs, or
compels conduct or expression that is contrary to those
beliefs.” Mack v. O’Leary, 80 F.3d 1175, 1179 (7th Cir. 1996)
(vacated on other grounds). Substituting RLUIPA’s broader
definition of religious exercise, which need not be “com-
pelled by or central to” a particular religion, for that
articulated in Mack, the meaning of “substantial burden on
religious exercise” could be read to include the effect of any
regulation that “inhibits or constrains the use, building, or
conversion of real property for the purpose of religious
exercise.” Such a construction might lend support to Appel-
lants’ contention that the CZO, insofar as it contributes to
other existing constraints upon the use of specific parcels as
No. 01-4030 13
churches, substantially burdens religious exercise. How-
ever, this cannot be the correct construction of “substantial
burden on religious exercise” under RLUIPA. Application of
the substantial burden provision to a regulation inhibiting
or constraining any religious exercise, including the use of
property for religious purposes, would render meaningless
the word “substantial,” because the slightest obstacle to
religious exercise incidental to the regulation of land
use—however minor the burden it were to impose—could
then constitute a burden sufficient to trigger RLUIPA’s
requirement that the regulation advance a compelling
governmental interest by the least restrictive means. We
therefore hold that, in the context of RLUIPA’s broad
definition of religious exercise, a land-use regulation that
imposes a substantial burden on religious exercise is one
that necessarily bears direct, primary, and fundamental
responsibility for rendering religious exercise—including
the use of real property for the purpose thereof within the
regulated jurisdiction generally—effectively impracticable.
Appellants contend that the scarcity of affordable land
available for development in R zones, along with the costs,
procedural requirements, and inherent political aspects of
the Special Use, Map Amendment, and Planned Develop-
ment approval processes, impose precisely such a substan-
tial burden. However, we find that these conditions—which
are incidental to any high-density urban land use—do not
amount to a substantial burden on religious exercise. While
they may contribute to the ordinary difficulties associated
with location (by any person or entity, religious or nonreli-
gious) in a large city, they do not render impracticable the
use of real property in Chicago for religious exercise, much
less discourage churches from locating or attempting to
locate in Chicago. See, e.g., Love Church v. City of Evanston,
896 F.2d 1082, 1086 (7th Cir. 1990) (“Whatever specific
difficulties [plaintiff church] claims to have encountered,
they are the same ones that face all [land users]. The harsh
14 No. 01-4030
reality of the marketplace sometimes dictates that certain
facilities are not available to those who desire them”).
Significantly, each of the five individual plaintiff churches
has successfully located within Chicago’s city limits. That
they expended considerable time and money so to do does
not entitle them to relief under RLUIPA’s substantial
burden provision. See, e.g., Stuart Circle Parish v. Board of
Zoning Appeals of Richmond, 946 F. Supp. 1225, 1237 (E.D.
Va. 1996) (“It is well established that there is no substan-
tial burden placed on an individual’s free exercise of
religion where a law or policy merely ‘operates so as to
make the practice of [the individual’s] religious beliefs more
expensive.’ ”) (quoting Braunfeld v. Brown, 366 U.S. 599,
605, (1961) (plurality opinion)). Otherwise, compliance with
RLUIPA would require municipal governments not merely
to treat religious land uses on an equal footing with nonreli-
gious land uses, but rather to favor them in the form of an
outright exemption from land-use regulations. Unfortu-
nately for Appellants, no such free pass for religious land
uses masquerades among the legitimate protections
RLUIPA affords to religious exercise.
Though the substantial burden and nondiscrimination
provisions are operatively independent of one another,
RLUIPA’s governmental discretion provision, 42 U.S.C.
§ 2000cc-3(e), upon which the district court relied in order
to find that the February 2000 CZO amendments corrected
any violation of the substantial burden provision, appears
not to reflect this distinction. That subsection provides, in
part, that “a government may avoid the preemptive force of
any provision of [RLUIPA] by changing the policy or
practice that results in a substantial burden on religious
exercise.” 42 U.S.C. § 2000cc-3(e) (emphasis added). Rather
than remove any substantial burden on religious exercise,
however, the February 2000 amendments simply place
churches on an equal footing with nonreligious assembly
uses, thereby correcting any potential violation of the
No. 01-4030 15
nondiscrimination provision. Despite subsection 2000cc-
3(e)’s reference to removal of a “substantial burden,” we
read it to afford a government the discretion to take
corrective action to eliminate a nondiscrimination provision
violation, whether or not it was the result of a substantial
burden on religious exercise. Thus do we find that, under
RLUIPA’s governmental discretion provision, the February
2000 amendments to the CZO render RLUIPA’s nondiscrim-
ination provision inapplicable to this case.6
Insofar as Appellants cannot demonstrate on these facts
that the CZO substantially burdens religious exercise, and
because the February 2000 Amendments to the CZO bring
it into compliance with RLUIPA’s nondiscrimination
provision, Appellants fail to make a sufficient showing on
essential elements of their RLUIPA claims. Chicago is
therefore entitled to summary judgment on those claims.
Having found RLUIPA inapplicable to the facts of this
case, we need not address the issue of RLUIPA’s constitu-
tionality, raised by the parties as well as the United States
of America, as Intervenor, and various Amici Curiae.
6
Appellants also challenge the district court’s ruling that their
claims under the pre-2000 CZO are moot. They claim that
churches, like other nonreligious assembly uses, should have been
permitted uses in all zones, in which case plaintiff churches would
not have been subject to Special Use approval procedures. They
allege damages resulting from the costs associated with these
procedures. This argument ignores the fact that the primary effect
of the 2000 amendments was to impose similar restrictions on
non-religious assembly uses, rather than to relax restrictions on
churches. Appellants cannot demonstrate that the amended CZO
recognizes any preexisting right of churches to operate in B, Z, or
M zones. The amendments simply place restrictions on nonreli-
gious assembly uses that are similar to or greater than those
facing religious uses. As such, the district court correctly con-
cluded that Appellant’s pre-2000 CZO claims are moot.
16 No. 01-4030
II. Constitutionality of the Chicago Zoning Ordinance
Under the Free Exercise Clause of First Amendment of
the United States Constitution, made applicable to state
and local governments by the Fourteenth Amendment, no
law may prohibit the free exercise of religion. Prior to
RLUIPA’s enactment, two Supreme Court decisions held
that no Free Exercise Clause violation results where a
burden on religious exercise is the incidental effect of a
neutral, generally applicable, and otherwise valid regula-
tion, in which case such regulation need not be justified by
a compelling governmental interest. Employment Division,
Department of Human Resources of Oregon v. Smith, 494
U.S. 872 (1990); Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520 (1993). Appellants cite Smith
and Hialeah as additional authority for application of the
compelling governmental interest and least restrictive
means tests to the CZO, not unlike those urged under
RLUIPA.
Appellants first argue that the CZO lacks facial neutrality
because, like the law at issue in Hialeah, the CZO “refers to
a religious practice”—use of property as a church—“without
a secular meaning discernable from the language or con-
text.” 508 U.S. at 530. In that case, the City of Hialeah
reacted to the intention of practitioners of the Santería
religion to establish a church within city limits by passing
ordinances banning public ritual sacrifice, a distinguishing
element of the Santería religious tradition. The Court
explained that a law is not neutral if its object “is to
infringe upon or restrict practices because of their religious
motivation,” and then found that the Hialeah ordinances’
use of the words “sacrifice” and “ritual”, which have “strong
religious connotations,” was evidence of their purposeful
targeting of Santería practices. Appellants assert by
analogy that the CZO’s explicit inclusion of “church” among
the various land uses it regulates indicates that it discrimi-
nates against churches on its face. Unlike the Hialeah
No. 01-4030 17
ordinances, however, the text of the CZO includes “church”
as just one among many and varied religious and nonreli-
gious regulated uses.7 More importantly, nothing in the
record suggests, nor do Appellants articulate in anything
but conclusory terms, that the object and purpose of the
CZO are anything other than those expressly stated
therein. See 17 MUN. CODE CHI. § 2.
In addition to their facial challenge under the Free
Exercise Clause as interpreted in Hialeah, Appellants
allege that the CZO was not neutrally applied to His Word
during the course of Alderman Huels’ successful efforts to
initiate the rezoning of 1616 West Pershing Road.8 While
they concede that Alderman Huels may not be held person-
ally liable for his actions based on our decision in Biblia
Abierta, 129 F.3d at 901-02, Appellants argue that his
actions were legislative acts which improperly targeted His
Word. However,
[m]unicipal liability attaches only where the
decisionmaker possesses final authority to establish
7
The variety of regulated uses specifically referenced in the text
of the CZO can be gleaned from the following non-exhaustive list
of examples: dwellings, nurseries, rectories, parish houses, golf
courses, libraries, convents, monasteries, schools, parks, play-
grounds, day care centers, hospitals, clubs, lodges, restaurants,
wireless communications facilities, cemeteries, parking lots,
hotels, photography studios, pet shops, fraternity houses, muse-
ums, correctional institutions, tattoo parlors, pawn shops, taverns,
kiddie parks, inter-track wagering facilities, earth station
antennas, frozen food lockers, live bait stores, banks, barbershops,
and paint pellet arenas.
8
In a single sentence, Appellants also allege due process and
equal protection violations as a result of the rezoning of 1616 West
Pershing Road. Though it is difficult even to evaluate claims
offered in terms as conclusory as these, we find them meritless for
the same reasons that we are unmoved by Appellants’ Free
Exercise claims.
18 No. 01-4030
municipal policy with respect to the action ordered. The
fact that a particular official—even a policymaking
official—has discretion in the exercise of particular
functions does not, without more, give rise to municipal
liability based on an exercise of that discretion.
Pembaur v. Cincinnati, 475 U.S. 469, 481-82 (1986). Here,
the possibility that Alderman Huels’ motives for wanting to
have the property rezoned were illicit in no way demon-
strates that the City Council and the Mayor, who have final
authority under state law to enact city ordinances, see 65
I.L.C.S. §§ 5/1-2-1(2), endorsed any such motives. Absent
some evidence that the policy-making body, in this case the
City Council, approved both the rezoning and the illicit
motivation therefor—and Appellants offer none—Chicago
cannot be held liable for Alderman Huels’ actions. See, e.g.,
City of St. Louis v. Prapotnik, 485 U.S. 112, 128-30 (1988)
(plurality opinion); id. at 140-42 (Brennan, J., concurring in
the judgment).
Appellants also contend that the CZO is not generally
applicable, in that the Special Use, Map Amendment, and
Planned Development processes create discretionary,
individualized exemptions to the CZO which are then
impermissibly withheld from churches. As support for this
proposition, they cite the Supreme Court’s pronouncement
that “[i]n circumstances in which individualized exemptions
from a general requirement are available, the government
‘may not refuse to extend that system to cases of “religious
hardship” without compelling reason.’ ” Hialeah, 508 U.S. at
537 (quoting Smith, 494 U.S. at 844 (citation omitted)).
Even assuming, arguendo, that the burdens incidental to
churches seeking Special Use, Map Amendment, or Planned
Development approval amount to “religious hardship”
within the meaning of the Court’s decision in Hialeah,
Appellants appear to confuse exemption from a particular
zoning provision (in the form of Special Use, Map Amend-
ment, or Planned Development approval) with exemption
No. 01-4030 19
from the procedural system by which such approval may be
sought. Under the CZO, these alternate avenues of zoning
approval are not merely available to any would-be appli-
cant, as Hialeah requires. They are mandatory. In short, no
person, nor any nonconforming land use, is exempt from the
procedural system in place for Special Use, Map Amend-
ment, or Planned Development approval specifically, or the
CZO generally. Furthermore, the experiences of plaintiff
churches Christ Center and Christian Bible, each of which
was initially denied—and subsequently granted—Special
Use approval, demonstrates that Chicago has extended
Special Use exemptions to churches. It is clear to this Court
that it is neither the policy nor the practice of Chicago to
refuse to extend to churches its system of individualized
exemptions and, thus, that the CZO is a generally applica-
ble system of land-use regulation.
In Smith, the Supreme Court noted that, in cases impli-
cating the Free Exercise Clause in conjunction with other
constitutional protections, such as freedom of speech and
freedom of association, the First Amendment may subject
the application to religiously motivated action of a neutral,
generally applicable law to a heightened level of scrutiny.
Smith, 494 U.S. at 881-82. Seizing upon this principle,
Appellants maintain that their Free Exercise claim involves
hybrid rights of free exercise, freedom of speech, freedom of
assembly, and equal protection, such that Chicago must
justify the CZO’s incidental burdens on church location with
a compelling state interest. Based on the analyses of
Appellants’ speech, assembly, and equal protection claims
that follow, however, we find them individually lacking the
merit necessary to withstand summary judgment. We agree
with the Court of Appeals for the Ninth Circuit that “a
plaintiff does not allege a hybrid rights claim entitled to
strict scrutiny analysis merely by combining a free exercise
claim with an utterly meritless claim of the violation of
another alleged fundamental right.” Miller v. Reed, 176
F.3d 1202, 1207-08 (9th Cir. 1999). Accord, e.g., Swanson v.
20 No. 01-4030
Guthrie Independent School District, 135 F.3d 694, 700
(10th Cir. 1998); Brown v. Hot, Sexy, and Safer Products,
Inc., 68 F.3d 525, 539 (1st Cir. 1995); Kissinger v. Board of
Trustees, 5 F.3d 177, 180 (6th Cir. 1993). Appellants have
identified no constitutionally protected interest upon which
the CZO infringes, as they must in order to establish a
hybrid rights claim requiring heightened scrutiny.
Of Appellants’ remaining constitutional claims, the first
alleges that the CZO violates Appellants’ First Amendment
rights to freedom of speech and freedom of assembly
because the CZO is neither (i) content neutral nor (ii)
narrowly tailored to serve a legitimate governmental
objective and (iii) does not leave open ample channels of
alternative communication. See Ward v. Rock Against
Racism, 491 U.S. 781, 782 (1989) (articulating these three
criteria for valid time, place, and manner restrictions on
speech and assembly). Appellants state in conclusory terms
that the CZO discriminates against religious uses, is
“irrational and arbitrary,” restricts churches to R zones, and
is not narrowly tailored. They also state that the CZO’s
requirement that churches occupying more than two acres
obtain Planned Development approval creates a practical
ban on large churches. As discussed previously, the CZO is
neutral and generally applicable and places churches on a
footing equal with, if not superior to, that of nonreligious
assembly uses. Similarly, to the extent that the CZO
incidentally regulates speech or assembly within churches,
such regulation is motivated not by any disagreement that
Chicago might have with the message conveyed by church
speech or assembly, but rather by such legitimate, practical
considerations as the promotion of harmonious and efficient
land use. In this respect it is content neutral. In order to
satisfy the requirement that it is narrowly tailored, “a
regulation need not be the least restrictive or least intrusive
means.” Ward, 491 U.S. at 798. It need only further “a
substantial government interest that would be achieved less
effectively absent the regulation.” Id. at 799. There is no
No. 01-4030 21
question that Chicago—like any population center—has a
substantial interest in regulating the use of its land and
that the CZO promotes that interest. We are also unper-
suaded by Appellants’ implicit suggestion that the restric-
tion of church use as of right to R zones leaves churches
with insufficient channels of communication. Not only may
churches freely disseminate religious speech in a majority
of Chicago land zoned for development, but they may also
disseminate—and, in the cases of plaintiffs Christ Center
and Christian Bible, have in fact disseminated—religious
speech in B and various C districts with Special Use
approval. Similarly, the Planned Development approval
process provides larger churches with ample opportunity to
locate within Chicago in a manner consistent with the
CZO’s legitimate, stated purposes. For these reasons,
Appellants’ First Amendment freedom of speech and
freedom of assembly claims are without merit.
Appellants further argue that the CZO violates the Equal
Protection Clause of the Fourteenth Amendment—which
provides that no state shall “deny to any person within its
jurisdiction the equal protection of the laws”—by treating
churches in a manner less favorable than that of nonreli-
gious assembly uses. It is the well established law of this
Circuit that, “[a]bsent a fundamental right or a suspect
class, to demonstrate a viable equal protection claim in the
land use context, a plaintiff must demonstrate governmen-
tal action wholly impossible to relate to legitimate govern-
mental objectives.” Forseth v. Village of Sussex, 199 F.3d
363, 370-71 (7th Cir. 2001); see also City of Cleburne v.
Cleburne Living Center, 473 U.S. 432, 440 (1985) (unless a
statute classifies by race, alienage, or national origin or
impinges on fundamental constitutional rights, “[t]he
general rule is that legislation is presumed to be valid and
will be sustained if the classification drawn by the statute
is rationally related to a legitimate state interest”). Appel-
lants urge us to elevate the level of scrutiny under which we
review their equal protection claim against the CZO
22 No. 01-4030
because the regulation of a church’s use of land necessarily
implicates the fundamental right of freedom of religious
exercise. As a preliminary matter, we are quick to reiterate
our earlier determination that any burdens on religious
exercise imposed by the CZO are both incidental and
insubstantial. Furthermore, this court has held that the
fundamental rights theory of heightened equal protection
scrutiny applies only to laws that effect “grave interference
with important religious tenets or . . . affirmatively compel
[congregants] to perform acts undeniably at odds with
fundamental tenets of their religious beliefs.” Griffin High
School v. Illinois High School Athletic Assoc., 822 F.2d 671,
674 (7th Cir. 1987). Whatever the obstacles that the CZO
might present to a church’s ability to locate on a specific
plot of Chicago land, they in no way regulate the right, let
alone interfere with the ability, of an individual to adhere
to the central tenets of his religious beliefs. As the district
court adroitly noted, the CZO’s limitations on church
location are “not the regulation of belief, any more than
regulating the location of the Chicago Tribune building is
the regulation of the newspaper’s [F]irst [A]mendment-
protected product.” Civil Liberties for Urban Believers, 157
F.Supp.2d at 908.
Viewed through the lens of the Cleburne and Forseth
rational basis analyses, Chicago’s system of land-use
regulation satisfies the requirements of the Equal Protec-
tion Clause. In general, a zoning ordinance imposing
“restrictions in respect of the use and occupation of private
lands in urban communities” such as the “segregation of
residential, business, and industrial buildings” satisfies the
rational basis test as “a valid exercise of authority.” Village
of Euclid v. Amber Realty Company, 272 U.S. 365, 386-87,
394, 397 (1926). Here, Chicago permits churches to locate in
R districts as of right, while requiring Special Use approval
in B and most C districts, not only to promote the general
public welfare and to protect the character, stability, order,
and efficient development of Chicago’s varied areas, but
No. 01-4030 23
also to prevent overcrowding, to limit street congestion, and
to conserve the taxable value of city land. 17 MUN. CODE
CHI. § 2. Moreover, the CZO makes available avenues by
which exceptions for nonconforming uses may be sought
(and has made such exceptions in the cases of two plaintiff
churches who applied for Special Use approval). Though the
end result of this zoning scheme may be to afford churches
better opportunities for location in R districts than B, C, or
M districts, under the amended CZO churches still fare
better than many other nonreligious assembly uses that are
treated equally in B, C, and M districts but excluded from
R districts. To the extent that the CZO treats churches any
differently from nonreligious assembly uses, it does not
disfavor churches. More importantly, any such difference is
rationally related to Chicago’s legitimate interest in
regulating land use within its city limits. The CZO thus
complies with the requirements of the Equal Protection
Clause.
Finally, Appellants challenge the district court’s analysis
of their Fourteenth Amendment procedural due process
claim.9 Specifically, Appellants suggest that the district
court’s characterization of their claim against the Special
Use approval procedures as one involving property rights,
rather than any particular use or fundamental activity, is
at odds with an earlier district court finding that Appel-
lants’ due process claim “asserted a fundamental liberty
interest in their free exercise of religion, freedom of speech,
and freedom of assembly.” See Civil Liberties for Urban
Believers v. Chicago, No. 94 C 6151 (N.D. Ill. Feb. 28, 1997)
(memorandum opinion and order denying Chicago’s motion
to dismiss multiple claims). Appellants disregard the fact
that this language comes from an order denying Chicago’s
9
“No State shall . . . deprive any person of life, liberty, or
property, without due process of law. . . .” U.S. CONST. amend.
XIV, § 1.
24 No. 01-4030
motion to dismiss Appellants’ due process claims pursuant
to Rule 12(b)(6) of the FRCP. At the summary judgment
stage, the district court’s finding that a claim is properly
stated for Rule 12(b)(6) purposes has no effect on its
determination of the merits of that claim. Viewing the facts
in a light most favorable to Appellants, the district court
properly determined that, because Appellants challenged
the alleged vagueness of the zoning procedures and stan-
dards in a manner that any property owner might so do
irrespective of a particular property use or fundamental
liberty, the claim focused on property rights rather than
Appellants’ right to worship. The district court then relied
upon River Park v. City of Highland Park, 23 F.3d 164 (7th
Cir. 1994), to determine that any facial due process attack
on the CZO must be made in state court. As we stated in
that case, in which a plaintiff corporation alleged that
Highland Park’s politically motivated refusal to act on its
zoning application bankrupted the corporation and deprived
it of procedural due process,
Federal courts are not boards of zoning appeals [and]
the procedures “due” in zoning cases are minimal.
Cities may elect to make zoning decisions through the
political process. . . . Highland Park made a political
decision in a political fashion, employing procedural
maneuvers that prevented the question from reaching
the floor for a vote. . . . [Plaintiff] may not have received
the process Illinois directs its municipalities to provide,
but the Constitution does not require state and local
governments to adhere to their procedural promises.
Failure to implement state law violates that state law,
not the Constitution; the remedy lies in state court.
River Park, 23 F.3d at 165-67 (citations omitted). Here, too,
the CZO and its special approval procedures provide
Appellants with all the legislative process that is due.
Moreover, as the district court noted, the CZO expressly
provides for the review of zoning decisions by the Illinois
No. 01-4030 25
Circuit Courts. See 17 MUN. CODE CHI. § 11.3-4; 65 I.L.C.S.
§ 5/11-13; 735 I.L.C.S. 5/3-104. As such, Appellants cannot
prevail on their due process claim.
CONCLUSION
Drawing all factual inferences in Appellants’ favor, we
nonetheless conclude that their statutory and constitutional
claims challenging the Chicago Zoning Ordinance are
without merit. We therefore AFFIRM the district court’s
order granting the City of Chicago’s motion for summary
judgment.
POSNER, Circuit Judge, dissenting. This is a difficult
case, but I have come to the conclusion that the restrictions
that Chicago’s zoning ordinance places on churches (a term
that I use broadly to include any religion’s place of worship)
violate the equal protection clause of the Fourteenth
Amendment. I do not address the other grounds on which
the plaintiffs attack the restrictions. The discussion of those
grounds occupies most of the majority opinion, which
devotes little space to what seems to me to be the strongest
ground of the appeal.
The ordinance creates three zones so far as relates to the
equal protection issue. (I am using the term “zones” func-
tionally rather than to designate categories in the zoning
ordinance, which, as is apparent from the majority opinion,
is extremely complicated.) The first “zone” is residential.
Churches can locate there without having to obtain a
permit from the zoning board, as can a number of other
nonresidential entities, such as clubs, restaurants, schools,
26 No. 01-4030
libraries, and drugstores, though restaurants and drug-
stores only in high-rise apartment buildings. Other nonresi-
dential land uses in the residential zone, however, either
require a permit or are banned outright. The second zone,
which I shall call “commercial,” is for business and other
commercial uses, including not only office buildings and
retail stores but also wholesale outlets, warehouses, and
light manufacturing, but excluding certain transportation
facilities and heavy manufacturing. In the commercial zone,
churches require a permit. Last is a zone reserved for
transportation facilities and heavy manufacturing, which
I shall call the “manufacturing” zone. In it churches are
flatly forbidden, although bars, restaurants, and union
lodges are freely permitted.
The question is whether the City’s restrictions on where
churches may locate are rational. But “rationality” in the
law of equal protection is not in fact a single standard,
though the courts have been coy about admitting this. City
of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432(1985), like this a zoning case, and decisions following it
such as Congregation Kol Ami v. Abington Township, 309
F.3d 120, 133-44 (3d Cir. 2002), and Cornerstone Bible
Church v. City of Hastings, 948 F.2d 464, 471-72 (8th Cir.
1991), identify a category of sensitive uses or activities,
where judges are to be more alert for unjustifiable discrimi-
nation than in the usual case in which government regula-
tions are challenged on equal protection grounds. See
Lawrence v. Texas, 123 S. Ct. 2472, 2484-85 (2003)
(O’Connor, J., concurring); cf. Plyler v. Doe, 457 U.S. 202,
224-30 (1982). It is true that Cleburne refused to deem
mental retardation a “quasi-suspect classification” warrant-
ing a standard of review more searching than that of
rationality, see City of Cleburne v. Cleburne Living Center,
Inc., supra, 473 U.S. at 442-46, and on this basis the City of
Chicago in our case cites the decision in support of its
position. But one has only to read a little further in the
Cleburne opinion to realize that the Court was not treating
No. 01-4030 27
the zoning discrimination at issue there as it would have
treated a discrimination in the taxation of railroads or the
zoning of bowling alleys. Compare Fitzgerald v. Racing
Ass’n of Central Iowa, 123 S. Ct. 2156, 2159-61 (2003).
The ordinance challenged in Cleburne required a permit
(which was denied) for a home for mentally retarded people
in a zone in which hospitals and nursing homes, along with
private houses and a variety of other residential facilities,
were allowed without permit. The mentally retarded arouse
distaste and even fear among many people, but the Court
said that “mere negative attitudes, or fear, unsubstantiated
by factors which are properly cognizable in a zoning
proceeding, are not permissible bases for treating a home
for the mentally retarded differently from apartment
houses, multiple dwellings, and the like.” City of Cleburne
v. Cleburne Living Center, Inc., supra, 473 U.S. at 448. The
Court went through the other justifications that Cleburne
had offered for the discrimination, found them wanting, and
invalidated the ordinance.
The majority opinion in Cleburne is deficient in candor.
Cf. Dennis J. Hutchinson, “More Substantive Equal Protec-
tion? A Note on Plyler v. Doe,” 1982 Supreme Court Review
167, 168, 179, 194. As a separate opinion joined by three of
the Justices pointed out, “The Court holds the ordinance
invalid on rational-basis grounds and disclaims that
anything special, in the form of heightened scrutiny, is
taking place. Yet Cleburne’s ordinance surely would be
valid under the traditional rational-basis test applicable to
economic and commercial regulation. In my view, it is
important to articulate, as the Court does not, the facts and
principles that justify subjecting this zoning ordinance to
the searching review—the heightened scrutiny—that
actually leads to its invalidation. . . . [T]he Court does not
label its handiwork heightened scrutiny, and perhaps the
method employed must hereafter be called ‘second order’
rational-basis review rather than ‘heightened scrutiny.’ But
however labeled, the rational-basis test invoked today is
28 No. 01-4030
most assuredly not the rational-basis test of Williamson v.
Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955), Allied
Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959), and
their progeny.” City of Cleburne v. Cleburne Living Center,
Inc., supra, 473 U.S. at 456, 458.
We should follow what the Supreme Court does and not
just what it says it is doing. The Court rejects a “sliding
scale” approach to equal protection in words but occasion-
ally accepts it in deeds. Cleburne instantiates though it does
not articulate the proposition that discrimination against
sensitive uses is to be given more careful, realistic, skeptical
scrutiny by the courts than discrimination against purely
commercial activities. Romer v. Evans, 517 U.S. 620, 634-35
(1996); cf. Lawrence v. Texas, supra, 123 S. Ct. at 2482. And
while it is true that the Court has rejected the proposition
that “Cleburne stands for the broad proposition that state
decisionmaking reflecting ‘negative attitudes’ or ‘fear’
necessarily runs afoul of the Fourteenth Amendment,”
adding that “although such biases may often accompany
irrational (and therefore unconstitutional) discrimination,
their presence alone does not a constitutional violation
make,” University of Alabama v. Garrett, 531 U.S. 356, 367
(2001), we should give due weight to “necessarily” and
“alone.” Previous decisions of this court and other courts of
appeals have recognized that the Cleburne line of cases
expands the boundaries of “rationality” review. See Milner
v. Apfel, 148 F.3d 812, 816-17 (7th Cir. 1998); Pontarelli
Limousine, Inc. v. City of Chicago, 929 F.2d 339, 341-42 (7th
Cir. 1991); Ramos v. Town of Vernon, 331 F.3d 315, 320 (2d
Cir. 2003); Able v. United States, 155 F.3d 628, 634 (2d Cir.
1998).
Churches are no less sensitive a land use than homes for
the mentally retarded, as both Congregation Kol Ami v.
Abington Township, supra, and Cornerstone Bible Church
v. City of Hastings, supra, recognize, though the reason is
different. The mentally retarded are victims of irrational
No. 01-4030 29
fears and cruel scorn; they are shunned. Religious people
are not shunned, but religion arouses strong emotions,
sectarian rivalry is intense and often bitter, and the mixing
of religion and government is explosive. When government
singles out churches for special regulation, as it does in the
Chicago ordinance, the risk of discrimination, not against
religion as such—Chicago is not dominated by atheists—but
against particular sects, is great enough to require more
careful judicial scrutiny than in the ordinary equal protec-
tion challenge to zoning.
Chicago’s ordinance discriminates in favor of well-
established sects. Not only did they acquire the land on
which their churches are built in residential areas when
such land was relatively cheap and abundant, and there-
fore affordable by noncommercial entities, such as
churches (and there are of course some wealthy churches);
in addition, because nonconforming uses are grandfathered,
the churches that have managed to get permission to
build over the years in nonresidential zones are untouch-
able. But what of new, small, or impecunious churches,
such as the 40 to 50 obscure sects, one of which has only
15 members, that compose the principal plaintiff, Civil
Liberties for Urban Believers? And obscure they are. It
is telling that of the six other named plaintiffs—Christ
Center (150 members), Christian Covenant Outreach
Church (ministering to teenagers and former gang mem-
bers), His Word Ministries to All Nations, Christian Bible
Center (35 members), Church on the “Way” Praise Center,
and Monte de Sino Church, only one (Christian Bible
Center) is on the city’s list of area churches. See
http://www.thecityofchicago.org/church/.
As David Hume would have predicted, the greater vitality
of American religion than of religion in countries in which
there is an established church or churches owes much to
our unwillingness to allow government to favor particular
sects. Laurence R. Iannaccone, Roger Finke & Rodney
30 No. 01-4030
Stark, “Deregulating Religion: The Economics of Church
and State,” 35 Econ. Inquiry 350 (1997); Iannaccone, “The
Consequences of Religious Market Regulation: Adam
Smith and the Economics of Religion,” 3 Rationality &
Soc’y 156 (1991). By impairing religious competition, such
favoritism turns many people—those not comfortable
with the creed or clergy or congregants of the favored
church—off religion.
Religious competition presupposes free entry into the
religious “marketplace.” A new church is unlikely, however,
to have the resources necessary for building its place of
worship in a residential area other than a slum, especially
as the Chicago ordinance requires that the church provide
parking, which will mean that unless its building is tiny it
will have to acquire more than one city lot. A church that
wants to build in the commercial zone, where land is
cheaper, must obtain a special permit; and if it wants to
build in the manufacturing zone, it is out of luck unless it
can procure an amendment to the zoning ordinance. At
issue in Congregation Kol Ami v. Abington Township was a
zoning ordinance that excluded churches from residential
areas; this is some evidence that the City is wrong to
suppose that it is any longer the case that churches fit
better into residential than nonresidential areas. The
phenomenon of the “storefront church”—an apt description
of the churches in this case—reflects both the inability of a
new, small church to afford to build in a residential area
and the fact that a new church needs to advertise its
presence, which it can do at little cost just by being located
in a commercial area, where there are more passersby than
in a residential area.
Small storefront or house churches can be found in
many places in the city. A recent article by George
Gallup reports that 40% of all American adults meet in
small religious groups. Not surprisingly, a large num-
ber of these groups are in fact storefront or house
No. 01-4030 31
churches which revolve around Bible study, prayer, and
Sunday school.
This is not happening in just a Christian context.
Within the New Age movement, Muslim, Hindu, and
even Jewish traditions, small groups are gathering in
storefront meeting houses. These storefront worship
spaces will continue to grow for many reasons, but the
one that will affect them even more than group dynam-
ics is city planning. As tighter zoning laws are pass[ed]
in Boston and real estate prices continue to sky-rocket,
the only place for churches to turn to are existing
commercial spaces.
Robert L. Lewis, Jr., “Ministry Research Project: Storefront
Churches of Boston; A Photographic Study of Selected
Storefront and Home Churches in the City of Boston,”
http://www.bu.edu/ccrd/research/completed/storefront. html.
The article is about Boston but the analysis in it is equal-
ly applicable to Chicago.
Granted, Chicago’s prohibition against locating a church
in the commercial zone is not absolute. A permit can be
sought. But obtaining one is costly for a marginal enter-
prise; the zoning board enjoys broad discretion in deciding
whether to grant or deny a permit; and a public hearing is
required at which opposition to the church’s application for
a permit is predictable because churches do not enhance
commercial activity (see Lucinda Harper, “Storefront
Churches: The Neighbors Upscale Stores Don’t Love,” Wall
St. J., Mar. 15, 2000, at B1)—this is one of the reasons the
City offers in defense of the ordinance. It is a bad reason,
but it is the kind of reason likely to impress the zoning
authorities.
It is a bad reason because while it is true that a church is
less likely to enhance a commercial area than a
Bloomingdale’s or a Four Seasons is, there are very few
blocks in Chicago that are purely commercial. A combina-
tion of grandfathering, the grant of special permits, and
32 No. 01-4030
changes in zoning law has produced a crazy quilt of
land uses. On Michigan Avenue near our courthouse—
an area zoned commercial as I have been using the
term—retail stores, restaurants, hotels, colleges, office
buildings, and clubs jostle cheek by jowl. If one of the
clubs or colleges were replaced by a church, the commer-
cial life of Michigan Avenue would not be affected, although
the “tone” of the avenue might be lowered by a store-
front church. (As a matter of fact, there is a church on
Michigan Avenue—the Fourth Presbyterian Church. See
http://www.fourthchurch.org/.) For remember those “nega-
tive attitudes” of which the Court spoke in Cleburne? Not
only are mainline churches apt to be hostile to upstarts
such as the members of Civil Liberties for Urban Believers,
and particularly to storefront churches, but even people who
are not caught up in sectarian rivalries might consider the
presence of a church rather a downer in a “fast” district,
such as Old Town. Indeed, a permit for one of CLUB’s
members was denied because it was thought that the
presence of a church would impede the transformation of
the area into a “nightclub district.”
The City’s brief offers the further, but absurdly paternal-
istic, argument that it is bad for the churches themselves to
be located in commercial or industrial areas, because of
noise and commotion. Obviously that is a judgment for the
church to make rather than government, by trading off the
cost to the church of noisy and profane surroundings
against the benefits in lower costs of land acquisition and
proximity to sinners, including prostitutes, drug addicts,
and gang members, whose souls are particularly in need of
saving. At oral argument the City’s lawyer pressed another
point, that the mysterious exclusion of churches from the
manufacturing zone is justified by the fact that if they
clustered there they might try to expel the factories by
bringing a nuisance suit. Because Illinois rejects the
doctrine of “coming to the nuisance,” City of Pana v. Central
Washed Coal Co., 102 N.E. 992, 998 (Ill. 1913); Oehler v.
No. 01-4030 33
Levy, 85 N.E. 271, 273-74 (Ill. 1908); see also Wheat v.
Freeman Coal Mining Corp., 319 N.E.2d 290, 294 (Ill. App.
1974), it is not a defense to a nuisance suit that the nui-
sance was there before the plaintiff. The lawyer’s vision of
churches concentrating in the manufacturing zone and then
bringing a nuisance suit to transform it into—what, a
religious zone?—is fanciful. But even if it were realistic, the
City, which is a part of Illinois state government from the
standpoint of the application of the equal protection clause,
cannot defend discrimination by arguing that it is coerced
by state law. Otherwise a state could pass a law requiring
the police to beat anyone they arrested, and police sued for
violating the Fourth Amendment for using excessive force
in effecting seizures of the person would have a defense,
which no one believes. The state can untie the City’s hands
by authorizing a “coming to the nuisance” defense, either
generally or just for the benefit of manufacturers whose
factories are in cities. Anyway a nuisance suit would not
succeed unless the plaintiff could show a net increase in
land values from abating the nuisance; and if so this would
imply that the City was better off for the suit.
The City’s final argument is that the zoning ordinance
represents a “global bargain” whereby churches get pre-
ferred treatment in the residential zone and secular uses
get preferred treatment in the commercial zone. If one
assumes, as I would, that the exclusion of commercial uses
from the residential zone is rational (deny that, and one
condemns virtually all zoning as irrational), the exclusion
of churches from the commercial zone would be rational if
their presence would crowd out commercial users. But that
is an absurd suggestion. A slightly more realistic worry
would be that if churches are allowed to bid for land zoned
commercial, the price of such land will rise, to the detri-
ment of commercial users of it, because the amount of land
is fixed and the demand would have increased. But the
aggregate demand of churches for land zoned commercial is
34 No. 01-4030
too slight in relation to the amount of that land for allowing
them to bid on it to affect the price noticeably.
Thus far I have been discussing the ordinance as it was
amended in 2000 in virtual acknowledgment that its
predecessor was in violation of the Constitution. For the
predecessor ordinance allowed fraternal lodges and other
clubs, community centers, and other meeting places to
locate in the commercial zone without obtaining a permit.
(The amendment eliminated this privilege, though colleges,
union lodges, libraries, and funeral homes, along with the
conventional business and commercial establishments,
retain it.) The only difference between them and churches
is that they are secular. There is no difference so far as the
use of land is concerned. The “global bargain” defense is
particularly questionable as applied to the old ordinance. A
church is no more or less suitable for the residential zone
than a fraternal lodge and a fraternal lodge no more or less
suitable for the commercial zone than a church. The old
ordinance discriminated arbitrarily in favor of churches in
the residential zone and against them in the commercial
zone, thus distorting religious competition in favor of
existing and against new churches. The new ordinance
retains one completely unreasonable distinction, that
between union lodges and churches, putting one in mind of
the Spanish Civil War, a struggle between syndicalism and
clericalism. The distinction between churches on the one
hand and libraries and colleges on the other hand, another
distinction retained by the amended ordinance, is only a
little more rational.
The plaintiffs filed their suit almost a decade ago, before
the ordinance was amended. The amendment did not moot
their challenge to the old ordinance because they seek
damages for the delay they encountered in obtaining
permission to build in desirable locations. If as I contend
the requirement of a permit was unconstitutional because
it discriminated in favor of fraternal lodges, then the delay
No. 01-4030 35
the plaintiffs encountered in finding suitable quarters was
the consequence of a constitutional violation and the
plaintiffs are entitled to damages. As an example of the
runarounds that the plaintiffs experienced in obtaining a
special permit in the commercial zone, consider the hegira
of the Christian Bible Church. From small beginnings (like
Christianity itself), meeting in a private home, the congre-
gation in 1988 began meeting in a funeral parlor, hardly an
auspicious site. In 1990 it found a suitable building in the
commercial zone, but did not apply for a permit after being
told that the alderman for the ward in which the building
was located would not allow a church at that location. The
following year Christian Bible bought a building in another
part of the commercial zone, applied for a permit, and was
turned down. After trying without success to sell the
building, the church renovated it, and while the building
was closed for renovations the congregation met in rented
quarters or private homes. The renovations completed,
Christian Bible applied for and this time received a permit
to use the building as its church. By now it was 1993; it had
taken three years to find suitable space. As Christian Bible
has only 35 members, the burden that the ordinance
imposed on it was formidable.
Chicago’s zoning ordinance imposes the same severe
burden on new churches that the ordinance invalidated in
the Cleburne case imposed on homes for the mentally
retarded, and with no greater justification. In doing so it
denied the plaintiffs the equal protection of the laws.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-20-03