St. John's United v. City of Chicago ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4418
ST. JOHN’S UNITED CHURCH OF CHRIST,
HELEN RUNGE, and SHIRLEY STEELE,
Plaintiffs-Appellants,
v.
THE CITY OF CHICAGO, the FEDERAL
AVIATION ADMINISTRATION, and MARION C.
BLAKELY, Administrator of the
Federal Aviation Administration,
Defendants-Appellees.
____________
Nos. 05-4450 & 05-4451
VILLAGE OF BENSENVILLE, VILLAGE OF
ELK GROVE, ROXANNE MITCHELL, REST
HAVEN CEMETERY ASSOCIATION,
ROBERT PLACEK, and LEROY H. HEINRICH,
Plaintiffs-Appellants,
v.
THE CITY OF CHICAGO, the FEDERAL
AVIATION ADMINISTRATION, and
MARION C. BLAKELY, Administrator of
the Federal Aviation Administration,
Defendants-Appellees.
2 Nos. 05-4418, 05-4450 & 05-4451
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 3726—David H. Coar, Judge.
____________
ARGUED JANUARY 10, 2006; JUNE 7, 2006—
DECIDED SEPTEMBER 13, 2007
____________
Before BAUER, RIPPLE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Mention Chicago to almost any
person who has been on an airplane, and that person will
immediately think of Chicago’s O’Hare International
Airport. It is one of the busiest airports in the world: in
2005, more than 76.5 million passengers passed through
its facilities, along with 1.7 million tons of freight. See
http://www.flychicago.com/events/KidsPage2006/OHareH
istory.shtm (last visited August 27, 2007). It is also of
central importance to the economy of Chicago and North-
ern Illinois, generating approximately 514,000 jobs for
the region and nearly $37 billion a year in economic
development. Id. Responding to growth in demand for
O’Hare’s services, the Illinois General Assembly passed
the O’Hare Modernization Act (OMA), 620 ILCS 65/5, in
2003, in order to improve and expand the airport. This
case deals with certain land acquisitions contemplated
by that legislation.
We consolidated these appeals for decision because each
raises challenges to the same district court order in
lawsuits filed by objectors to the modernization project. In
that order, the court denied a motion for leave to file a
second amended complaint (for all but one count) and
refused to enjoin the City of Chicago’s plan to acquire
each plaintiff ’s property in order to build additional
Nos. 05-4418, 05-4450 & 05-4451 3
runways at O’Hare. In appeal number 05-4418, the St.
John’s United Church of Christ and two of its parishioners
(collectively, St. John’s) challenge the district court’s
denial of their motions for leave to file a second amended
complaint and for a preliminary injunction. St. John’s
claims that the City’s attempt to condemn a cemetery
located on church property violates the First Amendment’s
Free Exercise Clause, the Fourteenth Amendment’s
Equal Protection Clause, and the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc et seq. We consider only the claims St. John’s
has asserted against the City; its claims against the
Federal Aviation Administration (FAA) were resolved in
the FAA’s favor by the court of appeals for the District of
Columbia Circuit in Village of Bensenville v. FAA, 457 F.3d
52 (D.C. Cir. 2006).1
1
The main issue before the D.C. Circuit concerned whether the
FAA had violated the federal Religious Freedom Restoration Act
(RFRA), 42 U.S.C. § 2000bb et seq., by approving the City’s plan
and determining that the plan was eligible for federal funding.
As an “agency . . . of the United States,” § 2000bb-2(1), the FAA,
unlike the City, falls within the scope of RFRA and thus must
meet the requirements of strict scrutiny when its actions
substantially burden exercise of someone’s religion. The D.C.
Circuit considered whether any potential burden on the exer-
cise of religion in this case could be fairly attributable to the
FAA by virtue of its having approved the City’s plan. Because
“[t]he expansion plan for the airport, which is owned by the City,
was prepared and will be implemented by the City, which is
prepared to proceed without federal funds if necessary,” the court
found that it was the City, not the FAA, that was responsible for
any potential burden on religion that resulted from the plan.
Bensenville, 457 F.3d at 57. It thus rejected the RFRA claims
against the FAA without reaching the question whether the FAA
had shown a compelling governmental interest supporting its
decision.
4 Nos. 05-4418, 05-4450 & 05-4451
In appeal number 05-4450, the Villages of Bensenville
and Elk Grove (Municipal Plaintiffs) contend that the
district court erred in concluding that it lacked jurisdic-
tion to review their claims against the FAA. Lastly, in
appeal number 05-4451, we consider the challenge of the
Rest Haven Cemetery Association and two members of its
board of directors (collectively, Rest Haven) to the district
court’s dismissal of the first amended complaint. Rest
Haven was not named in the proposed second amended
complaint because the City no longer plans to acquire its
cemetery. The district court concluded, for that reason,
that its claim was moot; Rest Haven disagrees with that
assessment. In Rest Haven’s appeal, we also consider
the same question raised by the Municipal Plaintiffs,
namely, whether the district court had jurisdiction to
consider Rest Haven’s claims against the FAA. We con-
clude that the district court navigated its way through
these complex issues successfully, and we thus affirm its
judgment in all respects.
I
In the summer of 2001, the U.S. Senate Commerce,
Energy, and Transportation Committee held hearings in
Chicago to discuss the ways in which delays at O’Hare
contribute to excessive aviation delays throughout the
United States. During the course of these hearings, the
Committee strongly hinted that if the City of Chicago and
the State of Illinois did not reach a decision on airport
expansion before September 1, 2001, Congress would
likely intervene.
On June 29, 2001, the City announced its plan to
increase O’Hare’s capacity; this plan later developed into
the O’Hare Modernization Program (OMP). The OMP
proposed to correct some of the inefficiencies created by
the airfield’s outdated configuration of seven intersecting
Nos. 05-4418, 05-4450 & 05-4451 5
runways (which include a “runway triangle” created by the
three original intersecting runways that lie north of the
present terminals) by creating six parallel and two
crosswind runways. The proposed design resembles the
more effective runway architecture that has been employed
at Hartsfield-Jackson Atlanta International Airport and
the Dallas/Fort Worth International Airport. In contrast
to the current layout of intersecting runways, in which
the ability to use one runway is limited by whether an
aircraft is using any of the others, the proposed configura-
tion would permit a constant stream of take-offs and
landings on each parallel runway, regardless of the
activity that may simultaneously be occurring on ad-
jacent runways.
On December 5, 2001, the Mayor of Chicago and the
Governor of Illinois announced that they had reached an
agreement on the central components of the proposed
OMP. Shortly thereafter, the FAA submitted its Notice
of Intent to Prepare an Environmental Impact State-
ment (EIS), which is a “detailed analysis . . . conducted to
determine if, or the extent to which, a particular agency
action will impact the environment.” Heartwood, Inc. v.
United States Forest Serv., 230 F.3d 947, 949 (7th Cir.
2000). All federal agencies are required to prepare an
EIS for any “major Federal actions significantly affect-
ing the quality of the human environment.” See the
National Environmental Policy Act (NEPA), 42 U.S.C.
§ 4332(2)(C).
In June of 2002, the City announced its plan to acquire
433 acres of land located in the Villages of Elk Grove and
Bensenville, two municipalities adjacent to O’Hare, in
anticipation of the airport’s expansion. A wide variety of
properties were scheduled for condemnation, including
a number of homes and businesses, a police and fire
station, an elementary school, several parklands, and the
two cemeteries at issue here—St. Johannes and Rest
6 Nos. 05-4418, 05-4450 & 05-4451
Haven, owned by the St. John’s United Church of Christ
and the Rest Haven Cemetery Association, respectively.
The Municipal Plaintiffs responded by filing suit in state
court seeking both a declaration that any effort to acquire
the desired property without first obtaining a “certificate
of approval” from the Illinois Department of Transporta-
tion was beyond the City’s authority under the Illinois
Aeronautics Act, see 620 ILCS 5/47, and a preliminary
injunction preventing the City from proceeding with its
land acquisition plan. On July 9, 2002, the Circuit Court
of DuPage County granted the municipalities’ requested
relief; the Illinois Appellate Court affirmed its decision.
See Philip v. Daley, 790 N.E.2d 961 (Ill. App. Ct. 2003).
Faced with this setback, the City turned to Springfield
and the Illinois General Assembly for help. It was success-
ful in persuading the legislature to enact the OMA in May
of 2003. See 620 ILCS 65/5. The Act’s statement of find-
ings and purposes notes the importance of O’Hare to
both the state and national air transportation system and
affirms the necessity of acquiring adjacent properties
as part of the modernization program. See OMA § 5(a)(1),
(2), (5). In addition, the Act proclaims that “[i]t is the
intent of the General Assembly that all agencies of this
State and its subdivisions shall facilitate the efficient
and expeditious completion of the O’Hare Moderniza-
tion Program to the extent not specifically prohibited by
law, and that legal impediments to the completion of the
project be eliminated.” OMA § 5(b).
The Act specifically addresses the issue of acquisition of
property in several places. It does so generally in section
15, which grants to the City “[i]n addition to any other
powers the City may have, and notwithstanding any other
law to the contrary,” the power to
acquire by gift, grant, lease, purchase, condemna-
tion . . . or otherwise any right, title, or interest in any
private property, property held in the name of or
Nos. 05-4418, 05-4450 & 05-4451 7
belonging to any public body or unit of government, or
any property devoted to a public use, or any other
rights or easements, including any property, rights, or
easements owned by the State, units of local govern-
ment, or school districts, including forest preserve
districts, for purposes related to the O’Hare Modern-
ization Program.
OMA § 15. Lest there be any doubt on the particular topic
of cemeteries, the Act continues: “The powers given to the
City under this Section include the power to acquire, by
condemnation or otherwise, any property used for ceme-
tery purposes within or outside of the City, and to require
that the cemetery be removed to a different location.” See
also id. § 92 (amending the Illinois Municipal Code, 65
ILCS 5/11-51-1, to make it clear that the City of Chicago
need not obtain the consent of a cemetery’s owner in order
to exercise its powers under § 15 of the OMA, even though
such consent is normally required).
The OMA amends many statutes—indeed, as counsel for
the City argued, it seems to have amended every statute
that someone thought might stand in the way of the OMP.
Thus, for example, it amends the Downstate Forest
Preserve District Act, 70 ILCS 805/5e, OMA § 93; the Vital
Records Act, 410 ILCS 535/21, OMA § 93.5; the Illinois
Aeronautics Act, 620 ILCS 5/38.01, OMA § 94; and the
Code of Civil Procedure, 735 ILCS 5/2-103, OMA § 95.
Among these many modifications is the one that is central
to this litigation: the addition of a new section 30 to the
Illinois Religious Freedom Restoration Act (IRFRA), 775
ILCS 35/1 et seq. OMA § 96. The IRFRA provides generally
that the “[g]overnment may not substantially burden a
person’s exercise of religion, even if the burden results
from a rule of general applicability, unless it demonstrates
that application of the burden to the person (i) is in
furtherance of a compelling governmental interest and (ii)
is the least restrictive means of furthering that compelling
governmental interest.” 775 ILCS 35/15. That broad
8 Nos. 05-4418, 05-4450 & 05-4451
language was qualified by the new section 30, which
states: “Nothing in this Act [i.e. IRFRA] limits the author-
ity of the City of Chicago to exercise its powers under
the [OMA] for the purpose of relocation of cemeteries or
the graves located therein.” 775 ILCS 35/30.
On May 30, 2003, shortly after the legislature enacted
the OMA, the Municipal Plaintiffs, St. John’s, and Rest
Haven filed suit in the United States District Court for
the Northern District of Illinois against the City of Chi-
cago, Mayor Richard M. Daley, the State of Illinois,
Governor Rod Blagojevich, and both the FAA and its
administrator alleging a number of violations of federal
law. On June 19, 2003, Plaintiffs filed an amended com-
plaint. Most of the counts of the amended complaint
challenged the City’s plan to acquire land before the FAA
issued its EIS or Record of Decision (ROD). Additionally,
all of the Plaintiffs alleged that the City, along with the
Mayor, violated NEPA and its implementing regula-
tions, the National Historic Preservation Act (NHPA), 16
U.S.C. § 470, et seq., § 4(f) of the Department of Transpor-
tation Act, 49 U.S.C. § 303(c), as well as provisions of the
Administrative Procedures Act, 5 U.S.C. § 706.
In the amended complaint, St. John’s and Rest Haven
also asserted a number of claims based on religion against
the City. They alleged that the City, in proposing to
condemn their cemeteries without demonstrating a
compelling governmental interest and use of the least
restrictive mechanism, as IRFRA ordinarily requires,
violated their constitutional rights under the Free Exercise
Clause of the First Amendment and the Equal Protection
Clause of the Fourteenth Amendment. These plaintiffs
charged that the City is “targeting” their religious activi-
ties and posing a substantial burden on their ability to
practice their religion. Plaintiffs also alleged that the
City’s plan to condemn their cemeteries violated the
federal Religious Land Use and Institutionalized Persons
Nos. 05-4418, 05-4450 & 05-4451 9
Act (RLUIPA), 42 U.S.C. § 2000cc et seq. Additionally, they
asserted violations of the Fifth Amendment’s Takings
Clause and the Fourteenth Amendment’s Due Process
clause. Finally, these Plaintiffs raised similar religion-
based claims against the State of Illinois and Governor
Blagojevich, and against the FAA and its administrator,
including an allegation that the FAA violated the federal
RFRA. On March 29, 2005, the district court dismissed
the State of Illinois and Governor Blagojevich from the
case on Eleventh Amendment immunity grounds.
As this suit was pending before the district court, the
parties entered into a court-approved order under which
the City agreed that it would not acquire property in
Bensenville and Elk Grove, including the St. John’s and
Rest Haven Cemeteries, until the FAA issued an EIS or a
ROD. At the end of 2003, the City began to move forward
with other components of its plan to expand O’Hare,
seeking FAA approval for over $1.3 billion in federal funds
for “Phase One” of the OMP. Specifically, the City re-
quested about $300 million in airport improvement
program discretionary funds, $63 million in entitlement
funds, and over $1 billion in Passenger Facility Charge
(PFC) funds. Phase One of the project was to include the
demolition of the cemeteries, as well as other property
in the villages. In late July of 2005, the FAA issued its
final EIS, which compared the environmental impact of
the City’s proposal with other alternatives and concluded
that the City’s airport plan, with some minor revisions,
was the preferred course. The EIS also reviewed the legal
issues raised by St. John’s and Rest Haven, ultimately
concluding that if the City’s plan was approved in the
ROD, the St. Johannes Cemetery would be relocated, while
the Rest Haven Cemetery would not.
On September 30, 2005, the FAA issued its ROD grant-
ing the City’s request for approval of its airport layout
plan. The ROD considered St. John’s RFRA claims and
10 Nos. 05-4418, 05-4450 & 05-4451
concluded that although the acquisition and relocation
of the St. Johannes cemetery was likely to burden the
exercise of the parishioners’ religion substantially, the City
had a compelling interest in relocating the cemetery in
order to make O’Hare more efficient. The same day that
the FAA issued its ROD, the Municipal Plaintiffs and
St. John’s filed a petition for review of the EIS and ROD
in the D.C. Circuit. Their petition alleged, among other
things, that the FAA’s approval of the airport layout plan
violated a number of provisions of federal law, including
the First and Fifth Amendments and RFRA. Along
with their petition for review, the Plaintiffs filed an
emergency motion for a stay pending appeal and a motion
for an administrative stay, which the D.C. Circuit granted.
Rest Haven was not a party to this litigation.
In light of the FAA’s approval of the airport layout plan
and the claims pending before the D.C. Circuit, the district
court issued an order to show cause why certain parties
and claims should not be dismissed. Given that the Rest
Haven Cemetery had by then been excluded from the OMP
and that the City was not challenging this step, the
district court suggested that Rest Haven should volun-
tarily dismiss itself from the suit. The district court also
ordered the Plaintiffs to show cause why Mayor Daley
should not be dismissed from the suit, because suing him
in his official capacity and suing the City of Chicago
amounted to the same thing. The district court also
questioned its jurisdiction to review claims asserted
against the FAA involving the ROD.
Before the district court issued its show cause order,
however, the FAA informed the D.C. Circuit that it
planned to award the City the $363 million in discretion-
ary funds it had requested to begin the implementation of
the first phase of the OMP. It made this announcement
despite the fact that it had not yet formally rendered a
decision granting the City’s request. The City argued
Nos. 05-4418, 05-4450 & 05-4451 11
that in the absence of the FAA’s final order rendering a
decision on funding, the court was without jurisdiction to
consider Plaintiffs’ NEPA and RFRA claims. On October
25, 2005, the D.C. Circuit denied St. John’s and the
Municipal Plaintiffs’ emergency motion for a stay pending
appeal, determining that they had not demonstrated
either the irreparable injury or the likelihood of success
on the merits required for the issuance of a stay pending
review. At that point, the court did not address the
jurisdictional question.
On October 26, 2005, St. John’s and the Municipal
Plaintiffs returned to the district court and filed a motion
for leave to file a second amended complaint. Rest Haven
was not listed as a party to the motion for leave to file
the second amended complaint. The proposed second
amended complaint included a claim that the FAA had
violated the Freedom of Information Act (FOIA), 5 U.S.C.
§ 552, et seq., when it allegedly ignored the Plaintiffs’
requests for documents relating to O’Hare’s expansion. On
October 31, 2005, St. John’s filed a motion for a temporary
restraining order and a motion for a preliminary injunc-
tion, seeking to halt all action on the City’s part while
all these challenges were pending. The district court
entered a temporary restraining order as it reviewed
these motions.
After filing these motions in district court, the Plaintiffs
then filed a docketing statement of issues in the D.C.
Circuit. In addition to the claims they raised against the
FAA before the district court, Plaintiffs asked the D.C.
Circuit to decide whether it was improper for the FAA to
fail to rule on Chicago’s funding applications, whether the
FAA had issued an unlawful ROD, and whether their
First Amendment and RFRA claims were entitled to de
novo review of disputed factual questions in an Article III
court.
12 Nos. 05-4418, 05-4450 & 05-4451
At that juncture, the district court dismissed Rest Haven
from the litigation. Because the City no longer planned to
acquire the Rest Haven Cemetery, and because Rest
Haven did not present any argument explaining why or
how it might be affected by either the City’s or the FAA’s
actions in their response to the order to show cause, the
district court held that its claims were moot. The court
also dismissed Mayor Daley from the litigation, conclud-
ing that the Plaintiffs had not responded to the issue it
raised in the order to show cause (whether it was redun-
dant to sue both the City and the Mayor in his official
capacity). The Plaintiffs do not challenge the dismissal of
Mayor Daley from this suit on appeal.
With respect to St. John’s religious claims against the
City, the district court concluded that the Plaintiffs failed
to state a claim upon which relief could be granted under
the Free Exercise Clause or the Equal Protection Clause.
It found that the OMA was constitutional on its face and
that there was no indication that any of the City’s pro-
posed actions were motivated by St. John’s religious
affiliation. The district court also denied St. John’s motion
for leave to file a second amended complaint with respect
to these claims, finding them to be similarly lacking.
Additionally, the district court dismissed all counts of the
complaint that pertained to RLUIPA, concluding that
the City’s plan to condemn the St. Johannes Cemetery
was not a “land use” regulation as contemplated by that
statute.
The district court also dismissed the bulk of St. John’s
and the Municipal Plaintiffs’ claims against the FAA and
its administrator. It concluded that it lacked jurisdic-
tion to review challenges to the FAA’s actions concerning
the ROD because under 49 U.S.C. § 46110, those claims
fell within the exclusive jurisdiction of the court of ap-
peals. Indeed, as the court recognized, the D.C. Circuit
was already considering these claims. After dismissing
Nos. 05-4418, 05-4450 & 05-4451 13
these claims, all that remained was St. John’s and the
Municipal Plaintiffs’ FOIA claim, for which the district
court granted the motion for leave to file a second amended
complaint. Given the dismissal of virtually all of the
Plaintiffs’ claims against the City and the FAA, the dis-
trict court vacated the temporary restraining order and
denied the motion for a preliminary injunction as moot.
Plaintiffs have appealed from that decision. See 28 U.S.C.
§ 1292(a)(1).
II
We review de novo the district court’s grant of a motion
to dismiss under Rule 12(b)(6) for failure to state a claim
upon which relief can be granted, accepting as true “all of
the factual allegations contained in the complaint.”
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (quoting
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965
(2007)). We may affirm the dismissal only if the com-
plaint fails to set forth “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic, 127 S. Ct.
at 1974. As we held in Airborne Beepers & Video, Inc. v.
AT&T Mobility LLC, 2007 WL 2406859 (7th Cir. Aug. 24,
2007), a district court should dismiss a complaint if “the
factual detail . . . [is] so sketchy that the complaint does
not provide the type of notice of the claim to which the
defendant is entitled under Rule 8.” Id. at *5. A district
court’s decision whether to allow a party to file a second
amended complaint, however, is reviewed for abuse of
discretion. See Doherty v. Davy Songer, Inc., 195 F.3d 919,
927 (7th Cir. 1999).
With respect to the district court’s decision that St.
John’s motion for a preliminary injunction is moot, we
review the court’s “findings of fact for clear error, its
balancing of the factors for a preliminary injunction
under the abuse of discretion standard, and its legal
14 Nos. 05-4418, 05-4450 & 05-4451
conclusions de novo.” Linnemeir v. Bd. of Trs. of Purdue
Univ., 260 F.3d 757, 761 (7th Cir. 2001). In assessing
whether a preliminary injunction is warranted, we must
consider whether the party seeking the injunction has
demonstrated that “1) it has a reasonable likelihood of
success on the merits; 2) no adequate remedy at law
exists; 3) it will suffer irreparable harm if it is denied; 4)
the irreparable harm the party will suffer without injunc-
tive relief is greater than the harm the opposing party
will suffer if the preliminary injunction is granted; and
5) the preliminary injunction will not harm the public
interest.” Id.III
Before turning to the merits, we must address two
jurisdictional issues that the Municipal Plaintiffs and
Rest Haven have raised. The first is whether the district
court erred in dismissing with prejudice all claims brought
by Rest Haven as moot, because the City no longer plans
to acquire that cemetery. Second is the question whether
the district court correctly dismissed the Municipal Plain-
tiffs’ claims against the FAA for lack of jurisdiction based
upon 49 U.S.C. § 46110. We review de novo the district
court’s grant of a motion to dismiss for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1), which includes a dismissal on mootness grounds.
See, e.g., Franzoni v. Hartmarx Corp., 300 F.3d 767, 771
(7th Cir. 2002). “When reviewing a dismissal for lack of
subject matter jurisdiction, we note that a district court
must accept as true all well-pleaded factual allegations
and draw all reasonable inferences in favor of the plain-
tiff.” Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th
Cir. 1999). In considering such a motion, “[t]he district
court may properly look beyond the jurisdictional allega-
tions of the complaint and view whatever evidence has
Nos. 05-4418, 05-4450 & 05-4451 15
been submitted on the issue to determine whether in
fact subject matter jurisdiction exists.” Id.A. Rest Haven
At the beginning of the EIS process, the City submitted
to the FAA a proposed revision to its airport layout plan
that included the construction of a runway in an area that
would require the relocation of existing air cargo facilities.
In that proposed plan, the City indicated that it wanted to
move these facilities to the site that is currently the
Rest Haven Cemetery. The FAA concluded in its final EIS,
however, that it would be possible to relocate the air cargo
facilities without disturbing Rest Haven. Ultimately, on
September 29, 2005, the FAA issued its ROD approving
a revised airport layout plan “that depict[ed] cargo build-
ing repositioning, but also show[ed] that Rest Haven
Cemetery w[ould] remain in private ownership.” The ROD
also reaffirmed that there would be no basis for the
mandatory reinterment of bodies at Rest Haven, and it
assured that the cemetery would “remain available for
future burials, and for visitation and care of the graves by
members of the public.” This convinced the district court
that there was no longer a live controversy among Rest
Haven, the City, and the FAA; it therefore dismissed all
counts brought by Rest Haven in the first amended
complaint with prejudice.
Like the district court, we see no reason why Rest Haven
should not be dismissed from this litigation. Under Article
III, § 2 of the United States Constitution, federal court
jurisdiction is limited to “actual, ongoing controversies.”
Honig v. Doe, 484 U.S. 305, 317 (1988). “[W]hen the issues
presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome,” the case is (or the
claims are) moot and must be dismissed for lack of juris-
diction. Powell v. McCormack, 395 U.S. 486, 496 (1969);
16 Nos. 05-4418, 05-4450 & 05-4451
see also Stotts v. Cmty. Unit. Sch. Dist. No. 1, 230 F.3d
989, 990-91 (7th Cir. 2000). The fact that Rest Haven at
one point was entitled to pursue this action makes no
difference. In order to satisfy Article III’s jurisdictional
requirements, “[t]he requisite personal interest that must
exist at the commencement of the litigation (standing)
must continue throughout its existence (mootness).”
Arizonans for Official English v. Arizona, 520 U.S. 43, 68
n.22 (1997) (quoting United States Parole Comm’n v.
Geraghty, 445 U.S. 388, 397 (1980)). As of July 2005, “the
dispute between the[se] parties no longer rages”; in fact,
the FAA granted Rest Haven precisely the relief it
wanted—the agency approved a layout plan that leaves
it alone. Holstein v. City of Chicago, 29 F.3d 1145, 1147
(7th Cir. 1994). In fact, the ROD goes one step further:
it requires the City to provide a road to the cemetery
to allow continued access to its grounds and to ensure
that its daily activities are not unduly disturbed by
the surrounding construction. Once a plaintiff ’s entire
demand is satisfied, “there is no dispute over which to
litigate, and a plaintiff who refuses to acknowledge this
loses outright, under FED. R. CIV. P. 12(b)(1), because he
has no remaining stake.” Rand v. Monsanto Co., 926 F.2d
596, 598 (7th Cir. 1991); see also North Carolina v. Rice,
404 U.S. 244, 246 (1971) (noting that a case becomes
moot when a court’s decision can no longer affect the
rights of litigants in the case before it and would be
nothing but an advisory opinion on hypothetical facts).
In response to the district court’s order to show cause
why its claims should not be dismissed, Rest Haven
complained that it was uncomfortable without an enforce-
able court order providing that “Chicago will preserve
and leave forever undisturbed the graves of the departed
at Rest Haven,” as well as an order requiring Chicago to
“guarantee the Rest Haven plaintiffs continued access
to the Rest Haven Cemetery.” In its reply brief here,
Nos. 05-4418, 05-4450 & 05-4451 17
Rest Haven concedes that the City’s representation that
it will not acquire Rest Haven Cemetery “may moot the
claim for injunctive relief.” See Brown v. Bartholomew
Consol. Sch. Corp., 442 F.3d 588, 596 (7th Cir. 2006) (“In
an action seeking only injunctive relief . . . once the
threat of the act sought to be enjoined dissipates, the
suit must be dismissed as moot.”). At oral argument,
however, Rest Haven appeared to defend the necessity of
the order it requested on the ground that, without such
an order, the City might unilaterally terminate its agree-
ment not to condemn Rest Haven. This fear is motivating
some of Rest Haven’s religious adherents to bury their
loved ones elsewhere out of fear of future disinterment.
If the City could change its mind at any time, Rest
Haven might have a point. But that is not the case here.
There is no indication on this record that the City has
the authority to modify the airport layout plan without
FAA approval. As the City represented at oral argument,
it took approximately four years for the FAA to ap-
prove the plan at issue, and the City has no immediate
intention to seek modification of the approved airport
layout plan in favor of one that requires it to condemn
the Rest Haven Cemetery. To the contrary, the City
stated that it is quite eager to implement the approved
plan. Rest Haven’s fear that the City may one day change
its mind and seek to acquire its cemetery is rooted in
nothing but speculation. In order to satisfy Article III’s
justiciability requirements, “[t]he injury or threat of
injury must be both real and immediate, not conjectural
or hypothetical.” O’Shea v. Littleton, 414 U.S. 488, 494
(1974). If and when the day comes when the City or some
other governmental entity wants to condemn the Rest
Haven Cemetery, Rest Haven will have ample opportunity
to defend itself before all appropriate tribunals.
If what Rest Haven wants is a perpetual injunction
against the City requiring it to leave its cemetery undis-
18 Nos. 05-4418, 05-4450 & 05-4451
turbed until the end of time, it is overreaching. The power
of eminent domain is a fundamental power of govern-
ment, and a court cannot restrict future governmental
authorities from its proper use. Moreover, any injunction
issued by a court of equity is itself subject to later modifi-
cation. See Rufo v. Inmates of Suffolk County Jail, 502
U.S. 367 (1992); New York State Ass’n for Retarded
Children Inc. v. Carey, 706 F.2d 956, 967 (2d. Cir. 1983)
(“The power of a court of equity to modify a decree of
injunctive relief is long-established, broad, and flexible.”).
Courts grant injunctive relief with the understanding that
there will be an “opportunity for modifying or vacating
[the] injunction when its continuance is no longer war-
ranted.” Milk Wagon Drivers Union v. Meadowmoor
Dairies, 312 U.S. 287, 298 (1941). Neither the district
court nor this court is empowered to enjoin the City
from ever seeking to acquire Rest Haven’s property, no
matter what the reason. Rest Haven also indicated at oral
argument that it would be satisfied with a court order
finding as a fact that there would be a substantial burden
to its First Amendment rights in the event of a future
taking. This will not do. In the absence of a live contro-
versy, such an order would be no more than an advisory
opinion, which, as we are sure Rest Haven knows, federal
courts are without constitutional authority to issue.
Rest Haven also argues that its claims are not moot
because it wants a declaratory judgment establishing
that OMA’s amendment to IRFRA violates the First
Amendment and the RLUIPA. This, at least, looks more
like an ongoing controversy. Because Rest Haven did not
advance this argument either before the district court or
in its opening brief, however, we consider it waived. See
Nelson v. LaCrosse County Dist. Attorney, 301 F.3d 820,
836 (7th Cir. 2002) (arguments raised for the first time
in the reply brief are waived). Waiver or forfeiture aside,
the argument has no merit. Even though someone may be
Nos. 05-4418, 05-4450 & 05-4451 19
affected by the IRFRA amendment, that “someone” is no
longer Rest Haven, and it is well established that the “case
or controversy” requirement applies to declaratory judg-
ments, just as it applies to every other kind of litigation
in federal court. See Powell, 395 U.S. at 518 (“The avail-
ability of declaratory relief depends on whether there is a
live dispute between the parties. . . .”); see also Tobin for
Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 528
(7th Cir. 2001) (noting that a claim for declaratory judg-
ment was moot where “relief . . . would have no impact on
the parties to th[e] suit”).
B. Municipal Plaintiffs and Rest Haven: FAA Claims
The district court also found that it lacked jurisdiction to
review the Municipal Plaintiffs’ and Rest Haven’s claims
against the FAA because these claims fell within the
exclusive jurisdiction of the court of appeals under 49
U.S.C. § 46110. After dismissing Rest Haven from the
litigation, the district court decided that it lacked juris-
diction to review the claims against the FAA that related
to the issuance of the ROD. Because Rest Haven was
not a party to this complaint, it has no “personal stake”
in the appeal of the district court’s denial of St. John’s
and the Municipal Plaintiffs’ motion for leave to file a
second amended complaint on this ground. See, e.g.,
Freedom from Religion Foundation, Inc. v. Bugher, 249
F.3d 606, 609 (7th Cir. 2001) (“Under Article III, only a
plaintiff with a personal stake in a case or controversy
has standing.”). Even if Rest Haven were a party to the
second amended complaint and its claims were not moot,
the district court would still lack jurisdiction to review
either Rest Haven’s or the Municipal Plaintiffs’ claims
against the FAA. The jurisdictional language in 49 U.S.C.
§ 46110 could not be plainer. It says that
a person disclosing a substantial interest in an order
issued by . . . the Administrator of the Federal Avia-
20 Nos. 05-4418, 05-4450 & 05-4451
tion Administration with respect to aviation duties and
powers designated to be carried out by the Admin-
istrator . . . in whole or in part under this part [or]
part B . . . may apply for review of the order by filing
a petition for review in the United States Court of
Appeals for the District of Columbia Circuit or in the
court of appeals of the United States for the circuit in
which the person resides or has its principal place of
business.
49 U.S.C. § 46110(a). “Part B” refers to the Airport Devel-
opment and Noise provisions of the same subtitle, see 49
U.S.C. § 47107, et seq., which include the provision that
grants the FAA the authority to review airport layout
plans. See 49 U.S.C. § 47107(a)(16). The statute goes on to
provide that the court of appeals has “exclusive jurisdic-
tion to affirm, amend, modify or set aside any part of the
order.” 49 U.S.C. § 46110(a).
The Plaintiffs’ arguments urging that the district court
had the authority to consider these claims are without
merit. First, Rest Haven argues that the federal RFRA,
which Rest Haven claims the FAA has violated, commands
that contested issues of fact pertaining to violations of
that statute be tried in the federal district court. In
support of this claim, they cite § 2000bb-1(c) of the Act,
which provides that a person alleging a violation of RFRA
“may assert that violation as a claim or defense in a
judicial proceeding” and that standing to assert such a
claim is “governed by . . . article III of the Constitution.”
Plaintiffs urge that this language means that they are
entitled to an Article III proceeding in which to resolve
disputed issues of fact. Even assuming that Rest Haven’s
claims are not moot, however, the statute says nothing
about exclusive jurisdiction of district courts to find
facts in RFRA cases. Review of an agency action in the
court of appeals surely qualifies as an Article III judicial
proceeding. Nothing in RFRA purported to repeal the
Nos. 05-4418, 05-4450 & 05-4451 21
authority of federal administrative agencies to find facts,
subject to review by the courts of appeals; there was no
silent elimination of the judicial review provisions of
the Administrative Procedures Act. See 5 U.S.C. § 706.
Furthermore, the fact that Rest Haven’s claims against the
FAA include allegations that the FAA violated the Consti-
tution does not allow it to “bypass the administrative
process” because “[t]he effect would be that important
and difficult constitutional issues would be decided devoid
of factual content.” Gaunce v. DeVincentis, 708 F.2d 1290,
1293 (7th Cir. 1983) (holding that exclusive jurisdiction
rested in the court of appeals in a case in which a pilot
challenged an FAA order revoking her flight certificate on
due process grounds); see also Thunder Basin Coal Co. v.
Reich, 510 U.S. 200, 215-16 (1994) (indicating that
while the “[a]djudication of the constitutionality of con-
gressional enactments has generally been thought be-
yond the jurisdiction of administrative agencies,” such a
“rule is not mandatory,” particularly when a plaintiff ’s
“statutory and constitutional claims can meaningfully be
addressed in the Court of Appeals”) (internal citations
omitted).
As further support for their argument that their claims
against the FAA should be heard by the federal district
court, both Rest Haven and the Municipal Plaintiffs
contend that the misconduct of various FAA administra-
tors made it impossible to develop the type of factual
record necessary for meaningful appellate review. The
Plaintiffs charge that the FAA has developed a compensa-
tion program that provides monetary rewards for FAA
officials who make decisions that allow the construction of
new runway projects; that former Chicago employees (who
had worked on previous O’Hare expansion projects) are
currently FAA officials and employees; and that these
administrators withheld thousands of documents that
are not a part of the appellate record. Without the ability
to present their claims to the district court, they fear, they
22 Nos. 05-4418, 05-4450 & 05-4451
will be stuck with the outcome of these tainted proceed-
ings. Appellate courts, however, are certainly competent
to hear a party’s argument that there were flaws in due
process at the agency level and remand the case to the
agency with instructions to correct these problems.
Additionally, any plaintiff can make an argument to the
court of appeals that there were problems with the cre-
ation of the record before the administrative agency and
thus in the record on appeal. See FCC v. ITT World
Commc’ns, Inc., 466 U.S. 463, 468-69 (1984) (“If, however,
the Court of Appeals finds that the administrative record
is inadequate, it may remand to the agency, see Harrison
v. PPG Indus., Inc., 446 U.S. 578, 593-94 (1980), or in some
circumstances refer the case to a special master, see 28
U.S.C. § 2347(b)(3).”). In fact, Plaintiffs made these
arguments before the Court of Appeals for the D.C.
Circuit, which rejected them. See Bensenville, 457 F.3d
at 72-73.
Lastly, Plaintiffs argue that the district court at least
has jurisdiction over their NEPA claims, pursuant to 40
C.F.R. § 1506.1. That regulation provides that “[u]ntil an
agency issues a record of decision . . . no action concern-
ing the proposal shall be taken which would [h]ave an
adverse environmental impact; or [l]imit the choice of
reasonable alternatives.” According to Plaintiffs, the FAA
has not made a substantive funding decision about the
disposition of certain passenger facility charges (PFC) that
amount to more than one billion dollars. This is money
that the City needs to facilitate Phase One of the OMP.
Without the federal money, the City cannot proceed with
the implementation of Phase One, which includes the
acquisition of land from the Municipal Plaintiffs. Plaintiffs
argue that the City is attempting to subvert the require-
ments of NEPA by adhering to a policy of “destruction
before decision,” in disregard of this court’s ruling in Old
Town Neighborhood Ass’n v. Kauffman, 333 F.3d 732 (7th
Nos. 05-4418, 05-4450 & 05-4451 23
Cir. 2003), disapproving such a strategy. The district court
decided that it had no jurisdiction over this claim either.
Perhaps because events continue to unfold, the Plaintiffs’
argument in this respect seems to have unraveled. The
regulation to which Plaintiffs refer prohibits action in the
absence of an agency’s issuance of a ROD. Here, though,
the ROD and the accompanying EIS have been issued.
More than that, in an agreed order between these parties,
the City stipulated that it “[would] not acquire property
in the Village of Bensenville and Elk Grove Village for the
OMP, or acquire the Rest Haven or St. Johannes Cemeter-
ies, unless and until the FAA has issued a Record of
Decision following completion of an EIS for the OMP.” At
oral argument the FAA directed the Court’s attention to
§ 12.3 of the ROD where the FAA made specific factual
findings on the airport layout plan’s effect on natural
resources, in compliance with 49 U.S.C. § 47106(c)(1)(B).
Plaintiffs contend that this does not do the job, because
while environmental findings have been made with re-
spect to the airport layout plan, those findings did not
focus on the specific project for which the City is seeking
funding—the Phase One Project. Based on our reading of
the record, however, the Phase One Project is a part of the
airport layout plan for which the City has received FAA
approval. Furthermore, the regulation does not prohibit
action until the FAA has made all decisions with respect
to funding; it says only that no action can be taken before
the issuance of the ROD, which we now have. If these
Plaintiffs wanted to challenge the environmental find-
ings made by the FAA, they certainly could have included
those claims in the petition for review of the ROD that
they filed in the D.C. Circuit.
This shows Plaintiffs’ NEPA challenge for what it is:
a matter so intertwined with the ROD that it falls within
the exclusive jurisdiction of the court of appeals. If we
needed further reassurance on the point, we have it in
24 Nos. 05-4418, 05-4450 & 05-4451
the fact that Plaintiffs actually made the identical argu-
ment about NEPA compliance in their presentation to
the D.C. Circuit. There, they argued that the FAA violated
NEPA by issuing a ROD that approved of the airport
layout plan without making any formal funding decisions.
Before the district court and on appeal here, they argue
that the FAA is violating NEPA by allowing the City to
proceed with the acquisition of property in these villages
before a funding decision has been made. Even if we did
not think that this issue was under the court of appeals’
exclusive jurisdiction, we do not think it wise to allow
either the Municipal Plaintiffs or Rest Haven to litigate
the same issues, either concurrently or seriatim, in
separate federal courts.
IV
We turn now to St. John’s part of this case. The first
question is whether St. John’s is entitled, as a matter of
state law, to the protection afforded by the Illinois Reli-
gious Freedom Restoration Act, 775 ILCS 35/30. If the
OMA’s amendment of IRFRA can withstand legal chal-
lenge, then the answer must be no; if not, then St. John’s
may have a point. Before the district court, St. John’s
argued that the OMA’s amendment of IRFRA violated the
Free Exercise Clause of the First Amendment. The Free
Exercise Clause prohibits the government from “plac[ing]
a substantial burden on the observation of a central
religious belief or practice” without first demonstrating
that a “compelling governmental interest justifies the
burden.” Hernandez v. C.I.R., 490 U.S. 680, 699 (1989). In
Employment Division v. Smith, 494 U.S. 872 (1990),
however, the Supreme Court held that neutral laws of
general applicability do not run afoul of the Free Exercise
Clause, even if these laws have the incidental effect of
burdening a religious practice. Id. at 883; see also Church
Nos. 05-4418, 05-4450 & 05-4451 25
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 531-32 (1993). In order to determine whether a law is
neutral, as the Court used the term in Smith, we must
examine the object of the law. A law is not neutral if “the
object of the law is to infringe upon or restrict practices
because of their religious motivation.” Lukumi, 508 U.S.
at 533. The related principle of “general applicability”
forbids the government from “impos[ing] burdens only
on conduct motivated by religious belief ” in a “selective
manner.” Id. at 543; see also id. at 531 (“Neutrality
and general applicability are interrelated, and failure to
satisfy one requirement is a likely indication that the
other has not been satisfied.”).
The Illinois legislature passed IRFRA in 1998 in re-
sponse to both Smith and the Supreme Court’s subsequent
invalidation (as applied to the states) of the federal
Religious Freedom and Restoration Act of 1993 (RFRA), 42
U.S.C. § 2000bb, et seq. See City of Boerne v. Flores, 521
U.S. 507 (1997) (holding that RFRA, as it applied to the
states and their subdivisions, exceeded Congress’s reme-
dial powers under the Fourteenth Amendment). RFRA had
been Congress’s attempt to impose what it understood to
be the pre-Smith “compelling interest test” to state
measures affecting religious practices. Under RFRA, a
governmental unit could not “substantially burden a
person’s exercise of religion even if the burden result[ed]
from a rule of general applicability . . . unless [the gov-
ernment’s action was] in furtherance of a compelling
governmental interest and [was] the least restrictive
means of furthering that . . . interest.” 42 U.S.C. § 2000bb-
1; see also Sherbert v. Verner, 374 U.S. 398 (1963); Wiscon-
sin v. Yoder, 406 U.S. 205 (1972).
Since the holding of Boerne was predicated on the scope
of Congress’s powers under section 5 of the Fourteenth
Amendment, the Illinois legislature reasonably con-
26 Nos. 05-4418, 05-4450 & 05-4451
cluded that Boerne said nothing about its own ability
under Illinois’s Constitution to enact a measure affording
special protection to religion. It did so in IRFRA, using
language that mirrors that of the federal RFRA. See 775
ILCS 35/15 (“Government may not substantially burden
a person’s exercise of religion, even if the burden results
from a rule of general applicability, unless it demonstrates
that application of the burden to the person (i) is in
furtherance of a compelling governmental interest and
(ii) is the least restrictive means of furthering that com-
pelling governmental interest.”). The legislation was
expressly designed to afford greater protection to religious
activity in Illinois than Smith holds is required under the
federal Constitution. The legislature acted again in the
OMA, however, taking back part of what IRFRA gave:
it put religious institutions on the same footing as all
other property owners for purposes of the O’Hare project.
The OMA accomplishes this goal by adding a new § 30 to
IRFRA; the new section states that nothing in IRFRA
“limit[s] the authority of the City of Chicago to exercise
its powers under the [OMA] for the purpose of relocation
of cemeteries or graves located therein.” 775 ILCS 35/30.
As St. John’s points out, the OMA also mentions cemeter-
ies in § 92, which amends the Illinois Municipal Code, 65
ILCS 5/11-51-1, by allowing the City to remove cemetery
remains for airport expansion without the assent of
cemetery trustees or owners.
According to St. John’s, a major tenet of its religious
beliefs is that the remains of those buried at the St.
Johannes Cemetery must not be disturbed until Jesus
Christ raises these remains on the day of Resurrection. It
asserts therefore that the City’s plan to acquire and
condemn the cemetery is a “sacrilege to [its] religious
faith.” We accept those representations. St. John’s contin-
ues with a claim that the OMA impermissibly targets
the religious cemeteries adjacent to O’Hare, stripping
Nos. 05-4418, 05-4450 & 05-4451 27
them of the protection under IRFRA that is afforded to
every other religious institution, including other religious
cemeteries, in Illinois. The district court decided, however,
that this was the wrong perspective: it saw no discrimina-
tion or targeting of religious institutions because any
property, religious or otherwise, within the area desig-
nated for O’Hare expansion is subject to the extraordinary
powers conferred in the OMA. It therefore dismissed all
counts in the first amended complaint that asserted a free
exercise violation and similarly denied the motion for
leave to file a second amended complaint with respect to
the free exercise claims, concluding that the Plaintiffs
failed to state any free exercise claim on these facts.
Throughout these proceedings, St. John’s has insisted
that the relevant comparison is between the two cemeter-
ies potentially affected by the O’Hare project and all
other cemeteries or religious properties in the state. But
this assumes the answer to the crucial question: what
is the proper comparison to make?2 Lukumi requires us
to approach that question by asking whether the object of
the OMA was “to infringe upon or restrict practices
because of their religious motivation.” 508 U.S. at 533. In
looking at OMA, we must consider the act as a whole, as
well as the part that the new § 30 of IRFRA (added by § 96
of the OMA) plays in it.
We begin, as Lukumi instructs, with the text of the
OMA. As we noted earlier, the new § 30 of IRFRA says
simply “Nothing in this Act limits the authority of the
City of Chicago to exercise its powers under the O’Hare
Modernization Act for the purposes of relocation of ceme-
2
Our dissenting colleague answers this critical question in
St. John’s favor. For the reasons we set forth in the discussion
that follows, we conclude that the City has the better of the
argument.
28 Nos. 05-4418, 05-4450 & 05-4451
teries or the graves located therein.” In our view, this
language does not “refer[ ] to a religious practice without
a secular meaning discernible from the language or con-
text.” Lukumi, 508 U.S. at 533. Some cemeteries are
affiliated with religious sects, others are not; even graves
in cemeteries with a religious affiliation may be relocated
because of natural necessity, for public health concerns,
after a hurricane or flood, or for many other private or
public reasons. We conclude 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. (We acknowl-
edge the fact that the OMA addresses only cemeteries
that are entitled to invoke the protections of IRFRA, but
that is only because secular cemeteries presumably
would have no extraordinary defense to the power of
eminent domain to begin with.) We note in this connection
that the Supreme Court held in Lukumi that the words
“sacrifice” and “ritual” were not so closely associated
with religious practice that a finding of facial non-neutral-
ity was compelled. Id. at 534. If that was the case there,
then it is straightforward here to conclude that the OMA
is facially neutral.
Even if a law passes the test of facial neutrality, it
is still necessary to ask whether it embodies a more
subtle or masked hostility to religion. See, e.g., Gillette v.
United States, 401 U.S. 437, 452 (1971) (indicating that the
Free Exercise Clause “forbids subtle departures from
neutrality”); see also Bowen v. Roy, 476 U.S. 693, 703
(1986) (noting that the First Amendment prohibits the
government from engaging in the “covert suppression of
particular religious beliefs”). To answer that question, we
must look at available evidence that sheds light on the
law’s object, including the effect of the law as it is designed
to operate, the “historical background of the decision under
challenge, the specific series of events leading to the
Nos. 05-4418, 05-4450 & 05-4451 29
enactment or official policy in question, and the [act’s]
legislative or administrative history.” Lukumi, 508 U.S. at
540. Perhaps the most important of these sources is the
remainder of the statute of which the new § 30 is a part.
The OMA in its entirety is the law that the Illinois Gen-
eral Assembly passed; by relying on it we do not run the
risk of selective use of statements in legislative history
that might not reflect the intent of the legislature. The
Supreme Court took this approach when it reviewed the
Free Exercise and Establishment Clause claims in Locke
v. Davey, 540 U.S. 712 (2004). There, although the peti-
tioner challenged only the specific statutory provision of a
scholarship program that prohibited recipients from
pursuing post-secondary degrees in theology, the Court
observed that “the entirety of the Promise Scholarship
Program goes a long way toward including religion in
its benefits.” Id. at 724 (emphasis added).
Although St. John’s alleges in its complaint that the
City targeted its religious rights when the City asked
the Illinois General Assembly to amend IRFRA as part
of the OMA, in reviewing the sufficiency of the complaint
“we are not obliged to accept as true legal conclusions or
unsupported conclusions of fact.” Hickey v. O’Bannon, 287
F.3d 656, 658 (7th Cir. 2002). There are simply no facts
in the voluminous record on appeal that support any
such claim of targeting religious institutions or practices.
According to its stated purpose, the OMA was enacted, in
part, to insure that “legal impediments to the completion
of the [O’Hare] project be eliminated.” OMA § 5(b). As
we noted earlier, most of the OMA’s provisions have
absolutely nothing to do with religion, cemeteries, or
IRFRA. See, e.g., id. § 20 (prohibiting local government
units, other than the City of Chicago, from condemning
property that is slated to become part of O’Hare); id. § 94
(amending the Illinois Aeronautics Act, 620 ILCS 5/38.01,
to exempt project applications under the provisions of the
30 Nos. 05-4418, 05-4450 & 05-4451
Airport and Airway Improvement Act submitted in con-
nection with the OMP from the general requirements for
such applications); id. § 95 (amending the Illinois Code of
Civil Procedure to include a quick-take provision for
property condemned for the OMP). In fact, the record as
a whole strongly supports the position the City has urged
throughout these proceedings: the OMA was designed to
remove any and all state-law based impediments to the
O’Hare expansion project, no matter what their source.
St. John’s makes the obvious point that, as matters have
developed, it is now the only cemetery in the State of
Illinois affected by the new § 30 of IRFRA. That is true,
but an “adverse impact will not always lead to a finding of
impermissible targeting.” Lukumi, 508 U.S. at 535. In fact,
if this point matters at all, it may cut in favor of the
City. As St. John’s repeatedly mentions in its brief, no
other religious cemetery in Illinois, including other
cemeteries similarly affiliated with the United Church of
Christ, is affected by the OMA. The fact that the legisla-
tion leaves other religious cemeteries untouched (includ-
ing those affiliated with churches or other religious
institutions that hold similar beliefs with respect to
burial grounds) reinforces the proposition that the legisla-
ture had the nondiscriminatory purpose of clearing all
land needed for O’Hare’s proposed expansion. If there
were ten cemeteries in that area, then the new § 30 would
apply to all ten; while there were two, it applied to both.
We conclude that the OMA, including the portion that
amends IRFRA, is a neutral law of general applicability.
The Illinois legislature was entitled to restore Illinois law
to the regime governed by Smith in order to facilitate the
airport project.
Although we think it unnecessary to ask whether the
plan passes the strict scrutiny test, and whether the City
has shown that it is the least restrictive means of fur-
thering a compelling governmental interest, we add for
Nos. 05-4418, 05-4450 & 05-4451 31
the sake of completeness that we agree with the FAA’s
conclusion in the ROD that the plan passes muster. Unlike
our dissenting colleague, we see no disputed issues of
material fact that would require further proceedings.
Virtually all involved parties, from the competent
committee in Congress, to the FAA, to the State of Illinois,
to the City of Chicago, have made a compelling case that
the OMP addresses a serious problem with national—
indeed international—consequences. O’Hare is a vital
transportation link for the Midwest region, for North
America, and for the world. It is the only airport in the
United States that is the hub of two major airlines.
Serving 47 scheduled passenger airlines and 23 cargo
carriers, O’Hare provides nonstop service to 127 domestic
and 48 international destinations. In part because
Chicago is the largest population and economic center in
the middle of the country, O’Hare “plays an important role
in the National Airspace System (NAS) as a dual airline
hub, a major mid-continent market for nearly every major
airline, and a key international gateway.”
O’Hare is not only one of the busiest airports in the
world. Unfortunately, recently it has also become one of
the most congested. Its delay record is at least twice as
bad as that of the next two airports that suffer from
excessive delays, Atlanta and Newark. Nearly 70,000
airport operations at O’Hare were delayed in 2004, for a
total of almost 4,000,000 minutes. As the OMA states,
“The reliability and efficiency of air transportation for
residents and businesses in Illinois and other States
depend on efficient air traffic operations at O’Hare.” 620
ILCS 65/5. Approximately 51% of total passengers travel-
ing through O’Hare connect to and from other airports.
As a major international gateway, the effects of the
congestion at O’Hare are far-reaching. Delays at O’Hare
spark further delays around the country and the world,
with serious economic and logistical consequences. Ac-
32 Nos. 05-4418, 05-4450 & 05-4451
cording to the ROD, “O’Hare has consistently been the
number one problem related to delays with the National
Airspace System in the United States today.” Moreover,
the problem seems unlikely to abate; the FAA believes
that “[a]ir traffic at O’Hare is projected to increase in the
future from some 31 million passengers and 922,787
operations in 2002 to some 50 million passengers and
1,194,000 operations by 2018.” Many who have tried to
connect through O’Hare have learned the hard way that
the airport simply lacks the capacity to accommodate
all the demand for its services. It is for these reasons that
the FAA concluded that the state interests at stake are
compelling and agreed to fund one of the largest and most
costly reconfigurations of an airport in the United States.
The routes and networks that have developed around
O’Hare are vast and entrenched. The FAA considered
the option of diverting air traffic to other regional airports
or mid-continent hubs, but it found that local, national
and international dependence on O’Hare as a national
connecting hub and international gateway had developed
to the point of making those ideas effectively unworkable.
To borrow a concept from the “essential facilities” doctrine
in antitrust law, as a practical matter it is impossible
reasonably to duplicate O’Hare in a way that meets the
crushing demand for its important services. Compare MCI
Commc’ns Corp. v. AT&T Co., 708 F.2d 1081, 1132 (7th
Cir. 1983). If the decision were ours to make (a proposition
that we find doubtful), rather than that of the FAA or the
competent authorities in Chicago and Illinois, we would
find that there really is “no realistic, economically practi-
cal alternative,” City of Malden, Missouri v. Union
Electric Co., 887 F.2d 157, 163 n.6 (8th Cir. 1989), to the
restructuring of O’Hare to remedy those concerns. Given
O’Hare’s unique importance to the national transporta-
tion infrastructure, we are persuaded that the City and
Nos. 05-4418, 05-4450 & 05-4451 33
State have a compelling interest in fixing the problems
from which O’Hare suffers.
Even if the need is compelling, if IRFRA applied it would
be necessary to decide whether the OMP is the least
restrictive alternative. St. John’s has offered no plausible
evidence to suggest that it is not. See Bell Atlantic, 127
S. Ct. at 1974. The City and its many partners carefully
considered the concerns of the religious entities in an
exhaustive review. They studied the alternatives thought-
fully, 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. See Bensen-
ville, 457 F.3d at 72 (stating that the FAA “appears to
have acted with great care in conducting its analyses for
the EIS and ROD” in this case). Cf. Lyng v. Northwest
Indian Cemetery Protective Ass’n, 485 U.S. 439, 453-55
(1988) (noting that where the government commissioned
a comprehensive study of the effects its proposed road
would have on the religious concerns at issue and had
planned numerous ameliorative measures to mitigate the
intrusion as much as possible, “it is difficult to see how
the Government could have been more solicitous”). The
City discarded its original plan to relocate air cargo
facilities to the Rest Haven site, after the FAA concluded
that “there is a measure of flexibility in the design and
location of these buildings sufficient to accommodate the
religious liberty interests without impeding the air cargo
component” of the overall plan. Accordingly, Rest Haven
was spared in an effort to tailor the plan in as accommo-
dating a manner as possible.
Unfortunately, geography and the needs of the expansion
project made it impossible similarly to accommodate
the St. Johannes cemetery. The FAA’s review of alterna-
tive proposals illustrates, however, that this conclusion
was not reached lightly. The proposals attempted to
34 Nos. 05-4418, 05-4450 & 05-4451
minimize encroachment on the St. Johannes cemetery as
much as possible by considering options that would
have shifted, shortened, or eliminated various runways
or other parts of the overall plan. For example, one
alternative called for moving a key runway about 400 feet
to the south and shortening it to avoid the St. Johannes
cemetery. The FAA found that doing so would have moved
the runway into protected space for a new air control
tower that could not be moved without running afoul of
FAA safety standards. According to the ROD, the ulti-
mate result would have “compromis[ed] the efficiency
and capacity of [other] runways in poor weather.” The
ROD noted that the responses to these concerns
“demonstrate[d] an unfamiliarity with the real-world
situation of operating a major airport in both a safe and
efficient manner.” Another proposal suggested simply
shortening the runway without moving it to another
part of the airport. The FAA found that this alternative
would “place severe operating constraints on the airfield
any time weather conditions presented a ceiling below
4,500 feet and less than 7 miles of visibility” which “would
not accommodate anticipated growth in aviation activity
at acceptable levels of delay.”
More creative possibilities were considered as well, such
as simply constructing a necessary runway on the surface
of the cemetery ground without disturbing the bodies
underneath. Even though this would have made access to
and future use of the cemetery impossible and may also
have offended religious sensibilities, some thought that
this proposal was less restrictive because the bodies would
remain untouched. The FAA consulted the Tennessee
Valley Authority, a federal agency with considerable
experience in cemetery relocation (derived over many
years of building hydro-power facilities in areas where
cemeteries were located), about this idea. The concept
proved to be infeasible as a matter of engineering. The
Nos. 05-4418, 05-4450 & 05-4451 35
FAA concluded that “the depth of excavation needed for
runway construction, along with the ancillary activities
such as electrical cabling for airfield runway lighting and
storm sewer pipes for airfield drainage, presented a
substantial likelihood that the graves could be disturbed.”
It is significant that this case involves physical intrusion
on a religious site, not the curtailment or prohibition of
a religious practice. The least restrictive alternative
analysis here comes down to concrete measurements.
The question is whether there is a way to construct
the vitally needed new runways and supporting struc-
tures at O’Hare—a defined physical space—in a way that
limits or avoids entirely physical encroachment on an
adjacent geographical area. An airport layout and runway
configuration is an intricate web of interrelated parts
where placements and measurements are carefully cali-
brated to account for variables such as wake turbulence,
weather, and visibility, as well as the size, speed, and
schedules of departing and arriving aircraft. The entire
project is constrained by demanding FAA standards. As
the ROD explains, “a change in one runway often has
consequences for other runways, nearby taxiways, and the
overall ability to handle greater levels of traffic.” Each
alternative proposal fell victim to that reality. The
City has demonstrated that it has accommodated the
religious concerns as much as is physically possible
without compromising its compelling interests. The only
plausible conclusion that the pleadings support is that
the OMP represents the least restrictive alternative.
Lastly, St. John’s argues that the district court erred
in concluding that in order to state a free exercise claim a
plaintiff must allege two things: (1) that the defendant’s
actions were motivated by animus or prejudice, and
(2) that the law at issue is not neutral or of general
applicability. The first of these, it asserts, is precluded
by cases such as Shrum v. City of Coweta, Okla., 449
36 Nos. 05-4418, 05-4450 & 05-4451
F.3d 1132 (10th Cir. 2006). There, the Tenth Circuit
observed that “the Free Exercise Clause has been applied
numerous times when government officials interfered
with religious exercise not out of hostility or prejudice,
but for secular reasons.” Id. at 1144.
With respect, we think that St. John’s has misread the
district court’s opinion. Only after the court decided that
the OMA was a neutral law of general applicability did
it observe that “none of the allegations in the complaint
give[s] rise to the inference that the facially neutral
language masks more insidious underpinnings.” This
comment reflects the inquiry required by Lukumi. The
district court was not suggesting that a plaintiff is re-
quired to allege animus or prejudice in order to state a
free exercise claim.
In fact, a closer look at Shrum reveals that it is not
of much help to St. John’s. In that case, the plaintiff, a
police officer and minister, alleged that he was assigned to
a day shift precisely because this schedule would conflict
with his ministerial duties. Although the defendant gave
a neutral justification for the assignment, the plaintiff ’s
allegation was that the decision to reassign him was
“motivated by [plaintiff]’s religious commitments.” Id.
at 1144. A question therefore existed with respect to
whether the decision at issue was actually neutral and of
general applicability; the court had no need to require
the plaintiff also to allege that the assigning officer had
held his faith against him or had acted out of religious
prejudice. The problem was that the assigning officer
wanted to force the plaintiff to choose between his duties
as a police officer and his post as a minister and “religious
discrimination was the means to [that] entirely secular
end . . . .” Id. Here, in contrast, 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
Nos. 05-4418, 05-4450 & 05-4451 37
of its current dedication to religious use. Cf. Personnel
Adm’r. of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (“ ‘Dis-
criminatory purpose,’ however, implies more than intent
as volition or intent as awareness of consequences. It
implies that the decisionmaker, in this case a state
legislature, selected or reaffirmed a particular course of
action at least in part ‘because of,’ not merely ‘in spite of,’
its adverse effects upon an identifiable group.”) (internal
citation omitted). There are no facts in this record that
could support such a claim.
V
Moving on from its free exercise challenge to the OMA’s
amendment of IRFRA, St. John’s argues that the OMA
violated the Fourteenth Amendment’s Equal Protection
Clause when it deprived St. John’s of constitutional and
statutory legal protections that are available to every
other cemetery in the state. The district court dis-
missed this aspect of the case, in both the original and
the second amended complaint, for failure to state a
claim upon which relief could be granted. The court’s
error in this respect, according to St. John’s, was its fail-
ure to review the equal protection theory using strict
scrutiny.
In deciding whether the OMA violates the Equal Protec-
tion Clause, our first question is whether the act targets
a suspect class or addresses a fundamental right. See Eby-
Brown Co., LLC v. Wisc. Dep’t of Agric., 295 F.3d 749, 754
(7th Cir. 2002). If it does either of these things, then the
legislation must survive more demanding scrutiny. Nor-
mally, this means that it must be tailored narrowly to
facilitate a compelling state interest. See Krislov v.
Rednour, 226 F.3d 851, 863 (7th Cir. 2000). If no funda-
mental rights or suspect categories are at issue, “[t]he
general rule is that legislation is presumed to be valid
38 Nos. 05-4418, 05-4450 & 05-4451
and will be sustained if the classification drawn by the
statute is rationally related to a legitimate state interest.”
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S.
432, 440 (1985).
St. John’s first tries to repackage its free exercise
argument in equal protection language, by claiming that
the new § 30 unduly burdens its fundamental right freely
to exercise its religion. We have already rejected the
underlying point, however. “Where a plaintiff ’s First
Amendment Free Exercise claim has failed, the Supreme
Court has applied only rational basis scrutiny in its
subsequent review of an equal protection fundamental
right to religious free exercise claim based on the same
facts.” Wirzburger v. Galvin, 412 F.3d 271, 282-83 (1st Cir.
2005) (citing Johnson v. Robison, 415 U.S. 361, 375 n.14
(1974)).
St. John’s also argues that the new § 30 targets a
suspect class, namely, the two religious cemeteries adja-
cent to O’Hare. It has not fleshed out this argument
particularly well. If it means to suggest that “cemeteries
adjacent to O’Hare” constitute a constitutionally suspect
class, we must disagree with it. A suspect class either
“possesses an immutable characteristic determined solely
by the accident of birth,” Frontiero v. Richardson, 411 U.S.
677, 686 (1973), or is one “saddled with such disabilities,
or subjected to such a history of purposeful unequal
treatment, or relegated to such a position of political
powerlessness as to command extraordinary protection
from the majoritarian political process.” San Antonio
Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).
Although religion may fit the bill, see, e.g., City of New
Orleans v. Dukes, 427 U.S. 297, 303 (1976), strict scrutiny
has been reserved for laws that “discriminat[e] among
religions.” Corp. of the Presiding Bishop of the Church of
Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327,
Nos. 05-4418, 05-4450 & 05-4451 39
339 (1987). The new § 30 neither classifies on the basis
of religion nor discriminates among religions.
Once again, St. John’s notes that it is the only religious
cemetery currently affected by the OMA; other religious
cemeteries in the state, including those affiliated with the
United Church of Christ, are beyond the statute’s reach.
As was the case with respect to its free exercise claim,
St. John’s own argument proves that this statute does
not treat St. John’s differently from other religious ceme-
teries in the state because it is a religious cemetery.
Rather the statute puts St. John’s in a different position
from other religious cemeteries in the state because it is
near O’Hare and, unlike the Rest Haven Cemetery, the
City badly needs the land to construct additional runways.
Geography, however, is not a suspect class for equal
protection purposes. If St. John’s is attempting to state a
“class of one” equal protection claim, see Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000), it has
failed to do so. This court has held that “[a] class of one
equal protection claim may be brought where (1) the
plaintiff alleges that he has been intentionally treated
differently from others similarly situated and (2) that
there is no rational basis for the difference in treatment or
the cause of the differential treatment is a ‘totally illegiti-
mate animus’ toward the plaintiff by the defendant.”
Lunini v. Grayeb, 395 F.3d 761, 768 (7th Cir. 2005)
(quoting McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001
(7th Cir. 2004)). Even if St. John’s could satisfy the first
part of that test, it cannot survive the second part.
The fact that this statute affects a religious group or
institution does not necessarily mean that the statute
classifies on the basis of religion. See, e.g., Johnson, 415
U.S. at 375 n.14 (declining to categorize group of religious
conscientious objectors as a suspect class); Locke, 540 U.S.
at 712 (applying rational basis review to a statute that
prohibited state aid to any post-secondary student pursu-
40 Nos. 05-4418, 05-4450 & 05-4451
ing a degree in theology). As we observed earlier, in a case
like this, where a facially neutral statute is challenged on
equal protection grounds, the challenger must prove that
the legislature “selected or reaffirmed a particular course
of action at least in part ‘because of,’ not merely ‘in spite
of,’ its adverse effects upon an identifiable group.” Feeney,
442 U.S. at 279. Nothing supports the proposition that
the Illinois legislature singled out St. John’s for lesser
protection under IRFRA protection because it runs a
religious cemetery. Anyone or anything standing in the
way of the O’Hare project faces the prospect of the City’s
exercise of its eminent domain power. We have no doubt
that the legislature was unmoved by St. John’s religious
affiliation.
In order to survive a motion to dismiss for failure to
state an equal protection claim, “a plaintiff must allege
facts sufficient to overcome the presumption of rationality
that applies to government classifications.” Wroblewski v.
City of Washburn, 965 F.2d 452, 460 (7th Cir. 1992). As
the district court observed, St. John’s does not even
attempt to argue that the OMA’s amendment to IRFRA is
not rationally related to some legitimate government
purpose. Certainly, the expansion of O’Hare is a legitimate
state purpose. As a classic “public use”—an airport to be
operated by the City of Chicago for the benefit of local,
national, and international transportation—it does not
raise any of the questions that concerned the dissenting
Justices in the Supreme Court’s decision in Kelo v. City of
New London, Conn., 545 U.S. 469 (2005). Enacting a
statute that removes legal barriers to the City’s ability to
acquire land in connection with the expansion of the
airport is not “wholly impossible” to relate to that legiti-
mate interest. Civil Liberties for Urban Believers v. City
of Chicago, 342 F.3d 752, 766 (7th Cir. 2003).
Nos. 05-4418, 05-4450 & 05-4451 41
VI
Last, St. John’s invokes the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc, et seq. Congress enacted RLUIPA after the
Supreme Court invalidated the federal RFRA, 42 U.S.C.
§ 2000bb, et seq., as it applied to the states and their
subdivisions in City of Boerne, 521 U.S. 507. “Less sweep-
ing” than RFRA, RLUIPA is limited to cases involving
land use regulations or the religious exercise rights of
institutionalized persons. It applies when a substantial
burden to religious exercise is “imposed in a program or
activity that receives Federal financial assistance,” affects
interstate commerce, or, in a case involving a land use
regulation, is imposed pursuant to a procedure that
permits the government to make “individualized assess-
ments of the proposed uses for the property involved.” 42
U.S.C. §§ 2000cc-1(b)(1)-(2), 2000cc(a)(2)(A)-(C).
The question before us is whether the “land use” part of
RLUIPA applies here. That part of the statute prohibits
any government from implementing a “land use regula-
tion” that “imposes a substantial burden on the religious
exercise of a person,” as well as on religious assemblies
and other religious institutions, unless the government
can show that the “imposition of the burden on that
person, assembly, or institution is in furtherance of a
compelling governmental interest [ ] and is the least
restrictive means of furthering that compelling governmen-
tal interest.” 42 U.S.C. § 2000cc(a)(1). We must decide
whether the City’s plan to condemn the St. Johannes
Cemetery is a “land use regulation” within the meaning
of RLUIPA. We agree with the district court’s conclusion
that it is not.
Initially, we note that we are proceeding on the assump-
tion that RLUIPA as a whole does constitutionally apply
to the states. In Cutter v. Wilkinson, 544 U.S. 709 (2005),
42 Nos. 05-4418, 05-4450 & 05-4451
the Supreme Court held that § 3 of RLUIPA, which deals
with the religious exercise rights of institutionalized
persons, is constitutional as applied to the states. The
Court specifically declined to express any view on the
validity of § 2 of the statute, which deals with land use
regulations. 544 U.S. at 715 n.3. Neither party has raised
any challenges to the constitutionality of § 2; because we
conclude that the statute does not apply here, we save
for another day the question whether this part of the
statute may be applied to the states.
The term “land use regulation” is defined by RLUIPA
as follows:
[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). St. John’s (as well as the Munici-
pal Plaintiffs and Rest Haven, for that matter) have not
objected, however, to any plan on the City’s part to zone
their property in an unfavorable way or to impose restric-
tions on it under a landmarking law. St. John’s claims
instead that the OMA is a “zoning-type law” because it
changes the permitted use of its land from a religious
cemetery to land designated as “airport property.” But this
is a misleadingly incomplete description of the City’s
intentions under the statute. The fact that the OMA
refers to the land it seeks to acquire from everyone living
within the footprint of the O’Hare expansion project as
“airport property” does not morph the OMA into a zoning
ordinance. The City is not attempting to dictate to these
plaintiffs what they are permitted to do with the plot of
land that is currently the St. Johannes Cemetery; rather,
Nos. 05-4418, 05-4450 & 05-4451 43
the City seeks to exercise its takings power to assume
full ownership of the land, after paying St. John’s just
compensation. As Illinois courts have long recognized, the
“police power [zoning] and eminent domain are distinct
powers of government.” Sanitary Dist. of Chi. v. Chi. &
Alton R.R. Co., 108 N.E. 312, 314 (Ill. 1915) (“Whatever
restraints the Legislature imposes upon the use
and enjoyment of property with the reason and principle
of this duty the owner must submit to. It is a regulation,
and not a taking; an exercise of police power, and not of
eminent domain.”). Because zoning and eminent domain
are “two distinct concepts” that involve land “in very
different ways,” we reject the argument that the City’s
plan to condemn the St. Johannes Cemetery under the
OMA is an act of zoning. Faith Temple Church v. Town of
Brighton, 405 F. Supp. 2d 250, 254 (W.D.N.Y. 2005).3
3
Some argue that the two concepts are not so distinct, and that
the problem with zoning is that it forces property owners to limit
the uses to which they put their property. In that sense, the
argument goes, zoning regulations are in fact partial takings of
private property. See Richard A. Epstein, Takings: Private
Property and the Power of Eminent Domain 100-03 (1985).
Professor Epstein argues that what government should do in
lieu of zoning is use its power of eminent domain, assuming of
course that there is a valid public purpose and the government
is willing to pay. He recognizes that the law has not adopted his
theory, however, noting that “the dominant line of opinion—one
that can be traced to Justice Holmes in [Pennsylvania Coal Co.
v. Mahon, 260 U.S. 393 (1922)]—is that regulation, far from
being a subclass of takings, is outside the scope of the eminent
domain clause unless it is taken ‘too far.’ ” Id. at 102.
St. John’s argument runs in the other direction; it claims that
the exercise of eminent domain in this case has essentially zoned
away its entire property. But the City has paid just compensa-
tion for what it has taken in this case, which is exactly what
(continued...)
44 Nos. 05-4418, 05-4450 & 05-4451
St. John’s relies on a district court case from the South-
ern District of Indiana for the sweeping proposition that
“[w]hen an ordinance constitutes an attempt by the
government to regulate the use of a piece of property, it is
an act of zoning.” Sagamore Park v. City of Indianapolis,
885 F. Supp. 1146, 1150 (S.D. Ind. 1994). That decision,
however, is inapposite. It addressed the question whether
a moratorium imposed by the Board of Zoning Appeals
amounted to an act of zoning; it had nothing to do with the
question whether an exercise of the sovereign power of
eminent domain should also be regarded as “zoning.”
In addition to arguing that the OMA is a zoning law, the
Plaintiffs contend that eminent domain itself is a “land
use” regulation under RLUIPA. Their best authority for
this point is a footnote in a district court case from the
Central District of California, Cottonwood Christian Center
v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203(C.D. Cal. 2002). Briefly, in that case, the plaintiff, Cotton-
wood Christian Center, wanted to build a church on an 18-
acre parcel of land that it owned. The City of Cypress
planned to use that land for commercial retail space and
initiated eminent domain proceedings. The plaintiff
brought an action for a preliminary injunction after the
City denied it the necessary land use permit it needed to
begin constructing its place of worship. The district court
found that the City’s refusal to grant Cottonwood’s ap-
plication for a conditional use permit was a land use
regulation subject to RLUIPA. In a footnote, the court
commented that “[e]ven if [it] were only considering the
condemnation proceedings, they would fall under
3
(...continued)
distinguishes it from a zoning regulation that has gone “too far.”
It would strain the statutory definition beyond repair to equate
a buy-out with a “limitation” or “restriction” on land use.
Nos. 05-4418, 05-4450 & 05-4451 45
RLUIPA’s land use regulation.” Cottonwood, 218 F. Supp.
2d at 1222 n.9.
We are not persuaded by the district court’s brief dicta
in Cottonwood that eminent domain is always and inevita-
bly a land use regulation under RLUIPA. Given the
importance of eminent domain as a governmental power
affecting land use, we think that if Congress had wanted
to include eminent domain within RLUIPA, it would
have said something. Indeed, before federal law (even
under the Spending Clause) starts interfering with the
fundamental state power of eminent domain, it is likely
that we would need a clear statement from Congress. See,
e.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65
(1989) (“[I]f Congress intends to alter the usual constitu-
tional balance between the States and the Federal Gov-
ernment, it must make its intention to do so unmistakably
clear in the language of the statute.”) (internal quotation
omitted). Congress did not mention eminent domain in
so many words in RLUIPA’s definition of a land use
regulation, which is enough for us to consider it excluded.
See Lamie v. United States Tr., 540 U.S. 526, 534 (2004)
(“It is well established that where the statute’s language
is plain, the sole function of the courts . . . is to enforce it
according to its terms.”). The handful of federal and state
cases that have addressed this question have reached the
same conclusion that we have. See, e.g., Faith Temple
Church, 405 F. Supp. 2d at 255 (“By its terms . . . RLUIPA
does not apply to eminent domain proceedings.”); City and
County of Honolulu v. Sherman, 129 P.3d 542, 547 (Haw.
2006) (“RLUIPA is not available as a defense to condemna-
tion . . . .”); see also Prater v. City of Burnside, Ky., 289
F.3d 417, 434 (6th Cir. 2002) (although not specifically
addressing the question whether condemnation is a land
use regulation under RLUIPA, indicating that the City’s
property interest in the land at issue gave it the right to
develop the land as it desired and thus the City’s decision
46 Nos. 05-4418, 05-4450 & 05-4451
to develop the roadway was not based on any zoning or
landmarking law). Because this case does not involve a
“land use regulation,” there is no need for us to address
RLUIPA’s other element—whether the City’s proposed
actions will substantially burden Plaintiffs’ religious
exercise.
With RLUIPA inapplicable, we have exhausted the
possible reasons why the St. Johannes Cemetery might
be exempt from the City’s general eminent domain power.
Over the years, Illinois has condemned cemeteries, both
religious and otherwise, for a variety of public uses, such
as highways. See, e.g., Illinois State Toll Highway Comm’n
v. Eden Cemetery Ass’n, 158 N.E.2d 766 (Ill. 1956) (oft-
cited case about the appropriate uses of the state’s eminent
domain power involving condemnation of a religious
cemetery); Dep’t of Transp. v. Bouy, 386 N.E.2d 1163 (Ill.
App. Ct. 1979) (resolving methods government was re-
quired to use to determine the market value and appropri-
ate compensation for the partial taking of a cemetery
to provide land for a highway). We recognize that relocat-
ing St. Johannes will be a sensitive and labor intensive
task. The City has established a detailed protocol, which
includes identifying the next of kin for each person buried
at the cemetery and hiring professional archaeologists
and a licensed funeral director to carry out archaeological
work and disinterments for each person buried there. At
oral argument, the City assured us that it will comply with
these procedures. We take the City at its word and trust
that this process will be carried out with dignity and
respect for both living and dead. Of course, the plaintiffs
remain free to challenge any deviation from the City’s
proposed methods of relocation before an appropriate
tribunal should some controversy arise in the future.
Given our conclusion that none of St. John’s religious
claims against the City survives, the district court was
correct to deny its motion for a preliminary injunction.
Nos. 05-4418, 05-4450 & 05-4451 47
VII
Accordingly, we AFFIRM the judgment of the district
court.
RIPPLE, Circuit Judge, concurring in part and dissenting
in part. I join my colleagues in affirming the judgment of
the district court with respect to the claims by Rest Haven
and the municipal defendants. However, I believe that
the amendments to the Illinois Religious Freedom Resto-
ration Act (“Illinois RFRA”) made in the O’Hare Modern-
ization Act (“OMA”), Ill. Pub. Act No. 093-0450, violate
the Free Exercise Clause, and, for that reason, must be
subject to strict scrutiny. I further believe that there
remain factual questions regarding whether the City of
Chicago (“City”) has shown that the proposed moderniza-
tion and expansion plan of O’Hare Airport is narrowly
tailored to meet the compelling interest the City claims.
These factual issues render dismissal inappropriate at
this stage in the litigation. Therefore, I respectfully
dissent.
I
BACKGROUND
The majority’s thoughtful and comprehensive opinion
sets forth the facts of this case in great detail; therefore,
I shall provide only a brief description of the pertinent
facts.
48 Nos. 05-4418, 05-4450 & 05-4451
In May 2003, the Illinois General Assembly enacted the
OMA. The legislation amended various provisions of
Illinois law to facilitate the planned expansion of O’Hare
Airport. One of the legal impediments that this legisla-
tion sought to remove was a restriction on the power of
the City to condemn particular properties for the expan-
sion, including two religiously-affiliated cemeteries, one
of which, St. Johannes Cemetery (“St. Johannes”), is
owned by St. John’s United Church of Christ (“St. John’s”).
Among the changes aimed at facilitating the condemna-
tion of these cemeteries was an amendment to the Illinois
RFRA that repealed otherwise generally applicable
statutes only with respect to the relocation of cemeteries
in connection with the O’Hare expansion.
St. John’s and two of its congregants1 filed this action,
challenging both the City’s attempt to acquire the land
on which St. Johannes is located and the amendment to
the Illinois RFRA. St. John’s asserted that the City’s
actions violated its rights under the Free Exercise Clause
of the First Amendment and the Equal Protection Clause
of the Fourteenth Amendment.2 St. John’s maintains
that the relocation of St. Johannes would violate a major
tenet of its religious beliefs, which requires that those
buried in St. Johannes must remain undisturbed until
resurrected by Jesus Christ on the Last Day. St. John’s
further contended that, because the amendments to the
Illinois RFRA singled out religious cemeteries near
1
Because the congregants assert the same claims as St. John’s,
I shall refer, for ease of reference, to the plaintiffs collectively as
St. John’s.
2
The owner of the second cemetery, Rest Haven Cemetery
Association, originally joined St. John’s in these claims. As noted
by the majority opinion, the City no longer seeks to acquire
the land on which Rest Haven is located, rendering Rest
Haven’s challenges moot.
Nos. 05-4418, 05-4450 & 05-4451 49
O’Hare, the law was not neutral and of general applicabil-
ity, and therefore subject to strict scrutiny under the
Free Exercise Clause of the First Amendment and the
Equal Protection Clause of the Fourteenth Amendment.
The district court dismissed St. John’s complaint for
failure to state a claim. The district court concluded that
the OMA was a neutral law of general applicability; thus,
it was subject only to rational basis scrutiny under both
the Free Exercise Clause and the Equal Protection Clause.
II
DISCUSSION
The First Amendment ensures religious freedom by
firmly committing the state to a position of neutrality
in the relationship between individuals and religion. Sch.
Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 226
(1963). The Supreme Court has observed that, with respect
to religious freedom, the principle of government neutral-
ity, the government “protect[s] all, it prefers not, and it
disparages none.” Id. at 215 (quoting Minor v. Bd. of Educ.
of Cincinnati (Super. Ct. of Cincinnati, February 1870)
(Taft, J., dissenting) (unpublished case), reproduced in The
Bible in the Common Schools (Robert Clark & Co. ed.,
1870)). The Free Exercise Clause advances the command
of government neutrality by securing “religious liberty
in the individual by prohibiting any invasions thereof by
civil authority” and protecting against the coercive effect
of legislation “as it operates against him in the practice of
his religion.” Schempp, 374 U.S. at 223 (emphasis added);
see also Jimmy Swaggart Ministries v. Bd. of Equalization
of California, 493 U.S. 378, 384 (1990); Vision Church v.
Vill. of Long Grove, 468 F.3d 975, 996 (7th Cir. 2006). At
a minimum, the Free Exercise Clause protects against
laws that “discriminate[ ] against some or all religious
50 Nos. 05-4418, 05-4450 & 05-4451
beliefs.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 532 (1993).
State action that offends the Free Exercise Clause must
satisfy strict scrutiny, i.e., be narrowly tailored to serve a
compelling state interest. See Vision Church, 468 F.3d at
996; Civil Liberties for Urban Believers v. City of Chicago,
342 F.3d 752, 763 (7th Cir. 2003). Additionally, when a
legislative classification offends a fundamental right,
such as the Free Exercise Clause, an equal protection
challenge to that classification is subject to strict scrutiny.
Vision Church, 468 F.3d at 1000. A law offends the Free
Exercise Clause and its requirement of government
neutrality with respect to religion in two circumstances.
First, a law that burdens the free exercise of religion and
that is not facially neutral and of general applicability
will be subject to strict scrutiny. City of Hialeah, 508 U.S.
at 531-32; Vision Church, 468 F.3d at 996. Second, a
facially-neutral law that “imposes a substantial burden
on religion” offends the Free Exercise Clause and likewise
is subject to strict scrutiny. Vision Church, 468 F.3d at
996. The OMA’s amendment to the Illinois RFRA violates
the Free Exercise Clause under either of these approaches.
A law is not neutral on its face if its object or purpose “is
the suppression of religion or religious conduct.” City of
Hialeah, 508 U.S. at 533 (emphasis added). To determine
whether a law is neutral and of general applicability, we
first look to the text of the statute to determine whether
it discriminates on its face. Id. “A law lacks facial neutral-
ity if it refers to a religious practice without a secular
meaning discernable from language or context.” Id.Applying these standards, it is clear that the OMA’s
amendment to the Illinois RFRA is not facially neutral.
OMA added a new section 30 to the Illinois RFRA which
reads:
Nos. 05-4418, 05-4450 & 05-4451 51
Nothing in this Act limits the authority of the City of
Chicago to exercise its powers under the O’Hare
Modernization Act for the purposes of relocation of
cemeteries or the graves located therein.
775 ILCS 35/30. The panel opinion determines that,
because cemeteries and the burial, or relocation, of the
dead are not inherently religious, the amendment to the
Illinois RFRA is textually neutral. However, this analysis
fails to appreciate that, when read in context, the new
section 30 of the Illinois RFRA affects only religious
cemeteries. The phrase “this Act” in the new section 30
refers to the Illinois RFRA. See id. 35/1. The Illinois RFRA,
in turn, protects against government actions that sub-
stantially burden an individual’s free exercise of religion,
id. 35/15, which the Illinois RFRA defines as “an act or
refusal to act that is substantially motivated by religious
belief, id. 35/5. Thus, the only cemeteries affected by
OMA’s amendment to the Illinois RFRA are those religious
cemeteries that the City may seek to relocate. Moreover,
because the Illinois RFRA’s protections apply only
where the government action substantially burdens an
individual’s free exercise of religion, the amendment
affects only those religious cemeteries whose relocation
would substantially burden an individual’s free exercise
of religion.
The effect of the amendment is to remove from the
protections afforded to every other individual’s religious
observance, those individuals whose religious practices
would be substantially burdened by the relocation of
cemeteries in connection with the expansion of O’Hare.
The OMA amendment to the Illinois RFRA offends the
Free Exercise Clause by penalizing those individuals
whose religious observance is affected by the expansion
project by denying them “an equal share of the rights,
benefits, and privileges enjoyed by other citizens.” Lyng
v. Northwest Indian Cemetery Protective Ass’n, 485 U.S.
52 Nos. 05-4418, 05-4450 & 05-4451
439, 449 (1988). Illinois RFRA demands that the govern-
ment show a compelling interest and the lack of viable
alternative before it burdens anyone’s religious beliefs.
By the amendment, Illinois has watered down, signifi-
cantly, the protection afforded these plaintiffs. It does
not matter that Illinois has not chosen to single out the
United Church of Christ (the faith with which St. John’s
is affiliated) for unfavorable treatment across the state.
The Free Exercise Clause protects the individual’s right
to the free exercise of religion. See Jimmy Swaggart
Ministries, 493 U.S. at 384; Schempp, 374 U.S. at 223.
Thus, the OMA’s amendment to the Illinois RFRA both
burdens the free exercise of religion and lacks facial
neutrality, and, therefore, strict scrutiny must be applied
to the amendment.
However, even if the amendment to the OMA was
facially neutral, it would still be subject to strict scrutiny
because it imposes a substantial burden on religion. As the
Supreme Court said in Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993):
Facial neutrality is not determinative. The Free
Exercise Clause, like the Establishment Clause,
extends beyond facial discrimination. The Clause
“forbids subtle departures from neutrality,” Gillette v.
United States, 401 U.S. 437, 452 (1971) and “covert
suppression of particular religious beliefs,” Bowen v.
Roy, supra, at 702 (opinion of Burger, C.J.). Official
action that targets religious conduct for distinctive
treatment cannot be shielded by mere compliance
with the requirement of facial neutrality.
See also Vision Church, 468 F.3d at 996. We have held that
a burden on the free exercise of religion rises to the level
of a constitutional injury when the law places significant
pressure on the adherent to forego its religious precepts.
Id. at 999. The effect of relocating St. Johannes on St.
Nos. 05-4418, 05-4450 & 05-4451 53
John’s religious observance is neither hypothetical nor
speculative, but, rather, inescapable. The relocation of St.
Johannes would force St. John’s to forego its religious
precepts regarding the burial of its members. This burden
goes further than placing pressure on St. John’s to forego
its religious precepts. By relocating St. Johannes Ceme-
tery, St. John’s would be “coerced by the Government’s
action into violating [its] religious beliefs.” Lyng, 485 U.S.
at 449. By forcing St. John’s to “perform acts undeniably at
odds with fundamental tenets of [its] religious beliefs,” this
coercion presents the precise “danger to the free exercise
of religion that the First Amendment was designed to
prevent.” Wisconsin v. Yoder, 406 U.S. 205, 218 (1972).
Because the amendments to the Illinois RFRA offend
the Free Exercise Clause, the law must survive strict
scrutiny under both the First Amendment and the Equal
Protection Clause of the Fourteenth Amendment. Under
strict scrutiny review, the Government bears the burden of
proving both that the act in question advances a compel-
ling state interest and that the means chosen to pursue
that interest are narrowly tailored to that end. See John-
son v. California, 543 U.S. 499, 505 (2005); see also Entm’t
Software Ass’n v. Blagojevich, 469 F.3d 641, 646 (7th Cir.
2006); Vision Church, 468 F.3d at 996. The majority
opinion accepts the City’s assertions that the current
modernization plan is narrowly tailored. Perhaps the
City is correct. However, accepting the City’s assertions
at this stage in the litigation is inconsistent with our
obligation when reviewing a motion to dismiss to accept
all well pleaded facts as true and draw all reasonable
inferences from those facts in favor of the plaintiffs. Patel
v. City of Chicago, 383 F.3d 569, 572 (7th Cir. 2004). At
this stage in the litigation, there has been none of the
factual development necessary to determine whether the
means chosen by the City are narrowly tailored to meet the
compelling interest asserted here.
54 Nos. 05-4418, 05-4450 & 05-4451
Therefore, I would remand the case for further proceed-
ings to allow factual development. For these reasons,
I respectfully dissent from the portion of the panel’s
opinion that rejects St. John’s claim. I am pleased to join
the opinion in all other respects.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-13-07