Roman Catholic Bishop v. City of Springfield

United States Court of Appeals
For the First Circuit
No. 11-1117
ROMAN CATHOLIC BISHOP OF SPRINGFIELD,
a Corporation Sole,
Plaintiff, Appellant,
v.
CITY OF SPRINGFIELD;
DOMENIC J. SARNO, in his official capacity as Mayor of the City
of Springfield; SPRINGFIELD CITY COUNCIL; PATRICK J. MARKEY, in
his official capacity as City Councilor for the City of
Springfield; WILLIAM T. FOLEY, in his official capacity as City
Councilor for the City of Springfield; ROSEMARIE MAZZA-MORIARTY,
in her official capacity as City Councilor for the City of
Springfield; TIMOTHY J. ROOKE, in his official capacity as City
Councilor for the City of Springfield; BRUCE W. STEBBINS, in his
official capacity as City Councilor for the City of Springfield;
JOSE TOSADO, in his official capacity as City Councilor for the
City of Springfield; KATERI WALSH, in her official capacity as
City Councilor for the City of Springfield; BUD L. WILLIAMS, in
his official capacity as City Councilor for the City of
Springfield; JAMES J. FERRERA, III, in his official capacity as
City Councilor for the City of Springfield,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
John J. Egan, with whom Stephen E. Spelman and Egan, Flanagan
and Cohen, P.C. were on brief, for appellant.
Anthony I. Wilson, Associate City Solicitor, City of
Springfield, with whom Edward M. Pikula, City Solicitor, City of
Springfield, was on brief, for appellee.
July 22, 2013
LYNCH, Chief Judge. The Roman Catholic Bishop of
Springfield (RCB) challenges the district court's grant of summary
judgment to the City of Springfield (City) and dismissal of RCB's
constitutional and statutory claims against enforcement of a City
ordinance that created a single-parcel historic district
encompassing a church owned by RCB. Under the ordinance, RCB
cannot make any changes that affect the exterior of the church,
including demolition, without the permission of the Springfield
Historical Commission (SHC).
RCB claims that the ordinance gives the SHC veto power
over its religious decisionmaking, and in doing so violates its
First Amendment rights to free speech and free exercise of
religion; its rights under the federal Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq.;
and its rights under the Massachusetts state constitution. The
district court, on cross-motions for summary judgment, found that
some of RCB's claims were not ripe for review and that its
remaining claims failed as a matter of law. See Roman Catholic
Bishop of Springfield v. City of Springfield (RCB), 760 F. Supp. 2d
172 (D. Mass. 2011).
We conclude that only a limited claim is now ripe:
namely, RCB's claim based on the mere enactment of the ordinance.
But those of RCB's claims which depend on the potential
consequences of compliance with the ordinance are not ripe for
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adjudication, because RCB has not yet devised its plans for the
church nor submitted any application to the SHC. We reach this
conclusion for reasons different from the district court's. We
reject the remaining ripe claim. We affirm in part and vacate in
part the district court's grant of summary judgment and dismiss
RCB's unripe claims without prejudice.
I.
The facts in this case are undisputed.
A. Background
RCB is a corporation sole,1 incorporated under the laws
of Massachusetts. It is the legal entity through which the Roman
Catholic Diocese of Springfield ("Diocese") operates. The Diocese
covers four counties in western Massachusetts, including the county
that contains the City of Springfield.
RCB owns a church in Springfield known as Our Lady of
Hope ("Church"), which was built in 1925. It was designed by the
Springfield architect John Donohue in the Italian Renaissance
style. In 2001, the Church was deemed eligible for inclusion on
the National Register of Historic Places, but it was never so
placed. And until the events at issue in this case, it was never
1
A corporation sole consists of only one person at a time,
but the corporation may pass from one person to the next without
any interruption in its legal status. Roman Catholic Bishop of
Springfield v. City of Springfield (RCB), 760 F. Supp. 2d 172, 177
n.1 (D. Mass. 2011).
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included in nor proposed to be included in a local historic
district.
In 2004, RCB began a process known as "pastoral
planning," which was designed to determine how to allocate the
Diocese's financial and human resources in the face of decreasing
numbers of clergy and parishioners. The process was overseen by a
committee of clergy and religious and lay members of the Diocese.
Part of the committee's duty was to seek and incorporate the views
of members of the Diocese outside the committee itself. In August
2009, the committee issued its final report. The report
recommended closing the Church and combining Our Lady of Hope
Parish with another local parish. The Bishop of the Diocese
accepted this recommendation, and services ceased at the Church as
of January 1, 2010.
According to Roman Catholic canon law, when a church goes
out of service for religious worship, the Bishop comes under an
obligation to protect the religious ornamentation in and on the
building so that it is not put to "sordid" use.2 RCB identifies
2
Under canon law, a sordid use is one that is "detrimental to
the good of souls," including any use that involves "[t]he
denunciation of the Catholic Church and the Catholic Faith, the
desecration of Catholic objects of devotion and worship or even any
disrespectful or casual treatment of such objects, and/or the
proselytizing of Catholics." See Roman Catholic Archbishop of
Boston, A Corporation Sole's Policy on the Sale of Church
Buildings, available at http://www.bostoncatholic.org/uploaded
Files/BostonCatholicorg/Parishes_And_People/PolicyonSaleofChurch
Buildings0711.pdf.
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eight types of religious ornamentation on the exterior of the
Church, including stone castings, inscriptions, and stained glass
windows depicting religious scenes and symbols. Some of these
features, such as friezes, are built into the structure and are not
easily removable. All of these features are designed to
communicate religious messages to those who observe them.
RCB has established procedures for dealing with religious
symbols when a church has been closed for worship. In order of
preference, it will try to: (1) relocate the items to other
locations within the Diocese; (2) relocate the items to other
dioceses; or (3) place the items in storage. If none of these
options are possible, the objects can be destroyed.
When a closed church is sold or leased to a third party,
RCB must first convert the church from religious use to "profane"
(non-sacred) use in a process known as deconsecration. As part of
the deconsecration process, RCB will include a clause in the sale
or lease agreement obligating the purchaser or lessee either to
refrain from putting the property to "sordid" use or to allow RCB
to remove all religious symbols. If RCB elects to remove the
religious symbols, it follows the steps outlined above. However,
if the symbols are impossible or impracticable to remove (for
instance, a frieze), RCB will cover them with concrete or other
materials. Symbols that cannot be removed may also be destroyed --
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along with the building itself, if necessary -- if RCB determines
that destruction is necessary to avoid desecration.
B. The Massachusetts Historic Districts Act (MHDA)
The MHDA delegates to cities and towns in Massachusetts
the authority to designate historic districts within their
boundaries. The process of creating historic districts involves
first creating a historical commission or a historic district study
committee, see Mass. Gen. Laws ch. 40C, §§ 3-4; Springfield did the
former when it constituted the SHC in the early 1970s. The SHC
consists of seven members and four alternates, appointed by the
mayor and subject to confirmation by the City Council.
Under the MHDA, a municipality's historical commission
must investigate and report on proposed historic districts before
such districts can be approved by the municipality. Id. § 3. A
proposed district "may consist of one or more parcels or lots of
land, or one or more buildings or structures on one or more parcels
or lots of land." Id. In assessing potential historic districts,
a commission is to consider "the historic and architectural value
and significance of the site, building or structure, the general
design, arrangement, texture, material and color of the features
involved, and the relation of such features to similar features of
buildings and structures in the surrounding area." Id. § 7.
When the commission completes a preliminary report on a
proposed district, it transmits the report to the municipality's
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planning board and to the state historical commission. Id. § 3.
Not less than sixty days later, the municipal commission must hold
a public hearing on the report. Id. If the commission approves
the proposal following the public hearing, it transmits a final
report and proposed ordinance to the city council (or equivalent
body). Id. A two-thirds vote of the city council is required to
approve the district. Id.
Once a historic district is approved, "no building or
structure within [the] district shall be constructed or altered in
any way that affects exterior architectural features" unless the
historical commission first issues a certificate of
appropriateness, a certificate of non-applicability, or a
certificate of hardship. Id. § 6. Violation of this provision is
punishable by a fine of between ten dollars and five hundred
dollars per day of violation.3 Id. § 13. The statute defines
"altered" as "includ[ing] the words 'rebuilt', 'reconstructed',
'restored', 'removed' and 'demolished,'" and the word "constructed"
as "includ[ing] the words 'built', 'erected', 'installed',
'enlarged', and 'moved.'" Id. § 5.
In order to obtain a certificate of appropriateness,
hardship, or non-applicability, a property owner must file with the
3
We see no support in the statute for RCB's contention that
this provision creates a criminal penalty. Rather, the statute
specifies that enforcement of the MHDA is committed to a court
sitting in equity. Mass. Gen. Laws ch. 40C, § 13.
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commission an application along with "such plans, elevations,
specifications, material and other information . . . as may be
reasonably deemed necessary by the commission to enable it to make
a determination on the application."4 Id. § 6. The SHC makes an
application for these certificates, along with a list of its other
requirements, available on the City's website. The SHC holds
public hearings on submitted applications, unless all parties
entitled to notice waive the hearing.
C. The Ordinance
The news that the pastoral planning process would result
in the closing of the Church provoked significant adverse reaction
4
The certificate most likely applicable to this case would be
a certificate of hardship, the issuance of which depends on a
commission determining whether, "owing to conditions especially
affecting the building or structure involved, but not affecting the
historic district generally, failure to approve an application will
involve a substantial hardship, financial or otherwise, to the
applicant and whether such application may be approved without
substantial detriment to the public welfare and without substantial
derogation from the intent and purposes of this chapter." Mass.
Gen. Laws ch. 40C, § 10(c). If the commission makes such a
finding, it "shall" issue a certificate of hardship. Id. In
contrast, a commission "shall" issue a certificate of
appropriateness when it determines "that [the proposed]
construction or alteration . . . will be appropriate for or
compatible with the preservation or protection of the historic
district," id. § 10(a), or a certificate of nonapplicability when
it determines that the proposed alteration "does not involve any
exterior architectural feature, or involves an exterior
architectural feature which is not then subject to review by the
commission," id. § 10(b).
For ease, the remainder of this opinion will refer to a
potential certificate of hardship, without intending to exclude the
possibility that RCB might have applied for one of the two other
types of certificates.
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among many Our Lady of Hope parishioners. The parish was one of
the two largest parishes slated for closing in Springfield, and
parishioners were unhappy with the prospect of being merged into
another parish. In the fall of 2009, a number of Our Lady of Hope
parishioners and other local citizens began lobbying the City to
designate the Church as a historic district. A member of the state
House of Representatives from Springfield, Sean Curran, wrote to
the SHC about the matter, stating that "the closing of the church
is a tremendous blow to the [Our Lady of Hope] parish, but just as
alarming is the loss of the church as an architectural jewel." He
urged the SHC to begin the historic district process "swiftly and
without bureaucratic delay" in order to "save this beautiful
building from the wrecking ball." Curran appeared before the SHC
at a public meeting on September 3, 2009, where he made the same
request. At that time, the SHC voted unanimously to undertake a
preliminary report on creating a new historic district that would
include the Church.
The SHC produced its preliminary report on September 17,
2009 -- just two weeks after the initial meeting -- outlining a
proposal for the Our Lady of Hope Historic District ("District").
The proposal explained the historical and architectural reasons for
creating the District. Significantly, it also stated another
reason animating the proposal: the SHC noted that the Church was
"slated to be closed"; that another Roman Catholic church in
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Springfield had recently been closed, sold, and demolished; and
that the District "[wa]s being proposed to avoid the same possible
fate for Our Lady of Hope."
The preliminary report proposed a single-parcel district
covering only the Church and no other property. The report
justified the boundaries by describing the non-historical nature of
the surrounding properties. The proposal would create the first
and, at the time, only5 single-parcel historic district in
Springfield. Other multi-parcel historic districts in the City at
the time contained various houses of worship. The District
ultimately enacted by the City Council retained these proposed
boundaries.
On October 19, 2009, the SHC received a letter from the
Massachusetts Historical Commission in response to its preliminary
report, giving an "advisory recommendation" in favor of the
District. Acting within the statutory sixty-day window, the SHC
held a public meeting to discuss the proposal on December 14, 2009.
RCB's counsel appeared at this meeting to object to the creation of
the District. He argued, inter alia, that creating the District
would infringe RCB's constitutionally protected rights to free
speech and free exercise of religion and that it would violate
5
On May 4, 2010, just over four months after the City passed
the ordinance at issue in this case, it passed another ordinance
creating the City's second single-parcel historic district, which
also covered a church owned by RCB that was slated to be closed.
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RLUIPA. He also argued that the creation of the District was
designed to intrude on the pastoral planning process at the behest
of Our Lady of Hope parishioners who were angry at having their
parish closed. Finally, RCB's counsel asked that the SHC at a
minimum seek a legal opinion as to the constitutional implications
of approving the District. Despite these objections, and without
seeking legal advice, at the close of the meeting the SHC voted
unanimously to send a final report to the City Council.
The City Council initially referred the proposal to a
Council committee for study. On December 21, 2009, RCB wrote to
each Council member, reiterating its arguments against the adoption
of the District and asking the Council to seek a legal opinion on
the constitutionality of the District. RCB pointed out that if the
Church were designated as a historic district, it would inhibit
future sale of the property, the proceeds of which would benefit
the merged parish. Historic district designation would also impose
on the Diocese, and specifically on the merged parish, the
continuing costs of maintenance, insurance, and security for the
Church.
On December 29, 2009, the City Council held a public
meeting on the proposal, even though it had not received a response
from its study committee. RCB's counsel attended the meeting and
again objected to the creation of the District. During the
meeting, one councilor called in the city solicitor and asked
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whether the City's law department had reviewed the proposal. The
solicitor said it had not and offered to discuss the proposal with
the Council in executive session, but the Council declined. Also
during this meeting, another councilor asked RCB's counsel why
parishioners had not had an opportunity to participate in the
decision of whether to close the Church. When RCB's counsel
answered that they had, the councilor exclaimed, "That isn't true!"
In fact, members of the Diocese, which included Our Lady of Hope
parishioners, had been invited to participate in the pastoral
planning process.
At the close of the meeting, the Council passed the
ordinance creating the District ("Ordinance"). RCB sent a written
protest to the City's mayor, but the mayor signed the Ordinance
into law the next day. The Ordinance went into effect on January
20, 2010, approximately three weeks after the last services were
held at the Church.
Since the enactment of the Ordinance, RCB has taken no
action with regard to the deconsecration, sale, or leasing of the
Church, and it has not made any submissions to the SHC seeking
permission to alter the Church's exterior. As we explain, as a
result of RCB's failure to take further actions with regard to the
Church site, certain of its claims lack the requisite concreteness
to warrant resolution of whether hypothetical outcomes transgress
RLUIPA or either the federal or state constitutions.
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II.
RCB filed its complaint against the City in Massachusetts
Superior Court on January 21, 2010, the day after the Ordinance
went into effect. It asserted federal constitutional claims under
42 U.S.C. § 1983, federal statutory claims under RLUIPA, and state
law claims under the Massachusetts Constitution and the
Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I.6
RCB sought, inter alia, temporary and permanent injunctions
restraining the City from enforcing the Ordinance, a declaration
that the Ordinance was void, and attorneys' fees and costs. The
City removed the case to the U.S. District Court for the District
of Massachusetts on February 5, 2010. RCB moved for summary
judgment on July 9, 2010, and the City cross-moved for summary
judgment on August 13, 2010.
On January 2, 2011, the district court issued its
Memorandum and Order granting summary judgment to the City. RCB,
760 F. Supp. 2d at 176. The court first found that certain of
RCB's claims were not ripe for adjudication. To make this
determination, the court recharacterized the complaint by dividing
RCB's allegations "into two temporal facets: (1) violations that
6
The complaint also named as defendants the mayor and the
members of the City Council in their official capacities. The
district court dismissed the claims against the individual
defendants on the basis that they were actually claims against the
City. RCB, 760 F. Supp. 2d at 184. RCB does not challenge this
decision on appeal.
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arise from the mere enactment of the single-parcel historic
district, . . . and (2) violations that arise from [RCB]'s
resulting inability to deconsecrate church property." Id. at 181.
The court concluded that claims falling under the first heading
were ripe for review because the Ordinance forced RCB to submit to
a secular authority and subjected it to the "delay, uncertainty and
expense" of the approval process. Id. at 181-82. On the other
hand, it found that claims falling under the second heading were
not ripe because RCB had not actually applied to the SHC to make
any changes to the Church, so it was unknown whether RCB would be
allowed to make the changes it desired. Id. at 182-84.
As to the merits of the remaining federal claims, the
court found, inter alia, that the burden the Ordinance imposed on
RCB was not "substantial" under RLUIPA, id. at 185-88, and that the
Ordinance did not violate the antidiscrimination provisions of
RLUIPA, id. at 188-91. It then erroneously focused on the MHDA
rather than the Ordinance,7 and it found that the MHDA was a
7
The district court interpreted RCB's claims as a challenge
to the MHDA as applied through the Ordinance, rather than as a
challenge to the Ordinance itself. RCB, 760 F. Supp. 2d at 181
n.6, 190, 192-93. This was the wrong focus. The MHDA delegates to
municipalities the authority to create historic districts using
certain types of procedures and general criteria. See Mass. Gen.
Laws ch. 40C, §§ 3-4, 7. When a municipality passes an ordinance
creating a historic district, it is exercising its considerable
discretion under this delegated authority; it is not "codif[ying]
the City's determination that the [MHDA] applies to" the subject
properties. RCB, 760 F. Supp. 2d at 181 n.6. In this opinion we
analyze RCB's claims as challenges to the Ordinance itself, not to
the MHDA.
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neutral law of general applicability; therefore, under Employment
Division, Department of Human Resources of Oregon v. Smith, 494
U.S. 872 (1990), the statute's incidental First Amendment burden on
RCB was constitutionally acceptable, see RCB, 760 F. Supp. 2d at
191-93. The court also found that RCB's claim under the
Massachusetts Constitution failed for the same reasons as did its
claim under the "substantial burden" provision of RLUIPA.8 Id. at
195.
RCB timely appealed on January 28, 2011.9
III.
We review a grant of summary judgment de novo, drawing
all reasonable inferences in favor of the non-moving party.
Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011). On an appeal
from cross-motions for summary judgment, the standard does not
change; we view each motion separately and draw all reasonable
inferences in favor of the respective non-moving party. See
OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of Can.,
684 F.3d 237, 241 (1st Cir. 2012). Neither party contends that
8
The district court also briefly discussed, and rejected,
RCB's arguments under the federal Establishment Clause, the
Fourteenth Amendment Due Process Clause, the Fourteenth Amendment
Equal Protection Clause, and the Massachusetts Civil Rights Act.
See RCB, 760 F. Supp. 2d at 193-95. RCB does not press any of
these arguments on appeal, and we do not address them.
9
Appellate briefing was stayed for over a year and a half as
the parties attempted, unsuccessfully, to resolve their disputes in
mediation.
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there are any genuine issues of material fact that would justify
remand for a trial.
We must begin with the City's argument that RCB's claims
are not ripe for review, since the ripeness inquiry involves, as
one component, the question of whether this court has jurisdiction
to hear the case. See Sindicato Puertorriqueño de Trabajadores,
SEIU Local 1996 v. Fortuño, 699 F.3d 1, 8 (1st Cir. 2012) (per
curiam).
"[T]he doctrine of ripeness has roots in both the Article
III case or controversy requirement and in prudential
considerations." Mangual v. Rotger–Sabat, 317 F.3d 45, 59 (1st
Cir. 2003). The "basic rationale" of the ripeness inquiry is "to
prevent the courts, through avoidance of premature adjudication,
from entangling themselves in abstract disagreements." Abbott
Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99 (1977).
There are two factors to consider in determining
ripeness: "the fitness of the issues for judicial decision and the
hardship to the parties of withholding court consideration." Id.
at 149. We generally require both prongs to be satisfied in order
for a claim to be considered ripe. Ernst & Young v. Depositors
Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir. 1995).
The fitness prong of the ripeness test has both
jurisdictional and prudential components. The former, "grounded in
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the prohibition against advisory opinions, is one of timing."
Sindicato Puertorriqueño, 699 F.3d at 8 (quoting Mangual, 317 F.3d
at 59) (internal quotation mark omitted). It concerns whether
there is a sufficiently live case or controversy, at the time of
the proceedings, to create jurisdiction in the federal courts. See
id. The prudential component asks "whether resolution of the
dispute should be postponed in the name of 'judicial restraint from
unnecessary decision of constitutional issues'; if elements of the
case are uncertain, delay may see the dissipation of the legal
dispute without need for decision." Mangual, 317 F.3d at 59(citation omitted) (quoting Reg'l Rail Reorg. Act Cases, 419 U.S.
102, 138 (1974)); see also Ernst & Young, 45 F.3d at 535 ("This
[fitness] branch of the test typically involves subsidiary queries
concerning finality, definiteness, and the extent to which
resolution of the challenge depends upon facts that may not yet be
sufficiently developed.").
The hardship prong, by contrast, is "wholly prudential."
Mangual, 317 F.3d at 59. It looks at "whether the challenged
action creates a direct and immediate dilemma for the parties."
Sindicato Puertorriqueño, 699 F.3d at 9 (quoting Verizon New Eng.,
Inc. v. Int'l Bhd. of Elec. Workers, Local No. 2322, 651 F.3d 176,
188 (1st Cir. 2011)) (internal quotation marks omitted).
"Generally, a 'mere possibility of future injury, unless it is the
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cause of some present detriment, does not constitute hardship.'"
Id. (quoting Simmonds v. INS, 326 F.3d 351, 360 (2d Cir. 2003)).10
The City argues that, because RCB has never submitted an
application for a certificate of hardship, RCB cannot present any
ripe claims based on the fact that the SHC might prevent RCB from
implementing its religious protocols as to symbols on the exterior
of the Church. RCB responds that the issues in this case are
purely legal rather than factual, so no further developments --
including any developments that would result from submitting an
10
Significantly, this court has recognized in the free speech
context that ripeness in First Amendment cases is subject to
particular rules sensitive to the nature of the rights at issue.
See Sindicato Puertorriqueño de Trabajadores, SEIU Local 1996 v.
Fortuño, 699 F.3d 1, 9 (1st Cir. 2012) (noting "the potential for
'irretrievable loss' often involved in cases where First Amendment
rights are at stake" (quoting Sullivan v. City of Augusta, 511 F.3d
16, 31 (1st Cir. 2007))); see also 13B Wright & Miller, Federal
Practice & Procedure § 3532.1.1 ("First Amendment challenges to
land use regulation are likely to be governed by the general -- and
somewhat relaxed -- ripeness tests that apply to First Amendment
claims in other contexts."). Some courts have declined to apply
this more relaxed standard to cases involving First Amendment (and
RLUIPA) claims arising from local land use disputes. See, e.g.,
Grace Cmty. Church v. Lenox Twp., 544 F.3d 609, 615 (6th Cir.
2008); Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 347-50
(2d Cir. 2005). These courts have reached that conclusion by
relying on Williamson County Regional Planning Commission v.
Hamilton Bank, 473 U.S. 172 (1985). As we explain in the text, we
do not believe that the situation here requires us to reach the
question of whether Williamson County applies in this context.
Thus, we do not resolve today the question of whether relaxed First
Amendment ripeness standards apply generally to claims predicated
on alleged Free Exercise violations, nor do we resolve the question
of whether (and to what extent) Williamson County may apply to such
claims. Instead we conclude that, under general principles of
prudential ripeness, certain of RCB's claims are not ripe for
review.
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application to the SHC -- would alter the outcome. RCB also argues
that it faces the hardship of having to seek the SHC's permission
for every future change to the Church's exterior and that any
required application for a certificate of hardship would be futile
due to the City's demonstrated hostility to the Diocese's plans for
the Church.
As to the first component of the fitness question, we
conclude that one aspect of RCB's complaint satisfies Article III's
case or controversy requirement: specifically, RCB's claim that the
enactment of the Ordinance itself burdens RCB's religious practices
and undermines its religious freedom. There is no doubt that the
City intends to enforce the Ordinance against RCB and that RCB must
submit several categories of its decisionmaking, otherwise governed
by religious doctrine, to the SHC. RCB has already protested to
the City regarding the practical effects of these facts on its
ownership and potential disposition of Church property, including
financial burdens. Under these circumstances, there is a live
controversy between the parties.
But the prudential component of the fitness prong, as
well as the entirely prudential hardship prong, present much closer
questions as to the aspects of RCB's claim concerning the potential
future results of the application process. We do not agree with
RCB that there are no further factual developments that could be
relevant to the outcome of this case. Indeed, both the district
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court and the City have emphasized a key missing fact: RCB did not
put in the record any specific plan for the sale and/or
deconsecration of the Church. Nor does the record indicate that
RCB made any such proposal to the City (via the Council or the SHC)
before filing the instant lawsuit. Nothing has yet been presented
to the SHC. Instead, RCB filed this lawsuit the very next day
after the Ordinance went into effect. As such, the City has had no
opportunity to demonstrate whether or not it will accommodate some,
all, or none of RCB's requests for changes to the exterior of the
Church. Indeed, RCB has not settled upon any plan for future use
of the property that would necessarily entail changes to the
Church's exterior. Without knowing what RCB can or cannot do with
the Church under the Ordinance, we cannot know to what extent, if
any, RCB will suffer from a burden on its religious practice.
This uncertainty likewise casts doubt on RCB's argument
that any application to the SHC would be futile. The City has made
it clear, both in the proceedings leading to passage of the
Ordinance and throughout this lawsuit, that its purpose in passing
the Ordinance was to prevent demolition of the Church. If RCB had
proffered evidence that it in fact planned to demolish the Church,
in accordance with the requirements of its deconsecration
procedures, then RCB may have been able to make the futility
argument. See Gilbert v. City of Cambridge, 932 F.2d 51, 61 (1st
Cir. 1991) (stating, in zoning context, that futility may be
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sufficient to show ripeness where the plaintiff faces "a sort of
inevitability . . . : the prospect of refusal [of an application]
must be certain (or nearly so)," not merely possible or even
probable). But the City has not represented that it would deny all
applications to alter the exterior of the Church in any way, and
RCB has not offered evidence to suggest that the City would deny
all such applications. Given this uncertainty, we cannot conclude
that RCB's claims premised on its feared inability to deconsecrate
the Church according to its religious principles, as a result of
future SHC decisions, are now fit for adjudication.11
In reaching this conclusion, we rely on traditional
notions of ripeness. We do not rely, as did the district court, on
specialized Takings Clause ripeness doctrine. In regulatory
takings cases, a property owner must follow the procedures for
requesting the applicable zoning relief, and have its request
denied, before bringing a claim in court. Williamson Cnty. Reg'l
Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 190-91 (1985). But
the Supreme Court has stated that this requirement "is compelled by
the very nature of the inquiry required by the Just Compensation
11
Because we conclude that RCB's claims based on its possible
prospective inability to deconsecrate the Church fail the
prudential component of the ripeness test, we need not address
whether those claims would satisfy the constitutional component.
See Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445
(1988) ("A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitutional
questions in advance of the necessity of deciding them.").
-22-
Clause." Id. at 190; see 13B Wright & Miller, Federal Practice &
Procedure § 3532.1.1 (describing takings cases as comprising "[a]
special category of ripeness doctrine"). Specifically, regulatory
takings inquiries focus on the economic impact of a regulation on
the subject property, and that impact is only apparent once there
is a final zoning decision. See Williamson Cnty., 473 U.S. at 191.
The ripeness inquiry in takings cases also involves a question of
the adequacy of alternative procedures to obtain just compensation.
See Horne v. Dep't of Agric., 133 S. Ct. 2053, 2062 (2013).
Here, by contrast, the Ordinance's effect on RCB's free
exercise rights may well become clear at a different point than
that contemplated by takings law. While constitutional challenges
to land use regulations may implicate Williamson County's ripeness
doctrine in some cases, we find no such necessary implication here.
It is significant, in this respect, that the Ordinance is designed
to apply only to the Church, unlike the neutral and generally
applicable zoning or environmental ordinances that are almost
always at issue when a regulatory takings claim is alleged.12
12
Like us, other circuits have found that the Williamson
County analysis is sometimes inapposite for non-Takings
constitutional challenges to land use decisions. See, e.g.,
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d
83, 89-91 (2d Cir. 2002) (First Amendment retaliation claim);
Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d
890, 894 (6th Cir. 1991) (procedural due process claim). But see
Grace Cmty. Church, 544 F.3d at 617-18 (procedural due process
claims are exception to the general application of Williamson
County); Murphy, 402 F.3d at 350-51 (applying Williamson County to
RLUIPA and First Amendment free exercise claims).
-23-
To the extent that RCB has argued that the mere existence
of the Ordinance creates a ripe controversy, we find that its
claims are ripe. With regard to this attack on the enactment of
the Ordinance, RCB has credibly alleged that the requirement of
submitting to the SHC's authority presently imposes delay,
uncertainty, and expense, which is sufficient to show present
injury. See Opulent Life Church v. City of Holly Springs, 697 F.3d
279, 288 (5th Cir. 2012) (considering inability to use property as
intended as a factor in the ripeness inquiry). Of course, the
extent and significance of this alleged injury is a merits
question. For the purposes of the ripeness inquiry, it is enough
to note that it is self-evidently plausible that they exist.
RCB also argues that the requirement of subjecting its
religious decisions regarding deconsecration to secular
administrators at all creates a present burden on its free exercise
of religion. Cf. Metro. Wash. Airports Auth. v. Citizens for
Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265 n.13 (1991)
(concluding that constitutional separation-of-powers challenge to
"veto power" of administrative board was ripe "even if the veto
power has not been exercised to respondents' detriment," because
"[t]he threat of the veto hangs over the [decisionmakers subject to
the veto power] like the sword over Damocles, creating a
'here-and-now subservience' . . . sufficient to raise
constitutional questions"). Finally, RCB points out that if it
-24-
were to make any changes to the exterior of the Church without the
SHC's permission, it would be subject to a statutory fine for each
day the changes persisted. See Mass. Gen. Laws ch. 40C, § 13.
Under these circumstances, we conclude that RCB's
challenges to the enactment of the Ordinance satisfy the prudential
fitness and hardship requirements of the ripeness test. Because
these challenges rest solely on the existence of the Ordinance, no
further factual development is necessary, and the Ordinance's
existence does confront RCB with a "direct and immediate dilemma."
Sindicato Puertorriqueño, 699 F.3d at 9 (quoting Verizon New Eng.,
651 F.3d at 188).
IV.
We turn to the merits of the ripe claim, beginning with
RCB's RLUIPA arguments.
A. RLUIPA "Substantial Burden"
RCB first argues that the Ordinance violates RLUIPA's
"substantial burden" provision, 42 U.S.C. § 2000cc(a), which
states:
No government shall impose or implement a land
use regulation in a manner that imposes a
substantial burden on the religious exercise
of a person, including a religious assembly or
institution, unless the government
demonstrates that imposition of the burden on
that person, assembly, or institution--
(A) is in furtherance of a compelling
governmental interest; and
(B) is the least restrictive means of
furthering that compelling governmental
interest.
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42 U.S.C. § 2000cc(a)(1). The parties do not dispute that the
Ordinance is a "land use regulation" within the meaning of the
statute. RCB, 760 F. Supp. 2d at 186.
RLUIPA defines "religious exercise" as "any exercise of
religion, whether or not compelled by, or central to, a system of
religious belief," 42 U.S.C. § 2000cc-5(7)(A), and it specifically
provides that "[t]he use, building, or conversion of real property
for the purpose of religious exercise shall be considered to be
religious exercise," id. § 2000cc-5(7)(B). The district court
correctly determined that deconsecration constitutes religious
exercise under the statute. RCB, 760 F. Supp. 2d at 186. The City
concedes that point for purposes of this appeal.
1. Standard of Review
The Supreme Court has not decided whether a district
court's ultimate conclusion as to the existence of a substantial
burden under RLUIPA is an issue of fact or law, nor the appellate
standard of review for this issue. Nor have the circuit courts
answered the question. See, e.g., World Outreach Conference Ctr.
v. City of Chicago, 591 F.3d 531, 539 (7th Cir. 2009). Of course,
if a district court had made subsidiary findings resolving disputed
issues of fact, those findings would be subject to clear error
review. But because this case was resolved on summary judgment,
that situation is not before us.
-26-
Rather, in the circumstances presented here -- where
there are no contested findings of fact, and where neither party
argues that there are material issues of fact for trial -- we view
the question of whether a "substantial burden" exists as a question
of law subject to de novo review. Among the reasons for our
approach are two considerations.
First, the corollary question of whether the government's
interest is compelling is generally treated as a question of law.
See, e.g., McRae v. Johnson, 261 F. App'x 554, 557 (4th Cir. 2008)
(per curiam); United States v. Hardman, 297 F.3d 1116, 1127 (10th
Cir. 2002) (interpreting analogous RFRA provision).
Second, in cases raising challenges under the Free Speech
Clause of the First Amendment, we have stated that an appellate
court "must conduct an 'independent review of the evidence on the
dispositive constitutional issue' . . . in order to safeguard
precious First Amendment liberties." Veilleux v. Nat'l Broad. Co.,
206 F.3d 92, 106 (1st Cir. 2000) (quoting Bose Corp. v. Consumers
Union of U.S., Inc., 466 U.S. 485, 508 (1984)); see AIDS Action
Comm. of Mass., Inc. v. Mass. Bay Transp. Auth., 42 F.3d 1, 7 (1st
Cir. 1994) ("[W]here the trial court is called upon to resolve a
number of mixed fact/law matters which implicate core First
Amendment concerns, our review, at least on these matters, is
plenary . . . ."). We see no reason why this should not be true of
-27-
RLUIPA claims, which are corollaries of First Amendment Free
Exercise claims.
2. Content of "Substantial Burden"
RCB bears the burden of demonstrating that the enactment
of the Ordinance imposes a "substantial burden" on its religious
exercise. RLUIPA does not define "substantial burden," although
the background of the statute's enactment provides some indication
of Congress's intended meaning.
The pertinent background begins with Employment Division
v. Smith, 494 U.S. 872, in which the Supreme Court held that the
Free Exercise Clause does not relieve individuals of the obligation
to comply with neutral laws of general applicability that burden
their religious exercise.13 See id. at 879. Congress responded to
Smith by passing the Religious Freedom Restoration Act of 1993
(RFRA), Pub. L. No. 103-141, 107 Stat. 1488. This statute
purported to overturn Smith and reinstate the free exercise
standard announced in Sherbert v. Verner, 374 U.S. 398 (1963), and
Wisconsin v. Yoder, 406 U.S. 205 (1972), which had required the
government to demonstrate a compelling interest in order to justify
a substantial burden on religious practices. See RFRA, Pub. L. No.
103-141, § 2(a)(4)-(5), (b)(1); Sherbert, 374 U.S. at 406-07. The
Court then struck down the RFRA as applied to the states and their
13
The City has not argued that a finding that the Ordinance
violates RLUIPA would run afoul of the Establishment Clause. See
Cutter v. Wilkinson, 544 U.S. 709, 713-14 (2005).
-28-
subdivisions, holding it outside the scope of Congress's
enforcement powers under Section 5 of the Fourteenth Amendment.
City of Boerne v. Flores, 521 U.S. 507, 519, 532 (1997).
Congress responded again by passing RLUIPA, this time
relying on the Spending and Commerce Clauses and targeting only two
areas of state regulation: land use and institutionalized persons.
See Cutter v. Wilkinson, 544 U.S. 709, 715 (2005). RLUIPA
established the same rule for these two limited areas that Congress
had attempted to apply more broadly in the RFRA: it prohibited
state and local governments from placing a substantial burden on
religious exercise unless the government could show that it had a
compelling interest and that it had used the least restrictive
means to achieve that interest. Compare RFRA, Pub. L. No. 103-141,
§ 3(b), with 42 U.S.C. § 2000cc(a)(1). The congressional record
accompanying the passage of RLUIPA in the Senate indicates that the
sponsors of the law intended the phrase "substantial burden" to be
"interpreted by reference to Supreme Court jurisprudence." 146
Cong. Rec. S7776 (daily ed. July 27, 2000) (joint statement of
Sens. Hatch and Kennedy).
The Supreme Court, however, has never provided a working
definition of "substantial burden" in this context. As the Second
Circuit has noted, Sherbert -- one of the cases on which Congress
relied in formulating its statutory test -- approached the
"substantial burden" question in terms of a choice between
-29-
following one's religion and obtaining government benefits (there,
unemployment benefits), see 374 U.S. at 399-400, a type of choice
that does not accurately describe the situation in religious land
use disputes. See Westchester Day Sch. v. Village of Mamaroneck,
504 F.3d 338, 348-49 (2d Cir. 2007).
The First Circuit has not offered its own interpretation
of "substantial burden" for RLUIPA land use purposes. The parties
offer various abstract formulations to us. A number of other
circuits have announced tests in terms of such abstract
formulations, but the standards they have announced have not been
consistent. See, e.g., Bethel World Outreach Ministries v.
Montgomery Cnty. Council, 706 F.3d 548, 556 (4th Cir. 2013) ("[A]
plaintiff can succeed on a [RLUIPA] substantial burden claim by
establishing that a government regulation puts substantial pressure
on it to modify its behavior."); Westchester Day Sch., 504 F.3d at
349 (formulating the question as whether "government action . . .
directly coerces the religious institution to change its behavior"
(emphasis omitted)); Living Water Church of God v. Charter Twp. of
Meridian, 258 F. App'x 729, 737 (6th Cir. 2007) (asking whether,
"though the government action may make religious exercise more
expensive or difficult, does the government action place
substantial pressure on a religious institution to violate its
religious beliefs or effectively bar a religious institution from
using its property in the exercise of its religion?"); Midrash
-30-
Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir.
2004) (substantial burden is one that "place[s] more than an
inconvenience on religious exercise" and is "akin to significant
pressure which directly coerces the religious adherent to conform
his or her behavior accordingly"); San Jose Christian Coll. v. City
of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004) ("[F]or a land
use regulation to impose a 'substantial burden,' it must be
'oppressive' to a 'significantly great' extent."); Civil Liberties
for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir.
2003) ("[I]n the context of RLUIPA's broad definition of religious
exercise, a land-use regulation that imposes a substantial burden
on religious exercise is one that necessarily bears direct,
primary, and fundamental responsibility for rendering religious
exercise . . . effectively impracticable.").
In the absence of Supreme Court guidance, we do not adopt
any abstract test, but rather identify some relevant factors and
use a functional approach to the facts of a particular case. We
recognize different types of burdens and that such burdens may
cumulate to become substantial. At least one circuit has moved in
this direction, see World Outreach Conference Ctr., 591 F.3d at 539("[W]hether a given burden is substantial depends on its magnitude
in relation to the needs and resources of the religious
organization in question."), and academic commentary has suggested
the same, see R. Bernstein, Note, Abandoning the Use of Abstract
-31-
Formulations in Interpreting RLUIPA's Substantial Burden Provision
in Religious Land Use Cases, 36 Colum. J.L. & Arts 283, 305-10
(2013) (explaining common factors that courts have considered in
assessing "substantial burden" under RLUIPA, regardless of how the
standard has been formulated).
This approach involves consideration of the common-usage
understandings of the term "substantial burden," a term used in
many areas of law without particular abstract formulations. A
"burden" is "[s]omething that hinders or oppresses," Black's Law
Dictionary 223 (9th ed. 2009), or "something oppressive or
worrisome," Merriam-Webster's Collegiate Dictionary 152 (10th ed.
1993); see also "Burden/burthen, n.," Oxford English Dictionary,
available at http://www.oed.com/viewdictionaryentry/Entry/24885
("An obligatory expense, whether due on private account or as a
contribution to national funds; often with the additional notion of
pressing heavily upon industry and restraining freedom of
action."). Next, something is "substantial" when it is "important"
or "significantly great," Merriam-Webster's Collegiate Dictionary
1174 (10th ed. 1993); see also "Substantial, adj., n., and adv.,"
Oxford English Dictionary, available at http://www.oed.com/
viewdictionaryentry/Entry/193050 (as to an action or measure,
"having weight, force, or effect; effective, thorough"). A burden
does not need to be disabling to be substantial. We do not agree
with those courts that have suggested that nothing short of
-32-
coercion to change or abandon one's religious beliefs can meet the
substantial burden test.
On the other hand, we agree with the Second Circuit's
observation that RLUIPA does not mean that any land use restriction
on a religious organization imposes a substantial burden -- such a
conclusion would stretch First Amendment jurisprudence too far, see
Westchester Day Sch., 504 F.3d at 349-50, and moreover would be
contrary to congressional intent, see 146 Cong. Rec. S7776 (daily
ed. July 27, 2000) ("This Act does not provide religious
institutions with immunity from land use regulation . . . .")
(joint statement of Sens. Hatch and Kennedy).
We do identify some factors that courts have considered
relevant when determining whether a particular land use restriction
imposes a substantial burden on a particular religious
organization, but we do not suggest that this is an exhaustive
list. One factor is whether the regulation at issue appears to
target a religion, religious practice, or members of a religious
organization because of hostility to that religion itself. See
Saints Constantine & Helen Greek Orthodox Church, Inc. v. City of
New Berlin, 396 F.3d 895, 898 (7th Cir. 2005) (noting that city had
allowed rezoning of parcel owned by Protestant church but imposed
additional processes on, and ultimately denied, Greek Orthodox
church's rezoning application for adjacent parcel); id. at 900(warning of the "vulnerability of religious institutions --
-33-
especially those that are not affiliated with the mainstream
[Christian] sects . . . to subtle forms of discrimination"); cf.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 532-33 (1993).
Another is whether local regulators have subjected the
religious organization to a process that may appear neutral on its
face but in practice is designed to reach a predetermined outcome
contrary to the group's requests. See, e.g., World Outreach
Conference Ctr., 591 F.3d at 537-38 (finding that religious
organization stated a RLUIPA substantial burden claim where city
insisted that organization seek a permit it did not need, then used
other processes to "pull[] the rug out from under" organization's
application, id. at 537); Guru Nanak Sikh Soc'y of Yuba City v.
County of Sutter, 456 F.3d 978, 989 (9th Cir. 2006) (finding
substantial burden where the religious organization "readily agreed
to every mitigation measure suggested by [regulators], but the
County, without explanation, found such cooperation insufficient,"
and the "broad reasons" given for the county's denials "could
easily apply to all future applications" by the organization).
Courts have also looked to whether the land use
restriction was "imposed on the religious institution arbitrarily,
capriciously, or unlawfully." Westchester Day Sch., 504 F.3d at
350. This may occur where, for instance, local regulators
disregard objective criteria and instead act adversely to a
-34-
religious organization based on the objections of a "small but
influential" group in the community. Id. at 346 (noting that
"[m]any of the[] grounds" for zoning board's denial of religious
institution's building permit application "were conceived after the
[board] closed its hearing process, giving the school no
opportunity to respond," and that "the stated reasons for denying
the application were not supported by evidence," leading the
district court to "surmise[] that the application was in fact
denied because the [board] gave undue deference to the public
opposition of the small but influential group of neighbors who were
against the school's expansion plans"). It may also occur where
local regulators base their decisions on misunderstandings of legal
principles. See Saints Constantine, 396 F.3d at 899-900(describing "repeated legal errors" by the city, suggesting that
errors were indicative of city either being "deeply confused about
the law" or "playing a delaying game," and warning of risks to
religion where, as in zoning processes, "a state delegates
essentially standardless discretion to nonprofessionals operating
without procedural safeguards").
Taken together, these factors reveal that the substantial
burden analysis often "backstops the explicit prohibition of
religious discrimination in" RLUIPA's subsection (b) much in the
same way as "the disparate-impact theory of employment
discrimination backstops the prohibition of intentional
-35-
discrimination." Id. at 900. Under the substantial burden
framework, a court may block application of a land use regulation
under RLUIPA's subsection (a) where the context raises an
"inference" of hostility to a religious organization, even when the
evidence does not necessarily show the explicit discrimination "on
the basis of religion" contemplated by subsection (b). Id.Several courts have been sensitive to these concerns. See, e.g.,
Westchester Day Sch., 504 F.3d at 350-51; World Outreach Conference
Ctr., 591 F.3d at 535-38 (reversing dismissal of religious
organization's RLUIPA substantial burden claim, while affirming
dismissal of organization's RLUIPA discrimination claim).
3. De Novo Review of Substantial Burden Analysis
We start with two bedrock observations: first, that a
religious organization is protected from government burdens which
are imposed based on the organization's religious beliefs; and
second, that the Ordinance at issue in this case cannot be viewed
as a neutral law of general applicability in the Smith sense.
As to the first issue, a government may not single out
for special benefit or burden a religious group or institution
solely because of its religious beliefs. See id. at 532. Here,
nothing in the language nor the background of the Ordinance
indicates that hostility to Catholicism or Catholics motivated the
City's decisionmaking process. The language of the Ordinance does
not target deconsecration as such.
-36-
By its terms, the Ordinance does not forbid the SHC from
inquiring into the religious criteria that RCB uses to determine
how it will apply its religious protocols, nor from second-guessing
the religious conclusions reached by RCB as to what is sacred. In
this respect, the Ordinance stands in contrast with at least some
other historic zoning ordinances which expressly prohibit local
historical commissions from interfering in liturgical decisions.
See, e.g., First Covenant Church of Seattle v. City of Seattle, 840
P.2d 174, 178 (Wash. 1992); cf. Sherbert, 374 U.S. at 402 ("The
door of the Free Exercise Clause stands tightly closed against any
governmental regulation of religious beliefs as such."). But RCB
has not alleged that the SHC will engage in these forbidden
practices, nor has it argued that the SHC has historically done so
with regard to any other religious buildings. The Ordinance merely
requires RCB to undertake an administrative process common to all
historic districts. We will not assume that the SHC will use its
authority to transgress these forbidden lines of challenging
liturgical criteria or conclusions, without evidence that it has
done so.
As to the second issue, we do not view the Ordinance as
a "neutral law of general applicability" in the sense that the
Supreme Court used the term in Smith. See 494 U.S. at 879 (quoting
United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J.,
concurring in the judgment)); id. at 879-82. Rather, the City,
-37-
through the SHC and City Council, is vested with discretion to
decide when to create a historic district. The strictures imposed
as a result of historic district status do not apply automatically
by statute to the general population, but apply once certain
officials of the City decide that they will apply. Historic
district or landmark ordinances are different from other types of
zoning rules in that their entire purpose is to prevent only
particular property owners in limited areas from changing the
appearance of particular properties.14 In this sense, it can be
said that the Ordinance is not "generally applicable."
One of the dangers of a discretionary system such as this
one is the prospect that the government's discretion will be
misused. In this case, there were some troubling circumstances
surrounding the City's enactment of the Ordinance. For instance,
the Ordinance was proposed after the news was released that RCB
planned to close the Church, and it was supported by parishioners
opposed to the (otherwise unreviewable) closing decision and those
sympathetic to their cause. The record does not indicate any
interest in including the Church in a historic district before that
14
We note that, given the nature of historic district
designations, the mere fact that the Ordinance is concerned with
only one building, and that that one building is a church, does not
in itself resolve the burden question. See Rector, Wardens, &
Members of the Vestry of Saint Bartholomew's Church v. City of New
York, 914 F.2d 348, 354 (2d Cir. 1990). It is the nature of the
burden -- not the character of the law -- that controls our
analysis.
-38-
decision in the late summer of 2009.15 See Lukumi, 508 U.S. at 540-
41 (noting significance of fact that ordinances regarding animal
sacrifice were enacted in direct response to news that a Santería
church would open in town). The SHC report acknowledges that part
of the City's intent in creating the District was to prevent RCB
from following the same path it had taken with another local
church, which had been closed, deconsecrated, and sold to a
developer who demolished it. It was arguably because RCB might
conclude that demolition of the Church was required that the City
chose to intervene.
The SHC, City Council, and mayor pressed the Ordinance
through the approval process quickly, in a matter of weeks,
coinciding with the timeline of the Church's closing (the Ordinance
became law on December 30, 2009, and went into effect on January
20, 2010; the last services at the Church were held on January 1,
2010). The City's officials took these actions without considering
the Ordinance's potential constitutional implications, despite
repeated requests by RCB for a legal consultation and an offer by
the City's solicitor to provide legal advice. Cf. Saints
Constantine, 396 F.3d at 899 ("The repeated legal errors by the
City's officials casts doubt on their good faith."). The City
Council did not even wait for the report of its own study committee
15
The SHC's report mentions that the Church was surveyed for
possible inclusion in the National Register of Historic Places in
2001, but apparently no action was taken between 2001 and 2009.
-39-
before approving the District. At the City Council hearing, one
councilor accused RCB's counsel of lying about RCB's decisionmaking
process in closing the Church, suggesting dissatisfaction with that
religiously motivated decision. Cf. Rector, Wardens, & Members of
the Vestry of Saint Bartholomew's Church v. City of New York, 914
F.2d 348, 355 (2d Cir. 1990) (holding that landmarking laws can
permissibly single out individual parcels, "absent proof of the
discriminatory exercise of discretion" in identifying such parcels
(emphasis added)).
In the end, however, these troubling facts surrounding
the enactment of the Ordinance are not outcome determinative,
because this exercise of discretion (that is, designating the
Church as a single-parcel historic district) does not establish a
process, apparently neutral, that in fact will result in the denial
of any request that RCB may make to the SHC. See, e.g., World
Outreach Conference Ctr., 591 F.3d at 537-38; Guru Nanak Sikh
Soc'y, 456 F.3d at 989. The Ordinance requires only that RCB
submit any plans to alter the exterior of the Church to the SHC.
Should the SHC in fact prevent RCB, when it does have specific
plans for the site, from undertaking any portion of its religious
practice of deconsecration, the significance of the Ordinance's
background can be evaluated anew in the context of any later
challenge.
-40-
In addition to the two concerns outlined above, we
evaluate the actual, tangible burdens that existence of the
Ordinance imposes on RCB. RCB represented to the City Council that
it must bear a financial burden of maintaining the Church, which
falls on the newly merged parish and constrains RCB's decisions
about how to allocate the Diocese's resources. But the mere
existence of some expenses does not put "substantial pressure on
[RCB] to modify its behavior." Bethel World Outreach, 706 F.3d at
556. There are many scenarios under which RCB would be paying to
maintain the Church, only some of which are fairly traceable to the
Ordinance. Further, RCB did not submit evidence of the degree of
these expenses, nor of the Church's property value before or after
passage of the Ordinance. See, e.g., First Covenant Church of
Seattle, 840 P.2d at 183 (noting, in constitutional substantial
burden analysis, evidence that landmark ordinance "reduce[d] the
value of the Church's property by almost half").
RCB does face statutory penalties if it makes any changes
to the Church without the SHC's permission, see Mass. Gen. Laws ch.
40C, § 13, but this possibility does not mean that the process of
application to the SHC is itself burdensome. The Ordinance asks
RCB only to delay the decisions it makes pursuant to its
deconsecration plans while the SHC evaluates its application, a
-41-
process that, according to the SHC's own rules, should take no more
than sixty days.16
In this case, all of the factors we have identified
combine to show that RCB cannot, solely on its challenge to the
enactment of the Ordinance, prove that it suffers a substantial
burden on its religious exercise.
Because we decide that RCB has not shown a substantial
burden, we need not address the question of whether the Ordinance
is "in furtherance of a compelling governmental interest" and is
"the least restrictive means of furthering" that interest. 42
U.S.C. § 2000cc(a)(1)(A)-(B).
B. RLUIPA "Equal Terms"
RCB also argues before this court that the Ordinance
violates another provision of RLUIPA, the "equal terms" provision,17
which states: "No government shall impose or implement a land use
regulation in a manner that treats a religious assembly or
institution on less than equal terms with a nonreligious assembly
or institution." 42 U.S.C. § 2000cc(b)(1). RCB argues that the
16
If the SHC does not act on an application within sixty days,
it "shall" issue the requested certificate of hardship.
17
In the district court, RCB also argued that the Ordinance
violated RLUIPA's "nondiscrimination" and "unreasonable
limitations" provisions. 42 U.S.C. § 2000cc(b)(2)-(3); see RCB,
760 F. Supp. 2d at 191. RCB did not address those two provisions
in its opening brief to this court, and the City argues that any
claims based on those provisions are waived. We agree with the
City.
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City violated this provision because the District was, at the time
of its enactment, the only single-parcel historic district in
Springfield.
The circuits disagree as to the applicable comparator in
a RLUIPA "equal terms" analysis. Compare Midrash Sephardi, 366
F.3d at 1230-31 ("natural perimeter" of inquiry is the universe of
entities which qualify as "assembl[ies] or institution[s]"), with
Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510
F.3d 253, 264 (3d Cir. 2007) (religious institution must show that
a secular comparator is similarly situated in relevant respects).
RCB does not point to any particular secular institution or class
of institutions that was treated differently than was RCB. Rather,
RCB compares itself to every secular institution in the City of
Springfield, none of which are included in a single-parcel historic
district. Under any reasonable interpretation of the equal terms
provision, this argument fails.
The MHDA empowers municipalities to choose how many
parcels to include in any given historic district. The City has
enacted a number of historic districts over the years, of varying
sizes, and often including both secular and religious buildings.
The City complied with the MHDA's process for designating the
District, as it presumably did in all other instances when it
created historic districts.
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By analogy, the Supreme Court has recognized in a
different context that landmark laws -- which operate similarly to
single-parcel historic districts -- are not necessarily operating
in a discriminatory manner when they single out particular parcels
for special treatment:
[L]andmark laws are not like discriminatory,
or "reverse spot," zoning: that is, a land-use
decision which arbitrarily singles out a
particular parcel for different, less
favorable treatment than the neighboring ones.
In contrast to discriminatory zoning, which is
the antithesis of land-use control as part of
some comprehensive plan, the [landmark] law
embodies a comprehensive plan to preserve
structures of historic or aesthetic interest
wherever they might be found in the city[.]
Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 132
(1978) (citation omitted). Likewise, the mere fact that a landmark
designation or a single-parcel historic district applies only to a
house of worship does not in itself constitute a targeting of
religion that offends the First Amendment. See Saint
Bartholomew's, 914 F.2d at 354.
The mere fact of the Ordinance's existence does not
demonstrate that RCB was treated on less than equal terms with
nonreligious institutions, particularly where RCB does not point to
any relevant comparators.
C. First Amendment Claims
1. Free Exercise of Religion
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RLUIPA's congressional record indicates that the sponsors
of the law in the Senate intended the phrase "substantial burden"
to be interpreted consonantly with the Supreme Court's usage of the
phrase in the First Amendment context. See 146 Cong. Rec. S7776
(daily ed. July 27, 2000) (joint statement of Sens. Hatch and
Kennedy). Our analysis of RCB's ripe First Amendment free exercise
claim is thus similar to our analysis of the ripe "substantial
burden" question under RLUIPA.
Because we do not view the Ordinance as a neutral law of
general applicability, we will assume, favorably to RCB, that it is
subject to strict scrutiny.18 See Lukumi, 508 U.S. at 546; Jimmy
Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378,
384-85 (1990) ("Our cases have established that '[t]he free
exercise inquiry asks whether government has placed a substantial
burden on the observation of a central religious belief or practice
and, if so, whether a compelling governmental interest justifies
the burden.'" (alteration in original) (quoting Hernandez v.
Comm'r, 490 U.S. 680, 699 (1989))). For the same reasons we have
already explored, RCB has not shown that the mere existence of the
Ordinance constitutes a substantial burden on its First Amendment
right to the free exercise of religion.
18
We need not address the parties' arguments as to what
standard of scrutiny applies to a "hybrid" claim -- that is, one
that combines an alleged violation of the free exercise right with
another alleged constitutional violation. Cf. Smith, 494 U.S. at
881-82.
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Given the limited nature of the only ripe claim before
us, the Supreme Court's decision in Lukumi is not to the contrary.
There, a municipality passed ordinances relating to animal
sacrifice that were clearly designed to prevent adherents of
Santería from taking part in a specific religious practice, for the
stated purpose of prohibiting a religious exercise that a number of
citizens considered to be "inconsistent with public morals, peace
or safety." 508 U.S. at 535. The evidence as a whole revealed
that "suppression of the central element of the Santeria worship
service was the object of the ordinances," id. at 534, which
constituted "an impermissible attempt to target petitioners and
their religious practices," id. at 535.
Here, by contrast, there is no evidence that suppression
of Catholic religious practices was the object of the Ordinance.
The text of the Ordinance requires only that RCB file an
application with the SHC before making any changes to the exterior
of the Church. The language of the Ordinance does not require RCB
to perform or forego any particular practice, and it does not
prohibit deconsecration or even closing of the Church outright.
While the circumstances of the Ordinance's enactment reveal that
the Ordinance was motivated at least in part by a desire to prevent
demolition of the Church -- a possible outcome of RCB's religious
decisionmaking process -- there is no evidence that this goal was
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rooted in "animosity to religion or distrust of its practices."
Id. at 547.
This is not to say, of course, that a government's benign
motives will always defeat a claim of substantial burden; a law
passed without any evidence of animosity may still, by its
objective terms, impose such a burden. But that is not this
Ordinance. Again, the question of whether any future outcome of
RCB's submission of an application to the SHC might constitute a
substantial burden is not properly before this court. We hold
simply that the existence of the Ordinance itself is not an
unconstitutional burden on RCB's free exercise of religion.
2. Freedom of Speech
RCB's complaint alleged that the Ordinance violated its
rights under the First Amendment's Free Speech Clause. RCB alludes
to that claim in its briefing before this court, but it does not
develop the argument, instead using the free speech claim solely to
bolster its argument that the free exercise claim should be subject
to strict scrutiny as a "hybrid" claim. RCB has thus waived this
issue on this appeal. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
We note, however, that the district court found that the
free speech claim was unripe, because the question of whether the
Ordinance interferes with RCB's right to express itself through
religious symbols on the Church would not be cognizable until the
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SHC acted on an application to remove any of those symbols. See
RCB, 760 F. Supp. 2d at 184. Since neither party asks us to
disturb that ruling, we will not do so.
D. Massachusetts State Constitutional Claims
Finally, RCB argues that the enactment of the Ordinance
violates its free exercise right under Article 46, Section 1 of the
Amendments to the Massachusetts Constitution, which provides that
"[n]o law shall be passed prohibiting the free exercise of
religion." In interpreting this provision, Massachusetts has
rejected the Supreme Court's Smith rule and retained the strict
scrutiny standard even for laws that are neutral and generally
applicable. Attorney General v. Desilets, 636 N.E.2d 233, 236 &
n.4 (Mass. 1994). Because we have rejected RCB's federal
constitutional challenge as to that part of its claim which is
ripe, RCB's ripe state constitutional claim also fails, for the
same reasons articulated above.19
V.
RCB has presented a serious set of challenges. As the
Supreme Court has stressed, the question of religious burdens is
necessarily individualized and context-sensitive. See Gonzales v.
19
Because we conclude that RCB has not demonstrated a
substantial burden on its religious exercise, we need not address
the unsettled state law question of whether there can be a
compelling state interest in the historic preservation of the
exterior of a house of worship. See Soc'y of Jesus of New Eng. v.
Bos. Landmarks Comm'n, 564 N.E.2d 571, 572 n.2 (Mass. 1990).
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O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436
(2006). Accordingly, we have written narrowly today. Our analysis
is grounded in the present facts of this case.
VI.
It appears from the district court's decision that the
court granted summary judgment to the City on all of RCB's claims.
See RCB, 760 F. Supp. 2d at 195. This was, in part, erroneous.
The claims that the district court found were unripe should have
been dismissed without prejudice, not resolved on summary judgment.
We will remand for the proper disposition of those claims.
VII.
The judgment of the district court is affirmed in part
and vacated in part. The district court's grant of summary
judgment to the City on Counts 5, 6, 7, 10, 11, and 12 of RCB's
complaint is affirmed. We vacate the grant of summary judgment to
the City on Counts 3 and 4 of the complaint and remand with
instructions to dismiss those counts without prejudice. We vacate
and remand with instructions to dismiss without prejudice Counts 1,
2, 8, and 9 of the complaint, to the extent these counts allege a
challenge to the potential future effects of the application
process under the Ordinance. To the extent that Counts 1, 2, 8,
and 9 allege a challenge to the mere enactment of the Ordinance,
the grant of summary judgment to the City is affirmed. Each party
shall bear its own costs.
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