Immanuel Baptist Church v. City of Chicago

Filing 37

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 9/22/2017: For the reasons set forth in the Memorandum Opinion, the defendant's motion 17 is granted. The plaintiff is granted leave to file an amended complaint asserting an as-applied RLUIPA claim. A status hearing is set for 10/10/2017 at 9:00 a.m. Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IMMANUEL BAPTIST CHURCH,
Plaintiff,
v.
CITY OF CHICAGO.
Defendant.

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No. 17 C 00932
Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
This case presents the question: “When is a church like a library?” When it comes to
parking needs, the City of Chicago says, “Never.” But the Immanuel Baptist Church, the plaintiff
in this case, says its parking needs are no different than those of a library. The Church brought
this lawsuit against the City after it was unable to purchase a building in which to hold its
services because City zoning requirements require the Church to have off-street parking that the
property did not offer. Libraries of comparable size, by contrast, require no off-street parking.
The Church alleges that in treating religious assemblies worse than comparable secular
assemblies like libraries, the City’s parking regulations facially violate the Religious Land Use
and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc, et. seq., and deny the Church
equal protection under the Fourteenth Amendment. The City moved to dismiss the Church’s
complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Upon
agreement of the parties, the City’s motion was subsequently converted to a motion for summary
judgment and the Church has moved for summary judgment as well. Because the Church has
failed to present prima facie evidence to support its RLUIPA claim, the Court grants the City’s
motion for summary judgment on that claim. The Court also grants the City’s motion for
summary judgment on the equal protection claim because the City has shown that it is entitled to

judgment on that claim as a matter of law. The Court denies the Church’s motion for summary
judgment. The Church, however, may still pursue an as-applied RLUIPA claim.
BACKGROUND
I.

Procedural History
Before the Court are cross-motions for summary judgment on the Church’s RLUIPA and

equal protection claims. The motions, however, have a somewhat unusual procedural history.
The Church’s complaint was filed in February 2017. In May 2017, in an effort to expeditiously
resolve the legal issues in the case where there appeared to be no disputes of material facts, the
parties, at the Court’s suggestion, agreed to proceed with motions for summary judgment on the
basis of the facts set forth in the complaint.
The Church initially filed a motion for preliminary injunction on May 4, 2017, and
shortly thereafter, on May 15, 2017, the City moved to dismiss the complaint for failure to state a
claim under Rule 12(b)(6). Pl.’s Mot. for Prelim. Inj., ECF No. 14; Def.’s Mot. to Dismiss, ECF
No. 17. During a hearing before the Court on May 16, 2017, the parties indicated that there were
no significant factual disputes. Hr’g Tr. 3:23–4:1, 4:9–5:10, May 16, 2017, ECF No. 34. Based
on this indication, the Court proposed to the parties that it convert the City’s motion to dismiss to
a motion for summary judgment and resolve the questions of law at issue in the case based on the
undisputed facts set forth in the Church’s complaint. Id. 6:9–7:13. The parties agreed to the
Court’s proposal.1 Id.; Order, May 16, 2017, ECF No. 20. On June 7, 2017, the Church filed its
response to the City’s converted motion for summary judgment and moved for summary
judgment in the Church’s favor on both claims. Pl.’s Resp., June 7, 2017, ECF No. 25. However,
in support of its response and cross-motion, the Church asserted additional facts beyond those set
1

In light of the agreement, the Church’s motion for a preliminary injunction was denied
without prejudice to reassertion. Order, May 16, 2017, ECF No. 20.

2

forth in the complaint. Id. 2 n.2. The City moved to strike the Church’s response and crossmotion in its entirety because it relied on facts not set forth in the complaint and because the
Church improperly moved for summary judgment. Def.’s Mot. to Strike, June 16, 2017, ECF No.
26.
At a hearing before the Court on June 22, 2017, the Court clarified that in its May 16,
2017 order converting the City’s motion to dismiss to a motion for summary judgment, it
intended to consider arguments by the Church in favor of a cross-motion for summary judgment.
Hr’g Tr. 2:11–3:14, 4:3-9, June 22, 2017, ECF No. 35. The Court further clarified it would only
consider the facts set forth in the complaint as the agreed statement of facts for both parties’
summary judgment motions and respective responses to those motions. Hr’g Tr. 5:17–7:25;
Order, June 22, 2017, ECF No. 33. The parties again agreed to proceed with cross-motions for
summary judgment based only on the facts set forth in the complaint. Id. Accordingly, the City’s
motion to strike was denied as moot. Order, June 22, 2017, ECF No. 33. The City then filed its
reply on July 14, 2017. Def.’s Reply, July 14, 2017, ECF No. 36.
II.

Facts
Based on the parties’ agreement and this Court’s orders, the Court considers only the

facts set forth in the Church’s complaint as the agreed statement of facts for the City’s converted
motion for summary judgment and the Church’s cross-motion for summary judgment. Crossmotions for summary judgment require a district court to “take the motions one at a time” and to
construe the evidence and make all reasonable inferences in favor of the party against whom the
motion under consideration is made. Black Earth Meat Mkt., LLC v. Vill. of Black Earth, 834
F.3d 841, 847 (7th Cir. 2016); Rickher v. Home Depot, Inc., 535 F.3d 661, 664 (7th Cir. 2008).

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Since its founding in 1994, the Church has operated in various locations throughout
Chicago, Illinois. The Church, which has approximately 60 members and a weekly adult
attendance of roughly 80 people, conducts a variety of ministries and religious exercises,
including weekly worship assemblies, preaching, pastoral counseling, prayer meetings, singing
and musical performances, baptisms, weddings, communion, bible studies, service projects,
evangelism, and financial giving. In August 2011, the Church began meeting at 1443 West
Roosevelt Road in Chicago (the “Property”), which the Church leases from its owner for $2,700
per month. The Property is located within Subarea B of the City’s Planned Development 896
(“PD 896”). The City’s Permitted Uses Table states that churches are allowed to operate in
Subarea B of PD 896. The Property is approximately 3,900 square feet and consists of a worship
center and classrooms. There is no on-site parking at the Property, but street parking is widely
available in the surrounding area throughout the week, and the property is surrounded by vacant
lots. In November 2012, the City granted the Church an occupancy permit for 146 persons.
In 2016, the Church reached an agreement with the Property owner to purchase the
Property and prepared to complete the purchase in June 2016. However, the transaction was
halted due to the City’s parking requirements for religious assemblies. Before completing the
purchase of the Property, the Church’s lender requested a determination regarding the legal
requirement for parking at the Property. In July 2016, the Assistant Commissioner for the City’s
Department of Planning and Development, Patrick Murphey, informed the Church and its lender
that certain parking requirements must be met to permit the Church’s operation at the Property.
The parking requirements for the Property are governed by 17-10-0207 of the Chicago Zoning
Ordinance (the “Ordinance”), which sets forth requirements for 23 different “Parking Groups.”
Compl. ¶ 54, Ex. I. Parking Group I for religious assemblies requires one parking space per eight

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seats in the auditorium. Accordingly, the City has insisted that the Church have one off-street
parking spot for every eight seats. Under the Ordinance, however, other nonreligious assembly
uses have different parking requirements. The Church’s claim focuses on Parking Group F for
cultural exhibits and libraries, which requires no parking for facilities up to 4,000 square feet,
and only one parking space per each additional 1,000 square feet over 4,000. It points as well to
Parking Group P, which requires no parking for live theater venues with less than 150 seats.
The Church pursued several parking alternatives in an attempt to meet the City’s one-toeight parking space requirement. One such alternative was a lease of a nearby unused parking lot
owned by the Chicago Housing Authority (“CHA”). In email correspondence with the Church’s
pastor regarding the potential parking lease, Murphey stated that the City would need to examine
the lease terms and “review if the continued presence of a religious assembly facility along
Roosevelt Road in this block, and the associated parking, are appropriate.” Id. ¶ 33. In another
email to the Church’s counsel regarding the parking lease, Murphey explained that the City looks
for certain minimum lease terms and stated that “while the religious assembly use is allowed in
the relevant sub area of this planned development, the department is as yet unconvinced that it
supports a non-commercial use of this type along this portion of Roosevelt Road.” Id. ¶¶ 34-35,
Ex. 4 at 6. The City rejected the Church’s proposed lease of the CHA-owned parking because the
lease could only last for 384 days at a time. The Church’s attempts to negotiate other parking
arrangements with its neighbors were unsuccessful, and it has been unable to purchase and
operate the Property as a church.
DISCUSSION
Summary judgment is proper when the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.

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56(a). A factual dispute is genuine when “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). If the movant presents evidence
showing the absence of a genuine dispute of material fact, the burden shifts to the non-movant to
provide evidence of specific facts creating a genuine dispute. Id. (citing Hudson Ins. Co. v. City
of Chicago Heights, 48 F.3d 234, 237 (7th Cir. 1995)).
I.

RLUIPA Claim
The Church maintains that the City’s parking regulations violate the “equal-terms”

provision of RLUIPA. That provision bars a government from imposing or implementing “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). The statute is violated
“whenever religious land uses are treated worse than comparable nonreligious ones, whether or
not the discrimination imposes a substantial burden on the religious uses.” Digrugilliers v.
Consol. City of Indianapolis, 506 F.3d 612, 616 (7th Cir. 2007) (citing Vision Church, United
Methodist v. Vill. of Long Grove, 468 F.3d 975, 1002-03 (7th Cir. 2006); Primera Iglesia
Bautista Hispana of Boca Raton, Inc. v. Broward Cty., 450 F.3d 1295, 1308 (11th Cir. 2006);
Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1229-31 (11th Cir. 2004)). In River
of Life Kingdom Ministries v. Village of Hazel Crest, Illinois, the Seventh Circuit held that an
equal-terms violation exists if a religious land use is treated less favorably than a secular land use
that is similarly situated as to the relevant zoning criterion. 611 F.3d 367, 370-372 (7th Cir.
2010) (en banc); see also Affordable Recovery Hous. v. City of Blue Island, No. 12-cv-4241,
2016 WL 5171765, at *14 (N.D. Ill. Sept. 21, 2016) (“According to the Seventh Circuit, a
regulation will violate the ‘equal terms’ provision of RLUIPA only if it treats religious

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assemblies or institutions less well than secular assemblies or institutions that are similarly
situated as to the accepted zoning criteria.”) (citing River of Life, 611 F.3d 367). A plaintiff need
not demonstrate unequal treatment between “two institutions similarly situated in all relevant
respects.” Vision Church, 468 F.3d at 1003. For example, “if a church and a community center,
though different in many respects, do not differ with respect to any accepted zoning criterion,
then an ordinance that allows one and forbids the other denies equality and violates the equalterms provision.” River of Life, 611 F.3d at 371.
An equal-terms violation may occur in one of three different ways: “(1) a statute that
facially differentiates between religious and nonreligious assemblies or institutions; (2) a facially
neutral statute that is nevertheless ‘gerrymandered’ to place a burden solely on religious, as
opposed to nonreligious, assemblies or institutions; or (3) a truly neutral statute that is selectively
enforced against religious, as opposed to nonreligious assemblies or institutions.” Irshad
Learning Ctr. v. Cty. of DuPage, 937 F. Supp. 2d 910, 932 (N.D. Ill. 2013) (quoting Vision
Church, 468 F.3d at 1003). Here, the Church alleges that the City’s Ordinance is a facial
violation of the equal-terms provision because it imposes a more onerous parking requirement on
religious assemblies than on certain live theater venues and libraries.2 Compl. ¶ 62, ECF No. 1
(“the City’s Ordinance, on its face, violates RLUIPA’s equal terms provision”).
The first question that must be addressed to resolve this dispute is who bears the burden
of proof with respect to identifying similarly situated secular comparators who are treated more

2

The Church’s complaint asserts only a facial challenge to the Ordinance. In its crossmotion for summary judgment, the Church also argues that the City has engaged in an as-applied
violation of the equal-terms provision because it has unequally implemented the Ordinance. Pl.’s
Resp. 11, June 7, 2017, ECF No. 25. The Church’s as-applied theory, however, is based on facts
not in the complaint, which the Court does not consider for purposes of the parties’ motions for
summary judgment. The Court therefore only considers the Church’s claim for a facial violation
of RLUIPA.

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favorably than churches under the City’s parking ordinance. The parties, not surprisingly,
disagree. The City argues that it is entitled to summary judgment on the Church’s RLUIPA claim
because the Church has failed to identify nonreligious assemblies that are treated better than
religious assemblies and that are similarly situated with respect to the relevant zoning criteria—
that is, the need for off-street parking. Relying on Ninth Circuit precedent, however, the Church
maintains that “the burden is not on the church to show a similarly situated secular assembly, but
on the city to show that the treatment received by the church should not be deemed unequal,
where it appears to be unequal on the face of the ordinance.” Pl.’s Resp. 3, June 7, 2017, ECF
No. 25 (citing Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1173
(9th Cir. 2011)).
Neither party is entirely correct, as RLUIPA contains a burden-shifting provision that
makes plain that the plaintiff has the burden to produce evidence to establish a prima facie
violation; only then does the burden of persuasion shift to the defendant. According to the
statute, “if a plaintiff produces prima facie evidence to support a claim alleging a violation of the
Free Exercise Clause or a violation of section 2000cc of this title, the government shall bear the
burden of persuasion on any element of the claim.” 42 U.S.C. § 2000cc-2(b). The Church’s view
that, notwithstanding § 2000cc-2(b), the City has the burden of proof regarding comparability,
mirrors that of the Fifth and Ninth Circuits, which have held that a prima facie case for an equalterms claim is established by “an ordinance that expressly differentiates religious land uses from
nonreligious land uses.” Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 291
(5th Cir. 2012); Centro Familiar, 651 F.3d at 1171 (finding that the “express distinction drawn”
by the ordinance at issue established a prima facie case for unequal treatment). In those circuits,
a plaintiff need only identify an ordinance that facially distinguishes between religious and

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nonreligious lands uses to shift the burden to the defendant to show no unequal treatment based
on similarly-situated secular comparators. Opulent Life, 697 F.3d at 293 (“To bear its burden,
[the defendant] must first identify the regulatory purpose or zoning criterion that explains the
religious facilities ban, as stated explicitly in the text of the ordinance, and then show that it has
treated religious facilities on equivalent terms as all nonreligious institutions that are similarly
situated with respect to that stated purpose or criterion.”); Centro Familiar, 651 F.3d at 1173 (If
the plaintiff establishes a prima facie case, “the burden is not on the church to show a similarly
situated secular assembly, but on the city to show that the treatment received by the church
should not be deemed unequal, where it appears to be unequal on the face of the ordinance.”).
The Seventh Circuit has not weighed in on whether an ordinance that expressly
differentiates religious land uses from nonreligious land uses suffices under § 2000cc-2(b) to
shift to the government the burden of persuasion on every element of a RLUIPA claim.3 But
defining a “prima facie” equal-terms claim to require only a facial distinction between the
treatment of religious and non-religious uses is inconsistent with the rationale of River of Life. A
“prima facie” claim is a claim that, absent rebuttal, is sufficient to carry the day. See Prima Facie
Case, BLACK’S LAW DICTIONARY (10th ed. 2014) (“prima facie case” means “[a] party’s
production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the
party’s favor”); Hall v. Forest River, Inc., 536 F.3d 615, 621 n.1 (7th Cir. 2008) (“‘prima facie
case’” means those elements of a cause of action a plaintiff must establish to prevail”); Airline

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One court in the Northern District of Illinois has found that where an ordinance, on its
face, appeared to “treat similar assemblies on less than equal terms,” the burden shifted to the
defendant “to demonstrate that the apparently unequal treatment is based on legitimate zoning
criteria, such as traffic flow, parking concerns, or tax revenue generation.” Christian Assembly
Rios De Agua Viva v. City of Burbank, Ill., 237 F. Supp. 3d 781, 792-93 (N.D. Ill. 2017). This
formulation requires a showing of similarity between the religious and secular uses at issue, and
therefore differs from the approach adopted by the Fifth and Ninth circuits.

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Pilots Ass’n, Int’l v. Dep’t of Transp., 880 F.2d 491, 499 (D.C. Cir. 1989) (“A prima facie
case . . . requires more than a showing of mere possibility; it means that if no rebuttal evidence is
submitted, the proponent has met his burden of proof and is entitled to prevail.”). In River of
Life, the Seventh Circuit held that a governmental regulation violates the equal-terms provision
of RLUIPA only where it treats religious assemblies or institutions less favorably than secular
assemblies or institutions that are similarly situated as to the relevant zoning criteria. 611 F.3d at
371. In adopting this test, the Court of Appeals expressly rejected the notion that mere facial
differential treatment between a church and any other assembly violates the equal-terms
provision. 611 F.3d at 370. If a violation of RLUIPA’s equal-terms provision requires evidence
of different treatment between comparable religious and secular uses, then it follows that to
establish a prima facie equal-terms violation, the plaintiff must come forward with evidence of a
similarly situated secular comparator that is more favorably treated in order to shift the burden to
the defendant to rebut the showing of comparability.4
Accordingly, the Court concludes that the Church bears the burden of establishing a
prima facie case that the Ordinance, on its face, treats religious assemblies less favorably than
comparable secular assemblies.5 In a facial constitutional challenge, “the claimed constitutional
violation inheres in the terms of the statute, not its application.” Ezell v. City of Chicago, 651
4

Despite its view that facially disparate treatment violates the equal-terms provision
without regard to whether the secular uses subject to the regulation are comparable to the
religious uses, the Eleventh Circuit recognizes the need for comparability in the context of an asapplied challenge to a neutral statute. “A plaintiff bringing an as-applied Equal Terms challenge
must present evidence that a similarly situated nonreligious comparator received differential
treatment under the challenged regulation. If a plaintiff offers no similarly situated comparator,
then there can be no cognizable evidence of less than equal treatment, and the plaintiff has failed
to meet its initial burden of proof.” Primera Iglesia, 450 F.3d at 1311 (citing 42 U.S.C. §
2000cc–2(b)).
5

In the context of assessing whether the Church has presented enough evidence to shift
the burden of persuasion to the City, the question of whether the prima facie standard has been
satisfied is appropriately a question for the Court.

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F.3d 684, 698 (7th Cir. 2011). Given the nature of a facial challenge, it would seem appropriate
to demand evidence sufficient to support a reasonable inference that the sort of religious
assembly at issue is comparable to the type of facially favored secular assembly in, if not all, at
least its principal characteristics as they relate to the relevant zoning criteria.
The Church’s RLUIPA claim asserts that the Ordinance violates a statute, not the
constitution, but the nature of its facial challenge is no different. Its focus is on whether the
differing parking standard for churches and libraries violates the equal-terms provision in all of
its potential applications. Id.; see also, e.g., Koutnik v. Brown, 456 F.3d 777, 783 (7th Cir. 2006)
(“A party raising a facial challenge to a statute or regulation on vagueness grounds ‘must
demonstrate that the law is impermissibly vague in all of its applications.’”) (quoting Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982)).
Here, that standard translates to a requirement that the Church present evidence sufficient
to support a reasonable inference that at least the principal uses of “churches” are comparable to
at least the principal uses of “libraries” or “theaters” as they relate to the relevant zoning
criterion—i.e., the need for off-street parking.6 That would not mean that a facial challenge
would require evidence relating to the specific comparison of the uses of the Church in this case
and/or any libraries or theaters that may be located within the same zoning area; whether the
parking required of a particular library or theater within the same zoning area as the Church was
less onerous would present an as-applied, not a facial, challenge.

6

I say “at least the principal uses,” rather than “all uses,” because in some contexts,
notably First Amendment overbreadth claims, a facial challenge that is invalid in a substantial
number of applications, even if not all, can nevertheless succeed. See Ezell, 651 F.3d at 698 n.8.
The potential qualification does not matter in this case, because the Church has failed to satisfy
even the less demanding standard of showing that libraries have comparable parking needs to
churches.

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The Church argues that theaters and libraries are comparable uses in regards to their
parking needs. But to begin, arguments about the comparability of theaters can be dismissed out
of hand, because, while the Ordinance imposes no minimum off-street parking requirements on
small live theaters with less than 150 seats, theaters are not permitted at all within the Church’s
zoning area. The City points to the Permitted Uses Table for PD 896, which allows churches in
Subarea B, but does not allow theaters. Def.’s Memo. in Supp. of Mot. to Dismiss 5, ECF No.
18. Because theaters, regardless of how much off-street parking they offer, are not permitted to
operate in the subarea where religious assemblies are permitted to operate, the City argues that
there is no unequal treatment to establish a RLUIPA violation. In response, the Church argues
only that the exclusion of theaters in Subarea B of PD 896 is “of no consequence.” Pl.’s Resp.
13, June 7, 2017, ECF No. 25. The City further argues that the Church has not established that a
theater is similar to a church with respect to its parking needs.
Regardless of whether the parking needs of churches and theaters are comparable, the
Court finds that the Church cannot show less equal treatment than theaters because theaters are
not permitted in Subarea B of PD 896. Contrary to the Church’s argument that this fact is “of no
consequence,” the exclusion of theaters as a permitted use in Subarea B is sufficient to defeat the
Church’s RLUIPA equal-terms claim to the extent it is based on less equal treatment than
theaters. See Affordable Recovery Hous., 2016 WL 5171765 at *15 (granting summary judgment
in favor of defendants where plaintiff religious organization could not show that it was treated on
less equal terms than a nonreligious organization). Churches are treated more, not less, favorably
with respect to parking in Subarea B than are live theaters; no matter how much parking a live
theater offers, it is not permitted to operate at that location.

12

The Church, however, also claims that the Ordinance violates RLUIPA because it treats
religious assemblies less equally than libraries, which are permitted to operate in PD 896. The
Church observes that the Ordinance does not require libraries under 4,000 square feet to provide
any off-street parking, and larger libraries are required to provide only one space for every
additional 1,000 square feet of building space. In its complaint, the Church alleges that, at 3,900
square feet, it is similar in size to the libraries that have no parking requirements. But the City
argues that the Church’s RLUIPA claim must fail because the Church has not shown it is
comparable to a small library with respect to its parking needs. Specifically, the City asserts that
the Church has not presented any facts to show that a library of 4,000 square feet “creates regular
assemblages of people, akin to church congregations.” Def.’s Memo. in Supp. of Mot. to Dismiss
7, ECF No. 18. Pointing to the Seventh Circuit’s River of Life decision, which acknowledges that
churches “generate[] groups of people coming and going at the same time,” while libraries
generate “a smoother flow of traffic throughout the day,” id. (citing River of Life, 611 F.3d at
373), the City asserts that common sense and simple logic dictate that a small library and a
church create different parking demands. Id.; Def.’s Reply 5, July 14, 2017, ECF No. 36.
In its response and cross-motion for summary judgment, the Church argues that
RLUIPA’s legislative history, case law, and international building and zoning codes establish
that libraries are comparable to religious assemblies for purposes of an equal-terms analysis.7
Pl.’s Resp. 4-6, June 7, 2017, ECF No. 25. The Church claims that RLUIPA’s legislative history
indicates that libraries are the “quintessential comparators to religious assemblies” and cites to a

7

The Church also points to facts outside the complaint to establish that a nearby public
library holds meetings and events that draw an attendance of similar size to the Church’s weekly
services. Pl.’s Resp. 7-8, June 7, 2017, ECF No. 25. However, for purposes of deciding the
parties’ cross-motions for summary judgment, the Court will not consider any facts outside those
set forth in the complaint.

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July 1999 Judiciary Committee House Report on RLUIPA (the “House Report”), which
references survey results revealing that non-religious assembly uses, including libraries and 14
other types of assemblies, are often permitted “as of right in zones where churches require a
special use permit, or permitted on special use permit where churches are wholly excluded.”8
H.R. REP. NO. 106-219, at 19 (1999). But the House Report’s passing reference to libraries
provides no discussion of whether and how libraries are similar to churches with regard to their
respective parking needs.
The Church does not fare any better with its argument that international building and
zoning codes support its claim that libraries are comparable to churches. The Church notes that
Section 303 of the International Building Code groups churches and libraries, along with 15
other types of assemblies, in the same “Assembly Group.” Pl.’s Resp. 6, Ex. A, June 7, 2017,
ECF No. 25. However, there is no indication that this grouping is based on the parking needs of
the assemblies. The Church also argues that Section 801 of the International Zoning Code
imposes the same parking requirements on all assembly uses. The Court, however, is not
persuaded that the International Zoning Code’s lack of distinction among all assembly uses is
evidence that libraries and churches have comparable parking demands.
The case law on which the Church relies to confirm the comparability of libraries and
churches for purposes of its RLUIPA claim is similarly off-point. None of the cases cited by the
Church specifically discuss whether libraries are similarly situated to churches with respect to
parking, the relevant zoning criteria at issue in this case. Digrugilliers, 506 F.3d 612, includes no
comparison of churches and libraries and no discussion of parking. Opulent Life Church, 697
F.3d 279, notes that libraries and churches are similar in the sense that both are non-commercial

8

This is the only reference to libraries made throughout the House Report.

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and non-tax generating land uses, but does not analyze the parking needs of the two land uses. In
Vineyard Christian Fellowship of Evanston, Inc. v. City of Evanston, 250 F. Supp. 2d 961 (N.D.
Ill. 2003), the court examines evidence presented regarding a church’s parking needs, but it
makes no comparison to a library’s parking needs. And indeed, the only case of which the Court
is aware that expressly addresses the comparability of a church and a library with respect to the
traffic demands they pose is the Seventh Circuit’s opinion in River of Life, which concludes,
albeit in dicta, that the burdens they pose are quintessentially different, not comparable. 611 F.3d
at 373 (“a church is more like a movie theater, which also generates groups of people coming
and going at the same time, than like a public library, which generates a smoother flow of traffic
throughout the day”).
The Court therefore agrees that the Church has not put forth evidence to demonstrate that
a library regularly draws groups of visitors for discrete events in the same way that a church
typically does. The principal uses of a church are generally considered to include worship
services that attract substantial numbers of people who arrive and depart within concentrated
time periods before and after the services. A church service is quintessentially a group activity:
“The Bible knows nothing of solitary religion.”9 Paradigmatically, by contrast, a visit to a
library, to check out a book, or read, or research, is an individual action. This is not to suggest
that church members never visit the church alone to pray, or that groups never meet at libraries.
But where we are addressing a facial challenge to a statute that imposes different parking
requirements on churches and libraries, there must be a basis to conclude that those uses are, if

9

John Wesley, John Wesley Quotes, QUOTES.NET, http://www.quotes.net/quote/50309 (last
visited Sep. 22, 2017). Wesley, of course, was an 18th century preacher, but the modern take is the
same: “Churchgoers are like coals in a fire. When they cling together, they keep the flame aglow;
when they separate, they die out.” Billy Graham, Billy Graham Quotes, QUOTES.NET,
http://www.quotes.net/quote/58514 (last visited Sep. 22, 2017).

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not always, at least generally comparable with respect to their parking needs. It is the Church’s
burden to produce prima facie evidence—that is, evidence sufficient to support a verdict in its
favor—showing that the parking needs of a typical library are comparable to those of a typical
church. As reflected by the Seventh Circuit’s opinion in River of Life, intuitively the burdens
they pose seem quite different and the evidence the Church has presented does not show that this
common sense notion is generally unfounded. Because the Church has failed to produce prima
facie evidence to support its equal-terms claim, the burden of persuasion does not shift to the
City and the Church’s facial challenge fails as a matter of law. The Court, therefore, denies the
Church’s motion for summary judgment on its facial RLUIPA claim and grants the City’s
motion for summary judgment on that claim.
The Church’s case, however, should not necessarily be terminated at this stage. This
ruling addresses only the Church’s facial challenge to the Ordinance. The Church clearly also
seeks to advance an as-applied RLUIPA claim. See Pl.’s Resp. 11-13, Exs. C-F, June 7, 2017,
ECF No. 25. Given the unique procedural posture of this case, the Court deems it appropriate to
give the Church an opportunity to amend its complaint to assert such a claim if it wishes to do so.
Allowing the Church to amend its complaint will not prejudice the City, which initially moved to
dismiss the Church’s complaint under Rule 12(b)(6) before agreeing to convert its motion to
dismiss to the instant motion for summary judgment. Effectively, the City got what it was
seeking—a dismissal with prejudice of the facial challenge to the Ordinance. But courts should
generally provide plaintiffs at least one opportunity to amend their complaint after granting a
motion to dismiss. E.g., Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010) (“[g]enerally,
if a district court dismisses for failure to state a claim, the court should give the party one

16

opportunity to try to cure the problem”). The Court will therefore grant leave to the Church to
file an amended complaint asserting an as-applied RLUIPA claim.
II.

Equal Protection Claim
The Church also alleges that the parking ordinance, on its face and as applied, violates its

equal protection rights under the 14th Amendment. An ordinance that targets a suspect class or
addresses a fundamental right is subject to strict scrutiny, which requires that the ordinance be
tailored narrowly to facilitate a compelling state interest. St. John’s United Church of Christ v.
City of Chicago, 502 F.3d 616, 637 (7th Cir. 2007). If no fundamental rights or suspect
categories are at issue, an ordinance is “presumed to be valid and will be sustained if the
classification drawn by the statute is rationally related to a legitimate state interest.” Id. (citing
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)).
The Church argues that strict scrutiny applies to its equal protection claim because the
parking ordinance regulates on the basis of religion, which the Church asserts is a suspect class,
and affects a fundamental right. Pl.’s Resp. 15, June 7, 2017, ECF No. 25. The City does not
address the Church’s argument that the Ordinance targets a suspect class, but it asserts that strict
scrutiny does not apply because under Seventh Circuit law, land use regulations on religious
assemblies do not affect a fundamental right unless they cause grave interference with or compel
acts undeniably at odds with important religious tenets. Def.’s Memo. in Supp. of Mot. to
Dismiss 8, ECF No. 18 (citing Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d
752, 766 (7th Cir. 2003)).
A suspect class is one that “possess[es] an immutable characteristic determined solely by
the accident of birth” or is “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

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command extraordinary protection from the majoritarian political process.” St. John’s, 502 F.3d
at 638 (citing Frontiero v. Richardson, 411 U.S. 677, 686 (1973); San Antonio Indep. Sch. Dist.
v. Rodriguez, 411 U.S. 1, 28 (1973)). The Seventh Circuit has held that although a religion may
qualify as a suspect class, “strict scrutiny has been reserved for laws that ‘discriminate among
religions.’” St. John’s, 502 F.3d at 638 (citing Corp. of the Presiding Bishop of the Church of
Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 339 (1987)).10 See also C.L.U.B. v. City
of Chicago, 157 F. Supp. 2d 903, 910-11 (N.D. Ill. 2001) (applying rational basis review to
ordinance affecting churches because “classification based upon the religious preferences of an
individual may trigger heightened scrutiny but a classification that merely touches upon religion
in general is subject to the standard rational basis equal protection review”).
The Seventh Circuit has also held that “the fundamental rights theory of heightened equal
protection scrutiny applies only to laws that effect grave interference with important religious
tenets or affirmatively compel congregants to perform acts undeniably at odds with fundamental
tenets of their religious beliefs.” Civil Liberties for Urban Believers, 342 F.3d at 766 (citing
Griffin High School v. Ill. High Sch. Athletic Ass’n, 822 F.2d 671, 674 (7th Cir. 1987)) (internal
quotations omitted). The Court further held that land use regulations which present obstacles to a
church’s ability to locate on a specific plot of land “do not regulate the right, let alone interfere
with the ability, of an individual to adhere to the central tenets of his religious beliefs.” Id.

10

In two cases that were decided before St. John’s, two courts in the Northern District of
Illinois applied strict scrutiny to ordinances that classified on the basis of religion but did not
discriminate among religions. See Vineyard Christian Fellowship, 250 F. Supp. 2d at 976; Love
Church v. City of Evanston, 671 F. Supp. 515, 518-19 (N.D. Ill. 1987). In Vineyard Christian
Fellowship of Evanston, though, the Court acknowledged that this approach was the minority
approach among courts. 250 F. Supp. 2d at 978 (“The court acknowledges that few other courts
have opted to apply strict scrutiny to zoning ordinances in analogous cases.”).

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Here, because the City’s Ordinance does not discriminate among religions and does not
gravely interfere with or regulate the ability of the Church’s members to adhere to the central
tenets of their religious beliefs, the Court will apply rational basis review rather than strict
scrutiny review. See St. John’s, 502 F.3d at 638; Civil Liberties for Urban Believers, 342 F.3d at
766. Under rational basis review, the plaintiff must prove that “(1) the state actor intentionally
treated plaintiffs differently from others similarly situated; (2) this difference in treatment was
caused by the plaintiffs’ membership in the class to which they belong; and (3) this different
treatment was not rationally related to the legitimate state interest.” Srail v. Vill. of Lisle, Ill., 588
F.3d 940, 943 (7th Cir. 2009) (citing Smith v. City of Chicago, 457 F.3d 650-51 (7th Cir. 2006)).
The City argues it is entitled to summary judgment on the equal protection claim because
the Church fails to identify any similarly situated comparator or to state plausible facts sufficient
to overcome the highly deferential rational basis standard of review. Def.’s Memo. in Supp. of
Mot. to Dismiss 10, ECF No. 18. Government conduct fails rational basis scrutiny only “if no
sound reason for the action can be hypothesized,” or it is “wholly impossible to relate to
legitimate governmental objectives.” Lauth v. McCollum, 424 F.3d 631, 634 (7th Cir. 2005). The
plaintiff must “negative every conceivable basis” that might support the challenged law, and it is
“entirely irrelevant” whether the conceived reason actually motivated the law maker. Monarch
Beverage Co., Inc. v. Cook, 861 F.3d 678, 681 (7th Cir. 2017) (citing Fed. Commc’ns Comm’n v.
Beach Commc’ns, Inc., 508 U.S. 307, 314-15 (1993)). “A classification does not fail rationalbasis review because it is not made with mathematical nicety or because in practice it results in
some inequality.” Srail, 588 F.3d at 946 (citing City of Chicago v. Shalala, 189 F.3d 598, 606
(7th Cir. 1999)).

19

The City argues that the Ordinance’s varied parking requirements for religious
assemblies, libraries, and theaters are rationally related to the legitimate state interest of
providing for adequate parking. Def.’s Memo. in Supp. of Mot. to Dismiss 10, ECF No. 18. The
City states that churches, theaters, and libraries draw different sized crowds, at different times in
the day, and in different areas of the city. Therefore, the City argues, it is rational to distinguish
among the land uses when determining parking requirements.11 For largely the same reasons that
the Church’s facial challenge failed, the Court finds that this is sufficient for the Ordinance to
pass the highly deferential standard of rational basis review. See Civil Liberties for Urban
Believers, 342 F.3d at 766-67 (holding that ordinance that treated churches differently was
rationally related to Chicago’s legitimate interest in regulating land use within its city limits and
therefore complied with the Equal Protection clause). It is not in the least “irrational” for the City
to anticipate that the parking demands of a church will be materially different than those of a
library. (And again, theaters might be a better comparator in regard to parking demands, but no
theaters are permitted within Subarea B, so they provide no basis for a complaint of unequal
treatment by the Church). The Court therefore grants the City’s motion for summary judgment
on the equal protection claim.
*

*

*

For the reasons stated above, the Court grants the City’s motion for summary judgment
on the RLUIPA equal-terms claim (Count I) and the 14th Amendment equal protection claim

11

In support of its equal protection claim, the Church does not argue that the City’s
Ordinance cannot survive rational basis review. Rather, it applies strict scrutiny review and
argues that the City cannot show that the Ordinance and the City’s application of the Ordinance
are narrowly tailored to further a compelling government interest. Pl.’s Resp. 16-17, June 7,
2017, ECF No. 25. Because the proper standard of review is rational basis, see supra at 19, the
Court does not address the Church’s arguments that the Ordinance fails strict scrutiny review.

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(Count II). The Court denies the Church’s motion for summary judgment and grants the Church
leave to file an amended complaint asserting an as-applied RLUIPA claim.

John J. Tharp, Jr.
United States District Judge

Date: September 22, 2017

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