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8th Circuit leaves a light on for religious school land-use case

Scott Lauck//December 26, 2019

8th Circuit leaves a light on for religious school land-use case

Scott Lauck//December 26, 2019

A federal appeals court said a Catholic high school in Kirkwood didn’t face religious discrimination under federal law when the city barred it from lighting its baseball field at night. But the school’s claim under a similar Missouri religious-freedom law will live to fight another day.

In 2015, St. John Vianney High School in Kirkwood installed a new outdoor lighting system for its baseball field at a cost of about $235,000. Neighbors complained that the lights violated a 2012 zoning code revision that limits how much light a property owner can cast onto nearby residential properties.

Vianney, an all-male Marianist Catholic high school located in Kirkwood since 1960, argued that the city’s refusal to allow the school to use its lighting system violated the federal Religious Land Use and Institutionalized Persons Act.

The 8th U.S. Circuit Court of Appeals ruled on Dec. 13, however, that the school “has not shown that its religious exercise will be substantially burdened by being limited to using its baseball field only during daylight hours, as it has for decades.”

The case marks the 8th Circuit’s first look at the land-use aspects of the religious-protection law, known as RLUIPA. Following similar rulings in the 6th, 9th and 11th circuits, the court held that the school was not being forced to violate its religious beliefs, only to pursue those beliefs in other ways.

“As the district court noted, Vianney has alternative times and locations, such as at its baseball field during the day and its football and soccer facility at night, to carry out its religious mission,” Judge Raymond W. Gruender wrote. Judges Duane Benton and Bobby E. Shepherd concurred.

The school had argued that the local public high school is allowed to use a lighting system at its football field that doesn’t meet the lighting code. But the court said that system was installed before the code revisions were passed in 2012, so it was grandfathered in. Vianney also has a lighted football field that predates the change to the code, which it also is still able to use without restriction.

The school separately had claimed that the lighting restrictions violated Missouri’s Religious Freedom Restoration Act. The U.S. District Court for the Eastern District of Missouri had granted summary judgment to Kirkwood on that count as well, but the 8th Circuit reversed that decision and said that claim should return to state court for further litigation.

Gruender wrote that Missouri’s RFRA “appears more protective of religious exercise” than similar laws at the federal level. He also cited the “dearth of case law” interpreting that statute, as the only Missouri case to consider it was issued earlier this year and has nothing to do with land use.

In February, the Missouri Supreme Court turned aside a challenge to Missouri’s 72-hour waiting period for abortions, brought by a plaintiff who alleged the law violated her religious rights as a member of The Satanic Temple. The court found the law does not adopt any religious tenet.

“Due to the different language of the Missouri RFRA statute and the lack of state-court explanations of it, the comity interests strongly favor declining [federal] jurisdiction,” Gruender wrote.

John M. Hessel of Lewis Rice, an attorney for the city, said in an interview that the language used in the federal and the state statutes was similar enough that he doubted that a Missouri RFRA claim on these facts would end any differently.

“It’s a distinction without a difference,” he said.

Daniel Paul Dalton of Dalton & Tomich in Detroit, whose firm specializes in religious land-use cases, represented the school. While he’d hoped the case would be resolved in federal court, he said the ability to continue the case in state court was encouraging, though he still hoped to work out an agreement with the city.

“We’re really hoping the city looks at this in the broader context of the history of a school that’s been in the city of Kirkwood for over half a century and, providing the good that it does to the community, that it would allow the school to exercise its religious ministry,” he said.

Dalton also said it was important that the court, citing RLUIPA’s broad definition of “religious exercise,” didn’t quibble with the school’s argument that its night-time baseball games serve a religious purpose. The school said the sport serves its mission of “forming young men for spiritual, academic and personal excellence in the Catholic, Marianist tradition,” and that the games allow it to reach out to the community.

“It’s significant from the standpoint that they recognized that what the school does, whether it’s athletics or schooling or ministry, is all part of their religious exercise,” Dalton said.

But Hessel said that, given the outcome of the case, the court didn’t really need to delve further into the issue. He called himself a supporter of the school and a fan of baseball, but he said the inability to play baseball under lights at night wasn’t a substantial burden on the school’s religion.

“The sun’s up a lot,” he said.

The case is Marianist Province of the U.S. v. City of Kirkwood, 18-3076.

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