Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama

980 F.3d 821

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 16, 2020
• Docket: 19-12418
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12418 ________________________

D.C. Docket No. 1:16-cv-00395-TFM-MU

THAI MEDITATION ASSOCIATION OF ALABAMA, INC., SIVAPORN NIMITYONGSKUL, VARIN NIMITYONGSKUL, SERENA NIMITYONGSKUL, PRASIT NIMITYONGSKUL,

Plaintiffs - Appellants,

versus

CITY OF MOBILE, ALABAMA,

Defendant - Appellee.

________________________

Appeal from the United States District Court for the Southern District of Alabama ________________________

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Before NEWSOM and BRANCH, Circuit Judges, and RAY,* District Judge.

NEWSOM, Circuit Judge:

Four individuals who incorporated the Thai Meditation Association of

Alabama, Inc., applied for zoning permits to construct a Buddhist meditation and

retreat center in a residential area of Mobile. Following expressions of intense

public opposition, the City denied the applications. The Association and its

incorporators sued, alleging violations of the Free Exercise and Equal Protection

Clauses of the United States Constitution, several provisions of the federal

Religious Land Use and Institutionalized Persons Act, the Alabama Constitution,

and state common-law principles. The district court rejected all of the plaintiffs’

claims.

Because we conclude that the district court erred in its analysis of the

plaintiffs’ claims under the Free Exercise Clause, RLUIPA’s substantial-burden

provision, and the Alabama Constitution, we vacate in part and remand for further

proceedings. We affirm the district court’s rejection of the plaintiffs’ remaining

* Honorable William M. Ray II, United States District Judge for the Northern District of Georgia, sitting by designation.

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I

A

Mobile’s zoning ordinance divides the city into 15 different types of

districts, specifying for each the uses permitted “by right” and those requiring

“planning approval.” A “church or religious facility” is permitted by right in all

business districts but needs planning approval to locate in a residential district.

Accordingly, before locating in a residential district, a church or religious facility

must obtain permission from the City’s Planning Commission, which is tasked

with determining whether the facility would be appropriate to the area.

Thai Meditation Association is an organization affiliated with the

Dhammakaya school of Buddhism, a sect of Theravada Buddhism headquartered

in Thailand. The Association’s purpose is “teaching and research into growth and

development of mind and spirit through meditation” and “expand[ing] the

knowledge of Buddhism.” Its adherents engage in prayer, meditation, various

religious ceremonies, and lectures. The Association hosts weekly meditation

classes that include discussions of Buddhist scriptures and morality.

The Association began operating in 2007 out of a home in Mobile. When a

neighbor complained that a meditation center wasn’t permitted by right in a

residential zone, the plaintiffs applied for the necessary planning approval. After

encountering stiff community opposition, though, the Planning Commission

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recommended denial of the plaintiffs’ request. In 2009, the Association relocated

to a shopping center in a business district where it didn’t need special zoning

permission. The move, though, brought difficulties. The plaintiffs contend that

the shopping-center location impedes their religious exercise in several ways—

among others, they say, the traffic noise from the busy street interferes with

meditation, the building is too small to accommodate classes and lectures, and the

facility provides no place to host visiting monks for overnight retreats.

In an effort to alleviate these difficulties, the plaintiffs searched for another

property on which to build a properly equipped meditation center. In 2015, they

located—and ultimately purchased—a 6.72-acre property on Eloong Drive. Like

their original location, the Eloong Drive property is in a residential district—

meaning that the plaintiffs needed planning approval before they could begin

construction.1 Accordingly, after purchasing the parcel—and the 5,000-square-

foot home situated on it—the plaintiffs submitted planning-approval applications

to construct a 2,400-square-foot meditation building, a 2,000-square-foot cottage to

1 Before purchasing the Eloong Drive property, the plaintiffs attended a predevelopment meeting with their attorney and two city planners to discuss the possibility of relocating the meditation center. The meeting’s purpose was to enable the City to gather information about proposed uses of the property and to educate the plaintiffs about the process for obtaining any necessary approvals. As relevant to this appeal, the plaintiffs assert that the city planners told them during the meeting that the meditation center would be treated as a religious facility for zoning purposes. The City disagrees and further emphasizes that although the plaintiffs originally made their purchase of the Eloong Drive property contingent on a determination that they had a right to construct a meditation building and guest houses for monks, they removed these contingencies before closing the sale.

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host visiting monks, a 600-square-foot restroom facility, and associated parking.

When the plaintiffs’ applications went before the Planning Commission, they were

met with strong community opposition. Some opponents emphasized traffic and

environmental concerns. Others were (to put it charitably) less charitable. During

one community meeting, for instance, attendees were “screaming and yelling,” “a

man was crying, saying that he was Christian [and that] this is unacceptable,” and

local residents said things like “We don’t want Buddhism” and “This is not a

church, this is a Buddhist temple, and we don’t need that.”

Residents separately questioned whether the plaintiffs’ proposed use of the

property was even religious—or whether, in fact, it envisioned a commercial

venture (similar to a yoga studio) that would be prohibited in a residential district.

The uncertainty surrounding the religious status of the Association’s operations

resulted, at least in part, from the Association’s sometime description of itself (in

promotional materials and elsewhere) as a “non-religious” organization. The

plaintiffs explain that, in context, the “non-religious” descriptor meant only that the

Association is “open to all” and “does not require rejection of the particular theistic

concepts that are central to Judeo-Christian notions of what is meant by ‘religion.’”

In any event, the Association’s religious-ness was questioned throughout the

zoning-application process, and the plaintiffs were required to submit

documentation to verify the Association’s religious bona fides—which, they say,

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the City had never required of a church. In the end, though, when the Planning

Commission ultimately considered the plaintiffs’ applications, it was urged to, and

seemingly did, apply the zoning standards pertinent to “church[es] or religious

facilit[ies].”

Citing concerns about site access, traffic, and compatibility with the

neighborhood, the Planning Commission unanimously denied the plaintiffs’

applications. The plaintiffs appealed to the City Council, which upheld the

Planning Commission’s decision following extensive discussion of both the

Association’s religious status and its neighborhood compatibility.

B

The plaintiffs subsequently filed this lawsuit in federal court, alleging that

the City’s denial of their applications violated (1) RLUIPA’s substantial-burden

provision, 42 U.S.C. § 2000cc(a)(1); (2) RLUIPA’s nondiscrimination provision,

42 U.S.C. § 2000cc(b)(2); (3) RLUIPA’s equal-terms provision, 42 U.S.C. §

2000cc(b)(1)2; (4) the First Amendment’s Free Exercise Clause; (5) the Fourteenth

2 The plaintiffs originally brought the three RLUIPA claims as both facial and as-applied challenges, but the district court granted the City’s motion to dismiss the facial components of those counts, so all that remains on appeal are the as-applied aspects of the RLUIPA claims.

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Amendment’s Equal Protection Clause; (6) the Alabama Constitution; and (7)

common-law principles forbidding negligent misrepresentations.

The parties filed dueling summary-judgment motions. The district court

granted the City’s motion with respect to the plaintiffs’ claims under RLUIPA’s

substantial-burden and equal-terms provisions, the Free Exercise Clause, and the

Alabama Constitution. Following a bench trial, the district court rejected the

plaintiffs’ claims under RLUIPA’s nondiscrimination provision, the Equal

Protection Clause, and the common law.

This is the plaintiffs’ appeal.3

II

On appeal, the plaintiffs contest each of the district court’s adverse rulings.

In particular, they contend that the district court erred in the following ways: (1)

holding that the City’s actions didn’t substantially burden their religious exercise in

3 We review “a district court’s grant of summary judgment de novo, applying the same legal standards used by the district court.” Seff v. Broward Cnty., Fla., 691 F.3d 1221, 1222 (11th Cir. 2012) (citation omitted). “In deciding whether a material disputed fact precludes summary judgment, a court generally must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Fla. Int’l Univ. Bd. of Trustees v. Fla. Nat’l Univ., Inc., 830 F.3d 1242, 1252 (11th Cir. 2016) (internal quotation marks and citation omitted). The district court’s findings regarding discriminatory intent—for purposes of the plaintiffs’ claims under RLUIPA’s nondiscrimination provision and the Equal Protection Clause—are governed by the deferential clear-error standard. See Pullman-Standard v. Swint, 456 U.S. 273, 290 (1982); Stout by Stout v. Jefferson Cnty. Bd. of Educ., 882 F.3d 988, 1006 (11th Cir. 2018). The court’s rejection of the plaintiffs’ negligent-misrepresentation claim is subject to clear-error review to the extent it turns on factual findings and de novo review to the extent it turns on conclusions of law. See Renteria-Marin v. Ag-Mart Produce, Inc., 537 F.3d 1321, 1324 (11th Cir. 2008).

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violation of RLUIPA and the Free Exercise Clause—specifically, they say, by

misapplying the standard for determining what constitutes a “substantial burden”;

(2) concluding that the plaintiffs failed to offer a similarly situated “comparator,”

necessary to their RLUIPA-based equal-terms claim; (3) misapplying the factors

relevant to determining whether the City acted with discriminatory intent, as

required for their claims under RLUIPA’s nondiscrimination provision and the

Equal Protection Clause; (4) misinterpreting the Alabama Constitution—in

particular, the Alabama Religious Freedom Amendment—to require that a burden

on religious exercise be “substantial” despite that term’s absence from the

provision’s text; and (5) misapplying Alabama law in rejecting their negligent-

misrepresentation claim.

We will first address the plaintiffs’ federal-law claims, and then turn our

attention to those arising under state law.

Among the plaintiffs’ federal claims, the parties focus principally on those

arising under RLUIPA’s substantial-burden provision and the Free Exercise

Clause. We will begin there, as well.

RLUIPA’s substantial-burden provision states as follows:

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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 interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc(a)(1) (emphasis added).

The parties here agree that our decision in Midrash Sephardi, Inc. v. Town of

Surfside, 366 F.3d 1214 (11th Cir. 2004), sets out the governing standard for

determining whether government action constitutes a “substantial burden” within

the meaning of § 2000cc(a)(1). 4 They disagree vigorously, however, about how to

read Midrash and whether the district court properly applied it here.

Before jumping into the meat of the substantial-burden issue, a threshold

question: Are the plaintiffs here engaged in “religious exercise” within the

meaning of RLUIPA? We think it clear that they are. Under the statute, “the term

4 Happily for us, the parties also agree (on appeal, anyway) that one of RLUIPA’s jurisdictional “hooks” is satisfied—in particular, that the alleged burden here was “imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes . . . individualized assessments of the proposed uses for the property involved.” 42 U.S.C. § 2000cc(a)(2)(C). The City regulates land use through its zoning ordinance, which, as explained, allows churches and religious facilities in business districts “by right” but requires “planning approval” to locate in certain residential districts, such as the one at issue here. The planning-approval process requires the City to determine whether a proposed use is appropriate to a particular district by examining an applicant’s specific proposal—i.e., by considering, among other things, transportation, traffic, parking, access, public utilities, and facilities. These planning-approval standards ultimately result in a case-by-case evaluation of each applicant’s proposal—in the statute’s words, an “individualized assessment[] of the proposed uses for the property involved.” 42 U.S.C. § 2000cc(a)(2)(C).

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‘religious exercise’ includes 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). Even

more closely on point here, RLUIPA expressly defines “[t]he use, building, or

conversion of real property for the purpose of religious exercise” to constitute

“religious exercise of the person or entity that uses or intends to use the property

for that purpose.” 42 U.S.C. § 2000cc-5(7)(B). We thus have no difficulty

agreeing with the district court that the plaintiffs’ “building a center with the

alleged purpose of teaching Dhammakaya meditation falls squarely within

RLUIPA’s definition of ‘religious exercise.’”

So then, on to the main event: Did the City’s denial of the plaintiffs’ zoning

applications impose a “substantial burden” on their religious exercise as that term

is used in RLUIPA and explained in Midrash? Well, maybe. What we know for

certain is that in holding that the plaintiffs had not demonstrated a substantial

burden, the district court misapplied the standard that we established in Midrash.

Rather than forging ahead to answer the substantial-burden question ourselves in

the first instance, we will correct the district court’s error and remand for a fresh

determination under the proper standard. Let us explain.

In Midrash, we held that a zoning ordinance excluding churches and

synagogues from a business district that allowed private clubs and lodges didn’t

violate RLUIPA’s substantial-burden provision. 366 F.3d at 1228. The two

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synagogues involved in that case argued that because Orthodox Judaism forbids

adherents to use cars or other means of transportation during the weekly Sabbath,

requiring the synagogues to relocate to a permitted district would put them “out of

the required walking range for a significant number of their members, particularly

elderly ones,” and thus substantially burden their religious exercise. Id. at 1221.

We disagreed. “While walking may be burdensome and ‘walking farther’ may be

even more so,” we held, “we cannot say that walking a few extra blocks is

‘substantial,’ as that term is used in RLUIPA.” Id. at 1228.

More important than our specific holding in Midrash—at least for purposes

of our decision today—was the way we explained the term “substantial burden.”

In doing so, we made several important observations. First, we emphasized that

because RLUIPA doesn’t define “substantial burden,” it must be given “its

ordinary or natural meaning.” Id. at 1226. Second, we said that preexisting Free

Exercise Clause precedent is “instructive in determining what Congress understood

‘substantial burden’ to mean in RLUIPA.” Id. On the one hand, we noted that we

had previously held “that an individual’s exercise of religion is ‘substantially

burdened’ if a regulation completely prevents the individual from engaging in

religiously mandated activity, or if the regulation requires participation in an

activity prohibited by religion.” Id. at 1227 (citing Cheffer v. Reno, 55 F.3d 1517,

1522 (11th Cir. 1995)). On the other hand, we clarified that a substantial burden

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“requires something more than an incidental effect on religious exercise.” Id.

Looking to “[t]he combined import of these articulations,” we concluded that “a

‘substantial burden’ must place more than an inconvenience on religious exercise,”

that “a ‘substantial burden’ is akin to significant pressure which directly coerces

the religious adherent to conform his or her behavior accordingly,” and that “a

substantial burden can result from pressure that tends to force adherents to forego

religious precepts or from pressure that mandates religious conduct.” Id.

The plaintiffs in this case contend that the City’s denial of their zoning

applications substantially burdens their religious exercise because, they say, at the

Association’s current location, the traffic noise interferes with meditation, the

building is too small to accommodate classes and lectures, and there is no place to

host visiting monks for overnight retreats. The district court rejected the plaintiffs’

contention. In so doing, though, the court misread Midrash and thus misapplied

RLUIPA’s substantial-burden provision.

Quoting one passage from Midrash, the district court observed that, “an

individual’s exercise of religion is ‘substantially burdened’ if a regulation

completely prevents the individual from engaging in religiously mandated activity

or if the regulation requires participation in an activity prohibited by religion.”

Dist. Ct. Order at 24 (quoting Midrash, 366 F.3d at 1227). Then, after analyzing

both parties’ arguments, the district court concluded that the plaintiffs had failed to

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meet “the binding Eleventh Circuit[] standard”—which, echoing another Midrash

passage, the court described as “whether Defendant has imposed pressure so

significant as to require Plaintiffs to forego their religious beliefs.” Id. at 36.

We see two problems. First, the district court’s articulation of the

substantial-burden standard—that, to qualify, a regulation must “completely

prevent[]” religious activity or “tend[] to force adherents to forego religious

precepts”—defies the “ordinary [and] natural meaning” of the term “substantial.”

Midrash, 366 F.3d at 1226. Whatever “substantial” means, it most assuredly does

not mean complete, total, or insuperable. See Roman Catholic Bishop of

Springfield v. City of Springfield, 724 F.3d 78, 96 (1st Cir. 2013) (observing that

“[a] burden does not need to be disabling to be substantial”); Westchester Day Sch.

v. Vill. of Mamaroneck, 504 F.3d 338, 349 (2d Cir. 2007) (explaining that “a

burden need not be found insuperable to be held substantial”).

Second, the district court misread our opinion in Midrash. We didn’t say

there that to count as a “substantial burden” government conduct must “completely

prevent[]” religious exercise. Nor did we say (as the district court here

paraphrased) that government conduct must “impose[] pressure so significant as to

require Plaintiffs to forego their religious beliefs.” To be sure, the “completely

prevents” and “force . . . to forego” passages that the district court invoked appear

in the Midrash opinion. But they appear only as examples of the sort of conduct

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that clearly satisfies the substantial-burden standard—not as the standard itself. In

the course of fleshing out the substantial-burden standard, we described bookend

examples of conduct that plainly would and wouldn’t meet it. At one end of the

spectrum, we explained that a mere “incidental effect” or “inconvenience” on

religious exercise doesn’t constitute a substantial burden. 366 F.3d at 1227. At the

other end, we said that “a substantial burden can result from pressure that tends to

force adherents to forego religious precepts or from pressure that mandates

religious conduct.” Id. (emphasis added). This latter form of conduct, our decision

made clear, is sufficient to demonstrate a substantial burden—but it is not, contrary

to the district court’s assumption here, necessary. The same holds for Midrash’s

“completely prevents” passage: All we said there—unremarkably—was that “[w]e

have held that an individual’s exercise of religion is ‘substantially burdened’ if a

regulation completely prevents the individual from engaging in religiously

mandated activity . . . .” Id. Again, a sufficient—but not necessary—basis for

demonstrating a substantial burden. Id.

The closest Midrash came to articulating a necessary condition—a baseline

standard—was its observation that “a ‘substantial burden’ is akin to significant

pressure which directly coerces the religious adherent to conform his or her

behavior . . . .” Id. And indeed, other circuits considering RLUIPA’s substantial-

burden provision have invoked Midrash in holding that a substantial burden exists

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when government action coerces or pressures religious adherents to “change [their]

behavior,” even if that coercion or pressure isn’t so extreme as to require them to

forgo their beliefs completely. Westchester Day Sch., 504 F.3d at 349 (defining

substantial burden as “government action that directly coerces the religious

institution to change its behavior, rather than government action that forces the

religious entity to choose between religious precepts and government benefits”)

(emphasis added) (citing Midrash, 366 F.3d at 1227); see also Bethel World

Outreach Ministries v. Montgomery Cnty. Council, 706 F.3d 548, 556 (4th Cir.

2013) (explaining that “a plaintiff can succeed on a substantial burden claim by

establishing that a government regulation puts substantial pressure on it to modify

its behavior”) (emphasis added) (citing Midrash, 366 F.3d at 1227).

To summarize, then, the district court here just latched onto the wrong

language in Midrash. Under our decision there, “a ‘substantial burden’ is akin to

significant pressure which directly coerces the religious adherent to conform his or

her behavior . . . .” Midrash, 366 F.3d at 1227. The “completely prevents” and

“force . . . to forego” passages simply describe conduct that would (unlike an

“incidental effect” or mere “inconvenience”) suffice to demonstrate a substantial

burden. Accordingly, it isn’t necessary for a plaintiff to prove—as the district

court here seemed to assume—that the government required her to completely

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surrender her religious beliefs; modified behavior, if the result of government

coercion or pressure, can be enough.

Rather than apply Midrash’s proper standard to the plaintiffs’ substantial-

burden claim ourselves, we will vacate and remand for the district court to do so in

the first instance. In determining whether the City’s denial of the plaintiffs’ zoning

applications was “akin to significant pressure which directly coerce[d the

plaintiffs] to conform [their] behavior,” the district court should consider, among

others, the following factors:

• whether the plaintiffs have demonstrated a genuine need for new or more space—for instance, to accommodate a growing congregation5 or to facilitate additional services or programming 6;

• the extent to which the City’s decision, and the application of its zoning policy more generally, effectively deprives the plaintiffs of any viable means by which to engage in protected religious exercise7;

5 See Bethel World Outreach, 706 F.3d at 558 (finding a substantial burden where insufficient space to accommodate a large congregation caused the church to have multiple, shorter services, thereby interfering with Communion and cutting short the church’s “Altar Call” practice); see also Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 898–901 (7th Cir. 2005); Int’l Church of Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1069 (9th Cir. 2011); Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 188–90 (2d Cir. 2014). 6 See, e.g., Jesus Christ is the Answer Ministries, Inc. v. Baltimore Cty., 915 F.3d 256, 261 (4th Cir. 2019) (observing that a burden is “usually” substantial where “where use of the property would serve an unmet religious need”), see also Bethel World Outreach, 706 F.3d at 552, 558 (providing educational programs and counseling at a church); Westchester Day Sch., 504 F.3d at 347–48, 352 (expanding the offerings at a religious school). 7 See, e.g., Bethel World Outreach, 706 F.3d at 557–58 (observing that a substantial burden may exist “even though other suitable properties might be available, because the ‘delay, uncertainty, and expense’ of selling the current property and finding a new one are themselves burdensome” (quoting Sts. Constantine & Helen, 396 F.3d at 899–901); Westchester Day Sch., 504 F.3d at 352 (considering whether the applicant has “quick, reliable, and financially feasible alternatives . . . 16 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 17 of 38

• whether there is a meaningful “nexus” between the allegedly coerced or impeded conduct and the plaintiffs’ religious exercise8;

• whether the City’s decisionmaking process concerning the plaintiffs’ applications reflects any arbitrariness of the sort that might evince animus or otherwise suggests that the plaintiffs have been, are being, or will be (to use a technical term of art) jerked around 9;

• whether the City’s denial of the plaintiffs’ zoning applications was final or whether, instead, the plaintiffs had (or have) an opportunity to submit modified applications that might satisfy the City’s objections 10; and

• whether the alleged burden is properly attributable to the government (as where, for instance, a plaintiff had a reasonable expectation of using its property for religious exercise 11) or whether the burden is instead self- imposed (as where the plaintiff had no such expectation or demonstrated an unwillingness to modify its proposal in order to comply with applicable zoning requirements12).

to meet its religious needs absent its obtaining the construction permit”). 8 See, e.g., Westchester Day Sch., 504 F.3d at 349 (“There must exist a close nexus between the coerced or impeded conduct and the institution’s religious exercise for such conduct to be a substantial burden on that religious exercise.”). 9 See, e.g., Westchester Day Sch., 504 F.3d at 352 (emphasizing that a zoning board’s decisionmaking was characterized by “an arbitrary blindness to the facts”); Roman Catholic Bishop of Springfield, 724 F.3d at 96–97 (observing that evidence that “regulators disregard[ed] objective criteria and instead act[ed] adversely to a religious organization based on the objections of a ‘small but influential’ group in the community” counsels in favor of finding a substantial burden (quoting Westchester Day Sch., 504 F.3d at 346)). 10 See, e.g., Westchester Day Sch., 504 F.3d at 349 (“[W]hether the denial of the application was absolute is important; if there is a reasonable opportunity for the institution to submit a modified application, the denial does not place substantial pressure on [a plaintiff] to change its behavior.”); see also Bethel World Outreach, 706 F.3d at 558 (emphasizing that whether the denial is conditional or absolute is a factor to consider in the substantial-burden analysis). 11 See, e.g., Jesus Christ is the Answer Ministries, 915 F.3d at 261; Bethel World Outreach, 706 F.3d at 557. 12 See, e.g., Guru Nanak Sikh Soc. of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 989–990 (9th Cir. 2006); see also Andon, LLC v. City of Newport News, Va., 813 F.3d 510, 515 (4th Cir. 2016); Livingston Christian Sch. v. Genoa Charter Twp., 858 F.3d 996, 1004 (6th Cir. 2017); Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007).

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If, based on such considerations, the district court concludes that the

plaintiffs have demonstrated that the City’s zoning decisions substantially

burdened their religious exercise, it must then proceed to determine whether the

City’s conduct satisfies strict scrutiny. See 42 U.S.C. § 2000cc(a)(1). It would be

premature for us to consider that issue now.

The plaintiffs also (and relatedly) contend that the City’s denial of their

zoning applications violated the First Amendment’s Free Exercise Clause. That

Clause—which applies to states and localities through the Fourteenth

Amendment—provides that “Congress shall make no law . . . prohibiting the free

exercise of religion.” U.S. Const. amend. I.

The district court rejected the plaintiffs’ Free Exercise Clause claim on

summary judgment. Rather, though, than independently evaluating the free-

exercise issue, the court simply cross-referenced its analysis of the plaintiffs’

substantial-burden claim under RLUIPA, concluding (1) that “the burdens

Plaintiffs experience are nothing more than inconveniences incidental to [the

City’s] denial of their [a]pplications,” and (2) that the City’s denial “does not

restrict Plaintiffs’ current religious practice but, rather, prevents a change in their

religious practice.” Because the district court expressly tethered its rejection of the

plaintiffs’ claim under the Free Exercise Clause to its treatment of their substantial-

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burden claim under RLUIPA, we will vacate and remand the free-exercise claim

for reconsideration alongside the substantial-burden claim.

The plaintiffs separately argue that the City’s rejection of their applications

violated RLUIPA’s equal-terms provision, which states that “[n]o 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). To be sure, Mobile’s zoning ordinance

doesn’t single out churches and religious organizations for unfavorable treatment;

rather, it lumps them in with other non-religious entities in requiring planning

approval for projects in residential districts. Nonetheless, we have held that even

“a truly neutral statute” can violate RLUIPA’s equal-terms provision if, as relevant

here, it “is selectively enforced against religious, as opposed to nonreligious,

assemblies or institutions.” Primera Iglesia Bautista Hispana of Boca Raton, Inc.

v. Broward Cnty., 450 F.3d 1295, 1308 (11th Cir. 2006). In order to prove an as-

applied equal-terms claim, a plaintiff “must present evidence that a similarly

situated nonreligious comparator received differential treatment under the

challenged regulation.” Id. at 1311 (emphasis omitted). “If a plaintiff offers no

similarly situated comparator, then there can be no cognizable evidence of less

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than equal treatment, and the plaintiff has failed to meet its initial burden of proof.”

Id.

Here, in an argument that can most charitably be described as summary—

occupying as it does only a single paragraph in their opening brief—the plaintiffs

assert that they were treated less favorably than The Alba Fishing and Hunting

Club, which they assert is a valid comparator.

Even though Alba is located in the same basic vicinity as the plaintiffs’

Eloong Drive property, the district court rejected it as a valid comparator for two

reasons. First, the court explained that unlike the plaintiffs here, Alba “was not

seeking to put its property to a new use” but, rather, sought permission to expand

its long-time use of the same parcel as a recreational club. In particular, Alba

sought planning approval “to allow the expansion of an existing recreation club,”

to replace a portion of its clubhouse damaged by Hurricane Katrina, and to add a

meeting hall to the site. Second, and relatedly, the court emphasized that Alba was

not a new entrant into the neighborhood but, rather, “ha[d] been associated with

[its current] location since 1921, before the area was incorporated into the City of

Mobile.”

We agree with the district court that those two features suffice to distinguish

Alba for comparator purposes. Although both Alba and the plaintiffs here sought

planning approval for special use in a single-family residential district, they did so

20 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 21 of 38

for different reasons—Alba to repair and expand an existing club, and the plaintiffs

here to construct an entirely new facility. It seems to us clear that repairing and

expanding an existing facility differs from building an entirely new structure on

(and introducing an entirely new use of) a piece of property: In the former

situation, the applicant has a reasonable expectation that its preexisting use was—

and remains—acceptable to and harmonious with the surrounding area, whereas

the applicant in the latter situation does not. That is especially true here, where

Alba’s ownership and use of its property dates to a time before it was incorporated

into Mobile, and thus necessarily to a time when it wasn’t even subject to the

presently prevailing zoning restrictions. See Chabad Lubavitch of Litchfield Cnty.,

Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 196–98 (2d Cir. 2014)

(concluding that a library was not a proper comparator for religious organization’s

RLUIPA equal-terms claim in part because its expansion was approved 50 years

earlier “pursuant to a different land use regime”).

Because of these material distinctions between the two organizations, the

plaintiffs have shown only that they “received different treatment, not unequal

treatment,” which isn’t enough. Primera, 450 F.3d at 1313. We therefore affirm

the district court’s rejection of the plaintiffs’ equal-terms claim.

21 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 22 of 38

Rounding out their federal claims, the plaintiffs contend that the City

discriminated against them on the basis of religion in violation of RLUIPA’s

nondiscrimination provision and the Fourteenth Amendment’s Equal Protection

Clause. The former states that “[n]o government shall impose or implement a land

use regulation that discriminates against any assembly or institution on the basis of

religion or religious denomination,” 42 U.S.C. § 2000cc(b)(2), and the latter

provides that “[n]o State shall . . . deny any person within its jurisdiction the equal

protection of the laws,” U.S. Const. amend. XIV, § 1.

The district court allowed the plaintiffs’ nondiscrimination and equal-

protection claims to proceed beyond summary judgment but ultimately rejected

both following a bench trial. In so doing, the court analyzed the two claims

together, reasoning that the governing legal standards are “nearly identical.” As

relevant here, the district court concluded that the plaintiffs hadn’t demonstrated—

based on the factors set out in Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252 (1977)—that the City officials who had

rejected their applications were motivated by discriminatory intent.13

13 The district court separately held that the plaintiffs had failed to identify a similarly situated religious institution to serve as a comparator for their RLUIPA-based nondiscrimination claim. On appeal, the plaintiffs contend that RLUIPA doesn’t require a comparator for nondiscrimination claims. We needn’t address that issue, because even if we were to assume that a comparator isn’t required, we would affirm the rejection of the plaintiffs’ nondiscrimination and equal-protection claims on the ground, explained in text, that they haven’t 22 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 23 of 38

The plaintiffs agree that “[d]iscriminatory intent must be proven for both”

their nondiscrimination and equal-protection claims—they simply contend that the

evidence adduced at trial sufficed to show it. See Br. of Appellant at 35. But

because the district court ruled against them following a bench trial, the plaintiffs

have a steep hill to climb on appeal. As we have recently reiterated, we review a

district court’s findings concerning the existence—or absence—of discriminatory

intent only for clear error. See Stout by Stout v. Jefferson Cnty. Bd. of Educ., 882

F.3d 988, 1006 (11th Cir. 2018). Under that deferential standard, “[i]f the district

court’s account of the evidence is plausible in light of the record viewed in its

entirety, the court of appeals may not reverse it even [if] convinced that had it been

sitting as the trier of fact, it would have weighed the evidence differently.” Id.

(citations and quotations omitted).

In Arlington Heights, the Supreme Court provided a list of considerations

that bear on the question whether discriminatory intent was a “motivating factor”

in an allegedly discriminatory decision. 429 U.S. at 265–66. A reviewing court

may consider, for instance, (1) any disproportionate “impact” caused by the

decision, (2) the decision’s “historical background,” (3) the “specific sequence of

events leading up” to the decision, (4) “departures from the normal”

shown that the district court clearly erred in finding a lack of discriminatory intent.

23 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 24 of 38

decisionmaking process, and (5) any “legislative or administrative history” in the

form of contemporary statements by the decisionmakers. Id. at 266–68.

Drawing principally on the historical-background and legislative-history

factors, the plaintiffs here emphasize that there was strong community opposition

to the meditation center’s location in a residential district and that City officials

“respon[ded]” to that opposition by rejecting the zoning applications. And indeed,

the record is replete with evidence that could reasonably be understood as

reflecting local residents’ anti-Buddhist sentiment. A sampling of residents’

statements from a November 2015 community meeting concerning the plaintiffs’

proposal is illustrative. Witnesses testified, for instance, that—

• “a man was crying, saying that he was Christian [and that] this is unacceptable”;

• “[o]ne person stood up and said: ‘Oh, so you’re bringing a big Buddhist congregation into the area, are you?’”;

• another said, “[w]e don’t want Buddhism”;

• one objected, “[t]his is not a church, this is a Buddhist temple, and we don’t need that”; and

• another complained, “[w]e don’t need [Buddhism]—this is not a Buddhist neighborhood.”

It’s not enough, though, for the plaintiffs to show that community members

opposed their applications on prohibited grounds—they must prove that the city

officials who rejected them acted with discriminatory intent. And we cannot

24 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 25 of 38

attribute the residents’ purported bias to city officials absent at least some proof

that the officials “ratified” it. See Hallmark Devs., Inc. v. Fulton Cnty., Ga., 466

F.3d 1276, 1285 (11th Cir. 2006). The closest, it seems, that the plaintiffs can get

to hard evidence that any city official harbored discriminatory intent is the

following remark by the City’s attorney: “This is not a religious facility. The

application was for Meditation Center of Alabama or whatever. This is not the

Baptist church or the Episcopal church.” But even that statement isn’t sufficient

because the fate of the plaintiffs’ applications rested in the hands of the Planning

Commission and the City Council, and we have held that we won’t impute the

discriminatory intent of one or a few decisionmakers to the entire group—let alone,

as here, of a subordinate non-decisionmaker to the final decisionmakers. See

Matthews v. Columbia Cnty., 294 F.3d 1294, 1297–98 (11th Cir. 2002).

The plaintiffs separately emphasize Arlington Heights’ sequence-of-events

and departure-from-the-normal-process factors, arguing that “[n]o other church

applicant has ever had to prove that it was sufficiently ‘religious.’” Br. of

Appellant at 41. We see two problems. First, the plaintiffs fail to recognize that

what they call “the religious issue”—i.e., the need to determine whether the center

was indeed a “religious facility” within the meaning of the City’s zoning code—

arose, as the district court found, because the Association had in the past repeatedly

referred to itself as a “non-religious organization” and to meditation as a

25 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 26 of 38

“nonreligious . . . technique.” To be sure, the plaintiffs insist that those descriptors

meant only that the Association is “open to all” and “does not require rejection of

the particular theistic concepts that are central to Judeo-Christian notions of what is

meant by ‘religion.’” Be that as it may, the uncertainty caused by the

Association’s own marketing tends to undercut the inference that requiring it to

demonstrate its own religious-ness bespeaks discrimination. Second, and

separately, whatever confusion initially attended “the religious issue,” the evidence

indicates (1) that the plaintiffs’ counsel, the Planning Commission’s lawyer, and

the Planning Commission’s chairman all urged the Commission to judge the

plaintiffs’ applications by the criteria applicable to “religious facilit[ies],” and (2)

that the Commission did so.

In sum, having reviewed the relevant record evidence, we simply cannot

conclude that the district court committed clear error in finding that the plaintiffs

failed to prove that a majority of the members of either the Planning Commission

or the City Council acted with an intent to discriminate against them on the basis of

religion. Accordingly, we affirm the district court’s rejection of the plaintiffs’

claims under RLUIPA’s nondiscrimination provision and the Equal Protection

Clause.

* * *

26 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 27 of 38

To recap our decisions concerning the plaintiffs’ federal claims—before

addressing those arising under state law—we hold that the district court applied the

wrong standard in evaluating the plaintiffs’ claims under RLUIPA’s substantial-

burden provision and the Free Exercise Clause, and that the court should

reconsider those claims on remand under the proper standard, but that the district

court properly rejected the plaintiffs’ claims under RLUIPA’s equal-terms and

nondiscrimination provisions and the Equal Protection Clause.

We turn, then, to the plaintiffs’ state-law claims. The plaintiffs contend that

the City’s denial of their zoning applications (1) violated the Alabama

Constitution—in particular, the Alabama Religious Freedom Amendment—and (2)

constituted common-law negligent misrepresentation. The district court rejected

both contentions—the first on summary judgment, the second following a bench

trial. We will review them in turn.

The Alabama Religious Freedom Amendment was ratified in 1998 and is

now codified at § 3.01 of the Alabama Constitution. In relevant part, ARFA’s

operative provision states as follows:

(a) Government shall not burden a person’s freedom of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

27 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 28 of 38

(b) Government may burden a person’s freedom of religion only if it demonstrates that application of the burden to the person:

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling interest.

Ala. Const. Art. I, § 3.01(V). The plaintiffs emphasize that ARFA’s text—unlike

RLUIPA’s—doesn’t require proof that the government “substantially” burdened

religious exercise, only that it “burden[ed]” it. Thus, they insist, the Alabama

Constitution requires strict scrutiny of any burden on religious exercise, even if

that burden is insubstantial.

The district court disagreed. It “interpret[ed] ARFA in light of the case law

decided under RLUIPA” and thus came to “the same conclusion [it] reached in

Plaintiffs’ federal Substantial Burden claim: Plaintiffs’ claim would be

unsuccessful.” Importantly for present purposes, the district court expressly

“refuse[d] to hold a government violates ARFA when its actions incidentally”—

rather than substantially—“burden a plaintiff’s religious exercise.” “To hold that

‘any’ burden includes those that are minimal, insignificant, or incidental,” the court

held, would be “to adopt an interpretation that runs afoul of the judiciary’s efforts

in controlling the floodgates of litigation.”

The plaintiffs’ ARFA claim thus tees up an important and sensitive question

of state law: Is the Alabama Constitution markedly more protective of religious

28 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 29 of 38

exercise than federal law in that it requires a plaintiff to show, as prerequisite to the

application of strict scrutiny, only that government action “burdened”—rather than

“substantially burdened”—his religious exercise?

Before rushing headlong into that state-law briar patch, a word about the

possibility of certifying this question to the Alabama Supreme Court:

Certification, frankly, was our preference—so much so, in fact, that, having raised

the issue with the parties at oral argument, we directed them to file supplemental

briefs addressing the possibility. This, after all, strikes us as precisely the sort of

question that a state court should definitively resolve: It is purely legal, it

implicates fundamental constitutional and public-policy interests, and it is

unsettled—as the district court observed, “there is little to no Alabama case law

providing guidance on what [ARFA] means.” Regrettably, though, we have

concluded that the question doesn’t satisfy the certification standard under

Alabama Rule of Appellate Procedure 18. In relevant part, that rule states that a

federal court may certify a question when three conditions are met: (1) the question

is one concerning the “law of this State” (i.e., Alabama); (2) the question is

“determinative of said cause”; and (3) “there are no clear controlling precedents”

from the Alabama Supreme Court. Ala. R. App. P. 18(a).

While we are convinced that the question whether ARFA requires a plaintiff

to show only that the government has “burdened” (rather than “substantially

29 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 30 of 38

burdened”) religious exercise meets the first and third conditions, we are equally

convinced that it doesn’t meet the second. The phrase “determinative of said

cause” is hardly self-defining. (In fact, it’s downright opaque—for instance, there

isn’t even an earlier “cause” to which the phrase refers, as the adjective “said”

would suggest.) As other courts interpreting similar provisions have observed,

though, the phrase could be understood in any of several ways—e.g., determinative

of the entire case as to all parties, determinative of the case with respect to one

party or group of parties, determinative of a single identifiable claim, or (perhaps)

determinative of a key legal issue. See, e.g., Volvo Cars of N. Am., Inc. v. Ricci,

137 P.3d 1161, 1163–64 (Nev. 2006) (comparing competing interpretations of the

phrase “determinative of [the] cause” in state certification provisions); see also

17A Wright & Miller, Fed. Prac. & Proc. § 4248 (3d ed. 2020) (same).

Here, it seems clear that none of the first three possibilities is satisfied. Not

only is the “burden” question not determinative of the entire case, it’s not even

determinative of the plaintiffs’ ARFA claim. No matter how the burden question

comes out, either party could ultimately go on to prevail on the merits. Even if the

plaintiffs are correct that a mere (i.e., insubstantial) burden is sufficient to trigger

ARFA’s protections, the City could still (at least theoretically) win by surviving

strict scrutiny. And even if the City is right that a substantial burden is required,

the plaintiffs could nonetheless win by showing that the City’s zoning decisions

30 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 31 of 38

constitute a substantial burden and don’t satisfy strict scrutiny. Either way—

however the burden question is answered—there’s more work to be done to decide

how the plaintiffs’ ARFA claim should be resolved. Accordingly, we must

conclude that the burden question isn’t “determinative” of either the entire case or

even of the plaintiffs’ ARFA claim.

So among the possible interpretations of the phrase “determinative of said

cause,” the only one that the burden question could satisfy is “determinative of [a

key issue]” (or the like). Unfortunately, we don’t think that “determinative of said

cause” can be read so broadly. First, and most obviously, doing so just stretches

the ordinary meaning of the word “cause” too far. See, e.g., Black’s Law

Dictionary (11th ed. 2019) (defining “cause,” in relevant part, to mean “[a]

lawsuit; a case”). Second, we find it significant that (1) many states modeled their

certification provisions on a 1967 uniform act that permitted certification of

questions that “may be determinative of the cause,”14 (2) in 1995 the uniform-act

drafters “substantially broadened the provision’s scope by altering the language to

permit certification when a question’s answer ‘may be determinative of an issue in

pending litigation,’”15 (3) multiple states have adopted the 1995 act’s “issue”-based

framing, but (4) Alabama has not (yet) followed suit.

14 Unif. Certification of Questions of Law Act (1967 Act) § 1, 12 U.L.A. 86 (1996) (amended 1995). 15 Volvo, 137 P.3d at 1164 n.2; see also Unif. Certification of Questions of Law Act (1995 Act) § 31 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 32 of 38

So alas, it seems that the certification option is off the table—and it thus falls

to us to interpret ARFA for ourselves. Two cardinal rules of construction convince

us that the plaintiffs’ “burden-only” reading is the better one. First, under Alabama

law—as in the law more generally—the words employed in a written provision

“must be given their natural, plain, ordinary, and commonly understood meaning,

and where plain language is used a court is bound to interpret that language to

mean exactly what it says.” IMED Corp. v. Sys. Eng’g Assocs. Corp., 602 So. 2d

344, 346 (Ala. 1992); accord, e.g., Antonin Scalia & Bryan A. Garner, Reading

Law: An Interpretation of Legal Texts 56, 69 (2012). Second, under Alabama

law—again, as in the law more generally—a court “cannot supply words purposely

omitted.” State v. Calumet & Hecla Consol. Copper Co., 66 So. 2d 726, 729 (Ala.

1953); accord, e.g., Pace v. Armstrong World Indus., Inc., 578 So. 2d 281, 284 –

85 (Ala. 1991) (“[G]enerally courts may neither insert words in the statute . . . .”);

Scalia & Garner, supra, at 93.

ARFA is perfectly clear both in what it says and in what it doesn’t. First,

what it says: ARFA repeatedly states that, except in extraordinary circumstances,

the government may not “burden” religious exercise. In its “findings” section,

ARFA provides that “[g]overnments should not burden religious exercise without

3, 12 U.L.A. 73 (1996 & Supp. 2006).

32 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 33 of 38

compelling justification.” Ala. Const. Art. I, § 3.01(II)(3) (emphasis added). So

too, in its “purpose” section, ARFA declares its objective “to guarantee that the

freedom of religion is not burdened by state and local law” and to provide a claim

or defense to those whose “religious freedom is burdened by government.” Id. §

3.01(III) (emphasis added). Finally, and most importantly, ARFA’s operative

provision states (1) that, as a general matter, “[g]overnment shall not burden a

person’s freedom of religion even if the burden results from a rule of general

applicability” and (2) that “[g]overnment may burden a person’s freedom of

religion only if” it satisfies the traditional strict-scrutiny standard. Id. §

3.01(V)(a)–(b) (emphasis added).

So what doesn’t ARFA say? It never once uses the phrase “substantial

burden.” And given the historical backdrop against which ARFA was adopted, the

absence of the term “substantial” is so conspicuous that we can only conclude that

its omission was intentional. In 1997, the U.S. Supreme Court invalidated

RLUIPA’s predecessor, the federal Religious Freedom Restoration Act—at least

insofar as it applied to the states—in City of Boerne v. Flores, 521 U.S. 507

(1997). The very next year, the Alabama Legislature proposed ARFA, and the

people of Alabama ratified it as part of the state constitution. One of the legislative

findings underlying ARFA—indeed, the only one that doesn’t track RFRA’s own

findings—makes it clear that ARFA was adopted in response to the Supreme

33 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 34 of 38

Court’s decision in Boerne, and to fill a void left by RFRA’s invalidation:

“Congress passed the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, to

establish the compelling interest test set forth in prior federal court rulings, but in

City of Boerne v. Flores, 117 S. Ct. 2157 (1997), the United States Supreme Court

held the act unconstitutional stating that the right to regulate was retained by the

states.” Ala. Const. Art. I, § 3.01(II)(6).

Not surprisingly, therefore, ARFA reads like a carbon copy of the stricken

RFRA—with one very notable exception: In every place that RFRA employed the

term “substantial burden,” ARFA uses “burden.” The following side-by-side

comparison of RFRA and ARFA, we think, speaks for itself, and confirms that the

use of the term “burden” in place of the more familiar “substantial burden” was

deliberate:

34 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 35 of 38

Section RFRA ARFA

Findings The Congress finds that … governments The Legislature makes the following findings should not substantially burden concerning religious freedom: … religious exercise without compelling Governments should not burden religious justification …. exercise without compelling justification.

42 U.S.C. § 2000bb(a)(3) Ala. Const. Art. I, § 3.01(II)(3)

Purposes The purposes of this chapter are (1) to The purpose of the Alabama Religious restore the compelling interest test … Freedom Amendment is [1] to guarantee that and to guarantee its application in all the freedom of religion is not burdened by cases where free exercise of religion is state and local law; and [2] to provide a claim substantially burdened; and (2) to or defense to persons whose religious freedom provide a claim or defense to persons is burdened by government. whose religious exercise is substantially burdened by government.

42 U.S.C. § 2000bb(b)(1)–(2) Ala. Const. Art. I, § 3.01(III)

Operative (a) Government shall not substantially (a) Government shall not burden a person’s Provision burden a person’s exercise of religion freedom of religion even if the burden results even if the burden results from a rule of from a rule of general applicability, except as general applicability, except as provided provided in subsection (b). in subsection (b).

(b) Government may substantially (b) Government may burden a person’s burden a person’s exercise of religion freedom of religion only if it demonstrates only if it demonstrates that application that application of the burden to the person … of the burden to the person … (1) is in (1) [i]s in furtherance of a compelling furtherance of a compelling governmental interest; and (2) [i]s the least governmental interest; and (2) is the restrictive means of furthering that compelling least restrictive means of furthering that governmental interest. compelling governmental interest.

42 U.S.C. § 2000bb-1 Ala. Const. Art. I, § 3.01(V)

Given the post-RFRA context in which ARFA was adopted, and its pointed

rejection of the phrase “substantially burden” in favor of “burden” simpliciter, we

conclude that qualifier’s omission was intentional. No matter how tempting it may

be—whether to harmonize state and federal law or, as the district court suggested,

to “control[] the floodgates of litigation”—we aren’t at liberty to graft the adverb

“substantially” onto a provision (or set of provisions) that won’t accommodate it.

35 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 36 of 38

Under Alabama law, our job (giving it our best Erie guess) is to “interpret

[ARFA’s] language to mean exactly what it says.” IMED Corp., 602 So. 2d at

346. And what ARFA says is that any burden—even an incidental or insubstantial

one—suffices to trigger strict scrutiny.

Accordingly, we vacate the district court’s decision rejecting the plaintiffs’

ARFA claim and remand for further proceedings consistent with our interpretation.

Finally, the plaintiffs briefly contend that the city planners’ statement during

the predevelopment meeting that their proposal for the Eloong Drive property

would be treated as a “religious” use for zoning purposes constituted an actionable

negligent misrepresentation under Alabama law. In order to establish a negligent-

misrepresentation claim, a plaintiff must demonstrate “(1) a misrepresentation of

material fact, (2) made willfully to deceive, recklessly, without knowledge, or

mistakenly, (3) which was reasonably relied on by the plaintiff under the

circumstances, and (4) which caused damage as a proximate consequence.” Bryant

Bank v. Talmage Kirkland & Co., Inc., 155 So. 3d 231, 238 (Ala. 2014) (citations

omitted).

Following the bench trial, the district court found (1) that the city planners

hadn’t told the plaintiffs that their meditation center would be treated as a religious

facility, (2) that the plaintiffs hadn’t shown that the city planners intended to

36 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 37 of 38

deceive them, (3) that the plaintiffs had “failed to demonstrate the element of

reasonable reliance” because they “conclusively knew” that the final determination

rested with the Planning Commission and the City Council, and (4) that the

plaintiffs had “failed to demonstrate any damages” because their applications were

ultimately considered under the planning-approval criteria applicable to religious

facilities. The district court thus found that the plaintiffs had failed to prove every

element of their negligent-misrepresentation claim.

On appeal, the plaintiffs take issue with each of the district court’s

determinations, but they haven’t shown any reversible error. With respect to the

district court’s finding that the planners hadn’t told them that their center would be

treated as a religious facility, for instance, all the plaintiffs say is that it is

contradicted by testimony at trial. But the plaintiffs haven’t provided any basis for

concluding, as they must, that the district court’s no-misrepresentation finding was

clearly erroneous. Nor, we conclude, have the plaintiffs provided any good reason

for rejecting either of the district court’s “in any event” determinations—namely,

(1) that the plaintiffs knew that the fate of their applications ultimately rested with

the Planning Commission and the City Council, and, thus, that they couldn’t have

reasonably relied on statements made by city planners during preliminary

meetings; and (2) that the plaintiffs’ application was ultimately considered under

the religious-facility planning-approval criteria anyway, and, thus, that they

37 USCA11 Case: 19-12418 Date Filed: 11/16/2020 Page: 38 of 38

couldn’t prove any damages based on any supposed contrary statement during the

pre-planning stages.

Accordingly, we affirm the district court’s rejection of the plaintiffs’

negligent-misrepresentation claim.

Recapping our determinations concerning the plaintiffs’ state-law claims, we

hold that the district court misread the Alabama Religious Freedom Amendment

and should reconsider the plaintiffs’ ARFA claim under our interpretation, but that

the court correctly rejected the plaintiffs’ negligent-misrepresentation claim.

III

For the foregoing reasons, we vacate the district court’s decision rejecting

the plaintiffs’ claims under RLUIPA’s substantial-burden provision, the Free

Exercise Clause, and the Alabama Religious Freedom Amendment. We affirm the

district court’s rejection of the plaintiffs’ remaining claims.

VACATED and REMANDED in part and AFFIRMED in part.