1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-30-1994

Brown et al. v. Borough of Mahaffrey, et al.

Precedential or Non-Precedential:

Docket 93-3063

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Recommended Citation

"Brown et al. v. Borough of Mahaffrey, et al." (1994). 1994 Decisions. Paper 148.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/148
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 94-3063 

 

 ANDREW D. BROWN and ABUNDANT LIFE MINISTRIES, 

 Appellants 

v. 

 BOROUGH OF MAHAFFEY, PENNSYLVANIA, a municipal corporation, 

 JOHN M. BAKAYSA, PAUL MAHAFFEY, FRANK ELLING, JOHN BRACKEN, 

 KIMBERLY STRUBLE, POLLY BELL, KENNETH BEE, 

 RODGER JOHNSON and FRANCIS P. RUFFLEY, 

 Appellees 

 

 On Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 (D.C. Civil No. 93-40J) 

 

 Argued: July 25, 1994 

 Before: BECKER and ALITO, Circuit Judges

 and BRODY, District Judge*

 (Filed: September 30, 1994) 

 JOSEPH E. BUCKLEY, JR. (Argued) 

 100 Main Street 

 Brookville, PA 15825 

 Attorney for Appellants

 PAMELA G. COCHENOUR (Argued) 

 ROBERT E. DAPPER 

 Pietragallo, Bosick & Gordon 

 38th Floor, One Oxford Center 

 Pittsburgh, PA 15219 

 Attorney for Appellees

 

 * Hon. Anita B. Brody, United States District Judge for the 

Eastern District of Pennsylvania, sitting by designation. 
 

 OPINION OF THE COURT 

 

BRODY, District Judge, 

 Plaintiffs, a Pentecostal minister and his non-profit 

incorporated ministry, appeal the grant of summary judgment on 

their claims under 42 U.S.C. §§ 1983 and 1985(3) alleging that a 

municipal borough and its council members violated their free 

exercise and other rights by intentionally impeding access to 

their tent revival meetings. The District Court granted summary 

judgment on the Free Exercise count because the plaintiffs had 

not introduced sufficient evidence that the Borough's actions 

placed a "substantial burden" on plaintiffs' religious exercise. 

Because we believe that the pivotal issue in a case alleging 

deliberate interference with religious activity is not the extent 

of the burden on religious exercise, but instead whether the 

defendants intended to impose a burden, we reverse the grant of 

summary judgment on the Free Exercise claim, and remand to the 

District Court for reconsideration of the record consistent with 

our holding. 

I.

 Taking all inferences to be drawn from the evidence in 

a light most favorable to the plaintiffs/appellants, Matsushita 

Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 585-589 
(1986), the following events can be gleaned from the record 

before us. 

 Plaintiffs Reverend Andrew D. Brown and his Abundant 

Life Ministries arranged to conduct Pentecostal tent revival 

meetings in the Borough of Mahaffey from August 2-7, 1992. The 

plaintiffs had permission to hold the meetings on property owned 

by the Penn Central Corporation, which lies adjacent to a 

baseball park owned by the Borough called "Scout Park." Scout 

Park and the Penn Central property are divided by a dirt road 

owned by the Borough. Reverend Brown was also negotiating to 

purchase the Penn Central property. 

 At a Borough council meeting held shortly before the 

scheduled revival meetings the council members discussed a 

petition to erect a gate separating Scout Park from the Penn 

Central property. At the same meeting the council discussed how 

to handle plaintiffs' planned revival meetings. See Deposition 

of council member Bakaysa. The council summoned Reverend Brown 

to the meeting to discuss his plans for the revival. The 

discussion escalated into argument. Brown also informed the 

council that he was negotiating to purchase the Penn Central 

property. Defendant Bakaysa acknowledged that this circumstance 

angered the Council members.1 The council members informed 

 

 

1 The District Court also found that council members 

"upbraided Brown with abusive language." This fact does not 

appear in the record before us. 
Reverend Brown of their intention to erect gates between the 

properties. A gate was erected on July 29, 1992. 

 The parties eventually agreed that the gates would be 

opened each evening to accommodate the meetings. The first two 

revival meetings occurred without event. At the third meeting, 

on Tuesday, August 4, 1992, the plaintiffs found the gates 

locked. Attendees of that night's meeting were unable to drive 

up to the tent; instead, they were forced to park outside the 

gate and walk 100 to 200 feet to reach the tent. Plaintiffs 

contend that disabled individuals seeking the Ministry's faith 

healing were among the expected attendees, and may have been 

deterred from further attendance during the week because of the 

difficulty in reaching the tent. Council member Bakaysa 

testified that he was aware that disabled individuals were among 

the expected worshippers. Council members represented that they 

had intentionally locked the gate because of noise and activity 

on the site late at night on Monday. Plaintiffs were never 

informed of the council members' decision to lock the gate. 

 After discussion between the parties, the Borough 

agreed to open the gate for the rest of the planned meetings; it 

did so on Wednesday and Thursday. On Friday, August 7, 1992, the 

plaintiffs again encountered a locked gate that they attempted to 

break open. Council member Kim Struble came over, and offered to 

open the gate; according to the plaintiffs the offer was made in 

a mocking manner. The plaintiffs continued to try to break the 
gate open. Struble contacted council member Bakaysa who brought 

a state police officer to the scene. The dispute was eventually 

resolved with Bakaysa and Reverend Brown agreeing that Reverend 

Brown would repair the gate, and the Borough promising not to 

press vandalism charges. 

 After the final revival meeting, on August 7, the 

plaintiffs who remained behind to clean up and pack the equipment 

found their egress blocked by the gate being locked again. 

Reverend Brown testified that he had earlier observed council 

members and police officers at the gate, and heard pounding at 

the gate preceding the time when he discovered the gate locked. 

The next morning, the plaintiffs opened the gate by breaking the 

bolt with a sledgehammer in order to remove their equipment. 

 In February, 1993, the Borough bought the Penn Central 

Property from Penn Central Corporation. Defendants acknowledge 

becoming more motivated to purchase the property after becoming 

aware of the plaintiffs' hopes of purchasing the property. 

 The plaintiffs sued individual council members and the 

Borough under federal civil rights laws, 42 U.S.C. §§ 1983 and 

1985(3), the Equal Protection Clause of the Fourteenth Amendment, 

and Pennsylvania law for damages and injunctive relief, alleging 

the following counts: Free Exercise of Religion under the First 

Amendment; Freedom of Association under the First Amendment; 

Invasion of Privacy under the First and Fourteenth Amendments; 

Establishment Clause under the First Amendment; Equal Protection; 
a general "constitutional tort" invasion under §§ 1983 and 

1985(3); the Pennsylvania Human Relations Act; False 

Imprisonment; and Breach of Contract; and Interference with 

Prospective Economic Advantage. 

 The District Court granted summary judgment on all 

counts. The plaintiffs appealed the court's holding on 

plaintiffs' Free Exercise, Establishment Clause, Equal 

Protection, and "constitutional tort" counts. 

II.

 The core of plaintiffs' Free Exercise contention is 

that the Borough manifested hostility towards their religious 

activity by intentionally locking the gate to impede access to 

the revival meetings. See Appellants' Brief at 11. The Free 

Exercise Clause of the First Amendment provides that Congress 

"shall make no law . . . prohibiting the free exercise of 

[religion]"; at its undisputed minimum this command enjoins 

government from intentionally burdening religious worship. Cf.

Grosz v. City of Miami Beach, Florida, 721 F.2d 729, 733-34 (11th 

Cir. 1983), cert. denied, 469 U.S. 827 (1984) ("governmental 

action violates the Constitution if it is based upon disagreement 

with religious tenets or practices, or is aimed at impeding 

religion"); see also Robert H. Bork, The Supreme Court and the 

Religious Clauses, Proceedings of the National Religious Freedom 

Conference of the Catholic League for Religious and Civil Rights 

83, 84 (1988) ("The free exercise clause might have been read 
simply to prohibit laws that directly and intentionally penalize 

religious observance. Instead, [it has] been read to have far 

greater breadth and severity."). Indeed, "it was 'historical 

instances of religious persecution and intolerance that gave 

concern to those who drafted the Free Exercise Clause.'" Church 

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 

2217, 2226 (1993) (citation omitted). This common understanding 

of the Free Exercise Clause has resulted in the circumstance that 

"few States would be so naive as to enact a law directly 

prohibiting or burdening a religious practice as such." 

Employment Division, Department of Human Resources of Oregon v. 

Smith, 494 U.S. 872, 894 (1990) (O'Connor, J. concurring). 

 The District Court ruled that plaintiffs' Free Exercise 

claim failed because "even assuming that plaintiffs' suspicions 

about the defendants biases and motivations are true . . . the 

plaintiffs have not adduced evidence of a 'substantial burden'", 

as required by the Religious Freedom Restoration Act, 42 U.S.C. § 

2000. This analysis is inappropriate for a free exercise claim 

involving intentional burdening of religious exercise. The 

"substantial burden" requirement was developed in the Supreme 

Court's free exercise jurisprudence, and codified in the 

Religious Freedom Restoration Act, 42 U.S.C. § 2000, in order to 

balance the tension between religious rights and valid government 

goals advanced by "neutral and generally applicable laws" which 

create an incidental burden on religious exercise. See
Employment Division, 494 U.S. at 894 (O'Connor, J. concurring) 

("we have respected both the First Amendment's express textual 

mandate and the governmental interest in regulation of conduct by 

requiring the government to justify any substantial burden on 

religiously motivated conduct . . . "). See also Michael W. 

McConnell, The Origins and Historical Understanding of Free 

Exercise of Religion, 103 HARV. L. REV. 1409 (1990). The rare 

cases which address acts or laws which target religious activity 

have never limited liability to instances where a "substantial 

burden" was proved by the plaintiff. See e.g. Lukumi Babalu Aye, 

113 S. Ct. 2217. Applying such a burden test to non-neutral 

government actions would make petty harassment of religious 

institutions and exercise immune from the protection of the First 

Amendment. A burden test is only necessary to place logical 

limits on free exercise rights in relation to laws or actions 

designed to achieve legitimate, secular purposes. Because 

government actions intentionally discriminating against religious 

exercise a fortiori serve no legitimate purpose, no balancing 

test is necessary to cabin religious exercise in deference to 

such actions. 

 Accordingly, the determinative issue for the trial 

court on summary judgment was not whether the plaintiffs had 

proffered sufficient evidence to create a material issue of fact 

regarding the extent of the burden created -- a test which the 

plaintiffs fail -- but instead whether there is sufficient 
evidence to create a material issue of fact regarding whether the 

defendants intentionally impeded the plaintiffs' religious 

activity. We therefore remand to the District Court for a 

determination, based on consideration of the entire record, of 

whether the plaintiff has introduced sufficient evidence on the 

issue of intentional targeting to resist summary judgment. 

III.

 The other issues raised by plaintiffs on appeal 

constitute little more than a repackaging of the free exercise 

count to fit other constitutional labels. The Establishment 

Clause of the First Amendment restricts government capacity to 

favor a religion, or religion in general. The plaintiffs contend 

that the hostility displayed and the impediments imposed on their 

own religious exercise translates into favoritism towards every 

other religion. This logic would transform every viable free 

exercise action into an Establishment Clause claim. Such a 

circumstance finds no support in Establishment Clause 

jurisprudence. 

 A government action is subject to "strict scrutiny" 

under the Equal Protection Clause of the Fourteenth Amendment if 

it discriminates against a "suspect class," or if it interferes 

with a "fundamental right." Kardmas v. Dickinson Public Schools, 

487 U.S. 450, 457-58 (1988). The plaintiffs argue that the 

violation of their fundamental right to free exercise of religion 

constitutes an equal protection violation. However, in order to 
maintain an equal protection claim with any significance 

independent of the free exercise count which has already been 

raised, the plaintiffs must also allege and prove that they 

received different treatment from other similarly situated 

individuals or groups. City of Cleburne v. Cleburne Living 

Center, 473 U.S. 432 (1985); Andrews v. City of Philadelphia, 895 

F.2d 1469, 1478 (3d Cir. 1990); Jordan v. Jackson, 15 F.3d 333, 

355 (4th Cir. 1994) The plaintiffs have proffered no evidence to 

that effect. 

 In addition to the alleged Free Exercise, Establishment 

Clause, and Equal Protection claims, the plaintiffs state a 

separate claim under 42 U.S.C. §§ 1983 and 1985 (3) for 

"constitutional torts by and of themselves." Brief of Appellants 

at 31. The plaintiffs must assert a specific federal 

constitutional or statutory right in order to maintain a claim 

under the civil rights laws. See Albright v. Oliver, 114 S. Ct. 

807, 811 (1994) ("[t]he first step in any [1983] claim is to 

identify the specific constitutional right infringed"). The 

plaintiffs have asserted several constitutional violations; they 

cannot attach a "catch-all" tort claim as a fallback if those 

specific constitutional claims fail. 

IV. 

 We will therefore reverse the District Court's grant of 

summary judgment on the plaintiffs' free exercise claim and 

remand that issue to the District Court for proceedings 
consistent with this opinion. We will affirm on all other 

counts.