In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4418

ST. JOHN’S UNITED CHURCH OF CHRIST,

HELEN RUNGE, and SHIRLEY STEELE,

Plaintiffs-Appellants,

v.

THE CITY OF CHICAGO, the FEDERAL

AVIATION ADMINISTRATION, and MARION C.

BLAKELY, Administrator of the

Federal Aviation Administration,

Defendants-Appellees.

____________

Nos. 05-4450 & 05-4451

VILLAGE OF BENSENVILLE, VILLAGE OF

ELK GROVE, ROXANNE MITCHELL, REST

HAVEN CEMETERY ASSOCIATION,

ROBERT PLACEK, and LEROY H. HEINRICH,

Plaintiffs-Appellants,

v.

THE CITY OF CHICAGO, the FEDERAL

AVIATION ADMINISTRATION, and

MARION C. BLAKELY, Administrator of

the Federal Aviation Administration,

Defendants-Appellees.
2 Nos. 05-4418, 05-4450 & 05-4451

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 3726—David H. Coar, Judge.

____________

ARGUED JANUARY 10, 2006; JUNE 7, 2006—

DECIDED SEPTEMBER 13, 2007

____________

Before BAUER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge. Mention Chicago to almost any

person who has been on an airplane, and that person will

immediately think of Chicago’s O’Hare International

Airport. It is one of the busiest airports in the world: in

2005, more than 76.5 million passengers passed through

its facilities, along with 1.7 million tons of freight. See

http://www.flychicago.com/events/KidsPage2006/OHareH

istory.shtm (last visited August 27, 2007). It is also of

central importance to the economy of Chicago and Northern Illinois, generating approximately 514,000 jobs for

the region and nearly $37 billion a year in economic

development. Id. Responding to growth in demand for

O’Hare’s services, the Illinois General Assembly passed

the O’Hare Modernization Act (OMA), 620 ILCS 65/5, in

2003, in order to improve and expand the airport. This

case deals with certain land acquisitions contemplated

by that legislation.

We consolidated these appeals for decision because each

raises challenges to the same district court order in

lawsuits filed by objectors to the modernization project. In

that order, the court denied a motion for leave to file a

second amended complaint (for all but one count) and

refused to enjoin the City of Chicago’s plan to acquire

each plaintiff’s property in order to build additional
Nos. 05-4418, 05-4450 & 05-4451 3

1 The main issue before the D.C. Circuit concerned whether the

FAA had violated the federal Religious Freedom Restoration Act

(RFRA), 42 U.S.C. § 2000bb et seq., by approving the City’s plan

and determining that the plan was eligible for federal funding.

As an “agency . . . of the United States,” § 2000bb-2(1), the FAA,

unlike the City, falls within the scope of RFRA and thus must

meet the requirements of strict scrutiny when its actions

substantially burden exercise of someone’s religion. The D.C.

Circuit considered whether any potential burden on the exercise of religion in this case could be fairly attributable to the

FAA by virtue of its having approved the City’s plan. Because

“[t]he expansion plan for the airport, which is owned by the City,

was prepared and will be implemented by the City, which is

prepared to proceed without federal funds if necessary,” the court

found that it was the City, not the FAA, that was responsible for

any potential burden on religion that resulted from the plan.

Bensenville, 457 F.3d at 57. It thus rejected the RFRA claims

against the FAA without reaching the question whether the FAA

had shown a compelling governmental interest supporting its

decision.

runways at O’Hare. In appeal number 05-4418, the St.

John’s United Church of Christ and two of its parishioners

(collectively, St. John’s) challenge the district court’s

denial of their motions for leave to file a second amended

complaint and for a preliminary injunction. St. John’s

claims that the City’s attempt to condemn a cemetery

located on church property violates the First Amendment’s

Free Exercise Clause, the Fourteenth Amendment’s

Equal Protection Clause, and the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C.

§ 2000cc et seq. We consider only the claims St. John’s

has asserted against the City; its claims against the

Federal Aviation Administration (FAA) were resolved in

the FAA’s favor by the court of appeals for the District of

Columbia Circuit in Village of Bensenville v. FAA, 457 F.3d

52 (D.C. Cir. 2006).1
4 Nos. 05-4418, 05-4450 & 05-4451

In appeal number 05-4450, the Villages of Bensenville

and Elk Grove (Municipal Plaintiffs) contend that the

district court erred in concluding that it lacked jurisdiction to review their claims against the FAA. Lastly, in

appeal number 05-4451, we consider the challenge of the

Rest Haven Cemetery Association and two members of its

board of directors (collectively, Rest Haven) to the district

court’s dismissal of the first amended complaint. Rest

Haven was not named in the proposed second amended

complaint because the City no longer plans to acquire its

cemetery. The district court concluded, for that reason,

that its claim was moot; Rest Haven disagrees with that

assessment. In Rest Haven’s appeal, we also consider

the same question raised by the Municipal Plaintiffs,

namely, whether the district court had jurisdiction to

consider Rest Haven’s claims against the FAA. We conclude that the district court navigated its way through

these complex issues successfully, and we thus affirm its

judgment in all respects.

I

In the summer of 2001, the U.S. Senate Commerce,

Energy, and Transportation Committee held hearings in

Chicago to discuss the ways in which delays at O’Hare

contribute to excessive aviation delays throughout the

United States. During the course of these hearings, the

Committee strongly hinted that if the City of Chicago and

the State of Illinois did not reach a decision on airport

expansion before September 1, 2001, Congress would

likely intervene.

On June 29, 2001, the City announced its plan to

increase O’Hare’s capacity; this plan later developed into

the O’Hare Modernization Program (OMP). The OMP

proposed to correct some of the inefficiencies created by

the airfield’s outdated configuration of seven intersecting
Nos. 05-4418, 05-4450 & 05-4451 5

runways (which include a “runway triangle” created by the

three original intersecting runways that lie north of the

present terminals) by creating six parallel and two

crosswind runways. The proposed design resembles the

more effective runway architecture that has been employed

at Hartsfield-Jackson Atlanta International Airport and

the Dallas/Fort Worth International Airport. In contrast

to the current layout of intersecting runways, in which

the ability to use one runway is limited by whether an

aircraft is using any of the others, the proposed configuration would permit a constant stream of take-offs and

landings on each parallel runway, regardless of the

activity that may simultaneously be occurring on adjacent runways.

On December 5, 2001, the Mayor of Chicago and the

Governor of Illinois announced that they had reached an

agreement on the central components of the proposed

OMP. Shortly thereafter, the FAA submitted its Notice

of Intent to Prepare an Environmental Impact Statement (EIS), which is a “detailed analysis . . . conducted to

determine if, or the extent to which, a particular agency

action will impact the environment.” Heartwood, Inc. v.

United States Forest Serv., 230 F.3d 947, 949 (7th Cir.

2000). All federal agencies are required to prepare an

EIS for any “major Federal actions significantly affecting the quality of the human environment.” See the

National Environmental Policy Act (NEPA), 42 U.S.C.

§ 4332(2)(C).

In June of 2002, the City announced its plan to acquire

433 acres of land located in the Villages of Elk Grove and

Bensenville, two municipalities adjacent to O’Hare, in

anticipation of the airport’s expansion. A wide variety of

properties were scheduled for condemnation, including

a number of homes and businesses, a police and fire

station, an elementary school, several parklands, and the

two cemeteries at issue here—St. Johannes and Rest
6 Nos. 05-4418, 05-4450 & 05-4451

Haven, owned by the St. John’s United Church of Christ

and the Rest Haven Cemetery Association, respectively.

The Municipal Plaintiffs responded by filing suit in state

court seeking both a declaration that any effort to acquire

the desired property without first obtaining a “certificate

of approval” from the Illinois Department of Transportation was beyond the City’s authority under the Illinois

Aeronautics Act, see 620 ILCS 5/47, and a preliminary

injunction preventing the City from proceeding with its

land acquisition plan. On July 9, 2002, the Circuit Court

of DuPage County granted the municipalities’ requested

relief; the Illinois Appellate Court affirmed its decision.

See Philip v. Daley, 790 N.E.2d 961 (Ill. App. Ct. 2003).

Faced with this setback, the City turned to Springfield

and the Illinois General Assembly for help. It was successful in persuading the legislature to enact the OMA in May

of 2003. See 620 ILCS 65/5. The Act’s statement of findings and purposes notes the importance of O’Hare to

both the state and national air transportation system and

affirms the necessity of acquiring adjacent properties

as part of the modernization program. See OMA § 5(a)(1),

(2), (5). In addition, the Act proclaims that “[i]t is the

intent of the General Assembly that all agencies of this

State and its subdivisions shall facilitate the efficient

and expeditious completion of the O’Hare Modernization Program to the extent not specifically prohibited by

law, and that legal impediments to the completion of the

project be eliminated.” OMA § 5(b).

The Act specifically addresses the issue of acquisition of

property in several places. It does so generally in section

15, which grants to the City “[i]n addition to any other

powers the City may have, and notwithstanding any other

law to the contrary,” the power to 

acquire by gift, grant, lease, purchase, condemnation . . . or otherwise any right, title, or interest in any

private property, property held in the name of or
Nos. 05-4418, 05-4450 & 05-4451 7

belonging to any public body or unit of government, or

any property devoted to a public use, or any other

rights or easements, including any property, rights, or

easements owned by the State, units of local government, or school districts, including forest preserve

districts, for purposes related to the O’Hare Modernization Program.

OMA § 15. Lest there be any doubt on the particular topic

of cemeteries, the Act continues: “The powers given to the

City under this Section include the power to acquire, by

condemnation or otherwise, any property used for cemetery purposes within or outside of the City, and to require

that the cemetery be removed to a different location.” See

also id. § 92 (amending the Illinois Municipal Code, 65

ILCS 5/11-51-1, to make it clear that the City of Chicago

need not obtain the consent of a cemetery’s owner in order

to exercise its powers under § 15 of the OMA, even though

such consent is normally required).

The OMA amends many statutes—indeed, as counsel for

the City argued, it seems to have amended every statute

that someone thought might stand in the way of the OMP.

Thus, for example, it amends the Downstate Forest

Preserve District Act, 70 ILCS 805/5e, OMA § 93; the Vital

Records Act, 410 ILCS 535/21, OMA § 93.5; the Illinois

Aeronautics Act, 620 ILCS 5/38.01, OMA § 94; and the

Code of Civil Procedure, 735 ILCS 5/2-103, OMA § 95.

Among these many modifications is the one that is central

to this litigation: the addition of a new section 30 to the

Illinois Religious Freedom Restoration Act (IRFRA), 775

ILCS 35/1 et seq. OMA § 96. The IRFRA provides generally

that the “[g]overnment may not substantially burden a

person’s exercise of religion, even if the burden results

from a rule of general applicability, unless it demonstrates

that application of the burden to the person (i) is in

furtherance of a compelling governmental interest and (ii)

is the least restrictive means of furthering that compelling

governmental interest.” 775 ILCS 35/15. That broad
8 Nos. 05-4418, 05-4450 & 05-4451

language was qualified by the new section 30, which

states: “Nothing in this Act [i.e. IRFRA] limits the authority of the City of Chicago to exercise its powers under

the [OMA] for the purpose of relocation of cemeteries or

the graves located therein.” 775 ILCS 35/30.

On May 30, 2003, shortly after the legislature enacted

the OMA, the Municipal Plaintiffs, St. John’s, and Rest

Haven filed suit in the United States District Court for

the Northern District of Illinois against the City of Chicago, Mayor Richard M. Daley, the State of Illinois,

Governor Rod Blagojevich, and both the FAA and its

administrator alleging a number of violations of federal

law. On June 19, 2003, Plaintiffs filed an amended complaint. Most of the counts of the amended complaint

challenged the City’s plan to acquire land before the FAA

issued its EIS or Record of Decision (ROD). Additionally,

all of the Plaintiffs alleged that the City, along with the

Mayor, violated NEPA and its implementing regulations, the National Historic Preservation Act (NHPA), 16

U.S.C. § 470, et seq., § 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c), as well as provisions of the

Administrative Procedures Act, 5 U.S.C. § 706.

In the amended complaint, St. John’s and Rest Haven

also asserted a number of claims based on religion against

the City. They alleged that the City, in proposing to

condemn their cemeteries without demonstrating a

compelling governmental interest and use of the least

restrictive mechanism, as IRFRA ordinarily requires,

violated their constitutional rights under the Free Exercise

Clause of the First Amendment and the Equal Protection

Clause of the Fourteenth Amendment. These plaintiffs

charged that the City is “targeting” their religious activities and posing a substantial burden on their ability to

practice their religion. Plaintiffs also alleged that the

City’s plan to condemn their cemeteries violated the

federal Religious Land Use and Institutionalized Persons
Nos. 05-4418, 05-4450 & 05-4451 9

Act (RLUIPA), 42 U.S.C. § 2000cc et seq. Additionally, they

asserted violations of the Fifth Amendment’s Takings

Clause and the Fourteenth Amendment’s Due Process

clause. Finally, these Plaintiffs raised similar religionbased claims against the State of Illinois and Governor

Blagojevich, and against the FAA and its administrator,

including an allegation that the FAA violated the federal

RFRA. On March 29, 2005, the district court dismissed

the State of Illinois and Governor Blagojevich from the

case on Eleventh Amendment immunity grounds.

As this suit was pending before the district court, the

parties entered into a court-approved order under which

the City agreed that it would not acquire property in

Bensenville and Elk Grove, including the St. John’s and

Rest Haven Cemeteries, until the FAA issued an EIS or a

ROD. At the end of 2003, the City began to move forward

with other components of its plan to expand O’Hare,

seeking FAA approval for over $1.3 billion in federal funds

for “Phase One” of the OMP. Specifically, the City requested about $300 million in airport improvement

program discretionary funds, $63 million in entitlement

funds, and over $1 billion in Passenger Facility Charge

(PFC) funds. Phase One of the project was to include the

demolition of the cemeteries, as well as other property

in the villages. In late July of 2005, the FAA issued its

final EIS, which compared the environmental impact of

the City’s proposal with other alternatives and concluded

that the City’s airport plan, with some minor revisions,

was the preferred course. The EIS also reviewed the legal

issues raised by St. John’s and Rest Haven, ultimately

concluding that if the City’s plan was approved in the

ROD, the St. Johannes Cemetery would be relocated, while

the Rest Haven Cemetery would not.

On September 30, 2005, the FAA issued its ROD granting the City’s request for approval of its airport layout

plan. The ROD considered St. John’s RFRA claims and
10 Nos. 05-4418, 05-4450 & 05-4451

concluded that although the acquisition and relocation

of the St. Johannes cemetery was likely to burden the

exercise of the parishioners’ religion substantially, the City

had a compelling interest in relocating the cemetery in

order to make O’Hare more efficient. The same day that

the FAA issued its ROD, the Municipal Plaintiffs and

St. John’s filed a petition for review of the EIS and ROD

in the D.C. Circuit. Their petition alleged, among other

things, that the FAA’s approval of the airport layout plan

violated a number of provisions of federal law, including

the First and Fifth Amendments and RFRA. Along

with their petition for review, the Plaintiffs filed an

emergency motion for a stay pending appeal and a motion

for an administrative stay, which the D.C. Circuit granted.

Rest Haven was not a party to this litigation.

In light of the FAA’s approval of the airport layout plan

and the claims pending before the D.C. Circuit, the district

court issued an order to show cause why certain parties

and claims should not be dismissed. Given that the Rest

Haven Cemetery had by then been excluded from the OMP

and that the City was not challenging this step, the

district court suggested that Rest Haven should voluntarily dismiss itself from the suit. The district court also

ordered the Plaintiffs to show cause why Mayor Daley

should not be dismissed from the suit, because suing him

in his official capacity and suing the City of Chicago

amounted to the same thing. The district court also

questioned its jurisdiction to review claims asserted

against the FAA involving the ROD.

Before the district court issued its show cause order,

however, the FAA informed the D.C. Circuit that it

planned to award the City the $363 million in discretionary funds it had requested to begin the implementation of

the first phase of the OMP. It made this announcement

despite the fact that it had not yet formally rendered a

decision granting the City’s request. The City argued
Nos. 05-4418, 05-4450 & 05-4451 11

that in the absence of the FAA’s final order rendering a

decision on funding, the court was without jurisdiction to

consider Plaintiffs’ NEPA and RFRA claims. On October

25, 2005, the D.C. Circuit denied St. John’s and the

Municipal Plaintiffs’ emergency motion for a stay pending

appeal, determining that they had not demonstrated

either the irreparable injury or the likelihood of success

on the merits required for the issuance of a stay pending

review. At that point, the court did not address the

jurisdictional question.

On October 26, 2005, St. John’s and the Municipal

Plaintiffs returned to the district court and filed a motion

for leave to file a second amended complaint. Rest Haven

was not listed as a party to the motion for leave to file

the second amended complaint. The proposed second

amended complaint included a claim that the FAA had

violated the Freedom of Information Act (FOIA), 5 U.S.C.

§ 552, et seq., when it allegedly ignored the Plaintiffs’

requests for documents relating to O’Hare’s expansion. On

October 31, 2005, St. John’s filed a motion for a temporary

restraining order and a motion for a preliminary injunction, seeking to halt all action on the City’s part while

all these challenges were pending. The district court

entered a temporary restraining order as it reviewed

these motions.

After filing these motions in district court, the Plaintiffs

then filed a docketing statement of issues in the D.C.

Circuit. In addition to the claims they raised against the

FAA before the district court, Plaintiffs asked the D.C.

Circuit to decide whether it was improper for the FAA to

fail to rule on Chicago’s funding applications, whether the

FAA had issued an unlawful ROD, and whether their

First Amendment and RFRA claims were entitled to de

novo review of disputed factual questions in an Article III

court.
12 Nos. 05-4418, 05-4450 & 05-4451

At that juncture, the district court dismissed Rest Haven

from the litigation. Because the City no longer planned to

acquire the Rest Haven Cemetery, and because Rest

Haven did not present any argument explaining why or

how it might be affected by either the City’s or the FAA’s

actions in their response to the order to show cause, the

district court held that its claims were moot. The court

also dismissed Mayor Daley from the litigation, concluding that the Plaintiffs had not responded to the issue it

raised in the order to show cause (whether it was redundant to sue both the City and the Mayor in his official

capacity). The Plaintiffs do not challenge the dismissal of

Mayor Daley from this suit on appeal.

With respect to St. John’s religious claims against the

City, the district court concluded that the Plaintiffs failed

to state a claim upon which relief could be granted under

the Free Exercise Clause or the Equal Protection Clause.

It found that the OMA was constitutional on its face and

that there was no indication that any of the City’s proposed actions were motivated by St. John’s religious

affiliation. The district court also denied St. John’s motion

for leave to file a second amended complaint with respect

to these claims, finding them to be similarly lacking.

Additionally, the district court dismissed all counts of the

complaint that pertained to RLUIPA, concluding that

the City’s plan to condemn the St. Johannes Cemetery

was not a “land use” regulation as contemplated by that

statute.

The district court also dismissed the bulk of St. John’s

and the Municipal Plaintiffs’ claims against the FAA and

its administrator. It concluded that it lacked jurisdiction to review challenges to the FAA’s actions concerning

the ROD because under 49 U.S.C. § 46110, those claims

fell within the exclusive jurisdiction of the court of appeals. Indeed, as the court recognized, the D.C. Circuit

was already considering these claims. After dismissing
Nos. 05-4418, 05-4450 & 05-4451 13

these claims, all that remained was St. John’s and the

Municipal Plaintiffs’ FOIA claim, for which the district

court granted the motion for leave to file a second amended

complaint. Given the dismissal of virtually all of the

Plaintiffs’ claims against the City and the FAA, the district court vacated the temporary restraining order and

denied the motion for a preliminary injunction as moot.

Plaintiffs have appealed from that decision. See 28 U.S.C.

§ 1292(a)(1).

II

We review de novo the district court’s grant of a motion

to dismiss under Rule 12(b)(6) for failure to state a claim

upon which relief can be granted, accepting as true “all of

the factual allegations contained in the complaint.”

Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (quoting

Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965

(2007)). We may affirm the dismissal only if the complaint fails to set forth “enough facts to state a claim to

relief that is plausible on its face.” Bell Atlantic, 127 S. Ct.

at 1974. As we held in Airborne Beepers & Video, Inc. v.

AT&T Mobility LLC, 2007 WL 2406859 (7th Cir. Aug. 24,

2007), a district court should dismiss a complaint if “the

factual detail . . . [is] so sketchy that the complaint does

not provide the type of notice of the claim to which the

defendant is entitled under Rule 8.” Id. at *5. A district

court’s decision whether to allow a party to file a second

amended complaint, however, is reviewed for abuse of

discretion. See Doherty v. Davy Songer, Inc., 195 F.3d 919,

927 (7th Cir. 1999).

With respect to the district court’s decision that St.

John’s motion for a preliminary injunction is moot, we

review the court’s “findings of fact for clear error, its

balancing of the factors for a preliminary injunction

under the abuse of discretion standard, and its legal
14 Nos. 05-4418, 05-4450 & 05-4451

conclusions de novo.” Linnemeir v. Bd. of Trs. of Purdue

Univ., 260 F.3d 757, 761 (7th Cir. 2001). In assessing

whether a preliminary injunction is warranted, we must

consider whether the party seeking the injunction has

demonstrated that “1) it has a reasonable likelihood of

success on the merits; 2) no adequate remedy at law

exists; 3) it will suffer irreparable harm if it is denied; 4)

the irreparable harm the party will suffer without injunctive relief is greater than the harm the opposing party

will suffer if the preliminary injunction is granted; and

5) the preliminary injunction will not harm the public

interest.” Id.

III

Before turning to the merits, we must address two

jurisdictional issues that the Municipal Plaintiffs and

Rest Haven have raised. The first is whether the district

court erred in dismissing with prejudice all claims brought

by Rest Haven as moot, because the City no longer plans

to acquire that cemetery. Second is the question whether

the district court correctly dismissed the Municipal Plaintiffs’ claims against the FAA for lack of jurisdiction based

upon 49 U.S.C. § 46110. We review de novo the district

court’s grant of a motion to dismiss for lack of subject

matter jurisdiction under Federal Rule of Civil Procedure

12(b)(1), which includes a dismissal on mootness grounds.

See, e.g., Franzoni v. Hartmarx Corp., 300 F.3d 767, 771

(7th Cir. 2002). “When reviewing a dismissal for lack of

subject matter jurisdiction, we note that a district court

must accept as true all well-pleaded factual allegations

and draw all reasonable inferences in favor of the plaintiff.” Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th

Cir. 1999). In considering such a motion, “[t]he district

court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has
Nos. 05-4418, 05-4450 & 05-4451 15

been submitted on the issue to determine whether in

fact subject matter jurisdiction exists.” Id.

A. Rest Haven

At the beginning of the EIS process, the City submitted

to the FAA a proposed revision to its airport layout plan

that included the construction of a runway in an area that

would require the relocation of existing air cargo facilities.

In that proposed plan, the City indicated that it wanted to

move these facilities to the site that is currently the

Rest Haven Cemetery. The FAA concluded in its final EIS,

however, that it would be possible to relocate the air cargo

facilities without disturbing Rest Haven. Ultimately, on

September 29, 2005, the FAA issued its ROD approving

a revised airport layout plan “that depict[ed] cargo building repositioning, but also show[ed] that Rest Haven

Cemetery w[ould] remain in private ownership.” The ROD

also reaffirmed that there would be no basis for the

mandatory reinterment of bodies at Rest Haven, and it

assured that the cemetery would “remain available for

future burials, and for visitation and care of the graves by

members of the public.” This convinced the district court

that there was no longer a live controversy among Rest

Haven, the City, and the FAA; it therefore dismissed all

counts brought by Rest Haven in the first amended

complaint with prejudice.

Like the district court, we see no reason why Rest Haven

should not be dismissed from this litigation. Under Article

III, § 2 of the United States Constitution, federal court

jurisdiction is limited to “actual, ongoing controversies.”

Honig v. Doe, 484 U.S. 305, 317 (1988). “[W]hen the issues

presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome,” the case is (or the

claims are) moot and must be dismissed for lack of jurisdiction. Powell v. McCormack, 395 U.S. 486, 496 (1969);
16 Nos. 05-4418, 05-4450 & 05-4451

see also Stotts v. Cmty. Unit. Sch. Dist. No. 1, 230 F.3d

989, 990-91 (7th Cir. 2000). The fact that Rest Haven at

one point was entitled to pursue this action makes no

difference. In order to satisfy Article III’s jurisdictional

requirements, “[t]he requisite personal interest that must

exist at the commencement of the litigation (standing)

must continue throughout its existence (mootness).”

Arizonans for Official English v. Arizona, 520 U.S. 43, 68

n.22 (1997) (quoting United States Parole Comm’n v.

Geraghty, 445 U.S. 388, 397 (1980)). As of July 2005, “the

dispute between the[se] parties no longer rages”; in fact,

the FAA granted Rest Haven precisely the relief it

wanted—the agency approved a layout plan that leaves

it alone. Holstein v. City of Chicago, 29 F.3d 1145, 1147

(7th Cir. 1994). In fact, the ROD goes one step further:

it requires the City to provide a road to the cemetery

to allow continued access to its grounds and to ensure

that its daily activities are not unduly disturbed by

the surrounding construction. Once a plaintiff’s entire

demand is satisfied, “there is no dispute over which to

litigate, and a plaintiff who refuses to acknowledge this

loses outright, under FED. R. CIV. P. 12(b)(1), because he

has no remaining stake.” Rand v. Monsanto Co., 926 F.2d

596, 598 (7th Cir. 1991); see also North Carolina v. Rice,

404 U.S. 244, 246 (1971) (noting that a case becomes

moot when a court’s decision can no longer affect the

rights of litigants in the case before it and would be

nothing but an advisory opinion on hypothetical facts).

In response to the district court’s order to show cause

why its claims should not be dismissed, Rest Haven

complained that it was uncomfortable without an enforceable court order providing that “Chicago will preserve

and leave forever undisturbed the graves of the departed

at Rest Haven,” as well as an order requiring Chicago to

“guarantee the Rest Haven plaintiffs continued access

to the Rest Haven Cemetery.” In its reply brief here,
Nos. 05-4418, 05-4450 & 05-4451 17

Rest Haven concedes that the City’s representation that

it will not acquire Rest Haven Cemetery “may moot the

claim for injunctive relief.” See Brown v. Bartholomew

Consol. Sch. Corp., 442 F.3d 588, 596 (7th Cir. 2006) (“In

an action seeking only injunctive relief . . . once the

threat of the act sought to be enjoined dissipates, the

suit must be dismissed as moot.”). At oral argument,

however, Rest Haven appeared to defend the necessity of

the order it requested on the ground that, without such

an order, the City might unilaterally terminate its agreement not to condemn Rest Haven. This fear is motivating

some of Rest Haven’s religious adherents to bury their

loved ones elsewhere out of fear of future disinterment.

If the City could change its mind at any time, Rest

Haven might have a point. But that is not the case here.

There is no indication on this record that the City has

the authority to modify the airport layout plan without

FAA approval. As the City represented at oral argument,

it took approximately four years for the FAA to approve the plan at issue, and the City has no immediate

intention to seek modification of the approved airport

layout plan in favor of one that requires it to condemn

the Rest Haven Cemetery. To the contrary, the City

stated that it is quite eager to implement the approved

plan. Rest Haven’s fear that the City may one day change

its mind and seek to acquire its cemetery is rooted in

nothing but speculation. In order to satisfy Article III’s

justiciability requirements, “[t]he injury or threat of

injury must be both real and immediate, not conjectural

or hypothetical.” O’Shea v. Littleton, 414 U.S. 488, 494

(1974). If and when the day comes when the City or some

other governmental entity wants to condemn the Rest

Haven Cemetery, Rest Haven will have ample opportunity

to defend itself before all appropriate tribunals.

If what Rest Haven wants is a perpetual injunction

against the City requiring it to leave its cemetery undis-
18 Nos. 05-4418, 05-4450 & 05-4451

turbed until the end of time, it is overreaching. The power

of eminent domain is a fundamental power of government, and a court cannot restrict future governmental

authorities from its proper use. Moreover, any injunction

issued by a court of equity is itself subject to later modification. See Rufo v. Inmates of Suffolk County Jail, 502

U.S. 367 (1992); New York State Ass’n for Retarded

Children Inc. v. Carey, 706 F.2d 956, 967 (2d. Cir. 1983)

(“The power of a court of equity to modify a decree of

injunctive relief is long-established, broad, and flexible.”).

Courts grant injunctive relief with the understanding that

there will be an “opportunity for modifying or vacating

[the] injunction when its continuance is no longer warranted.” Milk Wagon Drivers Union v. Meadowmoor

Dairies, 312 U.S. 287, 298 (1941). Neither the district

court nor this court is empowered to enjoin the City

from ever seeking to acquire Rest Haven’s property, no

matter what the reason. Rest Haven also indicated at oral

argument that it would be satisfied with a court order

finding as a fact that there would be a substantial burden

to its First Amendment rights in the event of a future

taking. This will not do. In the absence of a live controversy, such an order would be no more than an advisory

opinion, which, as we are sure Rest Haven knows, federal

courts are without constitutional authority to issue.

Rest Haven also argues that its claims are not moot

because it wants a declaratory judgment establishing

that OMA’s amendment to IRFRA violates the First

Amendment and the RLUIPA. This, at least, looks more

like an ongoing controversy. Because Rest Haven did not

advance this argument either before the district court or

in its opening brief, however, we consider it waived. See

Nelson v. LaCrosse County Dist. Attorney, 301 F.3d 820,

836 (7th Cir. 2002) (arguments raised for the first time

in the reply brief are waived). Waiver or forfeiture aside,

the argument has no merit. Even though someone may be
Nos. 05-4418, 05-4450 & 05-4451 19

affected by the IRFRA amendment, that “someone” is no

longer Rest Haven, and it is well established that the “case

or controversy” requirement applies to declaratory judgments, just as it applies to every other kind of litigation

in federal court. See Powell, 395 U.S. at 518 (“The availability of declaratory relief depends on whether there is a

live dispute between the parties. . . .”); see also Tobin for

Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 528

(7th Cir. 2001) (noting that a claim for declaratory judgment was moot where “relief . . . would have no impact on

the parties to th[e] suit”).

B. Municipal Plaintiffs and Rest Haven: FAA Claims

The district court also found that it lacked jurisdiction to

review the Municipal Plaintiffs’ and Rest Haven’s claims

against the FAA because these claims fell within the

exclusive jurisdiction of the court of appeals under 49

U.S.C. § 46110. After dismissing Rest Haven from the

litigation, the district court decided that it lacked jurisdiction to review the claims against the FAA that related

to the issuance of the ROD. Because Rest Haven was

not a party to this complaint, it has no “personal stake”

in the appeal of the district court’s denial of St. John’s

and the Municipal Plaintiffs’ motion for leave to file a

second amended complaint on this ground. See, e.g.,

Freedom from Religion Foundation, Inc. v. Bugher, 249

F.3d 606, 609 (7th Cir. 2001) (“Under Article III, only a

plaintiff with a personal stake in a case or controversy

has standing.”). Even if Rest Haven were a party to the

second amended complaint and its claims were not moot,

the district court would still lack jurisdiction to review

either Rest Haven’s or the Municipal Plaintiffs’ claims

against the FAA. The jurisdictional language in 49 U.S.C.

§ 46110 could not be plainer. It says that

a person disclosing a substantial interest in an order

issued by . . . the Administrator of the Federal Avia-
20 Nos. 05-4418, 05-4450 & 05-4451

tion Administration with respect to aviation duties and

powers designated to be carried out by the Administrator . . . in whole or in part under this part [or]

part B . . . may apply for review of the order by filing

a petition for review in the United States Court of

Appeals for the District of Columbia Circuit or in the

court of appeals of the United States for the circuit in

which the person resides or has its principal place of

business.

49 U.S.C. § 46110(a). “Part B” refers to the Airport Development and Noise provisions of the same subtitle, see 49

U.S.C. § 47107, et seq., which include the provision that

grants the FAA the authority to review airport layout

plans. See 49 U.S.C. § 47107(a)(16). The statute goes on to

provide that the court of appeals has “exclusive jurisdiction to affirm, amend, modify or set aside any part of the

order.” 49 U.S.C. § 46110(a).

The Plaintiffs’ arguments urging that the district court

had the authority to consider these claims are without

merit. First, Rest Haven argues that the federal RFRA,

which Rest Haven claims the FAA has violated, commands

that contested issues of fact pertaining to violations of

that statute be tried in the federal district court. In

support of this claim, they cite § 2000bb-1(c) of the Act,

which provides that a person alleging a violation of RFRA

“may assert that violation as a claim or defense in a

judicial proceeding” and that standing to assert such a

claim is “governed by . . . article III of the Constitution.”

Plaintiffs urge that this language means that they are

entitled to an Article III proceeding in which to resolve

disputed issues of fact. Even assuming that Rest Haven’s

claims are not moot, however, the statute says nothing

about exclusive jurisdiction of district courts to find

facts in RFRA cases. Review of an agency action in the

court of appeals surely qualifies as an Article III judicial

proceeding. Nothing in RFRA purported to repeal the
Nos. 05-4418, 05-4450 & 05-4451 21

authority of federal administrative agencies to find facts,

subject to review by the courts of appeals; there was no

silent elimination of the judicial review provisions of

the Administrative Procedures Act. See 5 U.S.C. § 706.

Furthermore, the fact that Rest Haven’s claims against the

FAA include allegations that the FAA violated the Constitution does not allow it to “bypass the administrative

process” because “[t]he effect would be that important

and difficult constitutional issues would be decided devoid

of factual content.” Gaunce v. DeVincentis, 708 F.2d 1290,

1293 (7th Cir. 1983) (holding that exclusive jurisdiction

rested in the court of appeals in a case in which a pilot

challenged an FAA order revoking her flight certificate on

due process grounds); see also Thunder Basin Coal Co. v.

Reich, 510 U.S. 200, 215-16 (1994) (indicating that

while the “[a]djudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies,” such a

“rule is not mandatory,” particularly when a plaintiff’s

“statutory and constitutional claims can meaningfully be

addressed in the Court of Appeals”) (internal citations

omitted).

As further support for their argument that their claims

against the FAA should be heard by the federal district

court, both Rest Haven and the Municipal Plaintiffs

contend that the misconduct of various FAA administrators made it impossible to develop the type of factual

record necessary for meaningful appellate review. The

Plaintiffs charge that the FAA has developed a compensation program that provides monetary rewards for FAA

officials who make decisions that allow the construction of

new runway projects; that former Chicago employees (who

had worked on previous O’Hare expansion projects) are

currently FAA officials and employees; and that these

administrators withheld thousands of documents that

are not a part of the appellate record. Without the ability

to present their claims to the district court, they fear, they
22 Nos. 05-4418, 05-4450 & 05-4451

will be stuck with the outcome of these tainted proceedings. Appellate courts, however, are certainly competent

to hear a party’s argument that there were flaws in due

process at the agency level and remand the case to the

agency with instructions to correct these problems.

Additionally, any plaintiff can make an argument to the

court of appeals that there were problems with the creation of the record before the administrative agency and

thus in the record on appeal. See FCC v. ITT World

Commc’ns, Inc., 466 U.S. 463, 468-69 (1984) (“If, however,

the Court of Appeals finds that the administrative record

is inadequate, it may remand to the agency, see Harrison

v. PPG Indus., Inc., 446 U.S. 578, 593-94 (1980), or in some

circumstances refer the case to a special master, see 28

U.S.C. § 2347(b)(3).”). In fact, Plaintiffs made these

arguments before the Court of Appeals for the D.C.

Circuit, which rejected them. See Bensenville, 457 F.3d

at 72-73.

Lastly, Plaintiffs argue that the district court at least

has jurisdiction over their NEPA claims, pursuant to 40

C.F.R. § 1506.1. That regulation provides that “[u]ntil an

agency issues a record of decision . . . no action concerning the proposal shall be taken which would [h]ave an

adverse environmental impact; or [l]imit the choice of

reasonable alternatives.” According to Plaintiffs, the FAA

has not made a substantive funding decision about the

disposition of certain passenger facility charges (PFC) that

amount to more than one billion dollars. This is money

that the City needs to facilitate Phase One of the OMP.

Without the federal money, the City cannot proceed with

the implementation of Phase One, which includes the

acquisition of land from the Municipal Plaintiffs. Plaintiffs

argue that the City is attempting to subvert the requirements of NEPA by adhering to a policy of “destruction

before decision,” in disregard of this court’s ruling in Old

Town Neighborhood Ass’n v. Kauffman, 333 F.3d 732 (7th
Nos. 05-4418, 05-4450 & 05-4451 23

Cir. 2003), disapproving such a strategy. The district court

decided that it had no jurisdiction over this claim either.

Perhaps because events continue to unfold, the Plaintiffs’

argument in this respect seems to have unraveled. The

regulation to which Plaintiffs refer prohibits action in the

absence of an agency’s issuance of a ROD. Here, though,

the ROD and the accompanying EIS have been issued.

More than that, in an agreed order between these parties,

the City stipulated that it “[would] not acquire property

in the Village of Bensenville and Elk Grove Village for the

OMP, or acquire the Rest Haven or St. Johannes Cemeteries, unless and until the FAA has issued a Record of

Decision following completion of an EIS for the OMP.” At

oral argument the FAA directed the Court’s attention to

§ 12.3 of the ROD where the FAA made specific factual

findings on the airport layout plan’s effect on natural

resources, in compliance with 49 U.S.C. § 47106(c)(1)(B).

Plaintiffs contend that this does not do the job, because

while environmental findings have been made with respect to the airport layout plan, those findings did not

focus on the specific project for which the City is seeking

funding—the Phase One Project. Based on our reading of

the record, however, the Phase One Project is a part of the

airport layout plan for which the City has received FAA

approval. Furthermore, the regulation does not prohibit

action until the FAA has made all decisions with respect

to funding; it says only that no action can be taken before

the issuance of the ROD, which we now have. If these

Plaintiffs wanted to challenge the environmental findings made by the FAA, they certainly could have included

those claims in the petition for review of the ROD that

they filed in the D.C. Circuit.

This shows Plaintiffs’ NEPA challenge for what it is:

a matter so intertwined with the ROD that it falls within

the exclusive jurisdiction of the court of appeals. If we

needed further reassurance on the point, we have it in
24 Nos. 05-4418, 05-4450 & 05-4451

the fact that Plaintiffs actually made the identical argument about NEPA compliance in their presentation to

the D.C. Circuit. There, they argued that the FAA violated

NEPA by issuing a ROD that approved of the airport

layout plan without making any formal funding decisions.

Before the district court and on appeal here, they argue

that the FAA is violating NEPA by allowing the City to

proceed with the acquisition of property in these villages

before a funding decision has been made. Even if we did

not think that this issue was under the court of appeals’

exclusive jurisdiction, we do not think it wise to allow

either the Municipal Plaintiffs or Rest Haven to litigate

the same issues, either concurrently or seriatim, in

separate federal courts.

IV

We turn now to St. John’s part of this case. The first

question is whether St. John’s is entitled, as a matter of

state law, to the protection afforded by the Illinois Religious Freedom Restoration Act, 775 ILCS 35/30. If the

OMA’s amendment of IRFRA can withstand legal challenge, then the answer must be no; if not, then St. John’s

may have a point. Before the district court, St. John’s

argued that the OMA’s amendment of IRFRA violated the

Free Exercise Clause of the First Amendment. The Free

Exercise Clause prohibits the government from “plac[ing]

a substantial burden on the observation of a central

religious belief or practice” without first demonstrating

that a “compelling governmental interest justifies the

burden.” Hernandez v. C.I.R., 490 U.S. 680, 699 (1989). In

Employment Division v. Smith, 494 U.S. 872 (1990),

however, the Supreme Court held that neutral laws of

general applicability do not run afoul of the Free Exercise

Clause, even if these laws have the incidental effect of

burdening a religious practice. Id. at 883; see also Church
Nos. 05-4418, 05-4450 & 05-4451 25

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 531-32 (1993). In order to determine whether a law is

neutral, as the Court used the term in Smith, we must

examine the object of the law. A law is not neutral if “the

object of the law is to infringe upon or restrict practices

because of their religious motivation.” Lukumi, 508 U.S.

at 533. The related principle of “general applicability”

forbids the government from “impos[ing] burdens only

on conduct motivated by religious belief” in a “selective

manner.” Id. at 543; see also id. at 531 (“Neutrality

and general applicability are interrelated, and failure to

satisfy one requirement is a likely indication that the

other has not been satisfied.”).

The Illinois legislature passed IRFRA in 1998 in response to both Smith and the Supreme Court’s subsequent

invalidation (as applied to the states) of the federal

Religious Freedom and Restoration Act of 1993 (RFRA), 42

U.S.C. § 2000bb, et seq. See City of Boerne v. Flores, 521

U.S. 507 (1997) (holding that RFRA, as it applied to the

states and their subdivisions, exceeded Congress’s remedial powers under the Fourteenth Amendment). RFRA had

been Congress’s attempt to impose what it understood to

be the pre-Smith “compelling interest test” to state

measures affecting religious practices. Under RFRA, a

governmental unit could not “substantially burden a

person’s exercise of religion even if the burden result[ed]

from a rule of general applicability . . . unless [the government’s action was] in furtherance of a compelling

governmental interest and [was] the least restrictive

means of furthering that . . . interest.” 42 U.S.C. § 2000bb1; see also Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).

Since the holding of Boerne was predicated on the scope

of Congress’s powers under section 5 of the Fourteenth

Amendment, the Illinois legislature reasonably con-
26 Nos. 05-4418, 05-4450 & 05-4451

cluded that Boerne said nothing about its own ability

under Illinois’s Constitution to enact a measure affording

special protection to religion. It did so in IRFRA, using

language that mirrors that of the federal RFRA. See 775

ILCS 35/15 (“Government may not substantially burden

a person’s exercise of religion, even if the burden results

from a rule of general applicability, unless it demonstrates

that application of the burden to the person (i) is in

furtherance of a compelling governmental interest and

(ii) is the least restrictive means of furthering that compelling governmental interest.”). The legislation was

expressly designed to afford greater protection to religious

activity in Illinois than Smith holds is required under the

federal Constitution. The legislature acted again in the

OMA, however, taking back part of what IRFRA gave:

it put religious institutions on the same footing as all

other property owners for purposes of the O’Hare project.

The OMA accomplishes this goal by adding a new § 30 to

IRFRA; the new section states that nothing in IRFRA

“limit[s] the authority of the City of Chicago to exercise

its powers under the [OMA] for the purpose of relocation

of cemeteries or graves located therein.” 775 ILCS 35/30.

As St. John’s points out, the OMA also mentions cemeteries in § 92, which amends the Illinois Municipal Code, 65

ILCS 5/11-51-1, by allowing the City to remove cemetery

remains for airport expansion without the assent of

cemetery trustees or owners.

According to St. John’s, a major tenet of its religious

beliefs is that the remains of those buried at the St.

Johannes Cemetery must not be disturbed until Jesus

Christ raises these remains on the day of Resurrection. It

asserts therefore that the City’s plan to acquire and

condemn the cemetery is a “sacrilege to [its] religious

faith.” We accept those representations. St. John’s continues with a claim that the OMA impermissibly targets

the religious cemeteries adjacent to O’Hare, stripping
Nos. 05-4418, 05-4450 & 05-4451 27

2 Our dissenting colleague answers this critical question in

St. John’s favor. For the reasons we set forth in the discussion

that follows, we conclude that the City has the better of the

argument.

them of the protection under IRFRA that is afforded to

every other religious institution, including other religious

cemeteries, in Illinois. The district court decided, however,

that this was the wrong perspective: it saw no discrimination or targeting of religious institutions because any

property, religious or otherwise, within the area designated for O’Hare expansion is subject to the extraordinary

powers conferred in the OMA. It therefore dismissed all

counts in the first amended complaint that asserted a free

exercise violation and similarly denied the motion for

leave to file a second amended complaint with respect to

the free exercise claims, concluding that the Plaintiffs

failed to state any free exercise claim on these facts.

Throughout these proceedings, St. John’s has insisted

that the relevant comparison is between the two cemeteries potentially affected by the O’Hare project and all

other cemeteries or religious properties in the state. But

this assumes the answer to the crucial question: what

is the proper comparison to make?2 Lukumi requires us

to approach that question by asking whether the object of

the OMA was “to infringe upon or restrict practices

because of their religious motivation.” 508 U.S. at 533. In

looking at OMA, we must consider the act as a whole, as

well as the part that the new § 30 of IRFRA (added by § 96

of the OMA) plays in it.

We begin, as Lukumi instructs, with the text of the

OMA. As we noted earlier, the new § 30 of IRFRA says

simply “Nothing in this Act limits the authority of the

City of Chicago to exercise its powers under the O’Hare

Modernization Act for the purposes of relocation of ceme-
28 Nos. 05-4418, 05-4450 & 05-4451

teries or the graves located therein.” In our view, this

language does not “refer[ ] to a religious practice without

a secular meaning discernible from the language or context.” Lukumi, 508 U.S. at 533. Some cemeteries are

affiliated with religious sects, others are not; even graves

in cemeteries with a religious affiliation may be relocated

because of natural necessity, for public health concerns,

after a hurricane or flood, or for many other private or

public reasons. We conclude there is nothing inherently

religious about cemeteries or graves, and the act of

relocating them thus does not on its face infringe upon a

religious practice, as Lukumi uses that term. (We acknowledge the fact that the OMA addresses only cemeteries

that are entitled to invoke the protections of IRFRA, but

that is only because secular cemeteries presumably

would have no extraordinary defense to the power of

eminent domain to begin with.) We note in this connection

that the Supreme Court held in Lukumi that the words

“sacrifice” and “ritual” were not so closely associated

with religious practice that a finding of facial non-neutrality was compelled. Id. at 534. If that was the case there,

then it is straightforward here to conclude that the OMA

is facially neutral.

Even if a law passes the test of facial neutrality, it

is still necessary to ask whether it embodies a more

subtle or masked hostility to religion. See, e.g., Gillette v.

United States, 401 U.S. 437, 452 (1971) (indicating that the

Free Exercise Clause “forbids subtle departures from

neutrality”); see also Bowen v. Roy, 476 U.S. 693, 703

(1986) (noting that the First Amendment prohibits the

government from engaging in the “covert suppression of

particular religious beliefs”). To answer that question, we

must look at available evidence that sheds light on the

law’s object, including the effect of the law as it is designed

to operate, the “historical background of the decision under

challenge, the specific series of events leading to the
Nos. 05-4418, 05-4450 & 05-4451 29

enactment or official policy in question, and the [act’s]

legislative or administrative history.” Lukumi, 508 U.S. at

540. Perhaps the most important of these sources is the

remainder of the statute of which the new § 30 is a part.

The OMA in its entirety is the law that the Illinois General Assembly passed; by relying on it we do not run the

risk of selective use of statements in legislative history

that might not reflect the intent of the legislature. The

Supreme Court took this approach when it reviewed the

Free Exercise and Establishment Clause claims in Locke

v. Davey, 540 U.S. 712 (2004). There, although the petitioner challenged only the specific statutory provision of a

scholarship program that prohibited recipients from

pursuing post-secondary degrees in theology, the Court

observed that “the entirety of the Promise Scholarship

Program goes a long way toward including religion in

its benefits.” Id. at 724 (emphasis added).

Although St. John’s alleges in its complaint that the

City targeted its religious rights when the City asked

the Illinois General Assembly to amend IRFRA as part

of the OMA, in reviewing the sufficiency of the complaint

“we are not obliged to accept as true legal conclusions or

unsupported conclusions of fact.” Hickey v. O’Bannon, 287

F.3d 656, 658 (7th Cir. 2002). There are simply no facts

in the voluminous record on appeal that support any

such claim of targeting religious institutions or practices.

According to its stated purpose, the OMA was enacted, in

part, to insure that “legal impediments to the completion

of the [O’Hare] project be eliminated.” OMA § 5(b). As

we noted earlier, most of the OMA’s provisions have

absolutely nothing to do with religion, cemeteries, or

IRFRA. See, e.g., id. § 20 (prohibiting local government

units, other than the City of Chicago, from condemning

property that is slated to become part of O’Hare); id. § 94

(amending the Illinois Aeronautics Act, 620 ILCS 5/38.01,

to exempt project applications under the provisions of the
30 Nos. 05-4418, 05-4450 & 05-4451

Airport and Airway Improvement Act submitted in connection with the OMP from the general requirements for

such applications); id. § 95 (amending the Illinois Code of

Civil Procedure to include a quick-take provision for

property condemned for the OMP). In fact, the record as

a whole strongly supports the position the City has urged

throughout these proceedings: the OMA was designed to

remove any and all state-law based impediments to the

O’Hare expansion project, no matter what their source.

St. John’s makes the obvious point that, as matters have

developed, it is now the only cemetery in the State of

Illinois affected by the new § 30 of IRFRA. That is true,

but an “adverse impact will not always lead to a finding of

impermissible targeting.” Lukumi, 508 U.S. at 535. In fact,

if this point matters at all, it may cut in favor of the

City. As St. John’s repeatedly mentions in its brief, no

other religious cemetery in Illinois, including other

cemeteries similarly affiliated with the United Church of

Christ, is affected by the OMA. The fact that the legislation leaves other religious cemeteries untouched (including those affiliated with churches or other religious

institutions that hold similar beliefs with respect to

burial grounds) reinforces the proposition that the legislature had the nondiscriminatory purpose of clearing all

land needed for O’Hare’s proposed expansion. If there

were ten cemeteries in that area, then the new § 30 would

apply to all ten; while there were two, it applied to both.

We conclude that the OMA, including the portion that

amends IRFRA, is a neutral law of general applicability.

The Illinois legislature was entitled to restore Illinois law

to the regime governed by Smith in order to facilitate the

airport project.

Although we think it unnecessary to ask whether the

plan passes the strict scrutiny test, and whether the City

has shown that it is the least restrictive means of furthering a compelling governmental interest, we add for
Nos. 05-4418, 05-4450 & 05-4451 31

the sake of completeness that we agree with the FAA’s

conclusion in the ROD that the plan passes muster. Unlike

our dissenting colleague, we see no disputed issues of

material fact that would require further proceedings.

Virtually all involved parties, from the competent

committee in Congress, to the FAA, to the State of Illinois,

to the City of Chicago, have made a compelling case that

the OMP addresses a serious problem with national—

indeed international—consequences. O’Hare is a vital

transportation link for the Midwest region, for North

America, and for the world. It is the only airport in the

United States that is the hub of two major airlines.

Serving 47 scheduled passenger airlines and 23 cargo

carriers, O’Hare provides nonstop service to 127 domestic

and 48 international destinations. In part because

Chicago is the largest population and economic center in

the middle of the country, O’Hare “plays an important role

in the National Airspace System (NAS) as a dual airline

hub, a major mid-continent market for nearly every major

airline, and a key international gateway.”

O’Hare is not only one of the busiest airports in the

world. Unfortunately, recently it has also become one of

the most congested. Its delay record is at least twice as

bad as that of the next two airports that suffer from

excessive delays, Atlanta and Newark. Nearly 70,000

airport operations at O’Hare were delayed in 2004, for a

total of almost 4,000,000 minutes. As the OMA states,

“The reliability and efficiency of air transportation for

residents and businesses in Illinois and other States

depend on efficient air traffic operations at O’Hare.” 620

ILCS 65/5. Approximately 51% of total passengers traveling through O’Hare connect to and from other airports.

As a major international gateway, the effects of the

congestion at O’Hare are far-reaching. Delays at O’Hare

spark further delays around the country and the world,

with serious economic and logistical consequences. Ac-
32 Nos. 05-4418, 05-4450 & 05-4451

cording to the ROD, “O’Hare has consistently been the

number one problem related to delays with the National

Airspace System in the United States today.” Moreover,

the problem seems unlikely to abate; the FAA believes

that “[a]ir traffic at O’Hare is projected to increase in the

future from some 31 million passengers and 922,787

operations in 2002 to some 50 million passengers and

1,194,000 operations by 2018.” Many who have tried to

connect through O’Hare have learned the hard way that

the airport simply lacks the capacity to accommodate

all the demand for its services. It is for these reasons that

the FAA concluded that the state interests at stake are

compelling and agreed to fund one of the largest and most

costly reconfigurations of an airport in the United States.

The routes and networks that have developed around

O’Hare are vast and entrenched. The FAA considered

the option of diverting air traffic to other regional airports

or mid-continent hubs, but it found that local, national

and international dependence on O’Hare as a national

connecting hub and international gateway had developed

to the point of making those ideas effectively unworkable.

To borrow a concept from the “essential facilities” doctrine

in antitrust law, as a practical matter it is impossible

reasonably to duplicate O’Hare in a way that meets the

crushing demand for its important services. Compare MCI

Commc’ns Corp. v. AT&T Co., 708 F.2d 1081, 1132 (7th

Cir. 1983). If the decision were ours to make (a proposition

that we find doubtful), rather than that of the FAA or the

competent authorities in Chicago and Illinois, we would

find that there really is “no realistic, economically practical alternative,” City of Malden, Missouri v. Union

Electric Co., 887 F.2d 157, 163 n.6 (8th Cir. 1989), to the

restructuring of O’Hare to remedy those concerns. Given

O’Hare’s unique importance to the national transportation infrastructure, we are persuaded that the City and
Nos. 05-4418, 05-4450 & 05-4451 33

State have a compelling interest in fixing the problems

from which O’Hare suffers.

Even if the need is compelling, if IRFRA applied it would

be necessary to decide whether the OMP is the least

restrictive alternative. St. John’s has offered no plausible

evidence to suggest that it is not. See Bell Atlantic, 127

S. Ct. at 1974. The City and its many partners carefully

considered the concerns of the religious entities in an

exhaustive review. They studied the alternatives thoughtfully, adopted some of them, and came up with a final

plan that represents the City’s best effort to be solicitous

of the religious concerns involved without substantially

undermining the goals of the overall project. See Bensenville, 457 F.3d at 72 (stating that the FAA “appears to

have acted with great care in conducting its analyses for

the EIS and ROD” in this case). Cf. Lyng v. Northwest

Indian Cemetery Protective Ass’n, 485 U.S. 439, 453-55

(1988) (noting that where the government commissioned

a comprehensive study of the effects its proposed road

would have on the religious concerns at issue and had

planned numerous ameliorative measures to mitigate the

intrusion as much as possible, “it is difficult to see how

the Government could have been more solicitous”). The

City discarded its original plan to relocate air cargo

facilities to the Rest Haven site, after the FAA concluded

that “there is a measure of flexibility in the design and

location of these buildings sufficient to accommodate the

religious liberty interests without impeding the air cargo

component” of the overall plan. Accordingly, Rest Haven

was spared in an effort to tailor the plan in as accommodating a manner as possible.

Unfortunately, geography and the needs of the expansion

project made it impossible similarly to accommodate

the St. Johannes cemetery. The FAA’s review of alternative proposals illustrates, however, that this conclusion

was not reached lightly. The proposals attempted to
34 Nos. 05-4418, 05-4450 & 05-4451

minimize encroachment on the St. Johannes cemetery as

much as possible by considering options that would

have shifted, shortened, or eliminated various runways

or other parts of the overall plan. For example, one

alternative called for moving a key runway about 400 feet

to the south and shortening it to avoid the St. Johannes

cemetery. The FAA found that doing so would have moved

the runway into protected space for a new air control

tower that could not be moved without running afoul of

FAA safety standards. According to the ROD, the ultimate result would have “compromis[ed] the efficiency

and capacity of [other] runways in poor weather.” The

ROD noted that the responses to these concerns

“demonstrate[d] an unfamiliarity with the real-world

situation of operating a major airport in both a safe and

efficient manner.” Another proposal suggested simply

shortening the runway without moving it to another

part of the airport. The FAA found that this alternative

would “place severe operating constraints on the airfield

any time weather conditions presented a ceiling below

4,500 feet and less than 7 miles of visibility” which “would

not accommodate anticipated growth in aviation activity

at acceptable levels of delay.”

More creative possibilities were considered as well, such

as simply constructing a necessary runway on the surface

of the cemetery ground without disturbing the bodies

underneath. Even though this would have made access to

and future use of the cemetery impossible and may also

have offended religious sensibilities, some thought that

this proposal was less restrictive because the bodies would

remain untouched. The FAA consulted the Tennessee

Valley Authority, a federal agency with considerable

experience in cemetery relocation (derived over many

years of building hydro-power facilities in areas where

cemeteries were located), about this idea. The concept

proved to be infeasible as a matter of engineering. The
Nos. 05-4418, 05-4450 & 05-4451 35

FAA concluded that “the depth of excavation needed for

runway construction, along with the ancillary activities

such as electrical cabling for airfield runway lighting and

storm sewer pipes for airfield drainage, presented a

substantial likelihood that the graves could be disturbed.”

It is significant that this case involves physical intrusion

on a religious site, not the curtailment or prohibition of

a religious practice. The least restrictive alternative

analysis here comes down to concrete measurements.

The question is whether there is a way to construct

the vitally needed new runways and supporting structures at O’Hare—a defined physical space—in a way that

limits or avoids entirely physical encroachment on an

adjacent geographical area. An airport layout and runway

configuration is an intricate web of interrelated parts

where placements and measurements are carefully calibrated to account for variables such as wake turbulence,

weather, and visibility, as well as the size, speed, and

schedules of departing and arriving aircraft. The entire

project is constrained by demanding FAA standards. As

the ROD explains, “a change in one runway often has

consequences for other runways, nearby taxiways, and the

overall ability to handle greater levels of traffic.” Each

alternative proposal fell victim to that reality. The

City has demonstrated that it has accommodated the

religious concerns as much as is physically possible

without compromising its compelling interests. The only

plausible conclusion that the pleadings support is that

the OMP represents the least restrictive alternative.

Lastly, St. John’s argues that the district court erred

in concluding that in order to state a free exercise claim a

plaintiff must allege two things: (1) that the defendant’s

actions were motivated by animus or prejudice, and

(2) that the law at issue is not neutral or of general

applicability. The first of these, it asserts, is precluded

by cases such as Shrum v. City of Coweta, Okla., 449
36 Nos. 05-4418, 05-4450 & 05-4451

F.3d 1132 (10th Cir. 2006). There, the Tenth Circuit

observed that “the Free Exercise Clause has been applied

numerous times when government officials interfered

with religious exercise not out of hostility or prejudice,

but for secular reasons.” Id. at 1144.

With respect, we think that St. John’s has misread the

district court’s opinion. Only after the court decided that

the OMA was a neutral law of general applicability did

it observe that “none of the allegations in the complaint

give[s] rise to the inference that the facially neutral

language masks more insidious underpinnings.” This

comment reflects the inquiry required by Lukumi. The

district court was not suggesting that a plaintiff is required to allege animus or prejudice in order to state a

free exercise claim.

In fact, a closer look at Shrum reveals that it is not

of much help to St. John’s. In that case, the plaintiff, a

police officer and minister, alleged that he was assigned to

a day shift precisely because this schedule would conflict

with his ministerial duties. Although the defendant gave

a neutral justification for the assignment, the plaintiff’s

allegation was that the decision to reassign him was

“motivated by [plaintiff]’s religious commitments.” Id.

at 1144. A question therefore existed with respect to

whether the decision at issue was actually neutral and of

general applicability; the court had no need to require

the plaintiff also to allege that the assigning officer had

held his faith against him or had acted out of religious

prejudice. The problem was that the assigning officer

wanted to force the plaintiff to choose between his duties

as a police officer and his post as a minister and “religious

discrimination was the means to [that] entirely secular

end . . . .” Id. Here, in contrast, St. John’s does not

allege that the City is seeking to acquire its land because

of its religious significance; the City needs the land in spite
Nos. 05-4418, 05-4450 & 05-4451 37

of its current dedication to religious use. Cf. Personnel

Adm’r. of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (“ ‘Discriminatory purpose,’ however, implies more than intent

as volition or intent as awareness of consequences. It

implies that the decisionmaker, in this case a state

legislature, selected or reaffirmed a particular course of

action at least in part ‘because of,’ not merely ‘in spite of,’

its adverse effects upon an identifiable group.”) (internal

citation omitted). There are no facts in this record that

could support such a claim.

V

Moving on from its free exercise challenge to the OMA’s

amendment of IRFRA, St. John’s argues that the OMA

violated the Fourteenth Amendment’s Equal Protection

Clause when it deprived St. John’s of constitutional and

statutory legal protections that are available to every

other cemetery in the state. The district court dismissed this aspect of the case, in both the original and

the second amended complaint, for failure to state a

claim upon which relief could be granted. The court’s

error in this respect, according to St. John’s, was its failure to review the equal protection theory using strict

scrutiny.

In deciding whether the OMA violates the Equal Protection Clause, our first question is whether the act targets

a suspect class or addresses a fundamental right. See EbyBrown Co., LLC v. Wisc. Dep’t of Agric., 295 F.3d 749, 754

(7th Cir. 2002). If it does either of these things, then the

legislation must survive more demanding scrutiny. Normally, this means that it must be tailored narrowly to

facilitate a compelling state interest. See Krislov v.

Rednour, 226 F.3d 851, 863 (7th Cir. 2000). If no fundamental rights or suspect categories are at issue, “[t]he

general rule is that legislation is presumed to be valid
38 Nos. 05-4418, 05-4450 & 05-4451

and will be sustained if the classification drawn by the

statute is rationally related to a legitimate state interest.”

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S.

432, 440 (1985).

St. John’s first tries to repackage its free exercise

argument in equal protection language, by claiming that

the new § 30 unduly burdens its fundamental right freely

to exercise its religion. We have already rejected the

underlying point, however. “Where a plaintiff’s First

Amendment Free Exercise claim has failed, the Supreme

Court has applied only rational basis scrutiny in its

subsequent review of an equal protection fundamental

right to religious free exercise claim based on the same

facts.” Wirzburger v. Galvin, 412 F.3d 271, 282-83 (1st Cir.

2005) (citing Johnson v. Robison, 415 U.S. 361, 375 n.14

(1974)).

St. John’s also argues that the new § 30 targets a

suspect class, namely, the two religious cemeteries adjacent to O’Hare. It has not fleshed out this argument

particularly well. If it means to suggest that “cemeteries

adjacent to O’Hare” constitute a constitutionally suspect

class, we must disagree with it. A suspect class either

“possesses an immutable characteristic determined solely

by the accident of birth,” Frontiero v. Richardson, 411 U.S.

677, 686 (1973), or is one “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 command extraordinary protection

from the majoritarian political process.” San Antonio

Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).

Although religion may fit the bill, see, e.g., City of New

Orleans v. Dukes, 427 U.S. 297, 303 (1976), strict scrutiny

has been reserved for laws that “discriminat[e] among

religions.” Corp. of the Presiding Bishop of the Church of

Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327,
Nos. 05-4418, 05-4450 & 05-4451 39

339 (1987). The new § 30 neither classifies on the basis

of religion nor discriminates among religions.

Once again, St. John’s notes that it is the only religious

cemetery currently affected by the OMA; other religious

cemeteries in the state, including those affiliated with the

United Church of Christ, are beyond the statute’s reach.

As was the case with respect to its free exercise claim,

St. John’s own argument proves that this statute does

not treat St. John’s differently from other religious cemeteries in the state because it is a religious cemetery.

Rather the statute puts St. John’s in a different position

from other religious cemeteries in the state because it is

near O’Hare and, unlike the Rest Haven Cemetery, the

City badly needs the land to construct additional runways.

Geography, however, is not a suspect class for equal

protection purposes. If St. John’s is attempting to state a

“class of one” equal protection claim, see Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000), it has

failed to do so. This court has held that “[a] class of one

equal protection claim may be brought where (1) the

plaintiff alleges that he has been intentionally treated

differently from others similarly situated and (2) that

there is no rational basis for the difference in treatment or

the cause of the differential treatment is a ‘totally illegitimate animus’ toward the plaintiff by the defendant.”

Lunini v. Grayeb, 395 F.3d 761, 768 (7th Cir. 2005)

(quoting McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001

(7th Cir. 2004)). Even if St. John’s could satisfy the first

part of that test, it cannot survive the second part.

The fact that this statute affects a religious group or

institution does not necessarily mean that the statute

classifies on the basis of religion. See, e.g., Johnson, 415

U.S. at 375 n.14 (declining to categorize group of religious

conscientious objectors as a suspect class); Locke, 540 U.S.

at 712 (applying rational basis review to a statute that

prohibited state aid to any post-secondary student pursu-
40 Nos. 05-4418, 05-4450 & 05-4451

ing a degree in theology). As we observed earlier, in a case

like this, where a facially neutral statute is challenged on

equal protection grounds, the challenger must prove that

the legislature “selected or reaffirmed a particular course

of action at least in part ‘because of,’ not merely ‘in spite

of,’ its adverse effects upon an identifiable group.” Feeney,

442 U.S. at 279. Nothing supports the proposition that

the Illinois legislature singled out St. John’s for lesser

protection under IRFRA protection because it runs a

religious cemetery. Anyone or anything standing in the

way of the O’Hare project faces the prospect of the City’s

exercise of its eminent domain power. We have no doubt

that the legislature was unmoved by St. John’s religious

affiliation.

In order to survive a motion to dismiss for failure to

state an equal protection claim, “a plaintiff must allege

facts sufficient to overcome the presumption of rationality

that applies to government classifications.” Wroblewski v.

City of Washburn, 965 F.2d 452, 460 (7th Cir. 1992). As

the district court observed, St. John’s does not even

attempt to argue that the OMA’s amendment to IRFRA is

not rationally related to some legitimate government

purpose. Certainly, the expansion of O’Hare is a legitimate

state purpose. As a classic “public use”—an airport to be

operated by the City of Chicago for the benefit of local,

national, and international transportation—it does not

raise any of the questions that concerned the dissenting

Justices in the Supreme Court’s decision in Kelo v. City of

New London, Conn., 545 U.S. 469 (2005). Enacting a

statute that removes legal barriers to the City’s ability to

acquire land in connection with the expansion of the

airport is not “wholly impossible” to relate to that legitimate interest. Civil Liberties for Urban Believers v. City

of Chicago, 342 F.3d 752, 766 (7th Cir. 2003).
Nos. 05-4418, 05-4450 & 05-4451 41

VI

Last, St. John’s invokes the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C.

§ 2000cc, et seq. Congress enacted RLUIPA after the

Supreme Court invalidated the federal RFRA, 42 U.S.C.

§ 2000bb, et seq., as it applied to the states and their

subdivisions in City of Boerne, 521 U.S. 507. “Less sweeping” than RFRA, RLUIPA is limited to cases involving

land use regulations or the religious exercise rights of

institutionalized persons. It applies when a substantial

burden to religious exercise is “imposed in a program or

activity that receives Federal financial assistance,” affects

interstate commerce, or, in a case involving a land use

regulation, is imposed pursuant to a procedure that

permits the government to make “individualized assessments of the proposed uses for the property involved.” 42

U.S.C. §§ 2000cc-1(b)(1)-(2), 2000cc(a)(2)(A)-(C).

The question before us is whether the “land use” part of

RLUIPA applies here. That part of the statute prohibits

any government from implementing a “land use regulation” that “imposes a substantial burden on the religious

exercise of a person,” as well as on religious assemblies

and other religious institutions, unless the government

can show that the “imposition of the burden on that

person, assembly, or institution is in furtherance of a

compelling governmental interest [ ] and is the least

restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc(a)(1). We must decide

whether the City’s plan to condemn the St. Johannes

Cemetery is a “land use regulation” within the meaning

of RLUIPA. We agree with the district court’s conclusion

that it is not.

Initially, we note that we are proceeding on the assumption that RLUIPA as a whole does constitutionally apply

to the states. In Cutter v. Wilkinson, 544 U.S. 709 (2005),
42 Nos. 05-4418, 05-4450 & 05-4451

the Supreme Court held that § 3 of RLUIPA, which deals

with the religious exercise rights of institutionalized

persons, is constitutional as applied to the states. The

Court specifically declined to express any view on the

validity of § 2 of the statute, which deals with land use

regulations. 544 U.S. at 715 n.3. Neither party has raised

any challenges to the constitutionality of § 2; because we

conclude that the statute does not apply here, we save

for another day the question whether this part of the

statute may be applied to the states.

The term “land use regulation” is defined by RLUIPA

as follows:

[A] zoning or landmarking law, or the application of

such a law, that limits or restricts a claimant’s use or

development of land (including a structure affixed to

land), if the claimant has an ownership, leasehold,

easement, servitude, or other property interest in the

regulated land or a contract or option to acquire such

an interest.

42 U.S.C. § 2000cc-5(5). St. John’s (as well as the Municipal Plaintiffs and Rest Haven, for that matter) have not

objected, however, to any plan on the City’s part to zone

their property in an unfavorable way or to impose restrictions on it under a landmarking law. St. John’s claims

instead that the OMA is a “zoning-type law” because it

changes the permitted use of its land from a religious

cemetery to land designated as “airport property.” But this

is a misleadingly incomplete description of the City’s

intentions under the statute. The fact that the OMA

refers to the land it seeks to acquire from everyone living

within the footprint of the O’Hare expansion project as

“airport property” does not morph the OMA into a zoning

ordinance. The City is not attempting to dictate to these

plaintiffs what they are permitted to do with the plot of

land that is currently the St. Johannes Cemetery; rather,
Nos. 05-4418, 05-4450 & 05-4451 43

3 Some argue that the two concepts are not so distinct, and that

the problem with zoning is that it forces property owners to limit

the uses to which they put their property. In that sense, the

argument goes, zoning regulations are in fact partial takings of

private property. See Richard A. Epstein, Takings: Private

Property and the Power of Eminent Domain 100-03 (1985).

Professor Epstein argues that what government should do in

lieu of zoning is use its power of eminent domain, assuming of

course that there is a valid public purpose and the government

is willing to pay. He recognizes that the law has not adopted his

theory, however, noting that “the dominant line of opinion—one

that can be traced to Justice Holmes in [Pennsylvania Coal Co.

v. Mahon, 260 U.S. 393 (1922)]—is that regulation, far from

being a subclass of takings, is outside the scope of the eminent

domain clause unless it is taken ‘too far.’ ” Id. at 102.

St. John’s argument runs in the other direction; it claims that

the exercise of eminent domain in this case has essentially zoned

away its entire property. But the City has paid just compensation for what it has taken in this case, which is exactly what

(continued...)

the City seeks to exercise its takings power to assume

full ownership of the land, after paying St. John’s just

compensation. As Illinois courts have long recognized, the

“police power [zoning] and eminent domain are distinct

powers of government.” Sanitary Dist. of Chi. v. Chi. &

Alton R.R. Co., 108 N.E. 312, 314 (Ill. 1915) (“Whatever

restraints the Legislature imposes upon the use

and enjoyment of property with the reason and principle

of this duty the owner must submit to. It is a regulation,

and not a taking; an exercise of police power, and not of

eminent domain.”). Because zoning and eminent domain

are “two distinct concepts” that involve land “in very

different ways,” we reject the argument that the City’s

plan to condemn the St. Johannes Cemetery under the

OMA is an act of zoning. Faith Temple Church v. Town of

Brighton, 405 F. Supp. 2d 250, 254 (W.D.N.Y. 2005).3
44 Nos. 05-4418, 05-4450 & 05-4451

3 (...continued)

distinguishes it from a zoning regulation that has gone “too far.”

It would strain the statutory definition beyond repair to equate

a buy-out with a “limitation” or “restriction” on land use.

St. John’s relies on a district court case from the Southern District of Indiana for the sweeping proposition that

“[w]hen an ordinance constitutes an attempt by the

government to regulate the use of a piece of property, it is

an act of zoning.” Sagamore Park v. City of Indianapolis,

885 F. Supp. 1146, 1150 (S.D. Ind. 1994). That decision,

however, is inapposite. It addressed the question whether

a moratorium imposed by the Board of Zoning Appeals

amounted to an act of zoning; it had nothing to do with the

question whether an exercise of the sovereign power of

eminent domain should also be regarded as “zoning.”

In addition to arguing that the OMA is a zoning law, the

Plaintiffs contend that eminent domain itself is a “land

use” regulation under RLUIPA. Their best authority for

this point is a footnote in a district court case from the

Central District of California, Cottonwood Christian Center

v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203

(C.D. Cal. 2002). Briefly, in that case, the plaintiff, Cottonwood Christian Center, wanted to build a church on an 18-

acre parcel of land that it owned. The City of Cypress

planned to use that land for commercial retail space and

initiated eminent domain proceedings. The plaintiff

brought an action for a preliminary injunction after the

City denied it the necessary land use permit it needed to

begin constructing its place of worship. The district court

found that the City’s refusal to grant Cottonwood’s application for a conditional use permit was a land use

regulation subject to RLUIPA. In a footnote, the court

commented that “[e]ven if [it] were only considering the

condemnation proceedings, they would fall under
Nos. 05-4418, 05-4450 & 05-4451 45

RLUIPA’s land use regulation.” Cottonwood, 218 F. Supp.

2d at 1222 n.9.

We are not persuaded by the district court’s brief dicta

in Cottonwood that eminent domain is always and inevitably a land use regulation under RLUIPA. Given the

importance of eminent domain as a governmental power

affecting land use, we think that if Congress had wanted

to include eminent domain within RLUIPA, it would

have said something. Indeed, before federal law (even

under the Spending Clause) starts interfering with the

fundamental state power of eminent domain, it is likely

that we would need a clear statement from Congress. See,

e.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65

(1989) (“[I]f Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably

clear in the language of the statute.”) (internal quotation

omitted). Congress did not mention eminent domain in

so many words in RLUIPA’s definition of a land use

regulation, which is enough for us to consider it excluded.

See Lamie v. United States Tr., 540 U.S. 526, 534 (2004)

(“It is well established that where the statute’s language

is plain, the sole function of the courts . . . is to enforce it

according to its terms.”). The handful of federal and state

cases that have addressed this question have reached the

same conclusion that we have. See, e.g., Faith Temple

Church, 405 F. Supp. 2d at 255 (“By its terms . . . RLUIPA

does not apply to eminent domain proceedings.”); City and

County of Honolulu v. Sherman, 129 P.3d 542, 547 (Haw.

2006) (“RLUIPA is not available as a defense to condemnation . . . .”); see also Prater v. City of Burnside, Ky., 289

F.3d 417, 434 (6th Cir. 2002) (although not specifically

addressing the question whether condemnation is a land

use regulation under RLUIPA, indicating that the City’s

property interest in the land at issue gave it the right to

develop the land as it desired and thus the City’s decision
46 Nos. 05-4418, 05-4450 & 05-4451

to develop the roadway was not based on any zoning or

landmarking law). Because this case does not involve a

“land use regulation,” there is no need for us to address

RLUIPA’s other element—whether the City’s proposed

actions will substantially burden Plaintiffs’ religious

exercise.

With RLUIPA inapplicable, we have exhausted the

possible reasons why the St. Johannes Cemetery might

be exempt from the City’s general eminent domain power.

Over the years, Illinois has condemned cemeteries, both

religious and otherwise, for a variety of public uses, such

as highways. See, e.g., Illinois State Toll Highway Comm’n

v. Eden Cemetery Ass’n, 158 N.E.2d 766 (Ill. 1956) (oftcited case about the appropriate uses of the state’s eminent

domain power involving condemnation of a religious

cemetery); Dep’t of Transp. v. Bouy, 386 N.E.2d 1163 (Ill.

App. Ct. 1979) (resolving methods government was required to use to determine the market value and appropriate compensation for the partial taking of a cemetery

to provide land for a highway). We recognize that relocating St. Johannes will be a sensitive and labor intensive

task. The City has established a detailed protocol, which

includes identifying the next of kin for each person buried

at the cemetery and hiring professional archaeologists

and a licensed funeral director to carry out archaeological

work and disinterments for each person buried there. At

oral argument, the City assured us that it will comply with

these procedures. We take the City at its word and trust

that this process will be carried out with dignity and

respect for both living and dead. Of course, the plaintiffs

remain free to challenge any deviation from the City’s

proposed methods of relocation before an appropriate

tribunal should some controversy arise in the future.

Given our conclusion that none of St. John’s religious

claims against the City survives, the district court was

correct to deny its motion for a preliminary injunction.
Nos. 05-4418, 05-4450 & 05-4451 47

VII

Accordingly, we AFFIRM the judgment of the district

court.

RIPPLE, Circuit Judge, concurring in part and dissenting

in part. I join my colleagues in affirming the judgment of

the district court with respect to the claims by Rest Haven

and the municipal defendants. However, I believe that

the amendments to the Illinois Religious Freedom Restoration Act (“Illinois RFRA”) made in the O’Hare Modernization Act (“OMA”), Ill. Pub. Act No. 093-0450, violate

the Free Exercise Clause, and, for that reason, must be

subject to strict scrutiny. I further believe that there

remain factual questions regarding whether the City of

Chicago (“City”) has shown that the proposed modernization and expansion plan of O’Hare Airport is narrowly

tailored to meet the compelling interest the City claims.

These factual issues render dismissal inappropriate at

this stage in the litigation. Therefore, I respectfully

dissent.

I

BACKGROUND

The majority’s thoughtful and comprehensive opinion

sets forth the facts of this case in great detail; therefore,

I shall provide only a brief description of the pertinent

facts.
48 Nos. 05-4418, 05-4450 & 05-4451

1 Because the congregants assert the same claims as St. John’s,

I shall refer, for ease of reference, to the plaintiffs collectively as

St. John’s.

2 The owner of the second cemetery, Rest Haven Cemetery

Association, originally joined St. John’s in these claims. As noted

by the majority opinion, the City no longer seeks to acquire

the land on which Rest Haven is located, rendering Rest

Haven’s challenges moot.

In May 2003, the Illinois General Assembly enacted the

OMA. The legislation amended various provisions of

Illinois law to facilitate the planned expansion of O’Hare

Airport. One of the legal impediments that this legislation sought to remove was a restriction on the power of

the City to condemn particular properties for the expansion, including two religiously-affiliated cemeteries, one

of which, St. Johannes Cemetery (“St. Johannes”), is

owned by St. John’s United Church of Christ (“St. John’s”).

Among the changes aimed at facilitating the condemnation of these cemeteries was an amendment to the Illinois

RFRA that repealed otherwise generally applicable

statutes only with respect to the relocation of cemeteries

in connection with the O’Hare expansion.

St. John’s and two of its congregants1

 filed this action,

challenging both the City’s attempt to acquire the land

on which St. Johannes is located and the amendment to

the Illinois RFRA. St. John’s asserted that the City’s

actions violated its rights under the Free Exercise Clause

of the First Amendment and the Equal Protection Clause

of the Fourteenth Amendment.2

 St. John’s maintains

that the relocation of St. Johannes would violate a major

tenet of its religious beliefs, which requires that those

buried in St. Johannes must remain undisturbed until

resurrected by Jesus Christ on the Last Day. St. John’s

further contended that, because the amendments to the

Illinois RFRA singled out religious cemeteries near
Nos. 05-4418, 05-4450 & 05-4451 49

O’Hare, the law was not neutral and of general applicability, and therefore subject to strict scrutiny under the

Free Exercise Clause of the First Amendment and the

Equal Protection Clause of the Fourteenth Amendment.

The district court dismissed St. John’s complaint for

failure to state a claim. The district court concluded that

the OMA was a neutral law of general applicability; thus,

it was subject only to rational basis scrutiny under both

the Free Exercise Clause and the Equal Protection Clause.

II

DISCUSSION

The First Amendment ensures religious freedom by

firmly committing the state to a position of neutrality

in the relationship between individuals and religion. Sch.

Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 226

(1963). The Supreme Court has observed that, with respect

to religious freedom, the principle of government neutrality, the government “protect[s] all, it prefers not, and it

disparages none.” Id. at 215 (quoting Minor v. Bd. of Educ.

of Cincinnati (Super. Ct. of Cincinnati, February 1870)

(Taft, J., dissenting) (unpublished case), reproduced in The

Bible in the Common Schools (Robert Clark & Co. ed.,

1870)). The Free Exercise Clause advances the command

of government neutrality by securing “religious liberty

in the individual by prohibiting any invasions thereof by

civil authority” and protecting against the coercive effect

of legislation “as it operates against him in the practice of

his religion.” Schempp, 374 U.S. at 223 (emphasis added);

see also Jimmy Swaggart Ministries v. Bd. of Equalization

of California, 493 U.S. 378, 384 (1990); Vision Church v.

Vill. of Long Grove, 468 F.3d 975, 996 (7th Cir. 2006). At

a minimum, the Free Exercise Clause protects against

laws that “discriminate[ ] against some or all religious
50 Nos. 05-4418, 05-4450 & 05-4451

beliefs.” Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 532 (1993).

State action that offends the Free Exercise Clause must

satisfy strict scrutiny, i.e., be narrowly tailored to serve a

compelling state interest. See Vision Church, 468 F.3d at

996; Civil Liberties for Urban Believers v. City of Chicago,

342 F.3d 752, 763 (7th Cir. 2003). Additionally, when a

legislative classification offends a fundamental right,

such as the Free Exercise Clause, an equal protection

challenge to that classification is subject to strict scrutiny.

Vision Church, 468 F.3d at 1000. A law offends the Free

Exercise Clause and its requirement of government

neutrality with respect to religion in two circumstances.

First, a law that burdens the free exercise of religion and

that is not facially neutral and of general applicability

will be subject to strict scrutiny. City of Hialeah, 508 U.S.

at 531-32; Vision Church, 468 F.3d at 996. Second, a

facially-neutral law that “imposes a substantial burden

on religion” offends the Free Exercise Clause and likewise

is subject to strict scrutiny. Vision Church, 468 F.3d at

996. The OMA’s amendment to the Illinois RFRA violates

the Free Exercise Clause under either of these approaches.

A law is not neutral on its face if its object or purpose “is

the suppression of religion or religious conduct.” City of

Hialeah, 508 U.S. at 533 (emphasis added). To determine

whether a law is neutral and of general applicability, we

first look to the text of the statute to determine whether

it discriminates on its face. Id. “A law lacks facial neutrality if it refers to a religious practice without a secular

meaning discernable from language or context.” Id.

Applying these standards, it is clear that the OMA’s

amendment to the Illinois RFRA is not facially neutral.

OMA added a new section 30 to the Illinois RFRA which

reads:
Nos. 05-4418, 05-4450 & 05-4451 51

Nothing in this Act limits the authority of the City of

Chicago to exercise its powers under the O’Hare

Modernization Act for the purposes of relocation of

cemeteries or the graves located therein.

775 ILCS 35/30. The panel opinion determines that,

because cemeteries and the burial, or relocation, of the

dead are not inherently religious, the amendment to the

Illinois RFRA is textually neutral. However, this analysis

fails to appreciate that, when read in context, the new

section 30 of the Illinois RFRA affects only religious

cemeteries. The phrase “this Act” in the new section 30

refers to the Illinois RFRA. See id. 35/1. The Illinois RFRA,

in turn, protects against government actions that substantially burden an individual’s free exercise of religion,

id. 35/15, which the Illinois RFRA defines as “an act or

refusal to act that is substantially motivated by religious

belief, id. 35/5. Thus, the only cemeteries affected by

OMA’s amendment to the Illinois RFRA are those religious

cemeteries that the City may seek to relocate. Moreover,

because the Illinois RFRA’s protections apply only

where the government action substantially burdens an

individual’s free exercise of religion, the amendment

affects only those religious cemeteries whose relocation

would substantially burden an individual’s free exercise

of religion.

The effect of the amendment is to remove from the

protections afforded to every other individual’s religious

observance, those individuals whose religious practices

would be substantially burdened by the relocation of

cemeteries in connection with the expansion of O’Hare.

The OMA amendment to the Illinois RFRA offends the

Free Exercise Clause by penalizing those individuals

whose religious observance is affected by the expansion

project by denying them “an equal share of the rights,

benefits, and privileges enjoyed by other citizens.” Lyng

v. Northwest Indian Cemetery Protective Ass’n, 485 U.S.
52 Nos. 05-4418, 05-4450 & 05-4451

439, 449 (1988). Illinois RFRA demands that the government show a compelling interest and the lack of viable

alternative before it burdens anyone’s religious beliefs.

By the amendment, Illinois has watered down, significantly, the protection afforded these plaintiffs. It does

not matter that Illinois has not chosen to single out the

United Church of Christ (the faith with which St. John’s

is affiliated) for unfavorable treatment across the state.

The Free Exercise Clause protects the individual’s right

to the free exercise of religion. See Jimmy Swaggart

Ministries, 493 U.S. at 384; Schempp, 374 U.S. at 223.

Thus, the OMA’s amendment to the Illinois RFRA both

burdens the free exercise of religion and lacks facial

neutrality, and, therefore, strict scrutiny must be applied

to the amendment.

However, even if the amendment to the OMA was

facially neutral, it would still be subject to strict scrutiny

because it imposes a substantial burden on religion. As the

Supreme Court said in Church of the Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993):

Facial neutrality is not determinative. The Free

Exercise Clause, like the Establishment Clause,

extends beyond facial discrimination. The Clause

“forbids subtle departures from neutrality,” Gillette v.

United States, 401 U.S. 437, 452 (1971) and “covert

suppression of particular religious beliefs,” Bowen v.

Roy, supra, at 702 (opinion of Burger, C.J.). Official

action that targets religious conduct for distinctive

treatment cannot be shielded by mere compliance

with the requirement of facial neutrality.

See also Vision Church, 468 F.3d at 996. We have held that

a burden on the free exercise of religion rises to the level

of a constitutional injury when the law places significant

pressure on the adherent to forego its religious precepts.

Id. at 999. The effect of relocating St. Johannes on St.
Nos. 05-4418, 05-4450 & 05-4451 53

John’s religious observance is neither hypothetical nor

speculative, but, rather, inescapable. The relocation of St.

Johannes would force St. John’s to forego its religious

precepts regarding the burial of its members. This burden

goes further than placing pressure on St. John’s to forego

its religious precepts. By relocating St. Johannes Cemetery, St. John’s would be “coerced by the Government’s

action into violating [its] religious beliefs.” Lyng, 485 U.S.

at 449. By forcing St. John’s to “perform acts undeniably at

odds with fundamental tenets of [its] religious beliefs,” this

coercion presents the precise “danger to the free exercise

of religion that the First Amendment was designed to

prevent.” Wisconsin v. Yoder, 406 U.S. 205, 218 (1972).

Because the amendments to the Illinois RFRA offend

the Free Exercise Clause, the law must survive strict

scrutiny under both the First Amendment and the Equal

Protection Clause of the Fourteenth Amendment. Under

strict scrutiny review, the Government bears the burden of

proving both that the act in question advances a compelling state interest and that the means chosen to pursue

that interest are narrowly tailored to that end. See Johnson v. California, 543 U.S. 499, 505 (2005); see also Entm’t

Software Ass’n v. Blagojevich, 469 F.3d 641, 646 (7th Cir.

2006); Vision Church, 468 F.3d at 996. The majority

opinion accepts the City’s assertions that the current

modernization plan is narrowly tailored. Perhaps the

City is correct. However, accepting the City’s assertions

at this stage in the litigation is inconsistent with our

obligation when reviewing a motion to dismiss to accept

all well pleaded facts as true and draw all reasonable

inferences from those facts in favor of the plaintiffs. Patel

v. City of Chicago, 383 F.3d 569, 572 (7th Cir. 2004). At

this stage in the litigation, there has been none of the

factual development necessary to determine whether the

means chosen by the City are narrowly tailored to meet the

compelling interest asserted here.
54 Nos. 05-4418, 05-4450 & 05-4451

Therefore, I would remand the case for further proceedings to allow factual development. For these reasons,

I respectfully dissent from the portion of the panel’s

opinion that rejects St. John’s claim. I am pleased to join

the opinion in all other respects.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-13-07