IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60052

OPULENT LIFE CHURCH; TELSA DEBERRY,

Plaintiffs - Appellants,

v.

CITY OF HOLLY SPRINGS MISSISSIPPI; BOARD OF ALDERMEN OF

THE CITY OF HOLLY SPRINGS, MISSISSIPPI; CITY PLANNING

COMMISSION OF THE CITY OF HOLLY SPRINGS, MISSISSIPPI,

Defendants - Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi

Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Until the eve of oral argument, the City of Holly Springs, Mississippi, had

on its books a zoning ordinance that explicitly singled out “churches” for

unfavorable treatment, albeit not for the outright banning of their presence from

particular locations. The night before we heard argument, Holly Springs

amended its ordinance, this time to ban “[c]hurches, temples, synagogues,

mosques, and other religious facilities” from its historic and centrally located

courthouse square. Opulent Life Church—which has leased property on the

courthouse square but still needs zoning approval to occupy that property—filed

this suit in federal district court, claiming that the (now-repealed) ordinance’s

United States Court of Appeals

Fifth Circuit

F I L E D

September 27, 2012

Lyle W. Cayce

Clerk

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church-specific provisions, facially and as applied, violate the Religious Land

Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq.;

the First Amendment; the Fourteenth Amendment; and the Mississippi

Constitution. Opulent Life simultaneously filed a motion for a preliminary

injunction of the challenged provisions. The district court denied the motion on

the sole ground that Opulent Life has not shown a substantial threat of

irreparable harm. For the reasons that follow, we conclude that the district

court abused its discretion in denying the preliminary injunction and, therefore,

VACATE and REMAND.

I.

A.

Opulent Life Church is a fledgling Christian congregation in need of a

larger meeting space. Since opening its doors in February 2011, Opulent Life

has grown to about eighteen members. It desires more growth but is 1

constrained by its small building, the Marshall Baptist Center, which can

comfortably accommodate only twenty to twenty-five people. The pastor of

Opulent Life, Telsa DeBerry, stated in his affidavit that many potential church

members have attended services but declined to join because Opulent Life’s

present facility is too small to accommodate them. Opulent Life’s small facility

has also limited its ability to operate its community service and outreach

programs. For example, it can only host certain community outreach

events—such as Vacation Bible School, Friends in the Park, and Movies in the

Park—outdoors, when the weather permits, because its current building cannot

accommodate such events.

 Most of the pertinent facts appear in the affidavit of Telsa DeBerry, who has served 1

as Opulent Life’s pastor since its founding. Holly Springs has not yet had an opportunity to

present evidence to the district court because the court denied the motion for preliminary

injunction a week before Holly Springs’s opposition was due and before Holly Springs had

responded. Opulent Life appealed the next day.

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According to Opulent Life, these space limitations substantially impair its

ability to fulfill its religious mission. Opulent Life’s mission statement is as

follows: “to engage all in our sphere of influence with the Gospel of Jesus Christ

that we may encounter the called and lead them to be in right standing with God

and man.” According to Pastor DeBerry, fulfilling this mission requires regular

worship services, community activities and outreach, and welcoming individuals

who wish to participate in Opulent Life’s activities. Consequently, Opulent Life

considers it “of vital importance to [its] religious mission that it maintain a

facility large enough to accommodate a growing congregation.”

Because of the inadequacy of its present building, Opulent Life has sought

a more spacious facility for the past sixteen months. Opulent Life launched this

search in March 2011, the month after its founding. Soon Opulent Life

identified a suitable property in Holly Springs’s central business district, on the

courthouse square. In August 2011, Opulent Life entered into a lease agreement

to use the property as a church. By its terms, the lease will commence when

Opulent Life obtains the proper land use and building renovation permits from

Holly Springs. The lessor filed an affidavit in this court in early May averring

that he is experiencing significant financial hardship, that he urgently needs

rental income from the property, and that he will have no choice but to

terminate the lease agreement if Opulent Life cannot soon occupy the property.

Less than a month after signing the lease, Opulent Life applied for a

renovation permit and submitted a comprehensive building plan to the Holly

Springs City Planning Commission. The Commission tabled the request at a

meeting held a few days later. Its stated reason for doing so was that Opulent

Life had failed to meet the (now-repealed) requirements of Holly Springs’s

zoning ordinance that apply only to churches (hereinafter “Section 10.8”). The 2

Section 10.8 only singled out churches, and not other religious facilities, unlike the 2

newly adopted ban, which applies more broadly to “[c]hurches, temples, synagogues, mosques,

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Commission did not indicate which provisions of Section 10.8 Opulent Life failed

to meet, but it did provide Pastor DeBerry with a copy of those requirements. 

It is Pastor DeBerry’s belief that Opulent Life failed to satisfy Section 10.86,

which required that sixty percent of property owners within a 1300-foot radius

approve the property’s use as a church, and Section 10.89, which required

Opulent Life to obtain approval from Holly Springs’s mayor and Board of

Aldermen. The entirety of the zoning ordinance’s church-specific provisions are 3

as follows:

10.8 Churches

Churches where permitted in the City of Holly Springs, shall

conform to the following standards:

10.81 The amount of traffic generated and on site parking

accommodations by the proposed facility must be

located on a through street;

10.82 Ingress and egress to the property and proposed

structures thereon with particular reference to

automotive and pedestrian safety and convenience,

traffic flow and control, and access in case of fire or

catastrophe;

10.83 Plans must show assurance that noise levels shall not

disturb the neighborhood in which the facility is

proposed to be located;

10.84 The proposed scale and context of the associated

activities and facilities;

10.85 A site plan shall be submitted in conformance with the

site plan standards of this ordinance;

and other religious facilities.”

The list of church-specific requirements that the commission gave Pastor DeBerry

3

differs in a few minor respects from the requirements in the actual zoning ordinance. Opulent

Life had to file a Mississippi Public Records Act request to obtain a copy of the entire zoning

ordinance because prior to that request, the Mayor of Holly Springs, Andre DeBerry, informed

Pastor DeBerry that the ordinance was a controlled document that he would not release to

Opulent Life.

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10.86 Survey of the property owners within a 1300 foot radius

with 60% approval;

10.87 Sign must be located on building only and have no

lighting in residential districts;

10.88 Must be minimum of 25,000 square feet in B-4 zones;

10.89 Final approval must be granted by the Mayor and

Board of Aldermen.

The zoning ordinance imposes “supplemental standards” for several other uses,

including home occupations, junkyards, mini-warehouses, bed and breakfasts,

and mobile home parks. Prior to the recent amendments to the ordinance,

however, only churches were subject to approval by neighboring property owners

and the mayor and Board of Aldermen.

Opulent Life filed suit on January 10, 2012. Its complaint seeks a

declaration that Section 10.8 of the zoning ordinance violates RLUIPA facially

and as applied, the First Amendment to the U.S. Constitution facially and as 4

applied, the Equal Protection and Due Process Clauses of the Fourteenth

Amendment facially and as applied, and the Mississippi Constitution facially

and as applied. The complaint also seeks injunctive relief to prevent Holly

Springs from enforcing Section 10.8 or “the remainder of the Zoning Ordinance

to impose limitations on churches not applicable to other nonreligious entities.” 

Finally, the complaint seeks actual damages and attorney’s fees.

With its complaint, Opulent Life filed a motion for a preliminary

injunction to enjoin enforcement of Section 10.8. In support, it attached an

affidavit of Pastor DeBerry, explaining, inter alia, the harm that Opulent Life

believes it is suffering because of Holly Springs’s decision to table the church’s

permit request until it can satisfy the zoning requirements that apply to

Opulent Life alleged violations of RLUIPA’s Equal Terms Clause, 42 U.S.C. 4

§ 2000cc(b)(1); Substantial Burden Clause, § 2000cc(a); Nondiscrimination Clause,

§ 2000cc(b)(2); and prohibition against unreasonable limitations on religious land uses,

§ 2000cc(b)(3).

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churches.

Just seven days later, the district court denied the motion for preliminary

injunction in a two-page order. The district court based its ruling entirely on its

conclusion that Opulent Life had not shown a substantial threat of irreparable

harm. The entirety of its reasoning is as follows:

It appears that the plaintiffs are still able to meet at their current

location, Marshall Baptist Center. They seek to use the rented

building in anticipation that their membership will grow. As the

plaintiffs are not currently being deprived of the right to freely

exercise their religion, the court fails to see irreparable harm if the

injunction is not granted.

The district court entered its order before Holly Springs had responded to the

complaint or preliminary injunction motion. Pursuant to local rules, Holly

Springs’s opposition was not due until fourteen days after the motion’s filing. 

Opulent Life filed its notice of interlocutory appeal the day after the district

court entered its order.

B.

Holly Springs amended its zoning ordinance on August 7, 2012, the night

before oral argument. Counsel for Holly Springs advised this court that Holly

Springs had been working on a new zoning ordinance for more than a year.5

In amending its ordinance, Holly Springs repealed Section 10.8 and

According to counsel for Opulent Life, on the Friday before oral argument, Holly 5

Springs notified Opulent Life’s counsel of its intention to amend its ordinance the following

Tuesday evening, and provided a draft of the ordinance it intended to adopt. On the morning

of oral argument, Wednesday, August 8, 2012, Holly Springs informed Opulent Life’s counsel

that it had passed the ordinance the night before. It did not give opposing counsel a copy of

the enacted version of the new ordinance before oral argument.

At oral argument, counsel for Holly Springs conceded that Holly Springs never

informed the district court or this court of its intention to amend its ordinance. Holly Springs

also neglected to file a copy of the amended ordinance prior to oral argument. This court

instructed counsel to file a copy by the end of the week, pursuant to Fed. R. App. P. 28(j). 

Holly Springs complied on Friday, August 10.

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replaced it with a new provision that categorically bans “[c]hurches, temples,

synagogues, mosques, and other religious facilities” from the newly created

“Business Courthouse Square District.” This new district includes the property

leased by Opulent Life. The stated purpose of this new district “is to designate

the area . . . for certain retail, office and service uses which will complement the

historic nature and traditional functions of the court square area as the heart of

community life.” Yet while religious facilities are not welcome, other

noncommerical uses are. For instance, libraries, museums, and art galleries are

all permitted on the courthouse square.

II.

Before turning to the merits of Opulent Life’s appeal, we must ensure that

this case is justiciable in its present posture. Holly Springs argues that this case

is at once moot and unripe. We address these justiciability challenges in order. 6

A.

At oral argument, Holly Springs argued that its repeal of Section 10.8 of

the zoning ordinance renders this case moot—while simultaneously urging us

to adjudicate the facial validity of the new ordinance. Opulent Life responded

that Holly Springs’s mootness contention is refuted by the Supreme Court’s

decision in Northeastern Florida Chapter of Associated General Contractors v.

City of Jacksonville, 508 U.S. 656, 661–63 (1993).

This case is materially identical to Associated General Contractors. There,

the Court granted certiorari to decide whether the petitioner had standing to

challenge Jacksonville’s minority set-aside program for city contracts. Id. at 658. 

Despite raising these justiciability challenges to the old ordinance, at oral argument 6

Holly Springs urged us to decide the facial validity of the new ordinance. We asked whether

Holly Springs “want[ed] us to construe the current ordinance as to whether it’s facially

appropriate under RLUIPA or not,” and counsel for Holly Springs responded: “The new

ordinance? Uh . . . we would. . . . Yes. . . . I believe that judicial economy would require that

you do that.”

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After the grant of certiorari, Jacksonville repealed its ordinance and replaced it

with a different albeit similar set-aside program. Id. at 660–61. The Court held

that the repeal of the prior ordinance did not moot the case, relying on its prior

decision in City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982), where

the Court “applied the ‘well settled’ rule that ‘a defendant’s voluntary cessation

of a challenged practice does not deprive a federal court of its power to determine

the legality of the practice.’” Associated General Contractors, 508 U.S. at 661–62

(quoting City of Mesquite, 455 U.S. at 289). This mootness exception applied in

City of Mesquite “because the defendant’s ‘repeal of the objectionable language

would not preclude it from reenacting precisely the same provision if the District

Court’s judgment were vacated.’” Id. at 662 (quoting City of Mesquite, 455 U.S.

at 289).

In rejecting the mootness challenge, the Associated General Contractors

Court described its facts as presenting “an a fortiori case” to City of Mesquite. 

Id. It explained that: 

There is no mere risk that Jacksonville will repeat its allegedly

wrongful conduct; it has already done so. . . . The gravamen of

petitioner’s complaint is that its members are disadvantaged in

their efforts to obtain city contracts. The new ordinance may

disadvantage them to a lesser degree than the old one, but insofar

as it accords preferential treatment to black- and female-owned

contractors . . . it disadvantages them in the same fundamental way.

Id. Here, as in Associated General Contractors, Holly Springs has already

repeated its allegedly wrongful conduct. Instead of imposing special burdens on

Opulent Life before it can occupy its leased property, Holly Springs has doubled

down and banned Opulent Life from the property altogether. This may present

an even weaker case for mootness than Associated General Contractors. 

Regardless, the case is not moot.

This case is also not moot for another reason. In challenging the validity

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of Section 10.8, Opulent Life seeks retrospective as well as prospective relief. It

sought to have enforcement of Section 10.8 enjoined, but it also seeks actual

damages and attorney’s fees. See 42 U.S.C. § 1988(b) (authorizing attorney’s fees

for prevailing parties in RLUIPA cases). This alone is enough to ensure that an

actual live controversy exists between the parties, for which a court may grant

“effectual relief.” Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277,

2287 (2012) (“A case becomes moot only when it is impossible for a court to grant

‘any effectual relief whatever’ to the prevailing ‘party.’” (quoting City of Erie v.

Pap’s A.M., 529 U.S. 277, 287 (2000)); see Knox, 132 S. Ct. at 2287 (“As long as

the parties have a concrete interest, however small, in the outcome of the

litigation, the case is not moot.” (alteration and internal quotation marks

omitted)); see also Erwin Chemerinsky, Federal Jurisdiction § 2.5.2 (6th ed.

2012) (“[A] plaintiff seeking both injunctive relief and money damages can

continue to pursue the case, even after the request for an equitable remedy is

rendered moot.” (collecting Supreme Court cases)).

B.

Holly Springs also argues that this case is unripe. Ripeness doctrine “is

drawn both from Article III limitations on judicial power and from prudential

reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc.,

509 U.S. 43, 58 n.18 (1993). It is “peculiarly a question of timing,” Regional

Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974), whose “basic rationale

is to prevent the courts, through avoidance of premature adjudication, from

entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner,

387 U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders,

430 U.S. 99 (1977). Determining whether a claim is ripe for judicial review

requires the evaluation of (1) “the fitness of the issues for judicial decision” and

(2) “the hardship to the parties of withholding court consideration.” Abbott

Labs., 387 U.S. at 149.

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Holly Springs does not argue that Opulent Life’s claims are unripe under

these ordinary ripeness considerations, but instead that Opulent Life has not

satisfied a prudential ripeness requirement set forth in Williamson County

Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172

(1985). See Rosedale Missionary Baptist Church v. New Orleans City, 641 F.3d

86, 89 n.2 (5th Cir. 2011) (collecting Supreme Court cases for the proposition

that Williamson County’s ripeness requirements are prudential). Under

Williamson County, Fifth Amendment regulatory takings claims are not ripe

“until the government entity charged with implementing the regulations has

reached a final decision regarding the application of the regulations to the

property at issue.” 473 U.S. at 186. Yet even assuming arguendo that

Williamson County’s final-decision rule applies to Opulent Life’s claims, it 7

Whether Williamson County applies to RLUIPA and First Amendment challenges to 7

land use decisions is an open question in this circuit. The Supreme Court has only applied

Williamson County’s finality rule to regulatory takings claims. See Palazzolo v. Rhode Island,

533 U.S. 606 (2001); Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725 (1997); Lucas v.

S.C. Coastal Council, 505 U.S. 1003 (1992); Yee v. City of Escondido, 503 U.S. 519 (1992);

MacDonald, Sommer & Frates v. Yolo Cnty., 477 U.S. 340 (1986). We have gone a bit further,

applying the finality requirement to ordinary takings claims, Urban Developers LLC v. City

of Jackson, Miss., 468 F.3d 281, 294–95 (5th Cir. 2006), and procedural due process claims

that are “ancillary” to or “arise from” a takings claim. See Bowlby v. City of Aberdeen, Miss.,

681 F.3d 215, 223–26 (5th Cir. 2012) (summarizing circuit precedent and applying general

ripeness principles, but declining to apply Williamson County, to find ripe a procedural due

process claim that was not ancillary to a takings claim). Other circuits have applied

Williamson County more broadly. See, e.g., Murphy v. New Milford Zoning Comm’n, 402 F.3d

342, 349 (2d Cir. 2005) (citing cases from other circuits that apply Williamson County to due

process and equal protection claims). The Second Circuit applies the Final-Decision Rule to

RLUIPA and First Amendment claims, but only if a two-part threshold test is met. See id. at

350 (“Relatedly, we do not believe it necessary to distinguish the RLUIPA claim from the First

Amendment Free Exercise claim when it comes to our ripeness inquiry.”). The Sixth Circuit

applies the final decision rule to RLUIPA and First Amendment claims, and has declined to

decide whether or not to adopt the Second Circuit’s threshold test. See Miles Christi Religious

Order v. Twp. of Northville, 629 F.3d 533, 541–42 (6th Cir. 2010) (distinguishing Murphy and

therefore not deciding whether to adopt the threshold test); see also id. at 545 (Batchelder,

C.J., dissenting) (endorsing Murphy’s threshold test). We take no position here regarding

whether and when Williamson County may apply to RLUIPA and First Amendment challenges

to land use decisions.

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presents no barrier to our adjudicating Opulent Life’s facial challenges to the

ordinance. The Supreme Court has held Williamson County to be inapplicable

to facial challenges. See Yee v. City of Escondido, 503 U.S. 519, 533–34 (1992)

(“While . . . a claim that the ordinance effects a regulatory taking as applied to

petitioners’ property would be unripe for [failure to satisfy Williamson County],

petitioners mount a facial challenge to the ordinance.” (citation omitted)). 

Although Holly Springs does not contest Article III ripeness, we briefly

address the application of ordinary ripeness principles. See Urban Developers

LLC v. City of Jackson, Miss., 468 F.3d 281, 292 (5th Cir. 2006) (before reaching

the merits we “must be convinced that the claim in question is ripe, even if

neither party has raised the issue”). Opulent Life’s facial challenges are easily

ripe. First, they are fit for judicial decision because they raise pure questions of

law. See Triple G Landfills, Inc. v. Bd. of Comm’rs, 977 F.2d 287, 289 (7th Cir.

1992) (“This lawsuit . . . mounts a facial attack upon the validity of the ordinance

itself . . . . The issues posed are purely legal . . . . [T]he case is fit for judicial

decision.”). Second, Opulent Life would suffer hardship if review were delayed. 

Before Holly Springs amended its ordinance, Opulent Life already faced

considerable hardship absent immediate judicial review. Compliance with

Section 10.8 would have been onerous, and noncompliance would have meant

forfeiting the larger meeting space Opulent Life has leased. Now Opulent Life

would suffer even more acute hardship were review to be withheld. The

amended ordinance bans Opulent Life from its leased property. Each day that

passes without Opulent Life being able to occupy its new building is a day in

which its religious free exercise is curtailed. See 42 U.S.C. § 2000cc-5(7)(B) (“The

use . . . of real property for the purpose of religious exercise shall be considered

to be religious exercise” under RLUIPA.). Opulent Life’s facial challenges are

ripe and that suffices for us to decide the merits of this interlocutory appeal.

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III.

Turning to the merits, we review the district court’s denial of Opulent

Life’s preliminary injunction application for abuse of discretion. Planned

Parenthood of Hous. & Se. Tex. v. Sanchez, 403 F.3d 324, 329 (5th Cir. 2005). 

The prerequisites to obtaining a preliminary injunction are familiar. The

applicant must show: (1) a substantial likelihood of success on the merits; (2) a

substantial threat of irreparable harm if the injunction is not granted; (3) that

the threatened injury outweighs any harm that the injunction might cause to the

defendant; and (4) that the injunction will not disserve the public interest. Tex.

Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir.

2012). Each of these factors presents a mixed question of fact and law. Women’s

Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 419 (5th Cir. 2001). Factual

findings are reviewed for clear error; legal conclusions are reviewed de novo; and

a decision grounded in erroneous legal principles is reviewed de novo. Id.

Holly Springs argues that the district court’s denial should be affirmed

because it correctly concluded that Opulent Life has not shown a threat of

irreparable harm. Holly Springs did not argue in its appellate brief that any of

the other preliminary injunction factors support affirmance. Opulent Life

argues, in contrast, that the district court’s irreparable-harm determination was

both legally and factually erroneous. Opulent Life further argues that it has

established each of the four preliminary injunction requirements and thus urges

us to order entry of the injunction.8

We address each of the preliminary injunction requirements sequentially.

The United States has filed an amicus curiae brief in support of Opulent Life. The

8

United States agrees with Opulent Life that the district court erred in finding no irreparable

harm, and further agrees that Opulent Life has demonstrated a likelihood of success on the

merits of its RLUIPA Equal Terms Clause challenge to Section 10.8. The United States stops

short, however, of urging entry of a preliminary injunction at this juncture. Instead, it

supports a remand for Holly Springs to present any evidence it can of how a preliminary

injunction would harm its interests.

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A.

We first consider whether Opulent Life has shown a substantial likelihood

of success on the merits. Although Opulent Life has asserted several

constitutional and RLUIPA claims, it focused its briefing on its claim under

RLUIPA’s Equal Terms Clause and advised that “this Court need not look

beyond the Equal Terms Clause to find a likelihood of success on the merits.”9

The United States has followed suit. We accordingly limit our discussion to the

Equal Terms Clause claim, without considering the merits of Opulent Life’s

other claims.

1.

In Cutter v. Wilkinson, 544 U.S. 709, 714–17 (2005), the Supreme Court

described the history that prompted the enactment of RLUIPA. “RLUIPA is the

latest of long-running congressional efforts to accord religious exercise

heightened protection from government-imposed burdens, consistent with

[Supreme Court] precedents.” Id. at 714. The story begins with the Court’s

decision in Employment Division, Department of Human Resources v. Smith, 494

U.S. 872 (1990). The Smith Court held that the Free Exercise Clause generally

does not exempt religious conduct from burdens imposed by neutral laws of

general applicability. Id. at 878–82. 10

Congress responded to Smith by passing the Religious Freedom

Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb et seq. See Cutter, 544

U.S. at 714. RFRA broadly prohibited both the federal government and the

9

 At oral argument, Opulent Life continued to focus on its Equal Terms Clause claim

in arguing that it is likely to prevail on the merits in challenging the amended ordinance.

Smith recognized two exceptions to this rule: (1) for “hybrid” claims, resting on “the

10

Free Exercise Clause in conjunction with other constitutional protections,” id. at 881–82, and

(2) for claims brought in contexts that entail “individualized governmental assessment of the

reasons for the relevant conduct” such as, in the unemployment compensation context,

exemptions for those who refuse work with “good cause.” Id. at 884.

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states from substantially burdening a person’s religious exercise—“even if the

burden results from a rule of general applicability”—unless the government

could demonstrate that the burden survives strict scrutiny. 42 U.S.C. § 2000bb1. Four years after RFRA’s enactment, the Supreme Court invalidated it as

applied to the states and their subdivisions. City of Boerne v. Flores, 521 U.S.

507, 532–36 (1997) (holding that RFRA exceeded Congress’s powerunder Section

5 of the Fourteenth Amendment).

Congress responded to Flores by enacting RLUIPA. Cutter, 544 U.S. at

715. “Less sweeping than RFRA . . . RLUIPA targets two areas.” Id. Section 2

of RLUIPA addresses land use regulation. 42 U.S.C. § 2000cc. Section 3, which

is not at issue here, protects the religious exercise of institutionalized persons. 

§ 2000cc-1; see also Cutter, 544 U.S. at 713–14 (upholding Section 3 of RLUIPA

as a permissible accommodation of religion that does not offend the

Establishment Clause). The statute includes a rule of construction, applicable

to both Sections 2 and 3, that it “shall be construed in favor of a broad protection

of religious exercise, to the maximum extent permitted by the terms of this

chapter and the Constitution.” 42 U.S.C. § 2000cc-3(g).

RLUIPA expressly provides a cause of action for violations of its

requirements: “A person may assert a violation of this chapter as a claim or

defense in a judicial proceeding and obtain appropriate relief against a

government.” § 2000cc-2(a). The phrase “appropriate relief” does not include

money damages against states. Sossamon v. Texas, 131 S. Ct. 1651, 1655,

1658–59 (2011) (holding that RLUIPA does not unambiguously abrogate the

sovereign immunity of the states from damages claims). By contrast, money

damages are available under RLUIPA against political subdivisions of states,

such as municipalities and counties. See, e.g., Centro Familiar Cristiano Buenas

Nuevas v. City of Yuma, 651 F.3d 1163, 1168–69 (9th Cir. 2011) (holding that

municipalities and counties may be liable for money damages under RLUIPA);

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Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253,

260–61 (3d Cir. 2007) (same); see also Mt. Healthy City Sch. Dist. Bd. of Educ.

v. Doyle, 429 U.S. 274, 280–81 (1977) (recognizing that political subdivisions of

states do not enjoy Eleventh Amendment immunity). Under Supreme Court

precedent, money damages are available against municipal entities unless

“Congress has given clear direction that it intends to exclude a damages remedy”

from a cognizable cause of action. Sossamon, 131 S. Ct. at 1660 (citing Franklin

v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 70–71 (1992)). RLUIPA contains no

indication, much less clear direction, that it intends to exclude a money damages

remedy. Thus, municipalities and counties may be held liable for money

damages under RLUIPA, but states may not.

Section 2 of RLUIPA, which protects religious land uses and is at issue in

this case, contains two subsections that limit land-use regulations. The first

subsection contains the Substantial Burden Clause, which prohibits the

imposition or implementation of a land use regulation in a manner that imposes

a “substantial burden” on the religious exercise of a person, assembly, or

institution unless the government can show that the regulation furthers a

“compelling governmental interest” by “the least restrictive means.” § 2000cc(a). 

The second subsection contains three provisions under the heading

“Discrimination and exclusion.” § 2000cc(b). The Equal Terms Clause prohibits

imposing or implementing a land use regulation so as to treat a religious

assembly “on less than equal terms” than a nonreligious assembly. 

§ 2000cc(b)(1). The Nondiscrimination Clause prohibits imposing or

implementing a land use regulation so as to discriminate against an assembly

or institution on the basis of religion. § 2000cc(b)(2). The third provision

concerns “Exclusions and limits” and contains two subparts that prohibit:

(A) “totally exclud[ing] religious assemblies from a jurisdiction”; and

(B) imposing or implementing a land use regulation that “unreasonably limits

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No. 12-60052

religious assemblies, institutions, or structures within a jurisdiction.” 

§ 2000cc(b)(3). Although Opulent Life has asserted violations of each of these

provisions (except the total exclusion subpart), we confine our discussion to its

Equal Terms Clause claim.

The statutory text of the Equal Terms Clause provides: “No government

shall impose or implement a land use regulation in a manner that treats a

religious assembly or institution on less than equal terms with a nonreligious

assembly or institution.” § 2000cc(b)(1). There can be no serious dispute that

Holly Springs is a “government” within the meaning of the statute, see § 2000cc5(4) (defining “government” to include, inter alia, “a State, county, municipality,

or other governmental entity created under the authority of a State”); that the

provisions of its zoning ordinance at issue (both Section 10.8 and the newly

adopted ban on religious facilities) are “land use regulation[s],” see § 2000cc-5(5)

(defining “land use regulation” as “a zoning or landmarking law, or the

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

of land . . .”); or that Opulent Life is a “religious assembly or institution.” Thus,

the dispositive issue is whether the ordinance facially treats Opulent Life “on

less than equal terms with a nonreligious assembly or institution.” 

§ 2000cc(b)(1). Before considering this determinative statutory language, we

address the application of RLUIPA’s burden-shifting provision.

Under RLUIPA, the government bears the burden of persuasion once a

religious plaintiff establishes a prima facie case of a violation:

If a plaintiff produces prima facie evidence to support a claim

alleging a violation of the Free Exercise Clause or a violation of

[Section 2 of RLUIPA], the government shall bear the burden of

persuasion on any element of the claim, except that the plaintiff

shall bear the burden of persuasion on whether the law (including

a regulation) or government practice that is challenged by the claim

substantially burdens the plaintiff’s exercise of religion.

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§ 2000cc-2(b). The Ninth Circuit has held that an ordinance that expressly

differentiates religious land uses from nonreligious land uses establishes a

prima facie case for a facial Equal Terms Clause claim. See Centro Familiar,

651 F.3d at 1171 (“[T]he express distinction drawn by the ordinance establishes

a prima facie case for unequal treatment.”). We agree. Because both the old and

new versions of the ordinance expressly distinguish between religious and

nonreligious land uses, Opulent Life has established a prima facie case, so Holly

Springs has the burden of persuasion on each element of the Equal Terms

Clause claim.

We now turn to the critical statutory phrase “on less than equal terms

with a nonreligious assembly or institution.” Our leading case construing this

language is Elijah Group, Inc. v. City of Leon Valley, 643 F.3d 419 (5th Cir.

2011). We explained in Elijah Group that this statutory language “requires that

the religious institution in question be compared to a nonreligious counterpart,

or ‘comparator.’” Id. at 422. We described the differing approaches of four of our

sister circuits to this issue, but declined to choose among them. Id. at 422–24 &

n.19. Instead, it sufficed in that case to observe that a plaintiff must “show more

than simply that its religious use is forbidden and some other nonreligious use

is permitted. The ‘less than equal terms’ must be measured by the ordinance

itself and the criteria by which it treats institutions differently.” Id. at 424. We

concluded that the ordinance at issue in Elijah Group violated the Clause

because it “treats the Church on terms that are less than equal to the terms on

which it treats similarly situated nonreligious institutions.” Id.

The approaches of our sister circuits to facial Equal Terms Clause

challenges fall “roughly into two camps.” Centro Familiar, 651 F.3d at 1169

n.25. In one camp is the Eleventh Circuit, which treats all land use regulations

that facially differentiate between religious and nonreligious institutions as

violations of the Clause, but will nonetheless uphold such a regulation if it

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survives strict scrutiny review. See Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214, 1231–35 (11th Cir. 2004). The other camp includes the Third,

Seventh, and Ninth Circuits. Those circuits hold that a violation of the Equal

Terms Clause occurs only if a religious institution is treated less well than a

similarly situated nonreligious comparator. The Third Circuit requires the 11

comparator to be “similarly situated as to the regulatory purpose.” Lighthouse

Inst., 510 F.3d at 266. The Seventh and Ninth Circuits require a comparator

that is similarly situated with respect to “accepted zoning criteria.” Centro

Familiar, 651 F.3d at 1172–73; River of Life Kingdom Ministries v. Vill. of Hazel

Crest, Ill., 611 F.3d 367, 371–73 (7th Cir. 2010) (en banc).

As Opulent Life concedes in its brief, by requiring a similarly situated

comparator, our precedent rules out the Eleventh Circuit’s approach, and places

us in the latter camp with the Third, Seventh, and Ninth Circuits. See Elijah 12

Group, 651 F.3d at 424. But our precedent calls for a test that differs slightly

from the Third Circuit’s “regulatory purpose” test and the Seventh and Ninth

As we observed in Elijah Group, the Second Circuit has followed a similar approach

11

in an as-applied challenge, “identif[ying] a comparator that is similarly situated for all

‘functional intents and purposes’ of the regulation.” 643 F.3d at 423 (quoting Third Church of

Christ, Scientist, of N.Y.C. v. City of New York, 626 F.3d 667 (2d Cir. 2010)). The Second

Circuit has not adopted a test for facial challenges, and even the Eleventh Circuit requires a

similarly situated comparator in as-applied challenges. See Primera Iglesia Bautista Hispana

of Boca Raton, Inc. v. Broward Cnty., 450 F.3d 1295, 1311 (11th Cir. 2006) (“[A] neutral

statute’s application may violate the Equal Terms provision if it differentially treats similarly

situated religious and nonreligious assemblies.”).

Although we do not follow the Eleventh Circuit in applying strict scrutiny review to 12

Equal Terms Clause claims, strict scrutiny is the proper test for claims under the Substantial

Burden Clause. See 42 U.S.C. § 2000cc(a) (expressly providing for strict scrutiny review). The

omission of strict scrutiny language from the Equal Terms Clause, see 42 U.S.C. § 2000cc(b)(1),

immediately following the inclusion of such language in the prior subsection (the Substantial

Burden Clause), is another reason not to apply strict scrutiny review to Equal Terms Clause

claims. See Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (“[W]here Congress includes

particular language in one section of a statute but omits it in another . . . , it is generally

presumed that Congress acts intentionally and purposely in the disparate inclusion or

exclusion.” (internal quotation marks omitted)).

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Circuits’ “accepted zoning criteria” test. In this circuit, “[t]he ‘less than equal 13

terms’ must be measured by the ordinance itself and the criteria by which it

treats institutions differently.” Id. In accord with this instruction, and building

on the similar approaches of our sister circuits, we must determine: (1) the

regulatory purpose or zoning criterion behind the regulation at issue, as stated

explicitly in the text of the ordinance or regulation; and (2) whether the religious

assembly or institution is treated as well as every other nonreligious assembly

or institution that is “similarly situated” with respect to the stated purpose or

criterion. Where, as here, the religious assembly or institution establishes a

prima facie case, the government must affirmatively satisfy this two-part test

to bear its burden of persuasion on this element of the plaintiff’s Equal Terms

Clause claim.

2.

As Holly Springs conceded at oral argument, the now-repealed Sections

10.86 and 10.89 plainly violated the Equal Terms Clause. Those provisions

Several jurists have argued that there is “little real contrast in basic approach or 13

result” between the “regulatory purpose” and “accepted zoning criteria” tests. River of Life

Kingdom Ministries, 611 F.3d at 374 (Cudahy, J., concurring); id. at 386 (Sykes, J., dissenting)

(“The distinction between ‘accepted zoning criteria’ and the ‘regulatory purpose’ of

exclusionary zoning is nonexistent or too subtle to make any difference in individual

equal-terms cases. Zoning decisions are always tied to accepted land-use ‘criteria.’”); see also

Centro Familiar, 651 F.3d at 1173 n.46 (citing Judge Cudahy’s observation approvingly).

We need not interject ourselves into that discussion. For our purposes here, we note

that to the extent either test could be read as permitting courts to consider regulatory

objectives or zoning criteria that are not expressed in the text of the ordinance or land use

regulation at issue, we may not follow suit. See Elijah Group, 651 F.3d at 424 (“The ‘less than

equal terms’ must be measured by the ordinance itself and the criteria by which it treats

institutions differently.”); compare River of Life Kingdom Ministries, 611 F.3d at 371 (majority

opinion) (criticizing the “regulatory purpose” test for being too “subjective and manipulable,”

inviting “speculation concerning the reason behind exclusion of churches” and “self-serving

testimony by zoning officials and hired expert witnesses”) with id. at 376–77 (Williams, J.,

concurring) (endorsing the “regulatory purpose” test and criticizing the majority’s test as

“present[ing] a risk of self-serving testimony just as the majority believes the ‘regulatory

purpose’ approach would”).

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imposed onerous burdens on churches not imposed on any other type of assembly

or institution, similarly situated or not. Specifically, those two provisions

required churches, and only churches: (1) to conduct a survey to find all

neighboring property owners within a 1300-foot radius and to seek and obtain

approval from sixty percent of them; and (2) to obtain discretionary approval

from the mayor and Board of Aldermen. On the face of the ordinance, the only

“criteri[on] by which it treats institutions differently,” Elijah Group, 643 F.3d at

424, with respect to these burdensome requirements, is whether the institution

is a church. This differential treatment of churches cannot be justified by any

regulatory purpose or zoning criterion set forth in the ordinance. The churchspecific burdens in Sections 10.86 and 10.89 were unlawful under RLUIPA.14

We now turn to Holly Springs’s newly adopted ban on religious facilities

on the courthouse square. The ordinance draws an express distinction between

“[c]hurches, temples, synagogues, mosques, and other religious facilities” on the

one hand, and various nonreligious institutions on the other hand, for purposes

of designating permitted and nonpermitted uses in the “Business Courthouse

Square District.” Consequently, and as discussed above, Opulent Life has

established a prima facie Equal Terms Clause violation, see CentroFamiliar, 651

F.3d at 1171 (“[T]he express distinction drawn by the ordinance [between

religious and non-religious institutions] establishes a prima facie case for

unequal treatment.”), and Holly Springs has the burden of proving the validity

of the ban, see 42 U.S.C. § 2000cc-2(b).

The other provisions of Section 10.8 are not so plainly invalid. Those provisions 14

required churches to conform to standards that embodied more typical zoning criteria such as

traffic flow and noise levels. At least some of those standards, e.g. Section 10.85, are made

applicable to nonreligious institutions through other provisions of the ordinance. We need not

resolve the validity of these provisions, however, because both sides agree that two key

provisions of Section 10.8 violated RLUIPA, and Holly Springs has repealed Section 10.8 in

its entirety, thereby mooting Opulent Life’s claim for injunctive relief against that section of

the ordinance.

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To bear its burden, Holly Springs must first identify the regulatory

purpose or zoning criterion that explains the religious facilities ban, as stated

explicitly in the text of the ordinance, and then show that it has treated religious

facilities on equivalent terms as all nonreligious institutions that are similarly

situated with respect to that stated purpose or criterion. The amended

ordinance includes a description of the purpose of the Business Courthouse

Square District: “to designate the area . . . for certain retail, office and service

uses which will complement the historic nature and traditional functions of the

court square area as the heart of community life.” Insofar as this language can

be read as purporting to create a commercial district, that justification fails

because other noncommercial, non tax-generating uses are permitted in the

district, as Holly Springs conceded at oral argument. For instance, the

ordinance permits libraries, museums, art galleries, exhibitions, and “similar

facilit[ies]” on the courthouse square. Elijah Group, 643 F.3d at 423–24

(rejecting the city’s “retail corridor” justification where the ordinance excluded

churches but permitted “many nonreligious, nonretail buildings” including

private lodges and clubs); River of Life Kingdom Ministries, 611 F.3d at 374

(“[S]hould a municipality create what purports to be a pure commercial district

and then allow other uses, a church would have an easy victory if the

municipality kept it out.”). In addition, to the extent that the stated purpose for

the district could be read to suggest that the “heart of community life” in Holly

Springs is consistent with a variety of nonreligious civic uses, but not religious

uses, that inherently discriminatory regulatory purpose would likewise fail to

justify the ban. 

Beyond making these initial observations, however, we do not address

whether Holly Springs can justify its exclusion of religious facilities from the

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No. 12-60052

courthouse square under the test we have adopted. Mindful that Holly Springs 15

has not yet had an opportunity to come forward with the zoning criteria or

regulatory objectives that it believes justify this ban, we leave it for the district

court on remand to determine, in the first instance, whether Opulent Life is

likely to succeed on the merits of its facial claims against the amended

ordinance.

B.

We now proceed to the second preliminary injunction requirement—that

Opulent Life show a substantial threat of irreparable harm if the injunction is

not granted. The district court denied the injunction solely on the ground that

Opulent Life cannot satisfy this requirement. It reached this conclusion based

on its determination that Opulent Life’s ability freely to exercise its religion is

not currently being harmed because its present meeting space is adequate. 

Opulent Life argues that this factual determination is clearly erroneous and

further argues that it has suffered irreparable harm as a matter of law. The

United States agrees with Opulent Life. Holly Springs argues that the district

court’s analysis was sound and should be affirmed.

Importantly, Holly Springs’s amendment to its zoning ordinance does not

matter for purposes of our review of the district court’s irreparable harm

determination. Opulent Life made clear at oral argument that, in light of the

At oral argument, Holly Springs attempted to defend the ban by repeatedly stressing

15

that it only covers one zoning district and that religious facilities are allowed to meet

elsewhere in Holly Springs. Although the limited reach of the ban precludes a violation of

RLUIPA’s proscription against imposing “a land use regulation that . . . totally excludes

religious assemblies from a jurisdiction,” 42 U.S.C. § 2000cc(b)(3)(A), the ban’s limited

application is irrelevant to Opulent Life’s claim under the Equal Terms Clause. That clause

manifestly protects religious assemblies and institutions from unequal treatment in every

zoning district within a jurisdiction. See Elijah Group, 643 F.3d at 424 (finding a violation of

the Equal Terms Clause where a city treated churches differently than private clubs in B-2

zones); cf. Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975) (“[O]ne is not to have the

exercise of his liberty of expression in appropriate places abridged on the plea that it may be

exercised in some other place.” (internal quotation marks omitted)).

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recent amendment to the ordinance, it now seeks the preliminary injunction of

Holly Springs’s ban on religious facilities operating on the courthouse square. 

(Section 10.8 cannot be enjoined, of course, because it has been repealed.) 

Regardless of the zoning obstacle, the harm asserted by Opulent Life is its

inability to occupy and use its leased property. We now consider whether the 16

district court properly analyzed Opulent Life’s asserted irreparable harm. 

We conclude that the district court erred and that Opulent Life has

demonstrated that it will suffer irreparable harm absent the injunction it seeks. 

Most basically, Opulent Life has satisfied the irreparable-harm requirement

because it has alleged violations of its First Amendment and RLUIPA rights. 

“The loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347,

373 (1976); see also 11A Charles Alan Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure § 2948.1 (2d ed. 1995) (“When an alleged

deprivation of a constitutional right is involved, most courts hold that no further

showing of irreparable injury is necessary.”). This principle applies with equal

force to the violation of RLUIPA rights because RLUIPA enforces First

Amendment freedoms, and the statute requires courts to construe it broadly to

protect religious exercise. See 42 U.S.C. § 2000cc-3(g) (“This chapter shall be

construed in favor of a broad protection of religious exercise, to the maximum

extent permitted by the terms of this chapter and the Constitution.”); see also

Reaching Hearts Int’l, Inc. v. Prince George’s Cnty., 584 F. Supp. 2d 766, 795 (D.

Md. 2008) (“[T]he infringement of one’s rights under RLUIPA constitute[s]

irreparable injury.” (citing Elrod, 427 U.S. at 373)). In the closely related RFRA

context (the predecessor statute to RLUIPA), courts have recognized that this

If anything, the amendment to the zoning ordinance adds urgency to Opulent Life’s 16

preliminary injunction motion because the ordinance now makes it impossible, instead of just

difficult, for Opulent Life to obtain permission to operate on its leased property.

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same principle applies. See Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir.

2001) (“[C]ourts have held that a plaintiff satisfies the irreparable harm analysis

by alleging a violation of RFRA.”).

Holly Springs resists a straightforward application of this principle by

attempting to distinguish Elrod. To do so, Holly Springs relies on the Third 17

Circuit’s decision in Hohe v. Casey, 868 F.2d 69 (3d Cir. 1989), which reasoned

that while the “loss of First Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury,” Elrod, 427 U.S. at 373,“the

assertion of First Amendment rights does not automatically require a finding of

irreparable injury.” 868 F.2d at 72–73. “Rather the plaintiffs must show a

chilling effect on free expression.” Id. at 73 (internal quotation marks omitted). 

But even if we were to adopt the reasoning of Hohe, its facts make clear that it

sets forth only a narrow exception to the Elrod principle that is inapplicable

here. In Hohe, the plaintiffs challenged the constitutionality of certain union

fees. Id. at 71. Pending final disposition of the challenge, the union escrowed

the disputed fees to ensure protection of the challengers’ interest against

compelled speech. Id. at 72. Thus, the only asserted harm by the challengers

was that “the mere deduction and collection of the fees . . . deprived [them] of

money they might use to support their own political, ideological, or other

purposes.” Id. 73. This minor and temporary monetary harm does not match

Opulent Life’s exclusion from its leased property, which Opulent Life asserts

significantly impairs its free exercise of religion. Elrod, not Hohe, governs this

Holly Springs also contends that Opulent Life waived this argument. The record

17

refutes this contention. Opulent life made this very argument in its memorandum in support

of its motion for preliminary injunction.

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case. Opulent Life has alleged violations of its First Amendment and RLUIPA 18

rights and thereby satisfied the irreparable injury requirement.

Moreover, even assuming arguendo that we were required to consider the

specific evidence in the record, we would still find irreparable harm. The record

is replete with evidence of irreparable harm to Opulent Life’s ability to freely

exercise its religion. Opulent Life avers that its current building is too small for

its present membership. The building cannot accommodate Opulent Life’s

community service programs—programs Opulent Life considers essential to its

religious mission. The building also allows no room for Opulent Life to grow,

and has already prevented would-be members from joining and limited Opulent

Life’s ability to welcome visitors. This frustrates Opulent Life’s religious

mission. Moreover, the sufficiency of this evidence is buoyed by the rule that

courts may not second-guess a religious entity’s sincere belief that certain

activities are central to or required by its religion. See Hobbie v. Unemployment

Appeals Comm’n, 480 U.S. 136, 144 n.9 (1987) (“In applying the Free Exercise

Clause, courts may not inquire into the truth, validity, or reasonableness of a

claimant’s religious beliefs.”); Merced v. Kasson, 577 F.3d 578, 590 (5th Cir.

2009) (“The judiciary is ill-suited to opine on theological matters, and should

avoid doing so.” (citing Smith, 494 U.S. at 887)).

 In lieu of Elrod, Holly Springs also urges us to follow an unpublished Sixth Circuit 18

decision, which held that a church’s religious exercise was not substantially burdened by the

denial of its application for a permit to build a larger building. See Living Water Church of

God v. Charter Twp. of Meridian, 258 F. App’x 729 (6th Cir. 2007) (unpublished). According

to Holly Springs, Living Water supports the conclusion that Opulent Life has not shown

irreparable harm. To justify reliance on this substantial-burden case, Holly Springs cites

authority for the proposition that substantial burdens amount to irreparable harm and then

concludes “[c]onversely, if no substantial burden, then no irreparable injury.” But this

argument fails because it rests on a basic logical fallacy. A substantial burden may well be

(and probably is) sufficient to establish irreparable injury, but it surely is not necessary.

Living Water does not affect our conclusion that Opulent Life has shown irreparable harm.

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This evidence of irreparable harm refutes the district court’s

determination. Indeed, the district court’s brief analysis does not even address

this abundant evidence of ongoing harm to Opulent Life’s religious practice. In

addition, the district court’s analysis is flawed because under its logic it would

be almost impossible for Opulent Life ever to show irreparable harm. The

district court’s reasoning would not support an irreparable harm finding until

Opulent Life’s membership exceeds its building’s capacity, but Opulent Life

insists that it cannot grow without a larger building, and supports this assertion

with record evidence. In sum, our review of the record leaves us with a firm

conviction that the district court erred in finding that Opulent Life’s members

are not “currently being deprived of the right to freely exercise their religion.” 

See Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 (1982) (a district

court clearly errs in its factual findings if “an appellate court is left with the

definite and firm conviction that a mistake has been committed” (internal

quotation marks omitted)).

Moreover, Holly Springs’s responses to this evidence are unpersuasive. 

First, Holly Springs boldly proclaims in its brief that Opulent Life “concedes its

ability to function meaningfully in its current location.” But this assertion is

belied by all of the record evidence just discussed and, in any event, Holly

Springs does not state where Opulent Life made this purportedly critical

concession. Second, Holly Springs argues that Opulent Life’s “long litigation

delay” suggests it is not suffering irreparable harm. See 11A Charles Alan

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure

§ 2948.1 (2d ed. 1995) (“A long delay by plaintiff after learning of the threatened

harm may be taken as an indication that the harm would not be serious enough

to justify a preliminary injunction.”). Opulent Life dismisses this argument as

frivolous. Whether frivolous or not, it is unconvincing on the these facts. Not

only is it in tension with Holly Springs’s primary contention that Opulent Life’s

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claims are unripe, but worse, the majority of Opulent Life’s four-month delay

was caused by Holly Springs’s refusal to produce a copy of its zoning ordinance

and the consequent necessity that Opulent Life resort to a public records request

to obtain a copy. Third, Holly Springs offers to present evidence on remand

“disputing Pastor DeBerry’s comparisons of the Marshall Baptist Center with

the leased building on the town square.” Most pertinently, Holly Springs states

that Marshall Baptist Center is zoned as an office building with a maximum

occupancy of ninety-four, and that Opulent Life’s “Facebook page displays

images of an event held in a room with musical equipment, a long banquet table,

and approximately 50 - 60 chairs.” But even assuming arguendo that Holly

Springs can establish these facts, they do not discredit Pastor DeBerry’s sworn

assertion that the Marshall Baptist Center can accommodate only twenty to

twenty-five people during customary religious activities. Nor would these facts

undercut Opulent Life’s other record evidence that its current building is

inadequate for its present membership.

Finally, another independent reason that Opulent Life has established a

substantial threat of irreparable harm is that it will lose its lease if it is not

allowed to operate in its leased property. “The deprivation of an interest in real

property constitutes irreparable harm.” Third Church of Christ, Scientist, of

N.Y.C. v. City of New York, 617 F. Supp. 2d 201, 215 (S.D.N.Y. 2008), aff’d, 626

F.3d 667 (2d Cir. 2010). This threat has become significantly more imminent

since Opulent Life filed its notice of appeal, as explained in Opulent Life’s

motion to expedite its appeal, which was granted in May 2012. Opulent Life

attached to that motion an affidavit from its lessor, Rowland Huff. In it Mr.

Huff explains that if Opulent Life is not allowed to occupy the property soon, he

will be forced to terminate the lease and to find another lessee because he is

suffering financial difficulties and is not currently receiving rental payments

from Opulent Life under the terms of the lease.

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Opulent Life has met its burden of showing a substantial threat of

irreparable injury. The district court abused its discretion in reaching a

contrary conclusion.

C.

The third preliminary injunction factor requires Opulent Life to show that,

absent an injunction, its threatened injury outweighs any harm Holly Springs

will suffer as a result of the injunction. We have just concluded that Opulent

Life’s harm is irreparable; hence, Holly Springs would need to present powerful

evidence of harm to its interests to prevent Opulent Life from meeting this

requirement. Nevertheless, Holly Springs argues persuasively that it is entitled

to put on evidence before a preliminary injunction may issue against it. This 19

is especially so given our conclusion that the case should be remanded to allow

the district court the first opportunity to decide whether Opulent Life is likely

to succeed on the merits of its claims against the new ordinance.

Holly Springs asserts its right to present evidence in the district court

based on Fed. R. Civ. P. 65. Rule 65(a)(1) provides that a “court may issue a

preliminary injunction only on notice to the adverse party.” We have held that

the “Rule’s notice requirement necessarily requires that the party opposing the

preliminary injunction has the opportunity to be heard and to present evidence.” 

Harris Cnty., Tex. v. CarMax Auto Superstores Inc., 177 F.3d 306, 325 (5th Cir.

1999) (“The notice required by Rule 65(a) before a preliminary injunction can

issue implies a hearing in which the defendant is given a fair opportunity to

oppose the application and to prepare for such opposition.”) (citing Granny Goose

Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, Local No. 70, 415 U.S.

423, 434 n.7 (1974)). Moreover, “[c]ompliance with [R]ule 65(a)(1) is mandatory.” 

Parker v. Ryan, 960 F.2d 543, 544 (5th Cir. 1992). Here, Holly Springs never

The United States agrees that a remand is appropriate to allow Holly Springs to 19

present evidence on the issue of the harm an injunction would cause it.

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had an opportunity to present evidence or to be heard in the district court

because the court denied the preliminary injunction motion before Holly

Springs’s response was due. Under these circumstances, the proper remedy is

to remand to the district court. Cf. Harris Cnty., 177 F.3d at 326 (“[A]

preliminary injunction granted without adequate notice and a fair opportunity

to oppose it should be vacated and remanded to the district court.”). Remand is

necessary to allow Holly Springs to present evidence concerning the harm it will

suffer if a preliminary injunction is entered, as well as to allow both sides to

address, and to present evidence concerning, Opulent Life’s claims challenging

the validity of the recent amendments to the ordinance.

D.

Fourth, Opulent Life must show that a preliminary injunction will not

disserve the public interest. “[I]njunctions protecting First Amendment

freedoms are always in the public interest.” Christian Legal Soc’y v. Walker, 453

F.3d 853, 859 (7th Cir. 2006); accord Ingebretsen ex rel. Ingebretsen v. Jackson

Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996) (holding that where a law

violates the First Amendment “the public interest was not disserved by an

injunction preventing its implementation”). This principle applies equally to

injunctions protecting RLUIPA rights because, as discussed, RLUIPA enforces

the First Amendment and must be construed broadly. Accordingly, Opulent Life

will have met this requirement if on remand it is able to establish a likelihood

of success on the merits.

IV.

In sum, the issues on remand include but are not limited to: (1) whether

Opulent Life is likely to succeed on its claims challenging the validity of the

newly adopted religious facilities ban; (2) whether the harm Opulent Life will

suffer absent a preliminary injunction outweighs the harm an injunction will

cause Holly Springs; (3) the amount of actual damages Opulent Life suffered on

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No. 12-60052

account of Sections 10.86 and 10.89, which violated RLUIPA; and (4) at the

district court’s discretion, whether Opulent Life should be awarded reasonable

attorneys fees as a prevailing party under 42 U.S.C. § 1988(b).20

V.

For the foregoing reasons, we VACATE the district court’s order denying

Opulent Life’s motion for a preliminary injunction and REMAND for further

proceedings consistent with this opinion.

Even if Opulent Life proves only nominal damages, it is a prevailing party potentially 20

eligible for fees under 42 U.S.C. § 1988(b). See Farrar v. Hobby, 506 U.S. 103, 112 (1992) (“We

therefore hold that a plaintiff who wins nominal damages is a prevailing party under § 1988.”).

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Case: 12-60052 Document: 00512001968 Page: 30 Date Filed: 09/27/2012