### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 i t s b o o ks a zoning ordinance that explicitly singled out “churches” for unfavorable treatment, albeit not for the outright banning of their presence from particular locations. The n i gh t b efore we heard argument, Holly Springs

a m e nded its ordinance, this time to ban “[c]hurches, temples, synagogue s , mosques, and other religious facilitie s ” f r om 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

- r e pealed) ordinance’s U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 2 7, 2 012 Lyle W . Cayce Clerk Case: 12-60052 Document: 00512001968 Page: 1 Date Filed: 09/27/2012No. 12-60052

church-specific provisions, facially and as applied, violate t h e Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S. C

. § 2000cc et seq. ; t h e First Amendment; the Fourteenth Amendment; and the Mississip p i Constitution. Opulent Life simul t a n e o usly filed a motion for a preliminary injunction of the challenged provisions. The district court denied the motion on the sole ground that Op u l e n t L i f e has not shown a substantial threat of irreparable harm. For t h e 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 c o n g r e g a t ion in need of a larger meeting space. Since o p e n i n g its doors in February 2011, Opulent Life has grown to about eighteen members

. I t d e sires more growth but is 1 constrained by its sm a l l b uilding, 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 service s b ut 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 ho s t c e r t ain 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.

Mos t of the pert inent fac ts app ear in the affid avit of Telsa De Berr y, wh o has s erved 1 as O pule nt Life ’s p ast or sin ce its f ound ing. H olly Sp rings has not yet hadan oppor tunit y to pr e s e nt evide nce to the dis tri ct cour t beca use the cour t deni ed the mo tio n for pr elim inary injunct ion a we ek bef ore Ho lly Sp rings ’s opp os itio n wa s due and bef ore Ho lly Sp r ings had
res pond ed. Op ulentLif e a pp ealedt he 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 mis s i o n s t atement 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 activiti e s a n d o u tr e ach, 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 main t a i n 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, th e 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 t h e p r o p erty 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 ex p e r iencing significant financial hardship, that he urgently needs rental income from the property, and that he will ha v e n o choice but to terminate the lease agreement if Opulent Life cannot soon occupy the property. Less than a month after signing the lease, Op u l e n t L ife applied for a renovation permit and submitted a comprehensive building plan t o t he Holly Springs City Planning Commission. T h e 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) require m ents of Holly Springs’s zoning ordinance that apply only to churches (hereinafter “Section 10.8”). The 2

Sec tio n 10.8 only sin gled out chur ches , and not othe r reli gious fac ilit ies , u n l i k e t he 2
new ly ado pt ed ban, wh ich app lies mo re broa dly to “[ c] hurc hes , tem ple s, synago gues , mo squ es , 3 Case: 12-60052 Document: 00512001968 Page: 3 Date Filed: 09/27/2012No. 12-60052

Commission did not indicate which provisions of Section 10.8 Opulent Life failed to meet, but it did provide Pastor DeBerry with a copy o f t h o s e requirements. It is Pastor DeBerry’s belief tha t O p u lent 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 obtai n a p proval 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 facil i t y must be located on a through street; 10.82 Ingress and egress to t h e 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 th a t noise levels shall not disturb the neighborhood in which the facil i t y i s proposed to be located; 10.84 The pr oposed 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 othe r reli gious f

acil itie s. ”
The lis t of chur ch- sp ecif ic requ irem ents that the com mi ss ion gave Past or De Berr y 3 dif fer s in a few mi nor res pec ts fr om the requ irem ents in the act ual zoning ord inanc e. Op ulent Life had to fil e a Mis sis sip pi PublicRecord s Act reques t to obtain a cop y of the ent ire zoni ng ord inanc e beca use pr ior to that requ es t, the Mayo r of Ho lly Sp rings , Andr e De Berr y, info rm ed Past or De Berr y that the ord inanc e wa s a cont roll ed doc ume nt that he wo uld not r e l e ase to Op ulentLif

e. 4 Case: 12-60052 Document: 00512001968 Page: 4 Date Filed: 09/27/2012No. 12-60052
10.86 Survey of the property owners within a 1300 foot radius with 60% approval; 10.87 Sign must be located o n 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 p a r ks. Prior to the recent amendments to the ordinance, h owever, only churches were subject to approval by neighboring pro p e rty o w n e r s and the mayor and Board of Aldermen. Opulent Li f

e 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 Am e n d m e n t t o the U.S. Constitution facially and as 4 applied , the Equal Protection and Due Process Clauses of the Fourteenth Amendme n t f

a c ially and as applied, and the Mississippi Constitution facially and as applied. The complaint also seeks injunc t i v e r e lief 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 file d a m o t ion for a preliminary injunction to enjoin enforcement of Section 10.8. In support, it attached an affidavit of Pasto r 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 requ e s t u ntil it can satisfy the zoning requirements that apply to

Op ulent Life allege d violat ions of RLUIPA’s Eq u a l T e r m s Claus e, 42 U. S. C. 4 § 2000c c(b)( 1); Subs tant ial Burd en Claus e, § 2000c c( a); Nond isc rim inati on C l a u s e , § 2000c c(b)( 2); and pr ohibit ion agains t unrea so nable lim itat ions on reli gious l a n d u s e s, § 2 000cc (b) (3)

. 5 Case: 12-60052 Document: 00512001968 Page: 5 Date Filed: 09/27/2012No. 12-60052

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, Mar s h a l l B aptist 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 t h e complaint or pr e l i m i nary injunction motion. Pursuant to local rules, Holly Springs’s opposition was not d ue until fourteen days after the motion’s filing. Opulent Life file d i t s n o t ice 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 ordinanc e , Holly Springs repealed Section 10.8 and

Acco rd ing to couns el for Op ulent Life , on the Frid ay bef ore o r a l a r g u me nt, Ho lly 5 Sp rings noti fie d O p ulent Life ’s couns el of its inte ntio n to ame nd its ord inanc e the fol low ing Tues day evening, and pr ovide d a dr aft of the ord inanc e it inte nded to ado pt

. On the mo rning of oral argum ent, Wed nes day, August 8, 2012, Ho lly Sp rings info rm ed Op ulent Life ’s couns el thatithadp ass ed the ord inanc e the night bef ore
. It didno t give o pp os ing c ouns el a c opy of the enac tedver sio n o f the newor dina nce bef ore or al argum ent.
At oral ar gu m e n t , couns el for Ho lly Sp rings conc ede d that Ho lly Sp rings never info rm ed the dis tri ct cour t or this cour t of its inte ntio n to ame nd its ord inanc e. Ho lly Sp rings al s o n e g l e c t e d to fil e a cop y of the ame nded ord inanc e pr ior to oral argum ent. This cour t ins tru cte d couns el to fil e a cop y by the end of the we ek , pur su a n t t o Fed. R. App

. P. 28(j)

. Ho lly S pr ings com pli ed on Frid ay, August10. 6 Case: 12-60052 Document: 00512001968 Page: 6 Date Filed: 09/27/2012No. 12-60052

r eplaced 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

co m m u n i ty 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 o r d i nance renders this case moot—while simultaneously urging us to adjudicate the facial validity of the new ordinance. Opulent Life respond e d that Holly Springs’s mootne s s c o ntention is refuted by the Supreme Court’s decision in Northeastern Florida Cha p t e r 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 C o u r t granted certiorari to decide whether the petitioner had standing to challenge Jacksonville’s minority set-aside p r o gr a m f o r c ity c o ntr a cts. Id. at 658.

De sp ite rais ing thes e just iciabilit y chall enges to the old ord inanc e, at oral argum ent 6 Ho lly Sp rings urged us to dec ide the facial validity of the new ord inanc e. We ask ed whet her Ho lly Sp rings “w ant[ ed] us to con s t r u e t h e cur rent ord inanc e as to wh ethe r it’ s fac ially
a pp rop riat e unde r RLUIPA or not, ” and couns el for Ho lly Sp rings res pond ed: “The new ord inanc e? Uh . . . we w ould

. . . . Ye s.
. . . I belie ve that judi cialeconom y wouldrequir e that you d o t hat. ” 7 Case: 12-60052 Document: 00512001968 Page: 7 Date Filed: 09/27/2012No. 12-60052

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 G e n e ra l Contractors Court described its facts as presenting “an a f o rtiori case” to City of Mesquite

. Id. It explained that: There is no mere risk that Jacksonville will repeat its a l l e g e d l y wrongful c o n duct; it has already done so.
. . . The gravamen of petitioner’s c o m p laint is that its members are disadvantaged in their efforts to obtain city contracts. The new o r d inance may disadvantage them to a lesser degree than the old one, but insofar
as it accords prefere n t i al treatment to black- and female-owned contractors

. . . it disadvantages them in the same fundamental way. Id. Here, as in Asso c i a t e d G e neral 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 Associate d G e n eral 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 d amages and attorney’s fees. See 42 U.S.C. § 1988(b) (authorizing attorne y’ s f e e s 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, h o w e v e r small, in the outcome of the litigation, the case is not moot.” (altera t i o n and internal quotation marks omitted)); see also Erwin Chemerinsky, Fe d e r a l 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. Rip e n e ss d o ctrin e “is d ra w nb o thfro m Article III lim ita tio n s o n ju d icia l p o w e r a n dfro m p ru d e n tia l

re a so n s fo r re fu sin g to e x e rcise ju risd ictio n .” R en o v
. Ca th o lic So c. Serv s., In c. , 5 0 9 U .S

. 4 3 , 5 8 n .1 8 (1 9 9 3 ). It is “p e cu lia r l y a q u e stio n o f tim in g ,” R eg io n a l R a il R eo rga n iza tio n A ct Ca ses , 4 1 9 U .S

. 1 0 2 , 1 4 0 (1 9 7 4 ), w h o se “b a sic ra tio n a le is to p re v e n t th e c o u r t s , th ro u gh a v o id a n ce o f p re m a tu re a d ju d ica tio n , fro m

e n ta n glin g th e m se lv e s in ab stra ct d isa g re e m e n ts.” A b b o tt L a b s. v
. G a r d n er , 3 8 7 U .S

. 1 3 6 , 1 4 8 (1 9 6 7 ) , a b roga ted o n o th er g ro u n ds by Ca lifa n o v
. Sa n d ers , 4 3 0 U

. S

. 9 9 ( 1 9 7 7 ). D e te rm in in g w h e th e r a cla im is rip e fo r ju d icia l re v ie w

re q u ire s th e e v a lu a tio n o f (1 ) “th e fitn e ss o f th e issu e s fo r ju d icia l d e cisio n” a n d (2 ) “th e h a rd s h i p to th e p a rtie s o f w ith h o ld in g co u rt co n sid e ra tio n .” A b b o tt L a b s. , 3 8 7 U .S . a t 1 4 9

. 9 Case: 12-60052 Document: 00512001968 Page: 9 Date Filed: 09/27/2012No. 12-60052

Holly Springs does not argue that Opulent Life’s claims are unripe under these ordinary ripeness considerations, but instead that O p u l ent Life has not satisfied a p r u d e n t i al ripeness requirement set forth in W illia m so n Co u n ty R eg io n a l Pla n n ing Co m m issio n v
. H a m i l t on Bank of J

o h n so n C ity , 4 7 3 U .S

. 1 7 2 (1 9 8 5 ). See Rosedale Missionary Baptist Church v. New Orleans City , 641 F.3d 86, 89 n.2 (5th Cir. 2011) (collecting Sup r e m e Court cases for the proposition that Williamson County ’s ripeness requirements are prudential). Under Williamson County , Fifth Amendment regulatory takings claims are n o t r i pe

“ u n t i l the government entity charged with implementing the regulations has reached a final decision regarding the ap p l i c a tion of the regulations to the property at issue.” 473 U.S. at 1 8 6

. Yet even assuming arguendo that Willi a m s o n County ’s final-decision rule applies to Opulent Life’s claims, it 7

Whet her Wil li am son County app lies to RLUIPA and Firs t Ame ndm ent chall enges to 7 land use dec isi ons is an ope n ques tio n in t h i s cir cuit

. The Sup rem e Court has only app lied Wil li am son County ’s fina lity rule to regula tor y tak ings clai ms
. See Pal azzo lo v. Rhode Isla nd , 5 3 3 U

. S

. 606 (200 1); Suitum v. Tah oe Reg’l Pla nning Agen cy , 520 U. S. 725 (199 7); Luca s v
. S.C. Coas tal Counci l , 505 U. S. 1003 (199 2); Yee v. City of Es c o n d i d o , 5 0 3 U. S. 519 (199 2); Ma cD onal d, Som me r & Frate s v. Yol o Cnty. , 477 U. S. 340 (198 6). We have gone a bit fur ther , app lying the fina lity requ irem ent to ord inary tak ings clai ms , Urb an De ve lop ers LLC v. City of Jac kson, Mi ss. , 468 F.3d 281, 294– 9 5 ( 5 t h Cir. 2006) , and pr oce dur al due pr oce ss clai ms that are “anc illar y” to or “ar ise fr om ” a tak ings claim

. See Bowlby v. City of Aberdeen, Mi ss. , 681 F.3d 215 , 2 2 3

– 2 6 (5t h Cir. 2012) (s umm arizi ng cir cuit pr ece dent and app lying genera l rip enes s pr incip les , but dec lining to app ly Wil li am son County , to find rip e a pr oce dur al due pr oce ss clai m that wa s not ancil lary to a tak ings clai m)

. Ot her cir cuit s have app lied Wil li am son County mo re broa dly. See, e. g., Mur phy v. New Mi lf

ord Zoni ng Com m’

n , 402 F.3d 342, 349 (2d Cir. 2005) (c itin g cas es fr om othe r cir cuit s that app ly Wil li am son County to due pr oce ss and equal pr ote cti on claim s) . The S eco nd Circ uit app lies t he Final- De cis ion Rule to RLUIPA and Firs t Ame ndm ent clai ms , but only if a tw o-p art thr es hold tes t is me t. See id. at 350 (“ Relat edl y, we do not belie ve it nece ss ary to dis tinguis h the RLUIPA clai m fr om the Firs t Ame ndm ent Free Exerci se clai m when it com es to our rip enes s inquiry.” ). The Sixth Circ uit app lies t he fina l d ecis ion rule t o RLU IPA and FirstAmend me nt clai ms , and has d ecli ned to dec ide wh ethe r or not to ado pt the Sec ond Circ uit’ s thr es hold tes t. See Mi le s Chri sti Rel igi ous Or der v. Tw

p. of Nor thvi ll e , 629 F.3d 533, 541–42 (6t h Cir. 2010) (d ist inguis hing Mur phy and ther efo re not dec idi ng wh ethe r to ado pt the thr e s h o l d tes t) ; see also id. at 545 (Bat chel der , C

. J

. , d iss enti ng) (en dor sin g Mur phy ’s thr es hold tes t)

. We tak e no pos itio n here regar ding wh ethe r and wh en Wil li am son County may app ly to RLUI PA a n d Fir st Ame ndm ent chall enges to landus e d ecis ions

. 10 Case: 12-60052 Document: 00512001968 Page: 10 Date Filed: 09/27/2012No. 12-60052

presents no barrier to our adjudicating Opulent Life’s facial c h allenges 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 ri p eness 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 t h e 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 leg a l

. . . . [T]he case is fit for judicial decision.”). Second, Opulent Life would suffer hardship if review were delayed. Before Holly Springs amen d ed its ordinance, Opulent Life already faced considerable hardship ab sent immediate judicial review. Compliance with S e ction 10.8 would have been onerous, and noncompliance would have mea n t forfeiting the larger meeting space Opulent Life has leased. Now Opulent Life would suffer even more acute h ardship 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 n e w b u i l d i ng 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 e x e r c ise” under RLUIPA.). Opulent Life’s facial challenges are ripe and that suffices for us to decide the merits of this interlocutory appeal.

11 Case: 12-60052 Document: 00512001968 Page: 11 Date Filed: 09/27/2012No. 12-60052 III. Turning to the merits, we review the distric t c o u r t ’s denial of Opulent Life’s preliminary injunction application for abuse of discretio n
. Planned Parenthood of Hous. & Se. Tex. v. Sanchez , 403 F.3d 324, 329 ( 5th Cir. 2005). The prerequisites to obtaining a p reliminary 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 th e threatened injury outweighs any harm that the injunction might cause to th e 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 t h e district court’s denial should be affirmed because it correctly c o n c l u ded 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 factor s support affirmance. Opulent Life
argues, in contrast, that the district cou rt ’ s irreparable-harm determination was both legally and factu a lly 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.

T he Unit ed Sta tes has fil ed an am ic us cur ia e brie f in sup por t of Op ulent Life

. T h e 8 Unit ed Sta tes agree s wi th Op ulent Life that the dis tri ct cour t err ed in find ing no irr epa rable harm , and fur theragr ees t hat Op ulentLif e h as dem ons tra teda lik eliho od of suc ces s on the
me rit s of its RLUIPA Equal Term s Claus e chall enge to Sec tio n 10.8

. The Unit ed Sta tes st ops sh o r t , h o w e ver, of urging entr y of a pr elim inary injunct ion at this junct ure. Inst ead , it sup por ts a rem and for Ho lly Sp rings to pr es ent any evide nce it ca n of how a pr elim inary injunct ion wo uld harm it s inte res ts

. 12 Case: 12-60052 Document: 00512001968 Page: 12 Date Filed: 09/27/2012No. 12-60052 A. We first consider whether Opulent Life has shown a substantial likelihood of success on the merits. Although Opulent Life has asse r t e d several consti t u t i o n a l and RLUIPA claims, it focused its briefing on its claim under R L U IPA’s Equal Terms Clause and advised that “this Court need not look beyond the Equal Terms Clause t o f i n d a likelihood of success on the merits.” 9 The United States has followed suit. We accordingly limit our discussion to the Equal Terms Clau s e claim, without considering the merits of Opulent Life’s other claims. 1. I n Cutter v. Wilkinson , 544 U.S. 709, 714–17 (2005), the Supre m e C o u r t 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, consiste n t with [Supreme C o u r t ] precedents.” Id. at 714. The story begins with the Court’s decision in Employment Division, Department of Human Res o u rc es v. Smith , 494 U.S. 872 (1990). The Smith Court held that the Free Exercise Clause generally does not exempt religi o u s conduct from burdens imposed by neutral laws of general applicability. Id. at 878–82. 1 0 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 t h e

Ator al argum ent, O pule nt Life c onti nued to foc us on its Equa l Te rm s Claus e c laim 9 in arguing thatitis li ke ly t o p revailont he me rit s in chall enging the ame ndedor dina nce.

Smi th rec ognized tw o excep tio ns to this rule : (1) for “hybr id” clai ms , res ting on “th e 1 0 Free Exerci se Claus e in conjunc tio n wi th othe r cons tit utio nal pr ote cti ons ,” id. at 881–82, and (2) for clai ms brou ght in cont exts that enta il “ind ividua lized governm enta l ass es sm ent of the
reas ons for the rele vant cond uct” s u c h a s, in the unem plo ymen t com pens atio n cont ext, exem pt ions f

or thos e w ho ref

use w orkw ith “goodc aus e.” Id. at884

.

13 Case: 12-60052 Document: 00512001968 Page: 13 Date Filed: 09/27/2012No. 12-60052

s t a t e s from substantially burdening a person’s religious exercise—“even if the burden results from a rule of general a p p licability”—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 i n v a lidated it as

a pplied to the states and their subdivisions. City of Boerne v. Flores , 521 U

. S

. 5 0 7 , 5 3 2

– 3 6 ( 1 9 9 7) (holding that RFRA exceeded Congress’s powe r u n d e r S e c ti o n 5 of the Fourteenth Amendment). Congress respond e d 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 re l i gi o n 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 maxi m u m e xtent permitted by the terms of this chapter and the Constitution.” 42 U.S.C. § 2000cc-3(g). RLUIPA expressly provides a cause of action fo r v i o lations of its requirements: “A person may a s sert a violation of this chapter as a claim or defense in a judicial proceeding and obt a i n appropriate relief against a government.” § 2000cc-2(a). The phrase “ap p r o p r iate relief” does not include
money damages against states. Sossamon v. Texas , 131 S. Ct. 1651, 1655, 1658–59 (2011) (holding that RLUIPA does not unambig u o u s l y abrogate the sovereign im m u n i t y o f the states from damages claims). By contrast, money damages are available under RLUIPA against politi c al 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. 20 1 1 ) (h o l ding that municipalities and counties may be liable for money damages under RLUIPA);

14 Case: 12-60052 Document: 00512001968 Page: 14 Date Filed: 09/27/2012No. 12-60052

Lighthouse Inst. for Evangelism, Inc. v. City of Long B ra n c h , 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 E l eventh Amendment immunity). Under Supreme Court precedent, money d a m a ges 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. , 5 03 U.S. 60, 70–71 (1992)). RLUIPA contains no indication, much less clear direction, that it intends to exclude a money damages remedy. Thus, municipa l i t i e s 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 s u b s e c t ions that limit land-use regulations. The first

s u b section contains the Substantial Burden Clause, which prohibits the imposition or implementation of a land use regulation in a manner that imposes

a “substantial burd e n” o n t he religious exercise of a person, assembly, or institution unless the government can show that the r e g u lation furthers a “compelling governmental interest” by “the least restrictive means.” § 2000cc(a). The seco n d s u bsection contains three provisions under the heading “Discrimination and exclusion.” § 2000cc(b). The Equal Terms Clause prohibits imposing or implementi n g a l a nd use regulation so as to treat a religious

ass e m b l y “on less than equal terms” than a nonreligious assembly. § 2000cc(b)(1). The Nondiscrim i n a tion 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 con t a i n s two subparts that prohibit: (A) “totally exclud[ing] religious assemblies f r o m a jurisdiction”; and (B) imposing or impleme n ting a land use regulation that “unreasonably limits

15 Case: 12-60052 Document: 00512001968 Page: 15 Date Filed: 09/27/2012No. 12-60052

religious as s e m b lies, institutions, or structures within a jurisdiction.” § 2000cc(b)(3). Al t h o u gh 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 la n d u s e r e gulation in a manner that treats a religious assembly or institution on less than equal terms with a non religious assembly or institution.” § 2000cc(b)(1 )

. T h e r e 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 “l a n d 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, th e d i s p o s itive issue is whether the ordinance facially treats Opulent Life “on l e s s than equal terms with a nonreligious assembly or institutio n
. ” § 2000cc(b)(1). Before considering thi s determinative statutory language, we address the application of RLUIPA’s burden-shifting provision. Under RLUIPA, the gove r n m e n t bears the burden of persuasion once a religious plaintiff establishes a prima facie case of a violation: If a plaintiff produces prim a f a c i e evidence to support a claim alleging a v i o l a t i o n of the Free Exercise Clause or a violation of [Sectio n 2 o f RLUIPA], the government shall bear the burden of persuasion on any element of the c l a i m, 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 d i f f erentiates 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 ex p r e s s ly 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 t h e Equal Terms Clause claim. We now tu r n to the critical statutory phrase “on less than equal terms with a nonreligious assembly or institution.” Our leading case construing this l a n g u age is E lija h G ro u p , In c. v
. C ity of L eo n V a lley , 6 4 3 F .3 d 4 1 9 (5 t h C i r
. 2 0 1 1 ). 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 equ a l t e r m s ’ must be measured by the ordinance itself and the criteria by which it treats institutions differently.” Id. at 424. We concluded that the ordinanc e a t i s sue 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 , 6 5 1 F

. 3 d at 1169 n.25. In one camp is the Eleventh Circuit, which treats all land use regulations that facially differentiate between religious and nonreli gious institutions as violations of the Claus e , b u t w i ll nonetheless uphold such a regulation if it

17 Case: 12-60052 Document: 00512001968 Page: 17 Date Filed: 09/27/2012No. 12-60052

survives strict scrutiny review. See Midrash Sephardi, Inc. v. Town of Surfside , 3 6 6 F

. 3 d 1214, 1231–35 (11th Cir. 2004). The other camp includes the Third, Seventh, and Ninth Circuits. Those circuits hold that a v i o l ation of the Equal Terms Clause o c c urs only if a religious institution is treated less well than a similarly situated non r e l i g i o us comparator. The Third Circuit requires the 1 1 comparator to be “similarly situated as to the regulatory purpose .” Lighthouse Inst. , 510 F.3d at 266. The Seventh and Ninth Circuits req u i r e a comparator that is similarly situated with re s p e c t t o “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 s i t u a t e d 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 1 2 Group , 651 F.3d at 424. But our precedent cal l s f o r a t e s t that differs slightly from the Third Circ u i t ’ s “regulatory purpose” test and the Seventh and Ninth

As we obs erved in Eli

jah Gr oup , the Sec ond Circ uit has fol low ed a sim ilar app roac h 1 1 in an as- app lied chall enge, “ ide ntif [ying] a com par ator that is sim ilar ly sit uate d for all ‘f unct ional inte nts and pur pos es ’ of the regula tio n.” 643 F.3d at 423 (quo ting Thi rd Churc h of Chri st, Sci entis t, of N .Y .C. v. City of New Yor k , 626 F.3d 667 (2d Cir. 2010) ). The Sec ond Circ uit has not ado pt ed a tes t for fac ial chall enges , and even the Eleventh Circ uit require s a sim ilar ly sit uate d com par ator in as- app lied chall enges
. See Pri me ra Igles ia Bautis ta Hi sp ana of Boca Raton, Inc. v. Brow ar d Cnty. , 450 F.3d 1295, 1311 (11t h Cir. 2006 ) ( “ [A] n eutr al st atut e’s ap

pl ic atio n may violat e the Equal Term s pr ovis ion if it dif fer enti ally tre ats si mi la rl y si tuated reli gious andno nrel igious as se mbl ies .” ).

Altho ugh we do not fol low the Elevent h Circ uit in app lying st ric t sc rut iny revie w to 1 2 Equal Term s Claus e clai ms , st ric t sc rut iny is the pr ope r tes t for clai ms unde r the Subs tant ial Burd en Claus e. See 42 U. S. C. § 2000c c( a) (exp res sly pr ovidi ng for st ric t sc rut iny revie w)

. The
om iss ion of st ric t sc rut iny language fr om the Equal Term s Claus e, see 42 U. S. C. § 2000c c(b)( 1), im me diat ely fol low ing the inclu sio n of suc h language in the pr ior sub se cti on (t he Subs tant ial Burd en Claus e), is another reas on not to app ly st ric t sc rut iny revie w to E qual Term s C laus e clai ms
. See Kee ne Corp

. v. Uni ted States , 508 U. S. 200, 208 (199 3) (“ [W] here Congres s inclu des par tic ular language in one s e c t i o n o f a s t a tut e but om its it in anot her

. . . , it is genera lly pr es ume d that Congres s act s inte ntio nally a nd pur pos ely in the dis par ate inclu sio n or exclus ion. ” (int erna l q uota tio n m ark s om itt ed) ). 18 Case: 12-60052 Document: 00512001968 Page: 18 Date Filed: 09/27/2012No. 12-60052

Circuits’ “accepted zoning criteria” test. In this circuit, “[t]he ‘less than equal 1 3
t e r ms’ must be measured by the ordinance itself and the criteria by which i t treats institutions differently.” Id. In accord with this instruction, and building

on the s i m i l a r 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 instit u t i o n t h a t 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 gover n m e n t must affirmatively satisfy this two-part test to bear its burden of p e r s u asion on this element of the plaintiff’s Equal Terms Clause claim. 2. As H o l l y Springs conceded at oral argument, the now-repealed Sections 10.86 and 10.89 plainly violated the Equ a l T e rms Clause. Those provisions

Sever al juris ts have argued that t h e r e i s “ l i ttl e real cont ras t in bas ic app roac h or 1 3
res ult” betw een the “re gulato ry pur p o s e ” a n d “ac cep ted zoning cri ter ia” tes ts

. Riv er of Lif e Kingdo m Mi nis trie s , 611 F.3d at 374 (Cud ahy, J., conc urr ing); id. at 386 (S yke s, J., dis se nting) (“ The dis tinc tio n b e t w e e n ‘ac cep ted zoning cri ter ia’ and the ‘re gulato ry pur pos e’ of exclus ionar y zoning is nonexis tent or too sub tle to mak e any dif fer ence i n individual equal- ter ms cas es
. Zoning dec isi ons are al wa ys tie d to acc ept ed land -us e ‘cr ite ria. ’”) ; see also Centro Fam il ia r , 651 F.3dat117 3 n. 46 ( cit ing Ju dge Cudahy’ s obs ervat ion app rovingly)

. We need not inte rjec t ours elves in to thatd isc uss ion. For our pur pos es he re, w e n ote that to the exten t eit h e r t e st coul d be read as per mi tti ng cour ts to cons ide r regula tor y objec tives or z o n i ng cri ter ia that are not expr es se d in the text of the ord inanc e or land use regula tio n at iss ue, we may not fol low sui t. See Eli jah Gr oup , 651 F.3d at 424 (“ The ‘les s than equal ter ms ’ mus t be me asu re d by the ord inanc e its elf and the cri ter ia by wh ich it tre ats ins tit utio ns dif

fer entl y.” ); com

pa re Riv er of Lif

e Kingdo m Mi nis trie s , 611 F.3d at 371 (m ajori ty opi nion) (c rit icizi ng the “re gulato ry pur pos e” tes t for being too “s ubject ive and man ipul able, ” inviti ng “s pec ulati on conc erni ng the reas on behind e x c l u sio n of chur ches ” and “s elf-s erving tes tim ony by zoning off icia ls and hire d expe rt wi tnes se s” ) wi th id. at 376–77 (Wi lliam s, J.,
co n c urr ing) (en dor sin g the “re gulato ry pur pos e” tes t and cri tic izing the majo rit y’s tes t as “p res ent[ ing] a ris k of se lf- se rving tes tim o n y j u s t as the majo rit y belie ves the ‘re gulato ry pur pos e’ app roac h w ould”)

.

19 Case: 12-60052 Document: 00512001968 Page: 19 Date Filed: 09/27/2012No. 12-60052

imposed onerous b u rdens on churches not imposed on any other type of assembly

or institution, similarly situated or not. Specifically, those two provisions required churches, and only church e s : ( 1 ) to conduct a survey to find all neighboring property owners within a 1300-foot radius and to seek and obtain approval from sixty p e r c e n t o f 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. T h e churchspecific burdens in Sections 10.86 and 10.89 were unlawful under RLUIPA. 1 4 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 designati n g p e r m itted and nonpermitted uses in the “Business Courthouse Square District.” Consequently, and as dis c u s s e d above, Opulent Life has established a prima facie Equal Terms Clause violation, se e C e n t ro F a m i l i a r , 651 F.3d at 1171 (“[T]he express distinction drawn by the ordina n ce [between religious and non-religious institutions] establishes a prima fac ie case for unequal treatment.”), and Holly Springs has the burden of proving the validity of the ban, see42 U.S.C. § 2000cc-2(b).

The othe r pr ovis ions of Sec tio n 10.8 are not so plai n ly invalid

. Thos e pr ovis ions 1 4 requ ired chur ches to conf orm to st andar ds that em bod ied mo re typi cal zoning cri ter ia suc h as tra ff ic flo w and nois e levels

. At leas t so m e o f thos e st andar ds , e. g. Sec tio n 10.8 5, are mad e app licable to nonre ligious ins tit utio ns thr ough othe r pr ovis ions of the ord inanc e. We need not res olve the validi ty of thes e pr o v i s ions , how ever, beca use both sid es agree that tw o ke y pr o vi s ions of Sec tio n 10.8 violat ed RLUIPA, and Ho lly Sp rings has rep ealed Sec tio n 10.8 in its entir ety, there by mo oti ng Op ulent Life ’s clai m for injunct ive reli ef against that sec tio n of the ord inanc e. 20 Case: 12-60052 Document: 00512001968 Page: 20 Date Filed: 09/27/2012No. 12-60052

To bear its burden, Holly Springs must first identify the regulatory
purpose or zoning criterion that explains the religious facil i t i e s b an, 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 purp o s e o r criterion. The amended

o r d inance includes a description of the purpose of the Business Courthous e Square District: “to designate the area
. . . for c e r t ain 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 justi f i c ation fails because other noncommercial, non tax-generating uses are permitted in the d i s t r i c t , as Holly Springs conceded at oral argument. For instance, t h e ordinance permits libraries, museums, art galleries, exhibitions, and “similar facilit[ies]” on the courthouse square. Elija h 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” includ i ng private lodges and c l u b s ) ; 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 ea s y v i c t o r y 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 p urpose would likewise fail to justify the ban. Beyond making thes e initial observations, however, we do not address whether H o l l y S prings can justify its exclusion of religious facilities from the

21 Case: 12-60052 Document: 00512001968 Page: 21 Date Filed: 09/27/2012No. 12-60052

courthouse square under the test we have adopted. Mindful that Holly Springs 1 5 has not yet had an opportunity to come f o r w a rd with the zoning criteria or regulatory objectives that it believes justify this ban, we leave it for the district court o n r e m a nd to determine, in the first instance, whether Opulent Life is likely to su c c e e d o n 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 adequat e
. Opulent Life argues that this factual det e r m i n a t ion is clearly erroneous and further argues that it has suff e r e d i r r e p a rable 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

m a t t er for purposes of our review of the district court’s irreparable har m determinat i o n
. O pulent Life made clear at oral argument that, in light of the

At oral argum ent, Ho lly Sp rings att em pt ed to def end the ban by rep eate dly st res sin g 1 5 that it only cover s one zoning dis tri ct and that reli gious fac ilit ies ar e allow ed to me et els ew here in Ho lly Sp rings

. Altho ugh the lim ite d reac h of th e b an pr eclu des a violat ion of RLUIPA’s pr os cri pt ion again s t i m pos ing “a land use regula tio n that

. . . tot ally exclud es reli gious ass em blies fr om a juris dic tio n,” 42 U. S. C. § 2000c c(b)( 3)(A), the ban’s lim ite d app lica tio n is irrele vant to Opule nt Life ’s clai m under the Equal Term s C laus e. That claus e man if e s tly pr ote cts reli gious ass em blies and ins tit utio ns fr om unequal tre atm ent in ev ery zoning dis tri ct wi thin a juris dic tio n. See Eli jah Gr oup , 643 F.3d at 424 (f indi ng a violat ion of the Equal Term s Claus e wh ere a cit y tre ated chur ches dif fer entl y than p r i v a t e clubs in B-2
zones ); cf

. Se. Prom otion s, Ltd. v. Conra d , 420 U. S. 546, 556 (197 5) (“[O ]ne is not to have the
exerc ise of his liber ty of expres sio n in app rop riat e plac es abrid ged on the plea that it may be
exerc ise d in so me ot her plac e.” (inte rnal quot atio n m ark s om itt ed) ).
22 Case: 12-60052 Document: 00512001968 Page: 22 Date Filed: 09/27/2012No. 12-60052

recent amendment to the ordinance, it now seeks the preliminary injunction of Holly Springs’s ba n on religious facilities operating on the courthouse square. (Section 10.8 cannot be enjoined, of course, because it has bee n repealed.) Regardless of the zoning obstac l e, the harm asserted by Opulent Life is its inability to occupy and use its leased property. We now consider whether the 1 6 district court properly analyzed Opulent Life’s asserted irreparable harm. We conclude that the district court erre d and that Opulent Life has demonstrated that it will suffer irreparable harm absent the injunction it seeks. Most basically, Opulent L ife has satisfied the irreparable-harm requirement because it has alleged violations of its First Amendment and RLUIPA r i ghts. “The loss of First Am e n d m ent freedoms, for even minimal periods of time, unquestionably constitu t e s irreparable injury.” Elrod v. Burns , 427 U.S. 347, 3 7 3 ( 1 9 7 6 ); 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 t h e v iolation of RLUIPA rights because RLUIPA enforces First Amendment freedoms, and the statute requires courts to construe it broadly to protect relig i ous exercise. See 42 U.S.C. § 2000cc-3(g) (“This chapter shall be construed in fa v o r 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 ri ghts under RLUIPA constitute[s] irreparable injury.” (citing Elrod , 427 U.S. at 373)). In the closely related RFRA context (the predecessor statute to RLUIPA), court s h a v e recognized that this

If anythin g, the ame ndm ent to the zoning ord inanc e add s urgenc y to Op ulent Life ’s 1 6 pr elim inary injunct ion mo tio n beca use the ord inanc e now mak es it im pos sib le, ins tead of just dif fic ult, f or Op ulentLif

e t o o btai n p erm iss ion to ope rat e o n i ts le ase d pr ope rty.

23 Case: 12-60052 Document: 00512001968 Page: 23 Date Filed: 09/27/2012No. 12-60052

same principle app l i e s
. See Kikumura v. Hurley , 242 F.3d 950, 963 (10th Cir. 2001) (“[C]ourts have held th at a p laintiff satisfies the irreparable harm analysis by alleging a violation of RFRA.”). Holly Springs resists a straightforward applicat i o n o f this principle by attempting to distinguish Elrod

. To do so, Ho l l y Springs relies on the Third 1 7 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 , 4 2 7 U

. S

. at 3 7 3 , “th e assertion of First Amendment rights does not automatically require a finding of irreparable injury.” 868 F.2d at 7 2

– 7 3. “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 inap p licable here. In Hoh e , t h e plaintiffs challenged the constitutionality of certain union f e e s
. Id. at 71. Pending final disposition of the challenge, the union escrow e d the disputed fees to ensure protection of t h e c h a llengers’ interest against

c o mpelled speech. Id. at 72. Thus, the only asserted harm by the c h a l l e n g e r s

w as that “the mere deduction and collection of the fees

. . . deprived [ t h e m ] o f
money they migh t u s e t o support their own political, ideological, or other purposes.” Id. 73. This minor and temporary monetary harm d o e s not match Opulent Life’s exclusion from its leased property, wh i ch Opulent Life asserts significantly impairs its free exercise of religion. Elrod , not Hohe , governs this

H o l l y Sp rings als o cont ends that Op ulent Life wa ived this argum ent. The re c o r d 17 ref utes this cont enti on. Op ulent lif e mad e this very argum ent in its me mo rand um in sup por t of its m oti on forp reli mi nary injunct ion.
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case. Opulent Life has alleged violations of its First Amendment and RLUIPA 1 8 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 evide n c e o f irreparable harm to Opulent Life’s ability to freely exercise its religion. Opulent Life avers that its current building is too small for its p r e s ent 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 Li f e t o g row, and has already prevented would-be members from joining and limited Opulent Life’s ability to welcome vi s i t ors. This frustrates Opulent Life’s religious mission. Moreover, the sufficiency of this evidence is buo y e d b y 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 Com m ’n , 480 U.S. 136, 144 n.9 (1987) (“In applying the Free Exercise Clause, courts may not inquire into the truth, v a l i d i t y , 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 o p i n e o n theological matters, and should avoid doing so.” (citingSmith , 494 U.S. at 887)).

In lieu of Elrod , Ho lly S pr ings als o u rges us to foll owan unpublis hed Si xth Circu it 1 8 dec isi on, wh ich held that a chur ch’s reli gious exerc ise wa s not sub st antia lly burd ened by the d enial of its app lica tio n for a per mi t to build a larger build ing. See Liv ing Wate r Ch u r c h of Go d v. Char ter Tw

p. of Meri dia n , 258 F. App ’x 729 (6thCir. 2007) (unpu blis hed)

. Acco rd ing to Ho lly Sp ri n g s , Liv ing Wate r sup por ts the conc lus ion that Op ulent Life has not sho wn irr epa rable harm

. To just ify reli ance on this sub st a n t i a l

- b u rd en cas e, Ho lly Sp rings cit es autho rit y for the prop os itio n that sub st antia l burd ens amo unt to irrep arabl e harm and then
conc lude s “[ c] onvers ely, if no sub st antia l burd en, then no irr epa rable injury. ” But this argum ent fai ls beca use it res ts on a bas ic logic al fal lacy. A sub s t a n t i al burd en may we ll be (and pr obably is) suf

fic ient to es tabl ish irr epa rable injury, but it sur ely is not ne c e ss ary. Liv ing Wate rd oes no t aff ectou r conc lus ion thatO pule nt Life has s how n i rre par able harm

.

25 Case: 12-60052 Document: 00512001968 Page: 25 Date Filed: 09/27/2012No. 12-60052

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 irrep a r ab l e h a rm. The district court’s reasoning woul d n o t s upport an irreparable harm finding until Opulent Life’ s m embership 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 exercis e 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 b een 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

ab i l i t y to function meaningfully in its current location.” But this assertion is belied by all of the rec o r d e v idence just discussed and, in any event, Holly Springs does not state where Opulent L ife made this purportedly critical concession. Second, Holly Springs argues that Opul e n t Life’s “long litigation d elay” suggests it is not suffering irreparable harm. See 11A Charl e s Al a n 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

26 Case: 12-60052 Document: 00512001968 Page: 26 Date Filed: 09/27/2012No. 12-60052

claims are unripe , b u t w o r se, 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 obtai n 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 of f i c e building with a maximum
occupancy of ninety-four, and that Opulent Life’s “Fac e b o o k page displays images of an event held in a room with musical equipment, a long banquet table, and a p p r o x i m a tely 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 Marshal l B aptist Center can accommodate only twenty to twenty-five people during customary religious activities. Nor would these facts

u n d e rcut Opulent Life’s other record evidence that its current buildin g i s inadequate for its present membership. Finally, another independent reason that Opulent Life has established a

s u b s t a n t i a l threat of irreparable harm is that it will lose its lease if it is n o t 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 thr e a t h a s b ecome significantly more imminent since Opulent Life filed its notice of appeal, as explained in Opulent Life’s motion to expedite its appeal, which wa s g r a nted in May 2012. Opulent Life attached t o t h a t 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 f o r c e d t o terminate the lease and to find another lessee because he is suffering financial difficulties and is not c u r r e ntly receiving rental payments from Opulent Life under the terms of the lease.

27 Case: 12-60052 Document: 00512001968 Page: 27 Date Filed: 09/27/2012No. 12-60052

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. Th e thir d p r e li m i n ary i n junction 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 injunct i o n
. W e have just concluded that Opulent Life’s harm is irreparable; hence, Holly Springs would need to present powerful evidence of harm to its i n t e r ests 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 1 9 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 ri gh t to present evidence in the district court based on Fed. R. C iv. 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 i s s u e 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 , I nc. 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 m a n d at o ry .” Parker v. Ryan , 960 F.2d 543, 544 (5th Cir. 1992). Here, Holly Springs never

The Unit ed Sta tes agre e s t hat a rem and is app rop riat e to allow Ho lly Sp rings to 1 9 pr es ent evide nce on the iss ue of the harm an injunct ion wo uld caus e i t. 28 Case: 12-60052 Document: 00512001968 Page: 28 Date Filed: 09/27/2012No. 12-60052

had an opportunity to present evidence or to be hea r d in the district court because the court denied the p reliminary 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 ente r e d , a s w ell 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 d i s s erve the public interest. “[I]njunctions protecting First Amendmen t 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 ( 5 t h Cir. 1996) (holding that where a law violates the First Amendment “the public interes t w a s not disserved by an injunction preventi n g i t s 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 cha l l e n gi ng the validity of the newly a d o pted religious facilities ban; (2) whether the harm Opulent Life will suffer absent a preliminary injunction outweighs the ha r m a n injunction will

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

29 Case: 12-60052 Document: 00512001968 Page: 29 Date Filed: 09/27/2012No. 12-60052

account of Sections 10.86 and 10.89, which violated RLUIPA; and (4) a t t h e district court’s discretion, whether Opulent Life should be awarded reasonable attorneys fees as a prevailing party under 42 U.S.C. § 1988(b). 2 0 V. For the foregoing reasons, we VACATE the district court’s order denying Opulent Life’s motion for a pr e l i minary injunction and REMAND for further proceedings consistent with this opinion.

Even if Op ulent Life pr oves only nom inal dam ages , it is a pr evailin g par ty pot enti ally 2 0 eligibl e for fee s unde r 42 U. S. C. § 1988(b). See Farr ar v. Ho bby , 506 U. S. 103, 112 (199 2) (“We ther efo re hold that a plai ntif f wh o wi ns nom inal dam ages is a pr evailin g par ty unde r § 1988. ”)

.

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