Fifth Avenue Presbyterian Church v. The City Of New YorkFifth Avenue Presbyterian Church v. The City Of New York
Jonathan R. Nelson, New York, NY, on the brief for Plaintiffs-Appellees-Cross-Appellants.
Katherine Pringle, Friedman, Kaplan, Seiler & Adelman, New York, NY, on the brief for Plaintiffs-Appellees-Cross-Appellants.
Mordecai Newman, for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, N.Y. (Leonard Koerner, Larry A. Sonnenshein, Rachel Goldman on the brief), for Defendants-Appellants-Cross-Appellees.
Timothy K. Armstrong and Candace N. Beck, Howrey Simon Arnold & White L.L.P., Washington, DC (Maria Foscarinis, National Law Center on Homelessness & Poverty, of counsel), on the brief for amicus curiae The National Law Center on Homelessness & Poverty.
Arnold S. Cohen, Warren B. Scharf and Jonathan L. Hafetz, New York, NY, on the brief for amicus curiae The Partnership for the Homeless.
Kathryn Tabner, Shearman & Sterling, New York, N.Y. (Douglas H. Lasdon, Urban Justice Center, of counsel), on the brief for amicus curiae Urban Justice Center.
Eric W. Treene, The Becket Fund for Religious Liberty, Washington, DC (Anthony R. Picarello, Jr., Roman P. Storzer, Derek Gaubatz, of counsel), on the brief for amici curiae The Baptist Joint Committee on Public Affairs; The Becket Fund for Religious Liberty; The Christian Legal Society; Clifton Kirkpatrick As Stated Clerk of the General Assembly of the Presbyterian Church (USA); The Council of Churches of the City of New York; The General Conference of Seventh-Day Adventists; The Interfaith Assembly on Homelessness and Housing; The Queens Federation of Churches; and Rutgers Presbyterian Church.
STRAUB, Circuit Judge.*
Defendants-Appellants the City of New York, Bernard Kerik and Rudolph Giuliani (collectively “the City“) appeal from an opinion and order of the United States District Court for the Southern District of New York (Lawrence M. McKenna, Judge) entering a preliminary injunction in favor of Plaintiffs-Appellees Fifth Avenue Presbyterian Church (“Presbyterian” or “the Church“) and ten homeless persons. Finding that Presbyterian had demonstrated a likelihood of success on the merits of its claim under the Free Exercise Clause of the First Amendment, the District Court entered a preliminary injunction preventing the City from dispersing homeless individuals sleeping by invitation on the Church‘s landings and steps. We affirm.
BACKGROUND
The Church views its outdoor space as a sanctuary for the service-resistant homeless who prefer not to sleep in shelters. Homeless persons are welcome on the Church‘s outdoor property between 8:00 p.m. and 7:00 a.m. They are not permitted to set up their sleeping area or lie down until 9:00 p.m. Persons taking advantage of the Church‘s invitation to sleep on its outdoor property are given a list of rules, which includes instructions to clean up after themselves and a prohibition on begging, loud music, disruptive behavior, and foul language.
In November 2001, the City notified Presbyterian that it would no longer permit the homeless to sleep on the Church‘s outdoor property. Thereafter, on three occasions in early December 2001, city police removed the homeless from the Church‘s property during the night. Presbyterian claims that the police threatened the homeless with arrest if they refused to leave.
On December 17, 2001, Presbyterian brought suit under
Following a hearing, the District Court issued a memorandum and order granting in part the Church‘s request for a preliminary injunction. In ruling on the Church‘s application, the District Court concluded that allowing homeless persons to sleep on the Church‘s private property constitutes protected religious activity because doing so enables the Church to interact with and assist the homeless in bettering their lives. The court rejected the City‘s arguments that the Church is operating a de facto shelter, and that the presence of the homeless amounts to a public nuisance. The court agreed with the City that it is permitted to regulate the presence of sleeping persons, as well as cardboard shelters and tents, on the Church‘s land adjacent to the sidewalk on 55th Street. Accordingly, the District Court entered a preliminary injunction prohibiting the City from interfering with homeless persons who are sleeping on the Church steps and landings above sidewalk level. The court denied the application with regard to those sleeping on Church property adjacent to the public sidewalk.1
DISCUSSION
A district court‘s grant of a preliminary injunction is reviewed for abuse of discretion. See Latino Officers Ass‘n v. City of New York, 196 F.3d 458, 462 (2d Cir. 1999), cert. denied, 528 U.S. 1159 (2000). In order to merit preliminary injunctive relief against “government action taken in the public interest pursuant to a statutory or regulatory scheme,” a plaintiff must show “irreparable harm in the absence of an injunction and a likelihood of success on the merits.” Id. (internal quotation marks omitted).2 “Violations of First Amendment rights are commonly considered irreparable injuries for the purposes of a preliminary injunction.” Id. (internal quotation marks omitted).
“The Free Exercise Clause of the First Amendment, which has been applied to the states through the Fourteenth Amendment, provides that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.‘” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). Government enforcement of laws or policies that substantially burden the exercise of sincerely held religious beliefs is subject to strict scrutiny. See id. at 546; see also Sherbert v. Verner, 374 U.S. 398, 402-03 (1963). “To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests.” Church of Lukumi Babalu Aye, 508 U.S. at 546 (internal quotation marks omitted). Where the government seeks to enforce a law that is neutral and of general applicability, however, then it need only demonstrate a rational basis for its enforcement, even if enforcement of the law incidentally burdens religious practices. See id. at 531; Employment Div., Dep‘t of Human Res. of Oreg. v. Smith, 494 U.S. 872, 878-79 (1990).
Because “[t]he free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires,” courts are not permitted to inquire into the centrality of a professed belief to the adherent‘s religion or to question its validity in determining whether a religious practice exists. Smith, 494 U.S. at 886-87. As such, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Review Bd. of the Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981); see also Patrick v. LeFevre, 745 F.2d 153, 156-57 (2d Cir. 1984). An individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are “sincerely held” and in the individual‘s “own scheme of things, religious.” LeFevre, 745 F.2d at 157 (internal quotation marks omitted); see also Thomas, 450 U.S. at 716.
Although the City concedes that the Church‘s provision of services to the homeless falls within the ambit of protected activity under the Free Exercise Clause, the City argues that allowing homeless persons to sleep outside is not a meaningful provision of “services” and does not constitute legitimate religious conduct. Presbyterian responds that its outdoor sanctuary forms an integral part of its religious mission and that the police‘s removal of the homeless interferes with the Church‘s ministry and homeless outreach program. In an affidavit submitted in support of the application for injunctive relief, the Church‘s homeless liaison states that the Church is “commanded by scripture to care for the least, the lost, and the lonely of this world” and in ministering to the homeless, the Church is “giving the love of God. ... There is perhaps no higher act of worship for a Christian.”
The City points to several laws or policies that it claims support its actions. First, the City argues that Presbyterian is operating a homeless shelter without a license and in contravention of state regulations. Pursuant to
As an alternative justification for its actions, the City argues that it is empowered to enforce minimum standards of habitability for privately-run shelters in the absence of applicable regulations. In support of this proposition, the City cites the New York Court of Appeals’ decision in McCain v. Koch, 70 N.Y.2d 109 (1987). McCain held that the New York Supreme Court has the equitable power to require a minimum standard of care for city-run emergency housing so long as the standard of care does not conflict with applicable state or city regulations. McCain‘s holding was premised on the principle that once the City has undertaken to provide emergency housing, it has a duty to ensure certain minimum standards of habitability. Id. at 119-20. We decline to extend McCain‘s holding beyond the context of government-administered housing on these facts. Moreover, McCain addressed a court‘s equitable power to issue an injunction requiring the City to provide particular amenities; it did not address the City‘s power to devise and enforce equitable standards of its own making. Nor did the Court of Appeals in McCain express any opinion as to the substance of the injunction in that case — i.e., whether the specific requirements in that injunction were in fact the minimum acceptable standards of habitability for a shelter.
The City argues that its power to enforce equitable standards of care for homeless shelters derives from its ability to enforce public nuisance laws. The District Court ruled below that the City had not established the existence of a nuisance, and the City does not challenge that particular holding on appeal. Therefore, we need not consider this argument. The City also claims, in its reply brief, that it has a “policy of regarding the provision of subminimal shelter as a nuisance.” Not only is this argument untimely raised, see Thomas v. Roach, 165 F.3d 137, 145-46 (2d Cir. 1999), but the City has not adequately demonstrated the existence or general applicability of such a policy, or that it applies to the Church‘s activities.
Thus, at the present time, the City has not sufficiently shown the existence of a relevant law or policy that is neutral and of general applicability, and that would therefore justify its actions in dispersing the homeless from the Church‘s landings and steps. For the first time in its reply brief, the City argues that its dispersal of the homeless from Presbyterian‘s property is justified by a compelling state governmental interest, namely, “preventing the Church from providing inadequate shelter nightly and encouraging homeless persons to avoid a safer, more civilized alternative.” Although arguments raised for the first time in a reply brief need not be considered, see Thomas, 165 F.3d at 145-46, we note that the homeless who take advantage of the Church‘s offer, ten of whom are plaintiffs in this action, do so voluntarily. Moreover, common sense, in addition to evidence put forth by the homeless plaintiffs, suggests that the majority of these homeless will not go to shelters if the City is permitted to disperse them; rather, they will find another place on the street upon which to sleep. Thus, it is doubtful that the “ends” support the City‘s “means,” nor has the City attempted to show that police dispersal in the middle of the night is the least restrictive means of accomplishing its goal of ensuring that the homeless have appropriate sleeping quarters. See Yoder, 406 U.S. at 215.
CONCLUSION
For the foregoing reasons, we find that the District Court did not abuse its discretion in concluding that Presbyterian has demonstrated a likelihood of success on the merits of its free exercise claim. The opinion and order of the District Court entering a preliminary injunction in favor of Presbyterian is hereby AFFIRMED.