Key Points

  • The Third Circuit, 2-1, affirmed the denial of a preliminary injunction sought by Holy Trinity Ukrainian Catholic Church against Collier Township's rejection of its shrine rezoning application.
  • The majority, by Judge Bibas, held that the parish is very likely to prevail on its RLUIPA substantial-burden claim because the record suggests reapplying would be futile given officials' objections to the shrine's pro-life message.
  • The court held that the balance of equities favored preserving the status quo, citing the parish's nearly year-and-a-half delay in suing and its vague request for relief, and relying on Americans for Prosperity Foundation v. Albence.
  • The court held that any presumption of irreparable harm for delayed religious exercise was rebutted because the parish's primary claimed harm, delayed fundraising, is compensable and a preliminary injunction would not let it build sooner.
  • Judge Matey dissented, arguing that the majority imported an election-case status-quo rule into religious land-use litigation and departed from Anash, Inc. v. Borough of Kingston.

A federal appeals court on Oct. 19 refused to order a township outside Pittsburgh to clear the way for a Ukrainian Catholic parish's planned pro-life shrine, even though the court concluded that the parish will likely prove the township violated a federal religious land-use law.

A divided panel of the U.S. Court of Appeals for the Third Circuit affirmed a district judge's refusal to grant Holy Trinity Ukrainian Catholic Church a preliminary injunction, a court order that gives a party temporary relief while a lawsuit is pending. "Preliminary injunctions exist to preserve cases, not decide them," Judge Bibas wrote for the majority, which Judge Montgomery-Reeves joined. Judge Matey dissented.

The decision leaves the shrine plans on hold until final judgment. The majority relied on an August decision, Americans for Prosperity Foundation v. Albence, for the rule that in preliminary-injunction disputes "the balance of equities strongly favors preserving the status quo." Albence arose from an election-law challenge, and Judge Matey wrote that the panel's result "would have been impossible at the beginning of August" under Anash, Inc. v. Borough of Kingston, a religious land-use decision the circuit issued July 30.

Holy Trinity has owned a 41-acre plot in Collier Township, home to its cemetery, for more than seven decades. About three years ago, the parish's pastor proposed turning the plot into a pilgrimage shrine honoring Mary and the sanctity of life. The design called for a 13,000-square-foot chapel with gold domes, a bell tower, a museum, a gift shop and a retreat center.

The plot straddles two zoning districts, and neither contemplates shrines. The parish asked the township's five-member Board of Commissioners to amend the code and rezone part of the land. After a hearing, the board denied the application, citing traffic and the parish's fundraising projections.

The parish then sued under the First Amendment's Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, or RLUIPA, a federal law that bars governments from applying zoning rules in a way that substantially burdens religious exercise unless they use the least restrictive means of serving a compelling interest. U.S. District Judge Christy Criswell Wiegand denied a preliminary injunction, finding that the parish was not substantially likely to succeed, was unclear about the relief it sought and sought to change the status quo.

The appeals court disagreed on the merits. The township had argued that the parish could simply reapply, but the majority wrote that "the record strongly suggests that the township is hostile to the shrine project," which would make reapplying futile. The opinion recounted residents' objections to the shrine's pro-life message and an email one commissioner sent the rest of the board the day after the hearing: "Looks like we might have dodged a bullet last night." That commissioner later testified that the pro-life purpose was "one of the reasons" for the denial. The majority concluded that Holy Trinity "is very likely to prevail on its RLUIPA substantial-burden claim."

A strong merits case was not enough, Judge Bibas wrote. The status quo, the situation the parties lived with before the dispute, was enforcement of the zoning code on land the parish had held for nearly 75 years without building a shrine, and "Holy Trinity, not the township, is the one seeking to change the rules." The majority also faulted the parish for waiting almost a year and a half to sue, writing that "Equity aids the diligent, not those who slumbered on their rights." The panel agreed with the district court that the parish's request was "broad, vague, and likely to lead to immediate disputes between the parties over the Township's compliance."

The parish's main claimed harm was that it could not raise money for the shrine while the case was pending. "Lost time for worshipping is irreparable; lost time for fundraising can be compensated with money damages," the majority wrote. The court said the parish must raise most of a $60 million to $100 million cost over a fundraising phase that "could be two years" and does not expect completion for five years. If the parish built under a preliminary order and then lost at trial, Judge Bibas wrote, it would be "stuck with a half-built shrine that it cannot use. A preliminary injunction makes for a shaky foundation."

The majority distinguished Anash, in which the circuit directed entry of an injunction for a rabbi whose yeshiva the borough condemned the day before Rosh Hashanah. That borough had scattered an existing congregation, the majority wrote, and "Anash is the rare exception for preliminary relief, not the rule."

Judge Matey wrote that the majority would "force the Church to return to municipal purgatory to await the inevitable denial of their proposed religious shrine." He wrote that "thirty days changed the world—of equity, RLUIPA, the First Amendment, and perhaps all constitutional claims raised in our Circuit," and he described Albence as a narrow election-eve ruling that never addressed Anash or RLUIPA.

The dissent argued that the parish's chief harm was lost years of worship, not fundraising. "It is difficult to discern how equity tolerates the Township shrouding itself behind an unlawful 'status quo' that it created solely to oppose the natural right of religious worship," Judge Matey wrote. He added that "Anash corrected course and returned balance to the distribution of equitable relief," and that he would follow it.

Lawyers for Holy Trinity included Randall L. Wenger of the Independence Law Center. The township was represented by Allison N. Genard of Campbell Durrant.

The case returns to Judge Wiegand, who the majority noted had moved from complaint to preliminary-injunction ruling in three months. "What the parish needs is expedited final judgment," the majority wrote, adding that it trusted the district court to assess the township's motives and actions "carefully on the merits and grant appropriate relief after final judgment."