     Case: 12-60052   Document: 00512001968     Page: 1   Date Filed: 09/27/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                    FILED
                                                                September 27, 2012

                                   No. 12-60052                   Lyle W. Cayce
                                                                       Clerk

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this suit in federal district court, claiming that the (now-repealed) ordinance’s
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                                      No. 12-60052

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.1                 It desires more growth but is
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.


       1
         Most of the pertinent facts appear in the affidavit of Telsa DeBerry, who has served
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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                                       No. 12-60052

       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”).2 The

       2
        Section 10.8 only singled out churches, and not other religious facilities, unlike the
newly adopted ban, which applies more broadly to “[c]hurches, temples, synagogues, mosques,

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                                       No. 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 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.3 The entirety of the zoning ordinance’s church-specific provisions are
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.”
       3
           The list of church-specific requirements that the commission gave Pastor DeBerry
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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                                    No. 12-60052

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



      4
          Opulent Life alleged violations of RLUIPA’s Equal Terms Clause, 42 U.S.C.
§ 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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                                       No. 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, 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


       5
          According to counsel for Opulent Life, on the Friday before oral argument, Holly
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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                                        No. 12-60052

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.6 We address these justiciability challenges in order.
                                               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.


       6
        Despite raising these justiciability challenges to the old ordinance, at oral argument
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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                                  No. 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 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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                                  No. 12-60052

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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                                       No. 12-60052

       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,7 it


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

       8
         The United States has filed an amicus curiae brief in support of Opulent Life. The
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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                                        No. 12-60052

                                               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.10 Id. at 878–82.
       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.
       10
           Smith recognized two exceptions to this rule: (1) for “hybrid” claims, resting on “the
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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                                  No. 12-60052

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. § 2000bb-
1. 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 power under 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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                                 No. 12-60052

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 § 2000cc-
5(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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                                  No. 12-60052

§ 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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                                        No. 12-60052

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.11 The Third Circuit requires the
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.12 See Elijah
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


       11
          As we observed in Elijah Group, the Second Circuit has followed a similar approach
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.”).
       12
         Although we do not follow the Eleventh Circuit in applying strict scrutiny review to
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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                                       No. 12-60052

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

       13
          Several jurists have argued that there is “little real contrast in basic approach or
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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                                       No. 12-60052

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 church-
specific 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 Centro Familiar, 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).


       14
           The other provisions of Section 10.8 are not so plainly invalid. Those provisions
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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                                  No. 12-60052

      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.15 Mindful that Holly Springs
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


       15
          At oral argument, Holly Springs attempted to defend the ban by repeatedly stressing
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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                                      No. 12-60052

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.16 We now consider whether the
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


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

                                            23
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                                     No. 12-60052

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.17 To do so, Holly Springs relies on the Third
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




      17
          Holly Springs also contends that Opulent Life waived this argument. The record
refutes this contention. Opulent life made this very argument in its memorandum in support
of its motion for preliminary injunction.

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                                       No. 12-60052

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




       18
          In lieu of Elrod, Holly Springs also urges us to follow an unpublished Sixth Circuit
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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                                  No. 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 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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                                  No. 12-60052

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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                                    No. 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.
      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.19 This
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

      19
         The United States agrees that a remand is appropriate to allow Holly Springs to
present evidence on the issue of the harm an injunction would cause it.

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                                 No. 12-60052

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.




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