Richard Warner v. City of Boca Raton, (11th Cir. 2001)

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UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-13730

D. C. Docket No. 98-08054-CV-KLR

RICHARD WARNER,

MIRIAM WARNER, et al.

Plaintiffs-Appellants,

versus

CITY OF BOCA RATON,

Defendant-Appellee.



Appeal from the United States District Court

for the Southern District of Florida

(October 1, 2001)

Before EDMONDSON, DUBINA and POLITZ*, Circuit Judges.

Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by

designation.

PER CURIAM:

In this case, we review the district court's dismissal of federal and state law

claims involving a city's enforcement of cemetery regulations. Before ruling on

the state law claims, we will ask the Florida Supreme Court for some advice about

Florida law. Because it is possible that after we hear from the Florida Supreme

Court, we will determine that the City's regulations violate state law and will have

no reason to reach the federal questions, we decide nothing today. Instead, we

certify some questions to Florida's highest court.

I. Background

Defendant-city, Boca Raton ("City") owns, operates, and maintains a

cemetery for its residents. In 1982, the City passed a regulation prohibiting

vertical grave markers, memorials, monuments, and other structures (collectively,

"grave decorations").

Class plaintiffs ("Plaintiffs") are city residents who purchased burial plots in

the City's cemetery. Plaintiffs desire to place vertical grave decorations on their

cemetery plots to observe sincerely held religious beliefs. Despite the prohibitive

regulation, some plaintiffs, between 1984 and 1996, decorated family graves with

vertical grave decorations.

In 1991, the City notified plot owners who had placed vertical grave

decorations at their plots that, if the plot owners did not remove the vertical

decorations, then the City would remove the noncomplying structures. Not all plot

owners removed their vertical grave decorations. A similar notice was sent in

1992; and again, some vertical grave decorations remained.

In response to objections from plot owners, the City Counsel postponed the

removal of noncomplying structures and ordered a study to reevaluate the

ordinance. Meanwhile, in 1996, the City amended the pertinent regulation to

permit some vertical grave decorations up to 60 days from the date of burial and

on certain holidays.

A study by researchers at Florida Atlantic University in 1997 concluded that

most plot owners approved of the vertical grave decoration regulation, as amended

in 1996. The City then announced its intention to begin enforcing the regulation

as amended in 1996. All cemetery plot decorations had to be brought into

compliance by 15 January 1998. Plaintiffs later filed this lawsuit.

Plaintiffs allege that the prohibition on vertical grave decorations violates

the Florida Religious Freedom Restoration Act of 1998, Fla. Stat. § 761.01

("Florida RFRA"), and state and federal constitutional protections for freedom of

religious expression, freedom of speech, and due process of law. After a bench

trial, the district court concluded that the prohibition violates no federal or state

rights as alleged by Plaintiffs. (1) Plaintiffs timely appealed.

II. The State Law Claims

In the wake of the United States Supreme Court's decision, City of Boerne

v. Flores, 117 S. Ct. 2157 (1997), the State of Florida passed the Florida RFRA.

The Florida RFRA statute provides that:

(1) The government shall not substantially burden a person's exercise of

religion, even if the burden results from a rule of general applicability,

except that government may substantially burden a person's exercise of

religion only if it demonstrates that application of the burden to the person:

(a) Is in furtherance of a compelling governmental interest; and (b) Is the

least restrictive means of furthering that compelling governmental interest.

Fla. Stat. § 761.03. Florida RFRA goes on to define "exercise of religion" as "an

act or refusal to act that is substantially motivated by a religious belief, whether or

not the religious exercise is compulsory or central to a larger system of religious

belief." Fla. Stat. § 761.02(3).

In this case, the federal district court, which was the first court to issue a

published opinion interpreting Florida RFRA, (2) said the state statute applied only

to conduct that "reflects some tenet, practice or custom of a larger system of

religious beliefs," and not to "conduct that reflects a purely personal preference

regarding religious exercise." Warner v. City of Boca Raton, 64 F.Supp.2d 1272,

1283 (S.D. Fla. 1999).

To determine if conduct is a tenet, practice or custom of a larger system of

religious beliefs covered by Florida RFRA, the court adopted a four-part test that

was suggested by Defendant's expert.

[A] court should consider whether the practice: 1) is asserted or implied in

relatively unambiguous terms by an authoritative sacred text; 2) is clearly

and consistently affirmed in classic formulations of doctrine and practice; 3)

has been observed continuously, or nearly so, throughout the history of the

tradition; and 4) is consistently observed in the tradition as we meet it in

recent times. If a practice meets all four of these criteria, it can be

considered central to the religious tradition. If the practice meets one or

more of these criteria, it can be considered a tenet, custom, or practice of the

religious tradition. If the practice meets none of these criteria, it can be

considered a matter of purely personal preference regarding religious

exercise.

Id. at 1285.

Applying this test, the district court concluded that, while marking graves with

religious symbols is a custom or practice of Plaintiffs' religious traditions,

maintaining grave markers in a vertical position is merely personal preference and

no custom or practice of Plaintiffs' religion.

Plaintiffs argue that the district court's four-part test ignores the plain

language in the state statute that the religious exercise need not be "compulsory or

central to a larger system of religious belief." Plaintiffs also argue that the district

court erred in equating the protection of religious expression afforded by the

Florida Constitution to the protection afforded by the United States Constitution.

Plaintiffs argue, in effect, that the Florida Constitution requires strict scrutiny of

any statute that results in a restriction on religious practice. (3)

What practices amount to religious practice protected by the First

Amendment has been a central question in Free Exercise jurisprudence. See, e.g.

Wisconsin v. Yoder, 92 S. Ct. 1526, 1534 (1972) (court determined that Amish

traditions and culture were so intimately related to their religious beliefs that state

law mandating attendance at school until age 16 carried "a very real threat of

undermining the Amish community and religious practice as they exist today.") In

1993, Congress passed the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb, et seq., in direct response to the United States Supreme Court's

decision, Employment Div. Dept. of Human Resources of Oregon v. Smith, 110 S.

Ct. 1595 (1990). In Smith, the Court had said that neutral laws of general

applicability that incidentally conflict with religious practice would not be subject

to strict judicial scrutiny. Id. at 1603.

RFRA was designed to require the courts to apply a strict scrutiny test to

any law that "substantially burdened" a person's practice of religion. RFRA was

invalidated by the Supreme Court's decision in City of Boerne v. Flores, 117 S.Ct.

2157 (1997). Before the Supreme Court ruled in Flores, a number of the circuit

courts of appeals had been confronted with deciding what amounted to a

substantial burden on religious practice for the purpose of RFRA. The courts of

appeals took different approaches to answering this question. See Mack v.

O'Leary, 80 F.3d 1175, 1178 (7th Cir. 1996), judgment vacated 118 S. Ct. 36

(1997), (collecting cases). The more restrictive courts suggested that a person's

exercise of religion would be substantially burdened only if he were prevented

from engaging in religiously mandated activity, or required to participate in

activity prohibited by his religion. See, e.g. Cheffer v. Reno, 55 F.3d 1517, 1522

(11th Cir. 1995) (no substantial burden when religion did not require particular

means of expressing religious view and alternative means of religious expression

were available). Other courts have not talked about required acts, but have instead

referred to constraints upon "expression that manifests some central tenet of [a

person's] individual beliefs" or "meaningfully curtail[ing] [a person's] ability to

express adherence to his or her faith" See Werner v. McCotter, 49 F.3d 1476, 1480

(10th Cir. 1995) .

After City of Boerne struck down RFRA, many states passed their own

versions of the law. Florida is one of those states. The operative language of the

Florida RFRA is virtually identical to the RFRA passed by Congress. But, the

Florida RFRA includes a definition of religious practice that appears specifically

designed to prohibit the more restrictive definition of "substantially burden"

applied by some of the federal courts of appeals to the RFRA passed by Congress.

As the circumstances of this case demonstrate, the breadth of protection

afforded by the state of Florida under state law can determine the outcome of this

case as well as have wide ranging and profound implications in Florida. We

therefore certify to the Florida Supreme Court these controlling questions for

review:

1. Does the Florida Religious Freedom Restoration Act broaden, and

to what extent does it broaden, the definition of what constitutes religiously

motivated conduct protected by law beyond the conduct considered

protected by the decisions of the United States Supreme Court?

2. If the Act does broaden the parameters of protected religiously

motivated conduct, will a city's neutral, generally-applicable ordinance be

subjected to strict scrutiny by the courts when the ordinance prevents

persons from acting in conformity with their sincerely held religious beliefs,

but the acts the persons wish to take are not 1) asserted or implied in

relatively unambiguous terms by an authoritative sacred text, or 2) clearly

and consistently affirmed in classic formulations of doctrine and practice, or

3) observed continuously, or nearly so, throughout the history of the

religion, or 4) consistently observed in the tradition in recent times?

Our phrasing of the certified questions is meant to restrict, in no way, the

Florida Supreme Court's response to the questions or its analysis of the state law

questions, including state constitutional questions, posed by this case. We seek

clarification (and possibly correction) in the light of what we have written today.

We invite a full discussion by the Florida Supreme Court; today's certified

questions are just a guide. To assist the Florida Supreme Court - if it decides to

accept this

certification - with its consideration of the case, the record and briefs will

accompany this certification.

CERTIFIED QUESTIONS.

FOOTNOTES

1. The district court also concluded that a separate regulation granting the cemetery manager

discretion to make temporary exceptions and modifications to the prohibition on vertical grave

decorations violated the federal and state constitutions. The City has not appealed this ruling.

2. As far as we know, no other case, since the district court's opinion, interprets Florida RFRA.

Although two recent Florida cases involved Florida RFRA claims, the courts did not engage in

analysis of the Florida RFRA or offer guidance about its interpretation. See First Baptist Church of

Perrine v. Miami-Dade County, 768 So2d. 1114 (Fla 3rd DCA 2000); Sabir Abdul-Haqq Yasir v.

Singletary, 766 So.2d 1197 (Fla. 5th DCA 2000).

3. We doubt this view is correct. We can find no support in Florida law for this contention. Also,

the very text of the Florida Constitution suggests that it affords less absolute protection than that

provided by the United States Constitution. See Fla. Const. Art. 1 § 3 ("There shall be no law

respecting the establishment of religion or prohibiting or penalizing the free exercise thereof.

Religious freedom shall not justify practices inconsistent with public morals, peace or safety.")

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