Although this blog often focuses on the First Amendment’s Free Speech clause, we occasionally wander into the First Amendment cases involving religious exercise as well.  A Hand of Hope Pregnancy Resource Center v. City of Raleigh, emerged from Raleigh’s determination that Hand of Hope could not operate a religious pregnancy counseling center in a residential zone district, and therefore offers a bit of both.

Hand of Hope had previously operated a pregnancy resource center in Raleigh, where it offered clients both spiritual guidance and reproductive health information.  Its services also included pregnancy testing and ultrasounds, which allowed mothers-to-be to see their unborn children and hear their heartbeats.  In December of 2015, Hand of Hope purchased a different property intending to move its facility to a new location neighboring an existing abortion clinic.  The property was zoned residential, and although the zone district prohibited medical uses, it allowed “civic” uses, including religious uses.

This zoning restriction put a crimp in Hand of Hope’s plan.  After some preliminary legal maneuvering, Raleigh concluded that although the residential zone allowed civic uses, Hand of Hope in fact intended to operate both a religious counseling service and a medical use, the latter of which was prohibited.  Raleigh based its determination as to the medical use on an incomplete set of facts regarding Hand of Hope’s medical services (Hand of Hope employed a “medical director” for instance, but disputed that its ultrasounds had any medical purpose.)

Disputing Raleigh’s interpretation, Hand of Hope lodged Religious Land Use and Institutionalized Persons Act (RLUIPA), Free Speech and Equal Protection claims against the city.  In its RLUIPA claim, Hand of Hope argued that Raleigh treated its religious use on less than equal terms because the city had previously allowed other civic uses to offer medical services in a residential zone.  In the free speech claim, Hand of Hope asserted Raleigh’s interpretation suppressed its ultrasound photos as a means of opposing a pro-life message.  And in the Equal Protection claim, Hand of Hope argued that the city had selectively enforced its zoning regime and had singled out the clinic for disparate treatment.

Only the RLUIPA claim survived summary judgment, and then only because the parties hadn’t developed facts sufficient to determine whether Hand of Hope’s activities constituted a civic use.  Without those facts, the Court concluded, it could not determine whether Raleigh had treated Hand of Hope on less than equal terms in comparison to other civic uses.  Stated differently, a dispute remained as to exactly how Hand of Hope planned to use the property, and thus whether it would conduct a civic use at all, much less a civic use that received worse treatment.

Hand of Hope’s constitutional claims fared much worse.  On the Free Speech claim, the court first concluded that Hand of Hope had offered nothing to show Raleigh’s animus toward its pro-life messages.  And second, even assuming the zoning code prevented Hand of Hope from opening a clinic and sharing its message in a pro-life message, the court concluded that any limitation was content neutral, supported by the government’s significant interest in implementing a development plan and protecting the character of its neighborhoods, and open enough to allow Hand of Hope to spread its message elsewhere.  Hand of Hope’s equal protection claim failed because it could not identify a similarly situated comparator that received different treatment, and the organization’s request for a preliminary injunction against the enforcement of the city’s zoning ordinance also failed.

A Hand of Hope Pregnancy Res. Ctr. v. City of Raleigh, __F.3d __, 5:16-CV-00746-BR, 2018 WL 3614970 (E.D.N.C. July 27, 2018)

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Photo of Andrew L.W. Peters Andrew L.W. Peters

Andy Peters represents clients in a wide range of land use and litigation matters, including title and survey, development approvals, construction and real estate disputes, and related appeals.  His practice spans clients of all sizes, from homeowners and small businesspeople to commercial entities…

Andy Peters represents clients in a wide range of land use and litigation matters, including title and survey, development approvals, construction and real estate disputes, and related appeals.  His practice spans clients of all sizes, from homeowners and small businesspeople to commercial entities and governments.