St. John's United Church of Christ v. City of Chicago

Chicago Mayor Richard M. Daley is determined to expand O'Hare Airport, no matter what gets in the way. And that includes two cemeteries and nearly a dozen state laws.

After several proposals for new Chicago-area airports on the city's south side failed to win support, Daley turned his attention to expanding O'Hare, already one of the world's busiest and most crowded airports.

The city's plan would reconfigure the existing six runways, which allow takeoffs and landings in a variety of directions, replacing them with six parallel runways.

Construction of the southernmost east-west runway would require swallowing up a portion of the suburb of Bensenville (including some 500 moderately-priced housing units) and two cemeteries, St. Johannes and Rest Haven. St. Johannes (originally called "God's Acre") is the oldest, having been established in 1849 by a group of German immigrants, and has been in continuous use ever since. Some 1,300 people are buried there, including many Civil War veterans. All were members of St. John's Church, which was once located on the same five acre property (on a spot now marked with a cross; see photo above) and which still owns and maintains the property as an active cemetery. Rest Haven Cemetery has been in continuous use at least since the 1870s for the Christian burials of the members of two churches, the United Methodist Church of Itasca and the Emmanuel First Evangelical Church of Elk Grove.

In November 2002, St. John's Church filed suit in state court (DuPage County), charging that the city's plan was in clear violation of the Illinois Religious Freedom Restoration Act, as well as the Illinois Aeronautics Act. State Circuit Judge Hollis Webster issued an injunction blocking the city from acquiring the cemetary.

Mayor Daley and his supporters countered by drafting a piece of legislation entitled the "O'Hare Modernization Act" (OMA) which was passed by the Illinois legislature on May 31, 2003 and signed into law on August 6, 2003.

The OMA is an extraordinary measure that strips St. Johannes and Rest Haven Cemeteries of legal protections that apply to every other cemetery in the state, and to add insult to injury, singles them out for exclusion from the Illinois Religious Freedom Restoration Act, which now protects every other church and religious group in the state except them.

Among the Illinois laws that now no longer apply to the City of Chicago in the area around O'Hare Airport:

• The Illinois Religious Freedom Restoration Act
• The Archeological and Paleontological Resources Protection Act
• The Human Skeletal Remains Protection Act
• Illinois Municipal Code provisions governing cemetery removal, project applications and public corporations
• The Vital Records Act
• The Illinois Aeronautics Act

In anticipation of the bill's passage, a federal lawsuit was filed in U.S. District Court on Friday, May 30, 2003. Motions were also filed for the issuance of a Temporary Restraining Order and a Preliminary Injunction, seeking to prevent the Mayor and the City from doing to the cemeteries what they'd done to runways at Chicago's downtown airport, Meigs Field, in March ("bulldozing Meigs Field in the middle of the night — while courts were closed and lawyers were asleep").

At an emergency hearing on the request for a TRO, the city finally agreed to commit on the record to stay away from the property until another hearing Monday morning.

On June 2, in a hearing before Judge David Coar, the City of Chicago agreed to a court order under which it promised "that it will not take any action in furtherance of acquiring or demolishing property in the Village of Bensenville and Elk Grove Village, either voluntarily or involuntarily, nor take any action in furtherance of acquiring St. Johannes Cemetery or Rest Haven Cemetery, or engage in disinterment within or relocation of those cemeteries, pending the July 21, 2003 hearing set on plaintiffs' Motions for Preliminary Injunction."

Two briefs in support of the motions for a TRO and PI were filed with the court: one, prepared by The Becket Fund, focuses on the harm that would otherwise be done to the "ongoing religious exercise of St. John's Church and its members."
The other brief, prepared by attorneys Joseph Karaganis and James Knippen with support from the Washington law firm of Shaw Pittman, focuses on the non-religious federal laws being violated by the City of Chicago: the National Environmental Policy Act (acting on a project not approved by the FAA), the National Historic Preservation Act (acting without addressing environmental and historic preservation issues), and the Department of Transportation Act (protecting land of "historical significance").

Plaintiffs in the case include St. John's United Church of Christ and several members of the church with family plots at St. Johannes Cemetery, including Helen Runge, who "already has a tombstone with her name on it next to her deceased husband; all that remains is to add her date of death." Other plaintiffs include Rest Haven Cemetery Association and two of its members, the Village of Bensenville and resident Roxanne Mitchell, who owns a home targeted for destruction in the O'Hare expansion, and the Village of Elk Grove.

On Sunday, September 21, 2003, hundreds of supporters, led by clergy from a variety of faiths, held a Walk for Religious Freedom to St. Johannes Cemetery. There, an inter-faith group of pastors from area churches reconsecrated the cemetery, and emphasized the sacred nature of the area. A representative of the Illinois Conference of Churches read a statement emphasizing the serious threat posed to all religious institutions in the state by the OMA. (see also The Becket Fund's description of the OMA's impact on the protections of the Illinois Religious Freedom Restoration Act (IL-RFRA)).

Two days after the Walk for Religious Freedom, at a hearing on procedural motions related to the city's motion to dismiss the case, Judge Coar ordered the briefing process to start all over again, giving the City of Chicago until October 15, 2003 to file a memo in support of its motion to dismiss, and St. John's Church and the other plaintiffs until November 5, 2003 to respond. Those briefs have since been filed, and the motion has been pending ever since.

In addition, Judge Coar denied requests from the Illinois Attorney General and the Federal Aviation Administration to stay the action as it pertains to them, and gave them 30 days to file pleadings in the case. (The state attorney general has responsibility for defending state laws, including OMA, against challenges; the FAA must comply with the federal RFRA.)

The plaintiffs are represented by The Becket Fund for Religious Liberty; attorneys Joseph Karaganis, Bruce White and John Kalich of the Chicago law firm of Karaganis, White & Magel; James Knippen, of the Wheaton law firm of Walsh Knippen Knight & Diamond; and Robert Cohn and Alexander Van Der Bellen of the Washington, D.C. law firm of Hogan & Hartson.

(St. John's United Church of Christ, et al. v. City of Chicago, et al., U.S. District Court for the Northern District of Illinois, Case No. 03-C-3726)

Resources & Documents

• Oct 26, 2005 Second Amended Complaint (ND ILL) (PDF, 225.71KB)
• Cemeteries' Opposition to Motion to Dismiss, Nov. 5, 2003 (PDF, 272.9KB)
• Sept 29, 2005 Letter to President Bush (PDF, 50.22KB)
• Sept 2005 Ackley Letter to Senator Brownback (PDF, 27KB)
• Sept 2005 ICC Letter to Congressmen (PDF, 652.02KB)
• Oct 26, 2005 Motion for Leave to File Second Amended Complaint (PDF, 28.88KB)
• Oct 26, 2005 Plaintiffs' Response to Court's Show Cause Order (PDF, 58.69KB)
• November 2005 Motion for Preliminary Injunction (PDF, 25.77KB)
• November 2005 Brief in Support of Motion for Preliminary Injunction (PDF, 47.09KB)

Articles & News Items

• "Becket Fund moves to block Chicago from bulldozing," May 30, 2003
• "Hold the hallelujahs, Mayor Daley," August 6, 2003
• "Save the Graves: O'Hare Expansion Threatens Sacred Cemeteries," September 1, 2005
• "Stay Granted, Cemetery Lives to See Another Day," September 30, 2005
• "Divided DC Circuit Panel Leaves O'Hare Case up in the Air," August 4, 2006