prisoners during Ramadan. Id. at 1177. Their group meals were served in a filthy mess hall after the main meal, so that they could not prostrate themselves for prayer during their ceremony. Mack also alleged that the manner in which the tables were bolted together made it impossible for the diners to sit facing Mecca or to pray in the prescribed close formation. Id. The Seventh Circuit held that these claims alleged a substantial burden on Mack's religious beliefs under RFRA sufficient to survive a motion to dismiss. Id. at 1179-80.
Under the Seventh Circuit's "generous" construction of the substantial burden test of RFRA, we find that the plaintiff has stated a claim that the defendants' acts up to and including the rezoning of 6466 West North have substantially burdened the exercise of the plaintiff's religious rights. Plaintiff has alleged that the rezoning substantially burdened the church's ability to worship and conduct religious instruction, prayer meetings, and religious ceremonies, including baptisms, weddings, and funerals. The plaintiff alleges that 6466 West North was an appropriate physical facility for the congregation's weekly worship and other activities, and by losing the property, the church's religious practices have been substantially burdened. These allegations of substantial burden are sufficient to withstand a motion to dismiss. However, we note that the ultimate burden under RFRA remains on the plaintiff "to prove that a governmental [action] burdens the adherent's practice of his or her religion . . . . This interference must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is central to religious doctrine." Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995). It may be that the availability of other equally suitable locations, for instance, would undercut plaintiff's claim of substantial interference, but that is a factual question to be determined at trial. Because we find that the plaintiff has stated a claim of substantial burden upon the free exercise of its religious rights, we do not need to address at this time whether the defendants' rezoning of 6466 West North furthers a compelling governmental interest or is the least restrictive means of furthering that interest. Whether a government interest is compelling is a question of fact, not properly decided on a motion to dismiss. Sasnett v. Wisconsin Dep't of Corrections, 891 F. Supp. 1305, 1315 (W.D. Wis. 1995), affirmed sub nom., Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996). For these reasons, the defendants' motion to dismiss Counts I and II is denied.
Counts IX and X - Freedom of Religion
In Counts IX and X, the plaintiff alleges that the City and Banks infringed upon its rights to freedom of religion under Article I of the Illinois Constitution. The defendants have moved to dismiss these counts, arguing that the rezoning does not infringe the plaintiff's freedom of religion under the federal or Illinois Constitutions.
We have already determined that plaintiff has sufficiently alleged a substantial burden on the free exercise of its religion in our RFRA analysis. For the reasons set forth above for Counts I and II, the defendants' motion to dismiss Counts IX and X is denied.
Counts III-IV and XV-XVI - Equal Protection
In Counts III and IV, the plaintiff alleges that the City and Banks denied it equal protection under the Fourteenth Amendment in the exercise of its First Amendment rights. In Counts XV and XVI, the plaintiff alleges that the City and Banks denied it equal protection in the exercise of its rights of freedom of religion, assembly and speech under Article I of the Illinois Constitution. The basis of the plaintiff's claim is that clubs, lodges, community centers, colleges and other gathering places are allowed to locate in most B and C districts under the zoning ordinance, while churches are required to obtain special use permits for those districts. The plaintiff alleges that the Chicago Zoning Ordinance denies it equal protection of the laws by placing additional burdens on churches than substantially similar groups because of a suspect distinction based on religion. The defendants have moved to dismiss all of these counts, arguing that the plaintiff fails to state an equal protection claim because the Chicago Zoning Ordinance makes its land use classifications a legitimate exercise of the police power, the zoning ordinance serves a compelling government interest, and the ordinance employs the least restrictive means to achieve that interest. We analyze the equal protection claims brought under the Illinois Constitution under the same standards as equal protection claims under the federal Constitution. C.L.U.B., 1996 WL 89241, at * 23.
The Equal Protection Clause of the Fourteenth Amendment mandates that no state shall "deny to any person within its jurisdiction the equal protection of the laws." The Supreme Court reads the clause as "a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). The Supreme Court has also set out the applicable standards for determining the validity of state legislation under the Clause:
Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classifications challenged be rationally related to a legitimate state interest.
City of New Orleans v. Dukes, 427 U.S. 297, 303, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1976). If the legislative classification disadvantages a suspect class, such as a religious group, then courts may uphold the classification only if it is narrowly tailored to serve a compelling governmental interest. Plyler v. Doe, 457 U.S. 202, 216-17, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982).
The plaintiff alleges that the Chicago Zoning Ordinance disadvantages its fundamental rights based upon religion, because it treats churches differently from similarly situated groups such as clubs, lodges, community centers and colleges in the ability to use land. Plaintiff alleges that the other non-profit groups use property in the same ways churches do, such as for meetings, socializing, singing, eating and other gatherings of people. The plaintiff alleges that the other groups are permitted in M districts, while churches are not. The plaintiff has also alleged that those groups may locate in B and C districts, while churches require special use permits. The plaintiff has alleged sufficient similarity between itself and the groups who may occupy with special use permits in M districts and without special use permits in B and C districts. The plaintiff has adequately alleged that the differing treatment is based upon a suspect classification, and impacts on fundamental rights. We find the plaintiff has stated an equal protection claim, and we deny the defendants' motion to dismiss Counts III, IV, XV, and XVI.
Counts V-VIII and XI-XIV - Freedom of Speech and Assembly
In Counts V through VIII, plaintiff alleges that the City and Banks impaired its First Amendment right to freedom of assembly and freedom of speech. In Counts XI through XIV, plaintiff alleges that the City and Banks impaired its rights to freedom of speech and assembly under Article I of the Illinois Constitution. The defendants have moved to dismiss these counts, arguing that plaintiff fails to state any First Amendment or Illinois constitutional claim because the Chicago Zoning Ordinance is a valid time, place and manner restriction that does not regulate religious beliefs.
We treat First Amendment claims for freedom of speech and freedom of assembly alike. New York State Club Association, Inc. v. City of New York, 487 U.S. 1, 13, 101 L. Ed. 2d 1, 108 S. Ct. 2225 (1988). We also analyze First Amendment claims under the federal and Illinois constitutions together. C.L.U.B., 1996 WL 89241, at * 25. Because churches can locate as a matter of right or by special permit in parts of the City other than M districts, the Chicago Zoning Ordinance is properly analyzed as a time, place and manner restriction on freedom of speech and assembly. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986). To sustain a valid time, place and manner restriction on First Amendment activities, the government must show that the restriction: (1) is content neutral, (2) serves a legitimate governmental objective, (3) leaves open ample alternative channels of communication, and (4) is narrowly tailored to serve the governmental objective. City of Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1552 (7th Cir. 1986); see also Renton, 475 U.S. at 46. When a time, place and manner restriction aims to restrict the secondary effects of speech, and not the content of speech, the restriction is valid. Alternative channels of communication must be ample and adequate. Watseka, 796 F.2d at 1553. The requirement of narrow tailoring is satisfied when the regulation promotes a compelling governmental interest that would be achieved less effectively absent the regulation. Graff v. City of Chicago, 9 F.3d 1309, 1321 (7th Cir. 1993).
The City contends that its zoning ordinance does not regulate churches on the basis of religious beliefs, and that the ordinance provides churches with more than adequate alternative channels of communication. We agree that churches have ample alternative channels of communication, because they can locate as of right in R districts in more than 40 percent of the City. But the City has not established that the ordinance is content neutral. Nor, on a motion to dismiss, can the City establish whether its interest in preventing churches from locating in M districts or requiring churches to have permits in B and C districts is compelling and narrowly tailored, because that is a factual question. Therefore, the City cannot establish now that its Zoning Ordinance is a valid time, place, and manner restriction of speech and assembly. Accordingly, the defendants' motion to dismiss Counts V, VI, VII, VIII, XI, XII, XIII, and XIV is denied.
Counts XVII and XVIII - Discrimination in the Sale of Property
In Counts XVII and XVIII, the plaintiff alleges that the City and Banks discriminated against it in the sale of property in contravention of Article I, Section 17 of the Illinois Constitution. The defendants have moved to dismiss these counts, arguing that the provision is inapplicable because the plaintiff does not allege that the defendants own the property at issue in the case.
We find these counts should be dismissed, but on a different ground: the plaintiff has failed to bring an action under the Illinois Human Rights Act, 775 ILCS 5/1-102, ("IHRA"), which is the exclusive remedy for discrimination claims arising under Section 17 of Article I of the Illinois Constitution. See Baker v. Miller, 159 Ill. 2d 249, 636 N.E.2d 551, 553-59, 201 Ill. Dec. 119 (Ill. 1994) (holding IHRA exclusive remedy for employment discrimination claim arising under Section 17); Williams v. Naylor, 147 Ill. App. 3d 258, 497 N.E.2d 1274, 1277, 100 Ill. Dec. 912 (Ill. App. Ct. 1986) (holding IHRA exclusive remedy for housing discrimination claim arising under Section 17); see also Walker v. Woodward Governor Co., 631 F. Supp. 91, 95 (N.D. Ill. 1986) (holding that IHRA exclusive remedy for enforcement of Section 17 rights). The plaintiff should have brought a charge of discrimination under the IHRA to the Illinois Department of Human Rights ("the Department") within 180 days of the alleged violation. 735 ILCS 5/7A-102 (1995). The Department would then have investigated the charged discrimination and issued a report. If there was substantial evidence of a civil rights violation, the Department would have designated an attorney to handle the claim through conciliation or by filing a complaint with the Illinois Human Rights Commission. This is the proper administrative remedy for plaintiff's claimed discrimination in the sale of property; when that remedy was exhausted, Abierta could then seek administrative review in the state courts. See Peters v. Fansteel, Inc., 736 F. Supp. 198, 201 (N.D. Ill. 1990). Accordingly, the plaintiff's claim for relief directly under Article I, Section 17 must be dismissed, and we grant defendants' motion to dismiss Counts XVII and XVIII.
For the foregoing reasons, the defendants' motion to dismiss Counts XVII and XVIII is granted. Defendants' motion to dismiss the remaining counts, Counts I through XVI, is denied.
DATED: December 4, 1996
John F. Grady, United States District Judge