Federal appeals court rules cemetery can be moved to expand O'Hare

David Heitz

Opponents of the expansion of O’Hare Airport were dealt a blow Thursday, as the U.S. Court of Appeals for the Seventh Circuit ruled that moving a church-owned cemetery to build runways is not a violation of religious freedoms.

After almost 18 months of deliberation, the court ruled against a motion by the plaintiffs in the case, the village of Bensenville and St. John’s United Church of Christ. They petitioned the court that the Federal Aviation Administration and the city of Chicago’s plans to relocate about 1,200 graves at St. Johannes Cemetery, adjacent to the airport and owned by St. John’s, were in violation of the Illinois Religious Freedom Restoration Act, and the religious rights given under the First Amendment of the U.S. Constitution. The cemetery was consecrated in the 1870s, and holds the graves of many of the area’s first settlers.

In a vote of 2-to-1, the judges ruled that the FAA and the city of Chicago’s O’Hare Modernization Program are not in violation of the law by relocating those graves, due to an amendment to the law made by the Illinois General Assembly when it approved the O’Hare Modernization Act in May 2003 that it does not violate those freedoms, the court ruled.

In its ruling, the court holds the amendment to the IRFRA does not violate First Amendment because it does not discriminate against religious institutions or show hostility toward religion.

The ruling is similar to that of the U.S. Court of Appeals in Washington, D.C., last year, a case also filed by the village and the church. That case is now under appeal.

The plaintiff’s appealed this case to the Seventh Circuit Court after a 2005 ruling that went against them in a lower court. The Court of Appeals heard the case in January 2006, but did not rule until Thursday.

Bensenville village officials declined comment on the ruling. Joe Karaganis, an attorney who represented the village and St. John’s, said he is opposes the ruling, and will look at options to appeal.

“This is a fundamental issue of religious importance, and we will proceed with this case,” Karaganis said.

He also said that a dissent ruling by one of the judges, and over 18 months of deliberation time by the court, gives the plaintiff’s hope that it could be overturned in appeal, even if it means going all the way to the U.S. Supreme Court.

“We are pleased with today’s decision rendered by the 7th Circuit Court of Appeals upholding our ability to acquire St. Johannes Cemetery,” said Rosemarie S. Andolino, OMP executive director. “Now that the court will allow us to take title to St. Johannes, the city is committed to engaging in an open dialog with church officials so that the acquisition and relocation process can begin, and this project of national significance can move forward.”

While Andolino said the city of Chicago will begin the process of making an offer to St. John’s to purchase the land, the plaintiffs have no interest in selling the property to Chicago.

Bob Sell, a spokesman for St. John’s, said the fight is not over, and that the church will not “abandon its (buried) family members to the shovels of the city of Chicago” by agreeing to sell them the land to move those graves.

Karaganis said the ruling does not give the OMP a license to take the cemetery, and they cannot acquire St. Johannes “without going through further legal proceedings.”