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Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield

United States District Court, D. Connecticut

January 27, 2016

CHABAD LUBAVITCH OF LITCHFIELD COUNTY, INC., et al., Plaintiffs,
v.
BOROUGH OF LITCHFIELD, CONNECTICUT, et al., Defendants.

RULING RE: MOTIONS FOR SUMMARY JUDGMENT (DOC. NOS. 185 & 187) & MOTIONS TO DISMISS RABBI EISENBACH AS PLAINTIFF (DOC. NOS. 88 & 141)

JANET C. HALL, District Judge.

I. INTRODUCTION

Plaintiffs the Chabad Lubavitch of Litchfield County, Inc. ("the Chabad") and Rabbi Joseph Eisenbach ("Rabbi Eisenbach") filed a Third Amended Complaint (Doc. No. 54) ("Third Am. Compl.") against the Borough of Litchfield, Connecticut ("the Borough") and the Historic District Commission of the Borough ("the HDC") (collectively, "Borough defendants"), and Wendy Kuhne, Glenn Hillman, and Kathleen Crawford, members of the HDC (collectively, "individual defendants").[1] The Third Amended Complaint alleged twelve causes of action, each of which named the Borough defendants and the individual defendants.

The Borough defendants filed a Motion for Summary Judgment (Doc. No. 140) on all counts. The individual defendants also filed a separate Motion for Summary Judgment (Doc. No. 138) on all counts. The plaintiffs, meanwhile, filed a Motion for Partial Summary Judgment (Doc. No. 137) as to Count Eight. The individual defendants had previously filed a Motion to Dismiss (Doc. No. 88) seeking to remove Rabbi Eisenbach as a plaintiff for lack of standing. The Borough defendants later filed their own Motion to Dismiss (Doc. No. 141), in which they joined the individual defendants' Motion.

The court granted the Motions to Dismiss Rabbi Eisenbach. See Ruling (Doc. No. 151). The court denied the plaintiffs' Motion for Partial Summary Judgment and granted both the Borough defendants' and the individual defendants' Motions for Summary Judgment. See Ruling (Doc. No. 169).

On appeal, the United States Court of Appeals for the Second Circuit vacated this court's grant of summary judgment for the defendants on Counts Six and Seven, and remanded these claims for further proceedings in accordance with the Court of Appeals' decision. Order at 2 (Doc. No. 179). The Court of Appeals also vacated the court's dismissal of Rabbi Eisenbach as a plaintiff for lack of standing and remanded for determination of whether Rabbi Eisenbach has stated a claim upon which relief can be granted. Id . The Court of Appeals affirmed the court's grant of summary judgment for the defendants on all the other counts. Id . Lastly, the Court of Appeals directed the court to address, in the first instance, the individual defendants' arguments that they are entitled either to absolute immunity or qualified immunity, and to consider whether Crawford "is properly subject to this suit in the absence of evidence that she voted on the application." Id. at 40.

Both the remaining individual defendants and the Borough defendants have filed Second Motions for Summary Judgment (Doc. Nos. 185 and 187, respectively). Neither set of defendants has filed a second Motion to Dismiss as to Rabbi Eisenbach, instead opting to rest on their original Motions.

II. FACTUAL BACKGROUND[2]

The Borough of Litchfield is an independent municipal corporation, whose boundaries are wholly within the Town of Litchfield. See Borough Defendants' Local Rule 56(a)(1) Statement ¶ 15 (Doc. No. 187-1) ("Borough Defs.' L.R. 56(a)(1) Stmt."). The Borough is governed by a municipal charter adopted in 1989, pursuant to the Connecticut General Statutes. Id . In 1989, pursuant to the provisions of Chapter 97a of title 7 of the Connecticut General Statutes, C.G.S.A. §§ 7-147a et seq., the Borough established the HDC to govern aspects of the construction and modification of buildings within the Litchfield Historic District. Id . ¶ 16; see also C.G.S.A. § 7-147a. Section 7-147c(e) of title 7 of the Connecticut General Statutes permits the HDC to adopt regulations which set forth the criteria by which it would judge applications. Id . ¶ 17; see also C.G.S.A. § 7-147c(e). However, in deciding whether to grant a certificate of appropriateness, the HDC is barred from considering a building's "interior arrangement or use." C.G.S.A. § 7-147f(b).

Rabbi Eisenbach is an ordained Hasidic Rabbi and is the President of the plaintiff, the Chabad Lubavitch of Litchfield County, Inc. Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 1. Currently, the Chabad leases a space where it holds its regular services and various meetings. Id . ¶ 3; see also Third Am. Compl. ¶¶ 24-25. The Chabad alleges that its current space is inadequate to carry out its religious practices. Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 4.

The Chabad purchased property at 85 West Street, Litchfield, Connecticut. Id . ¶ 7. The structure located on the property was built in the late 1870s, as a two story, stick-style Victorian residential house, consisting of approximately 2, 656 square feet, plus a basement. Id . ¶ 30.[3] The parties clarified at the most recent oral argument that the 2, 656 square feet is the total square footage of the house, exclusive of the basement and attic - which means that each of the two floors is roughly 1, 328 square feet large. The house is commonly known as the "Deming House." Id . ¶ 32. Although originally residential, the Deming House has since been used for commercial purposes, most recently housing a retail store. Id . ¶ 31.

After it purchased the property, the Chabad applied for a Certificate of Appropriateness in order to gain permission to modify the property to accommodate its religious needs. Plaintiffs' Local Rule 56(a)(2) Statement ¶ 8 (Doc. No. 205-1) ("Pls.' L.R. 56(a)(2) Stmt. (Disp.)");[4] see Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 34. The Chabad submitted plans to add a three-story, 17, 000 square foot addition, which would include a sanctuary, two kosher kitchens, a ritual bath, a residence for Rabbi Eisenbach and his family, staff/visitor housing, a coffee bar, and an indoor swimming pool. Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 33.[5] The addition would also include classrooms, see Declaration of Rabbi Eisenbach ¶ 9 (Doc. No. 205 Ex. B) ("Rabbi Eisenbach Decl."), and a rabbi's study adjacent to the sanctuary, see Second Motion for Summary Judgment by Borough of Litchfield, Connecticut and Historic District Commission of the Borough of Litchfield, App. U at 4 (Doc. No. 187-26) ("Architectural Renderings"). Aside from the addition, the Chabad applied to add a clock tower with a Star of David finial to the roof, see Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 33, [6] and to replace the single door at the front of the house with a double door, see id. ¶ 52. The Chabad also sought permission to make a number of other stylistic modifications. Id . ¶ 53.

The plot of land on which the Deming House is located slopes downward, as one moves from the street front side of the plot to the back. See Architectural Renderings at 9. The various uses in the proposed addition would be located on five different levels, as follows: the pool and the ritual bath would be situated together on the "basement level"; the classrooms and library would be situated on the "classroom level"; the sanctuary, coffee bar, rabbi's study, and one of the kosher kitchens would be situated together on the "sanctuary level";[7] the rabbi's residence, including the second kosher kitchen, would be situated together on the "residential level";[8] and, the staff/visitor housing would be situated on the "staff residential level."[9] See id. at 2-6. As the parties clarified at the most recent oral argument, the sanctuary, residential, and staff residential levels would all be fully above-ground. The parties also clarified that the basement level would be entirely underground and not visible from the outside. Lastly, the parties clarified that, due to the fact that the plot slopes downward, part of the classroom level would be above-ground and part underground. Accordingly, part of the exterior wall for the classroom level would be visible from the outside. See id.

The HDC denied the Chabad's application without prejudice, and it invited the Chabad to resubmit its application with a proposal that provided for an above-ground addition that doubled the square footage of the original property, and which addition would be narrower than the original building and have a lower roofline. See Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 48; HDC Decision at 14. At oral argument, the defendants clarified that the HDC Decision stated it would allow the Chabad to build an addition whose above-ground square footage was equal to the above-ground square footage of the current Deming House. The defendants also clarified that the Chabad would be free to build as much underground as it desired. The HDC also approved of all of the Chabad's stylistic modifications except for the addition of the clock tower and the substitution of the double door for the single door.[10] Id . ¶ 53. Hillman voted on the Chabad's application.[11] Id . ¶ 49. There is disagreement as to whether Crawford voted on the application. See id. ¶ 12; Pls.' L.R. 56(a)(2) Stmt. (Disp.) ¶ 16 (citing Plaintiffs' Memorandum of Law in Response to Defendants' Borough of Litchfield, Connecticut, and the HDC Motion for Summary Judgment ("Pls.' Mem. in Supp.") (Doc. No. 205) Ex. A-4 (Doc. No. 205-6) ("Crawford Dep.").

III. LEGAL STANDARD

A. Motion for Summary Judgment

On a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); White v. ABCO Engineering Corp., 221 F.3d 293, 300 (2d Cir. 2000). Once the moving party has met its burden, in order to defeat the motion, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial, " Anderson, 477 U.S. at 256, and present such evidence as would allow a jury to find in his favor, see Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).

In assessing the record to address questions of fact, the trial court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. Graham, 230 F.3d at 38. Summary judgment "is properly granted only when no rational finder of fact could find in favor of the non-moving party." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). "When reasonable persons, applying the proper legal standards, could differ in their responses to the question" raised, on the basis of the evidence presented, the question must be left to the finder of fact. Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000).

B. Motion to Dismiss

On a motion to dismiss, all factual allegations in the complaint must be accepted as true, and the court must draw all reasonable inferences in the plaintiff's favor. Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). "[A] motion to dismiss does not involve consideration of whether a plaintiff will ultimately prevail on the merits, but instead solely whether the claimant is entitled to offer evidence in support of his claims." Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 65 (2d Cir. 2010) (citation and quotation marks omitted).

Pursuant to the Federal Rules, a defendant may move to dismiss a complaint if it "fails to state a claim upon which relief may be granted." Fed.R.Civ.P. 12(b)(6). In its review of a motion to dismiss, the court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken." Samuels v. Air Trans. Local 504, 992 F.2d 12, 15 (2d Cir. 1993). To survive a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).

IV. DISCUSSION

A. Motion for Summary Judgment

The Borough defendants and the individual defendants seek summary judgment on the only two remaining claims against them, brought under the Religious Land Use and Institutionalized Persons Act's ("RLUIPA") substantial burden and nondiscrimination provisions. Crawford also argues that she is entitled to summary judgment on the ground that, because she never voted on the Chabad's application, she never acted as a government official and, accordingly, is not subject to RLUIPA. In addition to arguing that summary judgment on these claims is warranted on the merits, the individual defendants also argue that they are entitled to summary judgment based on either absolute or qualified immunity.

1. Substantial Burden Claim

RLUIPA's substantial burden provision applies in three situations, where,

(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or,
(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.

42 U.S.C. § 2000cc(a)(2). The Court of Appeals concluded that, "the HDC's denial of the Chabad's application resulted from an individual assessment, ' triggering RLUIPA's substantial burden provision, " under section 2000cc(a)(2)(c). Chabad, 768 F.3d at 194. Accordingly, the inquiry presently before the court is whether the HDC's denial violated the substantial burden provision, which states that:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution-
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc(a)(1).

Notably, the substantial burden provision only bars the government from substantially burdening "religious exercise." Accordingly, before the court can determine whether the HDC's actions substantially burdened the Chabad's religious exercise, the court must determine whether or not the curtailed behavior constitutes "religious exercise." See, e.g., Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007) ("Westchester Day III") (bifurcating "religious exercise" and "substantial burden" analyses). As already mentioned, see supra, at 6 n. 10, the Chabad is only challenging the HDC's denial of its application to build the proposed addition. Accordingly, the court must first analyze whether construction of the proposed addition constitutes religious exercise and then, whether the HDC's denial substantially burdened that exercise.

i. Religious Exercise

RLUIPA defines "religious exercise" as covering "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A). Further, the "use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose." 42 U.S.C. § 2000cc-5(7)(B). The Court of Appeals for the Second Circuit has also stated that, in determining whether a use constitutes "religious exercise, " district courts should ask "whether the proposed facilities were for a religious purpose rather than simply whether the [facilities] w[ere] religiously-affiliated." Westchester Day III, 504 F.3d at 348.

While genuine issues of material fact may exist as to how a certain facility will be used, the ultimate determination as to whether a facility - assuming how it will be used is agreed upon or is first determined by a factfinder - constitutes "religious exercise" is a question of law for the court to decide. See, e.g., Bikur Cholim, Inc. v. Vill. of Suffern, 664 F.Supp.2d 267, 289 (S.D.N.Y. 2009) (at summary judgment stage, court made ultimate determination as to whether rabbi's operation of a "Shabbos House" constituted "religious exercise"); California-Nevada Annual Conference of the Methodist Church v. City and Cty. of San Francisco, 74 F.Supp.3d 1144, 1154 (N.D.Ca. 2014) (at motion to dismiss stage, court made ultimate determination as to whether Conference's "ability to sell the property for use on the commercial rental market" constituted "religious exercise").

a. The Addition

The Chabad proposed to build a multi-use addition to the Deming House. The various uses contemplated by the addition included, inter alia: a sanctuary; a rabbi's study, a ritual bath; two kosher kitchens; a religious school; a residence for Rabbi Eisenbach and his family; staff/visitor housing; a library; a coffee bar; and, a pool. See Architectural Renderings at 2-6; Borough Defs.' L.R. 56(a)(1) Stmt. ¶ 33.[12] When a religious entity seeks to construct a single building with multiple uses, the inquiry as to whether the construction of the building constitutes religious exercise becomes complicated. This is especially so when some of the uses are arguably secular. On the one hand, "as the Second Circuit noted, the construction of rooms used exclusively for secular purposes cannot constitute religious exercise." Westchester Day Sch. v. Vill. of Mamaroneck, 417 F.Supp.2d 477, 544 (S.D.N.Y. 2006) ("Westchester Day II") (referring to Westchester Day Sch. v. Vill. of Mamaroneck, 386 F.3d 183 (2d. Cir. 2004) ("Westchester Day I")). On the other hand, "[w]here a building is to be used for the purpose of religious exercise, ' the building is not denied protection under RLUIPA merely because it includes certain facilities that are not at all times themselves devoted to, but are inextricably integrated with and reasonably necessary to facilitate, such religious exercise.'" Westchester Day II, 417 F.Supp.2d at 544. This framework can be applied neatly when one of two circumstances exist: (1) a single-use structure or room is to be used exclusively for either religious or secular purposes, or (2) every room/facility in a multi-use building will be used, at least in part, for religious purposes, or is inextricably integrated with and reasonably necessary to facilitate religious exercise, even if a given room/facility inherently has more of a secular, than religious, nature. For example, in Westchester Day III, which represents the final word in this line of cases, the Court of Appeals addressed both scenarios. Addressing the former situation, the Court stated: "if a religious school wishes to build a gymnasium to be used exclusively for sporting activities that kind of expansion would not constitute religious exercise." Westchester Day III, 504 F.3d at 347. And, addressing the latter situation, the court approved of the district court's conclusion that construction of the building in question constituted religious exercise because the court "made careful factual findings that each room the school planned to build would be used at least in part for religious education and practice." Id. at 348.

However, the Westchester Day cases do not instruct a court how to proceed when a multi-use building that includes some rooms that will be used for religious purposes also includes some rooms/facilities that are used exclusively for secular purposes. The court can conceive of two possible approaches. A "segmented" approach would look at each distinct room/facility within the multi-use building and determine if it is used exclusively for secular purposes, or if it is used either exclusively for religious purposes or for both religious and secular purposes. The construction of rooms/facilities that fall into the first grouping would not be considered religious exercise, and the effect of the government's action on the ability to build those rooms/facilities would not be analyzed under the substantial burden framework. The construction of those rooms/facilities that fall into the second grouping would still be analyzed under the substantial burden framework.

Alternatively, a "balancing" approach would look at each room/facility and determine how it is used - exclusively secular, exclusively religious, or a hybrid use - and then, weighing all of the rooms/facilities, make a final determination as to whether construction of the entire building is, on balance, a form of religious exercise or not. In Fortress Bible Church v. Feiner, 734 F.Supp.2d 409 (S.D.N.Y. 2010) ("Fortress Bible Church I"), the court seemed to adopt the latter approach, stating, "[e]ven if certain of the school's activities are considered to be secular, as Defendants argue they are, given the substantial evidence regarding the intended religious uses for the facility, this Court does not believe that such limited secular activities would be sufficient to bar a finding of religious exercise." Id. at 501. However, the Fortress Bible Church I court had earlier determined that even the secular school rooms/facilities, such as the gymnasium, would be used at times for religious purposes, see id. at 500, thereby placing in doubt whether Fortress Bible Church I dealt with the hypothetical situation described above - where a multi-use building contains some uses that are purely secular.

The "segmented" approach appears sounder to the court, most compellingly because it best allows the court to effectuate legislative intent. "As a legislative accommodation of religion, RLUIPA occupies a treacherous narrow zone between the Free Exercise Clause, which seeks to assure that government does not interfere with the exercise of religion, and the Establishment Clause, which prohibits the government from becoming entwined with religion in a manner that would express preference for one religion over another, or religion over irreligion." Westchester Day I, 386 F.3d at 189. In light of the "treacherous narrow zone" that RLUIPA occupies, the "segmented" approach allows the court to afford religious organizations all the benefits conferred upon them by RLUIPA, but no more, lest the court incidentally "preference... religion over irreligion." Id . The "balancing" approach, on the other hand, risks affording religious organizations special accommodations for secular activities that would not be afforded to secular organizations - which could occur if a structure were used predominantly for religious purposes but also included some rooms/facilities that were exclusively for secular use.

The "segmented" approach is sounder also because it allows the court to comport more closely with the instructions given to it by Court of Appeals on remand. Among the numerous factors the Court of Appeals instructed the court to consider when determining whether the HDC's denial substantially burdened the Chabad's religious exercise was whether the denial was conditional and, if so, whether the conditions themselves substantially burdened the Chabad's religious exercise. See infra, §§ IV.A.1.ii.b, IV.A.1.ii.c. The facts of this case illustrate why the "segmented" approach is preferable in terms of following this directive. The HDC's denial was conditional: it said it would allow the Chabad to build an addition that would double the square footage of the Deming House. To determine whether this condition itself substantially burdens the Chabad's religious exercise, a factfinder needs to know whether an addition of that size, along with the original Deming House, would be sufficiently large to accommodate all of the Chabad's religious exercise. The amount of space the Chabad needs for religious exercise may differ substantially if the court views the entire addition as religious exercise on the basis that the predominant uses for the building overall constitute religious exercise (this would be an application of the "balancing" approach), than if the court views each use in isolation and asks only whether those facilities used for religious purposes could be fit into the addition that the HDC says it will allow (this would be an application of the "segmented" approach). Accordingly, the court can better assess whether the HDC's condition itself substantially burdened the Chabad's religious exercise by applying the "segmented" approach.

The court will now turn to the various uses in the Chabad's proposed addition and analyze whether there exists a genuine issue of material fact with regard to whether each use constitutes religious exercise, and, to the degree that no genuine issue of material fact exists for a given use, whether such use constitutes religious exercise as a matter of law.

At the most recent oral argument, the defendants conceded that construction of the sanctuary, rabbi's study, classrooms, ritual bath, library, and coffee bar constitutes religious exercise.[13] The defendants also conceded that construction of the kosher kitchens constitutes religious exercise, although in their briefing they argue that the second kosher kitchen is likely only necessitated by the inclusion of Rabbi Eisenbach's residence, the construction of which the defendants claim is not religious exercise.

On the other hand, the defendants argue that the pool, staff/visitor housing, and residence for Rabbi Eisenbach are all "secular uses." Borough Defendants' Memorandum in Support of Second Motion for Summary Judgment at 34 (Doc. No. 187-2) ("Borough Defs.' Mem. in Supp."). Construction of an intuitively secular facility - such as a pool, staff/visitor housing, and a residence - can constitute religious exercise if the facility will be used, at least in part, for religious exercise. See Fortress Bible Church I, 734 F.Supp.2d at 500 (concluding that construction of certain secular facilities such as a gymnasium and mathematics, history, science, and art classrooms constitute religious exercise because "the Bible is integrated into all secular subjects taught at the school" and because "the proposed gymnasium will be used, in addition to teaching physical education, among other purposes, to host youth meetings and fellowships"); see also Westchester Day II, 417 F.Supp.2d at 494-498 (finding that construction project which included classrooms for intuitively secular subjects constituted religious exercise because the school's "existing facilities, in whole and in all of their constituent parts, are used for religious education and practice-i.e., devoted to religious purposes. While it is possible that a classroom may be used for a general studies course not infused with religion at a particular time, the uses to which a particular classroom are put will change over time and at some point will be devoted to religious purposes"); see also Westchester Day III, 504 F.3d at 348 ("On remand, the district court... made careful factual findings that each room the school planned to build would be used at least in part for religious education and practice...").[14]

With regard to the pool, the Chabad offers evidence that, the "pool area and lower educational areas are dedicated to various religious uses for [the Chabad's] participants including [the Chabad's] Gan Israel program for children." Rabbi Eisenbach Decl. ¶ 9. Although the Chabad has not explicitly stated how the pool will be used for religious exercise, there is evidence in Rabbi Eisenbach's sworn declaration that the pool will be used for religious purposes. Thus, based on the Fortress Bible Church and Westchester Day cases, there is, at the very least, a genuine issue of material fact with regard to whether the pool will be used for religious purposes and, thus, whether its construction constitutes religious exercise.

With regard to Rabbi Eisenbach's residence, the Chabad has offered evidence that "[i]t is the custom and practice of [the Chabad's] faith to dedicate the living areas of the Rectory/Parsonage/Residence to serve the religious needs of [the Chabad's] participants and the Rabbi's family." Pls.' Mem. in Supp. at 10; see also Rabbi Eisenbach Decl. ¶ 3 ("every aspect of our lives - including our Rectory/Parsonage/Residence - is dedicated to serve a religious purpose"). Specifically, "even the non-consecrated activities such as eating, sleeping, playing, etc. must also be infused with holiness, even beyond the normative religious rituals that are mandated." Rabbi Eisenbach Decl. ¶ 7.

This argument is undercut somewhat by the fact that the Chabad further argued that the spiritual leader of the Chabad "instructed all his followers to designate their private dwellings as Chabad Houses in the symbolic sense of: (i) identifying with values and goals of the Chabad Movement in terms of personal religious lifestyle alongside devotion to other people (inspiring all who dwell or visit there) and (ii) as an educational tool for the resident children to realize their responsibilities toward everyone else." Id . ¶ 5. Reflecting that attitude, "there is a popular Lubavitch school song which says... Every home should be a Chabad House.'" The court struggled with the concept that any adherent of the Chabad could transform his home into a place of ...


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