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Dead Reckoning

Part of O’Hare’s expansion has stalled, blocked by the religious beliefs and constitutional claims of the 160-year-old St. Johannes Cemetery. With the court battle nearing its end, time may have run out for the old burial ground

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O’Hare expansion is encroaching on St. Johannes Cemetery.
A bare cross in the cemetery memorializes the original site of the relocated church.

 

In 2001, after Mayor Daley announced his plans to expand O’Hare, the cemetery’s champions turned immediately to the courts. Assisting them was Joe Karaganis, the Chicago lawyer who would also represent Bensenville, Elk Grove Village, and Rest Haven Cemetery in their opposition to the airport modernization. Initially waged in the district courts of Illinois and Washington, D.C., the fight involved a long series of complaints, restraining orders, injunctions, and writs—and in most cases, O’Hare got the better of the cemetery and its allies. “We’ve only won some minor battles in eight years,” admits Rev. Kirchhoff, “and Chicago has won all the major ones.”

Although some of the legal arguments put forth by the church had a secular basis, the central issue came down to religion. Karaganis and his colleagues focused especially on a section of the O’Hare Modernization Act (OMA), approved by the Illinois General Assembly in 2003, that effectively excluded St. Johannes from any statutory protections already in place. Invoking the First and Fourteenth amendments (which ensure, respectively, the right to freely exercise religion and equal protection under the law), the cemetery’s advocates skirmished with the airport expansionists before finally landing in the U.S. Court of Appeals for the Seventh Circuit.

There a three-judge panel ruled against the cemetery. Writing for the majority, Judge Diane Wood concurred with a lower court’s opinion that the OMA represented “no discrimination or targeting of religious institutions.” She also proffered what was, given her ruling, an unnecessary opinion: “If the decision were ours to make . . . ,” she wrote, “we would find that there really is ‘no realistic, economically practical alternative’” to moving the cemetery. (Dissenting in part, Judge Kenneth Ripple countered that the OMA had imposed a substantial burden on the free exercise of religion of the families of those buried at the cemetery, whose relocation, he wrote, would compel those families to forgo their “religious precepts.”)

In December 2007, the appeals court declined Karaganis’s petition that it meet en banc—that is, with all its judges hearing the case—and lifted an injunction preventing O’Hare from receiving title to the cemetery. Abandoned by their allies in fighting the modernization plan, supporters of St. Johannes may have finally run out of options. In the past, the U.S. Supreme Court has declined to hear the case, which suggests any pending or future appeals there would likely be fruitless. That leaves the cemetery’s fate hanging on an ongoing (and likely soon-to-be-resolved) condemnation case in a DuPage County court.

Karaganis, for one, is baffled by the decision of the appeals court. “I’m not particularly a religious person,” he says, “but I strongly believe that what we were founded on includes a protection of religious rights. It astounds me, the cavalier nature of what’s been done here. With all due respect to Judge Wood, I think it was a political decision.”

Despite the judicial setbacks, the congregation of St. John’s, falling back on its strong religious faith, insists the battle isn’t over. “I certainly know what we’re up against,” says Rev. Kirchhoff, who has a burial plot waiting for him among his ancestors at St. Johannes. “But I hold up hope that we will prevail.”

As for Karaganis, he too retains his faith in a higher power: the U.S. Constitution. “If the courts and the FAA and the city of Chicago follow the law,” he says, “we are confident the cemetery will remain. If not, the results will speak for themselves.”

 

Photograph: Megan Lovejoy

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