The “Equal Terms” provision of the Religious Land Use & Institutionalized Persons Act (“RLUIPA”) provides that “[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” That’s it. Take a moment and read it again because understanding what it says and does not say may help you understand why the federal circuit courts of appeal are split over how to interpret the “equal terms” language and why Sixth Circuit Judge Amul Thapar strongly criticized what the courts have done to the statute.
On one side of the split, the Eleventh Circuit has, for the most part, interpreted the language literally and broadly in favor of religious exercise, as the statute requires. Under the Eleventh Circuit’s test, if a municipality allows any “nonreligious assembly” to locate in a zone it must also allow a religious assembly to locate in that zone, unless the unequal treatment of religious uses can satisfy “strict scrutiny.” Close readers will note that this strict scrutiny language is not found in the Equal Terms provision (read it again if you don’t believe me), and that the absence of the language is not because Congress was unfamiliar with it. In fact, Congress was so familiar with strict scrutiny that it included strict scrutiny language in the Substantial Burden provision of RLUIPA.
On another side of the split, the Third Circuit has held that a religious assembly is not entitled to be treated on equal terms with just any nonreligious assembly use. Rather, “a regulation will violate the Equal Terms provision only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory purpose.” Again, close readers will note that the “similarly situated” language is not in the statute either. Rather, this language is borrowed from the Supreme Court’s Fourteenth Amendment Equal Protection Clause jurisprudence.
Not satisfied with either the Eleventh or Third Circuit tests, the Seventh Circuit adopted its own test which is not as protective as the Eleventh Circuit’s test and which does not focus on the municipality’s subjective “regulatory purpose” for the zoning ordinance (as the Third Circuit’s test does) but rather focuses on whether the uses are comparable with respect to accepted and objective “zoning criterion.” For example, if the zoning criterion is “commercial” and “a municipality creates what purports to be a pure commercial district and then allow other [non-commercial] uses, a church would have an easy victory if the municipality kept it out.”
Until last week, the Sixth Circuit had not taken a side or adopted any of the other circuits’ tests. However, on September 18, 2018, the Sixth Circuit finally adopted its own test for analyzing an Equal Terms claim in a 2-1 decision in Tree of Life Christian Sch. v. City of Upper Arlington, No. 17-4190, 2018 U.S. App. LEXIS 26400, *18 (6th Cir. Sep. 18, 2018). To start, the Sixth Circuit rejected a reading of the “equal terms” provision that would be no more protective than the Fourteenth Amendment’s Equal Protection Clause; in other words, a plaintiff need not prove that it is “‘similarly situated’ to a comparator ‘in all relevant respects.’” However, the Sixth Circuit decided to follow along the lines of the Third and Seventh Circuit tests in holding that the “comparison required by RLUIPA’s equal terms provision is to be conducted with regard to the legitimate zoning criteria set forth in the municipal ordinance in question.” Id. at 24.
Sixth Circuit Judge Amul Thapar, however, filed a strong dissenting opinion which not only surveyed the “sordid” history of municipalities using land use regulations to discriminate against racial and religious minorities but also took the circuits to task for forgetting “this country’s sacred vow” and failing “to give RLUIPA the effect its written text demands.” In his dissent, Judge Thapar described how the “fault lies not with Congress, but with the courts, which have added requirements into RLUIPA that prevent many religious groups from seeking the shelter that Congress sought to provide.” As Judge Thapar explains, “[t]he Equal Terms provision prohibits local governments from treating a religious assembly or institution on less than equal terms than a ‘nonreligious assembly or institution”; “‘[s]imilarly situated’ appears nowhere in that mandate.” Moreover, Judge Thapar criticized the court from not adhering to the statute’s express instruction to “construe the statute in favor of a broad protection of religious exercise, to the maximum extent permitted.” According to Judge Thapar, the court should require nothing more than what the text of the statute requires.
Judge Thapar, who was recently considered a leading candidate for a nomination to the United States Supreme Court, closed his dissent with this parting comment: “There comes a time with every law when the Supreme Court must revisit what the circuits are doing. That time has come.” Until the Supreme Court decides to address this split in the circuits, the success and failure of a religious assembly’s equal terms claim may depend on the circuit in which it is filed.
If your religious assembly or institution has faced land use discrimination, please contact the attorneys at Dalton & Tomich who have litigated these cases all across the country and are familiar with the divergent circuit court tests.
 42 U.S.C. §2000cc (b)(1)
 For the sake of space, this post will not address every circuit’s test. The differences in all the tests underlines the importance of retaining an attorney familiar not only with RLUIPA but also all the relevant circuit’s test. A meritorious case in one circuit may not succeed in another circuit.
 Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1230-32 (11th Cir. 2004)
 42 U.S.C. § 2000cc(a)(1)
 Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir. 2007)
 River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367, 371 (7th Cir. 2010)
 Id. at 21 (quoting United States v. Green, 654 F.3d 637, 651 (6th Cir. 2011))
 Id. citing 42 U.S.C. § 2000cc-3(g).
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