J.P. Burleigh, Associate Member, University of Cincinnati Law Review
Imagine attending church in a small rental space. The landlord announces he will develop the space into a retail store next year, so the church will need to move elsewhere. The church’s leadership resolves to build a permanent home for its ministry. After months of fundraising, the church secures a loan and buys the perfect piece of land. Before the church can break ground, however, the city passes a regulation requiring all non-profits to apply for a conditional use permit. The city denies the church’s application but grants one for a nonreligious non-profit just next door to the church’s plot. Fortunately, federal law may provide a remedy. The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) protects religious liberty in the context of land use regulations, such as the one described above. The Equal Terms provision of RLUIPA states: “No 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.” A person may assert a violation of this provision in court as a claim or defense against a government. While this might appear to address the very situation described, there is one problem: federal courts do not agree what constitutes unequal treatment under this provision. That means that the fate of this hypothetical church might depend on its judicial jurisdiction.
Courts have said that RLUIPA and its Equal Terms provision should be understood in the broader context of Congress’ efforts to protect the “free exercise of religion” guaranteed by the First Amendment. Until the late twentieth century, courts reviewed government action that substantially burdened sincere religious belief with a standard called “strict scrutiny”: the government needed to pursue a compelling state interest through the method least burdensome to religious exercise. A person who believed some government action infringed on his or her religious exercise could sue for an exemption, which a court would grant if the government action did not pass strict scrutiny. The Supreme Court limited this practice in Employment Division v. Smith. Wary of judges balancing religious belief against government interests, the Court held that strict scrutiny should only apply to government action that on its face intentionally discriminates against religion. The Court added that exemptions to neutral, generally applicable laws would have to come from legislatures.
Smith sparked concern that courts would be powerless to address burdens on religious liberty masked by facially neutral reasons. Many people also feared that making religious exemptions an entirely legislative process would hurt minority religions. In response to Smith, Congress passed the Religious Freedom and Restoration Act of 1993 (RFRA) with unanimous support in the House and only three objectors in the Senate; President Bush swiftly signed it into law. RFRA required courts to re-adopt strict scrutiny in religious exercise claims. The Supreme Court struck down RFRA as applied to state governments in City of Boerne v. Flores, citing concerns that Congress was intruding on the role of courts and state governments.
Although the Supreme Court had rejected a broad attempt to re-impose strict scrutiny in all free exercise claims, Congress persisted in extending that protection in a narrower context. After Boerne, Congress passed RLUIPA unanimously and President Clinton signed it into law in 2000. RLUIPA re-imposed the strict scrutiny test for religious exercise claims in two contexts: land use regulations and the prison system. RLUIPA also contains the Equal Terms provision that states: “No 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.” Congress included rules of construction to aid courts in interpreting the various provisions, stating: “This Act shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.”
The Equal Terms provision of RLUIPA presents four elements that a plaintiff must show to state a claim: 1) the plaintiff is a religious assembly or institution 2) subject to a land use regulation 3) that treats the plaintiff on less than equal terms 4) compared with a nonreligious entity. “Less than equal” treatment can occur in one of three ways. A regulation might discriminate against religious entities on its face, for example by banning churches altogether. A regulation could apply so disproportionately against religious entities that it is “gerrymandered inequality,” as with a statute that bans steeples in an area where the only buildings with steeples are churches. Last, a government might enforce a regulation unequally, for example by requiring non-profits to apply for a special permit and approving all applications except those from churches. The heart of the split between circuits is the fourth element: to what sort of nonreligious entity does a religious entity need to compare in order to show unequal treatment?
The Eleventh Circuit, the first to address this issue, uses the plain meaning approach. Under this view, the religious entity must identify merely “a nonreligious assembly or institution”—that is to say, any nonreligious assembly or institution also subject to the regulation. For instance, a city might declare that no structure in its limits may be higher than forty feet, barring construction of a proposed church of forty-five feet. The congregation could assert a violation of the Equal Terms provision as long as it could identify a nonreligious entity also in the city limits. This does not mean that the church automatically wins, but rather that a court can then proceed to analyze whether the treatment was unequal. This plain meaning approach relies on the history and text of RLUIPA as evidence that Congress clearly intended to give religious entities broad protection in land use regulations.
However, the Third, Sixth, Seventh, and Ninth circuits require that the nonreligious entity also be similarly situated to the religious entity seeking relief. These circuits define “similarly situated” in slightly varying but closely related ways. Each requires the religious entity to show that a nonreligious entity is subject to the same regulation and is sufficiently similar before the court will even analyze unequal treatment. In the example above, that same church could not proceed without identifying a nonreligious assembly of a similar height—and a judge would decide what height is sufficiently similar. The similarly situated approach fears the plain meaning would give too much preference to religious entities and violate the First Amendment as a law “respecting an establishment of religion.”
In May of 2019, the Supreme Court denied review of the most recent case to address this conflict, Tree of Life Christian Sch. v. City of Upper Arlington, leaving this circuit split unsettled.
This issue can make or break a case for Equal Terms plaintiffs struggling to identify a nonreligious entity for comparison. Consider Tree of Life for instance. In that case, the City of Upper Arlington had enacted a zoning regulation to create a business district to maximize revenue for the city. The plan restricted properties within the district to commercial uses and prohibited non-profits generally, including schools. A select few non-profits were automatically exempted from the ban, including hospitals and daycares which the city deemed would promote business. However, places of worship and churches needed conditional use permits from the city. Tree of Life Christian School bought a large office building to create a unified campus for its students, who attended school in multiple locations. Upper Arlington denied Tree of Life’s application for a conditional use permit as a place of worship. In response, Tree of Life sued the city under the Equal Terms provision of RLUIPA. After Tree of Life’s defeat at trial, the major issue on appeal was what nonreligious entity Tree of Life could identify for comparison.
Judge Thapar’s dissent followed the plain meaning approach and argued that Tree of Life could compare treatment using any nonreligious entity in the city. Because hospitals and daycares satisfied this comparison, Judge Thapar proceeded to analyze unequal treatment. He concluded that Upper Arlington’s regulation discriminated on its face against Tree of Life by requiring (and denying) a conditional use permit which those hospitals and daycares did not need. However, Judge Gilman’s opinion for the court held that since Upper Arlington’s zoning plan aimed at raising money for the city, Tree of Life needed to identify a nonreligious institution with similar potential for tax revenue. Although Tree of Life demonstrated it would provide more total taxable income than an approved daycare center, Upper Arlington countered that the daycare would bring in more tax dollars per square foot. Siding with the city, the court refused to analyze unequal treatment because no nonreligious entity was similarly situated. Thus the interpretation of which nonreligious entity to compare controlled the outcome of the case.
On one hand, the similarly situated approach makes intuitive sense. Consider Tree of Life: the regulation was about raising money for the government, and Upper Arlington merely denied a conditional use for something it believed would not make much money. The problem with this approach is that it controverts the plain meaning of the Equal Terms provision. As Judge Thapar explained in his dissent, the statute clearly tells courts what to use to compare treatment. He went on to say that the only work for the court to do is identify a nonreligious entity, and then analyze whether the treatment was unequal. The similarly situated requirement makes it harder for religious people to assert violations of the Equal Terms provision, as Tree of Life shows. Without a nonreligious entity to compare, the court could not even analyze unequal treatment. Further, the city held all the cards, because it defined the criteria of its regulations. Upper Arlington twisted the standard for revenue generation to prevent Tree of Life from identifying a comparable nonreligious entity. Even though the regulation discriminated on its face by requiring a special permit for religious entities, Tree of Life could not show an Equal Terms violation.
The Tree of Life decision took the teeth out of the Equal Terms provision and gave governments an easy way to exclude unwanted religious entities. Religious entities will almost always create less tax dollars than for-profit businesses, so any government seeking to push out a religious entity need only cite economic growth as justification. Allowing governments to exclude religious entities by casting their land use schemes in monetary terms controverts RLUIPA’s purpose.
A. Legislative History and Plain Language
RLUIPA and its Equal Terms provision were meant to give religious entities a major tool to protect their free exercise: a government cannot use land use regulations to allow nonreligious entities but exclude religious ones. The similarly situated approach is not based on the actual text or history of RLUIPA. Instead, courts have created the similarly situated requirement on their own. They reasoned that Congress could not have meant to exempt religious entities from land use regulations that everyone else must follow—so the text must mean something else. Finding the statute ambiguous, they created new terms that made asserting an Equal Terms violation harder for religious entities. But the history of RLUIPA does not support such a reading, and the statute is not ambiguous.
Congress’ tug of war with the Supreme Court demonstrates Congress’ commitment to protect religious exercise to the greatest degree permitted by law. Congress absolutely intended to allow religious exemptions from generally applicable laws; that was what RFRA and RLUIPA were all about. Even Smith itself, which limited the capacity of judges to provide religious exemptions, explicitly stated that legislatures may provide these exemptions if they so desire. Smith all but encouraged legislatures to provide religious exemptions by statute so that judges would not have to. RLUIPA does just that.
If a court doubts legislative history, the statute itself removes any confusion; it instructs courts to construe the terms to protect religious entities to the maximum possible extent. Consider the text once more: “No 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.” The text is clear, and the words “similarly situated” are not there. The words that are present do not suggest that courts should first inquire as to whether a nonreligious entity is similarly situated enough, and only then proceed to the question of unequal treatment. The court’s job is simply to compare “a religious assembly or institution” with “a nonreligious assembly or institution.”
B. Establishment Clause
Courts have recognized the constitutionality of religious exemptions for decades. RLUIPA’s Equal Terms provision continues that tradition. The Supreme Court’s logic in Cutter, which dealt with the strict scrutiny provision in the prison context, is directly applicable to the Equal Terms provision in the land use context. The Court emphasized that protecting free exercise and remedying discrimination can require giving special accommodation to religious entities. Because religious exercise involves actions, not just abstract thought, those accommodations might mean permitting a specific activity, such as inmates gathering for prayer or a congregation building a new church. Those accommodations are permissible as long as they do not promote religion.
Applying the plain meaning of the Equal Terms provision does not promote any specific religion, nor does it promote religion over nonreligion. Regardless of belief, any religious institution or assembly can sue under the Equal Terms provision. Most importantly, even if a religious entity shows a comparable nonreligious entity, victory is not automatic. Another element of an Equal Terms violation is unequal treatment; the court must still decide that the government is actually treating the religious entity unequally compared to a nonreligious entity. Showing such treatment will be hard if only the government knows the true reason for the regulation. Courts should not make that process any harder by barring religious entities who cannot demonstrate a sufficiently similar nonreligious entity.
Congress wrote the Equal Terms provision of RLUIPA to ensure that governments do not use land use regulations to exclude religious entities. Unfortunately, some courts have deviated from Congress’ intention and imposed an added requirement which makes it more difficult to assert an Equal Terms violation. Neither the text and history of RLUIPA nor the Establishment Clause justify this added obstacle. Future courts should follow the Eleventh Circuit’s lead and enforce the plain meaning of the Equal Terms provision: governments cannot use land use regulations to treat religious entities worse than nonreligious entities.
 Religious Land Use and Institutionalized Persons Act of 2000, Pub. L. No. 106-274, 114 Stat. 803 (2000).
 42 U.S.C. §2000cc(b)(1).
 Id. at §2000cc-2(a).
 Tree of Life Christian Sch. v. City of Upper Arlington, 905 F.3d 357, 387 (6th Cir. 2018) (“[C]ircuits split on the issue.”).
 Id. at 366. (“The key disagreement among the circuits is what constitutes a proper comparator for the purpose of analyzing these elements.”)
 Id. at 379 (Thapar, J., dissenting).
 Lighthouse Inst. For Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 267 (3rd Cir. 2007); Tree of Life, 905 F.3d at 367; River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367, 372 (7th Cir. 2010); Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1173 (9th Cir. 2011).
 River of Life Kingdom Ministries v. Vill. of Hazel Crest, 611 F.3d 367, 378 (7th Cir. 2010).
 Sherbert v. Verner, 374 U.S. 398, 403-06 (1963) (holding that South Carolina’s Employment Security Commission could not exclude a Seventh Day Adventist from unemployment benefits when she was fired for refusing to work on Saturdays); Wisconsin v. Yoder, 406 U.S. 205, 236 (1972) (holding that Wisonsin’s compulsory education statute unduly burdened the Amish community’s religious belief that higher education exposes develops influences which alienate man from God)
 See generally Sherbert, 374 U.S. 398; Yoder, 406 U.S. 205.
 494 U.S. 872 (1989).
 Id. at 884-85.
 Id. at 890.
Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L Rev. 153, 159 (1997)
 H.R. 1308 – Religious Freedom Restoration Act of 1993, Congress.gov, https://www.congress.gov/bill/103rd-congress/house-bill/1308/all-actions?overview=closed#tabs.
 42 U.S.C. §2000bb.
 521 U.S. 507, 536 (1997).
 Michael Paisner, Boerne Supremacy: Congressional Responses to City of Boerne v. Flores and the Scope of Congress’s Article I Power, 105 Colum. L. Rev. 537, 542-43 (2005).
 S.2869 – Religious Land Use and Institutionalize Persons Act of 2000, Congress.gov, https://www.congress.gov/bill/106th-congress/senate-bill/2869/all-actions?r=1&overview=closed#tabs.
 42 U.S.C. §2000cc(a).
 Id. at §2000cc-1(a).
 Id. at §2000cc(b)(1).
 Id. at §2000cc-3(g).
 Tree of Life, 905 F.3d at 367 (Gilman, J., for the court); Id. at 378 (Thapar, J., dissenting).
 Id. at 380.
 Id. at 381.
 Id. at 381-82.
 Tree of Life, 905 F.3d at 367.
 Midrash Shepardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1231 (11th Cir. 2004).
 River of Life, 611 F.3d at 378-80 (Sykes, J., dissenting).
 Tree of Life, 906 F.3d 357 at 379 (Thapar, J., dissenting).
 Id. at 369.
 Id. at 368.
 905 F.3d 357 (6th Cir. 2018) (Cert. denied in Tree of Life Christian Sch. v. City of Upper Arlington, 139 S. Ct. 2011 (2019)).
 Tree of Life, 905 F.3d at 361-62.
 Id. at 362.
 Id. at 362.
 Id. at 363.
 Id. at 363-67.
 Id. at 384.
 Id. at 385.
 Id. at 371.
 Id. at 375-76.
 Id. at 376.
 Id. at 368.
 Employment Div. v. Smith, 494 U.S. 872, 890 (1990); Cutter v. Wilkinson, 544 U.S. 709.
 544 U.S. 709 (2005).
 Id. at 720-22.
 Id. at 723-24.
 Id. at 724.
 Freedom Baptist Church v. Twp. Of Middletown, 204 F. Supp. 2d 857, 869-70 (E.D. Penn. 2002); Midrash Sephardi 366 F.3d at 1239-40.