Academic journal article The Review of Litigation

RLUIPA's Equal Terms Provision and the Split between the Eleventh and Third Circuits

Academic journal article The Review of Litigation

RLUIPA's Equal Terms Provision and the Split between the Eleventh and Third Circuits

Article excerpt

I. INTRODUCTION

This Note addresses the current split between the Eleventh Circuit and the Third Circuit Courts of Appeals regarding the Equal Terms provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA).1 RLUIPA is a young statute, and the U.S. Supreme Court has yet to address its land use provisions. Not surprisingly, nine years after RLUIPA's enactment, federal courts evaluate land use claims on a case-by-case basis without governing precedent.2 As a result, a doctrinal split has developed between the Eleventh and Third Circuits regarding the interpretation of two aspects of RLUIPA's Equal Terms provision.3 First, the Circuits disagree as to what standard of comparison should be employed to determine whether a secular assembly or institution is treated more favorably than a religious assembly or institution.4 Second, the Circuits dispute what standard of scrutiny applies to governmental regulations favoring secular assemblies or institutions over religious ones.5

These Circuit disputes are neither unimportant nor solely academic in nature. Religion is an important issue to most Americans - the most important issue to many - and worship is an essential part of it. The Equal Terms provision of RLUIPA provides that government may not prefer secular assemblies and institutions to religious assemblies and institutions in land use regulation. Interpretations of the Equal Terms provision, whether broad or narrow, therefore affect the ability of religious establishments to operate within highly zoned and often densely populated districts - that is, they have real consequences for persons residing in or near those districts with regard to where they can worship.

Interpretations of the Equal Terms provision also implicate the ability of local governments to enact appropriate land use regulations. Many American cities are currently engaged in development projects designed to increase commerce and revitalize the economies of urban districts. These cities often have an interest in excluding large religious establishments from commercial districts, particularly in states and municipalities that prohibit or restrict the selling of alcoholic beverages near houses of worship. Insofar as a broad reading of the Equal Terms provision may allow religious establishments to locate freely in commercial districts, important urban development projects could be frustrated.

Because any interpretation of RLUIPA' s Equal Terms provision will therefore significantly impact (1) the ability of persons to worship in convenient locations; (2) the extent to which religious establishments may locate in densely populated areas; and (3) the relative success of urban renewal projects, it is essential to interpret the Equal Terms provision in a way that both reasonably protects religious establishments from discrimination and allows governments some latitude to enact appropriate land use legislation. This Note argues that the comparison-by-category approach adopted by the Eleventh Circuit frustrates the purposes of valid land use regulations. Accordingly, the Third Circuit's requirement, set forth in Lighthouse - that a land use plaintiff point to a secular comparator that is similarly situated with regard to the objectives of the statute - is the preferred test. Conversely, the Eleventh Circuit's strict scrutiny requirement - applied in Midrash - is preferable to the Third Circuit's strict liability standard, since strict scrutiny allows the occasional statute designed to further a particularly compelling governmental interest to survive an Equal Terms provision challenge without posing any threat to the vast majority of valid claims.

This Note begins by briefly outlining the relevant RLUIPA provisions, after which it addresses the respective approaches of the circuits in Midrash and Lighthouse. Finally, it outlines the preferable test.

II. RLUIPA's EQUAL TERMS PROVISION

RLUEPA's land use regulation is divided into two sections, "Substantial Burdens" and "Discrimination and Exclusion. …

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