Unequal Application of RLUIPA's 'Equal Terms' Provision

56 Pages Posted: 26 Feb 2011

Date Written: February 24, 2011


This Comment addresses the current split between the United States Court of Appeals for the Eleventh Circuit, the Third Circuit, and, most recently, the Seventh Circuit regarding the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The "equal terms" provision is within the land use provisions of RLUIPA. Even though these land use provisions implicate important issues, such as the extent to which state and local governments can exclude religious establishments from commercial districts, the United States Supreme Court has not addressed the "equal terms" provision. Since the Supreme Court has not addressed the issue, lower federal courts are left to rely upon their own case by case analysis without any guidance from the Court. The recent three way split among the circuits shows that, not only are lower federal courts interpreting the "equal terms" provision differently, but that the Supreme Court should address this RLUIPA provision to avoid more confusion among circuits.

The "equal terms" provision of RLUIPA provides that the government cannot prefer secular institutions or assemblies over religious assemblies when dealing with land use regulations. Courts’ interpretation of this provision, regardless of its scope, affects the ability of religious institutions to locate in densely populated areas and convenient locations. As many cities attempt to revitalize the economies of urban districts and engage in city projects to increase commercial activity and city productivity, the "equal terms" provision interpretations are becoming more important. For example, in New York, the zoning commission recently refused to allow a religious institution to build in a particular zone stating that "half the issue was the traffic and other half was the church’s tax exempt status." Although a few articles have been written on the split between the Eleventh and Third Circuit, the recent Seventh Circuit’s choice to deviate from both circuits’ standards and create its own standard for interpreting the "equal terms" provision further shows that the Supreme Court must address this important provision.

The lack of governing precedent on the issue has led to a doctrinal circuit split between the Eleventh, Third, and Seventh Circuits. The circuits have differing interpretations as to the meaning of the "equal terms" provision and disagree as to what "standard" of comparison should be used when deciding whether a secular institution (or assembly) is treated more favorably than a religious institution (or assembly). Further, the circuits also differ as to what standard of scrutiny should be applied when local and state governments implement regulations that favor secular institutions or assemblies over religious ones.

This Comment argues that the United States Supreme Court should address and interpret the "equal terms" provision of RLUIPA, and recommends an approach the Court should adopt. Specifically, it recommends that the Eleventh Circuit’s approach should be adopted. Further, it discusses the Eleventh, Third, and Seventh Circuit approaches. The analysis of the Seventh Circuit approach is in-depth, and most critiqued, since it was only recently articulated in July 2010.

The Author argues for the adoption of the Eleventh Circuit approach to the standard of comparison for determining whether a secular assembly is treated more favorably than a religious one, and that the Eleventh Circuit’s level of scrutiny standard that federal courts should apply to governmental regulations favoring secular assemblies should be adopted. The Eleventh Circuit’s "comparison by category approach" allows for protection of religious establishments from discrimination, and also further congressional intent behind the "equal terms" provision. Moreover, the Third and Seventh Circuit approaches allows creators of land use regulations to manipulate these regulations in ways in a way the permit discriminatory land use provisions that should be invalidated under RLUIPA. Further, the Eleventh Circuit’s strict scrutiny requirement is preferable to the other circuits’ scrutiny levels, because it allows the occasional statute truly designed to further a compelling governmental interest to survive an "equal terms" provision challenge.

This Comment first outlines Supreme Court religious exercise jurisprudence prior to RLUIPA’s enactment. Next, it discusses RLUIPA and its relevant portions, and addresses the different approaches from the Eleventh, Third, and Seventh Circuits. Then, it discusses why the Eleventh Circuit approach is preferable to the Third and Seventh Circuit approaches. Finally, it explains why a Supreme Court precedent on this issue, regardless of which approach is chosen, is imperative.

Keywords: RLUIPA, Religious Land Use and Institutionalized Persons Act, Equal Terms Provision, Religious Land Use, Land Use, Mega Churches, Minority Religions, Religious Discrimination, Religious Exercise

Suggested Citation

Walker, Brooke N., Unequal Application of RLUIPA's 'Equal Terms' Provision (February 24, 2011). Available at SSRN: https://ssrn.com/abstract=1769084 or http://dx.doi.org/10.2139/ssrn.1769084

Brooke N. Walker (Contact Author)

affiliation not provided to SSRN ( email )

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