INTRODUCTION I. A BRIEF HISTORY OF FEDERAL PROTECTION OF RELIGIOUS EXERCISE A. The Constitution B. Case Law Interpreting the Free Exercise Clause C. RFRA and City of Boerne v. Flores D. RLUIPA II. THE JUDICIAL INTERPRETATION OF RLUIPA'S EQUAL TERMS PROVISION A. The Eleventh Circuit B. The Seventh Circuit C. The Third Circuit III. WHY THE MIDRASH APPROACH PROVIDES THE BEST INTERPRETIVE FRAMEWORK FOR THE ANALYSIS OF EQUAL TERMS CHALLENGES A. The Circuit Split B. The Similarly Situated Secular Comparator Requirement 1. The Third Circuit's Fears 2. Principles of Statutory Construction C. Strict Liability Versus Strict Scrutiny CONCLUSION INTRODUCTION
Religious liberty is a bedrock principle of our national heritage. (1) The Supreme Court has recognized that the Founders saw the separation of church and state as necessary to guarantee individuals the freedom to openly practice the religion of their choosing without fear of governmental persecution. (2) James Madison, for example, was a strong supporter of the federal protection of religious freedom. (3) The Bill of Rights thus enshrines religious liberty as a fundamental right and places it prominently at the beginning of the First Amendment. (4)
Over time, however, the protections guaranteed by the First Amendment have been qualified by judicial decisionmaking. In 1990, the Supreme Court held in Employment Division v. Smith that a neutral, generally applicable law is entitled to deferential rational basis review, even if the law prohibits conduct central to an individual's religion. (5) The Supreme Court's decision in Smith dramatically limited prior Supreme Court precedent that had required strict scrutiny of any law substantially infringing upon the right to free exercise of religion. (6) The widespread perception that principles of stare decisis had been violated by the Smith Court provoked a powerful congressional response. At least two bills signed into law sought to restore the religious freedom thought to have been lost after Smith. (7)
The latest congressional attempt to restore the religious liberty promised by the Constitution is the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). (8) RLUIPA contains an Equal Terms provision, which states 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." (9) As this Comment will show, however, some federal courts have interpreted RLUIPA in such a way as to render it toothless.
The federal circuit courts are split as to the proper interpretation of the Equal Terms provision. The Eleventh Circuit noted in Midrash Sephardi, Inc. v. Town of Surfside that while the provision "has the 'feel' of an equal protection law, it lacks the 'similarly situated' requirement usually found in equal protection analysis." (10) Therefore, a land-use regulation violates RLUIPA if a secular assembly or institution, in the ordinary sense of those terms, can locate where a religious assembly or institution cannot. (11) The Seventh Circuit agreed, stating in Vision Church v. Village of Long Grove that "a plaintiff need not demonstrate disparate treatment between two institutions similarly situated in all relevant respects." (12) The Third Circuit disagreed with both the Seventh and Eleventh Circuits, holding in Lighthouse Institute for Evangelism, Inc. v. City of Long Branch that "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." (13)
The Third Circuit also disagreed with the Eleventh Circuit regarding the standard of review that should apply to a regulation upon a finding of unequal treatment.(14) While the Eleventh Circuit held that the challenged regulation should receive strict scrutiny upon a finding of unequal treatment, (15) the Third Circuit held that the government should be held strictly liable for a violation of the Equal Terms provision. Thus, under the Third Circuit's test, the challenged regulation is automatically invalidated upon a finding of unequal treatment. (16)
The Third Circuit's interpretation of RLUIPA's Equal Terms provision responds to a valid concern that the provision should not be interpreted to grant religious entities greater rights than secular entities. In light of the text and legislative history of RLUIPA, however, the imposition of a "similarly situated" requirement and a strict-liability standard of review ignores the plain language of the statute as well as Congress's express purpose in enacting it. The Eleventh Circuit's interpretation in Midrash is more consistent with the text of the statute, Congress's express findings of religious discrimination, and RLUIPA's purpose.
In her insightful Note, recently published in the Duke Law Journal, Sarah Keeton Campbell argues that a strict textual interpretation of the Equal Terms provision would be within Congress's powers under Section 5 of the Fourteenth Amendment. (17) While Campbell contends that imposing a similarly situated requirement on the Equal Terms provision is inappropriate, she does not believe that the appropriate standard of review is strict scrutiny of the challenged regulation upon a finding of unequal treatment. (18) This Comment, in contrast, argues that the strict-liability standard of review advocated by Campbell might exceed the boundaries set by the Supreme Court's holding in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. (19) The text of RLUIPA expressly provides that the Act should be construed to protect religious exercise to the broadest extent constitutionally permissible, (20) which, under Lukumi, means strict scrutiny of the challenged regulation.
In Part I of this Comment, I review the history of federal protection of religious exercise from the ratification of the Constitution to the enactment of RLUIPA. In Part II, I summarize the judicial interpretations of RLUIPA's Equal Terms provision. Finally, in Part III, I argue that the Eleventh Circuit's interpretation in Midrash is preferable because it recognizes legislative supremacy and effectuates the will of the American people as expressed in the text of the statute enacted by their elected representatives.
A BRIEF HISTORY OF FEDERAL PROTECTION OF RELIGIOUS EXERCISE
Our nation has enjoyed a long and distinguished history of upholding every American's right to freely profess and practice the religious beliefs of her choice. This Part provides a brief overview of the federal protection of religious exercise.
The Constitution is the starting point for any analysis of religious-liberty fights. The First Amendment provides two forms of protection for religion: the Establishment Clause and the Free Exercise Clause. (21) This Comment is primarily concerned with the protections conferred by the Free Exercise Clause, which prevents the states and the federal government from passing any law prohibiting the free exercise of religion. (22)
The Bill of Rights was enacted as a result of popular concern that the federal government would not be accountable to the people in the absence of express restrictions on the exercise of governmental authority. (23) The Religion Clauses of the First Amendment were largely designed to assuage fears that the federal government might attempt to establish religion or prohibit religious exercise in the states, (24) as well as to guarantee that the religious preferences of one state would not be imposed on the country as a whole. The Founders' use of the term "free exercise" implies that the Clause was meant to protect not only religious belief but also religious conduct. (25) Indeed, the Supreme Court itself has stated that "[t]he Free Exercise Clause ... withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority." (26)
The next constitutional provision relevant to recent congressional attempts to protect religious liberty is the Fourteenth Amendment. The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." (27) "Liberty" includes the religious liberty conferred by the First Amendment. (28) Section 5 of the Fourteenth Amendment further provides that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." (29) Thus, when Congress has found the states to be remiss in their duty, Section 5 of the Fourteenth Amendment enables Congress to use its remedial power to enact laws enforcing the guarantees of religious liberty found in the First Amendment. RLUIPA is one such law.
Case Law Interpreting the Free Exercise Clause
The first case to interpret the Free Exercise Clause came down in 1879. (30) In Reynolds v. United States, the Supreme Court held that a Mormon who had contracted plural marriages could not obtain a religious exemption from the federal antipolygamy statute. (31) The Court, deciding not to protect religiously motivated conduct in the face of a generally applicable criminal law, (32) thus interpreted the Free Exercise Clause countertextually. This interpretation remained unchanged until the 1940 case of Cantwell v. Connecticut, in which the Court upheld the right of Jehovah's Witnesses to proselytize without prior governmental restraint, even in ways considered aggressive and offensive to Catholics. (33)
In the 1963 case of Sherbert v. Verner, the Court adopted a more expansive reading of the Free Exercise Clause, one that embraced not only protection for religiously motivated conduct but also religious exemption from generally applicable laws. (34)...