II. Equal Terms Claims

• Library: Litigating Religious Land Use Cases (ABA) (2016 Ed.)

II. Equal Terms Claims

The Equal Terms Clause 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."⁴⁰⁹ While a substantial burden claim is focused on a particular plaintiff, equal terms claims are based on the treatment of one religious institution compared to similar secular institutions both under the plain language of a land use ordinance and in how that ordinance is applied to a religious organization. One must keep in mind that a claim pursuant to the Equal Terms Clause is an entirely separate matter from claims arising under the Substantial Burden Clause. Accordingly, a religious institution alleging an equal terms violation is not required to also demonstrate that a local government substantially burdened its religious exercise.

Facial equal terms claims have been infrequent since the birth of RLUIPA in 2000. This is somewhat self-explanatory due to the nature of land use discrimination cases. Most local ordinances do not, on their face, treat religious institutions on less than equal terms compared to secular comparators. Thus, equal terms cases are more likely to be fact-sensitive inquiries into how a local government applied its ordinances to religious organizations as compared to those that are similarly situated and nonreligious. Following are a number of cases that address both types of equal terms claims—facial challenge and as-applied challenges. In brief, a facial challenge takes issue with the plain terms of an ordinance that treats religious organizations on less than equal terms than secular uses. As-applied challenges contest the government's application of a zoning regulation as treating religious organizations worse than secular uses.

a. Circuit Split on Application

At present, circuit courts are divided on the appropriate application of the equal terms provision. Most of this disagreement centers on what constitutes an "assembly or institution," whether or when a similarly situated comparator is necessary, and what level of scrutiny should be applied. Still, there is considerable overlap among the differing standards, the Second Circuit going as far as claiming that the courts still "come to essentially the same result" despite "differences in the mechanism."⁴¹⁰ Nonetheless, as will be shown, the differences can lead to some confusion when litigating under equal terms.

The leading equal terms case is Midrash Sephardi, Inc. v. Town of Surfside.⁴¹¹ A facial challenge case, Midrash advanced a broad and friendly understanding of appropriate comparators under the equal terms provision, to include assembles and institutions generally without requiring a similarly situated comparator. It also designated the strict scrutiny standard for treatment on less than equal terms. The case involved two Orthodox Jewish congregations operating in the business district of Surfside, Florida. The town's zoning scheme prohibited churches and synagogues within a business district, but permitted "private clubs," among other secular uses. The town argued that its small business district was the only retail area the town had, and its tax base was essential to serve the needs of its residents.⁴¹² The congregation eventually filed suit under RLUIPA, alleging that it was treated on less than equal terms compared to the secular uses that were permitted in the business district. The district court found for the town, but the appellate court reversed and found for the congregation on its equal terms claim.

The 11th Circuit began by analyzing the plain meaning of the terms "assembly" and "institution" and determined that private clubs and other nonreligious uses allowed in the zone constituted "assemblies" for purposes of RLUIPA.⁴¹³ Because both groups were "assemblies" under RLUIPA, the court next addressed whether the town treated the Jewish congregations differently than the secular uses. The court found that the town's zoning ordinance, on its face, treated religious assemblies on less than equal terms by excluding them from the business district when secular "assemblies" were permitted.⁴¹⁴ In addition, the court determined that the zoning ordinance was not narrowly tailored, as it improperly distinguished between religious assemblies and similar secular entities that also did not further the town's stated goal of earning tax revenue to support its residents.⁴¹⁵ One year later the court, in an as-applied case, held that the application of a neutral statute could violate equal terms when a jurisdiction denies a religious land use having "comparable community impact" to a permitted secular land use.⁴¹⁶ The following year it clarified that this framework does constrain Midrash, but only to the extent that as-applied challenges require more than a showing that a religious organization received less than equal treatment than a secular assembly or institution. Indeed, they require one to show that a religious organization was subject to less than equal treatment than a similarly situated secular assembly or institution.⁴¹⁷

However in 2007 the Third Circuit, "not persuaded by the reasoning of the Eleventh Circuit," took a more contextual approach to equal terms in Lighthouse Institute for Evangelism v. City of Long Branch.⁴¹⁸ Here the court required a similarly situated comparator even for facial challenges, but similar insofar as its effect on the purpose of applicable regulations. In particular, the court addressed whether denying a church use in a given area based on concerns that the church would interfere with a state law that prohibited establishments with liquor licenses from being within 200 feet of a house of worship violated RLUIPA's equal terms provision.

In 1994, the Lighthouse Institute for Evangelism, a Christian church, bought property in downtown Long Branch, New Jersey.⁴¹⁹ The city ordinances set forth a number of permitted uses in the downtown area, such as theaters and assembly halls. However, a church was not listed as a permitted use.⁴²⁰ Lighthouse wanted to open a building that would be used for various purposes, including a church, a soup kitchen, and job skills classes.⁴²¹ Lighthouse attempted to obtain a zoning permit to use the property as a church, which the city denied. In response, Lighthouse filed suit claiming a variety of constitutional and other violations.⁴²² The district court dismissed all claims as either unexhausted or unripe.⁴²³

While the litigation was proceeding, Long Branch adopted a redevelopment plan that superseded its prior ordinances.⁴²⁴ The plan was adopted to help redevelop an area of the city in the hopes of attracting more retail and service enterprises.⁴²⁵ The plan allowed for theaters, dance studios, restaurants, bars, and other similar uses in one part of the city, while churches, schools, and governmental buildings were not listed as a permitted use in the very same section.⁴²⁶ The design guidelines under the plan specifically stated that "[a]ny uses not specifically listed" were prohibited.⁴²⁷ The plan did not include an individual waiver procedure, but it could be amended by the city council.⁴²⁸

In November 2003, Lighthouse submitted a request to be designated as the developer for the area slated for redevelopment and also requested a waiver of the prohibition of church use. The request was denied.⁴²⁹ The city council also denied an appeal because the proposed church use was not permitted, and allowing a church in the proposed location would interfere with a state law prohibiting the issuance of liquor licenses within 200 feet of a house of worship.⁴³⁰

After RLUIPA was passed in September of 2000, Lighthouse amended its complaint to state that the city's plan violated the Free Exercise Clause and RLUIPA.⁴³¹ The district court held that the ordinance and the redevelopment plan did not violate RLUIPA's equal terms provision because Lighthouse did not show that it was being treated worse than a similarly situated secular entity.⁴³² The court also found that Lighthouse could not demonstrate that the city substantially burdened its exercise of religion.⁴³³ Lighthouse appealed, and the Third Circuit found for the church on its facial equal terms claim.⁴³⁴

The Third Circuit determined that RLUIPA's equal terms provision requires a secular comparator that is similarly situated with respect to the purpose of the regulation in question and that it also operates on a strict liability standard as opposed to the 11th Circuit's adoption of strict scrutiny. This is because, the court explained, Congress intended to isolate substantial burdens, which are associated with strict scrutiny, from the independent equal terms provision.⁴³⁵ The court noted that a plaintiff claiming a violation of RLUIPA's equal terms provision must show that "(1) it is a religious assembly or institution, (2) subject to a land use regulation, which regulation (3) treats the religious assembly on less than equal terms with (4) a nonreli-gious assembly or institution (5) that causes no lesser harm to the interests the regulation seeks to advance."⁴³⁶

The court found that the government had treated Lighthouse on less than equal terms as a matter of law. While the new redevelopment plan might have passed muster, the ordinance did not. "The Ordinance," the court asserted, "permitted a range of different uses in the Central Commercial District" and the city failed to show how a religious organization "would cause greater harm to regulatory objectives" than a permitted secular assembly.⁴³⁷ As such, the court granted summary judgment in favor of Lighthouse on its equal terms claim.⁴³⁸

"[T]roubled" by a perceived oversimplification of the concept of equality and definition of assembly in the 11th Circuit and the enunciation of a "subjective and manipulable" test in the Third, the Seventh Circuit in 2010 offered its own formulation for an equal terms standard in...