What are equal terms anyway?

• Author: Reed, Peter T.
• Position: Interpretation of the Religious Land Use and Institutionalized Persons Act's 'equal terms' section 2000cc

INTRODUCTION

In 1994 the Lighthouse Institute for Evangelism purchased property in downtown Long Branch, New Jersey. (1) The property was meant to be the new site of a church, which had been renting a nearby building for several years. The property was zoned central commercial, allowing a wide variety of uses permitted as of right: restaurants, variety stores and other retail stores, educational services and colleges, assembly halls, bowling alleys, theaters, governmental services, municipal buildings, and new automobile or boat showrooms. (2) A religious assembly, however, was not a permitted use. Between 1995 and 2000, Lighthouse sought approval to use the property for religious worship, as a soup kitchen, for a job skills training program, and as a residence for their pastor. (3)

In mounting frustration, Lighthouse sued the city in June of 2000 on federal constitutional and statutory grounds. While the case was pending, Long Branch changed the applicable zoning ordinance to limit land uses comparable to religious assemblies. (4) The new ordinance permitted theaters, cinemas, culinary schools, and dance studios as primary uses. Restaurants, bars and clubs, and specialty retail were among secondary uses. (5) Any unlisted uses were prohibited, including churches and synagogues. (6) The new plan specified its goals: increasing retail trade, city revenues, and employment opportunities so as "to encourage a 'vibrant' and 'vital' downtown residential community." (7) Upon reapplication under the new statute, the City Council found that the religious assembly would "destroy the ability of the block to be used as a high end entertainment and recreation area" (8) and consequently denied the application.

This sort of zoning gridlock is precisely the situation the Religious Land Use and Institutionalized Persons Act (RLUIPA) is designed to govern. The "equal terms" provision of RLUIPA requires 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) It invokes two of the fundamental liberties of the western world--religious freedom and the free use of private property. Yet a decade after passage and after consideration by seven different circuit courts, the provision's meaning remains elusive. (10) Today, the plight of the Lighthouse Institute and the city of Long Branch would be resolved by no less than four different methods, depending on the circuit hearing the case. (11)

This Note argues for the superiority of the Eleventh Circuit's interpretation of the provision based on the statute's history, text, and purpose. Part I provides an overview of land use law, the Free Exercise clause jurisprudence of the Supreme Court, and RLUIPA. Part II presents and defends the Eleventh Circuit's interpretation of the equal terms provision. Part III presents and rejects the alternative interpretations offered by other circuit courts.

1. BACKGROUND

   1. Overview of Land Use Regulations

      Since Village of Euclid, Ohio v. Ambler Realty Company (12) and the rise of single-use, noncumulative zoning, land use law and religious land uses have been on a collision course. Why? Broadly and crudely speaking, neither the vocabulary nor the methodology of land use law accounts for the type of land uses represented by religious institutions or the type of benefits that religious institutions offer to the physical landscape. To understand why, it is necessary to understand the typical regulatory scheme.

      Zoning is the division of land into zones or districts often represented on an accompanying zoning map. (13) These zones are defined by permissible land uses, (14) such as the traditional categories of agricultural, residential, commercial, and industrial uses. (15) Districts are drawn to separate uses that are likely to be incompatible, keeping heavy industry, for example, separate from residential areas. (16) Early zoning laws followed a "cumulative" or "inclusive" zoning model that ranked land uses in a hierarchy from least offensive (single-family housing) to most offensive (heavy industry, garbage dumps, etc.), and excluded more noxious uses from areas zoned for less noxious uses, while allowing less offensive uses in any zone. (17) The 1960s, however, saw a shift toward noncumulative (or "single-use") zoning as cities sought to control centralized land for industrial and commercial uses, excluding, for instance, commercial and residential uses from an industrial district. (18)

      The rigidity of the districting process can be softened by "a variety of zoning techniques which individualize [the process]" to make it more flexible. (19) These techniques include special permits, special exceptions, conditional zoning, contract zoning, variances, incentive zoning, or simply inaction against a nonconforming use. (20) These all serve a unique role in the regulatory process, but for our purposes can be lumped together as instances of discretionary, individualized decisionmaking. While these decisions are often theoretically made with reference to a list of zoning goals, such goals are notoriously indefinite and vacuous, "providing no genuine standards for individual decisions." (21)

      So why does this system conflict with religious land uses? Religious assemblies do not easily fit into any of the broad zoning categories, and are not aligned with any traditional zoning interests. Religious assemblies are excluded from residential areas because they produce increased and unpredictable traffic and allegedly undermine property values. (22) Religious assemblies are excluded from commercial districts because they do not attract enough traffic and the traffic they do draw tends to be only sporadic (i.e., only when services or events are scheduled). (23) Religious assemblies are often prohibited from industrial districts because they use land that could be producing industrial jobs and because they may conflict with industrial uses due to nuisance-type claims. (24) This means that religious land uses are often required to seek approval through an individualized decision-making process. Within that process, religious land uses have all the traditional zoning interests aligned against them--homeowners, (25) developers, and municipalities concerned with revenue. (26)

      Thus, there is no immediate incentive or pressure to allow a religious land use, while there often is immediate incentive and pressure to exclude it. However, this policy is short sighted. There is abundant evidence of the positive contribution religious land uses make to the surrounding community such as increasing social capital, (27) sponsoring numerous community support programs and thousands of volunteer community service hours, (28) and even increasing property values. (29)

   2. Free Exercise Jurisprudence

      Not only are religious land uses demonstrably beneficial to a community, but they are also at the heart of the First Amendment right to Free Exercise of religion. This section provides a brief overview of the Court's Free Exercise jurisprudence in order to understand the background of RLUIPA.

      From 1963 to 1990, the familiar strict scrutiny test of Sherbert v. Vetoer (30) governed Free Exercise jurisprudence. In 1990, the Court turned in a different direction in the landmark case Employment Division v. Smith. (31) The Court laid out three categories of Free Exercises cases: "hybrid" rights, individualized assessments, and laws of "neutral and general applicability."

      Hybrid rights cases involve Free Exercise rights in conjunction with other constitutional protections. The Court wrote: "The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action" have involved multiple constitutional protections. (32) In these hybrid cases, strict scrutiny is applied. (33)

      A second category of Free Exercise cases is instances of individualized governmental assessment. (34) Exemplified by Sherbert and other unemployment benefit cases, these cases require strict scrutiny of any substantial burden on free exercise (35) whenever the state has a system of "individual exemptions" that require individualized consideration of a person's situation. (36) While the Court had applied the Sherbert test in other contexts, the Court in Smith discounted these cases, noting that in such cases "we have always found the test satisfied." (37)

      The third and most significant category of Free Exercise cases asks whether a law is neutral and of general applicability. "[A] law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." (38) However, a law that is not neutral and of general applicability "must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest." (39)

      This third category was fleshed out a few years later in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. (40) First, a law must be neutral; it must not have as its "object" to "infringe upon or restrict practices because of their religious motivation." (41) The Free Exercise clause requires not only facial neutrality, but also "forbids subtle departures from neutrality" and "religious gerrymanders" that effectually discriminate against religion. (42) Nonetheless, the Court made it clear that the law must be intentionally discriminatory, it must have been enacted "because of not merely in spite of" its effect on religious practice. (43) Additionally, a law must be "of general applicability" not just (or primarily) applicable against religious conduct. (44) If a law is not neutral and of general applicability, then the Court will apply strict scrutiny to the ordinance. (45)

      Lukumi notes that "we can ... find guidance in our equal...