Congress provided a separate section of RLUIPA, known as the “equal terms” provision at 42 USC 15 2000cc-(b)(1), which provides that: “No 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.” A claim under the equal terms provision does not require the religious institution to also demonstrate that a local government has imposed a substantial burden on their religious exercise, as under the general rule. Similarly, under the equal terms provision it is irrelevant that there are zones or alternative locations where the proposed religious use is allowed.
There are three federal court decisions to look to when determining if zoning schemes that prohibit religious assemblies and institutions but allow secular assemblies and institutions violate RLUIPA’s equal term provision.
In Midrash Sephardi, Inc. v. Town of Surfside, 366 F3d 1214 11 (11th Cir 2004), the zoning scheme prohibited churches and synagogues within a business district, but permitted “private clubs,” among other similar secular uses. The Eleventh Circuit found that private clubs and other non-religious uses allowed in the zone were “assemblies” for purposes of RLUIPA, and that the prohibition on churches and synagogues violated the equal terms provision.
In Konikov v. Orange County, 410 F3d 1317 (11th Cir 2005), the city required that “religious institutions” obtain a special permit in a residential zone, and sought to enjoin use of a dwelling for thrice weekly religious meetings. However, the city allowed secular social organizations, such as cub scouts, to assemble in dwellings with the same frequency, and without obtaining a permit. The Eleventh Circuit held that the city’s implementation of its zoning code treated religious assemblies differently than secular assemblies that met with similar frequency, and therefore violated the equal terms provision.
In Lighthouse Institute for Evangelism v. City of Long Branch, 510 F3d 253 (3rd Cir 2007), cert den 128 S Ct 2503, 171 L Ed 2d 787 (2008), the zoning ordinance for a downtown commercial district permitted a variety of uses, including an “assembly hall,” but did not permit churches. The Third Circuit construed the equal terms provision at 42 USC 2000cc-(b)(1) to require that a person asserting a claim under the equal terms provisions must show (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) nonreligious assembly or institution (5) that causes no lesser harm to the interests the regulation seeks to advance. 510 F3d at 270. The Court found that “it is not apparent from the allowed uses why a church would cause greater harm to regulatory objectives than an ‘assembly hall’ that could be used for unspecified meetings[,]” and concluded that the zoning code violated the equal terms provision. Id. at 272.
Notably, the Eleventh Circuit and Third Circuit differ in two particulars in their analyses of equal terms claims. First, the Third Circuit requires a showing under the fifth element listed above, the zoning scheme permits a nonreligious assembly or institution that “causes no lesser harm to the interests the regulation seeks to advance.” The Eleventh Circuit test does not require that the plaintiff make that comparative showing, although the Eleventh Circuit considers the governmental interest at stake in a subsequent step of the analysis, when applying strict scrutiny. The Third Circuit test rejects strict scrutiny in favor of “strict liability,” that is, if the regulation treats religious assemblies on less than equal terms with nonreligious assemblies that are no less harmful to the regulatory objective, and then the regulation fails, without more. According to the Third Circuit, Congress explicitly required strict scrutiny in evaluating claims under the “general rule” at 42 USC 2000cc-(a), but did not similarly specify that strict scrutiny should be applied to equal terms and discrimination claims under 42 USC 2000cc-(b). Id. at 269.7
The Third Circuit’s approach is somewhat more consistent with the legislative history of the Act. Indeed, the congressional record indicates that “Significantly, non-religious assemblies need not follow the same rules. This survey revealed that uses such as banquet halls, clubs, community centers, funeral parlors, fraternal organizations, health clubs, gyms, places of amusement, recreation centers, lodges, libraries, museums, municipal buildings, meeting halls, and theatres are often permitted as of right in zones where churches require a special use permit, or permitted on special use permit where churches are wholly excluded.” Accordingly, the Third Circuit’s approach is followed by most Court’s when construing equal terms claims.
In sum, the question in religious land use cases, for purposes of the equal terms provision, is whether the local zoning rule permits non-religious uses within a zoning designation can fairly be characterized as “assemblies or institutions,” and if so whether those non-religious assemblies or institutions, as compared to religious assemblies or institutions, cause “no lesser harm to the interests the regulation seeks to advance.” If it does, an equal terms issue may arise.