The third area of religious discrimination Congress addressed when enacting RLUIPA is that of non-discrimination. Congress provided that “No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.” 42 U.S.C. § 2000cc (b)(2). Similar to the “equal terms” provision, RLUIPA's non-discrimination provision adopts Equal Protection Clause jurisprudence.
The Equal Protection Clause generally subjects laws that discriminate on the basis of religion to strict scrutiny. In equal protection cases, a court may determine the local government's object from both direct and circumstantial evidence. Relevant evidence includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment, official policy, or decision in question, and the legislative, administrative, or quasi-judicial history, including contemporaneous statements made by members of the decision making body.
During legislative hearings, Congress found that churches and other places of religious assembly are often disadvantaged by zoning requirements that are not imposed on otherwise identical or similarly-situated secular assemblies or institutions. Thus, zoning provisions that discriminate against religious assemblies-for no discernible reason other than their religious nature-impermissibly discriminate against religious exercise, and are seldom, if ever, permissible ways to achieve any legitimate governmental interest. Congress set forth this rule in RLUIPA § 2(b)(2).
In sum, the question in religious land use cases, for purposes of the non-discrimination 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 permitted religious assemblies or institutions, as compared to the rejected religious assemblies or institutions, cause “no lesser harm to the interests the regulation seeks to advance.” If it does, a non-discrimination issue may arise.
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