The Religious Land Use and Institutionalized Persons Act (RLUIPA) – the "Land Use" part anyway – governs the way local zoning restrictions may be applied to religious entities. It contains a few provisions to offer protection to churches, including this one (my emphasis):
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.
The "Equal Terms" provision of RLUIPA has been interpreted in slightly different ways by different appellate courts. Writing for the 7th Circuit in a decision released Friday, Judge Richard Posner tries his hand at explaining the issue, on his way to offering a test to apply in such disputes:
The Third Circuit ruled 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” (emphasis in original). The court must identify first the goals of the challenged zoning ordinance and second the secular assemblies (meeting places) that are comparable to the plaintiff’s religious assembly in the sense of having roughly the same relation to those goals.
…
The Eleventh Circuit reads the language of the equal-terms provision literally: a zoning ordinance that permits any “assembly,” as defined by dictionaries, to locate in a district must permit a church to locate there as well even if the only secular assemblies permitted are hospital operating theaters, bus terminals, air raid shelters, restaurants that have private dining rooms in which a book club or professional association might meet, and sports stadiums.
The question is whether the Equal Terms protection means broadly that churches are allowed the same access to land as all nonreligious entities, regardless of a city's overall zoning classification schemes and layout; or whether it simply means that they have the same access as nonreligious entities to land to which they otherwise qualify. Is it an equality that is relative to a city's zoning structure, or an equality that is absolute?
In his opinion – denying a church's appeal – Posner sides mostly with the 3rd Circuit, insisting that "equal terms" must be read in a relative sense, though he proposes a very subtle (if you ask me) tweak to their test (replacing "regulatory purpose" with "zoning criteria"). In her dissent, Judge Diane Sykes – calling this an "important religious liberty case" – argues for the 11th Circuit's interpretation and the church's appeal.
If your eyes aren't already glazed over by this summary(!), you can read the opinion here. Could this be the kind of circuit split that might inspire the Supreme Court to review the land use elements of RLUIPA? My guess is: doubtful. Still, it's a dilemma worth keeping on the radar.
