*1 merit.” Wiese v. Commu- wholly without Wis., 584, 591 Bank Cent.
nity Cir.2009). (7th Although raised a Golden points appeal,
good number of frivolous to a
he also drew this court’s attention that could not dis- of issues
number
missed out of hand. While closer be,
call than it should we elect not
impose Rule 38 sanctions. judgment Affirm of the district
We
court. LIFE
RIVER OF KINGDOM
MINISTRIES, Plaintiff-
Appellant, CREST,
VILLAGE OF HAZEL
ILLINOIS, Defendant-
Appellee.
No. 08-2819. Appeals,
United States Court of
Seventh Circuit.
Argued Feb. 2010. July
Decided *2 down; part,
oldest which is run indeed the in entire town has been economic decline years. designated The for area com- station, mercial district is close to the train presence might and the of commuters en- able the district to be revitalized as a zoning commercial center. The ordinance Auricchio, Attorney, M. Chica- Vincent has therefore been amended to exclude (ar- IL, go, Langdon, Attorney David R. district, new noncommercial Law, LLC, Cincinnati, gued), Langdon including only churches but also com- OH, Plaintiff-Appellant. for centers, schools, munity galleries. and art Murphey, Attorney (argued), John B. Village River of Life sued the under the Rosenthal, Donahue, Murphey, & Coblentz equal-terms provision and moved for a IL, Chicago, Defendanb-Appellee. injunction preliminary against the enforce- zoning ment of the ordinance. The district EASTERBROOK, Before Judge, Chief judge denied the motion a panel CUDAHY, POSNER, FLAUM, affirmed, mainly court ground on the MANION, KANNE, ROVNER, WOOD, unlikely prevail the church was WILLIAMS, SYKES, TINDER, and fully litigated. when the case was HAMILTON, Judges. Circuit (7th Cir.2009). F.3d 364 The existence of POSNER, Judge. Circuit respect intercircuit conflict with to the granted rehearing proper applying The court en test for banc to proper provision, uncertainty consider the standard for combined with applying about decisions, equal-terms provision Religious consistency persuaded of the of our Land the full court to Use Institutionalized Persons hear the case order to Act, U.S.C. 2000cc. That decide on test. government states that “no shall impose or appeals Two of our sister courts of have
implement
regulation
a land use
in a man-
proposed tests. The Third Circuit
religious assembly
ner that
treats a
or Lighthouse
Evangelism,
Institute
Inc.
institution on less than
terms
awith
Branch,
Long
nonreligious
assembly or
institution.”
(3d Cir.2007),
ruled that “a
will
2000cc(b)(l).
Equal
provision only
violate the
Terms
if it
Life,
appellant,
River of
is a small
treats
assemblies or institutions
(it
members,
church
only
has 67
half
about
less well
secular
or insti-
assemblies
average
of whom attend services on an
similarly
tutions that are
situated as
Sunday)
present
that at
operates
regulatory
out of
purpose” (emphasis
origi-
nal).
space
cramped, dirty
rented
identify
ware-
The court must
first
in Chicago Heights,
house
a town 27
goals
challenged zoning
miles
ordinance
(meet-
south of
Chicago.
downtown
It wanted to
and second the secular assemblies
building
relocate to a
in the Village
ing places)
comparable
that are
to the
Crest,
15,000
Hazel
a town of some
people
plaintiffs religious assembly in the sense
located two miles north and slightly
having roughly
west
the same relation to
Chicago Heights.
building,
goals.
excluding
howev-
those
If the reasons for
er,
in a
part
designated by
category
the town
assembly—
some
secular
the town’s
ordinance as
commer- whether traditional reasons such as effect
cial
district. The district is
the town’s on traffic or
creating
novel ones such as
terminals,
see,
Hill,
shelters,
air
Fun,”
bus
raid
restau-
e.g., Clifton
“Street of
Falls,”
private dining
www.cliftonhill.com rants that have
rooms in
“Fun
2010)
(visited
applicable to a
May
professional
which a book club or
associa-
—are
assembly,
meet,
ordinance is
might
sports
tion
In
stadiums.
*3
in
and therefore not
viola-
deemed neutral
private
the court held that
Midrash
where
But if a
equal-terms provision.
tion of the
allowed,
are
so must
clubs
churches be.
assembly is allowed and the reli-
secular
hard,
approach
Pressed too
would
though the
gious assembly banned even
give religious land uses favored treat-
any way
in
assemblies don’t differ
two
imagine
zoning
ordinance that
ment —
regulatory purpose
to the
behind
material
permits private
meeting
clubs but
halls
ordinance,
neutrality
then
has been
by
advocacy
political
groups.
used
denied. That was
equality
violated and
indicated, however, that a seemingly
court
case. The
Lighthouse
the situation
unequal
treatment of
uses that
permitted meeting halls
zoning ordinance
nevertheless is consistent with the “strict
the church wanted
in the district which
scrutiny” standard for determining the
way
to locate and there was no
to distin-
propriety
regulation affecting religion
meeting halls and churches
guish between
would not violate the
provi-
purpose
on the basis of
ordi-
Sephardi,
sion. Midrash
Inc. v. Town of
or-
nance. The Third Circuit
therefore
Surfside, supra,
dinance] (7th Berlin, F.3d New year in which their because of dards Cir.2005). had held in Court were considered special applications Smith, Employment Division U.S. that there was no compels the conclusion 872, 878-80, L.Ed.2d 110 S.Ct. Id. at 1003. unequal treatment.” (1990), the clause of the First nor the Elev the Third Circuit’s Neither guarantees the free exer- Amendment though applica approach, enth Circuit’s religion cise of does not excuse churches yield or even iden they might tion similar having comply with nondiscrimina- moreover that tical results results —and tory prohibition as the regulations, such judges proper most would strike *4 —is dangerous, to even if the drugs believed be satisfactory. by are troubled entirely We interferes with church rituals or regulation that “dif rule mere the Eleventh Circuit’s observances: “we have never held that an between a church and ferential treatment” religious beliefs excuse him individual’s “company persons collected some other compliance from with an otherwise valid usually ... together place in one for some prohibiting conduct that the State is law (the court’s purpose” preferred common 878-79, Id. at 110 S.Ct. regulate.” free to “assembly”) dictionary definition of vio excused, might If they 1595. were equal-terms provision. lates the Midrash vio- religion deemed favoritism to and thus side, Sephardi, supra, Inc. v. Town of Surf late the establishment clause. “Assembly” at 1230-31. so un all Suppose ordinance forbids derstood would include most secular land except gymnasiums. assemblies Then be- factories, zoos, nightclubs, parks, uses— gymnasium cause a is as de- malls, kitchens, soup bowling alleys, to Circuit, by the Eleventh a church fined (visitors name a few to each of these but could a secular locate the district but purpose” institutions have a “common not, reading humanist room could unless visiting) though most of them have —even (such organizations secular humanist on municipality different effects and its Atheists, Human- American the American church; just residents from a consider Association, ist the Freedom From Reli- in municipal required difference services Foundation, gion the Godless Americans uses, land including different differ Committee, Political Action Internet Infi- police protection. ences the amount of dels, Society Skeptics and the —these The land use that led the Eleventh Circuit organizations) all real were defined as re- in Midrash to find a violation of the equal- (Nor ligions. chapter could the local was, however, private terms Association, Fanciers’ Cat club, and it not that obvious has members, might dues-paying have 67 local municipality different effects on a or its only half of up about whom show on aver- from a church. residents those of Thus age chapter’s meetings.) at the It was to quarrel our is not the result in Mi making overprotect religious avoid its test drash but with the Eleventh Circuit’s test. to comparison assembles their closest objection A to the test is that it subtler counterparts secular that the Eleventh may uses, friendly religious be too to land scrutiny” gloss— Circuit added its “strict unduly limiting municipal regulation and municipalities can bar land uses maybe violating the even First Amend- if the particular zones sat- prohibition against scrutiny” regula- ment’s establishment of isfies the test for “strict religion by discriminating in favor of reli- tions that treat and secular activ- differently. no textual gious land uses. See Sts. Constantine & ities There is basis (as by favoring public discrimination churches gloss, reading nonprofit rooms over other forms of prohibited elsewhere as expressly sembly); only meaning “equal and makes the gloss was needed statute. terms” in a federal statute depend on the of the court’s own cre- problem solve a government intentions of local officials. ation. Sephardi Midrash Inc. v. Town of Surf objection to the Eleventh Cir- A further side, supra, 366 F.3d “equality,” except is that when cuit’s test point Digrugilliers That was our mathematical or scientific rela- used of City Indianapolis, supra, Consolidated tions, equivalence identity not signifies rejected 506 F.3d at when we relation to relevant concerns. proper city argument “could exclude promote equality require It would churches from districts zoned residential men shirts that have 15-inch that all wear by ordaining that a residential use of land collars, number of churches in grazing does not include the of sheep but a casinos, a state the number of does, religious use and therefore the feder- all should have the same workers require al Act does not permit equality But it wages. promote does *5 zones, in churches residential as to do so work, require equal pay even give would more rights churches than the variety in a though workers differ of re- other users of land in those zones have. If a church spects, such as race and sex. an approach defining Such effect ‘reli- center, —in community though different and a gious assembly or institution’ as a church not differ re- many respects, in do with plus sheep bootstrap- farm —would be criterion, spect any accepted zoning to ping.” one and then an ordinance allows equality and vio- forbids the other denies problems that we have identi equal-terms provision. lates the fied with the Third Circuit’s test can be by a regulatory solved shift focus from understanding This purpose accepted zoning to criteria. The imperfectly realized provision is merely “Purpose” shift is not semantic. That Third Circuit’s test as well. test subjective manipulable, so asking identifying zoning centers on authori- in “regulatory purpose” might about result in “regulatory purpose” adopting ties’ in giving local officials a free hand answer that excludes a church. Our ordinance ing question “equal respect with to equal-terms provi- concern is not that the objec “Regulatory what?” criteria” are by Congress sion as drafted omits the judges ap tive—and is federal who will “regulatory purpose” cog- or some term the criteria to resolve the ply issue. explained, “equality” term. As we nate concept. The fact that land complex criteria, two noting let us those So consider dictionary doesn’t uses share definition by way background originally zon- meaning is, “equal” make them within ing “higher was “cumulative”—-that uses,” uses, “regulatory pur- But the use of statute. such as residential land were pose” guide interpretation permitted as a invites districts which “lower uses,” speculation concerning manufacturing, per- the reason behind such as were churches; mitted, self-serving though exclusion of invites the “lower uses” were ex- testimony by zoning higher officials and hired ex- cluded from districts zoned for the witnesses; zoning gave way ones. soon pert zoning facilitates classifi- Cumulative (or “exclusive”) zoning, in thinly disguised cations as neutral but ac- noncumulative uses were confined to tually systematically specified unfavorable to which land thus could specified promote general districts and be them will welfare of See, separated. e.g., often State ex were public.” Iten, 77, 259 Minn. rel. Berndt v. Salkin, Or as Patricia E. American Law 366, (1960); McDonough 368-69 v. N.W.2d (5th ed.2010), Zoning § 9:15 explains 194, 603, Apton, 48 A.D.2d 368 N.Y.S.2d specific reference to commercial dis- (NY.App.Div.1975); 608-09 Grubel tricts: “All commercial are not uses creat- F.Supp. MacLaughlin, 28-29 equal. traffic; ed require pedestrian Some (D.Vi.1968); Mandelker, Daniel R. Land pedestrian others create hazards for traf- (5th ed.2003). Law 5.43 As ex Use pedestri- fic. Some commercial uses cause plained People ex rel. Skokie Town hours; an traffic during daylight oth- Builders, Village Inc. v. House Morton operate night ers and are quiet Grove, 16 Ill.2d N.E.2d daytime. The list of characteristics could (1959), heavy “the dangers of traffic are extended, small sample sug- greater in mixed residential-industrial or gests that residential commercial residential-commercial than in districts neighborhoods injure, will well just districts devoted to one In- as be purpose. injured by, adjacent dustrial and commercial commercial districts are not uses. good places bring up suggests families a And it further that some com- standpoint; presence health and the incompatible of mercial uses will be with oth- children in and about industrial and com- ers.... The drafting most common answer mercial districts leads to a demand for problems sketched above is the ‘ex- school, park play-ground facilities in clusive’ ordinance.... Districts are an area where there is either no land uses, established for named groups *6 available or the land available is ill-suited uses, and all others are excluded. The short, to such In industry uses. whether chief virtue of such they ordinances is that and commerce are excluded from the resi- create districts for commerce industry, areas, dential or residences from industrial and exclude from such districts residential areas, and commercial it is not unreason- capable other uses which are of inter- legislative body able for a to assume that fering planned with the use of land.” separation of the areas would tend in the And like vein in Harry we read B. long run to insure better and a more Madsen, Zoning “Noncumulative Illi services, economical use of municipal such nois,” 37 Chi-Kent L.Rev. 113-14 schools, providing police protection, pre- (1960),that “if municipalities towish retain fires, venting and fighting and better use their commercial and tax plums industrial general street facilities. The welfare of they compete must advantages with the public may industry be enhanced if gained be open spaces the wide where provided commerce are with a favorable the car-pools freely. flow Commerce and climate. impor- The sale of a few lots at industry must be recognized they for what tant points may a district make industri- are, necessary and desirable elements of al or expansion commercial impossible or community.... [M]uch exodus prohibitively expensive. To protect industry commerce and district, would be residents in the may traffic by security checked reasonable that an slowed down unduly and thus detract from already bad efficiency production get situation would not worse. and trade. In analysis, final clear The noncumulative industry pe seems ordinance is necessary culiarly commerce are also provide and de- well suited to this securi sirable and that a proper ty.” environment for Parking space from a com and traffic control are not
Exclusion of churches only regulation. from the concerns of land-use (though generally not mercial zone generating municipal Another is municipali zone in the revenue every commercial providing ample shop- other noncommercial as and convenient ty), along with residents, halls, clubs, semblies, ping promoted by exhibition and can be such as shelters, unique setting is thus not aside some land for commercial and homeless See, e.g., only, generate tax Village to the of Hazel Crest. revenues. Code, I, Fairfield, art. Hazel Municipal Crest has therefore created a com- California 25.22.2(A), 25-9, tab. www. mercial district that excludes churches centers, along community depublishing, meeting co com/ca/fairfield/html/fair fairfield2522.html; halls, of Lin and libraries Village because these secular field25/ assemblies, colnwood, 4.01.1, churches, Zoning tab. like do generate Illinois Code significant taxable revenue or shop- offer www.ecode360.com/documents/LI3005/ 20Zoning% ping opportunities. 20-% 20Ordi- Chapter% 2016% See Robert C. Ellick- Been, IllinoisZoningOrdinance, son & Vicki L. Land nance.pdfiSkokie, Use Controls: (3d ed.2005). ch.118, A, library.munieode.com/ Cases and Materials 90-91 App. AA.html; Similar assemblies are being treated the HTML/13819/level2/Cl18— Beach, Ordinance, Maryland Zoning permitted same. The land use that North Ill, plaintiffs tab. www.ci.north- most like the is a art. 3-200 commercial NorthBeaehMD_Zon- beach.md.us/Pages/ gymnasium, and that’s not enough close (all May visited because commercial ing/zoning/artiele3.pdf belongs an all-commercial district and a noncom- 2010). assembly, mercial secular or religious, might worry A reader that “commercial” does not. synonym is a for “secular.” It is not. certain, Of course we can’t be or even many There are secular noncommercial confident, particular zoning that a decision uses, if Village land and the of Hazel Crest actually was motivated a land-use con- example were concerned for about suf- standpoint cern that is neutral from the ficiency parking space part in some if *7 religion. religious But and secular land the commercial or noncommer- village, the (such uses that are treated the same as the generated cial character of land uses that religious noncommercial and secular land similar vehicular traffic flows would be in zoning the district that River of Suppose regu- irrelevant. maintenance of in) Life to church wants have its from the (as opposed sporadic lar to and concentrat- criterion, standpoint accepted zoning of an ed) zoning objec- vehicular traffic were the district,” such as “commercial or “residen- standpoint, tive. From that a church is district,” district,” tial or “industrial that is theater, gen- more like a which also movie enough to rebut an claim and groups coming of people going erates case, thus, in this to show that River of time, library, at the same than like a public unlikely prevail litiga- Life is a full generates a smoother flow of traffic which (Another tion. section of the ordinance- throughout day. the The equal-terms pro- 8.1(c), provides section that “no require zoning vision would therefore may any church services be conducted in to allow the church in the zone authorities building designed for a business use”'—(cid:127) the movie theater because the church issue.) appears not to atbe (the for-profit was more like the use movie theater) (the Indeed, not-for-profit straightforward than the this case is be- cause, public library). zoning after the amendment to its 374 Hialeah, 520, 533-37,
ordinance, 508 U.S. really applying was Hazel Crest (1993); for commercial Bloch conventional criteria S.Ct. L.Ed.2d (7th Frischholz, land uses from banning noncommercial 783-87 Cir.2009) (en village banc), of the suitable for a commer- part a “totally or that ex- to the proximity cial district because of jurisdic- a cludes assemblies from likely to have cases 2000cc(b)(3)(A). train station. We tion.” But as none of zoning ordinances challenging in the future provisions is us on this these other before classify, variances that are harder to as appeal must fail. appeal, special-use permits grandfathered Affirmed. nonconforming uses blur the character of zoning districts. But should particular CUDAHY, Judge, Circuit with whom municipality purports create what be ROVNER, Judge, joins, Circuit pure commercial district and then allow concurring. uses, easy a church have an other would join I majority opinion, as well as victory municipality if it out. kept Williams, Judge the concurrence of but adopting If test we are seems less respect offer these comments with to the equal- airtight, than bear mind proposed relation of the test to the Third only terms is not the or even the test, which simpler arguably Circuit is —if important protection against most reli- matter, subjective. general more As a gious by zoning discrimination authorities. equal-terms provision seems be some- (Think clauses of the First mysterious unprecedented what device Amendment.) only pro- It is not even the providing an anti-discrimination re- Religious tection Land Use and quirement, incorporating without the usual Institutionalized Persons Act. For the Act limiting characteristics of “discrimination” that a provides “that concept. Although as a traditional Con- imposes a on the reli- substantial burden gress may have prescribe intended to a ... gious exercise of open-ended more standard traditional gov- or institution” is unlawful “unless “discrimination,” its application, prac- ernment imposition demonstrates matter, tical requires, suggest- for reasons ... the burden is furtherance of a com- majority, ed some limitations be interest; pelling governmental and is the provided by judiciary. The Third Cir- furthering least restrictive means of requisite “regulatory purpose” cuit’s compelling governmental interest.” may imperfect, I think it accept- 2000cc(a)(1); U.S.C. see World Outreach majority in the vast of cases and that able City Chicago, Center v. Conference Al- generally appropriate. this test (7th Cir.2009); F.3d 537-38 Sts. Con *8 though majority opinion provide does Church, stantine & Helen Greek Orthodox insights I important helpful, that are Berlin, City supra, Inc. v. New 396 F.3d approach see little real contrast in basic 901; Day at Village Westchester School v. (2d Mamaroneck, result between the Third Circuit and the 352-53 Cir.2007). majority analysis regard and I would them And it further provides that equally Ultimately, both as valid. I sus- government impose implement “no shall pect practical that the distinction a land in a between manner that “regulatory purpose” “regulatory cri- against any assembly discriminates or in may pronounced stitution on the teria” not be as as the religion basis of or reli denomination,” 2000cc(b)(2); gious majority opinion suggests. In the last see Aye, analysis, Church the Lukumi Babalu Inc. v. the search the different cir- standard, given court’s the statu- with the objective proba- entirely test an euits for legislative tory text and historical bly in vain. Religious Land background to the Use MANION, Judge, concurring. Circuit Act. Even the Persons Institutionalized not “air acknowledges that the test is court A. zoning that future cases will be tight” and not because of is difficult This case classify. Opinion at 373-74. harder I hypotheticals. facts, but because lay do not that the facts of this case Given the facts that under with the court agree universally crafting foundation for a solid not have a case, of Life does River of this standard, might pru- be more governing on the merits of of success likelihood straightforward case dent to resolve the To be treated “on challenge. Equal Terms speculating than on how us rather before a church must be equal terms” less than in a question a more difficult to resolve assembly al- non-religious “equal” to future case. zoning ordinance. At this lowed under equiva- is not River of Life Church point, B. in Hazel allowable uses any of the lent to district.1 commercial Crest’s obser- discomforting More is the court’s that if beliefs excused craft- vation our court is challenge before compliance with otherwise individual from analyzing all of ing a standard might be deemed regulations, valid “this yet Terms cases Equal hypothetical and thus violate the religion favoritism to high- in this task is difficulty come. The clause,” fur- and the court’s agrees establishment the court by the fact lighted objection subtler ther statement “[a] the Third and Elev- outcomes of with the may area, test is that it Circuit] to the [Eleventh in this decisions enth Circuit uses, un- friendly land entirely be too approach circuit’s neither finds limiting municipal regulation duly also be- (although the court satisfactory the First Amend- maybe violating even that, the different application, lieves prohibition against establishment ment’s might yield similar or even iden- standards results). discriminating in favor of reli- religion by Judge Sykes at 370. Opinion tical Only at 370. Opinion land uses.” problems gious other foresees in her dissent Sts. Con- supports this statement. I dis- dicta court’s standard. While with this Church, & Helen Greek Orthodox conclusion that stantine Judge Sykes’ agree with Berlin, F.3d New “on than Inc. was treated less River of Life (7th Cir.2005). turn, In Sts. Constan- assemblies, her dis- of other equal terms” Day Sch. flaws tine cites dicta Westchester potential persuasively identifies sent while, appear that there strong it does not cern because River of Life had 1. For a any developers jumping chance to at the were argument it was treated on "less fact, places. gathering In non-religious invest in such assemblies be- equal terms" to plan stage origi- Hazel Crest’s revitalization ordinance cause Hazel Crest’s stage; hypothetical at the time community meeting halls and still nally allowed case, centers, original briefing Hazel Crest in this likely comparable to a *9 plan eight years into its revitalization equivalency. was any under standard church filed, had yet new businesses located Crest no was Hazel But after this lawsuit thing Hazel The best for district. and deleted those commercial ordinance amended its might for River of Life to well have been Deleting meeting halls and Crest comparable uses. wash, but the the abandoned car take over community the commercial zone centers from Village decided otherwise. Crest much con- likely not cause Hazel did 376 Mamaroneck, 183, Village soning
v.
386 F.3d
that differentiation between reli-
(2d Cir.2004).
gious
non-religious
189-90
And Westchester
assemblies under a
Day’s
solely
relies
Stevens
zoning
dicta
Justice
ordinance was insufficient to estab-
Flores,
City
v.
an equal-terms
concurrence
Boerne
lish
violation unless the
2157,
507, 537,
521
117 S.Ct.
138
comparable
U.S.
assemblies had a
effect on the
(1997) (Stevens, J.,
village’s
Thus,
L.Ed.2d 624
concur
regulatory purpose.
the
ring).
question
Another
Court concur
simply
was
whether the different
however,
rence,
supports the view that the
religious assembly
treatment of a
and a
government may grant exemptions
non-religious
to reli
assembly was consistent with
gious
violating
observers without
the
zoning
regulatory
Es
the
ordinance’s
purpose.
Here,
Jaffree,
tablishment Clause. Wallace v.
village’s regulatory
the
purpose in
38, 82,
U.S.
S.Ct.
86 L.Ed.2d
establishing the commercial zone was to
(1985)
(O’Connor, J.,
concurring)
create a tax revenue-generating commer-
(“Even where the Free Exercise Clause
cial district centered near the mass transit
compel
government
grant
area;
does not
to
because the church was not similar
exemption,
suggested
Court has
non-religious
permitted
entities
government
circum
some
the zone-—all of which were commercial in
may voluntarily
exempt
stances
choose to
panel
nature —the
found that
the church
violating
observers without
had not been treated on
less than
See, e.g.,
Establishment Clause.
Gillette v.
terms with the commercial non-religious
States,
437, 453,
United
401 U.S.
91 S.Ct.
entities.
828, 838,
(1971);
resolve the case at we should not purpose” test approach. is the best imply exemptions violate the “regulatory purpose” is simpler test Establishment Clause. does not require judges federal to deter- reasons, For these I concur. mine which zoning districts fit within “ac- cepted regulatory indeed, criteria” —and WILLIAMS, Judge, Circuit with whom accepted what those criteria are in the ROVNER, CUDAHY and Judges, Circuit (Moreover, place. first majority’s join, concurring. opinion judge is unclear as to how a should join I majority in reaffirming that proceed with equal-terms analysis when River of Life is not a prelimi- entitled to presented unique, with a non-traditional nary injunction, join Judge and I also Cu- scheme.) Second, zoning to the extent dahy’s concurrence. I separately write to that traditional classifications are my reiterate belief that the Third Circuit’s important, judge assessing regulatory “regulatory purpose” test adopted purpose already guidance. uses them as original panel is appropriate ap- the most Finally, majority’s approach does not plication provision. problem perceives solve the in the Third The original panel applied the Third Cir- approach. Zoning Circuit’s officials could approach Lighthouse cuit’s just Institute easily accepted criteria as a Evangelism, Inc. Long pretext they for action as could articulate a Branch, (3d Cir.2007), regulatory rea- purpose. “accepted regu-
377
presents
imposing
implementing
a ments from
therefore
criteria” test
latory
just
testimony
as the
self-serving
regulations
risk of
“in a manner
“regulatory purpose”
believes the
majority
treats
or institution
would.
approach
on less than
terms with
nonreli-
42
gious assembly
institution.”
U.S.C.
SYKES,
dissenting.
Judge,
Circuit
2000ec(b)(l).
Kingdom
§
River of Life
religious-liberty
important
This is
a small evangelical
Ministries is
Christian
key
took
en banc
decide
case. We
community-based
church with a
mission
interpretation
question
statutory
of
involv-
disadvantaged.
aimed
uplifting
The
2(b)(1)
Religious
of
Land Use
ing
Village
in the
of
bought
building
church
Act of 2000
Institutionalized Persons
and
Illinois,
Crest,
sought
Hazel
and
move
2000cc(b)(l)—
(“RLUIPA”),
42 U.S.C.
Chicago
in
from a rented warehouse
“equal terms”
the statute’s
—and Heights to its new location in Hazel Crest.
opinion
panel
a conflict the
cre-
to resolve
formerly
The
a car wash
property
housed
caselaw.
ated in our
struggling part
and is in
town
known
over
circuits are divided
how
Proper,”
as “Hazel Crest
which was zoned
Until this case
part
read this
RLUIPA.
as a “B-2 Service Business District” under
Eleventh Circuit’s in
had followed the
we
Village’s then-existing zoning
ordi-
provision,
equal-terms
terpretation
variety
nance. A wide
of commercial and
Sephardi, Inc.
first announced Midrash
permitted
retail uses were
in this zone but
(11th
Surfside,
v.
F.3d 1214
Town
366
not churches.
Cir.2004),
and
explained
Konikov
(11th
Orange County,
ety utility public-agency I. buildings community cen- recreational ters; taverns, lounges, cocktail provision of RLUIPA featuring restaurants live entertainment. straightforward. prohibits govern- It *11 378 prohibited “slight also But the court also held that specifically
The ordinance any from held in being enough tip church services likelihood” was not the bal- building; this restriction “business use” favor. ance of harms church’s River was all business districts in applicable A of appealed. panel Life this court village, including the B-2 District. the Eleventh interpre- abandoned Circuit’s equal-terms provision previ- tation of the applied special-use of Life — River ously approved Vision Church and Di- church permit to allow to move its grugilliers adopted instead that of Chicago property to its in Hazel Heights —and in Lighthouse the Third Circuit Institute. but this Proper, application Crest was de- rehearing We ordered en banc address nied. The church then sued Hazel Crest circuit this shift in caselaw and because alleging a RLUIPA violation interpretation equal-terms pro- (among statutory other and constitutional claims) important recurring legal vision is an and moved preliminary and for a in- junction. issue that has divided the circuits and war- Village In the meantime the appar- amended its ordinance ranted the attention of the full court. ent effort to cure the rather obvious facial II. equal-terms provi-
violation of RLUIPA’s sion.1 amended The ordinance removed A. certain secular assemblies from the list of permitted special and uses authorized in equal-terms provision is best under halls, the B-2 meeting galler- art stood not in isolation but in the context of District — ies, museums, schools, libraries, recre- protections other for religious RLUIPA’s buildings, centers, community ational and against land uses backdrop and certain secular other uses—but tug of war decade-long Congress between expressly permit continued to commercial and the Court the protec over gymnasiums, clubs, salons; health ho- tion religious liberty. Cutter See motels; taverns; tels and restaurants Wilkinson, 544 U.S. 125 S.Ct. (as day-care centers an allowed “spe- (“RLUIPA (2005) 1020 L.Ed.2d use”). cial River of Life maintains that congressional is the long-running latest of remaining permitted these uses are “non- efforts to accord height exercise meaning assemblies” within the protection ened from government-imposed 2(b)(1) RLUIPA, §of that allowing burdens, prec consistent this Court’s these in the B-2 District while ex- edents.”). RLUIPA was enacted cluding churches like River Life treats Flores, wake of City Boeme v. than equal assemblies “less Religious invalidated the broader Freedom “a nonreligious assembly terms” than (“RFRA”), Restoration Act of 1993 institution” in violation of RLUIPA. §§ U.S.C. 2000bb et seq., exceeding Congress’s authority under 5 of
The district court
denied River of Life’s
Fourteenth Amendment
injunction.
motion for a
to enforce the
preliminary
Rely-
power
by §
ing
imposed
on our
limits on state
1 of
decisions Vision Church and
507, 532-36,
Digrugilliers,
the court followed the
Amendment.
U.S.
Elev-
2(b)(1)
2157,138
(1997);
interpretation
enth
Circuit’s
S.Ct.
L.Ed.2d 624
see
also Sts.
concluded
River of Life had a
Constantine & Helen Greek Or
Church,
“slight
Berlin,
likelihood
success on the merits.”
thodox
Inc. v.
Newof
Village
injunction
preliminary
pending
amended the ordinance after
was
before
River
sued and
of Life
while the motion for a
the district court.
*12
Cir.2005).
(7th
Finally,
in Lukumi
895,
the Court reiterated
897-98
396 F.3d
“
turn,
adopted
gov-
re
a
RFRA,
permitting
had been
that
law
‘individualized
Supreme
decision in
the
Court’s
sponse to
assessment of the reasons for
ernmental
”
Smith, 494
Division v.
U.S.
Employment
the relevant conduct’
is not considered
1595,
2000, years after the three Court decided More specifically, RLUIPA’s land-use City history, For more on this Boeme.2 of provision recognizes that regula- land-use generally, Campbell, see Sarah Keeton tion can interfere with religious-exercise Note, Restoring Equal RLUIPA’s Terms rights variety a ways of and creates Provision, 1071, 58 Duke L.J. 1076-85 statutory remedies for several different (2009); Lavine, Amy Patricia E. Salkin & kinds of wrongs: free-exercise The Genesis RLUIPA and Federalism: of § 2000cc. Protection of land use as Evaluating the Creation a Federal Stat- of religious exercise utory Right Impact and Its on Local Gov- (a) Substantial burdens ernment, 195, (2008); 40 Urb. Law. 205-08 Anthony Picarello, Roman P. Storzer & R. (1) General rule Jr., Religious Land Use and Institu- government No impose shall im- or tionalized Persons Act 2000: A Consti- plement a land regulation use in a Response tutional to Unconstitutional manner imposes a substantial Practices, Zoning 9 Geo. Mason L.Rev. burden on the religious of a exercise 929, (2001); 931-44 Douglas Laycock, person, including a religious assembly State RFRAs and Regulation, Land Use institution, or government unless the (1999). 32 U.C. Davis L.Rev. 770-82 imposition demonstrates that of the burden person, on that assembly, or B. institution— stipulates RLUIPA that the use of real (A) is in furtherance a compel- property religious purposes ais form ling governmental interest; and exercise,” of “religious see U.S.C. (B) 2000ec-5(7)(B) (“[t]he § use, building, the least or restrictive means of conversion of property furthering real purpose compelling for the govern- exercise shall be considered mental interest. be religious person exercise of the or enti ty that uses or property intends to use the (b) Discrimination and exclusion
for that purpose”), and codifies several
(1) Equal terms
strands of First Amendment free-exercise
jurisprudence. See World Outreach Con
government
No
impose
shall
or im-
States,
Ctr. v. United
plement
F.3d
regulation
land use
in a
ference
(7th Cir.2009);
Cong.
533-35
see also 146
manner that
treats a
assem-
(joint
Rec. S7774-S7775
statement
bly
of Sen.
or institution on less than equal
provision
§
RLUIPA’s
is found in
institutionalized-persons
§
is in
Act,
2000cc;
codified at 42 U.S.C.
codified at 42 U.S.C.
2000cc-l.
an
assembly justification
denying
exemption
nonreligious
terms with
that substantially
a restriction
bur
or institution.
religion.
dens the exercise
Stated dif
(2) Nondiscrimination
“
government
sys
‘that
ferently,
has
im-
impose
shall
No government
granting
exemptions
tem for
individual
regulation
a land
plement
general
from a
rule must have a
[land-use]
against any assembly or
discriminates
deny
reason
compelling
religion
institution on
basis
sought
group
exemption
that is
on the
religious denomination.
or,
hardship
language
basis of
(3)
Exclusion
limits
Act,
...
a substantial burden on ... re
im-
impose
No
shall
government
Outreach,
ligious
World
exercise.’3”
a land use
that—
plement
Berlin,
(quoting
F.3d at 534
New
*14
(A) totally
religious as-
excludes
897) (internal quotation
396
at
marks
F.3d
jurisdiction;
a
or
semblies from
omitted).
(B) unreasonably
religious
limits
(b)
§of
2000cc
the
Subsection
enforces
institutions,
assemblies,
or structures
right
Free
Clause
to be
from
Exercise
free
jurisdiction.
within a
state
that discriminates on
action
the basis
added).
(emphasis
§
42
2000cc
U.S.C.
religious practice,
of
or
or
religion
discrim-
(a)
among
religions.
§
inates
or
of
2000cc—the “sub-
between
Subsection
(b)
in
prohibition
provided
remedies
subsection
do not
stantial
burdens”
—enforces
require
challenged
that
right
proof
to be free
the
ac-
the Free Exercise Clause
state
substantially
to a
that
inter-
tion amounts
“substantial burden” on
from state action
religious
This
practice
religion
with the
of
without
exercise.
subsection is di-
feres
(b)(1)
parts.
vided
three
is
justification.
This
into
Subsection
compelling
provision, at
to the ex-
issue here.
codifies the Sherbert standard
particular
It
a
kind of
permitted by
equality
and Lukumi.
codifies
tent
Smith
is,
regulation
regime permits
principle;
may
a
No land-use
That
where
land-use
assembly
treat
or
exemptions
regulatory
religious
from
“a
institution”
individualized
than
equal
them
terms”
“a nonreli-
almost all of
do— “less
restrictions —and
assembly or
42
compelling gious
must have a
institution.”
U.S.C.
government
available,
requirement
general
“system”
to a
of
3. The reference
land-use
provides
government may
regulation that
for “individual ex-
not refuse
extend that
incorporates
emptions”
proviso
system
'religious hardship’
contained
to cases of
without
2000cc(a)(2)(C),
(internal
§
42
quotation
U.S.C.
states:
compelling
reason.”
omitted)).
2(a)
presence
§in
marks
Its
applies
any
This
case which
subsection
keeps
part
in line
RLUIPA
statute
imposed
...
burden is
the substantial
juris
with the
Court’s ffee-exercise
regulation
implementation of a
or
land
Congress’s
prudence and sustains
use of its
regulations,
system land use
under which
§
power.
5
World
Ctr. v.
Outreach
makes,
government
place
Conference
or has in
formal
States,
(7th
534
United
Cir.
practices
procedures
that
or informal
or
2009).
expressly
RLUIPA
make,
also
invokes
government
permit the
individual-
Spending
powers-the
Clause
Commerce
proposed
ized assessments
jurisdictional
through the device of a
latter
property
involved.
requiring
question
element
that the burden in
qualifier
scope This
limits the
RLUIPA’s
533-34;
See id.
affect interstate commerce.
and derives
"substantial burdens” subsection
(B).
2000cc(a)(2)(A),
1595;
§
42
have
U.S.C.
We
S.Ct.
from Smith.
C. consider the scope equal-terms pro- equal-terms provision appears first vision and body has the most extensive in RLUIPA’s list of remedies for caselaw interpreting applying “[d]is- part crimination and exclusion” but is not of RLUIPA. In Sephardi Midrash phrased as a general anti-discrimination Eleventh Circuit that although held rule. those; RLUIPA has equal-terms one of provision “has the ‘feel’ of an law, permissible ‘similarly provision lacks the was of Con- it equal protection usually power found as under- requirement gress’s enforcement situated’ 366 F.3d at protection analysis.” The court con- equal stood Boeme. was, court Accordingly, the declined 1229. largely cluded that because “similarly comparator” import situated equal-terms provision codified the Su- equal-terms into RLUIPA requirement juris- Court’s Free Exercise Clause preme Instead, said, court analysis. (holding Id. at 1236-40 prudence. has a more “direct equal-terms provision 2000cc(b)(l) juris- reflects free-exercise by its re- focus” and terms and narrow existing and is consistent with prudence court to evaluate whether quires the Equal Protection Establishment challenged treats caselaw). Clause “religious assembly or institution” on “less cases, subsequent In two the Eleventh non-religious than “a terms” Circuit elaborated Sephardi Midrash at Id. 1230. Be- or institution.” adapted analysis “as applied” “assembly” does define cause RLUIPA challenges the equal-terms provi- under “institution,” the dictio- court consulted Iglesia, sion. See Primera 450 F.3d at nat- and concluded that “a nary definitions 1307-08; Konikov, at 1324-28. ordinary understanding of ‘assem- ural and Iglesia Primera more recent of the —the gathered for bly’ group a common [i]s summary two cases—offered this ordi- purpose.” Id. approach circuit’s RLUIPA Sephardi per- nance at issue Midrash cases: lodge private mitted clubs and halls Based on a review of our case law con- but exclud- municipality’s business district struing Equal Terms synagogues. Because ed churches *16 closely reviewing related and halls were com- lodge clubs private precedent under Free arising Court the monly as secular “assemblies” understood Exercise First Clause the Amend- in the zone while permitted and were ment, discern at least dis- we can three excluded, were synagogues churches and Equal statutory tinct kinds of Terms Sephardi court concluded the Midrash (1) facially a dif- violations: statute facially vio- challenged that the ordinance nonre- ferentiates between and provision. the equal-terms lated Id. (2) institutions; ligious or a assemblies analysis fur- step The court took the a facially neutral statute that neverthe- ther, however, scrutiny applied strict “gerrymandered” place less to a burden statutory to the violation. “RLUIPA’s solely on nonre- religious, opposed as provision codifies the Smith- equal terms (3) institutions; ligious, assemblies or or precedent,” the court rea- Lukumi line truly selectively that is neutral statute (b)’s soned, treat- equal so “a violation of against religious, opposed enforced analy- provision, ment consistent nonreligious assemblies or institutions. Lukumi, undergo employed must sis F.3d In first two types at 1308. scrutiny.” Id. at 1232. The munici- strict claims, focuses equal-terms provision justification excluding proffered pality’s the challenged the content of on from synagogues churches and the busi- to determine whether it ex- syn- ness district —the “interests retail religious assembly treats a or insti- pressly compelling-interest ergy”—flunked terms than a equal tution less 1235. The Eleventh test. Id. at Circuit institution, nonreligious assembly or analysis Sephar- completed its Midrash “gerrymandered” unequal that its by considering equal-terms was so di whether 1308). entirely effect almost on a permit falls F.3d at Because the institution, requirement as in Lukumi. Id. at issue Church Vision was neutral, at In an as-applied 1308-09. “selective facially “target religion did not ” claim, however, enforcement” court through religious ‘gerrymandering,’ held that an will plaintiff gen- had not selectively against been enforced erally required identify similarly church, equal- claimant there was no nonreligious assembly situated or institu- terms violation. Id. favorably.
tion that was treated more Id. Digrugilliers built on Vision Church Konikov, 1311; at at F.3d 1327-29. very and is much like In Digru- this case. gilliers B. municipal zoning ordinance ex- cluded churches from a commercial district Sephardi, We have cited Midrash Koni- permitted a variety of other secular kov, Iglesia Primera with approval assemblies, auditoriums, including assem- specifically followed the Eleventh Cir- halls, centers, bly community senior cen- approach prior cuit's two cases. See ters, centers, day-care galleries, art civic 616; Digrugilliers, 506 F.3d at Vision clubs, and libraries. 614-15. Church, F.3d at 1002-03. claim- sued, A Baptist claiming minister an equal- ant in Vision Church maintained (among violation, Life, terms River like claims) statutory other and constitutional moved for a preliminary injunction. The that a special-use permit requirement district court denied the motion and the local ordinance violated RLUIPA’s minister appealed. Village Like equal-terms provision. resolve To here, Hazel municipality Crest in Di- claim, we relied on the Eleventh Circuit’s grugilliers argued that the exclusion of Konikov, decision in noting first that aas churches commercial district was matter, general there was need no to iden- justified because churches would inhibit tify “similarly nonreligious situated” land development commercial within the zone. comparison against “ As support additional argument, for this purposes claimant. ‘For aof RLUIPA the municipality noted that pro- state law challenge, terms the standard for hibited the sale alcohol pornography determining whether it is proper com- *17 feet, within 200 and 500 respectively, of a pare a religious group nonreligious to a reversed, church. relying We on group Vision is not whether “similarly one is situ- Church other, and the Eleventh ated” to in Circuit’s deci- the our familiar equal sions in protection Iglesia Primera jurisprudence.” Church, and Midrash Se- Vision phardi. Konikov, Id. at 616. F.3d at 1002-03 We focused not (quoting on 1324). F.3d at the economic-development objectives We looked instead to the text equal-terms of the the provision municipality to on the find ordinance’s the facial comparison: pertinent relevant differentiation between “[T]he and question assemblies, is whether regula- nonreligious the ‘land use and dismissed the tion ... a religious assembly municipality’s treats or reliance on pro- state laws institution on less than terms tecting incompatible with a churches adja- from ” nonreligious assembly or institution.’ cent Id. land uses. We said: “Government at cannot, 1003. Vision Church quoted then at by granting special privi- churches length ( from the passage Igle- leges in Primera right ... the a church to be free sia summarizing ways the three in which from vicinity), offensive land uses in its equal-terms RLUIPA’s provision might excluding furnish the for reason churches (quoting violated. Id. Iglesia, Primera from otherwise suitable Id. districts.” We slight albeit approach, that the minis- cuit’s with “shift Digrugilliers in concluded some, had “at least I equal-terms Majority op. claim of focus.” at 371. think this ter’s merit,” possibly great, id. interpre is a The Third mistake. Circuit’s remaining application for the remanded the departs equal- tation from text of the criteria. preliminary-injunction and from the structure of terms provisions as a read
RLUIPA’s
C.
protections
the specific
whole. It conflates
in
equal-terms provision
the
contained
After
decisions
Vision Church
our
general
the
antidiscrimination
with
more
the Third Circuit
Digrugilliers,
(b)(2).
rule
On the
contained
subsection
equal-terms provision,
weighed in
the
no
understanding,
Third
there is
Circuit’s
Eleventh Circuit and
disagreeing
the
provisions.
the two
See Cor
difference
equal-terms plaintiffs to iden-
requiring all
-
States,
-,
ley v.
U.S.
United
similarly
nonreligious as-
tify a
situated
(2009)
1558, 1566,
S.Ct.
IV.
particular, on Smith and Lukumi.
A.
cases,
These
F.3d at 264-66.
the court
held,
interpretation
call
a narrow
My colleagues change course
our
equal-terms provision, one that focuses on
to the Eleventh
previous adherence
Cir-
land use
negative effect
equal-terms
interpretation
cuit’s
zoning authority’s objectives. The
on the
though they
leaving
do so while
provision,
requires
place.4
Third Circuit thus
Digrugilliers
Vision Church
plaintiff
Third
treated less
adopts
The en
court
Cir-
“show
it was
banc
*18
church,
says Digrugilliers
plaintiff
and
but
does
make
4. The court
Vision
the
that
not
merely
opinion’s analytical approach inapplicable
"cited Midrash without criti-
the
Church
Digrugilliers
contextually quite
centrally
is
close
cism
...
concerned
here.
[were]
but
not
case;
interpretive
presented in
court’s
cannot
with
issue
this
this
the
decision here
the
Majority
opinions
with the
in that case.
op. at 369. These
be reconciled
decision
case.”
Indeed,
(and
easily.
I
based on Vision Church
to a
be dismissed so
As
have
cannot
extent, Digrugilliers),
explained,
Digrugilliers
the
Circuit
Vision
in-
lesser
Third
Church
interpretation
aligned
as
Eleventh Circuit
counts us
with the
voked the Eleventh Circuit’s
it;
interpretation
equal-terms provi-
of the
approval
specifically
with
followed
to-
on the
Institute,
Lighthouse
gether,
opinions
just
not
510 F.3d at
the
cite
Midrash Se-
sion.
only
Iglesia.
n.
case
under-
phardi
271 & 15. This
can
be
but also Konikov
Primera
noted,
true, my colleagues
repudiation
of Vision Church and
is
that
stood as
It
have
against
Digrugilliers.
the
in
Church went
decision
Vision
a nonreligious comparator
religious
well than
tricts because
assemblies do not
objectives
advance these
equivalent negative
for-profit
had an
on
impact
the
control,
secular
do.
assemblies
Traffic
regulation.”
aims of the land-use
Id. at
density management, and noise-reduction
My colleagues
“accepted
270.
substitute
objectives will tend to immunize the exclu-
zoning
regulatory
criteria” for
“aims” or
religious
sion of
uses from
land
residential
op.
371, but
“purposes,” majority
at
other-
districts because
uses may
land
wise the test is the same. This minor shift
with
purposes
inconsistent
these
or cri-
changes nothing
significance.
focus
ways
assembly
teria in
that secular
“accepted zoning
The distinction between
Indeed,
municipality’s very
not.
“regulatory
criteria” and the
purpose” of
generic objectives
Lighthouse
Insti-
exclusionary
zoning
or too
nonexistent
tute —to create
“retail main street” and
any
subtle make
difference in individual
a “modern entertainment-oriented
dis-
equal-terms
Zoning
cases.
decisions are
prevent
trict” —were sufficient
always
accepted
tied to
“criteria.”
land-use
plaintiff
meeting
church from
the Third
Regardless,
formulation,
under either
similarly
Circuit’s
situated test.5 Id. at
most,
all,
(internal
omitted).
if
equal-
test dooms
not
quotation
270-71
marks
Zoning
terms
claims.
authorities will
Lighthouse
majority
Institute
difficulty
have little
their
articulating
ob-
thought
reading
its
of the
pro-
jectives
way
in such a
as to
prevent
Lukumi,
vision
required by
was
Smith and
religious assembly
identify-
excluded
disagree.
I
There is
“similarly
no
ing a
nonreligious compara-
better-treated
requirement
Supreme
situated”
tor that has an equivalent negative effect
jurisprudence;
Court’s free-exercise
nei-
on either the
“purpose”
the “criteria” of
ther
nor
suggests
Smith
Lukumi
need to
challenged
regulation.
Rou- graft
requirement
such
equal-
onto the
development”
tine “economic
and “tax-en-
provision.
terms
As the Eleventh Circuit
objectives
hancement”
can be
Iglesia
held
Primera
noted
we
—which
characterized as “regulatory purposes” or
Church,
approval in Vision
to the extent
“accepted zoning criteria” —will immunize
equal-terms provision par-
RLUIPA’s
the exclusion of
land uses from
allels the
Court’s free-exercise
commercial, business,
jurisprudence,
and industrial dis-
three kinds of violations are
My colleagues
5.
key
have
assembly
omitted a
"the
detail
Plan treats a
on less
application
about the Third Circuit's
of its
terms with secular
"similarly
Majority op.
situated”
equivalent
test. See
negative impact
would cause an
on
(as
Lighthouse
In
368-69.
municipality’s] regulatory
Institute
goals.”
[the
Id. at
case),
True,
municipal
changed
defendant
summary
the court did order
zoning
during
litigation,
judgment
ordinance
leav-
for the
was
church
what
left of
ing
ordinance,
plaintiff
against
church with a claim for in-
its claim
the old
but the
junctive
against
relief
necessarily
the new
remedy
quite
ordinance—
was
limited: mone-
Redevelopment
damages
referred to as
tary
period
"The
Plan”
leading up
time
simply
very
plan.
the "Plan” —and a
limited dam-
to the
new
enactment of the
Id.
ages
period
say
claim for
damages
between the
did
court
how these
"application
church's
for a
upshot
Light-
[from
waiver
should be measured. The
decision,
whole,
terms
the old ordinance]
and the enact-
house Institute
read as a
*19
ment of the Plan.” 510
equal-terms
F.3d at 273.
that
core
of the church's
rejected
equal-terms
Third
sought
Circuit
the church's
claim—which
relief from the land-use
ordinance,
against
claim
ordering
the new
regulatory
preventing
scheme that was
it from
summary judgment
municipal
locating
defen-
ain downtown commercial district—
dant because there was "no evidence” that
failed.
(land-
(1)
1327-29. That would make
410 F.3d at
facial violations
contemplated:
regulation
challenged
truly
treat a
if
is
by their terms
sense
that
regulations
effect,
in
a
on its face and
and the
secular neutral
religious assembly less well
(fa-
(2)
ap-
instead that it was
plaintiff contends
religious gerrymanders
assembly);
But
in
designed
plied
equally.
nothing
or con-
less than
cially
regulations
neutral
a
requires
plaintiff
or Lukumi
to do
only religious assemblies Smith
to affect
structed
(3)
raising
not in a
certainly
case
a
practice); and
religious
a particular
or
this —
fa-
challenge, and not
(facially
regu-
neutral
cial free-exercise
neces-
violations
as-applied
in
claim
selectively
sarily
religious-gerrymander
ei-
that
are
enforced
lations
ther,
Lighthouse
as the dissent in
Institute
religion
particular
or a
against
(Jor-
explained. See
which it is enforced. That was Lukumi, recognized in Ac as we Bloch. My an colleagues have included exten- in neutrality cordingly, free-exercise explanation policies of the land-use sive quiry challenged the text of the starts with underlying practice the modern of exclu- proceeds law from there regulato- zoning, particular sive effect, finally, to its operative to its ry justifications separating commercial Lukumi, application. 508 U.S. land from noncommercial uses. See Ma- text, (“Apart from the the effect S.Ct. jority op. sug- at 371-74. This discussion operation strong law its real (for-profit, the commercial tax- gests that object.”). If a lacks evidence of law activity in a generating) character general applicability any neutrality or enough by itself business district “it is invalid it is respects, these unless justify excluding religious uses. In- land and is justified by compelling interest deed, apply time when comes inter narrowly tailored to advance that comparing restated Riv- test — 533, 113 est.” Id. at S.Ct. land er of Life to secular in relation as-applied challenge “similarly “accepted one situated”
Perhaps acceptable proof might involve criteria” —the court notes “Ha- method of has ... created a commercial specific, of a better-treat- zel Crest identification ed, along similarly comparator, as the district that excludes churches situated Konikov, centers, halls, meeting and li- community has See Eleventh Circuit held. *20 assemblies, Second, braries because these secular district.6 the focus on other ex- church, generate significant like a do not analysis cluded assemblies has the back- Majority op. taxable revenue.” at 373. A ward. decision justifies method that “[sjimilar court that The thus concludes excluding a religious assemblies from zone being assemblies are treated the same. nonreligious because assemblies are also permitted land use that is most like excluded turns the equal-terms provision gymnasium, a plaintiffs is commercial equal-terms provision on head. is enough that’s not com- close because a remedy against exclusionary zoning; a assembly belongs mercial an all-com- reading require it to equality of treatment and a mercial district as- noncommercial with secular excluded assemblies —rather sembly, or religious, secular does not.” Id. secular gives included assemblies — at 373. religious remedy assemblies no at all. The plainly requires statute religious-group couple
There are a why of reasons this equality permitted assemblies, secular First, analysis is flawed. the unmistakable not excluded secular assemblies. implication comparing is that the excluded religious permitted to a commer- i.e., for-profit assembly is either cial — — end, In the
categorically emphasis improper always or will de- court’s police-power feat the But nothing legitimacy claim. of of exclusionary text equal-terms provision zoning presumptively degree evinces to- deference using out rules commercial secular ward land-use that assem- is fundamen- blies and institutions for equal-terms tally com- inconsistent with RLUIPA and the just parison they are because guarantee commercial First Amendment’s right and therefore “belong” in commercial of free presump- exercise.7 The Apart 6. support from the lack impermissibly "give of textual for religious land fa- analysis, mode legislative Majority op. RLUIPA's vored treatment.” at 369. The history strongly suggests contemplates remedy court the Eleventh Circuit "add- scrutiny' gloss” the exclusion of ed its assemblies from 'strict in order "to for-profit making overprotect zones where avoid permit- assemblies are its test as- (2000) comparison Cong. See semblies in (joint ted. to their S7774 closest secu- Rec. counterparts,” thereby prob- statement lar Kennedy) "solv[ing] of Sen. Hatch and Sen. (noting "frequently lem the court's own codes creation.” Id. at 370- exclude I places government] 71. think this churches in where misreads the caselaw. Mi- [the theaters, halls, Sephardi permit[s] drash held meeting permissi- that RLUIPA other places large legislation groups people where ble remedial the extent that assemble purposes”); it codifies the secular see also id. Court's First Amend- S7774-75 ("Churches jurisprudence specifically ment free-exercise have been excluded from residen- — they generate tial zones traffic, Smith Lukumi. 366 F.3d because too at 1236-40. much imported scrutiny The Eleventh Circuit and from strict commercial zones because problem they generate enough don't not to "solve a traffic. of its own creation” Churches right have been conform the denied to meet in statute to Lukumi and rented storefronts, schools, matter, Smith. Id. at 1232. As a abandoned doctrinal convert- homes, theaters, "overprotecting” religious ed funeral the concern about skating generally, buildings per- rinks—-in all land uses is overstated. See sorts Mi- were McConnell, generated they Singling chael W. mitted when traffic The Problem for secular Religion, ("[T]he purposes.”). Out 50 DePaul L.Rev. singling religion question of out one of My colleagues retreat 'privilege' Eleventh but rather one of balance. The interpretation Circuit’s Free Exercise Establishment Clauses part they complementary because think it too serve function: to reduce "[p]ressed power "literal” and if government religion, would too hard” over
389
locating
institution from
assembly or
exclusionary zoning
gious
under
of
validity
tive
Co.,
zone,
pertinent question for
the
Realty
in a
then
v. Ambler
Euclid
Village of
regu-
whether
365,
114,
purposes
71
303
is
the
equal-terms
47
L.Ed.
S.Ct.
272 U.S.
“assembly” or “in-
against
permits
lation
a secular
(1926),
validity
of
presumption
is a
claims,
only
locate
the zone.
trigger
stitution” to
property-rights
stan-
very
rational-basis
the
deferential
“assembly” and “institution”
The terms
free-
scrutiny. Laws that burden
dard
statute,
they
but
are
not defined
are
are
reviewed so lenient-
rights
not
exercise
in this context. A dictio-
ambiguous
is,
truly
is
unless
law
ly not, that
—
give
enough mean-
nary definition will
us
effect,
face,
operative
its
in its
neutral on
to
most cases. See FDIC
ing
decide
equal-terms
The
its enforcement.
476, 114
Meyer, 510 U.S.
S.Ct.
judg-
a congressional
reflects
provision
(1994) (“In the absence of
hard of a “salon” an assembly, as B. on suggested least the definition I’ve here. here, Applying principles these I think RLUIPA persuasion shifts the burden
River of Life has a likelihood of success government to the plaintiff “pro- its claim that Hazel once the Crest’s ordi- amended facially prima equal-terms pro- support nance duces violates the facie evidence to vision. The alleging ordinance excludes churches claim a violation of the Free Exer- in the B-2 district but includes gymnasi- cise or a violation Clause of section 2000ce 2000cc-2(b). fully raised and not be resolved unless title.”8 U.S.C. of this Circuit, noted, However, I have the extent that an The Eleventh briefed. require strict the statute to interprets implied compelling-interest standard is re- regulations prima scrutiny of land-use quired to sustain the statute under equal-terms provision; violate the facie Boeme, attempted Hazel Crest has not to- premise interpretation flows from the probably carry that burden. *23 cannot— Supreme RLUIPA codifies the that development tax-gen- and economic— jurisprudence spe- free-exercise Court’s — objectives regulatory eration of its scheme cifically Smith appears and Lukumi —and governmental are interests but legitimate the determination to be linked to court’s hardly compelling. provision is valid equal-terms that the Mi- Congress’s power. § of 5 exercise VI. Sephardi F.3d at 1231-36. The drash Lighthouse Insti- agreed Third Circuit judge thought River of district the tute that codified RLUIPA had equal-terms Life’s claim least jurisprudence free-exercise Court’s slight of success on the merits likelihood the interest disagreed compelling that injunction but declined to enter an on the Smith Lukumi of was incor- standard understanding the balance harms that equal-terms provision. the into porated did not favor the church because the statu provision the “substantial burden” Because tory analo claim should not be treated as language adopting strict express contains claim, gous a First Amendment to provision scrutiny the See presumed. irreparable which harm is not, Third Circuit held that does Walker, Legal Soc’yv. Christian the equal- that violates land-use (“The (7th Cir.2006) of First loss per may invalid and terms se presumed freedoms is to con Amendment compelling justified gov- even not be irreparable injury which stitute Inst., Lighthouse interest. ernmental damages adequate, and in money are thought The court its “simi- F.3d at 269. junctions protecting First Amendment secular-assembly require- larly situated” always public inter freedoms sufficiently narrowed the statute ment est.”). was a mistake. That RLUIPA Id. at 267 difficulty. constitutional avoid (“Because rights, enforces Free Exercise Clause limit in this n. 11 we the statute broadly are to provisions its land-use way, we are not concerned about Con- 5 to im- authority protecting religious under Section in favor of gress’s construed liability what to a strict See pose 2000cc-3(g) § amounts U.S.C. exercise. regulations (“This that violate the standard chapter shall be in favor construed My Equal provision.”). colleagues Terms exercise, protection of a broad Third Circuit’s align themselves permitted by maximum extent view. terms chapter Constitu tion.”). noted, spe I have the statute As not argued
Hazel Crest has use, building, cifically provides “[t]he Congress’s equal-terms provision exceeds property pur of real for the conversion authority. § This is an im- 5 enforcement falls question pose exercise” within and sensitive should portant regulation) government prac- procedure (including a is modified in subsection 8. This claims, (b)(1) challenged by the re- tice that is claim substan- burden” "substantial plaintiff's of reli- tially the burden of burdens exercise quire plaintiff to "bear 2000cc-2(b). [challenged] gion.” law 42 U.S.C. persuasion on whether “religious Id. prelimi- exercise.” mand with instructions enter a domain 2000cc5(7)(B). nary injunction in favor of River Life. any To the extent that this or other of provisions goes be-
RLUIPA’s
yond constitutionally required what is pre- prophylactic legislation
constitutes violations,
vent or deter free-exercise conclusion that
district court’s River irreparable has
Life established harm being prevented River of Life is sound. America, UNITED STATES church moving property to the Plaintiff-Appellee, Crest, owns in Hazel which is situated *24 congregation location that considers BEDOLLA-ZAVALA, Jose important to its mission. RLUI- Defendant-Appellant. requires PA Village respect relocate; church’s right Hazel Crest No. 09-3690. permits some secular uses in this United of Appeals, States Court neighborhood and therefore cannot ex- Seventh Circuit. clude River of Life. scale, On the other side of the Hazel Argued Feb. 2010. irreparable Crest’s assertions of harm are July Decided generalized entirely conclusory. Village “by allowing contends that non- [a]
taxpaying, entit[y] non-traffic generating Proper] locate within the [Hazel Crest
hub,” “significant” potential there is a “community
“interference” with its revital- goals.
ization” This implausible is an First, marginal
claim. loss of tax reve-
nue attributable to the establishment of a
tax-exempt religious the district harm;
cannot be irreparable considered if were, injunction then no under RLUIPA possible.
would ever be The claimed loss traffic-generating potential (assuming concern) entirely
this is real specula-
tive. Hazel Crest has not bothered to
explain allowing how small church
locate in Hazel will Proper Crest otherwise
impede its community-revitalization ef-
forts. River of Life’s concrete loss of rights easily outweighs
RLUIPA spec- harm
ulative to Hazel redevelop- Crest’s plan.
ment reasons,
For foregoing all the I would
reverse district court’s order re-