River of Life Kingdom Ministries v. Village of Hazel Crest

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2819

R IVER OF L IFE K INGDOM M INISTRIES,

Plaintiff-Appellant,

v.

V ILLAGE OF H AZEL C REST, ILLINOIS,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 C 950—Joan B. Gottschall, Judge.

A RGUED F EBRUARY 24, 2010—D ECIDED JULY 2, 2010

Before E ASTERBROOK, Chief Judge, and C UDAHY, P OSNER,

F LAUM, M ANION, K ANNE, R OVNER, W OOD , W ILLIAMS,

S YKES, T INDER, and H AMILTON, Circuit Judges.

P OSNER, Circuit Judge. The court granted rehearing en

banc to consider the proper standard for applying the

equal-terms provision of the Religious Land Use and

Institutionalized Persons Act, 42 U.S.C. § 2000cc. That

provision states that “no government shall impose or

implement a land use regulation in a manner that treats

2 No. 08-2819

a religious assembly or institution on less than equal

terms with a nonreligious assembly or institution.”

§ 2000cc(b)(1).

The appellant, River of Life, is a small church (it has

67 members, only about half of whom attend services on

an average Sunday) that at present operates out of

rented space in a cramped, dirty warehouse in Chicago

Heights, a town 27 miles south of downtown Chicago.

It wanted to relocate to a building in the Village of

Hazel Crest, a town of some 15,000 people located two

miles north and slightly west of Chicago Heights. The

building, however, is in a part of the town designated by

the town’s zoning ordinance as a commercial district.

The district is in the town’s oldest part, which is run

down; indeed the entire town has been in economic

decline for years. The area designated as a commercial

district is close to the train station, and the presence of

commuters might enable the district to be revitalized as

a commercial center. The zoning ordinance has therefore

been amended to exclude new noncommercial uses

from the district, including not only churches but also

community centers, schools, and art galleries.

River of Life sued the Village under the equal-terms

provision and moved for a preliminary injunction

against the enforcement of the zoning ordinance. The

district judge denied the motion and a panel of this

court affirmed, mainly on the ground that the church was

unlikely to prevail when the case was fully litigated. 585

F.3d 364 (7th Cir. 2009). The existence of an intercircuit

conflict with respect to the proper test for applying the

No. 08-2819 3

equal-terms provision, combined with uncertainty about

the consistency of our decisions, persuaded the full court

to hear the case in order to decide on a test.

Two of our sister courts of appeals have proposed tests.

The Third Circuit in Lighthouse Institute for Evangelism, Inc.

v. City of Long Branch, 510 F.3d 253, 266 (3d Cir. 2007),

ruled that “a regulation will violate the Equal Terms

provision only if it treats religious assemblies or institu-

tions 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.

If the reasons for excluding some category of secular

assembly—whether traditional reasons such as effect on

traffic or novel ones such as creating a “Street of Fun,” see,

e.g., Clifton Hill, “Fun by the Falls,” www.cliftonhill.com

(visited May 25, 2010)—are applicable to a religious

assembly, the ordinance is deemed neutral and therefore

not in violation of the equal-terms provision. But if a

secular assembly is allowed and the religious assembly

banned even though the two assemblies don’t differ in

any way material to the regulatory purpose behind the

ordinance, then neutrality has been violated and equality

denied. That was the situation in the Lighthouse case. The

zoning ordinance permitted meeting halls in the district

in which the church wanted to locate and there was no

way to distinguish between meeting halls and churches

on the basis of the purpose of the ordinance. The Third

4 No. 08-2819

Circuit therefore ordered summary judgment in favor

of the church with respect to its challenge to the ordi-

nance (though not its challenge to a newer redevelop-

ment plan), saying that “Long Branch [the defendant]

has failed to create a genuine issue of material fact as to

whether the Ordinance treated religious assemblies or

institutions on less than equal terms with non-religious

assemblies or institutions that caused equivalent harm

to its governmental objectives.” 510 F.3d at 272-73.

An alternative test was adopted by the Eleventh

Circuit in Midrash Sephardi, Inc. v. Town of Surfside, 366

F.3d 1214, 1230-31 (11th Cir. 2004), and followed in

Prima Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward

County, 450 F.3d 1295, 1308-10 (11th Cir. 2006), and Konikov

v. Orange County, 410 F.3d 1317, 1324-29 (11th Cir. 2005)

(per curiam). 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. In Midrash the court held

that where private clubs are allowed, so must churches be.

Pressed too hard, this approach would give religious

land uses favored treatment—imagine a zoning ordinance

that permits private clubs but not meeting halls used by

political advocacy groups. The court indicated, however,

that a seemingly unequal treatment of religious uses that

No. 08-2819 5

nevertheless is consistent with the “strict scrutiny” stan-

dard for determining the propriety of a regulation

affecting religion would not violate the equal-terms

provision. Midrash Sephardi, Inc. v. Town of Surfside, supra,

366 F.3d at 1232.

Our own cases dealing with that provision had cited

Midrash without criticism but had not been centrally

concerned with the interpretive issue presented in this

case. In Digrugilliers v. Consolidated City of Indianapolis,

506 F.3d 612, 616-17 (7th Cir. 2007), the issue was

whether by granting churches rights that, though

unlikely to be exercised, would conflict with rational

zoning policy, a municipality could exclude churches

from a district in which otherwise similar secular as-

semblies were permitted; we held it could not. In

Vision Church v. Village of Long Grove, 468 F.3d 975, 1002-

03 (7th Cir. 2006), which we decided against the church

plaintiff, the restaurants and health clubs that the

church considered comparable land users that were

treated more favorably than it was were located in a

commercial district rather than in the residential district

in which the church sought to build, and “the fact that

[the church] and the elementary schools [which the

church also contended were comparable, and which were

permitted under a prior city ordinance but would have

been excluded under the current ordinance] were sub-

ject to different standards because of the year in which

their special use applications were considered compels

the conclusion that there was no unequal treatment.”

Id. at 1003.

6 No. 08-2819

Neither the Third Circuit’s nor the Eleventh Circuit’s

approach, though in application they might yield similar

or even identical results—and results moreover that

would strike most judges as proper—is entirely satisfac-

tory. We are troubled by the Eleventh Circuit’s rule that

mere “differential treatment” between a church and some

other “company of persons collected together in one

place . . . usually for some common purpose” (the court’s

preferred dictionary definition of “assembly”) violates

the equal-terms provision. Midrash Sephardi, Inc. v. Town

of Surfside, supra, 366 F.3d at 1230-31. “Assembly” so

understood would include most secular land uses—

factories, nightclubs, zoos, parks, malls, soup kitchens,

and bowling alleys, to name but a few (visitors to each

of these institutions have a “common purpose” in

visiting)—even though most of them have different effects

on the municipality and its residents from a church;

consider just the difference in municipal services

required by different land uses, including differences in

the amount of police protection. The land use that led

the Eleventh Circuit in Midrash to find a violation of

the equal-terms provision was, however, a private club,

and it is not obvious that it has different effects on a

municipality or its residents from those of a church.

Thus our quarrel is not with the result in Midrash but

with the Eleventh Circuit’s test.

A subtler objection to the test is that it may be too

friendly to religious land uses, unduly limiting

municipal regulation and maybe even violating the

First Amendment’s prohibition against establishment of

religion by discriminating in favor of religious land uses.

No. 08-2819 7

See Sts. Constantine & Helen Greek Orthodox Church, Inc. v.

City of New Berlin, 396 F.3d 895, 900 (7th Cir. 2005). The

Supreme Court had held in Employment Division v.

Smith, 494 U.S. 872, 878-80 (1990), that the clause of the

First Amendment that guarantees the free exercise of

religion does not excuse churches from having to

comply with nondiscriminatory regulations, such as the

prohibition of drugs believed to be dangerous, even if the

regulation interferes with church rituals or observances:

“we have never held that an individual’s religious

beliefs excuse him from compliance with an otherwise

valid law prohibiting conduct that the State is free to

regulate.” Id. at 878-79. If they were excused, this might

be deemed favoritism to religion and thus violate the

establishment clause.

Suppose a zoning ordinance forbids all assemblies

except gymnasiums. Then because a gymnasium is an

assembly as defined by the Eleventh Circuit, a church

could locate in the district but a secular humanist

reading room could not, unless secular humanist organiza-

tions (such as American Atheists, the American Humanist

Association, the Freedom From Religion Foundation, the

Godless Americans Political Action Committee, Internet

Infidels, and the Skeptics Society—these are all real

organizations) were defined as religions. (Nor could

the local chapter of the Cat Fanciers’ Association,

which might have 67 dues-paying local members, only

about half of whom show up on average at the chapter’s

meetings.) It was to avoid making its test overprotect

religious assembles in comparison to their closest secular

counterparts that the Eleventh Circuit added its “strict

8 No. 08-2819

scrutiny” gloss—municipalities can bar religious land

uses from particular zones if the regulation satisfies the

“strict scrutiny” test for regulations that treat religious

and secular activities differently. There is no textual

basis for the gloss, and religious discrimination is

expressly prohibited elsewhere in the statute. The gloss

was needed only to solve a problem of the court’s own

creation.

A further objection to the Eleventh Circuit’s test is

that “equality,” except when used of mathematical or

scientific relations, signifies not equivalence or identity

but proper relation to relevant concerns. It would not

promote equality to require that all men wear shirts that

have 15-inch collars, or that the number of churches in

a state equal the number of casinos, or that all workers

should have the same wages. But it does promote

equality to require equal pay for equal work, even

though workers differ in a variety of respects, such as

race and sex. If a church and a community center, though

different in many respects, do not differ with respect to

any accepted zoning criterion, then an ordinance that

allows one and forbids the other denies equality and

violates the equal-terms provision.

This understanding of the equal-terms provision is

imperfectly realized by the Third Circuit’s test as well.

That test centers on identifying the zoning authorities’

“regulatory purpose” in adopting an ordinance that

excludes a church. Our concern is not that the equal-terms

provision as drafted by Congress omits the term “regula-

tory purpose” or some cognate term. As we explained,

No. 08-2819 9

“equality” is a complex concept. The fact that two land

uses share a dictionary definition doesn’t make them

“equal” within the meaning of a statute. But the use of

“regulatory purpose” as a guide to interpretation

invites speculation concerning the reason behind ex-

clusion of churches; invites self-serving testimony by

zoning officials and hired expert witnesses; facilitates

zoning classifications thinly disguised as neutral but

actually systematically unfavorable to churches (as by

favoring public reading rooms over other forms of non-

profit assembly); and makes the meaning of “equal terms”

in a federal statute depend on the intentions of local

government officials. Midrash Sephardi, Inc. v. Town of

Surfside, supra, 366 F.3d at 1231.

That was our point in Digrugilliers v. Consolidated City

of Indianapolis, supra, 506 F.3d at 615, when we rejected

the argument that a city “could exclude churches from

districts zoned residential by ordaining that a residential

use of land does not include the grazing of sheep but

a religious use does, and therefore the federal Act

does not require the City to permit churches in

residential zones, as to do so would give churches more

rights than the other users of land in those zones have.

Such an approach—in effect defining ‘religious assembly

or institution’ as a church plus a sheep farm—would be

bootstrapping.”

The problems that we have identified with the Third

Circuit’s test can be solved by a shift of focus from regula-

tory purpose to accepted zoning criteria. The shift is not

merely semantic. “Purpose” is subjective and manipulable,

10 No. 08-2819

so asking about “regulatory purpose” might result in

giving local officials a free hand in answering the ques-

tion “equal with respect to what?” “Regulatory criteria”

are objective—and it is federal judges who will apply

the criteria to resolve the issue.

So let us consider those criteria, noting by way of back-

ground that originally zoning was “cumulative”—that

is, “higher uses,” such as residential land uses, were

permitted in districts in which “lower uses,” such as

manufacturing, were permitted, though the “lower uses”

were excluded from districts zoned for the higher ones.

Cumulative zoning soon gave way to noncumulative (or

“exclusive”) zoning, in which specified land uses were

confined to specified districts and thus could be and often

were separated. See, e.g., State ex rel. Berndt v. Iten, 106

N.W.2d 366, 368-69 (Minn. 1960); McDonough v. Apton, 368

N.Y.S.2d 603, 608-09 (N.Y. App. Div. 1975); Grubel v.

MacLaughlin, 286 F. Supp. 24, 28-29 (D.V.I. 1968); Daniel R.

Mandelker, Land Use Law § 5.43 (5th ed. 2003). As ex-

plained in People ex rel. Skokie Town House Builders, Inc. v.

Village of Morton Grove, 157 N.E.2d 33, 36 (Ill. 1959),

“the dangers of heavy traffic are greater in mixed

residential-industrial or residential-commercial districts

than in districts devoted to just one purpose. Industrial

and commercial districts are not good places to bring

up families from a health standpoint; and the presence

of children in and about industrial and commercial dis-

tricts leads to a demand for school, park and play-ground

facilities in an area where there is either no land available

or the land available is ill-suited to such uses. In

short, whether industry and commerce are excluded

No. 08-2819 11

from the residential areas, or residences from industrial

and commercial areas, it is not unreasonable for a legisla-

tive body to assume that separation of the areas

would tend in the long run to insure a better and a more

economical use of municipal services, such as schools,

providing police protection, preventing and fighting fires,

and better use of street facilities. The general welfare of

the public may be enhanced if industry and commerce

are provided with a favorable climate. The sale of a

few lots at important points in a district may make in-

dustrial or commercial expansion impossible or prohibi-

tively expensive. To protect the residents in the

district, traffic may be slowed down unduly and thus

detract from the efficiency of production and trade. In

final analysis, it seems clear that industry and commerce

are also necessary and desirable and that a proper en-

vironment for them will promote the general welfare of

the public.”

Or as Patricia E. Salkin, American Law of Zoning § 9:15 (5th

ed. 2010), explains with specific reference to commercial

districts: “All commercial uses are not created equal. Some

require pedestrian traffic; others create hazards for pedes-

trian traffic. Some commercial uses cause pedestrian

traffic during the daylight hours; others operate at night

and are quiet in the daytime. The list of characteristics

could be extended, but this small sample suggests that

residential uses in commercial neighborhoods will injure,

as well as be injured by, the adjacent commercial uses. And

it suggests further that some commercial uses will be

incompatible with others . . . . The most common drafting

answer to the problems sketched above is the ‘exclusive’

12 No. 08-2819

zoning ordinance . . . . Districts are established for named

uses, or groups of uses, and all others are excluded. The

chief virtue of such ordinances is that they create districts

for commerce and industry, and exclude from such dis-

tricts residential and other uses which are capable of

interfering with the planned use of land.”

And in like vein we read in Harry B. Madsen,

“Noncumulative Zoning in Illinois,” 37 Chi-Kent L. Rev.

108, 113-14 (1960), that “if municipalities wish to retain

their commercial and industrial tax plums they must

compete with the advantages to be gained in the wide

open spaces where the car-pools flow freely. Commerce

and industry must be recognized for what they are,

necessary and desirable elements of the community . . . .

[M]uch of the exodus of commerce and industry would

be checked by reasonable security that an already bad

situation would not get worse. The noncumulative

zoning ordinance is peculiarly well suited to provide this

security.”

Exclusion of churches from a commercial zone (though

generally not from every commercial zone in the munici-

pality), along with other noncommercial assemblies, such

as exhibition halls, clubs, and homeless shelters, is thus not

unique to the Village of Hazel Crest. See, e.g., Fairfield,

California Municipal Code, art. I, § 25.22.2(A), tab. 25-

9, www.codepublishing. com/ca/fairfield/html/fairfield25/

fairfield2522.html; Village of Lincolnwood, Illinois Zoning

Code tab. 4.01.1, www.ecode360.com/documents/LI3005/

C h a p t e r % 2 0 1 6 % 2 0 - % 2 0 Z o n in g % 2 0 O r d i n a n c e . p d f ;

Skokie, Illinois Zoning Ordinance, ch. 118, App. A,

library.municode.com/HTML/13819/ level2/C118_AA.html;

No. 08-2819 13

North Beach, Maryland Zoning Ordinance, art. III, § 3-200

tab. 1, www.ci.north-beach.md.us/Pages/ NorthBeachMD_

Zoning/zoning/article3.pdf (all visited May 25, 2010).

A reader might worry that “commercial” is a synonym

for “secular.” It is not. There are many secular noncom-

mercial land uses, and if the Village of Hazel Crest were

concerned for example about the sufficiency of parking

space in some part of the village, the commercial or

noncommercial character of land uses that generated

similar vehicular traffic flows would be irrelevant. Sup-

pose maintenance of regular (as opposed to sporadic

and concentrated) vehicular traffic were the zoning

objective. From that standpoint, a church is more like a

movie theater, which also generates groups of people

coming and going at the same time, than like a

public library, which generates a smoother flow of traffic

throughout the day. The equal-terms provision would

therefore require the zoning authorities to allow the

church in the zone with the movie theater because the

church was more like the for-profit use (the movie the-

ater) than the not-for-profit use (the public library).

Parking space and traffic control are not the only con-

cerns of land-use regulation. Another is generating mu-

nicipal revenue and providing ample and convenient

shopping for residents, and can be promoted by setting

aside some land for commercial uses only, which generate

tax revenues. Hazel Crest has therefore created a com-

mercial district that excludes churches along with com-

munity centers, meeting halls, and libraries because these

secular assemblies, like churches, do not generate signifi-

14 No. 08-2819

cant taxable revenue or offer shopping opportunities. See

Robert C. Ellickson & Vicki L. Been, Land Use Controls:

Cases and Materials 90-91 (3d ed. 2005). Similar assemblies

are being treated the same. The permitted land use that is

most like the plaintiff’s is a commercial gymnasium, and

that’s not close enough because a commercial assembly

belongs in an all-commercial district and a noncom-

mercial assembly, secular or religious, does not.

Of course we can’t be certain, or even confident, that a

particular zoning decision was actually motivated by a

land-use concern that is neutral from the standpoint of

religion. But if religious and secular land uses that are

treated the same (such as the noncommercial religious

and secular land uses in the zoning district that River

of Life wants to have its church in) from the standpoint

of an accepted zoning criterion, such as “commercial

district,” or “residential district,” or “industrial district,”

that is enough to rebut an equal-terms claim and thus,

in this case, to show that River of Life is unlikely to

prevail in a full litigation. (Another section of the ordi-

nance—section 8.1(c), which provides that “no church

services may be conducted in any building designed for

a business use”—appears not to be at issue.)

Indeed, this case is straightforward because, after the

amendment to its zoning ordinance, Hazel Crest really

was applying conventional criteria for commercial zoning

in banning noncommercial land uses from a part of the

village suitable for a commercial district because of prox-

imity to the train station. We are likely to have cases in

the future challenging zoning ordinances that are harder

No. 08-2819 15

to classify, as variances and special-use permits and

grandfathered nonconforming uses blur the character of

particular zoning districts. But should a municipality

create what purports to be a pure commercial district

and then allow other uses, a church would have an

easy victory if the municipality kept it out.

If the test we are adopting seems less than airtight, bear

in mind that the equal-terms provision is not the only or

even the most important protection against religious

discrimination by zoning authorities. (Think of the reli-

gious clauses of the First Amendment.) It is not even

the only protection in the Religious Land Use and Institu-

tionalized Persons Act. For the Act provides that a land-

use regulation “that imposes a substantial burden on

the religious exercise of a . . . religious assembly or institu-

tion” is unlawful “unless the government demonstrates

that imposition of the burden . . . is in furtherance of a

compelling governmental interest; and is the least restric-

tive means of furthering that compelling governmental

interest.” 42 U.S.C. § 2000cc(a)(1); see World Outreach

Conference Center v. City of Chicago, 591 F.3d 531, 537-38

(7th Cir. 2009); Sts. Constantine & Helen Greek Orthodox

Church, Inc. v. City of New Berlin, supra, 396 F.3d at 901;

Westchester Day School v. Village of Mamaroneck, 504 F.3d

338, 352-53 (2d Cir. 2007). And it further provides that

“no government shall impose or implement a land use

regulation in a manner that discriminates against any

assembly or institution on the basis of religion or

religious denomination,” § 2000cc(b)(2); see Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533-

37 (1993); Bloch v. Frischholz, 587 F.3d 771, 783-87 (7th Cir.

16 No. 08-2819

2009) (en banc), or that “totally excludes religious assem-

blies from a jurisdiction.” § 2000cc(b)(3)(A). But as none

of these other provisions is before us on this appeal,

the appeal must fail.

A FFIRMED.

C UDAHY, Circuit Judge, with whom R OVNER, Circuit

Judge, joins, concurring. I join the majority opinion, as

well as the concurrence of Judge Williams, but offer

these comments with respect to the relation of

the proposed test to the Third Circuit test, which is

simpler—if arguably more subjective. As a general

matter, the equal-terms provision seems to be a some-

what mysterious and unprecedented device for pro-

viding an anti-discrimination requirement, without

incorporating the usual limiting characteristics of “dis-

crimination” as a traditional concept. Although

Congress may have intended to prescribe a standard

more open-ended than traditional “discrimination,” its

application, as a practical matter, requires, for reasons

suggested by the majority, some limitations to be pro-

vided by the judiciary. The Third Circuit’s requisite of

“regulatory purpose” may be imperfect, but I think it is

acceptable in the vast majority of cases and that this test

is generally appropriate. Although the majority opinion

does provide insights that are important and helpful,

I see little real contrast in basic approach or result be-

No. 08-2819 17

tween the Third Circuit and the majority analysis and

I would regard them both as equally valid. Ultimately,

I suspect that the practical distinction between “regulatory

purpose” and “regulatory criteria” may not be as pro-

nounced as the majority opinion suggests. In the last

analysis, the search by the different circuits for an

entirely objective test is probably in vain.

M ANION, Circuit Judge, concurring.

A.

This case is difficult not because of the facts, but

because of the hypotheticals. I agree with the court that

under the facts of this case, River of Life does not have

a likelihood of success on the merits of its Equal Terms

challenge. To be treated “on less than equal terms” a

church must be “equal” to a non-religious assembly

allowed under the zoning ordinance. At this point, River

of Life Church is not equivalent to any of the allowable

uses in Hazel Crest’s commercial district.1

1

For a while, River of Life had a strong argument that it was

treated on “less than equal terms” to non-religious assemblies

because Hazel Crest’s zoning ordinance originally allowed

(continued...)

18 No. 08-2819

The challenge before our court is crafting a standard

for analyzing all of the hypothetical Equal Terms cases

yet to come. The difficulty in this task is highlighted by

the fact that the court agrees with the outcomes of the

Third and Eleventh Circuit decisions in this area, but

finds neither circuit’s approach entirely satisfactory

(although the court also believes that, in application, the

different standards might yield similar or even identical

results). Opinion at 6. Judge Sykes in her dissent

foresees other problems with this court’s standard.

While I disagree with Judge Sykes’ conclusion that River

of Life was treated “on less than equal terms” of other

assemblies, her dissent persuasively identifies potential

flaws with the court’s standard, given the statutory text

and historical and legislative background to the Religious

1

(...continued)

meeting halls and community centers, which are likely com-

parable to a church under any standard of equivalency. But

after this lawsuit was filed, Hazel Crest amended its

ordinance and deleted those comparable uses. Deleting

meeting halls and community centers from the commercial

zone likely did not cause Hazel Crest much concern because

it does not appear that there were any developers jumping at

the chance to invest in such gathering places. In fact, at this

stage Hazel Crest’s revitalization plan is still in the hypothetical

stage; at the time of the original briefing in this case, Hazel Crest

was eight years into its revitalization plan and yet no new

businesses had located in the commercial district. The best

thing for Hazel Crest might well have been for River of Life to

take over the abandoned car wash, but the Village decided

otherwise.

No. 08-2819 19

Land Use and Institutionalized Persons Act. Even the

court acknowledges that the test is not “air tight” and that

future zoning cases will be harder to classify. Opinion

at 14-15. Given that the facts of this case do not lay a

solid foundation for crafting a universally governing

standard, it might be more prudent to resolve the straight-

forward case before us rather than speculating on how

to resolve a more difficult question in a future case.

B.

More discomforting is the court’s observation that if

religious beliefs excused an individual from compliance

with otherwise valid regulations, “this might be deemed

favoritism to religion and thus violate the establishment

clause,” and the court’s further statement that “[a]

subtler objection to the [Eleventh Circuit] test is that it

may be too friendly to religious land uses, unduly limiting

municipal regulation and maybe even violating the

First Amendment’s prohibition against establishment of

religion by discriminating in favor of religious land uses.”

Opinion at 6. Only dicta supports this statement. Sts.

Constantine & Helen Greek Orthodox Church, Inc. v. City of

New Berlin, 396 F.3d 895, 900 (7th Cir. 2005). In turn, Sts.

Constantine cites dicta from Westchester Day Sch. v. Village

of Mamaroneck, 386 F.3d 183, 189-90 (2d Cir. 2004). And

Westchester Day’s dicta relies solely on Justice Stevens

concurrence in City of Boerne v. Flores, 521 U.S. 507, 537

(1997) (Stevens, J., concurring). Another Supreme Court

concurrence, however, supports the view that the gov-

ernment may grant exemptions to religious observers

without violating the Establishment Clause. Wallace v.

20 No. 08-2819

Jaffree, 472 U.S. 38, 82 (1985) (O’Connor, J., concurring)

(“Even where the Free Exercise Clause does not compel

the government to grant an exemption, the Court has

suggested that the government in some circumstances

may voluntarily choose to exempt religious observers

without violating the Establishment Clause. See, e.g.,

Gillette v. United States, 401 U.S. 437, 453, 91 S.Ct. 828, 838,

28 L.Ed.2d 168 (1971); Braunfeld v. Brown, 366 U.S. 599, 81

S.Ct. 1144, 6 L.Ed.2d 563 (1961).”). Because there is no

need to delve into this complicated question (and one

which was not briefed) to resolve the case at hand, we

should not imply that religious exemptions violate

the Establishment Clause.

For these reasons, I concur.

W ILLIAMS, Circuit Judge, with whom C UDAHY and

R OVNER, Circuit Judges, join, concurring. I join the major-

ity in reaffirming that River of Life is not entitled to a

preliminary injunction, and I also join Judge Cudahy’s

concurrence. I write separately to reiterate my belief that

the Third Circuit’s “regulatory purpose” test adopted by

the original panel is the most appropriate application of

the equal-terms provision.

The original panel applied the Third Circuit’s approach

from Lighthouse Institute for Evangelism, Inc. v. City of

Long Branch, 510 F.3d 253 (3d Cir. 2007), reasoning that

No. 08-2819 21

differentiation between religious and non-religious as-

semblies under a zoning ordinance was insufficient to

establish an equal-terms violation unless the assemblies

had a comparable effect on the village’s regulatory pur-

pose. Thus, the question was simply whether the dif-

ferent treatment of a religious assembly and a non-reli-

gious assembly was consistent with the zoning ordinance’s

regulatory purpose. Here, the village’s regulatory

purpose in establishing the commercial zone was to

create a tax revenue-generating commercial district

centered near the mass transit area; because the church

was not similar to the non-religious entities permitted

in the zone—all of which were commercial in nature—the

panel found that the church had not been treated on

less than equal terms with the commercial non-religious

entities.

I have great respect for the majority’s attempt to carve

out a compromise between the Eleventh Circuit’s ap-

proach and that of the Third Circuit and original panel.

However, I still think the “regulatory purpose” test is the

best approach. The “regulatory purpose” test is simpler

and does not require federal judges to determine which

zoning districts fit within “accepted regulatory criteria”—

and indeed, what those accepted criteria are in the first

place. (Moreover, the majority’s opinion is unclear as to

how a judge should proceed with its equal-terms analysis

when presented with a unique, non-traditional zoning

scheme.) Second, to the extent that traditional zoning

classifications are important, a judge assessing a reg-

ulatory purpose already uses them as guidance. Finally,

the majority’s approach does not solve the problem it

22 No. 08-2819

perceives in the Third Circuit’s approach. Zoning officials

could just as easily use accepted criteria as a pretext

for action as they could articulate a regulatory purpose.

The “accepted regulatory criteria” test therefore presents

a risk of self-serving testimony just as the majority

believes the “regulatory purpose” approach would.

S YKES, Circuit Judge, dissenting. This is an important

religious-liberty case. We took it en banc to decide a

key question of statutory interpretation involving § 2(b)(1)

of the Religious Land Use and Institutionalized Persons

Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc(b)(1)—the

statute’s “equal terms” provision—and to resolve a

conflict the panel opinion created in our caselaw.

The circuits are divided over how to read this part of

RLUIPA. Until this case we had followed the Eleventh

Circuit’s interpretation of the equal-terms provision, first

announced in Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214 (11th Cir. 2004), and explained in Konikov

v. Orange County, 410 F.3d 1317 (11th Cir. 2005), and

Primera Iglesia Bautista Hispana of Boca Raton, Inc. v.

Broward County, 450 F.3d 1295 (11th Cir. 2006). See

Digrugilliers v. Consolidated City of Indianapolis, 506 F.3d

612, 616 (7th Cir. 2007); Vision Church v. Vill. of Long Grove,

468 F.3d 975, 1003 (7th Cir. 2006). The en banc court now

prefers the Third Circuit’s approach, announced in Light-

No. 08-2819 23

house Institute for Evangelism, Inc. v. City of Long Branch,

510 F.3d 253 (3d Cir. 2007), though in a slightly modified

form. This interpretation departs from the text, structure,

and history of RLUIPA, and the conflict in our circuit

caselaw remains. With respect, I cannot join the court’s

opinion. We were right in Vision Church and Digrugilliers

to follow the Eleventh Circuit’s lead; I would build on

that start, with some elaboration.

I.

The equal-terms provision of RLUIPA is straightfor-

ward. It prohibits governments from imposing or imple-

menting land-use regulations “in a manner that treats a

religious assembly or institution on less than equal terms

with a nonreligious assembly or institution.” 42 U.S.C.

§ 2000cc(b)(1). River of Life Kingdom Ministries is a

small evangelical Christian church with a community-

based mission aimed at uplifting the disadvantaged. The

church bought a building in the Village of Hazel Crest,

Illinois, and sought to move from a rented warehouse

in Chicago Heights to its new location in Hazel Crest.

The property formerly housed a car wash and is in a

struggling part of town known as “Hazel Crest Proper,”

which was zoned as a “B-2 Service Business District” under

the Village’s then-existing zoning ordinance. A wide

variety of commercial and retail uses were permitted

in this zone but not churches.

More specifically, the Hazel Crest zoning ordinance

authorized “[a]ll general commercial and retail uses” in

the B-2 District and also enumerated the following

24 No. 08-2819

specific permitted uses: art galleries; automobile service

stations; dry-cleaning establishments and laundries;

funeral parlors; gymnasiums, health clubs, and salons;

hotels and motels; laboratories; medical and dental

clinics; meeting halls; newspaper offices; business, profes-

sional, and public offices; resale or secondhand stores;

restaurants; taverns or cocktail lounges; and accessory

uses to the foregoing permitted uses. In addition, the

ordinance authorized certain “special uses” (by permit)

in the B-2 District: art galleries and museums; day-care

centers; schools of any kind; public libraries; parking

lots and storage garages; a variety of utility and public-

agency buildings; recreational buildings and community

centers; and taverns, cocktail lounges, and restaurants

featuring live entertainment. The ordinance also specifi-

cally prohibited church services from being held in any

“business use” building; this restriction was applicable

in all business districts in the village, including the B-2

District.

River of Life applied for a special-use permit to allow it

to move its church from Chicago Heights to its property

in Hazel Crest Proper, but this application was denied.

The church then sued Hazel Crest alleging a RLUIPA

equal-terms violation (among other statutory and con-

stitutional claims) and moved for a preliminary injunc-

tion. In the meantime the Village amended its zoning

ordinance in an apparent effort to cure the rather obvious

No. 08-2819 25

facial violation of RLUIPA’s equal-terms provision.1 The

amended ordinance removed certain secular assemblies

from the list of permitted and special uses authorized

in the B-2 District—meeting halls, art galleries, museums,

schools, libraries, recreational buildings, community

centers, and certain other secular assembly uses—but

continued to expressly permit commercial gymnasiums,

health clubs, and salons; hotels and motels; restaurants

and taverns; and day-care centers (as an allowed

“special use”). River of Life maintains that these

remaining permitted uses are “nonreligious assemblies”

within the meaning of § 2(b)(1) of RLUIPA, and that

allowing these uses in the B-2 District while excluding

churches like River of Life treats religious assemblies on

“less than equal terms” than “a nonreligious assembly

or institution” in violation of RLUIPA.

The district court denied River of Life’s motion for a

preliminary injunction. Relying on our decisions in Vision

Church and Digrugilliers, the court followed the Eleventh

Circuit’s interpretation of § 2(b)(1) and concluded that

River of Life had a “slight likelihood of success on the

merits.” But the court also held that this “slight likelihood”

was not enough to tip the balance of harms in the

church’s favor. River of Life appealed. A panel of this

court abandoned the Eleventh Circuit’s interpretation of

the equal-terms provision—previously approved in Vision

Church and Digrugilliers—and instead adopted that of the

1

The Village amended the ordinance after River of Life sued

and while the motion for a preliminary injunction was

pending before the district court.

26 No. 08-2819

Third Circuit in Lighthouse Institute. We ordered rehearing

en banc to address this shift in circuit caselaw and

because the interpretation of the equal-terms provision

is an important and recurring legal issue that has

divided the circuits and warranted the attention of the

full court.

II.

A.

The equal-terms provision is best understood not in

isolation but in the context of RLUIPA’s other protec-

tions for religious land uses and against the backdrop

of the decade-long tug of war between Congress and the

Supreme Court over the protection of religious liberty. See

Cutter v. Wilkinson, 544 U.S. 709, 714 (2005) (“RLUIPA is

the latest of long-running congressional efforts to

accord religious exercise heightened protection from

government-imposed burdens, consistent with this

Court’s precedents.”). RLUIPA was enacted in the wake

of City of Boerne v. Flores, which invalidated the

broader Religious Freedom Restoration Act of 1993

(“RFRA”), 42 U.S.C. §§ 2000bb et seq., as exceeding Con-

gress’s authority under § 5 of the Fourteenth Amend-

ment to enforce the limits on state power imposed by § 1

of the Amendment. 521 U.S. 507, 532-36 (1997); see also

Sts. Constantine & Helen Greek Orthodox Church, Inc. v.

City of New Berlin, 396 F.3d 895, 897-98 (7th Cir. 2005).

RFRA, in turn, had been adopted in response to the

Supreme Court’s decision in Employment Division v. Smith,

494 U.S. 872 (1990), which altered the prevailing strict-

No. 08-2819 27

scrutiny standard of Sherbert v. Verner, 374 U.S. 398 (1963),

applicable to laws that substantially burden the First

Amendment right to the free exercise of religion. See City

of Boerne, 521 U.S. at 512 (“Congress enacted RFRA in

direct response to the Court’s decision in Employment Div.,

Dept. of Human Resources of Oregon v. Smith.” (citation

omitted)).

Smith held that facially neutral and generally applicable

laws that burden free-exercise rights need not satisfy a

heightened standard of review—neither the compelling-

interest standard of Sherbert nor any more rigorous form

of review than the test for basic rationality that is ap-

plicable to all laws. 494 U.S. at 878-79. Three years later,

the Court clarified that “[f]acial neutrality [alone] is not

determinative. . . . Official action that targets reli-

gious conduct for distinctive treatment cannot be

shielded by mere compliance with the requirement of

facial neutrality.” Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah, 508 U.S. 520, 534 (1993). Without

retreating from Smith, the Court held in Lukumi that a

facially neutral, generally applicable law is subject to

strict scrutiny if it amounts to a “religious gerrymander”

or is enforced in a way that discriminates against religion

or targets a particular religious group or practice for

discriminatory treatment. Id. at 535-47; see also Bloch v.

Frischholz, 587 F.3d 771, 785-87 (7th Cir. 2009) (en banc). Of

course it remains true that “the minimum requirement of

[free-exercise] neutrality is that a law not discriminate on

its face.” Lukumi, 508 U.S. at 533. Finally, the Court reiter-

ated in Lukumi that a law permitting “ ‘individualized

governmental assessment of the reasons for the relevant

28 No. 08-2819

conduct’ ” is not considered “generally applicable.” Id. at

537 (quoting Smith, 494 U.S. at 884). In a regulatory

system where exemptions from otherwise applicable

rules are permitted, denying a religious-exercise exemp-

tion requires a compelling justification. Id.

While the Lukumi case was making its way to the Su-

preme Court, Congress was considering legislation in

response to the Court’s decision in Smith; RFRA was

enacted soon after the Court’s decision in Lukumi was

announced. RFRA restored the compelling-interest stan-

dard of Sherbert and applied broadly to all governmental

actions that substantially burdened free-exercise rights.

See City of Boerne, 521 U.S. at 515-16. In City of Boerne,

however, the Supreme Court invalidated the new

statute as exceeding Congress’s § 5 enforcement power.

The Court drew a distinction between laws that remedy

or prevent constitutional violations and laws that

attempt to “determine what constitutes a constitutional

violation.” Id. at 519. Only the former are valid uses

of the § 5 enforcement power. Id. Laws enacted under § 5,

the Court said, require “a congruence and proportionality

between the [constitutional] injury to be prevented or

remedied and the means adopted to that end.” Id. at 520.

Based on the sheer breadth of the statute as well as the

inadequacy of the legislative record supporting it, the

Court concluded that “RFRA is so out of proportion to

a supposed remedial or preventive object that it cannot

be understood as responsive to, or designed to prevent,

unconstitutional behavior. It appears, instead, to attempt

a substantive change in constitutional protections.” Id.

at 532.

No. 08-2819 29

So Congress went back to the drawing board, narrowed

its focus, and began compiling a legislative record of free-

exercise violations in two discrete areas: laws affecting

land use by religious organizations and laws affecting

the religious exercise of institutionalized persons.

RLUIPA was the result of this effort and was adopted in

2000, three years after the Court decided City of Boerne.2

For more on this history, see generally, Sarah Keeton

Campbell, Note, Restoring RLUIPA’s Equal Terms

Provision, 58 D UKE L. J. 1071, 1076-85 (2009); Patricia E.

Salkin & Amy Lavine, The Genesis of RLUIPA and

Federalism: Evaluating the Creation of a Federal Statutory

Right and Its Impact on Local Government, 40 U RB. L AW. 195,

205-08 (2008); Roman P. Storzer & Anthony R. Picarello,

Jr., The Religious Land Use and Institutionalized Persons Act

of 2000: A Constitutional Response to Unconstitutional

Zoning Practices, 9 G EO. M ASON L. R EV. 929, 931-44 (2001);

Douglas Laycock, State RFRAs and Land Use Regulation,

32 U.C. D AVIS L. R EV. 755, 770-82 (1999).

B.

RLUIPA stipulates that the use of real property for

religious purposes is a form of “religious exercise,” see 42

U.S.C. § 2000cc-5(7)(B) (“[t]he use, building, or conversion

of real property for the purpose of religious exercise shall

be considered to be religious exercise of the person or

2

RLUIPA’s land-use provision is found in § 2 of the Act,

codified at 42 U.S.C. § 2000cc; its institutionalized-persons

provision is in § 3, codified at 42 U.S.C. § 2000cc-1.

30 No. 08-2819

entity that uses or intends to use the property for that

purpose”), and codifies several strands of First Amend-

ment free-exercise jurisprudence. See World Outreach

Conference Ctr. v. United States, 591 F.3d 531, 533-35 (7th

Cir. 2009); see also 146 C ONG. R EC. S7774-S7775 (joint

statement of Sen. Hatch and Sen. Kennedy) (“The right

to build, buy, or rent [in] a [physical] space is an indis-

pensable adjunct of the core First Amendment right

to assemble for religious purposes. . . . Each [of RLUIPA’s

land-use] subsection[s] closely tracks the legal standards

in one or more Supreme Court opinions, codifying those

standards for greater visibility and easier enforceability.”).

More specifically, RLUIPA’s land-use provision recog-

nizes that land-use regulation can interfere with religious-

exercise rights in a variety of ways and creates statutory

remedies for several different kinds of free-exercise

wrongs:

§ 2000cc. Protection of land use as religious exercise

(a) Substantial burdens

(1) General rule

No government shall impose or implement a

land use regulation in a manner that imposes a

substantial burden on the religious exercise of a

person, including a religious assembly or institu-

tion, unless the government demonstrates that

imposition of the burden on that person, assembly,

or institution—

(A) is in furtherance of a compelling govern-

mental interest; and

No. 08-2819 31

(B) is the least restrictive means of furthering

that compelling governmental interest.

....

(b) Discrimination and exclusion

(1) Equal terms

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 nonreli-

gious assembly or institution.

(2) Nondiscrimination

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.

(3) Exclusion and limits

No government shall impose or implement a

land use regulation that—

(A) totally excludes religious assemblies from

a jurisdiction; or

(B) unreasonably limits religious assemblies,

institutions, or structures within a jurisdiction.

42 U.S.C. § 2000cc (emphasis added).

Subsection (a) of § 2000cc—the “substantial burdens”

prohibition—enforces the Free Exercise Clause right to be

free from state action that substantially interferes with

the practice of religion without compelling justification.

This provision codifies the Sherbert standard to the extent

32 No. 08-2819

permitted by Smith and Lukumi. That is, where a land-

use regime permits individualized exemptions from

regulatory restrictions—and almost all of them do—the

government must have a compelling justification for

denying an exemption from a restriction that sub-

stantially burdens the exercise of religion. Stated differ-

ently, a government “ ‘that has a system for granting

individual exemptions from a general [land-use] rule

must have a compelling reason to deny a religious group

an exemption that is sought on the basis of hardship or,

in the language of the . . . Act, of a substantial burden

on . . . religious exercise.’ 3 ” World Outreach, 591 F.3d at 534

3

The reference to a “system” of land-use regulation that

provides for “individual exemptions” incorporates the proviso

contained in 42 U.S.C. § 2000cc(a)(2)(C), which states:

This subsection applies in any case in which . . . the substan-

tial burden is imposed in the implementation of a land use

regulation or system of land use regulations, under which

a government makes, or has in place formal or informal

procedures or practices that permit the government to

make, individualized assessments of the proposed uses

for the property involved.

This qualifier limits the scope of RLUIPA’s “substantial bur-

dens” subsection and derives from Smith. 494 U.S. at 884; see

also Lukumi, 508 U.S. at 537 (“As we noted in Smith, in circum-

stances in which individualized exemptions from a general

requirement are available, the government may not refuse to

extend that system to cases of ‘religious hardship’ without

compelling reason.” (internal quotation marks omitted)). Its

presence in § 2(a) of RLUIPA keeps this part of the statute in

line with the Supreme Court’s free-exercise jurisprudence

(continued...)

No. 08-2819 33

(quoting City of New Berlin, 396 F.3d at 897) (internal

quotation marks omitted).

Subsection (b) of § 2000cc enforces the Free Exercise

Clause right to be free from state action that discriminates

on the basis of religion or religious practice, or discrimi-

nates among or between religions. The remedies

provided in subsection (b) do not require proof that

the challenged state action amounts to a “substantial

burden” on religious exercise. This subsection is divided

into three parts. Subsection (b)(1) is the equal-terms

provision, at issue here. It codifies a particular kind of

equality principle: No land-use regulation may treat “a

religious assembly or institution” on “less than equal

terms” than “a nonreligious assembly or institution.” 42

U.S.C. § 2000cc(b)(1). Subsection (b)(2) states a more gen-

eral antidiscrimination rule; it prohibits the imposi-

tion or implementation of a land-use regulation that “dis-

criminates against an assembly or institution on the basis

of religion or religious denomination.” Id. § 2000cc(b)(2).

Subsection (b)(3) prohibits land-use regulations that

operate to “totally exclude” a religious assembly from

3

(...continued)

and sustains Congress’s use of its § 5 power. World Outreach

Conference Ctr. v. United States, 591 F.3d 531, 534 (7th Cir. 2009).

RLUIPA also expressly invokes the Spending and Commerce

Clause powers—the latter through the device of a jurisdictional

element requiring that the burden in question affect inter-

state commerce. See id. at 533-34; 42 U.S.C. § 2000cc(a)(2)(A), (B).

We have not had occasion to consider the constitutionality of

§ 2(b) of RLUIPA; Hazel Crest does not challenge its constitu-

tionality in this case.

34 No. 08-2819

a jurisdiction or “unreasonably limit” a religious

assembly, institution, or structure within a jurisdiction.

Id. § 2000cc(b)(3)(A), (B).

There is some obvious overlap in these statutory provi-

sions. A land-use regulation that “totally excludes” a

religious assembly from a jurisdiction in violation of

subsection (b)(3) will also likely be a “substantial burden”

on the religious assembly in violation of subsection (a)(1).

A “substantial burden” on a religious assembly might

also be discriminatory in violation of subsection (b)(2).

But each of RLUIPA’s land-use subsections captures a

distinct kind of free-exercise harm and must be given its

own force and effect. See Conn. Nat’l Bank v. Germain,

503 U.S. 249, 253 (1992) (“Redundancies across statutes

are not unusual events in drafting, and so long as there

is no positive repugnancy between two laws . . . , a court

must give effect to both.” (internal quotation marks

and citation omitted)); see also City of New Berlin, 396

F.3d at 900; Civil Liberties for Urban Believers v. City of

Chicago, 243 F.3d 752, 762 (7th Cir. 2003) (RLUIPA’s land-

use provisions are “operatively independent of one

another.”).

C.

The equal-terms provision appears first in RLUIPA’s

list of remedies for “[d]iscrimination and exclusion” but

is not phrased as a general antidiscrimination rule.

RLUIPA has one of those; § 2000cc(b)(2) contains general

antidiscrimination language prohibiting governments

from imposing or implementing any land-use regulation

No. 08-2819 35

that “discriminates against any assembly or institution

on the basis of religion or religious denomination.” (Empha-

sis added.) The language of the equal-terms provision

is different; it prohibits governments from imposing or

implementing 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.” 42 U.S.C.

§ 2000cc(b)(1) (emphasis added). This language is plain.

To prove an equal-terms violation, a plaintiff “religious

assembly or institution” need only establish that the

challenged land-use regulation treats it on “less than

equal terms with a nonreligious assembly or institu-

tion.” There is no requirement that the challenged regula-

tion (or the regulatory authority that adopted or enforced

it) have a discriminatory purpose or motive or evince

antireligious bias. This contrasts with the antidis-

crimination provision contained in § 2000cc(b)(2), which

targets regulations that discriminate “on the basis of reli-

gion.” (Emphasis added.) Accordingly, a land-use reg-

ulation that on its face or in its operative effect or ap-

plication treats a religious assembly or institution less

well than a nonreligious assembly or institution will

violate the equal-terms provision even if it was adopted

or implemented for reasons unrelated to religious dis-

crimination.

III.

A.

The Eleventh Circuit was the first to consider the scope

of the equal-terms provision and has the most extensive

36 No. 08-2819

body of caselaw interpreting and applying this part

of RLUIPA. In Midrash Sephardi the Eleventh Circuit held

that although the equal-terms provision “has the ‘feel’ of

an equal protection law, it lacks the ‘similarly situated’

requirement usually found in equal protection analysis.”

366 F.3d at 1229. Accordingly, the court declined to

import a “similarly situated comparator” requirement

into RLUIPA equal-terms analysis. Instead, the court

said, the equal-terms provision has a more “direct and

narrow focus” and by its terms requires the court to

evaluate whether the challenged land-use regulation

treats a “religious assembly or institution” on “less than

equal terms” than “a non-religious assembly or institu-

tion.” Id. at 1230. Because RLUIPA does not define “as-

sembly” or “institution,” the court consulted dictionary

definitions and concluded that “a natural and ordinary

understanding of ‘assembly’ [i]s a group gathered for a

common purpose.” Id. at 1231. The zoning ordinance at

issue in Midrash Sephardi permitted private clubs and

lodge halls in the municipality’s business district but

excluded churches and synagogues. Because private

clubs and lodge halls were commonly understood as

secular “assemblies” and were permitted in the zone

while churches and synagogues were excluded, the

Midrash Sephardi court concluded that the challenged

ordinance facially violated the equal-terms provision. Id.

The court took the analysis a step further, however, and

applied strict scrutiny to the statutory violation.

“RLUIPA’s equal terms provision codifies the Smith-

Lukumi line of precedent,” the court reasoned, so “a

violation of § (b)’s equal treatment provision, consistent

No. 08-2819 37

with the analysis employed in Lukumi, must undergo

strict scrutiny.” Id. at 1232. The municipality’s proffered

justification for excluding churches and synagogues

from the business district—the “interests of retail syn-

ergy”—flunked the compelling-interest test. Id. at 1235.

The Eleventh Circuit completed its analysis in Midrash

Sephardi by considering whether the equal-terms pro-

vision was a permissible use of Congress’s § 5 enforce-

ment power as understood in City of Boerne. The court

concluded that it was, largely because the equal-terms

provision codified the Supreme Court’s Free Exercise

Clause jurisprudence. Id. at 1236-40 (holding that

§ 2000cc(b)(1) reflects free-exercise jurisprudence and

is consistent with existing Equal Protection and Estab-

lishment Clause caselaw).

In two subsequent cases, the Eleventh Circuit elaborated

on Midrash Sephardi and adapted its analysis to “as ap-

plied” challenges under the equal-terms provision. See

Primera Iglesia, 450 F.3d at 1307-08; Konikov, 410 F.3d at

1324-28. Primera Iglesia—the more recent of the two

cases—offered this summary of the circuit’s approach

to RLUIPA equal-terms cases:

Based on a review of our case law construing the

Equal Terms provision and reviewing closely related

Supreme Court precedent arising under the Free

Exercise Clause of the First Amendment, we can

discern at least three distinct kinds of Equal Terms

statutory violations: (1) a statute that facially differ-

entiates between religious and nonreligious assem-

blies or institutions; (2) a facially neutral statute that

is nevertheless “gerrymandered” to place a burden

38 No. 08-2819

solely on religious, as opposed to nonreligious, assem-

blies or institutions; or (3) a truly neutral statute that

is selectively enforced against religious, as opposed

to nonreligious assemblies or institutions.

450 F.3d at 1308. In the first two types of claims, the equal-

terms provision focuses on the content of the challenged

land-use regulation to determine whether it expressly

treats a religious assembly or institution on less than

equal terms than a nonreligious assembly or institution,

or was “gerrymandered” so that its unequal effect falls

almost entirely on a religious assembly or institution, as

in Lukumi. Id. at 1308-09. In an as-applied “selective

enforcement” claim, however, the court held that an equal-

terms plaintiff will generally be required to identify a

similarly situated nonreligious assembly or institution

that was treated more favorably. Id. at 1311; Konikov,

410 F.3d at 1327-29.

B.

We have cited Midrash Sephardi, Konikov, and Primera

Iglesia with approval and specifically followed the

Eleventh Circuit’s approach in two prior cases. See

Digrugilliers, 506 F.3d at 616; Vision Church, 468 F.3d at

1002-03. The claimant in Vision Church maintained (among

other statutory and constitutional claims) that a special-

use permit requirement in a local zoning ordinance vio-

lated RLUIPA’s equal-terms provision. To resolve this

claim, we relied on the Eleventh Circuit’s decision in

Konikov, noting first that as a general matter, there was

no need to identify a “similarly situated” nonreligious

No. 08-2819 39

land use for comparison against the religious claimant.

“ ‘For purposes of a RLUIPA equal terms challenge, the

standard for determining whether it is proper to

compare a religious group to a nonreligious group is not

whether one is “similarly situated” to the other, as in our

familiar equal protection jurisprudence.’ ” Vision Church,

468 F.3d at 1002-03 (quoting Konikov, 410 F.3d at 1324).

We looked instead to the text of the equal-terms provi-

sion to find the relevant comparison: “[T]he pertinent

question is whether the ‘land use regulation . . . treats a

religious assembly or institution on less than equal terms

with a nonreligious assembly or institution.’ ” Id. at 1003.

Vision Church then quoted at length from the passage

in Primera Iglesia summarizing the three ways in which

RLUIPA’s equal-terms provision might be violated. Id.

(quoting Primera Iglesia, 450 F.3d at 1308). Because the

permit requirement at issue in Vision Church was facially

neutral, did not “target religion through religious ‘gerry-

mandering,’ ” and had not been selectively enforced

against the claimant church, there was no equal-terms

violation. Id.

Digrugilliers built on Vision Church and is very much like

this case. In Digrugilliers a municipal zoning ordinance

excluded churches from a commercial district but permit-

ted a variety of other secular assemblies, including audito-

riums, assembly halls, community centers, senior centers,

day-care centers, art galleries, civic clubs, and libraries.

506 F.3d at 614-15. A Baptist minister sued, claiming

an equal-terms violation, and like River of Life, moved

for a preliminary injunction. The district court denied the

motion and the minister appealed. Like the Village of

Hazel Crest here, the municipality in Digrugilliers

40 No. 08-2819

argued that the exclusion of churches from the com-

mercial district was justified because churches would

inhibit commercial development within the zone. As

additional support for this argument, the municipality

noted that state law prohibited the sale of alcohol or

pornography within 200 and 500 feet, respectively, of a

church. We reversed, relying on Vision Church and the

Eleventh Circuit’s decisions in Primera Iglesia and Midrash

Sephardi. Id. at 616. We focused not on the economic-

development objectives of the municipality but on

the ordinance’s facial differentiation between religious

and nonreligious assemblies, and dismissed the munici-

pality’s reliance on state laws protecting churches from

incompatible adjacent land uses. We said: “Government

cannot, by granting churches special privileges ( . . . the

right of a church to be free from offensive land uses in

its vicinity), furnish the reason for excluding churches

from otherwise suitable districts.” Id. We concluded in

Digrugilliers that the minister’s equal-terms claim had

“at least some, and possibly great, merit,” id. at 618,

and remanded for application of the remaining

preliminary-injunction criteria.

C.

After our decisions in Vision Church and Digrugilliers, the

Third Circuit weighed in on the equal-terms provision,

disagreeing with the Eleventh Circuit and requiring all

equal-terms plaintiffs to identify a similarly situated

nonreligious assembly or institution for comparison; the

“similarity” between the claimant and the comparator,

moreover, was to be evaluated by reference to the “pur-

No. 08-2819 41

pose” of the regulation. More specifically, in Lighthouse

Institute a divided Third Circuit panel held that “a

[land use] regulation will violate the Equal Terms provi-

sion only if it treats religious assemblies or institutions

less well than secular assemblies or institutions that are

similarly situated as to the regulatory purpose.” 510 F.3d

at 266.

IV.

A.

My colleagues change course from our previous adher-

ence to the Eleventh Circuit’s interpretation of the equal-

terms provision, though they do so while leaving

Digrugilliers and Vision Church in place.4 The en banc

4

The court says Digrugilliers and Vision Church merely “cited

Midrash without criticism but [were] not . . . centrally concerned

with the interpretive issue presented in this case.” Majority

op. at 5. These opinions cannot be dismissed so easily. As

I have explained, Vision Church and Digrugilliers invoked the

Eleventh Circuit’s interpretation with approval and specifically

followed it; together, the opinions cite not just Midrash

Sephardi but also Konikov and Primera Iglesia. It is true, as my

colleagues have noted, that the decision in Vision Church went

against the plaintiff church, but that does not make the opin-

ion’s analytical approach inapplicable here. Digrugilliers is

contextually quite close to this case; the court’s decision here

cannot be reconciled with the decision in that case. Indeed,

based on Vision Church (and to a lesser extent, Digrugilliers), the

Third Circuit counts us as aligned with the Eleventh Circuit on

(continued...)

42 No. 08-2819

court adopts the Third Circuit’s approach, albeit with a

slight “shift of focus.” Majority op. at 9. I think this is

a mistake. The Third Circuit’s interpretation departs

from the text of the equal-terms provision and from the

structure of RLUIPA’s land-use provisions read as a

whole. It conflates the specific protections contained in

the equal-terms provision with the more general

antidiscrimination rule contained in subsection (b)(2).

On the Third Circuit’s understanding, there is no differ-

ence in the two provisions. See Corley v. United States,

129 S. Ct. 1558, 1566 (2009) (“[O]ne of the most basic

interpretive canons [is] that [a] statute should be

construed so that effect is given to all its provisions, so

that no part will be inoperative or superfluous, void or

insignificant.” (internal quotation marks omitted)).

Tellingly, the Lighthouse Institute majority did not try to

make an argument for its interpretation from the text and

structure of the statute. Instead, the court rested its

holding on a reading of the Supreme Court’s free-exercise

caselaw—in particular, on Smith and Lukumi. 510 F.3d

at 264-66. These cases, the court held, call for a narrow

interpretation of the equal-terms provision, one that

focuses on the negative effect of the religious land use

on the zoning authority’s objectives. The Third Circuit

thus requires an equal-terms plaintiff to “show that it

4

(...continued)

the interpretation of the equal-terms provision. Lighthouse

Institute, 510 F.3d at 268, 271 & n.15. This case can only be

understood as a repudiation of Vision Church and Digrugilliers.

No. 08-2819 43

was treated less well than a nonreligious comparator

that had an equivalent negative impact on the aims of

the land-use regulation.” Id. at 270. My colleagues sub-

stitute “accepted zoning criteria” for regulatory “aims” or

“purposes,” majority op. at 9-10, but otherwise the test

is the same. This minor shift in focus changes nothing

of significance. The distinction between “accepted

zoning criteria” and the “regulatory purpose” of exclu-

sionary zoning is nonexistent or too subtle to make any

difference in individual equal-terms cases. Zoning deci-

sions are always tied to accepted land-use “criteria.”

Regardless, under either formulation, the test dooms

most, if not all, equal-terms claims. Zoning authorities

will have little difficulty articulating their objectives in

such a way as to prevent an excluded religious as-

sembly from identifying a better-treated nonreligious

comparator that has an equivalent negative effect on

either the “purpose” or the “criteria” of the challenged

land-use regulation. Routine “economic development”

and “tax-enhancement” objectives—which can be charac-

terized as “regulatory purposes” or “accepted zoning

criteria”—will immunize the exclusion of religious land

uses from commercial, business, and industrial districts

because religious assemblies do not advance these objec-

tives and for-profit secular assemblies do. Traffic

control, density management, and noise-reduction ob-

jectives will tend to immunize the exclusion of religious

land uses from residential districts because religious

land uses may be inconsistent with these purposes or

criteria in ways that secular assembly uses are not.

Indeed, the municipality’s very generic objectives in

Lighthouse Institute—to create a “retail main street” and a

44 No. 08-2819

“modern entertainment-oriented district”—were suf-

ficient to prevent the plaintiff church from meeting

the Third Circuit’s similarly situated test.5 Id. at 270-71

(internal quotation marks omitted).

The Lighthouse Institute majority thought its reading

of the equal-terms provision was required by Smith and

5

My colleagues have omitted a key detail about the Third

Circuit’s application of its “similarly situated” test. See Majority

op. at 3-4. In Lighthouse Institute (as in this case), the municipal

defendant changed its zoning ordinance during the litigation,

leaving the plaintiff church with a claim for injunctive re-

lief against the new ordinance—referred to as “The Redevelop-

ment Plan” or simply the “Plan”—and a very limited damages

claim for the period between the church’s “application for a

waiver [from the terms of the old ordinance] and the enact-

ment of the Plan.” 510 F.3d at 273. The Third Circuit rejected

the church’s equal-terms claim against the new ordinance,

ordering summary judgment for the municipal defendant

because there was “no evidence” that “the Plan treats a

religious assembly on less than equal terms with a secular

assembly that would cause an equivalent negative impact on

[the municipality’s] regulatory goals.” Id. at 272. True, the

court did order summary judgment for the church on what

was left of its claim against the old ordinance, but the remedy

was necessarily quite limited: monetary damages for the time

period leading up to the enactment of the new zoning plan.

Id. The court did not say how these damages should be mea-

sured. The upshot of the Lighthouse Institute decision, read as

a whole, is that the core of the church’s equal-terms claim—

which sought relief from the land-use regulatory scheme that

was preventing it from locating in a downtown commercial

district—failed.

No. 08-2819 45

Lukumi, but I disagree. There is no “similarly situated”

requirement in the Supreme Court’s free-exercise jurispru-

dence; neither Smith nor Lukumi suggests a need to graft

such a requirement onto the equal-terms provision. As

the Eleventh Circuit held in Primera Iglesia and we noted

with approval in Vision Church, to the extent that

RLUIPA’s equal-terms provision parallels the Supreme

Court’s free-exercise jurisprudence, three kinds of viola-

tions are contemplated: (1) facial violations (land-

use regulations that by their terms treat a religious as-

sembly less well than a secular assembly); (2) religious

gerrymanders (facially neutral regulations designed or con-

structed to affect only religious assemblies or a par-

ticular religious practice); and (3) as-applied violations

(facially neutral regulations that are selectively enforced

against religion or a particular religious practice).

This understanding is fully consistent with Lukumi,

which—as we recently noted in our en banc decision in

Bloch—held that Smith’s facial-neutrality-and-general-

applicability standard is not necessarily the end-game in-

quiry in Free Exercise Clause cases. Bloch, 587 F.3d at 785-

87. In some cases it might be; a law that is not facially

neutral and generally applicable is invalid unless

justified by a compelling governmental interest. But even

a facially neutral law of general applicability might be

discriminatory in violation of the Free Exercise Clause

because of its design, operation, or effect, or in the manner

in which it is enforced. That was the point of Lukumi, as

we recognized in Bloch. Accordingly, the free-exercise

neutrality inquiry starts with the text of the challenged

law or regulation and proceeds from there to its operative

46 No. 08-2819

effect, and finally, to its application. Lukumi, 508 U.S. at

535 (“Apart from the text, the effect of a law in its real

operation is strong evidence of its object.”). If a law lacks

neutrality or general applicability in any of these

respects, “it is invalid unless it is justified by a com-

pelling interest and is narrowly tailored to advance that

interest.” Id. at 533.

Perhaps in an as-applied challenge one acceptable

method of proof might involve the identification of a

specific, better-treated, similarly situated comparator, as

the Eleventh Circuit has held. See Konikov, 410 F.3d at 1327-

29. That would make sense if the challenged regulation

is truly neutral on its face and in effect, and the plaintiff

contends instead that it was applied less than equally.

But nothing in Smith or Lukumi requires a plaintiff to do

this—certainly not in a case raising a facial free-exercise

challenge, and not necessarily in a religious-gerrymander

claim either, as the dissent in Lighthouse Institute ex-

plained. See 510 F.3d at 291-92 (Jordan, J., dissenting). On

the Third Circuit’s interpretation of the equal-terms

provision, which is now this circuit’s as well, the categori-

cal exclusion of religious assemblies from a zone is ac-

ceptable—notwithstanding the inclusion of one or more

secular assembly uses—as long as the included uses

serve the regulatory purposes or criteria and religious

uses do not. This eviscerates the equal-terms provision;

in its practical effect, this test will defeat all facial equal-

terms claims and perhaps most religious-gerrymander

and as-applied challenges as well.

No. 08-2819 47

B.

My colleagues have included an extensive explanation

of the land-use policies underlying the modern practice

of exclusive zoning, and in particular the regulatory

justifications for separating commercial from noncom-

mercial land uses. See Majority op. at 10-14. This discussion

suggests that the commercial (for-profit, tax-generating)

character of the activity in a business district is enough

by itself to justify excluding religious land uses. Indeed,

when it comes time to apply the restated equal-terms

test—comparing River of Life to secular land uses that are

“similarly situated” in relation to “accepted zoning crite-

ria”—the court notes that “Hazel Crest has . . . created

a commercial district that excludes churches along with

community centers, meeting halls, and libraries because

these secular assemblies, like a church, do not generate

significant taxable revenue.” Majority op. at 13-14. The

court thus concludes that “[s]imilar assemblies are being

treated the same. The permitted land use that is most like

the plaintiff’s is a commercial gymnasium, and that’s not

close enough because a commercial assembly belongs in

an all-commercial district and a noncommercial as-

sembly, secular or religious, does not.” Id. at 14.

There are a couple of reasons why this analysis is

flawed. First, the unmistakable implication is that com-

paring the excluded religious assembly to a permitted

commercial—i.e., for-profit—assembly is either categor-

ically improper or will always defeat the claim. But

nothing in the text of the equal-terms provision presump-

tively rules out using commercial secular assemblies

48 No. 08-2819

and institutions for equal-terms comparison just because

they are commercial and therefore “belong” in a com-

mercial district. 6 Second, the focus on other excluded

assemblies has the analysis backward. A decision

method that justifies excluding religious assemblies

from a zone because nonreligious assemblies are also

excluded turns the equal-terms provision on its head. The

equal-terms provision is a remedy against exclusionary

zoning; reading it to require equality of treatment with

excluded secular assemblies—rather than included

secular assemblies—gives religious assemblies no

remedy at all. The statute plainly requires religious-

group equality with permitted secular assemblies, not

excluded secular assemblies.

***

6

Apart from the lack of textual support for this mode of

analysis, RLUIPA’s legislative history strongly contemplates a

remedy for the exclusion of religious assemblies from zones

where for-profit assemblies are permitted. See 146 C ONG . R EC .

S7774 (2000) (joint statement of Sen. Hatch and Sen. Kennedy)

(noting that zoning codes “frequently exclude churches in

places where [the government] permit[s] theaters, meeting

halls, and other places where large groups of people assemble

for secular purposes”); see also id. S7774-75 (“Churches have

been excluded from residential zones because they generate

too much traffic, and from commercial zones because they

don’t generate enough traffic. Churches have been denied the

right to meet in rented storefronts, in abandoned schools, in

converted funeral homes, theaters, and skating rinks—in

all sorts of buildings that were permitted when they

generated traffic for secular purposes.”).

No. 08-2819 49

In the end, the court’s emphasis on the police-power

legitimacy of exclusionary zoning evinces a degree of

deference toward land-use regulation that is fundamen-

tally inconsistent with RLUIPA and the First Amend-

ment’s guarantee of the right of free religious exercise.7

7

My colleagues retreat from the Eleventh Circuit’s interpreta-

tion of the equal-terms provision in part because they think it

too “literal” and would if “[p]ressed too hard” impermissibly

“give religious land uses favored treatment.” Majority op. at 4.

The court suggests that the Eleventh Circuit “added its ‘strict

scrutiny’ gloss” in order “to avoid making its test overprotect

religious assemblies in comparison to their closest secular

counterparts,” thereby “solv[ing] a problem of the court’s

own creation.” Id. at 7-8. I think this misreads the caselaw.

Midrash Sephardi held that RLUIPA is permissible § 5 remedial

legislation to the extent that it codifies the Supreme Court’s

First Amendment free-exercise jurisprudence—specifically

Smith and Lukumi. 366 F.3d at 1236-40. The Eleventh Circuit

imported strict scrutiny not to “solve a problem of its own

creation” but to conform the statute to Lukumi and Smith. Id. at

1232. As a doctrinal matter, the concern about “overprotecting”

religious land uses is overstated. See generally, Michael W.

McConnell, The Problem of Singling Out Religion, 50 D E P AUL L.

R EV . 1, 11 (“[T]he question of singling out religion is not one

of ‘privilege’ but rather one of balance. The Free Exercise and

Establishment Clauses serve a complementary function: to

reduce the power of government over religion, whether to

help, hurt, or control . . . .”). The Supreme Court has upheld § 3

of RLUIPA (the institutionalized-persons provision) against

a claim that it impermissibly accommodates religion. See

Cutter v. Wilkinson, 544 U.S. 709, 719-20 (2005) (“[W]e hold that

(continued...)

50 No. 08-2819

The presumptive validity of exclusionary zoning under

Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926),

is a presumption of validity against property-rights

claims, which trigger only the very deferential rational-

basis standard of scrutiny. Laws that burden free-exercise

rights are not reviewed so leniently—not, that is, unless

the law is truly neutral on its face, in its operative effect,

and in its enforcement. The equal-terms provision

reflects a congressional judgment about state and local

regulation of religious land uses: Regulations that treat

religious assemblies or institutions less well than nonreli-

gious assemblies or institutions are inherently not neu-

tral. The modified Third Circuit test adopted by my

colleagues displaces this congressional judgment.

V.

A.

I think we should pick up where we left off in Vision

Church and Digrugilliers and build on that foundation. The

equal-terms provision is clear and supplies its own deci-

sional methodology. The Eleventh Circuit correctly

reads the provision textually, without glossing it with an

artificial “similarly situated comparator” requirement

7

(...continued)

§ 3 of RLUIPA fits within the corridor between the Religion

Clauses: On its face, the Act qualifies as a permissible legisla-

tive accommodation of religion that is not barred by the

Establishment Clause.”).

No. 08-2819 51

that is more appropriate to ferreting out religious or

sectarian animus. The statute itself selects the relevant

comparison for making the “less than equal” determina-

tion: A land-use regulation (or land-use regulator) may

not treat a “religious assembly or institution” less well

than “a nonreligious assembly or institution.” If the

challenged regulation prohibits a religious assembly or

institution from locating in a zone, then the pertinent

question for equal-terms purposes is whether the reg-

ulation permits a secular “assembly” or “institution” to

locate in the zone.

The terms “assembly” and “institution” are not defined

in the statute, but they are not ambiguous in this context.

A dictionary definition will give us enough meaning to

decide most cases. See FDIC v. Meyer, 510 U.S. 471, 476

(1994) (“In the absence of a [statutory] definition, we

construe a statutory term in accordance with its

ordinary or natural meaning.”). No doubt some uncer-

tainty will remain at the margins; it’s easy to say that a

“meeting hall” is an “assembly” but harder to decide

whether a restaurant or a hotel is as well. What the

statute requires is a modest limiting principle that will

resolve problems of vagueness in particular applications

without altering the congressional command.

Midrash Sephardi looked to the standard- and law-dic-

tionary definitions, and that’s a good start. An “assembly”

is “a group of persons gathered together, usually for a

particular purpose, whether religious, political, educa-

tional, or social.” W EBSTER’S E NCYCLOPEDIC U NABRIDGED

D ICTIONARY OF THE E NGLISH L ANGUAGE 125 (1996).

52 No. 08-2819

Black’s Law Dictionary defines “assembly” as “[a] group

of persons organized and united for some common pur-

pose.” B LACK’S L AW D ICTIONARY 132 (9th ed. 2009). An

“institution” is “an organization, establishment, founda-

tion, society, or the like, devoted to the promotion of a

particular cause or program, esp. one of a public, educa-

tional, or charitable character,” W EBSTER’S E NCYCLOPEDIC

U NABRIDGED D ICTIONARY 988, or simply “[a]n established

organization, esp. one of a public character,” B LACK’S

L AW D ICTIONARY 869.

Only “assembly” uses are at issue here. After this

lawsuit was filed, Hazel Crest amended its zoning ordi-

nance to remove some of the most obvious secular assem-

blies from among the permitted uses in the B-2 zone—

meeting halls, libraries, community centers, and the

like. But the amended ordinance continues to permit

hotels, motels, gymnasiums, health clubs, salons, restau-

rants, and taverns in the B-2 district; day-care centers

are also included as an authorized special use. These

establishments are harder to classify. Each one is a place

where people assemble for a common purpose—having

a meal at a restaurant, for example, or a drink at a tavern.

But the ordinary understanding of the term “assembly”

requires more; it requires a degree of group affinity,

organization, and unity around a common purpose. This

more nuanced understanding of the term narrows the

range of establishments that qualify as secular “assem-

blies” under the equal-terms provision. Moreover, the

focus should be on the property’s primary use. Incidental

uses should be disregarded; an establishment that only

occasionally serves as an “assembly” will not qualify.

No. 08-2819 53

This limitation is especially important in facial equal-

terms claims, where the comparison is categorical and

requires generalizations about property uses.

B.

Applying these principles here, I think River of Life has

a likelihood of success on its claim that Hazel Crest’s

amended ordinance facially violates the equal-terms

provision. The ordinance excludes churches in the B-2

district but includes gymnasiums, health clubs, and day-

care centers. Each of these property uses can be character-

ized as a secular assembly use as the term “assembly” is

commonly understood. They are places where groups of

people come together for a common purpose, and with a

degree of organization and unity that brings each use

within the meaning of the word “assembly” as it is used in

this statute. Commercial gymnasiums and health clubs

typically hold exercise and athletic classes of various

kinds, as well as sports and social-club meetings and team

competitions (think the YMCA or racquet and fitness

clubs). Day-care centers are also characterized by a unity

of purpose—the daily or periodic supervision and (usu-

ally) education of children—and are typified by an array

of organized activities for the children in their care.

On the other hand, salons, hotels and motels, and

restaurants and taverns likely do not qualify as “assem-

blies.” Patrons of these establishments share a common

purpose only in the loosest sense and are not usually

organized or united to the degree required for an assem-

bly. True, hotels and motels may have conference facilities

54 No. 08-2819

available for group meetings, but this organized group

activity is incidental to the property’s primary use, which

is as a place for temporary lodging. Similarly, although

organized groups may occasionally meet in restaurants or

taverns, the primary use of a restaurant or tavern is as a

place to buy a drink or a meal. And it’s hard to think of a

“salon” as an assembly, at least on the definition I’ve

suggested here.

RLUIPA shifts the burden of persuasion to the gov-

ernment once the plaintiff “produces prima facie

evidence to support a claim alleging a violation of the

Free Exercise Clause or a violation of section 2000cc of this

title.” 8 42 U.S.C. § 2000cc-2(b). The Eleventh Circuit, as

I have noted, interprets the statute to require strict

scrutiny of land-use regulations that prima facie violate

the equal-terms provision; this interpretation flows

from the premise that RLUIPA codifies the Supreme

Court’s free-exercise jurisprudence—specifically Smith

and Lukumi—and appears to be linked to the court’s

determination that the equal-terms provision is a valid

exercise of Congress’s § 5 power. Midrash Sephardi, 366

F.3d at 1231-36. The Third Circuit agreed in Lighthouse

Institute that RLUIPA codified the Supreme Court’s free-

exercise jurisprudence but disagreed that the compelling-

8

This procedure is modified in subsection (b)(1) “substantial

burden” claims, which require the plaintiff to “bear the burden

of persuasion on whether the [challenged] law (including a

regulation) or government practice that is challenged by

the claim substantially burdens the plaintiff’s exercise of

religion.” 42 U.S.C. § 2000cc-2(b).

No. 08-2819 55

interest standard of Smith and Lukumi was incorporated

into the equal-terms provision. Because the “substantial

burden” provision contains express language adopting

strict scrutiny and the equal-terms provision does not,

the Third Circuit held that a land-use regulation that

violates the equal-terms provision is per se invalid and

may not be justified even by a compelling govern-

mental interest. Lighthouse Inst., 510 F.3d at 269. The

court thought its “similarly situated” secular-assembly

requirement sufficiently narrowed the statute to avoid

constitutional difficulty. Id. at 267 n.11 (“Because we

limit the statute in this way, we are not concerned about

Congress’s authority under Section 5 to impose what

amounts to a strict liability standard on regulations that

violate the Equal Terms provision.”). My colleagues

align themselves with the Third Circuit’s view.

Hazel Crest has not argued that the equal-terms provi-

sion exceeds Congress’s § 5 enforcement authority. This

is an important and sensitive question that should not be

resolved unless raised and fully briefed. However, to

the extent that an implied compelling-interest standard

is required to sustain the statute under City of Boerne,

Hazel Crest has not attempted to—and probably can-

not—carry that burden. The economic-development and

tax-generation objectives of its regulatory scheme are

legitimate governmental interests but hardly compelling.

VI.

The district judge thought River of Life’s equal-terms

claim had at least a slight likelihood of success on the

56 No. 08-2819

merits but declined to enter an injunction on the under-

standing that the balance of harms did not favor the

church because the statutory claim should not be treated

as analogous to a First Amendment claim, for which

irreparable harm is presumed. See Christian Legal Soc’y

v. Walker, 453 F.3d 853, 859 (7th Cir. 2006) (“The loss of

First Amendment freedoms is presumed to constitute

an irreparable injury for which money damages are not

adequate, and injunctions protecting First Amendment

freedoms are always in the public interest.”). That was

a mistake. RLUIPA enforces Free Exercise Clause rights,

and its land-use provisions are to be broadly construed

in favor of protecting religious exercise. See 42 U.S.C.

§ 2000cc-3(g) (“This chapter shall be construed in favor

of a broad protection of religious exercise, to the maxi-

mum extent permitted by the terms of this chapter and

the Constitution.”). As I have noted, the statute spe-

cifically provides that “[t]he use, building, or conversion

of real property for the purpose of religious exercise” falls

within the domain of “religious exercise.” Id. § 2000cc-

5(7)(B).

To the extent that this or any other of RLUIPA’s land-use

provisions goes beyond what is constitutionally required

and constitutes prophylactic legislation to prevent or

deter free-exercise violations, the district court’s conclu-

sion that River of Life has established irreparable harm

is sound. River of Life is being prevented from moving

its church to the property it owns in Hazel Crest, which

is situated in a location that the congregation considers

important to its religious mission. RLUIPA requires

the Village to respect the church’s right to relocate;

No. 08-2819 57

Hazel Crest permits some secular assembly uses in

this neighborhood and therefore cannot exclude River

of Life.

On the other side of the scale, Hazel Crest’s assertions of

irreparable harm are generalized and entirely conclusory.

The Village contends that “by allowing [a] non-tax-

paying, non-traffic generating entit[y] to locate within

the [Hazel Crest Proper] hub,” there is a “significant”

potential for “interference” with its “community revitali-

zation” goals. This is an implausible claim. First, the

marginal loss of tax revenue attributable to the estab-

lishment of a tax-exempt religious use in the district

cannot be considered irreparable harm; if it were, then

no injunction under RLUIPA would ever be possible. The

claimed loss of traffic-generating potential (assuming

this is a real concern) is entirely speculative. Hazel Crest

has not bothered to explain how allowing a small church

to locate in Hazel Crest Proper will otherwise impede

its community-revitalization efforts. River of Life’s con-

crete loss of its RLUIPA rights easily outweighs the

speculative harm to Hazel Crest’s redevelopment plan.

For all the foregoing reasons, I would reverse the

district court’s order and remand with instructions to

enter a preliminary injunction in favor of River of Life.

7-2-10