recognizing that “[i]f 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”
How later courts described this case
- recognizing that “[i]f 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”
- concluding that there was no equal terms violation where zoning ordinance excluded churches along with other noncommercial uses from a commercial district, while including only commercial uses
- noting that' “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 *793 out,” while approving of an ordinance that created a commercial district that excluded churches, community centers, meeting halls, and libraries because “these secular assemblies, like churches, do not generate significant taxable revenue or offer shopping opportunities”
- noting that both the "regulatory purpose" test and the "accepted zoning criteria" test require the court to evaluate the similarities between a claimant and the comparator when a religious entity challenges an ordinance that does not explicitly single out religious entities
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge, with whom ROVNER, 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 somewhat mysterious and unprecedented device for providing an anti-discrimination requirement, without incorporating the usual limiting characteristics of “discrimination” 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 provided 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 between 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 pronounced as the majority opinion suggests. In the last analysis, the search by the different cir *375 euits for an entirely objective test is probably in vain.