Reply Brief — Tree of Life Christian Schools, Petitioner v. City of Upper Arlington, Ohio

NO. 18-944

IN THE

Supreme Court of the United States

TREE OF LIFE CHRISTIAN SCHOOLS,

Petitioner,

v.

CITY OF UPPER ARLINGTON, OHIO,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

REPLY BRIEF FOR PETITIONER

ERIK W. STANLEY

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

(480) 444-0020

PHILIP W. GERTH

THE GERTH LAW OFFICE

465 Waterbury Court

Suite A

Gahanna, OH 43230

(614) 856-9399

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

DAVID A. CORTMAN

RORY T. GRAY

ALLIANCE DEFENDING

FREEDOM

440 First Street, N.W.

Suite 600

Washington, D.C. 20001

(616) 45-4235

jbursch@ADFlegal.org

Counsel for Petitioner

i

CORPORATE DISCLOSURE STATEMENT

The Corporate Disclosure Statement in the

Petition for Writ of Certiorari remains unchanged.

ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ............ i

TABLE OF AUTHORITIES ..................................... iii

INTRODUCTION ...................................................... 1

ARGUMENT .............................................................. 2

I. The Sixth Circuit admitted it was

deepening a circuit conflict, and the City’s

denial proves its abandonment of

RLUIPA’s text.................................................. 2

II. Tree of Life’s facial claim is undeniably

live, and the City admits the Sixth Circuit

decided the issue ............................................. 4

III.Invited-error doctrine does not apply to

Tree of Life’s RLUIPA claims and could not

hinder this Court’s review in any event ......... 5

IV. The City’s view of the equal-terms test

confirms the real-world problems the

petition highlights, problems that only this

Court may resolve ........................................... 7

V. Enforcing RLUIPA’s text will deter

widespread zoning discrimination against

religious organizations, not provide them

with preferential treatment .......................... 11

CONCLUSION ......................................................... 13

iii

TABLE OF AUTHORITIES

Cases

Citizens United v. F.E.C.,

558 U.S. 310 (2010) ................................................ 7

Dewey v. City of Des Moines,

173 U.S. 193 (1899) ................................................ 7

Diaz A. v. Patterson,

263 U.S. 399 (1923) ................................................ 4

F.W. Woolworth Co. v. Contemporary Arts, Inc.,

344 U.S. 228 (1952) ................................................ 5

Hamilton-Brown Shoe Co. v. Wolf Brothers & Co.,

240 U.S. 251 (1916) ................................................ 4

Lujan v. National Wildlife Federation,

497 U.S. 871 (1990) ................................................ 4

Mercer v. Theriot,

377 U.S. 152 (1964) ................................................ 4

Pennsylvania v. Ritchie,

480 U.S. 39 (1987) .................................................. 5

Tyson Foods, Inc. v. Bouaphakeo,

136 S. Ct. 1036 (2016) ............................................ 5

United States v. Wells,

519 U.S. 482 (1997) ............................................ 5, 6

United States v. Williams,

504 U.S. 36 (1992) .................................................. 5

Verizon Communications, Inc. v. F.C.C.,

535 U.S. 467 (2002) ................................................ 5

iv

Statutes

42 U.S.C. 2000cc(b)(1) .................................. 3, 7, 9, 12

Other Authorities

City of Upper Arlington, Adopted Budget for

2019-2020 ............................................................... 1

1

INTRODUCTION

For eight years, the City of Upper Arlington has

said that it needs Tree of Life’s building to generate

more tax revenue. Opp.5–7, 12, 29. That is a false

narrative. No one but Tree of Life wanted the

building, and the City’s scorched-earth litigation

tactics have cost the City $1 million in tax revenue

that Tree of Life itself would have generated. What’s

more, the City is one of Columbus’ most affluent

suburbs, with an overwhelmingly white population

and a median income over twice the Ohio average.

City of Upper Arlington, Adopted Budget for 20192020 at 5, 8–9, https://bit.ly/2I1W1AD. It has

projected annual income-tax receipts of $28 million,

id. at v, and a budget reserve approaching $11

million, id. at 43.

So why does the City insist on keeping Tree of Life

out of the building it owns? Perhaps it harbors

religious hostility. Or it fears racial and economic

diversity, as many Tree of Life students are from

minority or low-income families.

Whatever its actual reasons, the City has violated

RLUIPA. The City’s zoning does not require a

property owner in the Office and Research District

(“ORC District”) to generate a certain amount of tax

revenue per square foot. A for-profit or nonprofit

daycare, office, or publisher could have moved into

Tree of Life’s building automatically—even if

generating the same or less tax revenue than Tree of

Life. That is the definition of unequal treatment, as

Judge Thapar explained in dissent.

2

The City spends the bulk of its brief casting

aspersions on Tree of Life and castigating this case as

a vehicle to resolve the circuit split. These attacks

reflect a deep misunderstanding of the record,

appellate procedure, and circuit precedents. As

explained below, none of the City’s misguided attacks

on this religious school eliminate the need to clarify

the law.

ARGUMENT

I.

The Sixth Circuit admitted it was deepening a circuit conflict, and the City’s denial

proves its abandonment of RLUIPA’s text.

No doubt exists that the Sixth Circuit deepened a

circuit conflict regarding the test for a RLUIPA equalterms claim. Despite the City’s characterization of the

precedents, the panel majority explicitly said it was

joining the Third, Seventh, and Ninth Circuits’

“majority view,” App.21a, dismissing the Tenth

Circuit’s inquiry as “an outlier,” App.22a, and

disagreeing with the Eleventh Circuit’s “unique and

problematic test,” App.22a. The Sixth Circuit

certainly recognized the conflict.

Tellingly, the City fails to mention the Eleventh

Circuit’s test. Opp.20. That omission is essential to

justify the City’s claim that there is no split. In fact,

the Sixth Circuit condemned both the Tenth and

Eleventh Circuits’ equal-terms standards, App.22a,

and its test is incompatible with the Second Circuit’s

focus on equal treatment, Pet.19–21. In addition,

there is the discrete conflict on RLUIPA’s burdenshifting provision, Pet.22, a split the City also ignores.

3

Avoidance does not make these conflicts

disappear. And RLUIPA’s text rejects the City’s

argument that only equal-terms cases involving

religious schools count. Opp.1, 18, 21, 35. Congress

did not mandate equal zoning treatment for “schools”

or “churches.” Opp.1. It forbid government from

treating “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).

Because the words “religious assemblies or institutions” embrace religious schools and houses of worship, the RLUIPA analysis is the same either way.

In other words, any nonreligious assembly or

institution that compares to religious schools will also

compare to houses of worship. The City’s failure to

grasp that basic fact underscores its abandonment of

RLUIPA’s text. Lower courts will forfeit nothing if

this Court establishes the proper equal-terms test

here. But the bench and bar will lose sorely-needed

clarity if this Court declines review.

The City is also wrong that Tree of Life would lose

under any existing test, Opp.19–20, because the City

ignores Tree of Life’s facial claim, Opp.20 (discussing

only “as-applied cases”). In the Eleventh Circuit, Tree

of Life would prevail on its facial claim because the

zoning code allows all manner of secular nonprofits to

operate in the ORC District, no matter the tax

revenue they generate. Yet Tree of Life is excluded.

Pet.19, 25, 31. The Fifth, Sixth, Seventh, and Ninth

Circuits do not even allow such facial claims. Pet.25–

26, 28. And whether facial claims exist is crucial

because Tree of Life’s path to victory under that

theory is clear-cut. Reversing the Sixth Circuit will

change the outcome.

4

II.

Tree of Life’s facial claim is undeniably

live, and the City admits the Sixth Circuit

decided the issue.

The City maintains that “there was no facial

challenge at issue in the lower courts in the relevant

decisions,” Opp.25 (emphasis added), by which it

means Tree of Life’s third trip through the lower

courts. But Tree of Life did press a facial equal-terms

claim below, 3/16/18 Appellant Br. 39–50 (No. 174190); 7/24/14 Appellant Br. 32–46 (No. 14-3469), and

the City concedes the Sixth Circuit ruled on the issue.

Opp.25 This petition challenges that interlocutory

ruling. The City also admits that the Sixth Circuit

reaffirmed its facial holding on the third appeal.

Opp.26. Tree of Life’s facial claim is undeniably live.

The interlocutory ruling on Tree of Life’s facial

claim is “not res judicata or conclusive here, as the

[City] seems to suppose.” Diaz A. v. Patterson, 263

U.S. 399, 402 (1923). Res judicata does not bar this

Court from reviewing lower courts’ earlier rulings.

This Court “may consider questions raised on the

[second] appeal, as well as those that were before the

court of appeals upon the [third] appeal.” Mercer v.

Theriot, 377 U.S. 152, 153 (1964) (per curiam)

(cleaned up). Accord, e.g., Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 881 n.1 (1990).

The City misunderstands the cert. process. This

Court typically does not review interlocutory

decisions but waits for a final judgment. Once that

judgment issues, this Court may “notice and rectify

any error that may have occurred in the interlocutory

proceedings.” Hamilton-Brown Shoe Co. v. Wolf Bros.

& Co., 240 U.S. 251, 258 (1916). Law-of-the-case

5

principles do not insulate the Sixth Circuit’s

interlocutory rulings from this Court’s review,

Pennsylvania v. Ritchie, 480 U.S. 39, 49 (1987), as the

City reluctantly concedes. Opp.34 (“This Court is not

bound by the law of the case in reviewing the lower

court decisions . . . .”).

In sum, Tree of Life pressed its facial claim below

and the Sixth Circuit ruled on it. The issue is fully

preserved for this Court’s review, as the City itself

ultimately admits. Opp.23 (citing United States v.

Williams, 504 U.S. 36, 41 (1992)); see also Verizon

Commc’ns, Inc. v. F.C.C., 535 U.S. 467, 530 (2002).

III. Invited-error doctrine does not apply to

Tree of Life’s RLUIPA claims and could not

hinder this Court’s review in any event.

The City says that Tree of Life “invited” the errors

below, and it argues that this invitation somehow

nullifies the need to resolve the circuit split. Not true.

To begin, the invited-error doctrine does not apply

here. This Court appropriately takes a cautious

approach to the doctrine, applying it only to legal

errors in a party’s own jury instruction, United States

v. Wells, 519 U.S. 482, 487–88 (1997), evidentiary

errors based on a party’s own objection, F.W.

Woolworth Co. v. Contemporary Arts, Inc., 344 U.S.

228, 230–31 (1952), or procedural errors grounded on

a party’s own arguments, such as not bifurcating the

damages phase of a trial, Tyson Foods, Inc. v.

Bouaphakeo, 136 S. Ct. 1036, 1050 (2016). Outside of

those limited contexts, the doctrines of invited error

and law of the case do not “oust this Court’s

traditional rule that [it] may address a question

6

properly presented in a petition for certiorari if it was

pressed in or passed on by the Court of Appeals.”

Wells, 519 U.S. at 488 (cleaned up).

What’s more, Tree of Life did not invite any error.

The City’s assertions focus on the briefs Tree of Life

filed on its third and final trip before the lower courts.

Opp.22–24. At that point, the Sixth Circuit had

already rejected Tree of Life’s facial claim and

mandated an as-applied test that focused on whether

secular assemblies or institutions are “similarly

situated with respect to maximizing revenue.”

App.118a. That ruling established the City’s zoning

interests as controlling, not whether Tree of Life

received equal treatment. And, the ruling foreclosed

Tree of Life from advancing a more-textual

alternative, such as the Second, Tenth, or Eleventh

Circuits’ tests. So when the City says Tree of Life

“invited error,” what the City means is that Tree of

Life “followed the mandate.”

Stuck with promoting the least-bad “majority”

option, Tree of Life advocated (1) the Fifth Circuit’s

limitation of the equal-terms inquiry to interests

written in the City’s zoning code, Pl.’s Br. in Supp. of

Mot. for Final J. at 8, and (2) the Ninth Circuit’s

assignment of the burden of persuasion to the

government after the RLUIPA plaintiff establishes a

prima facie case. 3/16/18 Br. of Pl.-Appellant at 18

(No. 17-4190). The Sixth Circuit barely analyzed the

Fifth Circuit’s test, App.20a, 83a, and it relieved the

City of its burden of persuasion, Pet.22, 34. So any

suggestion that Tree of Life invited error is wrong.

7

In sum, having already argued—incorrectly—

that Tree of Life is barred from challenging the Sixth

Circuit’s two interlocutory rulings, the City then says

that Tree of Life invited error in the Sixth Circuit’s

third opinion for abiding by the previous two

decisions. That’s not how this Court’s review works.

Because Tree of Life preserved its facial and asapplied RLUIPA claims below, it “can make any

argument” that supports them in this Court. Citizens

United v. F.E.C., 558 U.S. 310, 331 (2010). Accord,

e.g., Dewey v. City of Des Moines, 173 U.S. 193, 198

(1899) (“[p]arties are not confined here to the same

arguments which were advanced in the courts below

upon a federal question there discussed.”).

IV. The City’s view of the equal-terms test

confirms the real-world problems the

petition highlights, problems that only this

Court may resolve.

The petition raises many problems caused by

lower courts’ invention of non-textual equal-terms

tests. The City’s brief confirms them.

First, the City ignores RLUIPA’s text, arguing

that Tree of Life may prevail only by comparison to a

secular entity that is “similarly situated,” Opp.16,

with regard to the City’s zoning “purpose” Opp.35.

But what RLUIPA actually asks is whether the City

“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).

Congress rejected a similarly-situated standard and

spurned a test based on zoning purposes.

8

Nothing in the equal-terms provision’s text “reads

out of the analysis the specific characteristics of

permitted uses and non-permitted uses [i.e., whether

they are assemblies or institutions] so that the

relevant focus is simply revenue to the City.” Opp.16.

Rather, RLUIPA mandates equal treatment of

religious and secular assemblies or institutions

regardless of the City’s zoning goals, here the

“potential for maximized revenue generation.”

Opp.35. It is no answer for the City to argue that it is

merely “treating [revenue] maximizing uses

differently than . . . non-maximizing use[s],” ibid.,

when the zoning code allows numerous uses without

regard to the revenue they actually generate.

Second, the City’s nebulous definition of revenue

maximization shows that Congress was right to focus

on objective equal treatment, not subjective zoning

goals. Allowing secular nonprofits in the ORC District

does not maximize the City’s tax revenue. In fact, a

nonprofit daycare, publisher, or office generating less

tax revenue than Tree of Life would have been

automatically allowed. But the lower courts refused

to examine whether the City’s zoning regulations

actually served its stated goals. It was enough that

the zoning code alleged maximizing revenue as its

subjective purpose. App.29a, 72a–73a.

That is inconsistent with RLUIPA’s text and

makes no sense. In fact, the City later disclaims any

interest in “achieving . . . absolute or maximum

revenue.” Opp.33. What the City wants is unbounded

discretion to deem some nonprofit uses above its

“minimum threshold to be considered revenue

maximizing” and others “below” it. Ibid.

9

Such a hazy line is far different than a code that

requires a minimum tax-revenue generation. And it

authorizes the City to make case-by-case distinctions

between nonprofits it wants to allow and those it does

not. So, focusing on the City’s subjective zoning

purposes does not make the equal-terms analysis turn

on simple “math.” Contra Opp.30. It flips RLUIPA

upside down and places the burden on Tree of Life to

show not only that (1) secular assemblies or

institutions are allowed in the ORC District but also

that (2) they do “not maximize revenue to the City at

the same level or worse than the School[ ].” Opp. 16.

Again, the amount of tax generation the City

deems “acceptable” has nothing to do with maximizing funds. If that were really the City’s concern, it

would have excluded nonprofits from the ORC

District altogether instead of welcoming numerous

nonprofits as-of-right. Or, it would have enacted a

zoning code that requires a minimum amount of

revenue generation. What the City desires is a vague,

manipulable zoning criteria that can justify its

unequal treatment of religious and secular

organizations. And that is the exact problem Congress

designed RLUIPA’s equal-terms provision to solve.

Third, the City embraces lower-court equal-terms

tests that ignore RLUIPA’s text. These tests nullify

the equal-terms provision. Although RLUIPA speaks

in terms of “a nonreligious assembly or institution,”

42 U.S.C. 2000cc(b)(1), the City maintains that

nothing but “secular schools” could serve as a valid

comparator here, Opp.35. In other words, the equalterms provision does nothing unless Tree of Life

proves an identical secular counterpart receives

better zoning treatment. Opp.18.

10

But limiting Tree of Life’s secular comparators to

private schools violates RLUIPA’s text and is so

plainly wrong that not even the Sixth Circuit adopted

that test. App.18a–19a. Yet the City feels comfortable

making that extreme argument. And the district

court embraced it, viewing the City’s zoning code as

facially neutral because it “treats both religious

schools and secular schools the same.” App.84a n.6,

168a. That result denigrates RLUIPA’s actual text.

App.61a (Thapar, J., dissenting). And only this Court

can resurrect what Congress actually enacted.

Fourth, the City touts its need to increase

revenue, Opp.5, then admits that its zoning code does

not serve that end, Opp.33. That is because the City

“cannot choose how an entity uses the land or how

much it is used,” and if a property owner “fails to

maximize the revenue from an allowed use, [the City]

has no recourse.” Ibid. Many uses allowed in the ORC

District—including partial office uses—do not serve

it. A real-life example is AOL/Time Warner’s staffing

of Tree of Life’s large office building with just six

employees, a situation it could maintain permanently

under the City’s code.

So why not let Tree of Life use the building it has

owned for eight years as a religious school? That use

would have promoted Tree of Life’s and its families’

religious interests and produced $1 million in

personal-income-tax revenue for the City—far more

than the property generates now. Pet.25. Although

the City does not engage this basic question, religious

discrimination is the only plausible answer, as the

City openly favors nearly any use of the property

other than a religious school. Opp.15, 18.

11

Still, it is not Tree of Life’s burden to prove that

the City acted with religious animus, only that the

City treated Tree of Life on unequal terms with

nonprofit daycares, publishers, and offices. Because

those entities are allowed in the ORC District

automatically, and Tree of Life is not, Tree of Life has

established an equal-terms violation.

V.

Enforcing RLUIPA’s text will deter

widespread zoning discrimination against

religious organizations, not provide them

with preferential treatment.

Congress passes many laws to remedy discrimination against the politically vulnerable. But only

laws protecting people of faith lead to claims of

favoritism. Pet.23–24. True to form, the City

maintains that by asking this Court to enforce

RLUIPA’s text, Tree of Life requests not equal but

preferential treatment. Opp.4. It is difficult to

imagine the City making that argument in a race- or

sex-discrimination lawsuit. Yet, as the City knows,

lower courts treat religious-discrimination claims less

favorably. Pet.24.

RLUIPA does not benefit people of faith any more

than civil rights statutes always aid victims of

widespread discrimination. More than three years of

Congressional hearings uncovered a nationwide epidemic of discrimination against religious land uses.

Congress instituted prophylactic rules to ferret out

discrimination that is hard to detect and has a

devastating impact on the right to assemble—a

fundamental aspect of religious exercise. Pet.7.

12

The equal-terms provision is one of those rules. It

targets a narrow arena of government action that is

characterized by individualized assessments and

vague zoning criteria, where the danger of religious

discrimination is at its height. Pet. 33. Even in that

context, RLUIPA gives local governments nearly free

reign. They simply cannot impose zoning restrictions

on religious assemblies or institutions they are not

willing to impose on their secular counterparts. 42

U.S.C. 2000cc(b)(1). Mandating neutral and generally

applicable zoning rules guarantees equal treatment.

What the City actually resists is RLUIPA’s

limited “preempti[on] [of] municipality zoning law.”

Opp.36. The City could make the same complaint

against any federal civil rights statute. Its quarrel is

with the Supremacy Clause, not RLUIPA itself.

***

There is a deep, mature circuit conflict regarding

the meaning of RLUIPA’s equal-terms provision. This

case is an ideal vehicle to resolve it. Certiorari is

warranted.

13

CONCLUSION

For the foregoing reasons, and those explained in

the petition for a writ of certiorari, the petition should

be granted.

Respectfully submitted,

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

DAVID A. CORTMAN

RORY T. GRAY

ALLIANCE DEFENDING

FREEDOM

440 First Street, N.W.

Suite 600

Washington, D.C. 20001

(616) 45-4235

jbursch@ADFlegal.org

ERIK W. STANLEY

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

(480) 444-0020

PHILIP W. GERTH

THE GERTH LAW OFFICE

465 Waterbury Court

Suite A

Gahanna, OH 43230

(614) 856-9399

APRIL 2019

Counsel for Petitioner