Zoning Religion Out of the Public Square: Constitutional Avoidance and Conflicting Interpretations of RLUIPA’s Equal Terms Provision

The Religious Land Use and Institutionalized Person Act (“RLUIPA”) provides statutory relief where the constitutional right to free exercise of religion is impinged by restrictive zoning ordinances. This Note examines the “Equal Terms” provision of RLUIPA, which forbids governments from treating “a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” Seven circuit courts have addressed the meaning of the Equal Terms provision. While those cases can be described as falling into two approaches—the strict scrutiny requirement and the similarly situated requirement—courts are further split within those approaches, and some courts have avoided endorsing either. This Note argues that this is not because of any ambiguity in the text itself. The different interpretations arise from the limitations that the circuit courts have read into the statute on the basis of constitutional avoidance. The Note then proposes a straightforward, broad reading of the statute—wherever governments allow secular assemblies and institutions, they must also permit religious assemblies and institutions on no less than equal terms. This reading, without any caveats, would be more consistent with the text, history, and purpose of the Act. It would also provide a rule that is easier to administer without violating existing constitutional principles.

Note | View PDF | Appears in Volume 55, Issue 2

Comments are closed.