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Navigating the Maze: The Equal Terms Provision of RLUIPA in Land Use

The right to freely exercise one’s religion is a cornerstone of American society. However, navigating the complexities of land use regulations can sometimes create hurdles for religious institutions seeking to establish or expand their presence. The Religious Land Use and Institutionalized Persons Act (RLUIPA) aims to address this by ensuring a level playing field. Here, we delve into the act’s Equal Terms Provision and its application in land-use matters.

Understanding the Equal Terms Provision

RLUIPA’s Equal Terms Provision, enshrined in 42 U.S.C. § 2000cc(b)(1), prohibits governments from enforcing land-use regulations that treat religious assemblies or institutions less favorably than similar non-religious ones. The statute reads: “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 nonreligious assembly or institution.”  This means zoning rules cannot single out religious entities for stricter requirements or outright bans while allowing comparable secular uses.

Key Advantages of the Equal Terms Provision

The Equal Terms Provision offers distinct advantages for religious institutions compared to the general rule of RLUIPA. Here’s why:

  • No Substantial Burden Requirement: Unlike the general rule, which requires demonstrating a “substantial burden” on religious exercise, the Equal Terms Provision focuses solely on unequal treatment. This simplifies the legal challenge for religious institutions.
  • Irrelevance of Alternate Locations: The availability of alternative locations for the religious use, a factor considered under the general rule, is irrelevant under the Equal Terms Provision. The focus is on ensuring equal treatment within the specific zoning designation.

Case Studies: Courts Interpreting the Equal Terms Provision

Federal courts have weighed in on the Equal Terms Provision in several landmark cases, providing valuable insights for both religious institutions and municipalities:

  • Midrash Sephardi v. Town of Surfside (2004): A Florida town’s zoning scheme prohibited churches and synagogues in a business district but allowed private clubs. The Eleventh Circuit found private clubs to be functionally similar assemblies and ruled the zoning scheme violated the Equal Terms Provision.
  • Konikov v. Orange County (2005): A California city required religious gatherings in residential zones to obtain special permits while allowing secular social organizations like Cub Scouts with similar meeting frequency to operate freely. The Eleventh Circuit again sided with the religious group, highlighting the unequal treatment.
  • Lighthouse Institute for Evangelism v. City of Long Branch (2007): A New Jersey zoning ordinance permitted assembly halls but excluded churches in a downtown commercial district. The Third Circuit, focusing on potential harm to regulatory objectives, found no justification for excluding churches and ruled in their favor.

Circuit Court Disagreements: “No Lesser Harm” vs. Strict Scrutiny

The Eleventh and Third Circuit Courts differed in their analyses of the Equal Terms Provision. The Third Circuit introduced the “no lesser harm” element, requiring religious institutions to show that allowed non-religious assemblies wouldn’t cause less harm to the goals of the regulation. The Eleventh Circuit, while not requiring this specific showing, considered the government’s interest later in the analysis.

Applying the Framework: When Does an Equal Terms Issue Arise?

To assess a potential Equal Terms Provision violation, consider these questions:

  • Does the zoning code allow non-religious uses within the designation?
  • Can these non-religious uses be considered “assemblies or institutions” with similar functions to the proposed religious use?
  • If so, do these non-religious uses potentially cause less harm to the objectives of the zoning regulation compared to the religious use?

If the answer to the last question is “yes,” an Equal Terms Provision issue might exist.

Recommendations for Religious Institutions

  • Consult with legal counsel: Navigating land use regulations and potential RLUIPA claims can be complex. Seeking guidance from an attorney specializing in religious land use issues is crucial.
  • Gather evidence of similar non-religious uses: Documenting the existence and nature of permitted non-religious assemblies within the zoning designation strengthens your case.
  • Engage with the municipality: Open communication with local authorities can often lead to solutions that address both the community’s needs and the religious institution’s right to practice their faith.


The question in religious land use cases, for purposes of the equal terms provision, is whether the local zoning rule permits non-religious uses within a zoning designation can fairly be characterized as “assemblies or institutions,” and if so whether those non-religious assemblies or institutions, as compared to religious assemblies or institutions, cause “no lesser harm to the interests the regulation seeks to advance.” If it does, an equal terms issue may arise.

If you have a question concerning the equal terms provisions of RLUIPA and how it applies to your religious assembly, please contact Daniel Dalton or a member of the RLUIPA team at Dalton & Tomich PLC. We look forward to assisting you with your development.

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