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