Tree of Life Christian Sch. v. City of Upper Arlington, Ohio

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0206p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

TREE OF LIFE CHRISTIAN SCHOOLS, ┐
Plaintiff-Appellant, │
│
> No. 17-4190
v. │
│
│
CITY OF UPPER ARLINGTON, OHIO, │
Defendant-Appellee. │
┘

Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:11-cv-00009—George C. Smith, District Judge.

Argued: July 31, 2018

Decided and Filed: September 18, 2018

Before: GILMAN, GIBBONS, and THAPAR, Circuit Judges.

_________________

COUNSEL

ARGUED: Erik W. Stanley, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for
Appellant. Shawn Judge, ISAAC, WILES, BURKHOLDER & TEETOR, Columbus, Ohio, for
Appellee. ON BRIEF: Erik W. Stanley, ALLIANCE DEFENDING FREEDOM, Scottsdale,
Arizona, Philip W. Gerth, THE GERTH LAW OFFICE, LLC, Gahanna, Ohio, for Appellant.
Shawn Judge, Mark Landes, ISAAC, WILES, BURKHOLDER & TEETOR, Columbus, Ohio, for
Appellee.

GILMAN, J., delivered the opinion of the court in which GIBBONS, J., joined. THAPAR,
J. (pp. 25–40), delivered a separate dissenting opinion.
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 2

_________________

OPINION
_________________

RONALD LEE GILMAN, Circuit Judge. This case arises out of a zoning dispute between
Tree of Life Christian Schools (Tree of Life) and the City of Upper Arlington, Ohio. In 2001,
Upper Arlington adopted a Master Plan to guide its zoning decisions. The Master Plan emphasizes
the need to increase the City’s revenue by attracting business development in the small portion of
the City’s land that is devoted to commercial use. To further the Master Plan’s goals, Upper
Arlington’s Unified Development Ordinance (Development Ordinance) restricts the use of areas
zoned as an office-and-research-center district (office district) to specific uses that are primarily
commercial. The operation of schools, both secular and religious, is a prohibited use within the
office district.

Despite this prohibition, Tree of Life decided in 2010 to purchase a large office building
on a 16-acre tract of land that is located within the office district (the Property) for the purpose of
operating a pre-K through 12th-grade school. After failing to secure authorization from Upper
Arlington to operate a school on the Property, Tree of Life filed suit in the United States District
Court for the Southern District of Ohio, arguing, among other things, that the Development
Ordinance violates the “equal terms” provision of the Religious Land Use and Institutionalized
Persons Act (RLUIPA), 42 U.S.C. § 2000cc(b)(1), by treating the school less favorably than
comparable nonreligious land uses.

After two prior appeals to this court, the parties filed cross-motions for final judgment. The
district court granted Upper Arlington’s motion and denied Tree of Life’s, holding that the
Development Ordinance is no more onerous to Tree of Life than it is to nonreligious entities that
generate comparably small amounts of revenue for the City. Because Tree of Life has not
established a prima facie case under RLUIPA’s equal terms provision, we AFFIRM the judgment
of the district court.
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 3

I. INTRODUCTION

A. Factual background

1. Upper Arlington’s land-use policies

Upper Arlington’s Master Plan stresses the need for the City to create “new revenue” to
“meet its current capital needs and support its current level of services,” noting that “commercial
office use provides significantly more revenue to the City than any other land use.” Commercial
office use is authorized on less than five percent of the City’s land. And because Upper Arlington
is landlocked and fully developed, the preservation of its office districts for commercial use is of
utmost importance to the City. The Master Plan also singles out personal income taxes as “an
important source of Upper Arlington’s revenues” and emphasizes that “every effort will be made
to broaden and expand the City’s employment base in order to increase these tax revenues.”

In keeping with the Master Plan’s emphasis on commercial office use and the generation
of income-tax revenue, the City’s Development Ordinance specifies that office-district zones
within the City are meant to “provide job opportunities and services to residents and contribute to
the City’s economic stability.” Upper Arlington, Ohio, Unified Dev. Ordinance
§ 5.03(A)(6), https://library.municode.com/oh/upper_arlington/codes/code_of_ordinances?nodeI
d=PT11UNDEOR. Permitted uses within the office district include “business and professional
offices, research and development, book and periodical publishing, insurance carriers, corporate
data centers, survey research firms, bank finance and loan offices, outpatient surgery centers, [and]
hospitals.” Id. As previously noted, both secular and religious schools are specifically prohibited
uses. Places of worship are conditional uses, meaning that they are permitted in the office district,
but only with approval from the Board of Zoning and Planning (the Board). Id. art. 5, tbl. 5-C.

Child daycare centers (hereinafter, “daycares”) are also prohibited uses in the office district
under the Development Ordinance as presently worded. Dev. Ordinance § 5.03(A)(6); id. art. 5,
tbl. 5-C. But they were permitted prior to 2011, when the City Council amended the Ordinance to
exclude them in response to this litigation. Upper Arlington, Ohio, Ordinance 52-2011 (Sept. 12,
2011). Chad Gibson, Upper Arlington’s Senior Planning Officer, testified in a deposition that the
City previously intended daycares to be an ancillary use in the office district, designed not to
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 4

generate revenue but to “facilitate the general office district” by providing “a place where workers
in the office complex could drop off their children during work hours in a safe environment.”
Although Gibson noted that “typically daycares are not massive in size,” he acknowledged that
the prior iteration of the Development Ordinance did not restrict their size, so a large daycare
would have been a permitted use within the office district.

2. Tree of Life purchased property within the office district.

Tree of Life, a religious nonprofit corporation, operates a private Christian school that
currently serves 532 students and has a workforce of 150 employees spread across three campuses
throughout the Columbus, Ohio metropolitan area. The school believes that its lack of a unified
campus inhibits its growth and limits its enrollment numbers. Accordingly, Tree of Life began
searching in 2008 for a site where it could consolidate its campuses and serve a larger population
of students.

In 2009, AOL/Time Warner, a media company that is not a party to this litigation, vacated
a 254,000-square-foot office building—the largest in Upper Arlington—located on the Property.
AOL/Time Warner generated significant revenue for Upper Arlington during the time that it
occupied the Property through a combination of property taxes and income taxes levied on both
the company and its employees. In 2001, for example, AOL/Time Warner accounted for 29% of
all income-tax revenue collected by the City.

Tree of Life signed a purchase agreement for the Property in October 2009, and the sale
was finalized in August 2010. The purchase agreement contained a contingency clause that
allowed Tree of Life to cancel the purchase if, prior to the closing, it was unable to obtain Upper
Arlington’s approval for the rezoning of the Property to allow for the operation of a school. During
the allotted time, Upper Arlington made no commitment to rezone the Property or otherwise
authorize the operation of a school on the premises. Tree of Life nevertheless decided to move
forward with the purchase.
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 5

3. Upper Arlington declined to accommodate Tree of Life’s desire to operate
a school on the Property.

Before acquiring the Property, Tree of Life filed a conditional-use application with Upper
Arlington’s Department of Development. The application stated that the property would be used
as a church with an included school. The Board, however, rejected Tree of Life’s characterization
of its intended use of the Property, ruling that “the proposed primary use of the property as a private
school does not constitute a ‘place of worship, church’ as that term is used in [the Development
Ordinance], and is therefore not a conditional use in the [office district].” The City Council upheld
the Board’s decision. In a separate set of rulings, the Board and the City Council also rejected
Tree of Life’s argument that a private school should be allowed as a permitted conditional use.

During the course of this litigation, Tree of Life submitted an application to the Department
of Development to request that the Development Ordinance be amended to permit private religious
schools to operate in the office district. Gibson, as Upper Arlington’s Senior Planning Officer,
prepared a staff report recommending that the City Council reject the amendment. Among other
criticisms of the proposed amendment, the report concluded that allowing private religious schools
“within the City’s extremely limited commercial areas is simply not necessary or beneficial to the
City, and it is likely that negative long-term economic consequences will result.” Based on this
recommendation, the City Council denied the proposed amendment.

Tree of Life next filed an application requesting that the Property be rezoned for residential
use. Echoing the reasons for his opposition to Tree of Life’s first proposed zoning amendment,
Gibson issued a staff report urging the City Council to reject this second proposed amendment as
well. The report noted that the northern boundary of the Property “has the greatest opportunity for
intense office use” in Upper Arlington and that rezoning the Property for residential use would
therefore “be contrary to the City’s long-term financial interests.” Based on Gibson’s
recommendation, the City Council rejected Tree of Life’s second proposed amendment.

B. Procedural background

Tree of Life filed suit after Upper Arlington rejected its conditional-use application. The
complaint alleged violations of (1) RLUIPA’s substantial-burden and equal terms provisions;
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 6

(2) the First Amendment’s Free Speech, Assembly, Free Exercise, and Establishment Clauses;
(3) the Fourteenth Amendment’s Due Process and Equal Protection Clauses; and (4) Article 1,
Section 7 of the Ohio Constitution. Tree of Life seeks both equitable relief to allow it to operate
on the Property and compensatory damages for the harm that it has allegedly suffered as a result
of Upper Arlington’s refusal to accommodate the proposed school.

Shortly after filing suit, Tree of Life moved for a preliminary injunction based on its equal
protection and RLUIPA equal terms claims. Although the district court found that Tree of Life
was likely to succeed on the merits of its RLUIPA claim (but not on its equal protection claim), it
concluded that the other preliminary injunction factors favored Upper Arlington. The court, after
balancing all the factors, denied the motion.

Upper Arlington then filed a motion for summary judgment, arguing that the case was not
ripe for adjudication because Tree of Life had not yet requested that the City rezone the Property
to allow the school to operate there. The district court granted the motion, Tree of Life Christian
Sch. v. City of Upper Arlington, 888 F. Supp. 2d 883, 897 (S.D. Ohio 2012), and Tree of Life
appealed to this court. While Tree of Life’s appeal was pending, the school filed its first
zoning-amendment application, prompting this court to remand the case to the district court. Tree
of Life Christian Sch. v. City of Upper Arlington (Tree of Life I), 536 F. App’x 580, 582–83 (6th
Cir. 2013). Tree of Life filed its second zoning-amendment application following the remand.

On remand, both parties sought summary judgment, and the district court granted Upper
Arlington’s motion and denied Tree of Life’s. Tree of Life Christian Sch. v. City of Upper
Arlington, 16 F. Supp. 3d 883, 904–05 (S.D. Ohio 2014). The court held that because Upper
Arlington excludes both secular and religious schools from the office district, the City’s land-use
regulations do not violate RLUIPA’s equal terms provision. Id. at 899–900. With respect to Tree
of Life’s other federal claims, the court held that they were all either abandoned or legally deficient.
Id. at 894 n.4, 900–04. The court declined to exercise supplemental jurisdiction over Tree of Life’s
state-law claim. Id. at 904. Tree of Life then filed a second appeal.

This court held on the second appeal that the district court erred in granting summary
judgment in favor of Upper Arlington on Tree of Life’s RLUIPA equal terms claim. Tree of Life
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 7

Sch. v. City of Upper Arlington (Tree of Life II), 823 F.3d 365, 366 (6th Cir. 2016). According to
the court, Tree of Life created a genuine dispute of material fact by making unrebutted allegations
that other entities permitted within the office district are “similarly situated [to the school] with
respect to maximizing revenue.” Id. at 371. The case was therefore remanded for the purpose of
answering two specific questions: (1) “Are there nonreligious assemblies or institutions to which
the court should compare Tree of Life Christian Schools because they would fail to maximize
income-tax revenue,” and (2) “if so, would those assemblies or institutions be treated equally to
[Tree of Life]?” Id. at 372.

On remand for the second time, the parties filed cross-motions for final judgment. Tree of
Life argued, as it does in this third appeal, that daycares and partially used offices are similarly
situated to the proposed school in terms of their minimal capacity to generate revenue for Upper
Arlington. See Tree of Life Christian Sch. v. City of Upper Arlington, No. 2:11-cv-09, 2017 WL
4563897, at *9 (S.D. Ohio Oct. 13, 2017). Noting that the current version of the Development
Ordinance does not permit daycares within the office district, the district court implied that Tree
of Life’s claim is moot if based on daycares as a comparator. Id. at *10. To avoid any possibility
of Upper Arlington reverting to the prior iteration of the Ordinance, the court issued an injunction
preserving the Development Ordinance’s current ban on daycares in the office district. Id. at *16.

The district court alternatively held that daycares are not similarly situated to Tree of Life’s
proposed school. Id. at *13. In doing so, the court found that the analysis done by Upper
Arlington’s expert witness, Catherine Armstrong, was more persuasive than the analyses done by
Tree of Life’s expert witnesses. Id. Armstrong’s report demonstrated that “a daycare located at
the Property would generate seven times more tax revenue for the City than Tree of Life” would
generate. Id.

The district court also held that “full use of one assembly or institution compared to the
full use of another type of assembly or institution” is the proper lens through which to analyze
RLUIPA equal terms claims. Id. at *14. Any other approach would be improper, according to the
court, because a “city can set forth the regulatory purpose, but . . . cannot demand full use of
a property to realize that purpose.” Id. Having rejected both uses proposed by Tree of Life as
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 8

comparators, the court entered final judgment for Upper Arlington. Id. at *16. This timely appeal
followed.

II. ANALYSIS

A. Standard of review

After the second remand, the parties agreed to file cross-motions for final judgment and
waive any oral presentation of evidence. This effectively amounted to a bench trial based on
(1) a waiver of a jury trial under Rule 38(d) of the Federal Rules of Civil Procedure, and
(2) a request that the court make findings of fact and conclusions of law based on a stipulated
record pursuant to Rule (52)(a)(1). Our standard of review is thus controlled by T. Marzetti Co. v.
Roskam Baking Co., 680 F.3d 629, 633 (6th Cir. 2012) (“In an appeal from a judgment entered
after a bench trial, we review the district court’s findings of fact for clear error and its conclusions
of law de novo.”).

B. Preliminary matters

1. Tree of Life’s RLUIPA equal terms claim is the only one remaining.

In addition to its RLUIPA equal terms claim, Tree of Life initially brought several other
claims. This court upheld the district court’s grant of summary judgment in favor of Upper
Arlington on Tree of Life’s equal protection and free exercise claims and held that Tree of Life
had abandoned its state-law claim. Tree of Life II, 823 F.3d at 373. Prior to the second appeal,
the district court also granted summary judgment in favor of Upper Arlington on Tree of Life’s
claims under the First Amendment’s Establishment, Free Speech, and Assembly Clauses and the
Fourteenth Amendment’s Due Process Clause. Tree of Life Christian Schools v. City of Upper
Arlington, 16 F. Supp. 3d 883, 902–04 (S.D. Ohio 2014). It further concluded that Tree of Life
had abandoned its RLUIPA substantial-burden claim. Id. at 894 n.4.

This court did not address those rulings during the second appeal. See Tree of Life II,
823 F.3d at 373. Nor did Tree of Life argue in its brief in support of its motion for final judgment
or in its briefing for this appeal that any of those claims remain pending. Among those abandoned
claims is any challenge to the City’s determination that Tree of Life is neither a church nor a place
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 9

of worship, so the dissent’s sua sponte resurrection of that argument strikes us as unwarranted.
Dissenting Op. at 36–38. Accordingly, the only remaining claim in this lawsuit is the RLUIPA
equal terms claim.

2. Mootness

During the second remand, the district court took the unusual step of sua sponte enjoining
Upper Arlington from amending the Development Ordinance to once again permit daycares in the
office district. Tree of Life Christian Sch. v. City of Upper Arlington, No. 2:11-cv-09, 2017 WL
4563897, at *10, *16 (S.D. Ohio Oct. 13, 2017). Upper Arlington argues that the permanent
injunction moots Tree of Life’s claim insofar as it depends on daycares as a comparator. But Tree
of Life persuasively answers that the injunction does not moot its claim because, in addition to
equitable relief, the school also seeks compensatory damages for the harm that it has allegedly
suffered on account of Upper Arlington’s refusal to accommodate the proposed school. See
Brandywine, Inc. v. City of Richmond, 359 F.3d 830, 835–36 (6th Cir. 2004) (holding that a zoning
amendment mooted the plaintiffs’ claims for declaratory and injunctive relief, but not their claim
for monetary damages).

Upper Arlington next contends that Tree of Life abandoned its money-damages claim by
failing to present any evidence or argument on that issue below. The litigation up to this point,
however, has focused exclusively on the issue of liability. And this court’s second remand directed
the district court to focus solely on whether comparators exist that Upper Arlington treats more
favorably than Tree of Life. Tree of Life II, 823 F.3d at 372. Tree of Life thus cannot be faulted
for failing to introduce evidence and press its money-damages claim when the litigation agenda
set by both this court and the district court has been directed entirely to the issue of Upper
Arlington’s alleged liability under RLUIPA. Accordingly, Tree of Life has not abandoned its
money-damages claim; nor did the district court’s permanent injunction moot it.

3. Whether Tree of Life has made out a prima facie case of a RLUIPA equal
terms violation was not settled by the previous appeal.

Tree of Life in turn argues that this court has already held that the school has made out a
prima facie case of an equal terms violation under RLUIPA. We disagree. This court remanded
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 10

the case to the district court because the City had failed to meet its burden at the summary judgment
stage of showing that none of the permitted uses in the office district would generate less revenue
for Upper Arlington than Tree of Life would. Tree of Life II, 823 F.3d at 371 (holding that Tree
of Life’s allegations in its verified complaint “create a genuine issue of fact as to whether the
government treats more favorably assemblies or institutions similarly situated with respect to
maximizing revenue, unless the government can demonstrate that no assemblies or institutions
could be similarly situated” (emphasis in original)). In other words, because Upper Arlington did
not refute the possibility of a viable comparator at the summary judgment stage, the remand
afforded Tree of Life another opportunity put one forward.

4. The district court was not bound by its preliminary injunction conclusion
that Tree of Life was likely to succeed on the merits of its RLUIPA equal
terms claim.

When the district court denied Tree of Life’s motion for a preliminary injunction, it
concluded that the school was likely to succeed on the merits of its RLUIPA equal terms claim,
although it noted that “the likelihood of success is not overwhelming.” Tree of Life argues that
the court’s decision at the preliminary injunction stage predetermined that the school had made
out a prima facie case, and therefore that the court erred when it subsequently concluded otherwise.

As Upper Arlington points out, however, “findings of fact and conclusions of law made by
a district court in granting a preliminary injunction are not binding at a trial on the merits.” United
States v. Edward Rose & Sons, 384 F.3d 258, 261 (6th Cir. 2004). And here, the district court
denied Tree of Life’s request for a preliminary injunction. The court therefore properly evaluated
on a clean slate whether Tree of Life had presented a prima facie case after this court’s second
remand.

5. The Development Ordinance is facially neutral.

In response to our questioning at oral argument, counsel for Tree of Life contended that
the school has not abandoned its position that the school constitutes a place of worship. This
contention, however, will not be considered on appeal since it was not raised as an issue in Tree
of Life’s briefs. See United States v. Johnson, 440 F.3d 832, 845–46 (6th Cir. 2006) (“[A]n
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 11

appellant abandons all issues not raised and argued in its initial brief on appeal.” (citation
omitted)).

Moreover, the argument is pretermitted because this court has already held that the
Development Ordinance is facially neutral and thus not subject to a facial challenge. Tree of Life
II, 823 F.3d at 373. That determination was not simply an “off-hand comment” as characterized
by the dissent, Dissenting Op. at 37 n.5, so the law-of-the-case doctrine controls. See Moody v.
Mich. Gaming Control Bd., 871 F.3d 420, 425–26 (6th Cir. 2017) (holding that, under the law-of-
the-case doctrine, “we generally will not, for prudential reasons, consider issues addressed by a
prior panel” absent “exceptional circumstances”). Because no such circumstances are present
here, the dissent’s “facial inequality” argument, Dissenting Op. at 35–38, is foreclosed.

C. RLUIPA’s equal terms provision

We now turn to the central issue before us. In its opinion in the second appeal, this court
noted a disagreement among the circuits about how RLUIPA’s equal terms provision should be
applied. Tree of Life II, 823 F.3d at 369–70. The court declined, however, to “definitively choose
among the various tests used by other circuits.” Id. at 370. Doing so was not necessary because
the court held that a genuine dispute of material fact precluded summary judgment no matter which
test the court applied. Id. Because Tree of Life now appeals a final judgment, we must decide
upon a framework for analyzing the school’s claim. Fortunately, the differences among our sister
circuits’ approaches are less substantial than they appear to be at first glance.

1. A comparator must be similarly situated to the plaintiff with regard to the
regulation at issue.

The Eleventh Circuit has determined that a prima facie case under RLUIPA’s equal terms
provision requires proof that “(1) the plaintiff [is] a religious assembly or institution, (2) subject
to a land use regulation, that (3) treats the [plaintiff] on less than equal terms, [compared] with
(4) a nonreligious assembly or institution.” Primera Iglesia Bautista Hispana of Boca Raton, Inc.
v. Broward County, 450 F.3d 1295, 1307–08 (11th Cir. 2006). Because this is a clear and
persuasive statement of the equal term provision’s statutory requirements, we adopt Primera
Iglesia’s statement of the elements. Only the third and fourth elements are at issue in this case.
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 12

The key disagreement among the circuits is about what constitutes a proper comparator for the
purpose of analyzing these elements.

“In matters of statutory interpretation, we look first to the text and, if the meaning of the
language is plain, then ‘the sole function of the courts—at least where the disposition required by
the text is not absurd—is to enforce it according to its terms.’” Wysocki v. Int’l Bus. Mach. Corp.,
607 F.3d 1102, 1106 (6th Cir. 2010) (quoting Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004)).
But where a statute’s text is ambiguous, we may consider “persuasive authority” such as “other
statutes, interpretations by other courts, legislative history, policy rationales, and the context in
which the statute was passed” in interpreting a disputed term. In re Carter, 553 F.3d 979, 986 (6th
Cir. 2009).

RLUIPA’s equal terms provision prohibits governments from “impos[ing] or
implement[ing] 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). This
language provides no guideposts for what Congress meant by the term “equal.” As the Seventh
Circuit recognized in River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367
(7th Cir. 2010) (en banc), “‘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.” Id. at 371.
Specifically, “equality,” in the “mathematical or scientific” sense of the word, “signifies . . .
equivalence or identity,” whereas in other contexts, the term connotes a “proper relation to relevant
concerns.” Id. Because the statute does not specify the basis upon which religious and
nonreligious land uses should be compared, we must seek to ascertain the type of comparison that
Congress intended from other tools of statutory interpretation.

Did Congress intend for the statute to require municipalities to extend preferential
treatment to religious entities? We think not. Such a requirement would be inconsistent with any
definition of the term “equal,” and it would likely run afoul of the First Amendment’s
Establishment Clause. See id. at 370 (noting that an interpretation of the equal terms provision
that is “too friendly to religious land uses” might “violat[e] the First Amendment’s prohibition
against establishment of religion by discriminating in favor of religious land uses” (emphasis in
original)).
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 13

At the other end of the policy spectrum, one could plausibly read the equal terms provision
in pari materia with the Fourteenth Amendment’s Equal Protection Clause. A plaintiff bringing
an equal protection claim must be “similarly situated” to a comparator in “all relevant respects.”
Paterek v. Village of Armada, 801 F.3d 630, 650 (6th Cir. 2015) (quoting United States v. Green,
654 F.3d 637, 651 (6th Cir. 2011)). Tree of Life’s claim would clearly fail under such a framework
because the Development Ordinance excludes both secular and religious schools from the office
district. Indeed, the district court held that Tree of Life’s equal protection claim failed for this very
reason. Tree of Life Christian Schools v. City of Upper Arlington, 16 F. Supp. 3d 883, 900-01
(S.D. Ohio 2014).

Such a reading, moreover, would render the equal terms provision superfluous.
Accordingly, no circuit employs such a cramped reading of the equal terms provision. See, e.g.,
Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir. 2007)
(“There is no need . . . for the religious institution to show that there exists a secular comparator
that performs the same functions.”); Vision Church v. Village of Long Grove, 468 F.3d 975, 1003
(7th Cir. 2006) (“[U]nder RLUIPA[’s] [equal terms provision,] a plaintiff need not demonstrate
disparate treatment between two institutions similarly situated in all relevant respects, as required
under equal protection jurisdiction . . . .”); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d
1214, 1229 (11th Cir. 2004) (“[W]hile [RLUIPA’s equal terms provision] has the ‘feel’ of an equal
protection law, it lacks the ‘similarly situated’ requirement usually found in equal protection
analysis.”).

All of the circuits that have analyzed this issue have therefore taken a broader approach,
with most holding that a comparator for an equal terms claim must be similarly situated with regard
to the regulation at issue. See Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d
1163, 1173 (9th Cir. 2011); Elijah Group, Inc. v. City of Leon Valley, 643 F.3d 419, 424 (5th Cir.
2011); River of Life, 611 F.3d at 371; Lighthouse Inst., 510 F.3d at 266. The Third Circuit’s
approach, which compares entities in light of “the regulatory purpose,” Lighthouse Inst., 510 F.3d
at 266 (emphasis omitted), differs slightly from the Seventh and Ninth Circuits’ tests, both of
which conduct the comparison in light of “accepted zoning criteria” advanced by the regulation,
Centro Familiar, 651 F.3d at 1173; River of Life, 611 F.3d at 371. And the Fifth Circuit’s
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 14

approach, which evaluates comparators by reference to “the ordinance itself and the criteria by
which it treats institutions differently,” probably hews closer to the Third Circuit’s approach than
to the Seventh and Ninth Circuits’ approach. See Elijah Group, 643 F.3d at 424.

Although it agreed with the general thrust of the Third Circuit’s approach, the Seventh
Circuit was concerned that a focus on “regulatory purpose” might invite jurisdictions to justify
discrimination with sham purposes. See River of Life, 611 F.3d at 371. “‘Purpose’ is subjective
and manipulable,” the Seventh Circuit explained, “so asking about ‘regulatory purpose’ might
result in giving local officials a free hand in answering the question ‘equal with respect to what?’
‘Regulatory criteria’ are objective . . . .” Id.

The Seventh Circuit, however, offered no example of a regulatory purpose that a
jurisdiction might assert as the basis for a zoning regulation that would not also be an accepted
zoning criterion. And to the extent that municipalities might assert sham purposes to justify
religious discrimination, that concern is addressed by the fact that all government classifications
must satisfy rational-basis review. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432,
440 (1985) (“[L]egislation is presumed to be valid and will be sustained if the classification drawn
by the statute is rationally related to a legitimate state interest.”).

We thus conclude that the Third, Seventh, and Ninth Circuits’ RLUIPA decisions cited
above represent the majority view, with their respective tests essentially the same. Our only
concern is that neither the Seventh Circuit nor the Ninth Circuit directly explain what the phrase
accepted zoning criteria actually means. In the context of their analyses, however, the word
“accepted” appears to connote lawful or proper zoning criteria as opposed to unlawful ones. With
this in mind, we believe that the phrase “legitimate zoning criteria” best captures the idea that the
comparison required by RLUIPA’s equal terms provision is to be conducted with regard to the
legitimate zoning criteria set forth in the municipal ordinance in question.

The Eleventh Circuit, in contrast, strays from the majority view, at least when it comes to
facial challenges to land-use regulations, by paying no heed to the regulatory purposes behind
zoning policies. In Midrash Sephardi, the court held that “the relevant ‘natural perimeter’ for
consideration with respect to RLUIPA’s prohibition is the category of ‘assemblies or institutions.’”
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 15

366 F.3d at 1230. Under this test, if a zoning ordinance permits a particular secular assembly or
institution—say, a private club—within a zone, an excluded religious assembly or institution could
invoke RLUIPA to secure an exemption from the ordinance, but an excluded secular assembly or
institution—say, a union hall—could not. See id. at 1231 (holding that a municipality’s allowance
for private clubs within a zone meant that a house of worship must be permitted as well). The
Seventh Circuit has criticized this test as conferring preferential treatment to religious assemblies
and institutions. River of Life, 611 F.3d at 370–71.

Regardless, the Eleventh Circuit’s unique and problematic test appears to apply only when
the challenged regulation is discriminatory on its face. The ordinance at issue in Midrash Sephardi
facially discriminated against religious institutions because it prohibited houses of worship in the
town’s business district and, unlike with other proscribed uses, barred such entities from seeking
special-use exceptions. 366 F.3d at 1219 & n.3. In Primera Iglesia Bautista Hispana of Boca
Raton, Inc. v. Broward County, 450 F.3d 1295 (11th Cir. 2006), however, the Eleventh Circuit
clarified that when considering facially neutral land-use regulations, a “plaintiff bringing an as
applied Equal Terms challenge must present evidence that a similarly situated nonreligious
comparator received differential treatment under the challenged regulation.” Id. at 1311 & n.11
(emphasis in original). And in Konikov v. Orange County, 410 F.3d 1317 (11th Cir. 2005) (per
curiam), the Eleventh Circuit evaluated whether a comparator was similarly situated to a house of
worship by considering whether permitted land uses had a “comparable community impact.” Id.
at 1327. Thus, when it comes to facially neutral land-use regulations, like the one at issue here,
the Eleventh Circuit also requires that comparators be similarly situated with regard to the
regulation at issue.

The Tenth Circuit, on the other hand, is an outlier even when it comes to facially neutral
land-use regulations. Rather than evaluating whether a comparator is similarly situated to
a religious entity by reference to the land-use regulation’s purpose, the Tenth Circuit weighs
whether the uses, despite not being “identical,” exhibit “substantial similarities” that would allow
“a reasonable jury to conclude that [the entities] were similarly situated.” Rocky Mountain
Christian Church v. Board of Cty. Comm’rs of Boulder Cty., 613 F.3d 1229, 1236–38 (10th Cir.
2010).
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 16

This test, in our opinion, lacks the clear guideposts that the other circuits have adopted for
examining whether a comparator is similarly situated to a religious entity. Because the test is not
couched in terms of the land-use regulation’s purpose, a court applying it must determine which
differences between entities are salient and which are insubstantial. The test therefore introduces
significant subjectivity into the application of the equal terms provision. Accordingly, we adopt
the majority approach, as discussed in the Third, Seventh, and Ninth Circuits’ cases set forth above,
and reject the Tenth Circuit’s test.

In doing so, we note the dissent’s critique that we (and all the other circuit courts that have
analyzed the “equal terms” issue) have improperly imported the words “similarly situated” into
the text of RLUIPA. Dissenting Op. at 29 & n.1. We respectfully disagree. The concept of
“similarly situated with regard to legitimate zoning criteria” is simply the most reasonable
interpretation of the undefined statutory words “equal terms.” And interpreting ambiguous
statutory language is a core function of the courts. See United States ex rel. Jones v. Horizon
Healthcare Corp., 160 F.3d 326, 336 (6th Cir. 1998) (“Interpreting ambiguous statutory language,
of course, is the bread-and-butter work of the federal courts.”); cf. Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department
to say what the law is. Those who apply the rule to particular cases, must of necessity expound
and interpret that rule.”).

2. The plaintiff bears the burden of making out a prima facie case.

At times, Tree of Life seems to argue that Upper Arlington bears the burden of
demonstrating that no conceivable permissible use in the office district is comparable to Tree of
Life’s proposed use. Contrary to Tree of Life’s argument, however, RLUIPA’s text makes clear
that the plaintiff bears the initial burden of making out a prima facie case, and only if that
precondition is satisfied does the burden of persuasion shift to the government. See 42 U.S.C.
§ 2000cc-2(b) (“If a plaintiff produces prima facie evidence to support a claim alleging a violation
of the Free Exercise Clause or a violation of [RLUIPA’s land-use provisions], the government
shall bear the burden of persuasion on any element of the claim . . . .”).
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 17

Moreover, once a RLUIPA plaintiff makes out a prima facie case, the litigation battle must
be waged on the terms set by the plaintiff. In other words, the government bears the burden to
persuade the factfinder that the bases on which the plaintiff established its prima facie case are not
supported by a preponderance of the evidence. See id. (setting forth RLUIPA’s burden-shifting
framework). But the statute does not impose upon the government the additional burden of
conjuring up and disproving additional bases not put forward by the plaintiff that might, had they
been offered, support the claim. See id.

Tree of Life’s suggestion to the contrary stems from this court’s statement in the second
appeal that the school’s allegations “create a genuine issue of fact as to whether the government
treats more favorably assemblies or institutions similarly situated with respect to maximizing
revenue, unless the government can demonstrate that no assemblies or institutions could be
similarly situated.” Tree of Life II, 823 F.3d at 371 (emphasis in original). But the court made this
remark in the context of evaluating whether Upper Arlington had produced sufficient evidence to
justify a grant of summary judgment in its favor; the court was not dealing with the initial burden
that Tree of Life bears in making out a prima facie case.

D. Upper Arlington did not violate RLUIPA’s equal terms provision.

Tree of Life argues that the asserted regulatory purpose for the exclusion of the school from
the office district—revenue maximization—is not a legitimate zoning criterion, and that Upper
Arlington’s assertion of that regulatory purpose is pretextual. In addition, the school puts forward
nonprofit daycares, partially used offices, and publishers as comparators that are similarly situated
to Tree of Life in their minimal capacity to generate revenue. We will address each of these
arguments in turn.

1. Revenue maximization is a legitimate regulatory purpose.

As mentioned above, the Seventh Circuit added the “accepted zoning criteria” gloss to the
various tests put forward for evaluating equal terms claims. River of Life, 611 F.3d at 371
(emphasis omitted). That court specifically identified “generating municipal revenue” as a
legitimate regulatory purpose that can be pursued by separating residential and commercial uses
within a jurisdiction. Id. at 373. And the court held that the ordinance at issue there did not violate
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 18

the equal terms provision because the city “created a commercial district that excludes churches
along with community centers, meeting halls, and libraries because these secular assemblies, like
churches, do not generate significant taxable revenue.” Id. (emphasis in original). Tree of Life’s
argument is thus in conflict with the decision that adopted the “accepted zoning criteria” standard
for its equal terms test.

In support of its position, Tree of Life cites cases that have rejected revenue maximization
as a compelling state interest in the context of challenges under RLUIPA’s substantial-burden
prong. See Int’l Church of Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1071 (9th
Cir. 2011); Elsinore Christian Ctr. v. City of Lake Elsinore, 291 F. Supp. 2d 1083, 1093 (C.D. Ca.
2003), rev’d and remanded on other grounds, 197 F. App’x 718 (9th Cir. 2006); Cottonwood
Christian Ctr. v. Cypress Redev. Agency, 218 F. Supp. 2d 1203, 1227–28 (C.D. Cal. 2002); see
also 42 U.S.C. § 2000cc(a)(1) (“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 institution, unless the government demonstrates that imposition of the burden
on that person, assembly, or institution—(A) is in furtherance of a compelling governmental
interest; and (B) is the least restrictive means of furthering that compelling governmental
interest.”). But neither the Seventh nor Ninth Circuit has held that a regulation must further a
compelling state interest in order to constitute an accepted zoning criterion. See Centro Familiar
Cristiana Buenas Nuevas, 651 F.3d 1163, 1171–73 (9th Cir. 2011); River of Life, 611 F.3d at 371.
Nor has Tree of Life cited any authority that supports such a proposition.

Tree of Life also cites several state-court cases that express skepticism about revenue
generation as a proper regulatory purpose in certain contexts. See Griswold v. City of Homer,
925 P.2d 1015, 1023 n.9 (Alaska 1996); Bossman v. Village of Riverton, 684 N.E.2d 427, 432 (Ill.
App. Ct. 1997); Oakwood at Madison, Inc. v. Township of Madison, 283 A.2d 353, 357 (N.J.
Super. Ct. Law Div. 1971). But other state courts—including higher courts in some of the very
states whose lower courts Tree of Life cites—have approved of revenue maximization through
zoning policy. See Consol. Gov’t of Columbus v. Barwick, 549 S.E.2d 73, 75 (Ga. 2001) (“The
City’s stated interest in attracting revenue to the zoning district . . . constitutes a ‘legitimate end of
government’ by ensuring the prosperity of the City by attracting business to the [zoning district]”
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 19

(quoting Craven v. Lowndes Cty. Hosp. Auth., 473 S.E.2d 308, 310 (Ga. 1993))); Napleton v.
Village of Hinsdale, 891 N.E.2d 839, 854 (Ill. 2008) (“It was reasonable and legitimate for
Hinsdale to conclude that the continued vitality of its business districts required an appropriate
balance between businesses that provide sales tax revenue and those that do not . . . .”); Ward v.
Montgomery Twp., 147 A.2d 248, 251–52 (N.J. 1959) (holding that a township’s securement of “a
new source of income [that] would serve the general economic welfare . . . through land use
regulation will not warrant judicial condemnation as long as it represents an otherwise valid
exercise of the statutory zoning authority”).

Moreover, zoning is generally thought to be an area of “traditional state authority.”
Rapanos v. United States, 547 U.S. 715, 738 (2006). We are accordingly loath to reject revenue
maximization as a legitimate zoning criterion on the basis of a handful of state-court decisions that
touch upon the issue. Providing such a national answer to a traditionally state and local issue runs
counter to the principles of federalism.

2. Upper Arlington’s assertion of revenue maximization as the purpose of
the Development Ordinance is not pretextual.

Tree of Life next contends that revenue maximization is a pretextual explanation for the
exclusion of schools from the office district because the Development Ordinance permits
nonprofits in the district from which the city cannot collect property taxes or entity-level income
taxes. See Ohio Rev. Code §§ 5709.07, .12; Upper Arlington, Ohio, Revenue & Fin. Code
§ 203.02(C)(12)(d), https://library.municode.com/oh/upper_arlington/codes/code_of_ordinances
?nodeId=PT2REFICO_CH203INTAEFJA12016. But Upper Arlington need not tailor its zoning
regulations to squeeze every last dollar out of the permitted uses within the office district to
credibly claim that it has structured the Development Ordinance to generate more revenue than
would be generated without the restrictions. Moreover, Upper Arlington’s 2001 Master Plan
specifically identified the generation of personal-income-tax revenue as a zoning goal:

Income taxes are an important source of Upper Arlington’s revenues and every
effort will be made to broaden and expand the City’s employment base in order to
increase these tax revenues. . . . Encouraging development that helps attract
well-paying jobs will enhance the income base. These jobs will in turn generate a
higher level of income tax revenues, some of which can be targeted for regular
maintenance of the City’s infrastructure.
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 20

Because Upper Arlington is able to collect personal income taxes from a nonprofit’s
employees, the Development Ordinance’s allowance for nonprofit entities in the office district
does not contradict the asserted purpose of the regulation. Nor does Tree of Life argue that the
Development Ordinance has been ineffective in generating revenue for the City. As previously
noted, the prior occupant of the Property, AOL/Time Warner, accounted for 29% of all
personal-income-tax revenue collected by the City in 2001. Accordingly, Tree of Life cannot
credibly argue that the asserted purpose of the Development Ordinance is pretextual.

3. Daycares are the only potentially valid comparator put forward by Tree of
Life.

Tree of Life put forward only daycares and partially used offices as comparators in its brief
in support of its motion for final judgment. On appeal, the school also adds publishers as
comparators and briefly mentions that outpatient-surgery centers are comparable. But the school’s
expert witnesses limited their analyses of potential comparators to daycares. Without any evidence
that any other land uses generate less revenue for the City than would Tree of Life, they cannot be
the foundation of a prima facie case.

As for partially used offices, the district court persuasively explained why they are not an
acceptable comparator:

[I]f a partial use is accepted as a valid comparator, then there can never be a case
in which a city with the goal of maximizing revenue could ever prevail. A city can
set forth the regulatory purpose, but a city cannot demand full use of a property to
realize that purpose. Therefore, for purposes of the analysis of similar comparators,
the Court finds it should look to the comparison of the full use of one assembly or
institution compared to the full use of another type of assembly or institution.

Tree of Life Christian Sch. v. City of Upper Arlington, No. 2:11-cv-09, 2017 WL 4563897, at *14
(S.D. Ohio Oct. 13, 2017) (citations to the record and internal quotation marks omitted). Tree of
Life argues that because the Development Ordinance does not set a floor for the number of workers
that a user of land can employ, partially used offices are valid comparators.

But this argument could be used to undercut almost any regulatory purpose behind a
land-use ordinance. All zoning decisions require the regulatory authority to project the effects that
a particular land use will have on the municipality. A municipality seeking to maximize revenue
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 21

must project the type of labor force that a particular land use will attract. Similarly, a municipality
that is concerned about traffic congestion and noise pollution must project how each particular
land use will impact those conditions.

Irrespective of the regulatory goal, however, a municipality cannot guarantee that its
predictions will be borne out once its policies go into effect. But municipalities cannot be faulted
for zoning decisions that utilize the best data available to make good-faith predictions in the face
of such inherent uncertainties. The assumption that, as a general matter, entities within an office
district will operate at full capacity strikes us as an appropriate good-faith prediction.

Moreover, Tree of Life has offered no credible explanation for why an entity that requires
only a small amount of square footage for its operation would choose to situate itself in (and pay
for) a 254,000-square-foot building on a 16-acre tract of land. Tree of Life’s only evidence that
such a use might occur in the office district is that AOL/Time Warner used the Property at partial
capacity as it wound down its operations there. But this short-term situation is clearly
distinguishable from the City’s long-term zoning goals.

We therefore conclude that the district court correctly assumed for the purpose of its
analysis that regulators can reasonably contemplate full usage of property when making zoning
decisions. Accordingly, daycares are the only potentially valid comparator that Tree of Life has
put forward.

4. Tree of Life presented no evidence suggesting that nonprofit daycares are
similarly situated to its proposed school in terms of their capacity to
generate revenue.

Tree of Life retained two expert witnesses to make its case that nonprofit daycares are
similarly situated to its proposed school in terms of their revenue-generating ability. Robert Siegel
is an early-care and education consultant. Tree of Life asked him to estimate the number of
employees required to operate a daycare located on the Property and the payroll that such a
workforce would generate. The largest daycare with which Siegel was familiar serves 600
children. Accordingly, he based his estimates on the assumption that a daycare of that size would
be housed at the office building on the Property. Siegel estimated that such a daycare would
require 35,000 square feet of operating space.
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 22

He also determined that 170,000 square feet of the building on the Property is usable as a
daycare. Thus, roughly 20% of the usable space on the Property would be devoted to the daycare
that Siegel envisioned. Siegel noted, however, that the excess 135,000 square feet of usable space
“opens [up] all types of possibilities that would stabilize the [daycare], greatly improve program
quality, and offer a marketplace advantage.” He listed several of these ideas, including a
“gymnasium, indoor playground, several larger multi-purpose rooms, a nurses’ office, parent
lounge, cafeteria, teacher’s only area, nursing room, additional conferencing space for parent
meetings, or a training room.” Siegel did not, however, offer any estimate for how much of the
excess space those amenities might occupy.

According to Siegel, a workforce of 159 people would be needed to care for 600 children.
And this estimate does not appear to account for staffing of any of the “possibilities” that Siegel
envisioned for the excess 135,000 square feet of usable space because his budget chart does not
list employees who would staff those areas. Siegel estimated that a workforce of 159 people would
generate an annual payroll of $3,154,470.

Tree of Life retained its second expert witness, a business and financial consultant named
Rebekah Smith, for the purpose of calculating the amount of income-tax revenue that various land
uses on the Property would generate for Upper Arlington. Specifically, she estimated the amount
of income-tax revenue that Tree of Life’s proposed school and Siegel’s hypothetical daycare would
generate. In doing so, she relied on the estimates of Tree of Life Superintendent Todd Marrah,
who projected that the consolidated campus would serve 1,200 students with a workforce of 275
staff members, generating an annual payroll of $5,000,000, as well as Siegel’s estimates noted
above.

Smith estimated, based on those numbers, that Tree of Life employees would pay $125,000
annually in income taxes to the City. By comparison, she estimated that Siegel’s hypothetical
daycare would yield $83,987 in annual personal-income-tax revenue if operated as a for-profit
entity and $78,862 if operated as a nonprofit entity. Smith concluded, based on those figures, that
“Upper Arlington’s tax benefit from the Tree of Life school operations would be better as
compared” to Siegel’s hypothetical daycare.
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 23

This analysis, however, is deeply flawed. It glosses over the partial use of the Property
that Siegel’s estimates reflect. Tree of Life paid AOL/Time Warner $26 per square foot for the
254,000-square-foot office building. One is hard-pressed to believe that a prudent operator of a
daycare would pay approximately $5.7 million dollars for 219,000 square feet of excess space
(254,000 square feet of total space minus 35,000 square feet for the hypothetical daycare) that
would not be used as a daycare. (219,000 square feet of unused space x $26 per square foot ≈ $5.7
million).

The far more likely scenario is that the vast remainder of the office building would not
remain vacant, but would be utilized by the landowner for productive uses other than the daycare.
This would result in the Property as a whole cumulatively generating far more revenue for the City
than Tree of Life would generate by itself. So an accurate picture of relative revenue-generating
capacities cannot be ascertained simply by comparing the absolute amount of income-tax revenue
that Tree of Life’s full use of the Property would generate to the amount that would be yielded by
the 35,000 square feet contemplated for Siegel’s hypothetical daycare.

Upper Arlington’s expert witness, Catherine Armstrong, provides a far superior basis for
comparing the two entities. Armstrong, the City’s former Director of Finance and Administrative
Services, used actual data from the City to show how much tax revenue is yielded by various land
uses that are permitted in the office district versus that produced by daycares. Rather than
presenting this data in absolute terms, as Smith did, Armstrong calculated the amount of annual
revenue per square foot generated by the various entities that she analyzed. This approach allows
for an apples-to-apples comparison between entities of different sizes. Armstrong’s data show that
an existing for-profit daycare generates $4.77 in annual revenue per square foot for the City as
compared to $0.62 per square foot that Tree of Life would generate. All other uses that she
considered would generate revenue at even higher rates.

Not unreasonably, Tree of Life criticizes Armstrong’s analysis because the daycare on
which she based her calculations was a for-profit entity that paid property taxes and entity-level
income taxes, whereas Tree of Life, as a nonprofit, would not pay either type of tax. But by
combining the data in the reports generated by Siegel and Smith with the methodology used by
Armstrong, an accurate comparison is possible.
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 24

As mentioned previously, Siegel’s payroll estimate was based on 35,000 square feet of
used space. Smith estimated that a payroll of the size estimated by Siegel would yield $78,862 in
annual personal-income-tax revenue for the City from employees working at a nonprofit daycare.
Those figures equate to $2.25 in annual revenue per square foot of used space, which is still more
than three times the amount of revenue per square foot that Tree of Life would generate. That
calculation is roughly the same as the amount of annual revenue per square foot that the daycare
analyzed by Armstrong provides to Upper Arlington if one excludes the property taxes that the
daycare pays ($9,300 in income taxes ÷ 3,919 square feet = $2.37 per square foot).

In sum, Tree of Life has not established a prima facie case under RLUIPA’s equal terms
provision because it has failed to identify a permitted land use that would generate a comparably
small amount of revenue for the City. Even the largest daycare with which Tree of Life’s own
expert witness is familiar would use only 35,000 square feet of the existing 254,000 square feet of
available space in the office building on the Property. The application of Armstrong’s
methodology to Siegel’s and Smith’s data leads to the inexorable conclusion that daycares generate
far more revenue on a per-square-foot basis than Tree of Life would. Accordingly, the school’s
equal terms claim fails.

III. CONCLUSION

For all the reasons set forth above, we AFFIRM the judgment of the district court.
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 25

_________________

DISSENT
_________________

THAPAR, Circuit Judge, dissenting. Since the founding of this nation, religious groups
have been able to “sit in safety under [their] own vine and figtree, [with] none to make [them]
afraid.” Letter from George Washington to the Hebrew Congregation in Newport, R.I. (Aug. 18,
1790). In keeping with that promise over two hundred years later, Congress enacted the Religious
Land Use and Institutionalized Persons Act (RLUIPA) to protect religious groups from
discriminatory zoning laws. But the courts have forgotten this country’s sacred vow and failed to
give RLUIPA the effect its written text demands. Now our circuit does the same. I respectfully
dissent.

I.

“[A] page of history is worth a volume of logic.” N.Y. Trust Co. v. Eisner, 256 U.S. 345,
349 (1921). And the history of exclusionary zoning is sordid. Initially, the practice came about
when local officials sought to divide land into districts with specific uses. But “[w]hat began as a
means of improving the blighted physical environment . . . became a mechanism for protecting
property values and excluding the undesirables.” Christopher Silver, The Racial Origins of Zoning
in American Cities, in Urban Planning and the African American Community: In the Shadows
(June Manning Thomas & Marsha Ritzdorf eds., Sage Publications 1997) (internal quotation
marks omitted) (quoting noted urban planner Yale Rabin). At first, municipalities passed zoning
codes that discriminated on their face. Buchanan v. Warley, 245 U.S. 60, 70–71 (1917). But the
Supreme Court struck those down. Id. at 82. So local officials employed more covert methods in
the hope of evading scrutiny. Rather than saying “no blacks allowed,” zoning ordinances instead
imposed minimum-size house requirements and excluded mobile homes and multiple-dwelling
units in certain districts. Andrew H. Whittemore, The Experience of Racial and Ethnic Minorities
with Zoning in the United States, 32 J. of Planning Lit. 16, 19 (2017). These ordinances effectively
kept racial minorities out of “whites-only” neighborhoods. See id. But because municipalities
cloaked these ordinances with neutral, bureaucratic concerns—such as noise, traffic, and taxable
income—the courts largely upheld them. Village of Euclid v. Ambler Realty Co., 272 U.S. 365,
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 26

394 (1926) (concluding that a municipality could exclude apartment buildings because they would
destroy the “residential character of the neighborhood”).

So in 1968, Congress stepped in and passed the Fair Housing Act to prevent municipalities
from basing land-use laws on race, national origin, color, or familial status. 42 U.S.C. § 3604; see
also Tex. Dep’t of Housing & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2525
(2015) (holding that disparate-impact claims are cognizable under the Fair Housing Act). Courts
could no longer countenance neutral language masking discriminatory zoning codes.

Within a matter of years, however, other discriminatory zoning practices surfaced—this
time aimed at religious groups. Sometimes the discrimination was overt. For example, when a
Jewish group in Ohio submitted a land-use proposal, an objector at the subsequent zoning hearing
told them: “Hitler should have killed more of you.” H.R. Rep. No. 106-219, at 23 (1999).
Similarly, a Pentecostal group that applied for a zoning permit heard in response: “Let’s keep
these God damned Pentecostals out of here.” Id. Other cases featured more subtle bias. As they
had done with racial minorities, municipalities clothed their objections to religious organizations
with the same ordinary concerns: traffic, noise, and lost tax revenue. 146 Cong. Rec. 16,698 (2000)
(joint statement of Senators Orrin Hatch and Ted Kennedy noting that “often, discrimination
lurks behind such vague and universally applicable reasons as traffic, aesthetics, or not
consistent with the city’s land use plan’”) (hereinafter Joint Statement). Instead of saying “no
Muslims allowed,” city planners complained of the traffic on Fridays when Muslims gathered to
pray. Emma Green, The Quiet Religious-Freedom Fight That Is Remaking America, The Atlantic
(Nov. 5, 2017), https://www.theatlantic.com/politics/archive/2017/11/rluipa/543504/; see also
H.R. Rep. No. 106-219, at 23 (“[L]and-use regulators often refuse permits for Orthodox
synagogues because they do not have as many parking spaces as the city requires for the number
of seats.”).

These mundane justifications were as effective in excluding religious groups as they were
racial minorities. An ordinance based on traffic, for instance, prohibited churches because they
generated too much traffic for a residential area but not enough traffic for a commercial area. Joint
Statement at 16,698. As a result, “[z]oning codes frequently exclude[d] churches in places where
they permit[ted] theaters, meeting halls, and other places where large groups of people assemble
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 27

for secular purposes.” Id. And when religious assemblies challenged these ordinances, the courts
offered no relief, often upholding the laws because the government had “good reason” to exclude
the religious. See, e.g., Christian Gospel Church, Inc. v. City of San Francisco, 896 F.2d 1221,
1223–26 (9th Cir. 1990) (upholding a zoning denial for a church); Grosz v. City of Miami Beach,
721 F.2d 729, 731–32, 741 (11th Cir. 1983) (upholding a zoning law that prohibited “organized,
publicly attended religious services”); see also First Assembly of God of Naples, Fla., Inc. v.
Collier Cty., 20 F.3d 419, 420, 424 (11th Cir. 1994) (upholding zoning ordinance that permitted a
church but denied its attached homeless shelter).

Recognizing these problems, Congress stepped in once more and unanimously enacted the
Religious Land Use and Institutionalized Persons Act (RLUIPA) to prevent municipalities from
excluding religious assemblies or institutions—either overtly or covertly. Joint Statement at
16,698 (“Churches . . . are frequently discriminated against on the face of zoning codes and also
in the highly individualized and discretionary processes of land use regulation.”). In doing so,
Congress extensively documented the discrimination that RLUIPA targeted. See River of Life
Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367, 378–80 (7th Cir. 2010) (en banc)
(Sykes, J., dissenting) (describing the history behind RLUIPA); Sarah Keeton Campbell, Note,
Restoring RLUIPA’s Equal Terms Provision¸ 58 Duke L.J. 1071, 1079–85 (2009) (discussing the
legislative record behind RLUIPA). Congress’s attempt to address religious discrimination,
however, has not been as effective. That fault lies not with Congress, but with the courts, which
have added requirements into RLUIPA that prevent many religious groups from seeking the shelter
that Congress sought to provide. Today, our circuit joins a host of others that have improperly
written new demands into the statute’s “Equal Terms” provision—to which I now turn.

II.

When interpreting a statute, we always start with its terms. E.g., Advocate Health Care
Network v. Stapleton, 137 S. Ct. 1652, 1658 (2018). And the Equal Terms provision is plain: “[n]o
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.”
42 U.S.C. § 2000cc(b)(1). The statute thus requires a plaintiff bringing a claim to prove four
elements: (1) the plaintiff is a religious assembly or institution, (2) subject to a land use regulation,
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 28

(3) that, compared with a nonreligious assembly or institution, (4) treats the plaintiff on less than
equal terms. Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cty., 450 F.3d
1295, 1307 (11th Cir. 2006). Because, as in this case, the first two elements are usually easily
proven, I elaborate only on the third and fourth.

a. Nonreligious Assemblies or Institutions

All Equal Terms cases involve a comparison between a religious entity and a nonreligious
entity. And Congress selected those entities for us: “assemblies” and “institutions.” 42 U.S.C.
§ 2000cc(b)(1); see Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1230–31 (11th
Cir. 2004). But what are “assemblies” and “institutions”? Because the statute does not define
those terms, courts must look to their natural and ordinary meaning. FDIC v. Meyer, 510 U.S.
471, 476 (1994); Midrash Sephardi, 366 F.3d at 1230; see generally Oliver Wendell Holmes, The
Theory of Legal Interpretation, 12 Harv. L. Rev. 417 (1899).

An “assembly” is “[a] group of persons gathered together for a common reason.” American
Heritage Dictionary of the English Language (4th ed. 2000); see also Webster’s Encyclopedic
Unabridged Dictionary of the English Language (1996) (defining assembly as “a group of persons
gathered together, usually for a particular purpose, whether religious, political, educational, or
social”). And that group of people typically has a degree of “affinity, organization, and unity
around [that] common purpose.” River of Life, 611 F.3d at 390 (Sykes, J., dissenting). Take a
health club. People gather there for “exercise and athletic classes of various kinds, as well as sports
and social-club meetings and team competitions.” Id.

An “institution,” on the other hand, is “[a]n established organization or foundation,
especially one dedicated to education, public service, or culture.” American Heritage Dictionary
of the English Language (4th ed. 2000); see also Black’s Law Dictionary (7th ed. 1999) (defining
“institution” as “[a]n established organization, esp. one of a public character, such as a facility for
the treatment of mentally disabled persons”). Institutions differ from assemblies, then, in their
degree of formality and the nature of their mission—serving the common good. Your local
museum, legal aid services, or even the Girl Scout headquarters would all count as institutions.
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 29

By using such unambiguous and well-understood words, Congress made our job easy.
Nevertheless, some courts have added a gloss onto this part of the statute. Rather than simply
asking whether a nonreligious entity qualifies as an “assembly” or “institution,” they have required
plaintiffs to further show that the assembly or institution is also “similarly situated.”1 Third
Church of Christ, 626 F.3d at 668; River of Life, 611 F.3d at 371; Lighthouse Inst., 510 F.3d at
266. This gloss imposes a heightened pleading burden on the plaintiff.

There is one problem: Congress did not enact that burden. The Equal Terms provision
prohibits local governments from treating a religious assembly or institution on less than equal
terms than a “nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1). “Similarly
situated” appears nowhere in that mandate. And it is not for courts to assume that Congress meant
something other than what it said. Caminetti v. United States, 242 U.S. 470, 485 (1917) (“It is
elementary that the meaning of a statute must, in the first instance, be sought in the language in
which the act is framed, and if that is plain . . . the sole function of the courts is to enforce it
according to its terms.”). Congress knew about “similarly situated” standards from the Equal
Protection context and chose not to incorporate them into RLUIPA. Peter T. Reed, Note, What
Are Equal Terms Anyway?, 87 Notre Dame L. Rev. 1313, 1334 (2012); see Midrash Sephardi, 366
F.3d at 1229 (“[W]hile [the Equal Terms provision] has the ‘feel’ of an equal protection law, it
lacks the ‘similarly situated’ requirement usually found in equal protection analysis.”). And it is
beyond our court’s power to write standards into legislation, even if we think that the law would
benefit as a result. Judges are not entrusted with the job of writing (or rewriting) statutes. Nor am
I aware of an “add-a-gloss” canon that allows a court to circumvent its defined role when it suits
us. While the majority cites Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), for the
proposition that courts can read words into statutes, Marbury commands the exact opposite.

1Some circuits have required the plaintiff to show that it is “similarly situated for all functional intents and
purposes.” Third Church of Christ, Scientist v. City of New York, 626 F.3d 667, 668 (2d Cir. 2010). Other circuits
narrowed the inquiry by asking that the plaintiff show that it is “similarly situated” as to the challenged law’s
“regulatory purpose.” Lighthouse Inst. for Evangelism v. City of Long Beach, 510 F.3d 253, 266 (3d Cir. 2007). The
Seventh Circuit then altered the test further, looking not at a plaintiff similarly situated as to the regulatory purpose
but rather one similarly situated as to “accepted zoning criteria.” River of Life, 611 F.3d at 371; but see id. at 386
(Sykes, J., dissenting) (arguing that “[t]he distinction between ‘accepted zoning criteria’ and the ‘regulatory purpose’
of exclusionary zoning is nonexistent or too subtle to make any difference”). Whatever form the requirement takes,
courts have read words into the statute that Congress did not provide.
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 30

Courts say what the law is, not what the law should be. Id.; see The Federalist No. 78, at 526
(Alexander Hamilton) (J. Cooke ed., 1961) (“The courts must declare the sense of the law; and if
they should be disposed to exercise will instead of judgment, the consequence would equally be
the substitution of their pleasure to that of the legislative body.”). Congress gave us a plain text,
and basic principles of statutory interpretation compel that we apply it as written.2 Henson v.
Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017) (“[W]hile it is of course our job to
apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid
statutory text . . . .”).

Moreover, even if the plain text of the Equal Terms provision were not enough, Congress
told us in the statute how to interpret the text. Congress explicitly stated that courts are to “construe
the statute in favor of a broad protection of religious exercise, to the maximum extent permitted.”
42 U.S.C. § 2000cc-3(g). This instruction should give courts pause about divining a “similarly
situated” requirement into the Equal Terms provision. Yet courts that have applied the “similarly
situated” gloss have done so because they believed the plain meaning was “overbroad.”3 E.g.,

2The majority states that “equal terms” is ambiguous without putting forth any reasons why it is ambiguous.
Majority Op. at 16; see Duncan v. Muzyn, 885 F.3d 422, 425 (6th Cir. 2018) (“[S]imply calling something ambiguous
does not make it so.”). As I explain, the Equal Terms provision is clear. See infra Part II. Moreover, in rushing to
find ambiguity, the majority replaces Congress’s enacted text with its own preferences. As judges, we are not at
liberty to use statutory ambiguity as a device to make policy from the bench. Cf. Raymond M. Kethledge, Ambiguities
and Agency Cases: Reflections After (Almost) Ten Years on the Bench, 70 Vand. L. Rev. En Banc 315, 316 (2017)
(“There is nothing so liberating for a judge as the discovery of an ambiguity. For once a judge discovers an ambiguity
. . . [t]he statutory text approved by Congress and (usually) signed by the President becomes an afterthought.”); see
also Yates v. United States, 135 S. Ct. 1074, 1097 (2015) (Kagan, J., dissenting) (criticizing the use of canons of
construction to create ambiguity where the “statute’s text and structure suggests none” (quoting Ali v. Fed. Bureau of
Prisons, 552 U.S. 214, 227 (2008))); King v. Burwell, 135 S. Ct. 2480, 2502 (2015) (Scalia, J., dissenting) (“[E]ven
the most formidable argument concerning the statute’s purposes could not overcome the clarity [of] the statute’s text.”
(quoting Kloeckner v. Solis, 568 U.S. 41, 55 n.4 (2012))); Brett M. Kavanaugh, Fixing Statutory Interpretation,
129 Harv. L. Rev. 2118, 2134–59 (2016) (book review) (arguing against ambiguity-based decisions in statutory
interpretation and suggesting a “best reading” approach to avoid policymaking by judges).
3Some courts have suggested that a plain meaning interpretation of the Equal Terms provision may create
constitutional problems. River of Life, 611 F.3d at 370; Lighthouse Inst., 510 F.3d at 267 n.11. If true, the
constitutional avoidance doctrine might allow courts to give the Equal Terms provision a narrow reading to avoid the
broader reading’s constitutional problems. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades
Council, 485 U.S. 568, 575 (1988). But the avoidance canon has a notable exception: Courts cannot narrow a statute
if the narrower interpretation is “plainly contrary to the intent of Congress.” Id. Congress gave such a contrary intent
in RLUIPA when it instructed courts “to construe the statute in favor of a broad protection of religious exercise, to the
maximum extent permitted.” 42 U.S.C. § 2000cc-3(g). In any event, the parties here have not argued that the Equal
Terms provision runs afoul of the Constitution, so I express no opinion on the matter. See River of Life, 611 F.3d at
391 (Sykes, J., dissenting) (noting that whether the Equal Terms provision exceeds Congress’s authority “is an
important and sensitive question that should not be resolved unless raised and fully briefed”); but see Campbell, supra,
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 31

River of Life, 611 F.3d at 370; Lighthouse Inst., 510 F.3d at 268 (noting that under a plain meaning
analysis, an ordinance that permitted a book club would also have to permit a “religious assembly
with rituals involving sacrificial killings of animals”). Congress can only tell the courts what a
statute means in so many ways. And when its legislatively-enacted instructions reinforce the plain
meaning of the words it used, courts ought to listen. See Yates, 135 S. Ct. at 1101 (Kagan, J.,
dissenting) (“If judges disagree with Congress’s choice, we are perfectly entitled to say so—in
lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute
Congress enacted with an alternative of our own design.”).

So long as a plaintiff can point to a nonreligious “assembly” or “institution,” the plaintiff
satisfies the third element. See 42 U.S.C. § 2000cc(b)(1) (requiring comparison with a
“nonreligious assembly or institution”). The text requires nothing more. Neither should courts.

b. “Less Than Equal Terms”

Once the plaintiff has identified assemblies and institutions, it must then show that the
challenged law treats the religious ones on “less than equal terms” than the nonreligious ones.
When Congress adopted the Equal Terms provision, it did so amidst contentious interpretations of
the Free Exercise Clause. River of Life, 611 F.3d at 380, 378–80 (Sykes, J., dissenting). Most
circuits that have reached the issue agree that this background jurisprudence shows that a law can
treat religious groups on “less than equal terms” in three ways. Primera Iglesia, 450 F.3d at 1308.

Facial inequality. First, a plaintiff can show less than equal treatment if the law treats
religious assemblies or institutions differently than nonreligious assemblies or institutions by its
very terms. Consider an ordinance that permits social clubs but prohibits churches and
synagogues. Midrash Sephardi, 366 F.3d at 1220. The nonreligious assemblies get in. The
religious ones do not. The ordinance thus facially treats religious assemblies—churches and
synagogues—on less than equal terms than nonreligious assemblies—social clubs. That is the
disparate treatment that the Equal Terms provision prohibits. Id. at 1231.

at 1094–99 (explaining why a plain meaning approach has no constitutional problems under § 5 of the Fourteenth
Amendment).
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 32

Gerrymandered inequality. A plaintiff can also show less than equal treatment if the law
in question, while facially neutral, nonetheless targets religion through a “religious gerrymander.”
Primera Iglesia, 450 F.3d at 1309 (quoting Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 535 (1993)). This occurs when the law separates permissible uses in a way
that burdens “almost only” religious groups. Id. Imagine a law that bans all steeples on buildings.
On its face, the law looks neutral. No building, religious or secular, can have a steeple. But if a
plaintiff can show that the ban “almost only” targets religious assemblies because only religious
buildings have steeples, then the plaintiff has successfully demonstrated that the law treats
religious assemblies on “less than equal terms.”

As-applied/selective inequality. Finally, a plaintiff can show less than equal treatment if
the government selectively applies a facially-neutral law in a way that excludes religious
assemblies or institutions. River of Life, 611 F.3d at 383 (Sykes, J., dissenting). Since the statutory
terms do not make a distinction, courts have to look at whether the comparators actually received
different treatment. Consider, for instance, an ordinance banning all assembly halls that can hold
more than 500 members. A megachurch with over 500 members applies for a zoning exception,
and the city denies the request. But then an over-sized book club applies for an exception that the
city grants. This time, the city has “implemented” the ordinance in a way that treats religious
assemblies on “less than equal terms” than nonreligious assemblies. The city granted an exception
to a nonreligious assembly (the book club) while refusing to do the same for a religious assembly
(the church).

c. Burden-Shifting

If the plaintiff makes out a prima facie case under the Equal Terms provision, RLUIPA
shifts the burden to the government. 42 U.S.C. § 2000cc-2(b). The government could, for
instance, argue that the plaintiff’s selected comparators do not fit within the plain meaning of an
“assembly or institution.” Maybe the plaintiff selected hotels as a comparator. If so, a good
argument that hotels do not actually qualify as “assemblies” could carry the day. See River of Life,
611 F.3d at 390 (Sykes, J., dissenting). Alternatively, the government might contend that the law
does not treat the religious assembly or institution on “less than equal terms.” This would be a
near-impossible task when it comes to facial inequality cases. But in either gerrymandered or as-
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 33

applied/selective inequality cases, the government could provide evidence showing that the law in
question does not actually treat religious assemblies differently. Maybe other buildings use
steeples such that a ban does not “almost only” target religious uses. Or, in as-applied/selective
inequality cases, the government might have evidence showing that the plaintiff did in fact receive
equal treatment compared to other nonreligious assemblies or institutions. See Centro Familiar
Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1173 (9th Cir. 2011). Indeed, that’s
where “similarly situated” can come into the analysis: not as a heightened pleading requirement
on the plaintiff, but instead as a governmental rebuttal to an as-applied challenge. Id. With a truly
neutral statute, courts can only analyze different treatment by digging into the context and
determining whether the religious group really received “less than equal terms.” Cf. id. at 1172;
see also River of Life, 611 F.3d at 387 (Sykes, J., dissenting). RLUIPA puts the burden on the
government, not the plaintiff, to make that showing.

One final point about the legal standard: because RLUIPA places the ultimate burden on
the government, some courts have interpreted the text to include a strict scrutiny “safe harbor.”
42 U.S.C. § 2000cc-2(b); Midrash Sephardi, 366 F.3d at 1232. For these courts, a zoning action
that is a prima facie violation can be saved if the government can show that it satisfies strict
scrutiny. But just as “similarly situated” does not appear anywhere in the Equal Terms provision,
neither does “strict scrutiny” nor any other terms that might trigger a strict scrutiny analysis. And,
again, when words do not appear in a statute, we should not add to what Congress has provided
with what we think Congress should have provided. Congress could have told courts to apply
strict scrutiny if the plaintiff makes out a prima facie case. In fact, Congress did exactly that—in
a different provision in RLUIPA. Just a few lines above the Equal Terms subsection, Congress
included a provision that prohibits governments from enacting land-use regulations that
substantially burden religious exercise unless they have a “compelling governmental interest” and
the regulation is the “least restrictive means” of furthering that interest. 42 U.S.C. § 2000cc(a)(1).
We thus know that Congress was aware of the strict scrutiny buzzwords and included none of them
in the Equal Terms provision. Centro Familiar, 651 F.3d at 1171 (“The Constitutional phrases,
‘substantial burden,’ ‘compelling governmental interest,’ and ‘least restrictive means’ are all
included in the ‘substantial burden’ provision, not the ‘equal terms’ provision.”); Lighthouse Inst.,
510 F.3d at 269 (“[W]e find that Congress clearly signaled its intent that the operation of the Equal
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 34

Terms provision not include strict scrutiny by the express language of [the Substantial Burden
provision] . . . .”). We must respect that decision and refrain from adding it in ourselves. And that
means that if governments do not carry their burden once shifted, RLUIPA holds them liable
without exception.

III.

That brings us to this case. In order to generate more revenue for municipal services, the
City of Upper Arlington enacted a land-use ordinance that partitioned parts of the City into office-
district zones. The ordinance divided land uses into three categories. Some land uses were
permitted outright, such as banks, beauty parlors, business offices, daycares, hospitals, and
outpatient surgery centers. Others were strictly prohibited, including schools. And some had to
apply to the City for a conditional use permit, such as places of worship.

In 2010, Tree of Life Christian Schools purchased an office building in an office-district
zone. Tree of Life wanted to consolidate its three separate campuses into one central location. But
Tree of Life ran into a problem: the ordinance prohibited its intended use. And the city was
unwilling to grant it a conditional permit as a place of worship. So Tree of Life filed a complaint
in federal court alleging, among other things, that the City’s ordinance violated the Equal Terms
provision.

a. Nonreligious Assemblies or Institutions

In its complaint, Tree of Life presented at least two possible nonreligious assemblies or
institutions as comparators: hospitals and daycares. The first option is easy. Hospitals are formal
establishments that provide a public good—namely, health care. Moreover, dictionaries define a
hospital as a “charitable institution.” E.g., Merriam-Webster, https://merriam-
webster.com/dictionary/hospital (2018) (emphasis added). So a hospital serves as a proper
comparator under the Equal Terms provision.

Similarly, daycares are assemblies, and the parties do not argue otherwise. Parents drop
their children off each day with the common purpose of leaving them with adult supervisors. And
the daycare’s activities center around a common purpose. From play time to nap time, everything
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 35

in a daycare involves watching (and maybe even educating) the kids. As such, it’s hard to escape
the conclusion that a daycare counts as an assembly. See River of Life, 611 F.3d at 390 (Sykes, J.,
dissenting). So a daycare also serves as a proper comparator.

Even so, the City argues that daycares are not a proper comparator because its ordinance
no longer allows daycares in that district. As it turns out, the City amended its ordinance to exclude
daycares after Tree of Life filed this lawsuit, and the district court sua sponte issued an injunction
prohibiting the City from adding them back in. Given these developments, the City now contends
that the district court’s injunction nullifies daycares as a proper comparator for purposes of this
case. The City is wrong for two reasons. First, when Tree of Life applied for a conditional use
permit, the ordinance allowed daycares without reservation while banning schools and requiring
that “places of worship, churches” petition for approval. Tree of Life seeks compensatory damages
for the harm it suffered because of this unequal treatment. And when a plaintiff seeks damages,
courts focus on that harmful moment rather than looking at subsequent government actions. See
Brandywine, Inc. v. City of Richmond, 359 F.3d 830, 835–36 (6th Cir. 2004) (holding that a
subsequent zoning amendment did not moot claims for monetary damages). Otherwise,
governments could always rewrite ordinances after-the-fact and avoid RLUIPA liability. Second,
district courts cannot issue injunctions excising nonreligious assemblies from an ordinance to
resolve an Equal Terms dispute. If they could, district courts could effectively nullify the Equal
Terms provision by preventing plaintiffs from ever having valid comparators when bringing a
claim. Plus, the proper remedy for Equal Terms violations is not to exclude the nonreligious but
to include the religious. Cf. River of Life, 611 F.3d at 388 (Sykes, J., dissenting) (“The equal-terms
provision is a remedy against exclusionary zoning; reading it to require equality of treatment with
excluded secular assemblies . . . gives religious assemblies no remedy at all.”).

b. “Less Than Equal Terms”

Tree of Life has also presented evidence showing that the ordinance treats it on “less than
equal terms” than nonreligious assemblies or institutions under both the facial inequality theory
and the as-applied/selective inequality theory. I address each in turn.
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 36

Facial inequality. As noted above, an ordinance treats a religious assembly on “less than
equal terms” if it makes a distinction on its face. And the City’s ordinance does just that. The
ordinance allows daycares and hospitals to set up shop while requiring that “places of worship,
churches” apply for a conditional use permit. The ordinance thus requires religious assemblies to
take extra steps that nonreligious assemblies do not have to take. This express distinction
establishes unequal treatment. Elijah Grp., Inc. v. City of Leon Valley, 643 F.3d 419, 424 (5th Cir.
2011); Centro Familiar, 651 F.3d at 1171.

The district court erred in holding otherwise. The district court thought that, because the
ordinance treated all schools on equal terms, the ordinance did not facially violate RLUIPA. But
that comparison is too narrow. The Equal Terms provision focuses on whether the ordinance treats
religious assemblies and institutions on equal terms with all nonreligious assemblies and
institutions. The comparators need not be of the same species.4 Any assembly or institution—
here, church versus daycare or hospital—will do.

But the City advances another reason why the ordinance would survive a facial challenge.
It contends that because Tree of Life’s “proposed primary use” was to establish a private school,
it does not qualify as a “place of worship, church” as that phrase is used in the ordinance. The
ordinance, however, does not define “place of worship, church” or expressly exclude private
religious schools from that category.

Nevertheless, the City argues that customary dictionary definitions prove that a school is
not a place of worship. But the City did not actually provide any definitions. And a closer look at
dictionaries reveals that the City’s customary definition is not so customary. Most dictionaries
define a “place of worship” as “a building where people gather to worship together.” E.g., Collins
English Dictionary, https://www.collinsdictionary.com/us/dictionary/english/place-of-worship
(2018); see also Merriam-Webster, https://www.merriam-webster.com/dictionary/worship (2018)
(defining “worship” as “honor[ing] or rever[ing] . . . a divine being”). And Tree of Life’s mission
is to “glorify God by educating students in His truth and discipling them in Christ.” R. 2, Pg. ID

4Moreover, if we limited the comparators to schools, then municipalities would always have the upper hand
because they can presumably place public schools wherever they see fit. So public, nonreligious schools would never
actually face the prohibition at issue here. Private, religious schools, on the other hand, always would.
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 37

5. In doing so, Tree of Life “puts the Bible at the center” of its educational model and requires all
students to evaluate their studies “through the lens of God’s Word.” R. 2, Pg. ID 5. So students
and teachers gather together to honor God through education. That looks a lot like a “place of
worship.” In concluding otherwise, it appears that the City relied on its own subjective notions of
worship—the exact unchecked discretion that RLUIPA prohibits. Campbell, supra, at 1082
(“[Z]oning laws are ‘commonly administered through individualized processes not controlled by
neutral and generally applicable rules.’” (quoting H.R. Rep. No. 106-219, at 24)); see Joint
Statement at 16,699 (“Churches . . . are often frequently discriminated against . . . in the highly
individualized and discretionary processes of land use regulation.”). As such, the City’s ordinance
facially discriminates, and the City used the ordinance to discriminate against Tree of Life. The
City is liable.5

The majority claims that Tree of Life cannot succeed under a facial challenge because it
abandoned any argument that it is a “place of worship.” Majority Op. at 10. But the majority
misses the bigger picture. Tree of Life brought one claim: under RLUIPA, the City’s ordinance
treated it on “less than equal terms” than nonreligious assemblies or institutions. And it advanced
multiple arguments to support that claim. When the district court held that the ordinance did not
violate the Equal Terms provision, that judgment subsumed all of those arguments. 6 Yet, on
appeal, Tree of Life continues to press the same claim, supported (if not in the exact same words)
by the same arguments. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (“When
an issue or claim is properly before the court, the court is not limited to the particular legal theories
advanced by the parties, but rather retains the independent power to identify and apply the proper
construction of governing law.”); see also Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374,

5In a prior appeal, this court made an off-hand comment about the ordinance being neutral for constitutional
purposes. Tree of Life Christian Schs. v. City of Upper Arlington, 823 F.3d 365, 373 (6th Cir. 2016). That statement,
however, did not constitute a holding. The court mentioned facial neutrality in only one sentence with no reasoning—
and it did so in the constitutional context, not in the Equal Terms context. Because this court did not squarely consider
whether the ordinance here was facially neutral, the law-of-the-case doctrine does not prevent us from holding
otherwise. Moody v. Mich. Gaming Control Bd., 871 F.3d 420, 425 (6th Cir. 2017) (noting that the law-of-the-case
doctrine “does not extend . . . to issues not ‘fully briefed [or] squarely decided in an earlier appeal’” (quoting Burley
v. Gagacki, 834 F.3d 606, 618 (6th Cir. 2016))).
6Because the district court used the wrong legal framework, we should at the very least remand to the district
court to determine whether the ordinance is facially neutral under the Equal Terms provision.
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 38

379 (1995) (“Our traditional rule is that ‘[o]nce a federal claim is properly presented, a party can
make any argument in support of that claim; parties are not limited to the precise arguments they
made below.’” (quoting Yee v. Escondido, 503 U.S. 519, 534 (1992))). At oral argument, Tree of
Life contended that it is a place of worship and that it has not abandoned its facial argument. Oral
Arg. at 1:27–3:45. And Tree of Life’s brief contains everything necessary for that argument. In
making its as-applied argument, Tree of Life also discussed all the necessary elements for the
facial argument, just without the labels. Cf. McNeal v. Kott, 590 F. App’x 566, 569 (6th Cir. 2014)
(holding that, in the qualified immunity context, “[o]ne does not forfeit [an argument] by making
[other] arguments that, if accepted, establish [the first argument]”). Plus, in its opposing brief, the
City classifies “Tree of Life [a]s a school, not a church” to argue that its ordinance is
nondiscriminatory. Appellee Br. 5, 44. Therefore, in the court’s analysis of the ordinance, the
City’s proffered classification of Tree of Life—as a school and not a place of worship—should not
be beyond judicial review just because Tree of Life did not use “magic words” in its own brief.
See Campbell, supra, at 1103 (criticizing Equal Terms jurisprudence that “removes a
government’s regulatory objectives from judicial scrutiny”).

As-applied/selective inequality. Tree of Life also demonstrated that the ordinance violates
the Equal Terms provision under an as-applied/selective inequality theory. Even assuming Tree
of Life does not qualify as a “place of worship,” it still faced a blanket ban, which other
nonreligious assemblies and institutions did not. The ordinance bans schools, including Tree of
Life. But the ordinance permits some nonreligious assemblies and institutions as of right—
daycares and hospitals needed to do no more than set up shop in the district. So when the City
denied Tree of Life’s use—despite allowing daycares and hospitals without question—it treated
Tree of Life on “less than equal terms” than nonreligious assemblies and institutions.

c. Burden-Shifting

The City makes two arguments to rebut Tree of Life’s prima facie case. Both are
unavailing.

Tax Revenue. First, the City argues that it did not treat Tree of Life unequally because
every other comparator—daycares and hospitals included—produced far more tax revenue to the
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 39

City than Tree of Life ever could. Thus, according to the City, it treated Tree of Life equally:
revenue generation is what counts in zoning decisions under the ordinance, and Tree of Life
produces less revenue. But that is only true if you let the City decide how to quantify revenue after
the fact. For instance, one could measure revenue in total dollars. And under that metric, Tree of
Life generates more tax dollars than the existing daycares in the district. But (at least in this case)
the City does not want the courts to look at total dollars—only revenue per square foot. This tactic
feels a lot like “heads the City wins, tails Tree of Life loses.” And if cities can take a vague
regulatory purpose and define the parameters during the course of litigation, they can always avoid
RLUIPA liability. All they have to do is find the parameters that make them win. See River of
Life, 611 F.3d at 371 (criticizing the use of regulatory purpose as a “guide to interpretation”
because such a use would make RLUIPA turn on the subjective notions of local officials). Of
course, if the ordinance itself mandated a particular way of calculating revenue, the case might be
different. But here, the City’s formula is something of a liability-avoiding chameleon.

Schools. The City also argues that, irrespective of tax revenue, it did not treat Tree of Life
differently because of religion. Rather, the City prohibited Tree of Life because it was a school.
And since the ordinance prohibits all schools, the City did not treat Tree of Life on “less than equal
terms” than any other school. That argument fails for two reasons. First, the City did not need to
treat Tree of Life differently because of religion to violate the Equal Terms provision. RLUIPA
has an entirely separate section dealing with discrimination because of religion. 42 U.S.C. §
2000cc(b)(2). The language of the Equal Terms provision, by contrast, requires no motive or bias.
River of Life, 611 F.3d at 382 (Sykes, J., dissenting). The plain language targets all unequal
treatment. Reading intent into the Equal Terms provision would make the separate
Antidiscrimination provision superfluous. And that is something that ordinary principles of
statutory interpretation forbid us from doing. Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)
(“In construing a statute we are obliged to give effect . . . to every word Congress used.”).

Nor does pointing to a blanket ban on schools suffice to show that the City’s treatment of
Tree of Life was equal. Here again, the City’s argument hinges on limiting the relevant inquiry to
comparing schools. But the Equal Terms provision broadens the inquiry to all assemblies and
institutions—after all, Tree of Life made out a prima facie case by showing that it had been treated
 No. 17-4190 Tree of Life Christian Sch. v. City of Upper Arlington, Ohio Page 40

differently from a daycare or a hospital. So rebutting Tree of Life’s prima facie case is not as easy
as labeling Tree of Life a school and a daycare not a school. The City must justify treating schools
differently from daycares or hospitals. And it has not done so.

Accordingly, the City did not meet its burden of rebutting Tree of Life’s prima facie case.
It is liable under RLUIPA, and I would reverse.

* * *

There comes a time with every law when the Supreme Court must revisit what the circuits
are doing. That time has come. Every circuit to address the issue has given its own gloss to the
Equal Terms provision. Whether a religious plaintiff can succeed under the Equal Terms provision
thus depends entirely on where it sues. And not only have the circuits split on the issue, but many
of them have also neutralized the Equal Terms provision. By importing words into the text of the
statute, the courts have usurped the legislative role and replaced their will for the will of the people.
See The Federalist No. 47, at 325 (James Madison) (J. Cooke ed., 1961) (“Were the power of
judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary
control, for the judge would then be the legislator.” (quoting 1 Baron de Montesquieu, The Spirit
of Laws)).