Cornell Law Review

In Tree of Life Christian Schools v. City of Upper Arlington,^{11. 905 F.3d 357 (6th Cir. 2018). The recounted facts are from Brief for Amicus Curiae Parents of Students of Tree of Life Christian School in Support of Petitioner at 3–11, Tree of Life Christian Sch. v. City of Upper Arlington, 139 S. Ct. 2011 (2019) (No. 18-944). See also Ben Johnson, Explainer: Tree of Life Christian Schools v. City of Upper Arlington, ACTION INST. (MAY 17, 2019), https:// blog.acton.org/archives/108770-explainer-tree-of-life-christian-schools-v-cityof-upper-arlington.html [https://perma.cc/RG6K-R3VL] (recounting the facts of the case).} the Sixth Circuit ultimately sided with Upper Arlington in holding that the City was permitted to disallow the School from its commercial district while allowing a daycare center, because the School was not “similarly situated” to the daycare center given the School’s comparably smaller amount of potential revenue.^{22. Tree of Life Christian Sch., 905 F.3d at 374–76.} The holding was based on the court’s interpretation of the Equal Terms provision of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”),^{33. Religious Land Use and Institutionalized Persons Act of 2000 § 2(b)(1), 42 U.S.C. § 2000cc(b)(1) (2018).} which has given rise to circuit splits as to how courts should determine unequal treatment of religious land use.^{44. See Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1169 n.25 (9th Cir. 2011) (discussing the circuit splits surrounding the Equal Terms provision); see also infra sections II.1, II.2, II.3.} The U.S. Supreme Court denied certiorari to hear the School’s appeal,^{55. Tree of Life Christian Sch. v. City of Upper Arlington, 139 S. Ct. 2011, 2011–12 (2019).} leaving the circuit courts without a consensus on how to apply the Equal Terms provision.

The history of religious land use and discriminatory treatment dates back to around 350 B.C.E., as the Book of Ezra recounts how the Jewish people were able to reconstruct their Second Temple only after successfully arguing that preventing their reconstruction would constitute discrimination in the context of land use.^{66. See DANIEL P. DALTON, LITIGATING RELIGIOUS LAND USE CASES, xxiii–xxiv (2d ed. 2016) (introducing the story of the Second Temple as an example of religious land use discrimination that triggered the enactment of RLUIPA).} The issue continues to this day, evidenced by the fact that there were forty-two circuit court opinions and ninety-seven district court opinions addressing land use regulations that implicated RLUIPA from 2002 to 2018.^{77. Lucien J. Dhooge, A Case Law Survey of the Impact of RLUIPA on Land Use Regulation, 102 MARQ. L. REV. 985, 991 (2019).} Religious organizations have received a total of twelve favorable rulings out of forty-seven justiciable pleadings based on the Equal Terms provision, amounting to a success rate of about 26%.^{88. DALTON, supra note 6, at 283. Pointing to this rather low success rate, some argue that the Equal Terms provision is under-enforced. See generally Douglas Laycock & Luke W. Goodrich, RLUIPA: Necessary, Modest, and Under-Enforced, 39 FORDHAM URB. L.J. 1021, 1025, 1048–71 (2012) (arguing that RLUIPA has been under-enforced due to judicial reluctance to enforce it, and that there have been numerous cases where “churches should have easily won,” but did not).} Resolving the circuit splits to establish a more uniform approach to the Equal Terms provision could afford religious organizations some predictability as they ponder the possibility of an expensive lawsuit.

This Note will examine the circuit courts’ different approaches to interpreting the Equal Terms provision and suggest that the provision should be interpreted from the perspective of property law rather than the current judicial framework, which is inapt to resolve the inherent tension underlying RLUIPA and First Amendment jurisprudence. The Note will first identify this tension in Part I by surveying the history of RLUIPA in relation to the evolution of First Amendment jurisprudence. Part II will analyze the different approaches that circuit courts have taken to interpret RLUIPA’s Equal Terms provision, concluding that existing judicial approaches and the commentaries thereof call for an alternative approach informed by principles of property law. Part III will introduce a property theory based on the concept of human flourishing, arguing that the theory can provide an effective interpretive framework that may resolve issues regarding religious land use such as the interpretation of RLUIPA’s Equal Terms provision.

To read this Note, click here: Finding Benevolent Neutrality in Land Use: RLUIPA’s Equal Terms Provision and the Human Flourishing Theory of Property.