Lighthouse Inst v. Long Branch ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
11-27-2007
Lighthouse Inst v. Long Branch
Precedential or Non-Precedential: Precedential
Docket No. 06-1319
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1319
THE LIGHTHOUSE INSTITUTE FOR
EVANGELISM, INC.,
doing business as THE LIGHTHOUSE MISSION;
REVEREND KEVIN BROWN,
Appellants
v.
CITY OF LONG BRANCH; BCIC FUNDING CORP;
BREEN CAPITAL SERVICES, INC.;
ABRAMS GRATTA & FALVO, P.C.;
PETER S. FALVO, ESQ.; JOHN DOES A-Z;
EUGENE M. LAVERGNE, ESQ.
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 00-cv-03366)
District Judge: Hon. William H. Walls
Argued on March 27, 2007
Before: FISHER, JORDAN and ROTH, Circuit Judges
(Opinion Filed November 27, 2007)
Derek L. Gaubatz, Esquire (ARGUED)
Anthony R. Picarello, Jr., Esquire
Lori Halstead, Esquire
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, N.W.
Suite 605
Washington, D.C. 20036
Michael S. Kasanoff, Esquire
Suite 321
157 Broad Street
P. O. Box 8175
Red Bank, NJ 07701
Counsel for Appellants
2
Audrey J. Copeland, Esquire (ARGUED)
Marshall, Dennehey, Warner, Coleman & Goggin
620 Freedom Business Center
Suit 300
King of Prussia, PA 19406
Howard B. Mankoff, Esquire
Marshall, Dennehey, Warner,
Coleman & Goggin
425 Eagle Rock Avenue
Suite 302
Roseland, NJ 07068
Counsel for Appellees
Wan J. Kim, Esquire (ARGUED)
Assistant Attorney General
Civil Rights Division
950 Pennsylvania Avenue
Washington, D.C. 20530
Jessica Dunsay Silver, Esquire
Nathaniel S. Pollock, Esquire
United States Department of Justice
Civil Rights Division, Appellant Section
P. O. Box 14403
Ben Franklin Station
Washington, D.C. 20044-4403
Counsel for Amicus-Appellant USA
3
Paul J. Zidlicky, Esquire
David S. Petron, Esquire
Jason C. R. Oraker, Esquire
Jeffrey I. Shulman, Esquire
Sidley Austin LLP
1501 K Street, N.W.
Washington, D.C. 20005
Counsel for Amicus-Appellants Association of
Christian Schools and International and General
Conference of Seventh-Day Adventists
OPINION
ROTH, Circuit Judge:
This appeal requires us to clarify the nature of the
constitutional and statutory protections enjoyed by religious
assemblies against governmental interference in the form of
land-use regulations. The plaintiff/appellants are the Lighthouse
Institute for Evangelism, which describes itself as “a Christian
church that seeks to minister to the poor and disadvantaged in
downtown Long Branch, New Jersey,” and its pastor, the
4
Reverend Kevin Brown.1 The City of Long Branch is the
defendant.
The case reaches us on appeal from the grant of summary
judgment to Long Branch on Lighthouse’s facial challenge to
two Long Branch zoning ordinances which prevented
Lighthouse from locating in a certain area of downtown Long
Branch. Lighthouse challenged the ordinances under the Free
Exercise Clause of the First Amendment and the Equal Terms
provision of the Religious Land Use and Institutionalized
Persons Act (RLUIPA), 42 U.S.C. § 2000cc(b)(1).2
The primary question on this appeal is whether a
municipality may exclude religious assemblies or institutions
from a particular zone, where some secular assemblies or
institutions are allowed, without violating the Free Exercise
Clause of the First Amendment or RLUIPA’s Equal Terms
Provision.
For the reasons explained below, we will affirm in part
and vacate in part the District Court’s decision on the cross-
1
References to “Lighthouse” in this opinion are to both
plaintiffs unless otherwise specified.
2
RLUIPA’s Equal Terms provision reads: “EQUAL TERMS
– No government shall impose or implement a land use
regulation in a manner that treats a religious assembly or
institution on less than equal terms with a nonreligious assembly
or institution.” 42 U.S.C. § 2000cc(b)(1).
5
motions for summary judgment and we will remand this case to
the District Court for further proceedings consistent with this
opinion.
I. Factual and Procedural Background
A. The Initial Dispute
Lighthouse began renting space at 159 Broadway in
downtown Long Branch in 1992. At the end of 1994,
Lighthouse purchased nearby property at 162 Broadway (the
Property). The Property was then located within the C-1 Central
Commercial District, which was subject to City of Long Branch
Ordinance 20-6.13 (the Ordinance). The Ordinance enumerated
a number of permitted uses, including among others: restaurant;
variety store and other retail store; educational service and
college; “Assembly hall, bowling alley, and motion picture
theater;” governmental service; municipal building; and new
automobile and boat showrooms. A church was not listed as a
permitted use.
Between 1995 and 2000, Lighthouse attempted to obtain
permission from Long Branch to employ the Property for a
number of uses, including as a soup kitchen, a job skills training
program, and a residence for Rev. Brown, but the use was
denied in each case because the application was incomplete or
6
because the requested use was not permitted.3 Lighthouse was
allowed, however, to use the Property as an office.
On April 26, 2000, Lighthouse submitted an application
for a zoning permit to use the Property as a church. Long
Branch denied the application because the “proposed use [was]
not a permitted use in the Zone” and “would require prior
approvals from the Zoning Board of Adjustment.” Lighthouse
did not seek a variance or appeal the decision.
B. First Round of Litigation
On June 8, 2000, Lighthouse filed suit in state court
against Long Branch and other defendants, alleging a variety of
constitutional and other violations. Long Branch removed the
case to federal court. In September 2000, Congress enacted the
Religious Land Use and Institutionalized Persons Act
(RLUIPA). Lighthouse promptly amended its complaint to add
claims under sections 2(a) and 2(b) of RLUIPA (42 U.S.C. §§
2000cc(a) and (b)(1) – the “Substantial Burdens” and “Equal
Terms” sections), claiming that the Ordinance violated RLUIPA
both on its face and as applied. 4 Lighthouse requested
3
Rev. Brown continued to live on the premises without
permission for a time.
4
Lighthouse did not appeal the District Court’s grant of
summary judgment to Long Branch on its claims under the
Substantial Burdens section; therefore, those claims are not
before us.
7
injunctive relief as well as damages of eleven million dollars for
Lighthouse and $7,777,777 for Rev. Brown.
The District Court dismissed as either unexhausted or
unripe all the claims attacking the Ordinance as applied and
denied Lighthouse’s motion for a preliminary injunction.
Lighthouse appealed the denial of the preliminary injunction.
We affirmed in a nonprecedential opinion. Lighthouse Inst. for
Evangelism Inc. v. Long Branch, 100 Fed. Appx. 70 (3d Cir.
2004) (“Lighthouse I”). We reasoned that the record did not
show that the Ordinance on its face barred the use of the
property as a church; in particular, it was not clear to us that
Lighthouse would not gain approval of its intended use by
applying as an “assembly hall.” Id. at 74-75. We noted also
that Lighthouse had not proferred evidence that the Ordinance
was not a neutral law of general applicability. Thus, under the
rule of Employment Div., Dep’t of Human Res. v. Smith, 494
U.S. 872, 879 (1990), it could not be defeated by a Free
Exercise claim alone. For that reason, we concluded that
Lighthouse did not have a reasonable probability of success on
the merits of its claim that the Ordinance on its face violated the
Free Exercise clause. Lighthouse I, 100 Fed. Appx. at 75-76.
As to the RLUIPA “equal terms” claim, we noted again that it
was not clear that the use of the Property as a church would not
be approved under the “assembly hall” language. We also
concluded that Lighthouse had “failed to provide evidence to
support its contention that the secular assemblies it identified
were actually similarly situated such that a meaningful
8
comparison could be made under this provision.” Id. at 77.
C. The Redevelopment Plan
While the litigation on the Ordinance made its way
through the courts, the applicable zoning ordinance was
changed. On October 22, 2002, Long Branch adopted a
Redevelopment Plan under N.J.S.A. 40A:12A-7 that strictly
limited the use of properties within the “Broadway Corridor”
area.5 The Property was located in this area. The Broadway
5
N.J.S.A. 40A:12A-7 regulates the adoption and
implementation of a redevelopment plan and requires that such
a plan may not be adopted without “a finding that the
specifically delineated project area is located in an area in need
of redevelopment or in an area in need of rehabilitation, or in
both.” N.J.S.A. 40A:12A-7(a). It also provides that
The redevelopment plan shall include an outline for the
planning, development, redevelopment, or rehabilitation
of the project area sufficient to indicate:
(1) Its relationship to definite local objectives as
to appropriate land uses, density of population,
and improved traffic and public transportation,
public utilities, recreational and community
facilities and other public improvements.
(2) Proposed land uses and building requirements
in the project area.
9
Redevelopment Plan (the Plan) superseded the Ordinance as the
land use regulation applicable to the Property.
Long Branch adopted the Plan “in order to achieve
redevelopment of an underdeveloped and underutilized segment
of the City.” The goals of the redevelopment included
“[s]trengthen[ing] retail trade and City revenues,”
“[i]ncreas[ing] employment opportunities,” and “[a]ttract[ing]
more retail and service enterprises.” The Property is located in
the “Broadway Corridor” of the redevelopment area, a
“Regional Entertainment / Commercial” sector where the City
aimed to encourage a “vibrant” and “vital” downtown
residential community centered on a core “sustainable retail
‘main’ street.” Primary uses in that sector included theaters,
cinemas, culinary schools, dance studios, music instruction,
theater workshops, fashion design schools, and art studios and
workshops. Restaurants, bars and clubs, and specialty retail
(including book and craft stores), among others, were allowed
as secondary uses. Churches were not listed as a permitted use,
nor were schools or government buildings; the Design
Guidelines under the Plan provided that “[a]ny uses not
specifically listed” were prohibited.
The Plan also created new application requirements for
development within the relevant area. The first step in the
process, the RFQ (Request for Qualifications), required
applicants to describe the development team members’ expertise
and qualifications. The second step, the RFP (Request for
Id.
10
Proposal), required a detailed description of the project. No
property could be developed in the Redevelopment Area until
the plans had been approved by the City Council. The Plan
provided that the approved developers would acquire the
necessary properties from their owners, but reserved the right
for Long Branch to condemn properties if negotiations failed.
The Plan did not include an individual waiver procedure,
but the Plan could be amended by ordinance of the City Council
after review of the proposed amendment by the Planning Board.
On November 11, 2003, Lighthouse, as the “Long Branch
Center of Faith,” submitted an RFQ seeking to be designated as
developer for the Property. The application, about one page
long, also requested a “waiver of prohibition of church use.” It
specified that Rev. Brown sought “to use the property as a
church and for church related functions, including assembly for
prayer, pastoral residence, church offices, and a religious gift
shop from the storefront portion in front of the property.” The
RFQ was not approved.
Lighthouse appealed to the Long Branch City Council.
The City Council held an evidentiary hearing, at which Rev.
Brown and two Long Branch planners presented testimony. The
City Council denied the appeal, first, because the proposed use
was “not permitted in the zone,” and, second, because the
application was insufficient since it contained no information as
to finances, scope of the project, size of the congregation,
aesthetics or design. The City Council also denied the request
for amendment of the Plan because the “inclusion of a storefront
church would jeopardize” the development of the Broadway
11
area, which was envisioned as “an entertainment / commercial
zone with businesses that are for profit.” 6 The City Council
found that a church would “destroy the ability of the block to be
used as a high end entertainment and recreation area” due to a
New Jersey statute which prohibits the issuance of liquor
licenses within two hundred feet of a house of worship.7
D. Subsequent Litigation
After we remanded Lighthouse I (affirming the denial of
preliminary injunction), Lighthouse filed an amended complaint,
claiming that the Plan violated the Free Exercise Clause and
RLUIPA. Lighthouse Inst. for Evangelism v. Long Branch, 406
F. Supp. 2d 507 (D.N.J. 2005) (Lighthouse II). The parties filed
cross-motions for summary judgment. The District Court
granted Long Branch’s motion for summary judgment on all
6
Although Lighthouse’s request was for a “waiver,” the City
Council appears to have considered it to be a request for an
amendment of the Plan since the Plan did not provide for
waivers.
7
The City Council also mentioned the existence of a Long
Branch ordinance prohibiting the issuance of liquor licenses
within 1,000 feet of a house of worship. Since this ordinance is
not in the record and there is significant disagreement as to what
exactly it proscribes and whether it even applies within the
relevant area of Long Branch, we will not include it in our
considerations.
12
claims and denied Lighthouse’s cross-motion for partial
summary judgment. Id. at 510.8
The District Court held that neither the Ordinance nor the
Plan violated RLUIPA’s Equal Terms provision, 42 U.S.C. §
2000cc(b)(1). The court concluded that in order to prevail on a
claim based on this provision, a religious assembly or institution
must show that it is being treated worse than a similarly situated
secular assembly or institution; in this case, Lighthouse had not
shown this (1) because, as a church, it had a different effect on
the availability of liquor licenses than did secular assemblies and
(2) because there was no secular comparator planning a similar
combination of uses (church assembly, residence, store, Bible
school, etc.). The court then determined that, even if Lighthouse
were similarly situated to a secular assembly that was treated
better by Long Branch’s land use laws, the Ordinance and the
Plan survived strict scrutiny, as Long Branch had a compelling
interest in promoting the economic development of the
downtown; a church, with the attendant alcohol restrictions,
would thwart that goal. The court further concluded that the
8
Lighthouse had moved for summary judgment on the
following claims: (1) facial invalidity of the Ordinance under
the Free Exercise Clause (Count III); (2) denial of equal
protection of the laws to Lighthouse through Long Branch’s
zoning laws (Count V); (3) violations of the New Jersey
Constitution (Count VIII); (4) Violation of RLUIPA, 42 U.S.C.
§ 2000cc(a)(1) and (b) by the Ordinance (Count XIII); (5)
Violation of RLUIPA, 42 U.S.C. § 2000cc(a)(1) and (b) by the
Plan (Count XIV).
13
“substantial burden” requirement of section 2(a)(1) of RLUIPA
also applied to the section 2(b)(1) Equal Terms provision and
that Lighthouse could not demonstrate that Long Branch’s
actions imposed a substantial burden on Lighthouse’s exercise
of religion. Lighthouse II, 406 F. Supp. 2d at 516-19.
As for the Free Exercise Clause, the District Court held
that neither the Ordinance nor the Plan violated it because both
were neutral laws of general applicability. Id. at 519-20.
Lighthouse appealed the entry of summary judgment for
Long Branch and the denial of its motion for partial summary
judgment with respect only to its Free Exercise and RLUIPA
Equal Terms claims.9
The District Court had jurisdiction under 28 U.S.C. §§
1331, 1343(a)(3), 1367, and 1441, and 42 U.S.C. §§ 1983, 3612,
and 2000cc-2. We have jurisdiction of the appeal under 28
U.S.C. § 1291.
We review a district court’s grant of summary judgment
de novo. Gottshall v. Consol. Rail Corp., 56 F.3d 530, 533 (3d
Cir.1995). Summary judgment is only appropriate if there are
no genuine issues of material fact and the movant is entitled to
9
Generally, the denial of summary judgment is not a final
order subject to appeal; however, it becomes so when
accompanied by an order granting a cross-motion for summary
judgment. McFarland v. Miller, 14 F.3d 912, 917 (3d Cir.
1994).
14
judgment as a matter of law. Fed. R. Civ. P. 56(c). In
reviewing the District Court's grant of summary judgment, we
view the facts in a light most favorable to the nonmoving party.
Id. at 533.
II. Discussion
A. Mootness
As a threshold matter, Long Branch argues that
Lighthouse’s claims based on the Ordinance are moot because,
even if the Ordinance violated RLUIPA or the Free Exercise
clause, the Ordinance has now been superseded by the Plan. We
have held that where a regulation is challenged as invalid on its
face, “if an amendment removes those features . . . being
challenged by the claim, any claim for injunctive relief becomes
moot as to those features.” Nextel West Corp. v. Unity Twp.,
282 F.3d 257, 262 (3d Cir. 2002).10 Since the Plan superseded
the Ordinance in all relevant respects, its enactment has mooted
Lighthouse’s claims for injunctive relief based on the facial
invalidity of the Ordinance. Lighthouse’s claims for
compensatory damages and attorney fees, however, are not
moot. See Donovan v. Punxsutawney Area School Bd., 336 F.3d
211, 218 (3d Cir. 2003) (holding that although plaintiff’s claim
10
Nextel also held that if the amendment does not
significantly alter the existing legislation, but leaves its
objectionable features undisturbed, the claim is not moot. Id. As
explained below, we hold here that the Plan does not contain the
same objectionable features as the Ordinance.
15
for declaratory and injunctive relief was moot, her “damages and
attorney fees claims continue[d] to present a live controversy.”).
We thus will allow Lighthouse’s claims under the Ordinance
only insofar as they are claims for compensatory damages and
attorney fees.
B. RLUIPA
Before we discuss Lighthouse’s constitutional claim, we
will consider its statutory claim under the Equal Terms
Provision, 42 U.S.C. § 2000cc(b)(1). See Lyng v. Northwest
Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A
fundamental and longstanding principle of judicial restraint
requires that courts avoid reaching constitutional questions in
advance of the necessity of deciding them.”).
RLUIPA is “the latest of long-running congressional
efforts to accord religious exercise heightened protection from
government-imposed burden, consistent with [Supreme Court]
precedent.” Cutter v. Wilkinson, 544 U.S. 709, 714 (2005).
The path to the enactment of RLUIPA is well documented.
Congress initially enacted the Religious Freedom Restoration
Act (RFRA) in 1993 to counter the Supreme Court’s decision in
Employment Div., Dept. of Human Resources v. Smith, 494 U.S.
872 (1990), which held that neutral and generally applicable
laws are not susceptible to attack under the Free Exercise Clause
of the Constitution even if they incidentally burden the exercise
of religion. RFRA provided that any legislation imposing a
substantial burden on religion would be invalid unless it was the
least restrictive means of furthering a compelling state interest.
42 U.S.C. § 2000bb et seq. Shortly thereafter, the Supreme
16
Court in City of Boerne v. Flores, 521 U.S. 507 (1997), struck
down RFRA as it applied to the States because it exceeded
Congress’s remedial power under Section 5 of the Fourteenth
Amendment.
In reaction, Congress enacted RLUIPA. More limited in
reach than RFRA, RLUIPA addresses only land use regulations,
Section 2 – 42 U.S.C. § 2000cc, and the religious rights of
institutionalized persons, Section 3 – 42 U.S.C. § 2000cc-1. The
land-use section of the statute is further subdivided into two
sections: Substantial Burdens,§ 2000cc(a), and Discrimination
and Exclusion, § 2000cc(b). These sections provide:
(a) SUBSTANTIAL BURDENS –
(1) GENERAL RULE – No
government shall impose or
implement a land use regulation in
a manner that imposes a substantial
burden on the religious exercise of
a person, including a religious
assembly or 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
17
(B) is the least
restrictive means of
furthering that
c o m p e l l i n g
governmental
interest.
(2) SCOPE OF APPLICATION –
This subsection applies in any case
in which -
(A) the substantial
burden is imposed in
a program or activity
that receives Federal
financial assistance
...
(B) the substantial
burden affects . . .
commerce . . . among
the several States . . .
(C) the substantial
burden is imposed in
the implementation
of a land use
regulation or system
of land use
regulations, under
which a government
18
makes, or has in
place fo rm al or
informal procedures
or practices that
p e r m i t t h e
government to make,
individualized
assessments of the
proposed uses for the
property involved.
(b) DISCRIMINATION AND EXCLUSION –
(1) EQUAL TERMS – No
government shall impose or
implement a land use regulation in
a manner that treats a religious
assembly or institution on less than
equal terms with a nonreligious
assembly or institution.
(2) NONDISCRIMINATION – No
government shall impose or
implement a land use regulation
that discriminates against any
assembly or institution on the basis
of religion or religious
denomination.
(3) EXCLUSIONS AND LIMITS –
No government shall impose or
19
implement a land use regulation
that –
(A) totally excludes
religious assemblies
from a jurisdiction;
or
(B) unreasonably limits
religious assem blies,
institutions, or structures
within a jurisdiction.
Lighthouse argues the District Court should have entered
summary judgment in its favor because both the Ordinance and
the Plan violate RLUIPA’s Equal Terms provision on their face
by allowing secular assemblies, but not religious ones, to locate
in the zones they regulate. Lighthouse contends the District
Court misinterpreted RLUIPA, imposing additional
requirements not contemplated by the statute. It urges us to
reverse the judgment of the District Court and to hold that (1) a
plaintiff, advancing a claim under the Equal Terms provision,
need not prove that the unequal treatment imposed a “substantial
burden” on its exercise of religion; (2) the Equal Terms
provision does not require the identification of a similarly
situated comparator; a religious assembly need only show that
the challenged land-use regulations treat any secular assembly
better than the religious plaintiff; and (3) unlike the Substantial
Burdens section, the Equal Terms provision does not provide for
strict scrutiny of offending land-use regulations but rather
operates under a strict liability standard, making the regulations
20
automatically invalid. Long Branch responds that the District
Court’s decision was correct.
The parties substantially agree that both the Ordinance
and the Plan are land use regulations within the meaning of 42
U.S.C. 2000cc(b), that Lighthouse’s proposed church use is use
as a religious assembly, and that several of the permitted uses
under both ordinances are nonreligious assemblies. The
question is what else Lighthouse must show in order to prevail.
1. Must a plaintiff in an action under
RLUIPA’s Equal Terms provision show
that the alleged discriminatory land-use
regulation imposes a “substantial burden”
on its religious exercise?
The District Court held that a plaintiff raising a claim
under the Equal Terms provision must show that the challenged
land-use regulation imposed a “substantial burden” on its
exercise of religion. We disagree because the structure of the
statute and the legislative history clearly reveal that the
substantial burden requirement does not apply to claims under
2(b)(1), the Equal Terms provision.
Section 2(b)(1) does not include “substantial burden” as
an element; section 2(a)(1), the Substantial Burdens section,
titled as such, does. Since Congress evidently knew how to
require a showing of a substantial burden, it must have intended
not to do so in the Equal Terms provision. See Russello v.
United States, 464 U.S. 16, 23 (1983) (“where Congress
21
includes particular language in one section of a statute but omits
it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate
inclusion or exclusion”).
The legislative history supports the conclusion that the
Equal Terms provision does not incorporate a substantial burden
requirement. In presenting the bill for consideration, co-sponsor
Senator Hatch stated RLUIPA would “ensure that if a
government action substantially burdens the exercise of religion
. . ., the government must demonstrate that imposing the burden
serves a compelling public interest and does so by the least
restrictive means. In addition, with respect to land use
regulation, the bill specifically prohibits various forms of
religious discrimination and exclusion.” 146 Cong. Rec. S7774
(emphasis added). Neither the House nor the Senate sponsors’
analyses mention the phrase “substantial burden” in connection
with the Discrimination and Exclusion section or its Equal
Terms subpart. See 146 Cong. Rec. E1563 and 146 Cong. Rec.
S7774.
The statements by the bill’s sponsors, quoted by the
District Court in support of its construction of the Equal Terms
provision, are not persuasive evidence of contrary legislative
intent. See Lighthouse II, 406 F. Supp. at 519 (quoting 146
Cong. Rec. S7774-7776) (joint statement of Sen. Hatch and Sen.
Kennedy). First, the court quoted the Senate sponsors’
statement that the Equal Terms provision “enforce[s] the Free
Exercise Clause against laws that burden religion and are not
neutral and generally applicable.” The use of the word “burden”
in this context, however, is descriptive of the area at which the
22
statute is targeted; it does not create a “substantial burden”
element in the provisions of 2 (b)(1). Moreover, cases
interpreting the First Amendment’s Free Exercise clause do not
require a plaintiff, challenging a discriminatory regulation, to
show that it imposes a substantial burden on plaintiff’s religious
exercise. See Tenafly Eruv Ass’n v. Borough of Tenafly, 309
F.3d 144, 170 (3d Cir. 2002) (“Under Smith and Lukumi . . .
there is no substantial burden requirement when government
discriminates against religious conduct”). It follows then that
there is no requirement that a statute, like the Equal Terms
provision of RLUIPA, which enforces the Free Exercise clause,
include such a burden as a required element of proof.
Second, the District Court relied on the statement in the
legislative history that “the party asserting a violation of this
Act shall in all cases bear the burden of proof that the
governmental action in question constitutes a substantial burden
on religious exercise.” This is a commentary on RLUIPA’s
burden-shifting provision, which directs that “[i]f a plaintiff
produces prima facie evidence to support a claim alleging a
violation of the Free Exercise Clause or a violation of section
2000cc of this title, the government shall bear the burden of
persuasion of any element of the claim” except that the plaintiff
retains the burden of proof on substantial burden. 42 U.S.C. §
2000cc-2(b). This provision and the Senate sponsors’ statement
on it merely establish that, where substantial burden is an
element of the claim, the plaintiff must prove it; they do not
address when substantial burden is such an element.
23
Finally, the District Court cites the proposition that the
Discrimination and Exclusion section “directly address[es] some
of the more egregious forms of land use regulation, and provides
more precise standards than the substantial burden and
compelling interest tests.” This statement differentiates between
the substantial burden test and the “more precise standards” of
section 2(b). Thus, it detracts from, rather than lending support
to, the District Court’s construction.
The two Courts of Appeals that have interpreted
RLUIPA’s Equal Terms provision have agreed that a plaintiff
need not show substantial burden to prevail under it. See
Konikov v. Orange County, 410 F.3d 1317, 1327-29 (11th Cir.
2005) (holding that although the zoning code at issue did not
impose a substantial burden on plaintiff’s religious exercise, it
violated RLUIPA’s equal terms provision because it was
enforced in a way that treated religious organizations on less
than equal terms with secular ones); Midrash Sephardi, Inc. v.
Town of Surfside, 366 F.3d 1214, 1229-35 (11th Cir. 2004) (a
zoning ordinance prohibiting churches in a certain district
violated RLUIPA’s equal terms provision although it did not
impose a substantial burden on plaintiffs); Digrugilliers v.
Consolidated City of Indianapolis, No. 07-1358, 2007 WL
3151201 at *2 (7 th Cir. 2003); Civil Liberties for Urban
Believers v. City of Chicago, 342 F.3d 752, 762 (7th Cir. 2003)
(“the substantial burden and nondiscrimination provisions are
operatively independent of one another”). We now hold as well
that a plaintiff challenging a land-use regulation under section
2(b)(1) of RLUIPA does not need to present evidence that the
regulation imposes a substantial burden on its religious exercise.
24
2. Does a RLUIPA Equal Terms plaintiff need
to show that it is “similarly situated” to a
secular comparator that was treated
better?
The District Court held that Lighthouse could not prevail
on its RLUIPA Equal Terms claim because it could not identify
a similarly situated nonreligious comparator. Lighthouse
contends this was error and urges us to take the position that a
plaintiff, asserting a violation of the Equal Terms provision,
needs to show nothing more than that the challenged land-use
regulation treats one or more nonreligious assemblies or
institutions better than a religious assembly or institution,
without regard for the objectives of the regulation or the
characteristics of the secular and religious comparators. We
conclude that the District Court was correct in construing
RLUIPA’s Equal Terms provision to require a plaintiff to do
something more than identify any nonreligious assembly or
institution that enjoys better terms under the land-use regulation.
Nevertheless, we find that the court erred in requiring the
religious plaintiff to point to a secular comparator that proposes
the same combination of uses. As we will explain, what the
Equal Terms provision does in fact require is a secular
comparator that is similarly situated as to the regulatory purpose
of the regulation in question – similar to First Amendment Free
Exercise jurisprudence.
It is undisputed that, when drafting the Equal Terms
provision, Congress intended to codify the existing
jurisprudence interpreting the Free Exercise Clause. See 146
Cong. Rec. S7774 (July 27, 2007) (Senate Sponsors’ statement)
25
(sections 2(b)(1) and (b)(2) “enforce the Free Exercise rule
against laws that burden religion and are not neutral and
generally applicable”). Under Free Exercise cases, the decision
whether a regulation violates a plaintiff’s constitutional rights
hinges on a comparison of how it treats entities or behavior that
have the same effect on its objectives.
As the Supreme Court held in Smith, regulations that are
neutral and of general applicability are presumptively valid
under the Free Exercise clause even if they impose an incidental
burden on the exercise of religion. Smith, 494 U.S. at 878-79.
A regulation does not automatically cease being neutral and
generally applicable, however, simply because it allows certain
secular behaviors but not certain religious behaviors. The impact
of the allowed and forbidden behaviors must be examined in
light of the purpose of the regulation. In addition, when a
government permits secular exemptions to an otherwise
generally applicable government regulation, the Free Exercise
Clause requires that the government accord equal treatment to
religion-based claims for exemptions that would have a similar
impact on the protected interests.
The Supreme Court’s opinion in Lukumi makes this point
clear. That case involved a challenge by practitioners of the
Santeria religion to a series of city ordinances prohibiting the
animal sacrifices that are part of Santeria rituals. The Supreme
Court held that the ordinances, taken together, were neither
neutral nor generally applicable, but rather had been
“gerrymandered” to prohibit almost exclusively the religious
sacrifice of animals; none of the city’s aims in enacting the
ordinances (preventing cruelty to animals and limiting the health
26
risks caused by improper disposal of animal carcasses and
consumption of uninspected meat) could warrant prohibiting the
killing of animals in religious rituals while allowing, among
other secular activities, hunting, fishing and the use of rabbits to
train greyhounds. Lukumi, 508 U.S. at 536-7. Focusing
specifically on a zoning ordinance that prohibited the slaughter
of animals outside the areas zoned for slaughterhouses, the
Court pointed out that it made an exception for “any person,
group, or organization that slaughters or processes for sale,
small numbers of hogs and/or cattle per week ” and remarked
that the city had “not explained why commercial operations that
slaughter small numbers of hogs and cattle do not implicate its
professed desire to prevent cruelty to animals and preserve the
public health.” Id. at 545 (internal quotation marks omitted).
Thus, the reason the ordinance was suspect was not merely
because it allowed secular versions of the religious behavior it
prohibited, but because both behaviors impacted the city’s
declared goals in the same way. The unequal treatment of
equally detrimental behaviors is what caused the violation of the
Free Exercise clause.
This Court’s Free Exercise opinions in Fraternal Order
of Police v. City of Newark,170 F.3d 359 (3d Cir. 1999),
Tenafly, 309 F.3d 144, and Blackhawk v. Pennsylvania, 381
F.3d 202 (3d Cir. 2004), confirm that we have consistently
understood Free Exercise analysis to include an examination of
the comparators’ relation to the aims of the regulation. First, in
Fraternal Order of Police, we examined a challenge by Muslim
police officers against the Newark Police Department’s
requirement that they shave beards that they wore for religious
reasons. The declared aim of the Department’s no-beard policy
27
was to impose a uniform look on its police force. Id. at 366.
The policy exempted two classes of individuals: undercover
officers and uniformed officers who wore beards for medical
reasons. We held that the medical exemption made the
regulation subject to heightened scrutiny under the Free Exercise
Clause because it “indicate[d] that the Department ha[d] made
a value judgment that secular (i.e., medical) motivations for
wearing a beard are important enough to overcome its general
interest in uniformity but that religious motivations are not.” Id.
Importantly, however, we also made it clear that the policy’s
other categorical exemption, for undercover officers, did not
raise Free Exercise concerns. The Department clearly had no
interest in making its undercover officers easily identifiable as
police, and thus that exception did not “undermine the
Department’s interest in uniformity.” Id.
Similarly, we held in Tenafly that the township’s
selective enforcement of its prohibition against affixing signs to
utility poles suggested “a discriminatory intent” because the
township routinely allowed, among other things, house number
signs, orange ribbons supporting one position in a controversy
over school regionalization, and directional signs bearing
crosses to show the location of churches, but it denied
permission to an Orthodox Jewish group to affix lechis,
religiously significant items, to the poles. Tenafly, 309 F.3d at
165-167. Again, however, we were careful to note that not all
exceptions to the facially neutral rule were troublesome, only the
ones that bore the same relation to the purposes of the
regulation, i.e., preventing clutter, as did the prohibited lechis.
Thus, the Borough of Tenafly’s exception for cable and
telephone wires did not make the regulation any less neutral or
28
generally applicable because “utility poles exist to facilitate
telecommunications” and therefore “utility wires are obviously
unlike any of the other materials [Tenafly had] allowed people
to affix to the poles.” Id. at 168 n.29.
The same principle held true in Blackhawk. There, we
examined the Commonwealth of Pennsylvania’s refusal to
waive a wildlife permit fee for a Native American who kept two
bears for religious reasons although the statute contained
categorical waivers for zoos and “nationally recognized
circuses.” Blackhawk, 381 F.3d at 211. In holding that the
statute violated the Free Exercise clause, we focused on the fact
that categorical waivers for circuses and zoos – exemptions
intended to “serve the Commonwealth’s interest in promoting
commerce, recreation, and education” and which “undermine
the interests served by the fee provision to at least the same
degree as would a [religious] exemption” – were available, but
the Commonwealth refused to extend an individual religious
waiver, which would have served “these or analogous interests.”
Id.
We see that the Free Exercise jurisprudence of the
Supreme Court and of this Court teaches that the relevant
comparison for purposes of a Free Exercise challenge to a
regulation is between its treatment of certain religious conduct
and the analogous secular conduct that has a similar impact on
the regulation’s aims. In each case, a regulation’s preferential
treatment of secular behavior that did not affect the regulation’s
purpose in the same way as the prohibited religious behavior did
not raise Free Exercise concerns. Heightened scrutiny was
warranted only when a principled distinction could not be made
29
between the prohibited religious behavior and its secular
comparator in terms of their effects on the regulatory objectives.
Thus, the District Court was correct in holding that the
relevant analysis under the Equal Terms provision of RLUIPA
must take into account the challenged regulation’s objectives:
a regulation will violate the Equal Terms provision only if it
treats religious assemblies or institutions less well than secular
assemblies or institutions that are similarly situated as to the
regulatory purpose. There is no need, however, for the religious
institution to show that there exists a secular comparator that
performs the same functions. For that reason, the District Court
erred in focusing on Lighthouse’s inability to identify a secular
comparator with a similar range of uses.11
11
Because we construe the statute to conform to the contours
of Free Exercise jurisprudence with respect to this aspect, we
need not reach the question whether Congress would have
exceeded its powers under Section 5 of the Fourteenth
Amendment, under which the Equal Terms provision is enacted,
by mandating maximum-possible favorable treatment for
religious institutions without regard for legitimate governmental
objectives. See City of Boerne, 521 U.S. at 519 (Congress may
use its power under Section 5 to enforce the rights guaranteed by
the First Amendment, but may use its power only to “enforce”
a constitutional right, not to substantively alter it. “Legislation
which alters the remedy of the Free Exercise Clause cannot be
said to be enforcing the Clause.”)
Because we limit the statute in this way, we are not
30
To support its position that a RLUIPA Equal Terms
plaintiff does not need to identify a comparator, however,
Lighthouse relies on the opinion of the Eleventh Circuit Court
of Appeals in Midrash Sephardi, 366 F.3d 1214, and the recent
Seventh Circuit Court of Appeals decision following it, Vision
Church, United Methodist v. Village of Long Grove, 468 F.3d
975 (7th Cir. 2006). Nevertheless, we agree with Long Branch,
the District Court, and the United States (which appeared as
amicus curiae in this case) that we should decline this invitation
to adopt the Eleventh Circuit’s expansive reading of the statute.
In Midrash Sephardi, two Orthodox Jewish synagogues
challenged a zoning scheme which, like the one at issue here,
prohibited churches and synagogues within the Town of
Surfside’s two-block business district while allowing theaters,
restaurants, private clubs, and other secular uses. Surfside
defended the zoning ordinance on the basis of its need to
“invigorate the business district and . . . create a strong tax base
through its retail district.” Id., 366 F.3d at 1221. The District
Court concluded that the ordinance did not violate RLUIPA
because the permitted secular assemblies and institutions were
not similarly situated to churches and synagogues: “private
clubs provid[e] more of a social setting [and] provide more
concerned about Congress’s authority under Section 5 to impose
what amounts to a strict liability standard on regulations that
violate the Equal Terms provision. The dissent, however, does
not limit its interpretation of section 2(b)(1) to Free Exercise
jurisprudence and for that reason we doubt the viability of the
dissent’s interpretation. See footnote 14 infra.
31
synergy for the shopping district in keeping with the purpose of
[the ordinance].” Id. at 1230 (quoting Midrash Sephardi v.
Surfside, No. 99-1566-CIV, 2000 U.S. Dist. LEXIS 22629, at
*32-33 (S.D. Fla. July 13, 2000) (Midrash Sephardi I)). In
reaching this conclusion, the District Court relied on Justice
Harlan’s “natural perimeter” test, developed in Walz v. Tax
Comm’n, 397 U.S. 664 (1970), under which a regulation is
considered neutral and presumptively valid under the religious
clauses of the First Amendment if its “circumference . . .
encircles a class so broad that it can be fairly concluded that
religious institutions could be thought to fall within the natural
perimeter.” See Walz, 397 U.S. at 696 (Harlan, J., concurring).
The District Court reasoned, in the case of the Surfside
ordinance, that the regulation generally allowed uses that would
advance its aims while prohibiting a varied group of uses,
including “churches, synagogues, educational or philanthropic
institutions (including museums), parking lots and garages,
public and governmental buildings and public utility/public
service uses.” Midrash Sephardi I, 2000 U.S. Dist. LEXIS 2262
at *31.
The Court of Appeals for the Eleventh Circuit disagreed
with the District Court’s reasoning. It concluded that RLUIPA’s
plain language provided the statute’s own definition of the
“natural perimeter” for a valid land-use regulation, namely, “the
category of ‘assemblies or institutions.’” 12 Id. In other words,
12
The court looked simply to the dictionary for a definition
of “assembly” as “a company of persons collected together in
32
according to the Eleventh Circuit, all assemblies and institutions
“travel” together under RLUIPA: if a zoning regulation allows
a secular assembly, all religious assemblies must be permitted.
See id. at 1230-31.13 See also Vision Church, 468 F.3d 975,
one place and usually for some common purpose (as
deliberation and legislation, worship, or social entertainment)”
and “institution” as “an established society or corporation: an
establishment or foundation esp[ecially] of a public character,”
id. at 1230, quoting Webster’s 3d New Int’l Unabridged
Dictionary 131, 1171 (1993).
13
Having created this broad scope for “equal terms,” the
Midrash Sephardi court then incorporated the Smith-Lukumi line
of precedent, requiring strict scrutiny to determine if the
ordinance was in fact neutral and generally applicable,
concluding it was not, first because both overinclusive and
underinclusive with respect to its goals of spurring commercial
development in the business district and second because the
documents showed the motivations for the synagogues’
activities played a role in the town’s thinking. Id. at 1233-35.
We prefer, however, to interpret section 2(b)(1)’s “equal terms”
as directed to “similarly situated” comparators in regard to the
regulatory purpose of the ordinance, see supra, and to reject the
Midrash-Sephardi court’s adoption of a broad scope comparator
and its addition of a “strict scrutiny” element to be incorporated
into RLUIPA § 2b(1), see Part II.B.3 supra. As we conclude in
Part II.B.3, the incorporation of “strict scrutiny” into section
2(b)(1) is inconsistent with its express language. We surmise
that the Midrash-Sephardi court required a strict scrutiny
33
1003 (holding that a plaintiff making a claim under RLUIPA
section 2(b)(1) need not identify a nonreligious comparator that
is “similarly situated in all relevant respects”). But see Konikov,
410 F.3d 1317 (limiting Midrash Sephardi to facial challenges
and holding that a similarly situated secular comparator must be
identified for as-applied challenges).
We are not persuaded by the reasoning of the Eleventh
Circuit. Its reading of the statute would lead to the conclusion
that Congress intended to force local governments to give any
and all religious entities a free pass to locate wherever any
secular institution or assembly is allowed. Thus, under the
Eleventh Circuit’s interpretation, if a town allows a local, ten-
member book club to meet in the senior center, it must also
permit a large church with a thousand members – or, to take
examples from the Free Exercise caselaw, it must permit a
religious assembly with rituals involving sacrificial killings of
animals or the participation of wild bears – to locate in the same
neighborhood regardless of the impact such a religious entity
might have on the envisioned character of the area. See
Lukumi, 508 U.S. at 520; Blackhawk, 381 F.3d 202. We
believe this result would be contrary to the text of the statute
and to the expressed intent of Congress. We conclude instead
examination in order that its holding conform to existing Free
Exercise case law – see footnote 11 supra. However, we
believe that, unlike the Midrash-Sephardi court, we have come
to a constitutionally acceptable interpretation of section 2(b)(1),
following its express terms, without incorporating additional
terms into it.
34
that a religious plaintiff under the Equal Terms Provision must
identify a better-treated secular comparator that is similarly
situated in regard to the objectives of the challenged regulation.
3. Should RLUIPA’s 2 (b)(1) be read as
requiring strict scrutiny?
The final issue of statutory construction before us is
whether the Equal Terms provision should incorporate a
required strict scrutiny analysis of a regulation that treats a
religious assembly or institution on less than equal terms with
similarly situated nonreligious assemblies or institutions. We
hold that RLUIPA’s Equal Terms provision operates on a strict
liability standard; strict scrutiny does not come into play.
Our analysis of whether strict scrutiny applies to the
Equal Terms provision is informed by our discussion of whether
a plaintiff under this provision must show a “substantial
burden,” supra. The land-use provisions of RLUIPA are
structured to create a clear divide between claims under section
2(a) (the Substantial Burdens section) and section 2(b) (the
Discrimination and Exclusion section, of which the Equal Terms
provision is a part). Since the Substantial Burden section
includes a strict scrutiny provision and the Discrimination and
Exclusion section does not, we conclude this “disparate
exclusion” was part of the intent of Congress and not an
oversight. See Russello, 464 U.S. at 23.
In reaching this conclusion, we again must part ways with
the Eleventh Circuit, which has held that “a violation of the
Equal Terms provision is not necessarily fatal to the land use
35
regulation” but must “‘undergo strict scrutiny.’” Primera
Iglesia Bautista Hispana de Boca Raton, 450 F.3d 1295, 1308
(11th Cir. 2006) (quoting Midrash Sephardi, 366 F.3d at 1232).
The Eleventh Circuit grounded this conclusion on the
observation that, according to legislative history, “RLUIPA’s
equal terms provision codifies the Smith-Lukumi line of [Free
Exercise] precedent,” which imposes strict scrutiny “where a
law fails to similarly regulate secular and religious conduct
implicating the same government interests.” Midrash Sephardi,
366 F.3d at 1232. As discussed at length above, we give
deference to Congress’s intent to codify the Free Exercise
jurisprudence. In that regard, however, we find that Congress
clearly signaled its intent that the operation of the Equal Terms
provision not include strict scrutiny by the express language of
sections 2a(1) and 2b(1) and by incorporating the element of
Free Exercise case law, as can be seen in the language “equal
terms,” that requires a determination that there is a secular
comparator as to the objectives of the challenged regulation, see
Lukumi, 508 U.S. at 536-37. Thus we decline to follow the
Eleventh Circuit’s reasoning. We hold instead that, if a land-use
regulation treats religious assemblies or institutions on less than
equal terms with nonreligious assemblies or institutions that are
no less harmful to the governmental objectives in enacting the
regulation, that regulation – without more – fails under
RLUIPA.14
14
With our definition of comparator as a secular assembly
that has a similar impact as a religious assembly on the
regulation’s aims, we are putting the teeth into section 2(b)(1)
that it needs to follow Free Exercise case law. It is because the
36
4. Did the District Court err in granting
summary judgment for Long Branch on
the RLUIPA Equal Terms claims?
We have construed the RLUIPA Equal Terms section to
include neither a substantial burden nor a strict scrutiny
requirement. What the Equal Terms section does require is that
the plaintiff show that it was treated less well than a
nonreligious comparator that had an equivalent negative impact
on the aims of the land-use regulation. In sum, a plaintiff
asserting a claim under the RLUIPA Equal Terms provision
must show (1) it is a religious assembly or institution, (2) subject
to a land use regulation, which regulation (3) treats the religious
Midrash-Sephardi court defined “comparator” so broadly –
despite the “equal terms” language of section 2(b)(1) – that, in
order to conform to Free Exercise jurisprudence, the court had
to create a “strict scrutiny” element in section 2(b)(1).
Similarly, our concern with the dissent is that it
formulates an equally boundless definition of “assembly” as did
the Midrash-Sephardi court, but then the dissent requires no
substantial burden, no strict scrutiny and no limitation on the
secular comparator. This expansive reading of section 2(b)(1),
in our opinion, goes beyond existing free exercise jurisprudence
and as such would render section 2(b)(1) unconstitutional by
creating a substantively altered right not heretofore cognizable
in Free Exercise jurisprudence. See City of Boerne, 521 U.S. at
519.
37
assembly on less than equal terms with (4) a nonreligious
assembly or institution (5) that causes no lesser harm to the
interests the regulation seeks to advance. Cf. Primera Iglesia
Bautista, 450 F.3d at 1307 (enumerating elements 1-4 as the
requirements of a RLUIPA section 2(b)(1) cause of action). We
must now determine under this analytical framework whether
the District Court correctly decided that Long Branch was
entitled to summary judgment on Lighthouse’s Equal Terms
claims with regard to both the Ordinance and the Plan.
(i) The Plan
We begin, out of chronological order, with the Plan. The
Plan allows non-religious assemblies such as theaters, cinemas,
performance art venues, restaurants, bars and clubs, culinary
schools, and dance studios, but not any non-listed uses,
including churches and synagogues. Thus the question is
whether the exclusion of churches and religious assemblies from
the Broadway Corridor treats the churches on less than equal
terms with nonreligious assemblies or institutions whose
presence would cause no lesser harm to the redevelopment and
revitalization of the Corridor. We conclude that it does not.
Long Branch’s goal in adopting the Plan is well
documented – it was to “achieve redevelopment of an
underdeveloped and underutilized segment of the City.” Long
Branch’s hope is for the “Broadway Corridor” to become a core
“sustainable retail ‘main’ street” that will anchor a “vibrant” and
“vital” downtown residential community. Long Branch argues
that churches are by their nature not likely to foster the kind of
extended-hours traffic and synergetic spending it wishes to
38
foster in the Broadway Corridor and that churches are different
from the allowed secular assemblies because, by operation of a
New Jersey statute prohibiting the issuance of liquor licenses in
the vicinity of houses of worship, permitting churches into the
Broadway Corridor would hinder the development of the kind
of modern entertainment-oriented district that Long Branch
envisages. See N.J.S.A. 33:1-76 (with the exception of certain
“grandfathered” establishments, “no license shall be issued for
the sale of alcoholic beverages within two hundred feet of any
church or public schoolhouse or private schoolhouse not
conducted for pecuniary profit”).
We do not need to reach the question whether a church
by its very nature is unlikely to contribute to the development of
a “vibrant” and “vital” downtown community centered on an
entertainment and retail district. We agree with Long Branch
that churches are not similarly situated to the other allowed
assemblies with respect to the aims of the Plan where, by
operation of a state statute, churches would fetter Long Branch’s
ability to allow establishments with liquor licenses into the
Broadway Corridor. It would be very difficult for Long Branch
to create the kind of entertainment area envisaged by the Plan –
one full of restaurants, bars, and clubs – if sizeable areas of the
Broadway Corridor were not available for the issuance of liquor
licenses.15
15
We note that the Seventh Circuit Court of Appeals in its
recent decision in Digrugilliers, 2007 WL 3151201 at *3,
interpreting the Equal Terms provision of section 2(b)(1), held
that government “cannot, by granting churches special privileges
39
Lighthouse, with the support of amici Association of
Christian Schools International and the General Conference of
Seventh-Day Adventists, argues that the existence of the New
Jersey statute is not dispositive for three reasons. First,
Lighthouse has offered to waive its rights under it in perpetuity;
second, a State cannot “immunize” itself against a constitutional
duty by artificially creating a distinction that it can then invoke
to justify disparate treatment; and, third, Long Branch admitted
that it had not actually conducted any studies to determine if
churches would have a negative impact.
Long Branch responds that a waiver would be ineffective
because it would have to be renewed at every license renewal or
transfer. Long Branch is correct. Under N.J.S.A. 33:1-76.2, if
a church annually waives its protection under the statute with
respect to a license for 15 years, the holder of the license can
apply for renewal “without further or renewed authority, or
waiver, of the church of the school.” Every new licensee,
however, would require a new waiver. This could cause
[Indiana law forbids the sale of liquor within 200 feet of a
church] . . ., furnish the premise for excluding churches from
otherwise suitable districts.” We do not so easily dismiss
N.J.S.A. 33:1-76, the New Jersey statute barring liquor licenses
within 200 feet of a church. The statute was enacted many years
ago – not to discriminate against churches, but to favor them.
We point out also that the New Jersey statute bars liquor
licenses within 200 feet of a non-profit “schoolhouse,” an
another type of assembly which is not permitted in the
Redevelopment District.
40
confusion and might give the church unacceptable control over
the development of the downtown area. In addition, even if a
perpetual waiver were practically possible, in order to act
neutrally toward all potential religious applicants, Long Branch
could not simply grant Lighthouse an exemption. It would have
to amend the regulation to allow all religious institutions to
establish themselves within the relevant zones on the condition
that they waive their rights under the law. It is not
inconceivable that such a requirement would interfere with a
potential applicant’s religious tenets and cause Long Branch
impermissibly to entangle itself in an individual religious
institution’s exercise of religion.16
16
Similarly, Lighthouse argues that it is, in fact, the kind of
church that would have a positive impact on the kind of
downtown district Long Branch is trying to create because its
Pentecostal services are “upbeat” and because it would hold
several services a day, including late at night. Rev. Brown
testified he would want to use the building “24 and 7,” and
place a storefront religious retail store there. The city planner
conceded that the presence of a retail store would make the
church “more compatible” with its retail neighbors. However,
for Long Branch to allow Lighthouse an exemption because of
the “upbeat” nature of its services and their frequency, as well
as Lighthouse’s willingness to engage in commercial activities,
is to risk discriminating between religious uses in order to avoid
potential discrimination against religious uses. See Larson v.
Valente, 456 U.S. 228 (1982) (invalidating a state statute that
regulated the solicitation of donations by charitable
organizations if, but only if, the organization solicited more than
41
Lighthouse’s second argument is equally unpersuasive.
On its face, the alcohol-free-zone law was enacted to favor
churches, not to disfavor them. Although its effect in this
context is to handicap religious institutions, it cannot be said that
the Plan and the New Jersey statute, taken together, suggest
improper motives. Indeed, we have no concern about the
earnestness of Long Branch’s intent with the Plan. The Plan
allows only the kind of assemblies that are likely to further its
goal – theaters, cinemas, and performing arts centers, but not,
for example, strip clubs. The allowed uses are establishments
that generate relatively high income and encourage visitors to
linger in the downtown area into the evening. In addition, the
Plan exhibits internal consistency by not allowing schools –
under the New Jersey statute non-profit “schoolhouses” would
trigger the same restrictions as churches on the availability of
liquor licenses. See N.J.S.A. 33:1-76.
Finally, we are not persuaded by Lighthouse’s argument
that Long Branch failed to present any evidence that the
unavailability of liquor licenses would detrimentally affect its
plans for a “vibrant” and “vital” downtown centered on a high-
traffic, extended-hours retail and entertainment district.
Although there may be room for disagreement over Long
50% of its funds from nonmembers: the statute “created a
denominational preference because the burdens of the regulation
clearly discriminated against religious organizations that were
significantly involved in fund raising activities aimed at
nonmembers.”) We do not believe Long Branch must run this
risk.
42
Branch’s prioritizing of the availability of alcohol consumption
over the ability to seek spiritual enlightenment, it is clear that
Long Branch could not create a downtown area where
restaurants, clubs, bars, retail and entertainment facilities
synergize if Long Branch could not issue liquor licenses
throughout that area.
Thus, we agree with the District Court that Long Branch
is entitled to summary judgment on Lighthouse’s RLUIPA claim
as regards the Plan because Lighthouse has placed no evidence
in the record that the Plan treats a religious assembly on less
than equal terms with a secular assembly that would cause an
equivalent negative impact on Long Branch’s regulatory goals.
(ii) The Ordinance
We reach a different result with respect to the Ordinance.
Unlike the Plan, the Ordinance’s aims are not well documented.
The Ordinance permitted a range of different uses in the Central
Commercial District, including a restaurant, variety store and
other retail store, educational service and college, “Assembly
hall, bowling alley, and motion picture theater,” governmental
service, municipal building, new automobile and boat
showroom, and “High Technology - Light Industrial.” Among
the uses permitted upon issuance of a conditional use permit
were motor vehicle service station and public utility.
Although it appeared to us in Lighthouse I that the
Ordinance, on its face, might allow all forms of assembly under
the “Assembly Hall” category, later discovery clarified that
Long Branch’s construction of the term “Assembly Hall” did not
43
include use as a religious assembly. Cf. Lighthouse I, 100 Fed
Appx. at 74-75. Because there is nothing in the record
describing Long Branch’s objectives for the Central Commercial
District under the Ordinance and because it is not apparent from
the allowed uses why a church would cause greater harm to
regulatory objectives than an “assembly hall” that could be used
for unspecified meetings, the District Court erred in granting
summary judgment to Long Branch on this claim. Rather,
Lighthouse is entitled to summary judgment in its favor because
Long Branch has failed to create a genuine issue of material fact
as to whether the Ordinance treated religious assemblies or
institutions on less than equal terms with non-religious
assemblies or institutions that caused equivalent harm to its
governmental objectives. We will therefore remand this claim
to the District Court to enter summary judgment for Lighthouse
and to determine compensatory damages for the period between
Lighthouse’s application for a waiver as a church and the
enactment of the Plan. The District Court may also, at its
discretion, award appropriate attorney fees. See 42 U.S.C. §
1988(b). Since Lighthouse’s claim for injunctive relief under
the Ordinance is moot, however, only monetary relief is
available to it.
C. Free Exercise Clause
Because we have held that Long Branch is entitled to
summary judgment on its claim based on the invalidity of the
Ordinance under RLUIPA, we do not reach the question
whether it is also invalid under the Free Exercise Clause. See
Lyng, 485 U.S. at 446 (a court should not reach a constitutional
issue unless a decision on the constitutional question could
44
entitle plaintiff to relief beyond what is available to him on his
statutory claims). However, since we have affirmed the District
Court’s grant of summary judgment to Long Beach on its claim
that the Plan does not violate RLUIPA, we now turn to the
question whether the Plan violates Lighthouse’s constitutional
right to free exercise of religion. We conclude that the District
Court did not err in granting summary judgment to Long Branch
because (1) Lighthouse has not presented any evidence that
being barred from a small area in downtown Long Branch is
actually a restriction on its religious exercise, as opposed to a
simple economic inconvenience; and (2) even if Lighthouse had
alleged a constitutionally cognizable burden on its religious
exercise, the Plan is a neutral regulation of general applicability
subject only to rational basis review, which it survives.
1. Has Lighthouse Placed Evidence in the Record
That Long Branch’s Redevelopment Plan
Burdens Its Free Exercise of Religion?
The First Amendment prohibits Congress from enacting
any laws “respecting an establishment of religion, or prohibiting
the free exercise thereof.” U.S. Const. amend. I. The Free
Exercise Clause applies to states and local governments through
the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S.
296, 303 (1940).
The right to free exercise of religion is “first and
foremost, the right to believe and profess whatever religious
doctrine one desires.” Smith, 494 U.S. at 877. Because
religious exercise often involves conduct, prohibiting that
conduct is equivalent to prohibiting the free exercise of religion:
45
the exercise of religion often involves not only
belief and profession but the performance of (or
abstention from) physical acts: assembling with
others for a worship service, participating in
sacramental use of bread and wine, proselytizing,
abstaining from certain foods or certain modes of
transportation. It would be true, we think (though
no case of ours has involved the point), that a
State would be “prohibiting the free exercise [of
religion]” if it sought to ban such acts or
abstentions only when they are engaged in for
religious reasons, or only because of the religious
belief that they display.
Id. at 878.
However, unlike RLUIPA, which explicitly defines as
religious exercise: “The use, building, or conversion of real
property for the purpose of religious exercise,” the Free Exercise
Clause does not define land use as a religious exercise. Cf. 42
U.S.C. 2000cc-5(7)(B). Indeed, several sister circuits have held
that, when the plaintiff does not show that locating its premises
in a particular location is important in some way to its religion
and the area from which plaintiff’s building is excluded is not
large, there is no constitutionally cognizable burden on free
exercise. See Grace United Methodist Church v. City of
Cheyenne, 451 F.3d 643, 654 (10th Cir. 2006) (inability on the
part of a church to open a day care center in a particular district
did not constitute “more than an incidental burden on religious
conduct”); Messiah Baptist Church v. County of Jefferson, 859
F.2d 820, 824-25 (10th Cir.1988) (“[a] church has no
46
constitutional right to be free from reasonable zoning
regulations nor does a church have a constitutional right to build
its house of worship where it pleases”; it did not matter that the
zoning regulations at issue had the incidental effect of making
the church’s exercise of religion more expensive because it was
compelled to build elsewhere in the county); Lakewood, Ohio
Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood,
699 F.2d 303, 306-07 (6th Cir.1983) (where construction of
building for worship had no ritualistic significance, a zoning
ordinance prohibiting its erection in a residential district did not
impose a substantial burden on the exercise of religion); but see
Islamic Ctr. of Miss., Inc. v. City of Starkville, 840 F.2d 293,
298-99 (5th Cir. 1988) (enforcement of zoning laws making the
only mosque in town relatively inaccessible by believers without
cars was an undue burden on religious practice). We join these
courts in holding that, when a religious plaintiff makes a Free
Exercise challenge to a zoning regulation, it must explain in
what way the inability to locate in the specific area affects its
religious exercise.17
17
Two other courts have held similarly, but on the basis of an
analysis of the magnitude of the burden rather than strictly of its
nature. See Christian Gospel Church, Inc. v. City and County
of San Francisco, 896 F.2d 1221, 1224 (9th Cir. 1990) (no
substantial burden on a church that claimed home worship was
part of the tenets of its religion, since it was undisputed that the
church, prior to applying for a permit for church use in a
residential area, had worshipped in the banquet room of a hotel,
and where the ordinance did not prohibit worship in all homes,
only in the particular home wished by the church); Grosz v. City
47
Here, Lighthouse has not placed any evidence in the
record that the inability to locate its premises at the Property or
within the specific zoning district at issue here would negatively
affect its ability to practice its religion. Although it states its
mission is to minister to the downtown poor, it does not allege
a sincerely held religious belief that it must minister within the
Broadway Corridor or that the downtown poor are not equally
accessible in nearby areas. Indeed, Rev. Brown agreed at his
deposition that he “could move four blocks and still serve the
population [he was] concerned about.”
We emphasize that, in requiring a plaintiff who asserts a
Free Exercise challenge to a land-use regulation to articulate a
reason why the inability to occupy a particular location is
significant to its belief, we remain cognizant of the Supreme
Court’s admonition that “courts must not presume to determine
the place of a particular belief in a religion . . ..” Smith, 494
U.S. at 887. See also Hernandez v. Comm'r, 490 U.S. 680, 699
(1989) ("[i]t is not within the judicial ken to question the
centrality of particular beliefs or practices to a faith, or the
validity of particular litigants’ interpretations of those creeds.”)
While we do not require a plaintiff to show the burden is
substantial because we eschew intrusion into the religious
of Miami Beach, 721 F.2d 729, 739 (11th Cir.1983) (where
plaintiff, head of an Orthodox Jewish sect, could have held
prayer meetings in a differently zoned district four blocks from
his home, the burden on his right to exercise his religion was
“toward the lower end of the spectrum” although it might entail
some impact in terms of “convenience, dollars or aesthetics”).
48
realm, we do expect a plaintiff to articulate why it is a burden
on its religious exercise (as opposed, for instance, to its
pocketbook or its convenience). See Braunfeld v. Brown, 366
U.S. 599, 606-7 (1961) (holding that a Sunday-closing law did
not burden the exercise of religion by Orthodox Jewish
merchants since “requiring “some financial sacrifice” from
believers is not of the same order as making a religious practice
unlawful in itself.)
This requirement is in line with our holding in DeHart v.
Horn, 227 F.3d 47, 51 (3d Cir.2000) (en banc) that the two
prerequisites for finding that a religious practice is entitled to
protection are that “the beliefs avowed are (1) sincerely held,
and (2) religious in nature, in the claimant's scheme of things.”
While we do not question that the act of assembling for prayer
or worship is religious in nature, we do not assume, without any
allegation in this sense on the part of the plaintiff, that obtaining
use of the particular property at issue here has any religious
significance. This alone would be reason to affirm the District
Court’s grant of summary judgment to Long Branch on the Free
Exercise claim.
2. Is the Redevelopment Plan a Neutral Law of
General Applicability?
Even if Lighthouse were able to show that the Plan
burdened its free exercise of religion in a constitutionally
cognizable way, the Plan would be subject to strict scrutiny only
if it were not a neutral, generally applicable law. Smith, 494
U.S. at 878-79. See also San Jose Christian College v. City of
Morgan Hill, 360 F.3d 1024, 1031 (9th Cir. 2004) (neutrality
49
and general applicability analysis is appropriate with respect to
zoning ordinances as well as other kinds of regulations.) We
hold that it is neutral and generally applicable.
A law is not neutral if it has as its “object . . . to infringe
upon or restrict practices because of their religious motivation.”
Lukumi, 508 U.S. at 533. A law is not generally applicable
when it “proscribes particular conduct only or primarily when
religiously motivated.” Tenafly, 309 F.3d at 165.
The Plan is clearly neutral; there is no evidence that it
was developed with the aim of infringing on religious practices,
and, unlike the ordinances examined in Lukumi which allowed
animal killing for a number of secular reasons but not as part as
a religious ritual, it does not reveal a value judgment that
religious reasons for assembling are less important than secular
reasons. See Lukumi, 508 U.S. at 537-38.
Lighthouse argues, however, that the Redevelopment
Plan is not generally applicable for two reasons: first, because
it allows categorical exemptions for secular, but not religious,
conduct, and, second, because it allows individualized,
discretionary exemptions to its general rule.
Lighthouse’s position is not persuasive. In order even to
frame the analysis in these terms, one would have to understand
the Plan as announcing a general rule of “no assemblies” (or
perhaps “no occupancy of any kind”) which is then immediately
undermined by the grant of numerous secular exemptions. The
relevant question is whether the local government pursued its
aims evenhandedly, generally allowing the kinds of uses that
50
would further the legislative goals and prohibiting the uses that
would interfere with them. This is consistent with the Free
Exercise jurisprudence of the Supreme Court and of this Court.
So considered, the Plan is generally applicable despite its
allowance of certain categories of secular assemblies because,
as explained above, its prohibition applies evenly to all uses that
are not likely to further Long Branch’s goal of a revitalized,
“vibrant” and “vital” downtown. In this sense the Plan is not at
all like the web of ordinances the Supreme Court held
unconstitutional in Lukumi. Here, in addition to churches, the
Plan does not allow some of the most important forms of civil
assembly: government buildings (which would be unlikely to
generate the late-hours traffic Long Branch wishes to
encourage) and schoolhouses (which would be subject to the
200-foot liquor-license-free zone). The uses it does allow –
restaurants, theaters, bars, clubs, retail shops – are likely to
further its aims, not harm them.
We equally decline to hold that every zoning ordinance
that includes a waiver or amendment provision is, solely by
virtue of that fact, unconstitutional unless it can survive strict
scrutiny, as this does not reflect existing precedent of the
Supreme Court or of this Circuit and would be untenable as a
practical matter.
In arguing that the presence of an amendment procedure
subjects the Plan to strict scrutiny, Lighthouse quotes our
statement in Blackhawk that “a law must satisfy strict scrutiny
if it permits individualized, discretionary exemptions because
such a regime creates the opportunity for a facially neutral and
51
generally applicable standard to be applied in practice in a way
that discriminates against religiously motivated conduct.”
Blackhawk, 381 F.3d at 209 (internal citations omitted.) It is
true that in Blackhawk we summarized the rule in these terms;
however, this formulation is perhaps an overstatement.
The significance for Free Exercise purposes of whether
a law includes a system of individualized exemptions can be
traced back to the Supreme Court’s opinion in Smith. There, the
Court distinguished a generally applicable criminal statute from
the kinds of unemployment benefits determinations at issue in
earlier Free Exercise cases by noting that “the ‘good cause’
standard [embodied in the unemployment benefits rules] created
a mechanism for individualized exemption,” i.e., a system of
“individualized assessment of the reason for the relevant
conduct,” then stated that its “decisions in the unemployment
cases stand for the proposition that where the State has in place
a system of individual exemptions, it may not refuse to extend
that system to cases of ‘religious hardship’ without compelling
reason.” Smith, 494 U.S. 872 at 884 (emphasis added). What
makes a system of individualized exemptions suspicious is the
possibility that certain violations may be condoned when they
occur for secular reasons but not when they occur for religious
reasons. In Blackhawk, it was not the mere existence of an
exemption procedure that gave us pause but rather the fact that
the Commonwealth could not coherently explain what, other
than the religious motivation of Blackhawk’s conduct, justified
the unavailability of an exemption. See Blackhawk, 381 F.3d at
211.
We are persuaded by the Tenth Circuit’s approach to this
52
issue. In Grace United Methodist Church, 451 F.3d 643, the
court held that “although zoning laws may permit some
individualized assessment for variances, they are generally
applicable if they are motivated by secular purposes and impact
equally all land owners in the city seeking variances.” Id. at
651. A zoning ordinance including a provision that certain
enumerated uses “may be permitted by the board” was
nonetheless a neutral law of general applicability, where (1)
there was no evidence that “the ordinance was passed due to
religious animus,” (2) there was no evidence that the regulation
was discriminatorily enforced against religious institutions, and
(3) there was no evidence that the ordinance “devalue[d]
religious reasons by judging them to be of lesser import than
nonreligious reasons.” Id. at 653-54, 655.
The application of the Tenth Circuit’s test to Long
Branch’s Plan confirms that the existence of an amendment
procedure does not make the Plan less than generally applicable.
Although the guidelines for amendment are somewhat vague,
requiring a two-level review and the final production of an
“ordinance [that] shall specify the relationship of the proposed
changes or amendments to the City Master Plan and the goals
and objectives of the Redevelopment Plan,” Long Branch has
identified a procedure that does not involve a value judgment on
the reason for the amendment.
We therefore find the Plan to be a neutral law of general
applicability not subject to strict scrutiny.
53
3. Does the Redevelopment Plan Survive Rational
Basis Review?
As a neutral, generally applicable law, the Plan is not
subject to strict scrutiny. Even if Lighthouse had shown that the
Plan incidentally burdened its right to free exercise of religion,
it would only have to satisfy rational basis review in order to be
deemed constitutional.
“[I]f [a] zoning law only incidentally burdens the free
exercise of religion, with the law being both neutral and
generally applicable, it passes constitutional muster unless the
law is not rationally related to a legitimate government interest.”
San Jose Christian College, 360 F.3d at 1031. Under rational
basis review, “[a] statute is presumed constitutional, and the
burden is on the one attacking the legislative arrangement to
negative every conceivable basis which might support it,
whether or not that basis has a foundation in the record.” Heller
v. Doe, 509 U.S. 312, 321 (1993) (internal citations and
quotation marks omitted). The regulation must be reasonable
and not arbitrary and it must bear “a rational relationship to a
[permissible] state objective.” Belle Terre v. Boraas, 416 U.S.
1, 8 (1974). The same analysis applies here to the Plan; the Plan
is valid under rational basis review.
IV. Conclusion
For the reasons stated above, we will affirm in part and
vacate in part the judgment of the District Court. We will
affirm the District Court’s entry of summary judgment for the
City of Long Branch as to Lighthouse’s Free Exercise Clause
54
challenges both to the Ordinance and to the Plan and as to its
challenge to the Plan under RLUIPA’s Equal Terms provision.
However, we will vacate the District Court’s entry of summary
judgment for Long Branch on Lighthouse’s facial challenge to
the Ordinance under RLUIPA’s Equal Terms Provision and
remand for further proceedings consistent with this opinion.
55
JORDAN, Circuit Judge, Concurring in part and Dissenting in
part
This case presents two related questions: first, whether
zoning ordinances of the City of Long Branch, New Jersey
(“Long Branch” or the “City”) that prohibit churches while
permitting the establishment of places for secular assemblies
such as theaters, cinemas, and lecture halls constitute a violation
of the Religious Land Use and Institutionalized Persons Act
(“RLUIPA” or the “Act”), 42 U.S.C. §§ 2000cc et seq.; and
second, whether those same ordinances constitute a violation of
the First Amendment’s guarantee of the Free Exercise of
Religion. In less legalistic language, we are asked whether
religion can be made to take a back seat to a City’s economic
development goals. My colleagues in the Majority say it can.
On this record and on the basis of the Act, I must disagree and
therefore respectfully dissent from that portion of the Majority’s
judgment affirming summary judgment for the City. I do agree,
however, with the Majority’s conclusion that the earlier of the
ordinances at issue violated RLUIPA and therefore concur with
the judgment to that extent. Because I believe the case can be
decided strictly on statutory grounds, I do not reach the
constitutional issues except to the extent that they are embodied
in the Act.
I. Factual and Procedural Background 18
The Lighthouse Institute for Evangelism, Inc. is a New
Jersey nonprofit corporation formed in 1991 and led by
Reverend Kevin Brown, an ordained Baptist minister.19
Lighthouse’s mission is to minister to its congregation in
keeping with Christian doctrine, to operate a school for those
interested in joining the ministry, and to provide a variety of
benevolent services to the community in which it has operated
and seeks to operate. On March 1, 1992, Lighthouse began its
work in rented space on 159 Broadway in Long Branch by
holding Bible study classes and public prayer meetings. In the
years since, it has also provided daily meals for the poor, as well
as job placement and substance abuse counseling. Lighthouse
deliberately chose to establish itself in a community “where
nearly one quarter of the households ... earn[ed] under $15,000
a year” so that it could provide services where it perceived the
18
While I generally agree with the background information
set forth in the majority opinion, I provide the following as
further context for my perspective on the case. Because we are
reviewing an appeal of a grant for summary judgment, I present
the facts in the light most favorable to the plaintiffs, against
whom the order was entered. Lindsey v. Caterpillar, Inc., 480
F.3d 202, 205 (3d Cir. 2007).
19
As did the Majority, I will, for brevity, hereafter refer to
Lighthouse and Reverend Brown collectively as “Lighthouse”
unless otherwise noted.
57
needs were most acute. (Plaintiffs-Appellants’ Appendix
[“PA”] 27.)
On November 8, 1994, Lighthouse purchased an
abandoned building across the street from its rented location, at
162 Broadway, and planned to continue its mission there. When
it purchased the property, it believed it had the support of the
City. The City’s mayor had voiced his support on many
occasions, had written a congratulatory letter to Reverend
Brown after the purchase, and had awarded Lighthouse a mini-
grant “for the expansion of [its] soup kitchen and related
facilities to new quarters.” 20 (PA 63 (emphasis removed).)
The 162 Broadway property is located in a part of the
City once known as the C-1 Central Commercial District, as
designated by Long Branch Ordinance 20-6.13 (the “C-1
Ordinance”). The C-1 Ordinance did not list churches as one of
the “permitted uses” within the C-1 district, but it did list,
among other things, restaurants, post-secondary educational
institutions, assembly halls, bowling alleys, motion picture
theaters, municipal buildings, health spas, gyms, barber shops,
and beauty salons. (PA 81-83.) Lighthouse claims that, soon
after it acquired the property on 162 Broadway, the City
restrained it from performing its mission, despite having allowed
it to do so for years when it rented space across the street. On
August 1, 1995, Lighthouse submitted an application for a
20
According to Lighthouse, it never received those funds
because the newly constituted city council that took office in
July of 1994 voted to retract the mini-grant.
58
variance to the City Planning Board to operate a soup kitchen
and counseling center and to provide missionary outreach, job
skills training, Bible classes, and life skills classes. 21 The City
deemed the application incomplete, saying it was not completely
filled out, the fees were not paid, and the plans and survey
submitted with it were not sealed.
This was an early round in what Lighthouse claims was
a concerted effort by the City to thwart Lighthouse’s attempt to
obtain a variance, an effort Lighthouse says was characterized
by the City’s stalling Lighthouse’s application with technical
requests, failing to put it on the City’s agenda when Lighthouse
met the technical requests, and failing to consider Lighthouse’s
request for a waiver of fees on account of its nonprofit status.22
21
According to the Majority, Lighthouse first sought
approval to use its property as a church in April of 2000. Maj.
Op. at 7. While not wanting to argue semantics, the purposes
for which Lighthouse sought to use its property in its 1995
application include uses that one could fairly say indicate that
Lighthouse was seeking land use approval as a “church.” Since
the City in 1997 denied use of the property for, among other
things, “church services” (PA 509), it is clear that the City
understood Lighthouse was trying to operate as a church before
April of 2000.
22
Lighthouse describes its views of the bureaucratic run
around as follows:
Right from the outset to the very present, the Mission’s
59
Indeed, according to Lighthouse, the City’s Director of
Community Development was plain enough to state that the City
“was never going to allow [Lighthouse] to use 162 Broadway.”
(PA 31.) Lighthouse asserts that Reverend Brown met with
Application became ensnared in “the Loop”, with the
Loop being defined as the Long Branch’s bureaucracy’s
concerted endeavor designed to frustrate, discourage, and
ultimately thwart the Mission’s efforts to gain use, by
among other things:
a. continually restraining the Mission from
performing its ministerial functions at 162 Broadway;
b. exhibiting deliberate indifference to the
Mission’s Application by allowing it to languish;
c. stalling the Mission’s Application with hyper
technical requests, and then when these requests were
fulfilled, still failing to place the Application on the
‘agenda’;
d. failing to consider the Mission’s request for a
waiver of fees on account of the Mission’s non-profit
status (a common practice when the applicant is a
charitable organization);
e. not granting use, thus preventing the Mission
from obtaining its constitutionally guaranteed tax
exemption; and
f. attempting to harass and intimidate the Mission
and Rev.Brown through the constant issuance of various
summonses for alleged code violations, as well as other
forms of continual harassment.
(PA 30 at ¶ 25.)
60
officials from an organization called Pendar Development
(“Pendar”) to find an alternative location to pursue its mission.
Pendar agreed to approach the City to discuss the possibility of
allowing Lighthouse to relocate to a former nursing home.
According to Lighthouse, the City told Pendar and Reverend
Brown after several meetings that it would work with Pendar to
develop the property on the condition that Pendar “dropped its
affiliation with Rev. Brown.” (PA 31.)
On March 26, 1997, Lighthouse applied for a zoning
permit to use the property as offices for Lighthouse personnel.
The City granted the zoning permit, but specified that the
property could not be used for “church services/soup
kitchen/classes.” (PA 509.) On April 26, 2000, Lighthouse
applied for a zoning permit to use the building as a church. The
zoning officer denied the application the next day because the
proposed use was not permitted in the C-1 zone without a
variance.
On June 8, 2000, Lighthouse and Reverend Brown filed
a complaint against the City in the Superior Court of New
Jersey. The City subsequently removed the action to the United
States District Court for the District of New Jersey. On October
23, 2000, Lighthouse filed an amended complaint alleging,
among other things, violations of the Free Exercise Clause and
the then-newly enacted RLUIPA.23 On March 13, 2001,
Lighthouse filed a motion seeking a preliminary injunction to
23
RLUIPA was signed into law on September 22, 2000. Pub.
L. No. 106-274, 114 Stat. 803-806.
61
compel the City to grant Lighthouse’s zoning permit application.
The District Court denied Lighthouse’s motion.
Lighthouse appealed the District Court’s denial of its
motion for a preliminary injunction and this Court, in a non-
precedential opinion, affirmed. The Lighthouse Inst. for
Evangelism Inc. v. The City of Long Branch, 100 Fed. App’x 70,
73 (3d Cir. 2004). Regarding Lighthouse’s RLUIPA claim, we
stated that, because Lighthouse “did not show that it would be
prohibited from operating in the district if it applied under the
‘assembly hall’ category, it could not show that the [C-1]
Ordinance, on its face, treated it on less than equal terms than a
nonreligious assembly.” Id. at 77.24 We also stated that
Lighthouse had failed to produce any evidence that the
nonreligious assemblies it identified were similarly situated
“such that a meaningful comparison could be made” under the
provision of RLUIPA that forbids treating religious and non-
religious assemblies on less than equal terms. Id. As support
for that statement, we cited a case decided under the Equal
Protection Clause of the Fourteenth Amendment. Id. (citing
Congregation Kol Ami v. Abington Twp., 309 F.3d 125 (3d Cir.
2002)).
In the meantime, while Lighthouse’s motion for a
preliminary injunction was pending in the District Court, the
City changed the applicable zoning ordinances. On October 8,
24
The City has since admitted in an interrogatory that, under
the C-1 Ordinance, the term “assembly hall” did not include
Houses of Worship.
62
2002, the City passed redevelopment ordinance 47-02 (the
“Redevelopment Plan” or, as the Majority refers to it, the
“Plan”) pursuant to N.J.S.A. § 40A:12A. The Redevelopment
Plan superseded the “applicable provisions of the development
regulations of the municipality or constitute[d] an overlay
zoning district within the redevelopment area.” N.J.S.A. §
40A:12A-7(c). The City’s stated purpose in adopting the
Redevelopment Plan was to “achieve redevelopment of an
underdeveloped and underutilized segment of the City” by,
among other things, strengthening retail trade and city revenues,
increasing employment opportunities, improving the city’s
image, and attracting more retail and service enterprises. (PA
87-88.) To achieve those goals, the City planned to “establish
a center for the arts that [would] attract artists from the whole
region” and “restore lower Broadway[, i.e., the ‘Zone’],
traditionally the downtown of Long Branch, as the principal
commercial district of the city.” (PA 95, 97.) The City wanted
to accommodate “rich and varied uses” in the Zone, to stimulate
retail in all areas, and to have a “diversity of attractions” to
“bring people together from all parts of Long Branch and
neighboring communities.” (PA 97.) The Redevelopment Plan
listed the kinds of entities the City wanted in the Zone, such as
theaters, cinemas, dance studios, culinary schools, music
instruction centers, theater workshops, fashion design schools,
art studios, restaurants, bars and clubs, book stores, and craft
stores. (Id.) Churches did not make the cut. Evidently, “rich
and varied uses” were not seen to include religious devotions.
Since churches were not on the list of desirable downtown
entities, the Redevelopment Plan prohibited them.
63
The Plan created new application requirements for
development within the affected areas. Under those new
requirements, no property could be developed in the Zone until
a Request for Qualification (“RFQ”) and a Request for Proposal
(“RFP”) had been approved by the City Council.25 While no
formal procedure for individualized zoning waivers was
included in the Plan itself, there is evidence to suggest that the
City Council did, as in this instance, at least consider waivers
with respect to the Plan, (see PA 231 (“Now, therefore, be it
resolved, by the City Council of the City of Long Branch that
the application for a waiver of the Redevelopment Plan to allow
houses of worship in the entertainment/commercial section of
the Redevelopment Zone 6 in lower Broadway is denied.”)),
and, of course, the City Council had the power to amend the
Plan.
On November 11, 2003, Lighthouse submitted an RFQ
and application to develop its property as a church. On
December 23, 2003, the Redevelopment Council of the City of
Long Branch notified Lighthouse that its application had been
rejected because the “proposed church use did not comport with
the Redevelopment Plan and would in fact disrupt the zone.”
(PA 226.) Lighthouse appealed that decision to the Mayor and
City Council and, at the same time, sought to have the
Redevelopment Plan amended to allow houses of worship in the
25
As noted by the Majority, an RFQ requires applicants to
describe the development team members’ qualifications,
experience, and financial capacity. An RFP requires a detailed
description of the project to be undertaken.
64
Zone or, alternatively, to obtain a waiver of the prohibition of
church use.
After administrative hearings, the City Council voted
unanimously to deny the waiver and application because
churches were not permitted in the Zone and because the RFQ
was “sketchy” with respect to project funding, scope, aesthetics
and design, and plans for parking. (PA 226, 232.) The City
Council determined that granting a waiver would have a
“detrimental effect on the zoning planned for the area which was
to be an entertainment/commercial zone with businesses that are
for profit.” (PA 227.) As emphasized by my colleagues in the
Majority, one problem the City perceived is that a state statute
and a municipal ordinance prohibit the City from issuing liquor
licenses to businesses within the vicinity of a church.
Consequently, according to the City, allowing Lighthouse in the
Zone “would destroy the ability of the block to be used as a high
end entertainment recreation area.” (PA 229.) The City reached
that conclusion despite a provision in the state statute allowing
a church to waive its rights under the statute,26 despite
26
N.J.S.A. § 33:1-76 provides that the “protection of this
section may be waived at the issuance of the license and at each
renewal thereafter, by the duly authorized governing body on
authority of such church ..., such waiver to be effective until the
date of the next renewal of the license.” And, if the “license has
been ... renewed on authority of annual waivers by the church ...
for 15 or more consecutive years, the holder of such license
shall thereafter be entitled to apply for renewal or reissuance
thereof without ... [a] waiver ... of the church ... .” N.J.S.A. §
65
Lighthouse’s express agreement to waive those rights in
perpetuity if allowed to establish a church within the Zone, and
despite the City’s apparent failure to enforce its own ordinance
in any meaningful way.27
On July 26, 2004, Lighthouse amended its complaint to
add statutory and constitutional challenges to the
Redevelopment Plan. On December 27, 2005, the District Court
33:1-76.2.
27
According to the City’s brief, the City has its own
alcoholic beverage ordinance that prohibits the sale of alcoholic
beverages within one thousand feet of a religious organization
and prohibits the issuance of a license within one thousand feet
of another establishment with a license. (Appellee’s Brief at 32,
41.) However, the parties have not submitted a copy of the
ordinance for the record, or even a citation to it, and Lighthouse
disputes its existence. The City’s assistant planning director and
acting zoning officer testified that it was possible there were
churches in the City within a thousand feet of an entity with a
liquor license. In fact, the City has conceded in its brief that it
issued waivers with respect to the part of the alcoholic beverage
ordinance that prohibits the issuance of a license within one
thousand feet of another establishment with a license. In
addition, the City admitted at oral argument that it was
“relaxing” its enforcement of its alcohol laws in the Zone to
promote the goals of the Redevelopment Plan. I agree with the
Majority, Maj. Op. at 12 n.7, that, under these circumstances,
the City’s alcoholic beverage ordinance warrants no
consideration.
66
granted summary judgment for the City on all of Lighthouse’s
claims. The Lighthouse Inst. for Evangelism, Inc. v. The City of
Long Branch, 406 F. Supp. 2d 507, 524 (D.N.J. 2005). On
appeal now are the District Court’s conclusions regarding the
alleged violations of section 2(b)(1) of RLUIPA, 42 U.S.C. §
2000cc(b)(1) (“section 2(b)(1)”) and the Free Exercise Clause.
II. Analysis
In my view, both the C-1 Ordinance and the
Redevelopment Plan are unlawful. Since my colleagues in
the Majority and I are in agreement that the C-1 Ordinance
violated RLUIPA, my analysis is focused primarily on the
Redevelopment Plan and its shortcomings under RLUIPA. I
do not reach the question of whether the C-1 Ordinance and
the Redevelopment Plan also violate the Free Exercise Clause
because Lighthouse ought to obtain full relief under the
statute. See Spector Motor Serv., Inc. v. McLaughlin, 323
U.S. 101, 105 (1944) (“If there is one doctrine more deeply
rooted than any other in the process of constitutional
adjudication, it is that we ought not to pass on questions of
constitutionality ... unless such adjudication is unavoidable.”).
Section 2(b)(1) of RLUIPA provides that “[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). It is uncontested that
the City is a “government” within the meaning of the statute,
that the C-1 Ordinance and the Redevelopment Plan are “land
use regulations” within the meaning of the statute, and that
churches are “religious assembl[ies] or institution[s]” that are
67
treated differently than nonreligious assemblies or institutions
under the City’s land use regulations. See Maj. Op. at 21.
Nevertheless, the District Court granted summary judgment in
favor of the City with respect to Lighthouse’s section 2(b)(1)
claim. As accurately described by the Majority, the District
Court concluded that Lighthouse had failed to demonstrate
that the City imposed a substantial burden on the free exercise
of religion and that Lighthouse had failed to show it was
similarly situated to nonreligious assemblies receiving more
favorable treatment from the City. The City now argues that,
in addition to the grounds the District Court relied upon,
summary judgment was appropriate on Lighthouse’s section
2(b)(1) claim because the land use ordinances are neutral and
generally applicable. The City also argues that, even if it did
treat Lighthouse on less than equal terms than nonreligious
assemblies, it had a compelling government interest for doing
so and that the means it used were narrowly tailored to meet
that interest.
The City’s arguments are not well founded, and neither
is the District Court reasoning that the City attempts to defend
here. With all respect to the District Court and its work on
this challenging case, and likewise with due regard for my
colleagues who have wrestled with the case on this and the
previous appeal, I believe the District Court undertook an
analysis that is neither warranted by the text of the statute nor
compelled by any concern regarding the statute’s
constitutionality, and I further believe that some measure of
the responsibility for that error lies in our earlier opinion, to
the extent it encouraged the District Court to read into
68
RLUIPA a “similarly situated” analysis imported from equal
protection jurisprudence.
Nevertheless, I do not find myself totally at odds with
the Majority’s opinion on this latest round in the dispute. I
agree with the Majority that the District Court should not have
grafted onto section 2(b)(1) a “substantial burden”
requirement. I also agree that the District Court erred by
holding that, for Lighthouse to prevail on its 2(b)(1) claim,
Lighthouse had to show that it was treated on less than equal
terms than a secular counterpart so similarly situated that both
entities, the religious and the secular, involved exactly the
same combination of land uses. I acknowledge, as does the
Majority, the need for some kind of comparator. That is, of
course, inherent in the concept of “less than equal terms,”
which implies a comparison. But, unlike the Majority, I do
not believe the statute requires any greater similarity than is
inherent in the broad terminology “assembly or institution,”
i.e., the terminology of the statute itself. The correct analysis
should begin and, to the extent possible, end with the
language of the statute. Since the text of both the C-1
Ordinance and the Redevelopment Plan treats churches
differently than nonreligious assemblies or institutions, I
would reverse the District Court’s grant of summary judgment
for the City and direct that judgment be entered in favor of
Lighthouse on its RLUIPA claim.28
28
The District Court denied Lighthouse’s cross-motion for
summary judgment on its claims under RLUIPA at the same
time it granted the City’s motion for summary judgment.
69
A. Section 2(b)(1) of RLUIPA Does Not Require
Plaintiffs to Demonstrate a Substantial
Burden on Religious Exercise
As previously noted, I agree with the Majority that, for
reasons they cite and I will not repeat, section 2(b)(1) does not
require Lighthouse to demonstrate a substantial burden on
religious exercise. When interpreting a statute, the starting
point is to determine if the language is plain and
unambiguous, “for ‘[i]f the intent of Congress is clear, that is
the end of the matter.’” Good Samaritan Hosp. v. Shalala,
508 U.S. 402, 409 (1993) (quoting Chevron U.S.A. Inc. v.
Natural Res. Defense Council, Inc., 467 U.S. 837, 842
(1984)). Section 2(b)(1) very simply prohibits zoning
regulations that treat religious assemblies or institutions “on
less than equal terms” than secular assemblies or institutions.
42 U.S.C. § 2000cc(b)(1). It is a spare and straightforward
statute. Congress included no language in section 2(b)(1)
indicating that a plaintiff must demonstrate a substantial
burden on religious exercise to obtain relief, and I can discern
no constitutionally compelled basis for reading that
requirement into that subsection of the statute.
B. Section 2(b)(1) of RLUIPA Addresses the
Neutrality and General Applicability of a
Challenged Ordinance Within the Framework
of a “Less than Equal Terms” Analysis
Lighthouse, 406 F. Supp. 2d at 524.
70
In my view, the appropriate analysis to undertake in
deciding whether the City’s imposition or implementation of
the challenged ordinances violates section 2(b)(1) of RLUIPA
requires three steps. First, we should determine whether each
of the challenged ordinances is a land use regulation. Second,
though it is in this instance self-evident and not seriously
disputed, we should decide whether Lighthouse is a religious
assembly or institution. Third, we should decide whether the
City’s enactment or implementation of the challenged
ordinances results in Lighthouse being treated on less than
equal terms with a nonreligious assembly or institution.
No one contests that the C-1 Ordinance and the
Redevelopment Plan are land use regulations. Nor is there
any legitimate contention that Lighthouse is not a religious
assembly or institution.29 The parties further agree that
29
As the Eleventh Circuit has recognized, Congress did not
define the terms “assembly” or “institution” in the statute.
Midrash Shepardi, Inc. v. Town of Surfside, 366 F.3d 1214,
1230 (11th Cir. 2004). Accordingly, we should construe the
statutory terms “in accordance with [their] ordinary or natural
meaning[s].” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471,
476 (1994). An “assembly” is defined as “a company of persons
gathered together for deliberation and legislation, worship, or
entertainment,” Merriam-Webster’s Collegiate Dictionary 69
(10th ed. 2002), or as “[a] group of persons organized and
united for some common purpose.” Black’s Law Dictionary 111
(7th ed. 1999). An “institution” is “an established organization
or corporation ... esp. of a public character.” Merriam-Webster’s
71
several of the permitted uses under both the Ordinance and
the Plan constitute nonreligious assemblies. Thus, the dispute
in this case is whether the City’s instituting or implementing
of the challenged ordinances has resulted in Lighthouse being
treated “on less than equal terms” with one of the permitted
nonreligious assemblies.
The Eleventh Circuit has identified three distinct ways
in which a government’s enactment or implementation of a
land use regulation might result in a religious assembly being
treated “on less than equal terms”:
(1) a statute that facially differentiates between
religious and nonreligious assemblies or
institutions; (2) a facially neutral statute that is
Collegiate Dictionary 605 (7th ed. 1999); see also Black’s Law
Dictionary 801 (7th ed. 1999) (defining “institution” as “[a]n
established organization, esp. one of a public character”); see
also Midrash, 366 F.3d at 1230-31 (defining both “assembly”
and “institution” in a manner consistent with the foregoing
dictionary definitions).
The City asserts that Lighthouse has not “produced
evidence to show that it is an assembly,” (Appellee’s Brief at
30); however, the City cannot seriously contend that Lighthouse
is not a religious assembly when one of the reasons it denied
Lighthouse’s RFQ application was because the “proposed
church use did not comport with the redevelopment plan ... .”
(PA 226.)
72
nevertheless ‘gerrymandered’ to place a burden
solely on religious, as opposed to nonreligious,
assemblies or institutions; or (3) a truly neutral
statute that is selectively enforced against
religious, as opposed to nonreligious assemblies
or institutions.
Primera Iglesia Bautista Hispana v. Broward Cty., 450 F.3d
1295, 1308 (11th Cir. 2006).
In Midrash Shepardi, Inc. v. Town of Surfside, 366
F.3d 1214 (11th Cir. 2004), the Eleventh Circuit confronted
the first situation: a statute that, on its face, differentiated
between religious assemblies and nonreligious assemblies.
There, the town of Surfside had a zoning ordinance that
permitted theaters, restaurants, private clubs, lodge halls,
health clubs, dance studios, music instruction studios,
modeling schools, language schools, and schools of athletic
instruction in the town’s business district, but that did not
permit churches or synagogues. Id. at 1220.30 Because
30
Similar to this case, the town alleged that it designed its
zoning ordinances “in part to invigorate [its] business district
and to create a strong tax base” through retail establishments.
Id. at 1221. The business district, the town claimed, was vital to
its tax base, job base, and its ability to serve the needs of the
residents. It asserted that allowing religious institutions in that
district would contribute little synergy to retail shopping areas,
disrupt the continuity of retail environments, erode its tax base,
jeopardize its economic stability, and eventually result in
73
churches, synagogues, private clubs, and lodges all fell under
the definition of “assemblies” or “institutions,” and because
Surfside permitted private clubs and other secular assemblies
in the business district but categorically excluded synagogues
and other religious assemblies, the court held that the town’s
zoning ordinance, on its face, violated section 2(b)(1). Id. at
1231. Indeed, the court noted that the legislative history
indicated that section 2(b)(1) “was intended to apply in
precisely the situation [it was addressing].” Id. at 1231 n.14;
see also 146 Cong. Rec. S7774 (2000) (joint statement of Sen.
Hatch and Sen. Kennedy) (“Zoning codes frequently exclude
churches in places where they permit theaters, meeting halls,
and other places where large groups of people assemble for
secular purposes.”).
The facts of this case bear a striking resemblance to
those in Midrash. Here, the texts of the challenged
ordinances permit schools, assembly halls, gyms, theaters,
cinemas, restaurants, and bars and clubs, all of which qualify
broadly as assemblies or institutions because people gather in
those places to be entertained or educated or to otherwise
organize themselves for some common purpose.31 Religious
economic hardship on the residents. Id.
31
Not all of these entities were permitted under both
ordinances, although there is substantial overlap. The C-1
Ordinance allowed establishments such as restaurants,
educational institutions, assembly halls, bowling alleys, motion
picture theaters, municipal buildings, health spas, and gyms. (PA
74
assemblies, such as churches and synagogues, are not
permitted under either ordinance.32 Like the Eleventh Circuit
in Midrash, I conclude that such differential treatment on the
face of both the C-1 Ordinance and the Redevelopment Plan
constitutes a violation of section 2(b)(1). Put simply,
churches are treated “on less than equal terms” than the
permitted nonreligious assemblies because churches are
categorically prohibited.33 The City here may have a
81-83.) The Redevelopment Plan permits establishments such as
theaters, cinemas, dance studios, culinary schools, music
instruction, theater workshops, fashion design schools, art
studios, restaurants, and bars and clubs. (PA 97.)
32
Neither ordinance explicitly states, “Churches are
forbidden”; however, churches are plainly prohibited by both
ordinances because churches are not listed by either as a
permitted use. Indeed, the City denied Lighthouse’s April 2000
application to use the Property as a church because churches
were not permitted in the C-1 zone, and the City denied
Lighthouse’s December 2003 application because “church use
did not comport with the Redevelopment Plan.” (PA 226.)
Both the text of each ordinance and the City’s expressions of its
own understanding of that text make it clear that churches, as a
category, are not permitted.
33
Because the challenged ordinances, on their faces,
differentiate between religious and nonreligious assemblies or
institutions, there is no need to examine whether the ordinances
are unlawful in either of the other manners identified by the
75
laudatory redevelopment aim, but, as in Midrash, that does
not save the City’s actions from being unlawful.34
Eleventh Circuit. See Primera Iglesia, 450 F.3d at 1311. It is
noteworthy, however, that Lighthouse has presented evidence
that the city’s zoning ordinances were selectively enforced. In
other words, Lighthouse has proffered evidence that the
challenged ordinances were implemented in a manner that
treated Lighthouse on less than equal terms with other, secular
assemblies. I am not suggesting that, in fact, the City’s leaders
bore a grudge against Lighthouse and Reverend Brown. That
may ultimately be a question for a finder of fact. I simply note
that there is evidence to support Lighthouse’s assertion that the
City deliberately put the Reverend and his church on the
bureaucratic equivalent of an Escher staircase, creating and
enforcing an endlessly recursive zoning procedure to prevent
Lighthouse from ever opening its doors at 162 Broadway. I
believe there is a basis in the record to conclude that the City
simply didn’t want this religious group downtown, ever, and
therefore there is an additional reason that summary judgment
was improper.
34
The Majority concludes that violations of section 2(b)(1)
of RLUIPA do not receive strict scrutiny; instead, it holds that
RLUIPA imposes a strict liability standard. I do not think it
necessary to decide in this case whether section 2(b)(1) imposes
strict liability under all circumstances because, at least with
respect to a zoning ordinance that, on its face, treats religious
assemblies on less than equal terms, strict scrutiny, no less than
strict liability, will result in liability. Cf. Church of the Lukumi
76
The Majority and the District Court each reject the
Eleventh Circuit’s approach in Midrash because they
apparently fear it interprets RLUIPA so broadly as to make
rational zoning impossible whenever a church is in the mix.
Contrary to those concerns, however, the Eleventh Circuit’s
interpretation of section 2(b)(1) does not prohibit
governments from applying zoning restrictions to churches.
For one thing, an ordinance prohibiting churches in a zone
would not likely violate section 2(b)(1) if nonreligious
assemblies and institutions were also prohibited. See Konikov
v. Orange County, 410 F.3d 1317, 1325-26 (11th Cir. 2005)
(holding that a zoning ordinance permitting “model homes”
and “home occupations” in a residential zone but prohibiting
synagogues and church services did not, on its face, violate
section 2(b)(1) because “model homes” and “home
occupations” did not qualify as “assemblies or institutions”).
Again, contrary to the Majority’s claim, the Eleventh
Circuit’s interpretation of section 2(b)(1) does not “give any
and all religious entities a free pass to locate wherever any
secular institution or assembly is allowed.” Maj. Op. at 34.
The Majority hypothesizes that,
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)
(“A law that targets religious conduct for distinctive treatment
or advances legitimate governmental interests only against
conduct with a religious motivation will survive strict scrutiny
only in rare cases.”).
77
under the Eleventh Circuit’s interpretation, if a
town allows a local, ten-member book club to
meet in the senior center, it must also permit a
large church with a thousand members – or, to
take examples from the Free Exercise caselaw,
it must permit a religious assembly with rituals
involving sacrificial killings of animals or the
participation of wild bears – to locate in the
same neighborhood regardless of the impact
such a religious entity might have on the
envisioned character of the area.
Id. This parade of horribles has the benefit of some “lions
and tigers and bears, oh my!” shock value, but I do not read
RLUIPA as somehow preventing a city from including in its
zoning ordinances rational terms restricting the use of land, as
long as those terms apply equally to religious assemblies and
nonreligious assemblies. See Digrugilliers v. Consolidated
City of Indianapolis, No. 07-1358, 2007 WL 3151201, at *2
(7th Cir. Oct. 30, 2007) (“Whatever restrictions the City
imposes on other users of land in [its C-1 commercial district]
it can impose on the Baptist Church of the West Side without
violating the ‘equal terms’ provision.”).
For example, a large church might lawfully be
prohibited from locating in a neighborhood by an ordinance
regulating the physical size of buildings. See, e.g., Vision
Church, United Methodist v. Village of Long Grove, 397 F.
Supp. 2d 917, 930 (N.D. Ill. 2005) (holding that a zoning
ordinance restricting building size did not violate section
2(b)(1) because the ordinance applied equally to religious and
78
nonreligious institutions), aff’d on other grounds, 468 F.3d
965 (7th Cir. 2006). Moreover, while I have not found any
cases explicitly addressing the point, no one that I am aware
of has suggested that section 2(b)(1) prevents a city from
prohibiting either animal slaughter or the possession of wild
bears in a zone. If a city wanted to, it could properly enact a
zoning ordinance prohibiting either, as long as the ordinance
applied equally to religious assemblies and nonreligious
assemblies.35
In this case, however, the applicable ordinances do not
treat religious assemblies and nonreligious assemblies on
equal terms. Instead, religious assemblies are categorically
prohibited. Holding that these ordinances violate section
2(b)(1) does not give religious entities “a free pass.” It does
nothing more than reach exactly the result Congress intended.
See 146 Cong. Rec. at S7774 (“Churches in general, and new,
small, or unfamiliar churches in particular, are frequently
discriminated against on the face of zoning codes ... . Zoning
codes frequently exclude churches in places where they
permit theaters, meeting halls, and other places where large
groups of people assemble for secular purposes.”).
Nevertheless, the City argues, and the Majority
accepts, that the City did not treat Lighthouse on less than
35
Of course, to comply with the requirements of the Free
Exercise Clause, such a law must also either be neutral and
generally applicable or withstand strict scrutiny. See Lukumi,
508 U.S. at 531-32.
79
equal terms with nonreligious assemblies and institutions
because the zoning ordinances at issue are “neutral and
generally applicable.” I fundamentally disagree with that
characterization of the ordinances, and believe that the City
and the Majority have approached the question from the
wrong direction.
The “neutral and generally applicable” language is
lifted from Free Exercise Clause jurisprudence. See, e.g.,
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 531 (1993) (“[A] law that is neutral and of
general applicability need not be justified by a compelling
governmental interest even if the law has the incidental effect
of burdening a particular religious practice.”). While it is true
that the legislative history of RLUIPA shows that Congress
intended to codify aspects of that jurisprudence, see 146
Cong. Rec. at S7776 (“Sections 2(b)(1) and (2) ... enforce the
Free Exercise Clause rule against laws that burden religion
and are not neutral and generally applicable”), that does not
mean Congress meant to simply replicate the analysis that
would be undertaken in addressing a Free Exercise claim.
Viewing a RLUIPA claim as the precise equivalent of a Free
Exercise claim renders the statute superfluous. Congress
chose to define a violation under section 2(b)(1) not in terms
of an ordinance’s lack of neutrality and general applicability
but rather in terms of equality of treatment, i.e., whether the
ordinance treats a religious assembly or institution “on less
than equal terms” with a nonreligious assembly or institution.
42 U.S.C. § 2000cc(b)(1). Again, we should be starting with
the text. If we were taking the language Congress chose as
the starting point of our analysis, we would not only be
80
faithful to legislative intent, we would avoid the confusion
that attends a multiplication of legal tests.
Moreover, to say an ordinance is neutral and generally
applicable should be no defense to a charge of unequal
treatment. First, it presents a logical contradiction. As the
Eleventh Circuit observed in Midrash, if a zoning law on its
face treats religious and nonreligious assemblies or
institutions on less than equal terms, that law is not genuinely
neutral or generally applicable, “because such unequal
treatment indicates the ordinance improperly targets the
religious character of an assembly.” 366 F.3d at 1232.
Second, it is, in an important sense, beside the point. If the
treatment is unequal and the other prerequisites set by the
statute have been met, then a claim has been established.
Even if one were to find an instance of unequal treatment
imposed in accordance with a neutral and generally applicable
statute – and, again, I think that akin to an oxymoron – what
you would then be dealing with would not be a defense to the
charge that a RLUIPA violation had occurred but rather
would be an attack on RLUIPA itself, on the grounds that it is
unconstitutionally broad, as was the Religious Freedom
Restoration Act. Cf. City of Boerne, 521 U.S. at 536 (“Broad
as the power of Congress is under the Enforcement Clause of
the Fourteenth Amendment, RFRA contradicts vital principles
necessary to maintain separation of powers and the federal
balance.”). Since the City never purported to raise a
constitutional challenge to the statute, those ramifications of
81
their “neutral and generally applicable” defense were never
explored.36
36
The Majority takes me to task for advocating an
interpretation of section 2(b)(1) that it doubts is constitutional.
See Maj. Op. at 36-37 n.14. It is noteworthy, however, that no
one in this case has challenged the constitutionality of section
2(b)(1), even though the straightforward reading of the statute
I propose was expressly advocated by Lighthouse.
Nevertheless, I wish to note that I do not harbor the same
degree of skepticism as the Majority regarding the
constitutionality of section 2(b)(1) as written. The Supreme
Court has recognized that Congress has broad power to enact
legislation under section 5 of the Fourteenth Amendment to
enforce the constitutional right to the free exercise of religion,
a right that applies to state and local governments through the
Due Process Clause. City of Boerne v. Flores, 521 U.S. 507,
519 (1997) (citing Cantwell v. Connecticut, 310 U.S. 296, 303
(1940)). That right to enforce does not allow Congress to alter
the meaning of the Free Exercise Clause, but it does include the
power to enact preventive and remedial legislation. Id. at 519,
524. And Congress has “wide latitude” to determine how far it
can go in exercising that power. Id. at 519-20.
In enacting RLUIPA, Congressional sponsors were
endeavoring to avoid constitutional issues raised by the Supreme
Court when it struck down portions of the Religious Freedom
Restoration Act of 1993 (“RFRA”). City of Boerne, 521 U.S. at
519, 532-33. Those sponsors were careful to point out that
discrimination against religious entities in the land use context
was “a nationwide problem.” 146 Cong. Rec. S7774, S7775
82
(2000) (joint statement of Sen. Hatch and Sen. Kennedy).
Congress compiled what it characterized as “massive evidence”
that “[c]hurches in general, and new, small, or unfamiliar
churches in particular, [were] frequently discriminated against
on the face of zoning codes and also in the highly individualized
and discretionary processes of land use regulation.” Id. at
S7774. The evidence proved to Congress that state and local
governments had enacted zoning codes that frequently excluded
“churches in places where they permit[ted] theaters, meeting
halls, and other places where large groups of people assemble
for secular purposes.” Id. The evidence also demonstrated that
government entities frequently allowed churches in those places
“only with individualized permission from the zoning board, and
zoning boards use[d] that authority in discriminatory ways.” Id.
Congress found that, most often, discrimination against religious
entities had lurked behind “vague and universally applicable
reasons” such as a concern for aesthetics, or concerns that
allowing a church was “not consistent with the city’s land use
plan,” or was not appropriate in commercial zones because
churches don’t generate business. Id. at S7774-75. On the basis
of that record, Congress enacted RLUIPA as prophylactic
legislation to prevent discrimination against churches in the
processes of land use regulation. See id. at S7775 (RLUIPA
provides “proportionate and congruent responses to the
problems documented in this factual record.”); cf. City of
Boerne, 521 U.S. at 530-31 (emphasizing that “[r]emedial
legislation under § 5 ‘should be adapted to the mischief and
wrong which the [Fourteenth] [A]mendment was intended to
provide against.’” (quoting Civil Rights Cases, 109 U.S. 3, 13
83
But, even accepting that the correct analytical approach
under RLUIPA is to ask whether the challenged ordinance is
“neutral and generally applicable,” the Majority does not
address the fundamental question in this case. My colleagues
state that, “[a] regulation does not automatically cease being
neutral and generally applicable ... simply because it allows
certain secular behaviors but not certain religious behaviors.”
Maj. Op. at 26. That may be true in the abstract, but we are
not talking about abstractions. We have here two reasonably
well-defined sets of proposed uses. If an ordinance on its face
permits, indeed encourages, secular assemblies for the
purpose of education and entertainment, which is what the
ordinances at issue do, I am hard put to say it is neutral and
generally applicable when that same ordinance leaves out of
the “permitted” category religious assemblies. Many people
who attend church services are seeking edification and
learning. On what principled basis can an art workshop or a
(1883))).
Because Congress developed a record, expressly relied
on that record, and endeavored to tailor RLUIPA to meet the
constitutional guidance provided by the Supreme Court in City
of Boerne, I disagree with my colleagues’ assertion that
interpreting RLUIPA according to its plain language is ill-
advised. Moreover, if a constitutional attack on RLUIPA had
been mounted and were before us, and we were to conclude that
RLUIPA is unconstitutionally broad, the proper result would be
to strike it down as unconstitutional, not to re-draft it. See City
of Boerne, 521 U.S. at 536.
84
cooking class be governmentally preferred to a theological or
philosophical discussion in Sunday School? Many people
who attend church services find personal enjoyment and
entertainment in the sermons they hear. Why should
Hollywood’s latest cinematic offering or a production of a
popular Broadway play be governmentally preferred to
preaching? I submit that there is no proper basis for the
distinctions made in either the C-1 Ordinance or the
Redevelopment Plan.
The City nevertheless defends its unequal treatment of
religious assemblies by pointing to the state law that prohibits
issuing liquor licenses within a certain distance of religious
institutions.37 According to the City, if churches were
allowed in its Redevelopment Zone, the liquor law would
prevent it from turning the Zone into a high-end entertainment
district. New Jersey law, however, cannot take the City off
the hook for violating RLUIPA. RLUIPA is a federal law,
and no state or local government can defend against a charge
that it has violated federal law on the basis that its actions
were required by state law. Were it otherwise, a state could
nullify RLUIPA simply by passing a statute mandating that
churches be treated on unequal terms.
Indeed, in Digrugilliers v. Consolidated City of
Indianapolis, the United States Court of Appeals for the
37
New Jersey state law prohibits the issuance of liquor
licenses within two hundred feet of any church. N.J.S.A.
§ 33:1-76.2.
85
Seventh Circuit rejected an identical argument to the one the
City makes here. 2007 WL 3151201, at *3-4. There, the city
of Indianapolis had a zoning ordinance that permitted
assemblies such as auditoriums, assembly halls, community
centers, and civic clubs in its C-1 commercial district, but that
did not permit churches. Id. at *1. Indianapolis defended its
discriminatory treatment of churches on the basis of state laws
that forbade the sale of liquor within two hundred feet of a
church, or pornography within five hundred feet. According
to the city, allowing churches in the C-1 district could
therefore interfere with other uses in the district. The Seventh
Circuit, however, persuasively rejected the argument that the
state laws could be a defense to an “equal terms” violation:
Government cannot, by granting churches
special privileges (... the right of the church to
be free from offensive land uses in its vicinity),
furnish the premise for excluding churches from
otherwise suitable districts. ...
...
It is irrelevant that the [two hundred foot and
five hundred foot] protective zones ... were
commanded by the state, while the exclusion
itself was commanded by the City. The City is
part of the government of Indiana, and if it
would violate the federal Act for the City to
exclude churches from C-1 districts–and since
the City does not argue that the state is required
by the First Amendment to create protective
zones around churches–the City may not
exclude churches from those districts. For the
86
federal Act treats state and local government
interchangeably, 42 U.S.C § 2000cc-5(4)(A)(i),
and Indianapolis's power to zone is conferred by
state law. . . . [A] state cannot be permitted to
discriminate against a religious land use by a
two-step process in which the state's
discriminating in favor of religion becomes a
predicate for one of the state's subordinate
governmental units to discriminate against a
religious organization in violation of federal
law.
Id. at *3-4.
Like the city of Indianapolis, the city of Long Branch’s
power to adopt the C-1 Ordinance and the Redevelopment
Plan is conferred by state law. N.J.S.A. § 40:55D-62 (power
to adopt a zoning ordinance); N.J.S.A. § 40A:12A-4 (power
to adopt a redevelopment plan). The state’s liquor law is
therefore no defense to a zoning exclusion challenged under
section 2(b)(1) of RLUIPA, a federal law. Moreover, the
City’s argument in this case is deprived of whatever
persuasive force a true conflict of laws might provide because
the state’s liquor law permits churches to waive their rights
under the statute, 38 and Lighthouse has expressly agreed to
38
N.J.S.A. § 33.1-76 states that “[t]he protection of this
section may be waived at the issuance of the license and at each
renewal thereafter, by the duly authorized governing body on
authority of such church ... .” The constitutionality of a statute
87
waive those rights if allowed to establish a church within the
Zone.
The City also defends its unequal treatment of
religious assemblies on the basis of economics. There are two
answers to that. First, the economic rationale lacks credibility
because the Plan contains no prohibition on non-profit
museums, non-profit theater companies, non-profit
educational institutions, or other non-profit organizations.
Why such organizations are less likely to “disrupt the zone”
than Reverend Brown’s church is not apparent. Second, the
motive for violating the Act is simply irrelevant. Whatever
the reason that secular assemblies, even non-revenue
generating ones, are permitted while religious assemblies are
forbidden, we are faced with precisely the problem Congress
sought to rectify with RLUIPA. An economic rationale is not
a license to ignore the lawful will of Congress.
of this sort is questionable. See Larkin v. Grendel’s Den, Inc.,
459 U.S. 116, 120-27 (1982).
88
C. Section 2(b)(1) of RLUIPA Does Not Require
Plaintiffs to Demonstrate That They Are
“Similarly Situated”
Because it reasons that a literal interpretation of
section 2(b)(1) would lead to results unintended by Congress,
the Majority disregards the plain language of the statute and
replaces it with a new legal test that requires a religious
assembly to identify “a better-treated secular comparator that
is similarly situated in regard to the objectives of the
challenged regulation.” Maj. Op. at 35. The Majority reaches
this conclusion after examining a number of Free Exercise
cases from both this Court and the Supreme Court. As
explained above, however, just because Congress intended to
codify certain aspects of Free Exercise jurisprudence does not
mean that Congress intended to replicate the analysis that
would be undertaken in addressing a Free Exercise claim.
Putting that aside, however, the Majority’s analysis is
misguided for another reason. The cases relied on by the
Majority in formulating its new test are inapposite because
none of them deal with circumstances in which the face of the
challenged law distinguishes between conduct engaged in for
religious reasons and conduct engaged in for nonreligious
reasons. Instead, in all of those cases one of two
circumstances was present: (1) the challenged law, while
neutral on its face, had the effect of targeting conduct
engaged in for religious, as opposed to nonreligious, reasons,
e.g., Lukumi, 508 U.S. at 533-35; or (2) the challenged law,
while neutral on its face, was selectively enforced against
conduct engaged in for religious reasons, e.g., Tenafly Eruv
89
Ass’n v. Borough of Tenafly, 309 F.3d 144, 167-68 (3d Cir.
2002).
In the first type of case, it may be relevant to compare
the proscribed religious conduct with similarly-situated
nonreligious conduct in order to support a conclusion that a
challenged law, while facially neutral, improperly targets
conduct engaged in for religious reasons. For example, in
Lukumi, the Supreme Court examined facially neutral
ordinances that had the effect of prohibiting religiously-
motivated animal slaughter by adherents of the Santeria
religion while permitting animal slaughter for other reasons.
Lukumi, 508 U.S. at 533-35. Among the City’s justifications
for the ordinances were to prevent cruelty to animals and to
preserve the public heath; however, the ordinances provided
exceptions for secular conduct that implicated those same
concerns in the same ways as the proscribed religious
conduct. Id. at 543-45. By comparing the prohibited
religious conduct with permitted conduct that implicated the
city’s interests in the same ways, the Court was able to
conclude that the ordinances pursued the city’s interests only
against conduct engaged in for religious reasons. Id. at 545.
Likewise, in the second type of case–a facially neutral
law that is selectively enforced–it may be necessary to
compare the proscribed religious conduct with similarly-
situated nonreligious conduct in order to support a conclusion
that the government is improperly targeting certain conduct
only when it is engaged in for religious reasons. For example,
in Tenafly, we examined a facially neutral ordinance barring
citizens from affixing signs or items to utility poles. Tenafly,
90
309 F.3d at 151. The local government enforced the
ordinance against an Orthodox Jewish group that attached
lechis, religiously significant items, to the poles, but permitted
others in the community to attach items such as ribbons and
church directional signs. Id. at 167-68. The government’s
justification for the ordinance was to prevent clutter; however,
the government failed to enforce the ordinance against other
conduct that implicated its concern in the same way as the
religious group’s conduct. Id. at 167-68, 172. By comparing
the prohibited religious conduct with permitted conduct that
implicated the government’s interest in the same way, we
were able to conclude that the government enforced the
ordinances only against conduct engaged in for religious
reasons. Id. at 167-68.
As these examples show, examining how a law would
apply, or is applied, to similarly-situated secular conduct may
indeed be useful when dealing with Free Exercise challenges
to facially-neutral laws because it helps courts to determine
whether the law improperly targets religiously-motivated
conduct. But such an analysis is not necessary when the text
of the challenged law itself distinguishes between religiously-
motivated conduct and nonreligiously-motivated conduct. See
Lukumi, 508 U.S. at 532 (“At a minimum, the protections of
the Free Exercise Clause pertain if the law at issue ...
regulates or prohibits conduct because it is undertaken for
religious reasons.”). Thus, even if I were to accept the
Majority’s premise that a RLUIPA claim should be analyzed
like a Free Exercise claim, I do not believe it follows that a
religious assembly must identify “a better-treated secular
comparator that is similarly situated in regard to the objectives
91
of the challenged regulation” under circumstances in which
the face of the regulation distinguishes between religious and
nonreligious assemblies. Instead, I believe a violation of
section 2(b)(1) is established if the text of a zoning ordinance
categorically excludes religious assemblies from an area
where secular assemblies are permitted.
That is also the view of both the United States Courts
of Appeals for the Seventh and the Eleventh Circuits, which
have held that courts should not graft a “similarly situated”
requirement onto section 2(b)(1) under circumstances in
which the face of the land use regulation differentiates
between religious assemblies and nonreligious assemblies.
Each has stated that, for purposes of a challenge under section
2(b)(1), “the standard for determining whether it is proper to
compare a religious group to a nonreligious group is not
whether one is ‘similarly situated’ to the other, as in our
familiar equal protection jurisprudence.” Vision Church, 468
F.3d at 1002-03 (emphasis added) (quoting Konikov, 410 F.3d
at 1324).
There are three other reasons that convince me
Congress did not intend for courts to employ a “similarly
situated” analysis when analyzing a section 2(b)(1) claim such
as the one at issue here. The first is, again, the plain language
of the statute. It does not state that religious and nonreligious
entities must be “similarly situated” for a religious entity to
find relief. See Midrash, 366 F.3d at 1229 (“[W]hile §
[2](b)(1) has the ‘feel’ of an equal protection law, it lacks the
92
‘similarly situated’ requirement usually found in equal
protection analysis.”).39
Second, and closely related, the plain purpose of the
statute, evidenced by its text and legislative history, shows
that Congress was seeking to enforce the Free Exercise
Clause. See 146 Cong. Rec. at S7776 (“Sections 2(b)(1) and
(2) ... enforce the Free Exercise Clause rule against laws that
burden religion ... .”). No one has cited, and I am not aware
of, any Supreme Court case holding that parties must
demonstrate that they are “similarly situated” to someone else
to establish a violation of the Free Exercise Clause.
39
According to the Eleventh Circuit, if the government
implements a land use regulation that, on its face, treats a
religious entity on less than equal terms with a nonreligious
entity, and those entities fall within the “natural perimeter” of
the definition of “assembly” or “institution,” there is a violation
of section 2(b)(1). Midrash, 366 F.3d at 1230-31. The “natural
perimeter” test appears to me to be nothing more than a practical
approach to interpreting words. It asks what the common-sense
reach of language is. It is a recognition that words in statutes
generally have enough of a commonly understood meaning that,
when not unduly stretched, they can be construed and sensibly
applied to resolve legal disputes. In short, it is a label that
encourages what ought to happen in every case, not just in First
Amendment jurisprudence, namely, application of the statutory
text in a manner that gives the words their natural, generally
accepted meaning.
93
Third, incorporating into RLUIPA the type of
“similarly situated” analysis embedded in equal protection
cases would frustrate Congress’s intention of enforcing the
Free Exercise Clause, because it would make it very difficult
for religious assemblies to qualify for relief under section
2(b)(1). Our court has held that, to demonstrate that a
religious entity is similarly situated to other entities permitted
under a questioned zoning ordinance, one must show that the
religious entity’s purposes are not “functionally different”
from the purposes of permitted entities, and that its uses
“seem compatible” with the uses allowed in the area.
Congregation Kol Ami, 309 F.3d at 142. Consequently,
because religious and nonreligious assemblies and institutions
are generally established for different purposes, with different
goals and objectives, creative municipal officials and their
lawyers should not find it difficult when a zoning conflict
arises to find functional differences between the religious and
nonreligious entities. Cf. id. at 130 (employing “similarly
situated” requirement and “rational basis” test in vacating
district court’s decision that a municipality could not “allow a
train station, bus shelter, municipal administration building,
police barrack, library, snack bar, pro shop, club house,
country club or other similar use to request a special
exception under the [challenged] Ordinance, but not [a
religious congregation]”). If a “similarly situated”
requirement is read into the statute, local governments will
94
have a ready tool for rendering RLUIPA section 2(b)(1)
practically meaningless.40
That is, sadly, exactly what has happened in this case.
The District Court held that, because Lighthouse’s
“combination of intended uses ha[d] no similarly situated
counterpart,” Lighthouse was not “similarly situated to any
nonsecular permitted uses either currently in existence or as
imagined by the Redevelopment Plan” and thus could not
establish a violation under section 2(b)(1). Lighthouse, 406 F.
Supp. 2d at 518. With a somewhat different analysis, the
Majority has come to the same conclusion. In light of the
statutory text and the abundantly clear legislative history of
RLUIPA, I find it difficult to believe that Congress intended
to incorporate sub silencio an analytical requirement that, as
has happened here, can so readily undo the explicit “less than
equal terms” requirement of the statute.
III. Conclusion
At a minimum, section 2(b)(1) means that a city’s
zoning ordinance cannot categorically exclude churches from
40
Indeed, in Digrugilliers, the Seventh Circuit dealt with the
city of Indianapolis’s attempt to do just that. Digrugilliers, 2007
WL 3151201, at *1-2. In that case, the city defined “religious
use” in its zoning code to include residential accessory uses
(such as a rectory for the church minister) and then attempted,
unsuccessfully, to use its own broad definition of “religious use”
to justify its exclusion of churches from zones where other
assemblies were permitted. Id. at 2.
95
an area where secular assemblies are permitted. In a case like
this, there is simply no legitimate basis for grafting onto
section 2(b)(1) a “substantial burden” requirement, a
“similarly situated” requirement, or a “neutral and generally
applicable” requirement. Congress used its powers under
section 5 of the Fourteenth Amendment to enact a
straightforward statute that courts can apply, if they will, and
that state and local governments can follow, if they will. By
grafting additional elements onto section 2(b)(1) that do not
reflect congressional intention, we hinder Congress’s
objective of enforcing the Free Exercise Clause to the fullest
extent constitutionally permissible. Therefore, while I concur
in the judgment to the extent it reverses the District Court’s
decision regarding the C-1 Ordinance, I respectfully dissent
from that portion of the judgment upholding summary
judgment for the City.
96