RLUIPA's Equal Terms Clause and the Circuit Split: It's All About the Money

Abstract

Families are not the only ones struggling to make ends meet in the Great Recession; so are cities. Some are even going bankrupt, and as municipalities struggle to find revenue and make ends meet, the temptation to eliminate those who get in the way — like religious institutions — may grow. Tax revenue and economic development have become the centerpiece of a new and spreading area of conflict in the law of church and state. This Essay examines the roots of conflict between religious institutions and local governments, and adds a framework for considering the potential zones of conflict between them. In understanding what conflicts may arise, why they arise, and how they figure into litigation, we are better prepared to address litigation between these two entities. While there are many different reasons for conflict resulting in litigation under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), one topic has made its way into the cases more often than the others — economic issues and revenue generation. The fact that churches do not add to a city’s revenue has become a deciding issue in many of the cases. As the circuits split over how exactly to apply the requirement of the Equal Terms clause in RLUIPA, the tests they have chosen weigh economic considerations differently in their analysis and in the outcome of litigation.