RLUIPA’s Equal Terms provision provides in part: “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).  RLUIPA, however, does not expound any further upon the terms of this provision, leaving it up to the courts to interpret its meaning.  This places religious institutions, municipalities, and other interested parties in the difficult position of having to guess at the viability of potential claims.

An article recently posted to the Social Science Research Network and available for download seeks to clear up this uncertainty.  RLUIPA’s Equal Terms Clause and the Circuit Split: It’s All About the Money by Danielle Acker Susanj describes the different approaches taken by federal circuit courts of appeal across the nation in their interpretation and application of RLUIPA’s Equal Terms provision.  Sometimes, the courts have focused on the economic consequences on local governments of religious uses, or as Puff Daddy says:  “It’s All About the Benjamins.”  See Wikipedia.org, It’s All About the Benjamins, http://en.wikipedia.org/wiki/It's_All_About_the_Benjamins (last visited March 26, 2013) (noting that “‘Benjamins’ are slang for $100 bills (USD), a reference to Benjamin Franklin’s image on the bills”).

The article’s abstract provides:

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.

The article is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2209989.