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.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.