Religious liberty is a bedrock principle of our national heritage. The Supreme Court has recognized that the Founders saw the separation of church and state as necessary to guarantee individuals the freedom to openly practice the religion of their choosing without fear of governmental persecution. James Madison, for example, was a strong supporter of the federal protection of religious freedom The Bill of Rights thus enshrines religious liberty as a fundamental right and places it prominently at the beginning of the First Amendment.

Over time, however, the protections guaranteed by the First Amendment have been qualified by judicial decisionmaking. In 1990, the Supreme Court held in Employment Division v. Smith that a neutral, generally applicable law is entitled to deferential rational basis review, even if the law prohibits conduct central to an individual’s religion. The Supreme Court’s decision in Smith dramatically limited prior Supreme Court precedent that had required strict scrutiny of any law substantially infringing upon the right to free exercise of religion. The widespread perception that principles of stare decisis had been violated by the Smith Court provoked a powerful congressional response. At least two bills signed into law sought to restore the religious freedom thought to have been lost after Smith.

The latest congressional attempt to restore the religious liberty promised by the Constitution is the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). RLUIPA contains an Equal Terms provision, which states 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.” As this Comment will show, however, some federal courts have interpreted RLUIPA in such a way as to render it toothless.

The federal circuit courts are split as to the proper interpretation of the Equal Terms provision. The Eleventh Circuit noted in Midrash Sephardi, Inc. v. Town of Surfside that while the provision “has the ‘feel’ of an equal protection law, it lacks the ‘similarly situated’ requirement usually found in equal protection analysis.” Therefore, a land-use regulation violates RLUIPA if a secular assembly or institution, in the ordinary sense of those terms, can locate where a religious assembly or institution cannot. The Seventh Circuit agreed, stating in Vision Church v. Village of Long Grove that “a plaintiff need not demonstrate disparate treatment between two institutions similarly situated in all relevant respects.” The Third Circuit disagreed with both the Seventh and Eleventh Circuits, holding in Lighthouse Institute for Evangelism, Inc. v. City of Long Branch that “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.”