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Supremes warned judges not following the rules

Nearly two decades ago, Congress found widespread discrimination against religious organizations by cities and counties.

The response was the Religious Land Use and Institutionalized Persons Act, which requires that religious groups and individuals be treated on no “less than equal terms with a nonreligious assembly or institution.”

But judges, particularly at the appellate level, have simply refused to follow it, according to a new filing asking the U.S. Supreme Court to take a case involving a Christian school in Upper Arlington, Ohio.

Tree of Life school has fought for eight years for permission to consolidate its four campuses into a single building it bought for that purpose. But the city refused, claiming it has the right to require only a tax generator of its choice be allowed in the abandoned AOL/Time Warner building.

The city has allowed daycare facilities and secular nonprofits in the district but has steadfastly refused to consider a Christian school, which has the potential to add 150 jobs to the city.

The Alliance Defending Freedom, in its petition to the Supreme Court, contended it’s time for the high court to clean up a mess that the lower courts have made of the law.

“The courts of appeals’ distaste for RLUIPA’s equal-terms provision is blatant,” the filing states. “They have maligned RLUIPA’s plain text as giving religion ‘a free pass to locate where any secular institution or assembly is allowed,’ … vilified it as extending ‘preferential treatment to religious entities,’ … and complained that it ‘unduly limit[s] municipal regulation.

“Lower courts have intentionally tried to limit the equal-terms provision’s reach, characterizing it as ‘too friendly to religious land uses.’ And they have done so in defiance of Congress’s explicit instruction that courts construe RLUIPA ‘in favor of a broad protection of religious exercise.'” the filing says.

“It is painfully evident that lower courts disagree with Congress’s determination that RLUIPA is necessary to prevent widespread discrimination against religious organizations in zoning. For instance, the Sixth Circuit opined – despite Congress’s well-document contrary evidence – that mere ‘rational-basis review’ is sufficient to prevent municipalities from ‘assert[ing] sham [zoning] purposes to justify religious discrimination.’ This extreme deference to local government is the exact problem Congress enacted RLIUPA to solve,” it says. “But no progress will occur on that score unless this court intervenes to resolve the circuit conflict and set lower courts back on track.”

ADF said the city denied zoning approval for the school at its building, and through the general reinterpretation of the law by lower court judges, they affirmed that decision.

“Courts,” the filing states. “have simply refused to follow the law.”

ADF Senior Counsel Erik Stanley said the government “isn’t being neutral when it treats religious organizations worse than everyone else.”

“Upper Arlington’s actions are in defiance of federal law, which prohibits cities from discriminating against religious groups,” he said. “Furthermore, by denying Tree of Life the use of its own building for eight years, the city has forfeited roughly $1 million in tax revenue. The longer the city bars Tree of Life from using its property, the more money the city and its residents lose. Even though Tree of Life shouldn’t have to prove that it will generate tax revenue to occupy its building, the truth is that Tree of Life would generate comparable levels of tax revenue as other secular nonprofit organizations the city allows.”

The school needed to consolidate because its four campuses now are widely separated, creating transportation problems and other issues.

It bought the former Time-Warner building so it could double in size from 600 students to 1,200 and provide 150 new jobs to the city.

Then city officials simply refused.

“For over eight years, Petitioner Tree of Life Christian School has been stuck with a building it cannot use,” explains the petition ADF attorneys filed with the Supreme Court. “The city of Upper Arlington, Ohio is adamant that the school’s building house commercial activity to generate tax revenue, even though the city’s zoning code does not require that, and the city would readily allow other non-profit activity at the site. So Tree of Life has had to turn away new students because its facilities have been inadequate for its mission, and the city refuses to allow the school to occupy the campus it purchased.”

The city’s actions are not allowed under the federal law, the petition contends.

“Congress enacted an equal-terms provision that guarantees religious assemblies or institutions are not treated ‘on less than equal [zoning] terms with a nonreligious assembly or institution….’ But that promise has never been fully realized. A majority of lower courts from coast to coast condemn RLUIPA’s equal-terms provision and refuse to enforce its straightforward command.

“They have added requirements to water down RLUIPA and allow local governments to do as they like…. This court should grant review, resolve the circuit morass, enforce RLUIPA’s plain text, and halt the widespread discrimination against religious land uses that Congress sought to remedy nearly 20 years ago.”

Significantly, when the school pointed out to the city that it should be allowed in the zone because daycare centers already were there, the city changed its rules yet again to banish the daycare services.

The “bizarre” result in the case was only possible “because lower courts invented excuses for not granting Tree of Life equal-zoning treatment. The district court rewrote the city’s zoning ordinance by injunction to keep Tree of Life from using nonprofit daycares as a nonreligious comparator. … On appeal, the Sixth Circuit refused to even address the city’s facial equal-terms violation and remanded to give the city a chance to show that a nonprofit secular assembly or institution ‘would employ higher-income workers than’ a religious school.”

The filing says: “Absent this court’s review, lower courts will continue to rob the equal-terms provision of force. Seemingly even the most blatant unequal treatment of religious organizations in zoning meets with their approval.”