By refusing on May 13 to hear the appeal in a crucial religious discrimination case, the Supreme Court again refutes the idea that a clear conservative majority now rules the constitutional roost.
The court’s abdication in Tree of Life Christian Schools v. City of Upper Arlington is an unfortunate, baffling defeat not just for conservatives but for the free exercise of religion in general.
The case involved a zoning ordinance in Upper Arlington, Ohio, which reserved a certain area for commercial uses excluding schools (but not originally excluding other nonprofit organizations). Nonetheless, Tree of Life Christian Schools, a religious nonprofit corporation, bought a large office building with the intention of consolidating three separate school campuses into one. The town, citing the zoning rule, denied the permit to operate a school there.
The school filed suit, “citing the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits religious discrimination in land use and zoning matters.” As described by the Alliance Defending Freedom, the conservative legal foundation representing Tree of Life, “the lawsuit challenged the city’s exclusion of religious schools from the zone while allowing daycare facilities and other secular nonprofits.”
The federal district court and two of three judges on a panel of the Sixth Circuit Court of Appeals, however, ruled against the school. They ruled that when the RLUIPA forbade governments from zoning which “treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution,” it means to apply the “equal terms” provision only to “similarly situated” nonreligious institutions — whatever that means.
The judges ruling against the school went to prodigious lengths to explain why Tree of Life was not “similarly situated” to other nonreligious corporations that were allowed to operate in that zone. For example, the judges determined that the school’s payroll would not create as much tax revenue as other potential uses. Since the town’s reason for creating the commercial zone in the first place was for economic development and the tax revenue it would generate, they determined the school did not meet the “similarly situated” test.
Conservative Sixth Circuit judge Amul Thapar strongly dissented. His dissent should have provided good reason for the Supreme Court to accept the appeal of the case and a roadmap for deciding in the school’s favor.
Thapar noted that the words “similarly situated” appear nowhere in the text of the RLUIPA. “It is not for courts to assume that Congress meant something other than what it said,” Thapar wrote. If Congress meant not just “equal terms” but “equal terms for institutions that are similarly situated,” it would have said so.
Indeed, Thapar noted, Congress strongly indicated the contrary: “Congress told us in the statute how to interpret the text. Congress explicitly stated that courts are to ‘construe the statute in favor of a broad protection of religious exercise, to the maximum extent permitted.’ … Congress can only tell the courts what a statute means in so many ways. And when its legislatively-enacted instructions reinforce the plain meaning of the words it used, courts ought to listen.”
In simpler terms, Congress wanted to keep local governments from using zoning as a way to discriminate against faith. Congress therefore specifically said faith-based institutions must be treated on equal terms as secular ones. Thapar, using the ordinary meaning of “equal terms” without adding the judicially created modifier of “similarly situated,” found that Upper Arlington unfairly discriminated against religion, because it treated Tree of Life worse than it treated hospitals or day care centers.
Thapar is right. The Supreme Court should have accepted the appeal and then reversed the Sixth Circuit’s decision.
