“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.
On September 18, 2018, Trump Sixth Circuit Judge Amul Thapar dissented in Tree of Life Chiristian Schools v. City Of Upper Arlington concerning the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). The court majority, including judges appointed by Presidents Clinton and George W. Bush, affirmed a lower court ruling that the city had not violated RLUIPA by failing to grant a zoning exception to a Christian school. Thapar dissented, arguing for an interpretation of RLUIPA that is contrary to most courts of appeals and would have granted questionable favorable treatment to the religious school.
In order to help generate revenue, the small city of Upper Arlington, Ohio adopted a plan that restricts the “small portion” of its land zoned as commercial for commercial use only, excluding both secular and religious schools from that area. Despite this restriction, Tree of Life Christian Schools (TOL) bought a large office building in the area and tried to get the city to agree to use it for a pre-K to 12th grade school. When the city refused, the school sued, claiming that the city violated a provision of RLUIPA that forbids a local government from treating a religious institution “on less than equal terms with a nonreligious” institution. When the district court ruled against it, TOL appealed.
In accordance with most other federal appellate courts, the two judges in the majority on the Sixth Circuit panel, Ronald Lee Gilman and Julia Smith Gibbons, explained that in determining whether there has been “equal” treatment, the court should look at “similarly situated” uses or institutions as the proposed religious use. Clearly the city was treating religious schools just like nonreligious ones, and even though the city had permitted a daycare facility to operate within the commercial area, the lower court had found that the daycare center generated much more revenue than would a school, and so there was no “equal terms” violation.
Judge Thapar dissented. He claimed that the majority, as well as most other appellate courts, were violating this country’s “sacred vow” to not discriminate against religious groups by narrowly interpreting RLUIPA. Specifically, he argued that the “similarly situated” test was wrong, and that in this case, other uses like hospitals should also be considered. This would not only contradict most other courts, but would also effectively give religious institutions preferential treatment in such zoning cases. As the majority pointed out, “preferred treatment” under RLUIPA would be “inconsistent” with the statutory mandate of equality and “likely run afoul” of the Establishment Clause of the First Amendment. Thapar also maintained that TOL should be treated as a church or place of worship, but the majority explained that this claim had been previously “abandoned” by TOL and that Thapar’s “resurrection” of the claim on his own was “unwarranted.”