The Religious Land Use and Institutionalized Persons Act (RLUIPA) makes it illegal for the government to discriminate against religious institutions in zoning decisions. When the Third Church of Christ in Manhattan decided to increase revenue by also using the building for private food catering, it sought an accessory-use permit from the City, which said no. The district court entered a preliminary injunction in the church's favor.
The case is Third Church of Christ v. City of New York, decided on December 1. The problem for the City is that while it said No to the church, it said Yes to non-religious entities (hotels) in the neighborhood who wanted to offer similar catering and event services. We call that discrimination. At least the Second Circuit (Calabresi, Katzmann and Chin) does.
How do we define discrimination? We may know it when we see it, but that formula is not in the statute. Courts have to figure out what it means. RLUIPA is a relatively new statute, and the Second Circuit is still working on it. After summarizing the standards adopted in other Circuits, the Court of Appeals sidesteps "the mechanism for selecting an appropriate secular comparator." Instead, "it suffices for our present purposes that the district court concluded that the Church's and the hotels' catering activities were similarly situated with regard to their legality under New York City law. And so they are."
Here's the reasoning in affirming the injunction against the City: "All three entities are located in the same R-10 residential zone, in the same neighborhood on the Upper East Side of Manhattan. The record establishes, and the City does not contest, that both the Church and the hotels were engaged in large-scale catering activities." While the City tries to distinguish the Church from the hotels that the City treated favorably (i.e., the hotels never sought permission for their catering activities), Judge Calabresi concludes that "RLUIPA ... is less concerned with whether formal differences may be found between religious and non-religious institutions -- they almost always can -- than with whether, in practical terms, secular and religious institutions are treated equally." Score one for practicality.