RFI’s Islam and Religious Freedom Action Team Files Amicus Brief in Tree of Life Christian Schools Case

May 9, 2019


The Religious Freedom Institute’s (RFI) Islam and Religious Freedom Action Team has filed an amicus brief in the U.S. Supreme Court in support of Tree of Life (TOL) Christian Schools, located in Upper Arlington, Ohio. The school is now waiting for the justices to decide whether they will accept the case for review.

Almost a decade ago, TOL  purchased a vacant AOL/Time Warner building in Columbus, Ohio, hoping to provide better facilities for their over 600 students spread across multiple locations. Moving to this facility would allow the school to double in size and create 150 new jobs.

Today, however, the building remains empty. Upper Arlington officials have denied TOL  zoning approval, arguing it was not in accord with the government’s master plan, namely: that the land use be maintained as commercial zoning for the sake of maximizing income tax revenue. The city argued that as a religious non-profit, TOL would never generate tax revenue comparable to a for-profit company and by allowing TOL to use the building as a school it would, “significantly diminish expected tax revenues per square foot due to relatively low salaries and low density of professionals per square foot.” Its tax revenue would, however, be comparable to secular non-profit institutions, like day care centers, for instance, which were permitted to operate in the area.

In 2011, TOL sued Upper Arlington in the federal district court, alleging that the city’s refusal to allow it to operate a school violated the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). The Act provides that, “no 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 non- religious assembly or institution.” The district court dismissed the suit, reasoning that since TOL would generate less tax revenue than a secular for-profit institution, concluding the two were not “similarly situated” and thus the city had not treated the school on “less than equal terms.” TOL then appealed to the U.S. Circuit Court of Appeals for the Sixth Circuit, which affirmed the district court’s dismissal.

In its amicus brief, RFI’s Islam and Religious Freedom Action Team argues that this case should be of concern to everyone, especially religious minorities, which RLUIPA was designed to protect. The brief’s core argument is that by misreading the equal terms clause outlined in RLUIPA, the Sixth Circuit rendered it meaningless:

If courts continue to inject similarly-situated requirements into the equal-terms provision, zoning authorities will have little difficulty articulating their objectives in such a way as to prevent an excluded religious assembly from identifying a better-treated nonreligious comparator. In residential areas, religious land uses will continue to be found inconsistent with concerns for traffic control, density management, and noise-reduction in ways that secular assembly uses are not. In commercial areas, discrimination against religious land use will be even easier: routine “economic development” and “tax enhancement” objectives will immunize the exclusion of religious land uses because religious assemblies do not advance these objectives and for profit secular assemblies do. Indeed, because religious institutions are tax exempt, the land would always generate more revenue if put to a commercial use. Further, zoning officials, endowed with near standardless discretion, can easily invent new pretextual criteria to discriminate against religious land use. Thus, in both residential and commercial areas, courts hinder Congress’s objective of enforcing the Free Exercise Clause to the fullest extent constitutionally permissible by grafting additional elements onto the equal-terms provision.

In enacting RLUIPA, Congress intended to restore the founding generation’s conviction that religious belief and exercise is a public good no less important — indeed, perhaps more important — than those goods that can be assigned a dollar value. Accordingly, RFI’s Islam and Religious Freedom Action Team urges in its brief that the Supreme Court endorse the standard of protection that RLUIPA so plainly establishes.