III. Nondiscrimination Claims
Congress also adopted a provision in RLUIPA that protects religious entities from governments using land use regulations discriminatively. The so-called "nondiscrimination" provision states that "[n]o government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination."534 There has not been an abundance of nondiscrimination cases litigated, in large part because of the difficulty in proving discrimination and the absence of established standards for the provision.
The provision, nonetheless, is generally linked with the 14th Amendment's Equal Protection Clause and existing equal protection jurisprudence.535 Under this lens, nondiscrimination claims do not necessarily require proof of a similarly situated entity,536 but the absence of evidence showing relevant discriminatory animus can seriously damage a nondiscrimination claim.537 Courts look for and assess evidence of discriminatory behavior through many factors, including
[T]he series of events leading up to a land use decision, the context in which the decision was made, whether the decision or decision-making process departed from established norms, statements made by the decision-making body and community members, reports issued by the decision-making body, whether a discriminatory impact was foreseeable, and whether less discriminatory avenues were available.538
Neutral and generally applicable laws withstand nondiscrimination claims in the absence of discriminatory evidence, and even if some degree of discriminatory evidence exists, it must be shown that the discrimination stemmed from hostility to religion itself. Not many courts have spent a considerable amount of time on nondiscrimination claims, but the Fourth Circuit helped illustrate some of these principles in Bethel World Outreach Ministries v. Montgomery County Council.539...
