4 -CUP19-01; ME19-01_4405 W EDINGER

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However, a county or municipality cannot simply point to an interest in traffic safety in the abstract as a compelling interest justifying a substantial burden on religious exercise. Rather, the government must show that it has a compelling interest in achieving that interest through the particular restriction at issue, such as safety interests in regulating traffic flow on the particular street at issue. Even where an interest is compelling, it must be pursued through the least restrictive means. If there is another way that the government could achieve the same compelling interest that would impose a lesser burden on religious exercise, it must choose that way rather than the more burdensome way. 12. What does RLUIPA require of government with regard to the treatment of religious assemblies and institutions as well as nonreligious assemblies and institutions? Section 2(b)(1) of RLUIPA contains a provision, known as the “equal terms provision.” It provides that “[n]o 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 nonreligious assembly or institution.” This section extends to ordinances that on their face treat religious assemblies or institutions on less than equal terms, as well as ordinances that, although facially neutral, are applied in a manner that treat religious assemblies or institutions on less than equal terms than nonreligious assemblies or institutions. Congress enacted this provision to address the problem of zoning codes, either facially or in application, excluding places of worship where secular assemblies are permitted. The legislative history points to the problem of houses of worship being excluded where theaters, meeting halls, private clubs, and other secular assembly places are permitted. Determining if a religious assembly is treated on “less than equal terms” than a secular assembly or institution requires a comparison of how the two types of entities are treated in a zoning code. Courts have differed regarding how such a comparison is made, and thus the precise legal test for determining when this section is violated will vary depending on the judicial circuit in which the case arises. Courts have found the equal terms section violated in situations where places of worship were forbidden but private clubs were permitted, where religious assemblies were forbidden but auditoriums, assembly halls, community centers, senior citizen centers, civic clubs, day care centers, and other assemblies were permitted, and where places of worship were forbidden but community centers, fraternal associations, and political clubs were permitted. Regardless of the legal test employed in a particular jurisdiction, however, local governments can avoid violating this section of RLUIPA by ensuring that their regulations focus on external factors such as size, impact on traffic and parking, intensity 4-77