Full opinion text
POSNER, Circuit Judge. The court granted rehearing en banc to consider the proper standard for applying the equal-terms provision of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc. That provision states 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 nonreligious assembly or institution.” § 2000cc(b)(l). The appellant, River of Life, is a small church (it has 67 members, only about half of whom attend services on an average Sunday) that at present operates out of rented space in a cramped, dirty warehouse in Chicago Heights, a town 27 miles south of downtown Chicago. It wanted to relocate to a building in the Village of Hazel Crest, a town of some 15,000 people located two miles north and slightly west of Chicago Heights. The building, however, is in a part of the town designated by the town’s zoning ordinance as a commercial district. The district is in the town’s oldest part, which is run down; indeed the entire town has been in economic decline for years. The area designated as a commercial district is close to the train station, and the presence of commuters might enable the district to be revitalized as a commercial center. The zoning ordinance has therefore been amended to exclude new noncommercial uses from the district, including not only churches but also community centers, schools, and art galleries. River of Life sued the Village under the equal-terms provision and moved for a preliminary injunction against the enforcement of the zoning ordinance. The district judge denied the motion and a panel of this court affirmed, mainly on the ground that the church was unlikely to prevail when the case was fully litigated. 585 F.3d 364 (7th Cir.2009). The existence of an intercircuit conflict with respect to the proper test for applying the equal-terms provision, combined with uncertainty about the consistency of our decisions, persuaded the full court to hear the case in order to decide on a test. Two of our sister courts of appeals have proposed tests. The Third Circuit in Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir.2007), ruled that “a regulation will violate the Equal Terms provision only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory purpose” (emphasis in original). The court must identify first the goals of the challenged zoning ordinance and second the secular assemblies (meeting places) that are comparable to the plaintiffs religious assembly in the sense of having roughly the same relation to those goals. If the reasons for excluding some category of secular assembly— whether traditional reasons such as effect on traffic or novel ones such as creating a “Street of Fun,” see, e.g., Clifton Hill, “Fun by the Falls,” www.cliftonhill.com (visited May 25, 2010) — are applicable to a religious assembly, the ordinance is deemed neutral and therefore not in violation of the equal-terms provision. But if a secular assembly is allowed and the religious assembly banned even though the two assemblies don’t differ in any way material to the regulatory purpose behind the ordinance, then neutrality has been violated and equality denied. That was the situation in the Lighthouse case. The zoning ordinance permitted meeting halls in the district in which the church wanted to locate and there was no way to distinguish between meeting halls and churches on the basis of the purpose of the ordinance. The Third Circuit therefore ordered summary judgment in favor of the church with respect to its challenge to the ordinance (though not its challenge to a newer redevelopment plan), saying that “Long Branch [the defendant] has failed to create a genuine issue of material fact as to whether the Ordinance treated religious assemblies or institutions on less than equal terms with non-religious assemblies or institutions that caused equivalent harm to its governmental objectives.” 510 F.3d at 272-73. An alternative test was adopted by the Eleventh Circuit in Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1230-31 (11th Cir.2004), and followed in Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295, 1308-10 (11th Cir.2006), and Konikov v. Orange County, 410 F.3d 1317, 1324-29 (11th Cir.2005) (per curiam). The Eleventh Circuit reads the language of the equal-terms provision literally: a zoning ordinance that permits any “assembly,” as defined by dictionaries, to locate in a district must permit a church to locate there as well even if the only secular assemblies permitted are hospital operating theaters, bus terminals, air raid shelters, restaurants that have private dining rooms in which a book club or professional association might meet, and sports stadiums. In Midrash the court held that where private clubs are allowed, so must churches be. Pressed too hard, this approach would give religious land uses favored treatment — imagine a zoning ordinance that permits private clubs but not meeting halls used by political advocacy groups. The court indicated, however, that a seemingly unequal treatment of religious uses that nevertheless is consistent with the “strict scrutiny” standard for determining the propriety of a regulation affecting religion would not violate the equal-terms provision. Midrash Sephardi, Inc. v. Town of Surfside, supra, 366 F.3d at 1232. Our own cases dealing with that provision had cited Midrash without criticism but had not been centrally concerned with the interpretive issue presented in this case. In Digrugilliers v. Consolidated City of Indianapolis, 506 F.3d 612, 616-17 (7th Cir.2007), the issue was whether by granting churches rights that, though unlikely to be exercised, would conflict with rational zoning policy, a municipality could exclude churches from a district in which otherwise similar secular assemblies were permitted; we held it could not. In Vision Church v. Village of Long Grove, 468 F.3d 975, 1002-03 (7th Cir.2006), which we decided against the church plaintiff, the restaurants and health clubs that the church considered comparable land users that were treated more favorably than it was were located in a commercial district rather than in the residential district in which the church sought to build, and “the fact that [the church] and the elementary schools [which the church also contended were comparable, and which were permitted under a prior city ordinance but would have been excluded under the current ordinance] were subject to different standards because of the year in which their special use applications were considered compels the conclusion that there was no unequal treatment.” Id. at 1003. Neither the Third Circuit’s nor the Eleventh Circuit’s approach, though in application they might yield similar or even identical results — and results moreover that would strike most judges as proper — is entirely satisfactory. We are troubled by the Eleventh Circuit’s rule that mere “differential treatment” between a church and some other “company of persons collected together in one place ... usually for some common purpose” (the court’s preferred dictionary definition of “assembly”) violates the equal-terms provision. Midrash Sephardi, Inc. v. Town of Surfside, supra, 366 F.3d at 1230-31. “Assembly” so understood would include most secular land uses — factories, nightclubs, zoos, parks, malls, soup kitchens, and bowling alleys, to name but a few (visitors to each of these institutions have a “common purpose” in visiting) — even though most of them have different effects on the municipality and its residents from a church; consider just the difference in municipal services required by different land uses, including differences in the amount of police protection. The land use that led the Eleventh Circuit in Midrash to find a violation of the equal-terms provision was, however, a private club, and it is not obvious that it has different effects on a municipality or its residents from those of a church. Thus our quarrel is not with the result in Midrash but with the Eleventh Circuit’s test. A subtler objection to the test is that it may be too friendly to religious land uses, unduly limiting municipal regulation and maybe even violating the First Amendment’s prohibition against establishment of religion by discriminating in favor of religious land uses. See Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 900 (7th Cir.2005). The Supreme Court had held in Employment Division v. Smith, 494 U.S. 872, 878-80, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), that the clause of the First Amendment that guarantees the free exercise of religion does not excuse churches from having to comply with nondiscriminatory regulations, such as the prohibition of drugs believed to be dangerous, even if the regulation interferes with church rituals or observances: “we have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Id. at 878-79, 110 S.Ct. 1595. If they were excused, this might be deemed favoritism to religion and thus violate the establishment clause. Suppose a zoning ordinance forbids all assemblies except gymnasiums. Then because a gymnasium is an assembly as defined by the Eleventh Circuit, a church could locate in the district but a secular humanist reading room could not, unless secular humanist organizations (such as American Atheists, the American Humanist Association, the Freedom From Religion Foundation, the Godless Americans Political Action Committee, Internet Infidels, and the Skeptics Society — these are all real organizations) were defined as religions. (Nor could the local chapter of the Cat Fanciers’ Association, which might have 67 dues-paying local members, only about half of whom show up on average at the chapter’s meetings.) It was to avoid making its test overprotect religious assembles in comparison to their closest secular counterparts that the Eleventh Circuit added its “strict scrutiny” gloss— municipalities can bar religious land uses from particular zones if the regulation satisfies the “strict scrutiny” test for regulations that treat religious and secular activities differently. There is no textual basis for the gloss, and religious discrimination is expressly prohibited elsewhere in the statute. The gloss was needed only to solve a problem of the court’s own creation. A further objection to the Eleventh Circuit’s test is that “equality,” except when used of mathematical or scientific relations, signifies not equivalence or identity but proper relation to relevant concerns. It would not promote equality to require that all men wear shirts that have 15-inch collars, or that the number of churches in a state equal the number of casinos, or that all workers should have the same wages. But it does promote equality to require equal pay for equal work, even though workers differ in a variety of respects, such as race and sex. If a church and a community center, though different in many respects, do not differ with respect to any accepted zoning criterion, then an ordinance that allows one and forbids the other denies equality and violates the equal-terms provision. This understanding of the equal-terms provision is imperfectly realized by the Third Circuit’s test as well. That test centers on identifying the zoning authorities’ “regulatory purpose” in adopting an ordinance that excludes a church. Our concern is not that the equal-terms provision as drafted by Congress omits the term “regulatory purpose” or some cognate term. As we explained, “equality” is a complex concept. The fact that two land uses share a dictionary definition doesn’t make them “equal” within the meaning of a statute. But the use of “regulatory purpose” as a guide to interpretation invites speculation concerning the reason behind exclusion of churches; invites self-serving testimony by zoning officials and hired expert witnesses; facilitates zoning classifications thinly disguised as neutral but actually systematically unfavorable to churches (as by favoring public reading rooms over other forms of nonprofit assembly); and makes the meaning of “equal terms” in a federal statute depend on the intentions of local government officials. Midrash Sephardi Inc. v. Town of Surfside, supra, 366 F.3d at 1231. That was our point in Digrugilliers v. Consolidated City of Indianapolis, supra, 506 F.3d at 615, when we rejected the argument that a city “could exclude churches from districts zoned residential by ordaining that a residential use of land does not include the grazing of sheep but a religious use does, and therefore the federal Act does not require the City to permit churches in residential zones, as to do so would give churches more rights than the other users of land in those zones have. Such an approach — in effect defining ‘religious assembly or institution’ as a church plus a sheep farm — would be bootstrapping.” The problems that we have identified with the Third Circuit’s test can be solved by a shift of focus from regulatory purpose to accepted zoning criteria. The shift is not merely semantic. “Purpose” is subjective and manipulable, so asking about “regulatory purpose” might result in giving local officials a free hand in answering the question “equal with respect to what?” “Regulatory criteria” are objective — and it is federal judges who will apply the criteria to resolve the issue. So let us consider those criteria, noting by way of background that originally zoning was “cumulative” — -that is, “higher uses,” such as residential land uses, were permitted in districts in which “lower uses,” such as manufacturing, were permitted, though the “lower uses” were excluded from districts zoned for the higher ones. Cumulative zoning soon gave way to noncumulative (or “exclusive”) zoning, in which specified land uses were confined to specified districts and thus could be and often were separated. See, e.g., State ex rel. Berndt v. Iten, 259 Minn. 77, 106 N.W.2d 366, 368-69 (1960); McDonough v. Apton, 48 A.D.2d 194, 368 N.Y.S.2d 603, 608-09 (NY.App.Div.1975); Grubel v. MacLaughlin, 286 F.Supp. 24, 28-29 (D.Vi.1968); Daniel R. Mandelker, Land Use Law § 5.43 (5th ed.2003). As explained in People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove, 16 Ill.2d 183, 157 N.E.2d 33, 36 (1959), “the dangers of heavy traffic are greater in mixed residential-industrial or residential-commercial districts than in districts devoted to just one purpose. Industrial and commercial districts are not good places to bring up families from a health standpoint; and the presence of children in and about industrial and commercial districts leads to a demand for school, park and play-ground facilities in an area where there is either no land available or the land available is ill-suited to such uses. In short, whether industry and commerce are excluded from the residential areas, or residences from industrial and commercial areas, it is not unreasonable for a legislative body to assume that separation of the areas would tend in the long run to insure a better and a more economical use of municipal services, such as schools, providing police protection, preventing and fighting fires, and better use of street facilities. The general welfare of the public may be enhanced if industry and commerce are provided with a favorable climate. The sale of a few lots at important points in a district may make industrial or commercial expansion impossible or prohibitively expensive. To protect the residents in the district, traffic may be slowed down unduly and thus detract from the efficiency of production and trade. In final analysis, it seems clear that industry and commerce are also necessary and desirable and that a proper environment for them will promote the general welfare of the public.” Or as Patricia E. Salkin, American Law of Zoning § 9:15 (5th ed.2010), explains with specific reference to commercial districts: “All commercial uses are not created equal. Some require pedestrian traffic; others create hazards for pedestrian traffic. Some commercial uses cause pedestrian traffic during the daylight hours; others operate at night and are quiet in the daytime. The list of characteristics could be extended, but this small sample suggests that residential uses in commercial neighborhoods will injure, as well as be injured by, the adjacent commercial uses. And it suggests further that some commercial uses will be incompatible with others.... The most common drafting answer to the problems sketched above is the ‘exclusive’ zoning ordinance.... Districts are established for named uses, or groups of uses, and all others are excluded. The chief virtue of such ordinances is that they create districts for commerce and industry, and exclude from such districts residential and other uses which are capable of interfering with the planned use of land.” And in like vein we read in Harry B. Madsen, “Noncumulative Zoning in Illinois,” 37 Chi-Kent L.Rev. 108, 113-14 (1960), that “if municipalities wish to retain their commercial and industrial tax plums they must compete with the advantages to be gained in the wide open spaces where the car-pools flow freely. Commerce and industry must be recognized for what they are, necessary and desirable elements of the community.... [M]uch of the exodus of commerce and industry would be checked by reasonable security that an already bad situation would not get worse. The noncumulative zoning ordinance is peculiarly well suited to provide this security.” Exclusion of churches from a commercial zone (though generally not from every commercial zone in the municipality), along with other noncommercial assemblies, such as exhibition halls, clubs, and homeless shelters, is thus not unique to the Village of Hazel Crest. See, e.g., Fairfield, California Municipal Code, art. I, § 25.22.2(A), tab. 25-9, www. co depublishing, com/ca/fairfield/html/fairfield25/ fairfield2522.html; Village of Lincolnwood, Illinois Zoning Code tab. 4.01.1, www.ecode360.com/documents/LI3005/ Chapter% 2016% 20-% 20Zoning% 20Ordi-nance.pdfiSkokie, IllinoisZoningOrdinance, ch.118, App. A, library.munieode.com/ HTML/13819/level2/Cl 18 — AA.html; North Beach, Maryland Zoning Ordinance, art. Ill, § 3-200 tab. 1, www.ci.northbeach.md.us/Pages/ NorthBeaehMD_Zoning/zoning/artiele3.pdf (all visited May 25, 2010). A reader might worry that “commercial” is a synonym for “secular.” It is not. There are many secular noncommercial land uses, and if the Village of Hazel Crest were concerned for example about the sufficiency of parking space in some part of the village, the commercial or noncommercial character of land uses that generated similar vehicular traffic flows would be irrelevant. Suppose maintenance of regular (as opposed to sporadic and concentrated) vehicular traffic were the zoning objective. From that standpoint, a church is more like a movie theater, which also generates groups of people coming and going at the same time, than like a public library, which generates a smoother flow of traffic throughout the day. The equal-terms provision would therefore require the zoning authorities to allow the church in the zone with the movie theater because the church was more like the for-profit use (the movie theater) than the not-for-profit use (the public library). Parking space and traffic control are not the only concerns of land-use regulation. Another is generating municipal revenue and providing ample and convenient shopping for residents, and can be promoted by setting aside some land for commercial uses only, which generate tax revenues. Hazel Crest has therefore created a commercial district that excludes churches along with community centers, meeting halls, and libraries because these secular assemblies, like churches, do not generate significant taxable revenue or offer shopping opportunities. See Robert C. Ellickson & Vicki L. Been, Land Use Controls: Cases and Materials 90-91 (3d ed.2005). Similar assemblies are being treated the same. The permitted land use that is most like the plaintiffs is a commercial gymnasium, and that’s not close enough because a commercial assembly belongs in an all-commercial district and a noncommercial assembly, secular or religious, does not. Of course we can’t be certain, or even confident, that a particular zoning decision was actually motivated by a land-use concern that is neutral from the standpoint of religion. But if religious and secular land uses that are treated the same (such as the noncommercial religious and secular land uses in the zoning district that River of Life wants to have its church in) from the standpoint of an accepted zoning criterion, such as “commercial district,” or “residential district,” or “industrial district,” that is enough to rebut an equal-terms claim and thus, in this case, to show that River of Life is unlikely to prevail in a full litigation. (Another section of the ordinance-section 8.1(c), which provides that “no church services may be conducted in any building designed for a business use”' — • appears not to be at issue.) Indeed, this case is straightforward because, after the amendment to its zoning ordinance, Hazel Crest really was applying conventional criteria for commercial zoning in banning noncommercial land uses from a part of the village suitable for a commercial district because of proximity to the train station. We are likely to have cases in the future challenging zoning ordinances that are harder to classify, as variances and special-use permits and grandfathered nonconforming uses blur the character of particular zoning districts. But should a municipality create what purports to be a pure commercial district and then allow other uses, a church would have an easy victory if the municipality kept it out. If the test we are adopting seems less than airtight, bear in mind that the equal-terms provision is not the only or even the most important protection against religious discrimination by zoning authorities. (Think of the religious clauses of the First Amendment.) It is not even the only protection in the Religious Land Use and Institutionalized Persons Act. For the Act provides that a land-use regulation “that imposes a substantial burden on the religious exercise of a ... religious assembly or institution” is unlawful “unless the government demonstrates that imposition of the burden ... is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc(a)(1); see World Outreach Conference Center v. City of Chicago, 591 F.3d 531, 537-38 (7th Cir.2009); Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, supra, 396 F.3d at 901; Westchester Day School v. Village of Mamaroneck, 504 F.3d 338, 352-53 (2d Cir.2007). And it further provides that “no government shall impose or implement a land use regulation in a manner that discriminates against any assembly or institution on the basis of religion or religious denomination,” § 2000cc(b)(2); see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533-37, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993); Bloch v. Frischholz, 587 F.3d 771, 783-87 (7th Cir.2009) (en banc), or that “totally excludes religious assemblies from a jurisdiction.” § 2000cc(b)(3)(A). But as none of these other provisions is before us on this appeal, the appeal must fail. Affirmed.
CUDAHY, Circuit Judge, with whom ROVNER, Circuit Judge, joins, concurring. I join the majority opinion, as well as the concurrence of Judge Williams, but offer these comments with respect to the relation of the proposed test to the Third Circuit test, which is simpler — if arguably more subjective. As a general matter, the equal-terms provision seems to be a somewhat mysterious and unprecedented device for providing an anti-discrimination requirement, without incorporating the usual limiting characteristics of “discrimination” as a traditional concept. Although Congress may have intended to prescribe a standard more open-ended than traditional “discrimination,” its application, as a practical matter, requires, for reasons suggested by the majority, some limitations to be provided by the judiciary. The Third Circuit’s requisite of “regulatory purpose” may be imperfect, but I think it is acceptable in the vast majority of cases and that this test is generally appropriate. Although the majority opinion does provide insights that are important and helpful, I see little real contrast in basic approach or result between the Third Circuit and the majority analysis and I would regard them both as equally valid. Ultimately, I suspect that the practical distinction between “regulatory purpose” and “regulatory criteria” may not be as pronounced as the majority opinion suggests. In the last analysis, the search by the different cireuits for an entirely objective test is probably in vain.
MANION, Circuit Judge, concurring. A. This case is difficult not because of the facts, but because of the hypotheticals. I agree with the court that under the facts of this case, River of Life does not have a likelihood of success on the merits of its Equal Terms challenge. To be treated “on less than equal terms” a church must be “equal” to a non-religious assembly allowed under the zoning ordinance. At this point, River of Life Church is not equivalent to any of the allowable uses in Hazel Crest’s commercial district. The challenge before our court is crafting a standard for analyzing all of the hypothetical Equal Terms cases yet to come. The difficulty in this task is highlighted by the fact that the court agrees with the outcomes of the Third and Eleventh Circuit decisions in this area, but finds neither circuit’s approach entirely satisfactory (although the court also believes that, in application, the different standards might yield similar or even identical results). Opinion at 370. Judge Sykes in her dissent foresees other problems with this court’s standard. While I disagree with Judge Sykes’ conclusion that River of Life was treated “on less than equal terms” of other assemblies, her dissent persuasively identifies potential flaws with the court’s standard, given the statutory text and historical and legislative background to the Religious Land Use and Institutionalized Persons Act. Even the court acknowledges that the test is not “air tight” and that future zoning cases will be harder to classify. Opinion at 373-74. Given that the facts of this case do not lay a solid foundation for crafting a universally governing standard, it might be more prudent to resolve the straightforward case before us rather than speculating on how to resolve a more difficult question in a future case. B. More discomforting is the court’s observation that if religious beliefs excused an individual from compliance with otherwise valid regulations, “this might be deemed favoritism to religion and thus violate the establishment clause,” and the court’s further statement that “[a] subtler objection to the [Eleventh Circuit] test is that it may be too friendly to religious land uses, unduly limiting municipal regulation and maybe even violating the First Amendment’s prohibition against establishment of religion by discriminating in favor of religious land uses.” Opinion at 370. Only dicta supports this statement. Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 900 (7th Cir.2005). In turn, Sts. Constantine cites dicta from Westchester Day Sch. v. Village of Mamaroneck, 386 F.3d 183, 189-90 (2d Cir.2004). And Westchester Day’s dicta relies solely on Justice Stevens concurrence in City of Boerne v. Flores, 521 U.S. 507, 537, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (Stevens, J., concurring). Another Supreme Court concurrence, however, supports the view that the government may grant exemptions to religious observers without violating the Establishment Clause. Wallace v. Jaffree, 472 U.S. 38, 82, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O’Connor, J., concurring) (“Even where the Free Exercise Clause does not compel the government to grant an exemption, the Court has suggested that the government in some circumstances may voluntarily choose to exempt religious observers without violating the Establishment Clause. See, e.g., Gillette v. United States, 401 U.S. 437, 453, 91 S.Ct. 828, 838, 28 L.Ed.2d 168 (1971); Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961).”). Because there is no need to delve into this complicated question (and one which was not briefed) to resolve the case at hand, we should not imply that religious exemptions violate the Establishment Clause. For these reasons, I concur. . For a while, River of Life had a strong argument that it was treated on "less than equal terms" to non-religious assemblies because Hazel Crest’s zoning ordinance originally allowed meeting halls and community centers, which are likely comparable to a church under any standard of equivalency. But after this lawsuit was filed, Hazel Crest amended its ordinance and deleted those comparable uses. Deleting meeting halls and community centers from the commercial zone likely did not cause Hazel Crest much concern because it does not appear that there were any developers jumping at the chance to invest in such gathering places. In fact, at this stage Hazel Crest’s revitalization plan is still in the hypothetical stage; at the time of the original briefing in this case, Hazel Crest was eight years into its revitalization plan and yet no new businesses had located in the commercial district. The best thing for Hazel Crest might well have been for River of Life to take over the abandoned car wash, but the Village decided otherwise.
WILLIAMS, Circuit Judge, with whom CUDAHY and ROVNER, Circuit Judges, join, concurring. I join the majority in reaffirming that River of Life is not entitled to a preliminary injunction, and I also join Judge Cudahy’s concurrence. I write separately to reiterate my belief that the Third Circuit’s “regulatory purpose” test adopted by the original panel is the most appropriate application of the equal-terms provision. The original panel applied the Third Circuit’s approach from Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir.2007), reasoning that differentiation between religious and non-religious assemblies under a zoning ordinance was insufficient to establish an equal-terms violation unless the assemblies had a comparable effect on the village’s regulatory purpose. Thus, the question was simply whether the different treatment of a religious assembly and a non-religious assembly was consistent with the zoning ordinance’s regulatory purpose. Here, the village’s regulatory purpose in establishing the commercial zone was to create a tax revenue-generating commercial district centered near the mass transit area; because the church was not similar to the non-religious entities permitted in the zone- — all of which were commercial in nature — the panel found that the church had not been treated on less than equal terms with the commercial non-religious entities. I have great respect for the majority’s attempt to carve out a compromise between the Eleventh Circuit’s approach and that of the Third Circuit and original panel. However, I still think the “regulatory purpose” test is the best approach. The “regulatory purpose” test is simpler and does not require federal judges to determine which zoning districts fit within “accepted regulatory criteria” — and indeed, what those accepted criteria are in the first place. (Moreover, the majority’s opinion is unclear as to how a judge should proceed with its equal-terms analysis when presented with a unique, non-traditional zoning scheme.) Second, to the extent that traditional zoning classifications are important, a judge assessing a regulatory purpose already uses them as guidance. Finally, the majority’s approach does not solve the problem it perceives in the Third Circuit’s approach. Zoning officials could just as easily use accepted criteria as a pretext for action as they could articulate a regulatory purpose. The “accepted regulatory criteria” test therefore presents a risk of self-serving testimony just as the majority believes the “regulatory purpose” approach would.
SYKES, Circuit Judge, dissenting. This is an important religious-liberty case. We took it en banc to decide a key question of statutory interpretation involving § 2(b)(1) of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc(b)(l)— the statute’s “equal terms” provision — and to resolve a conflict the panel opinion created in our caselaw. The circuits are divided over how to read this part of RLUIPA. Until this case we had followed the Eleventh Circuit’s interpretation of the equal-terms provision, first announced in Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir.2004), and explained in Konikov v. Orange County, 410 F.3d 1317 (11th Cir.2005), and Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295 (11th Cir.2006). See Digrugilliers v. Consolidated City of Indianapolis, 506 F.3d 612, 616 (7th Cir.2007); Vision Church v. Vill. of Long Grove, 468 F.3d 975, 1003 (7th Cir.2006). The en banc court now prefers the Third Circuit’s approach, announced in Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir.2007), though in a slightly modified form. This interpretation departs from the text, structure, and history of RLUIPA, and the conflict in our circuit caselaw remains. With respect, I cannot join the court’s opinion. We were right in Vision Church and Digrugilliers to follow the Eleventh Circuit’s lead; I would build on that start, with some elaboration. I. The equal-terms provision of RLUIPA is straightforward. It prohibits governments from imposing or implementing land-use regulations “in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000ec(b)(l). River of Life Kingdom Ministries is a small evangelical Christian church with a community-based mission aimed at uplifting the disadvantaged. The church bought a building in the Village of Hazel Crest, Illinois, and sought to move from a rented warehouse in Chicago Heights to its new location in Hazel Crest. The property formerly housed a car wash and is in a struggling part of town known as “Hazel Crest Proper,” which was zoned as a “B-2 Service Business District” under the Village’s then-existing zoning ordinance. A wide variety of commercial and retail uses were permitted in this zone but not churches. More specifically, the Hazel Crest zoning ordinance authorized “[a]ll general commercial and retail uses” in the B-2 District and also enumerated the following specific permitted uses: art galleries; automobile service stations; dry-cleaning establishments and laundries; funeral parlors; gymnasiums, health clubs, and salons; hotels and motels; laboratories; medical and dental clinics; meeting halls; newspaper offices; business, professional, and public offices; resale or secondhand stores; restaurants; taverns or cocktail lounges; and accessory uses to the foregoing permitted uses. In addition, the ordinance authorized certain “special uses” (by permit) in the B-2 District: art galleries and museums; day-care centers; schools of any kind; public libraries; parking lots and storage garages; a variety of utility and public-agency buildings; recreational buildings and community centers; and taverns, cocktail lounges, and restaurants featuring live entertainment. The ordinance also specifically prohibited church services from being held in any “business use” building; this restriction was applicable in all business districts in the village, including the B-2 District. River of Life applied for a special-use permit to allow it to move its church from Chicago Heights to its property in Hazel Crest Proper, but this application was denied. The church then sued Hazel Crest alleging a RLUIPA equal-terms violation (among other statutory and constitutional claims) and moved for a preliminary injunction. In the meantime the Village amended its zoning ordinance in an apparent effort to cure the rather obvious facial violation of RLUIPA’s equal-terms provision. The amended ordinance removed certain secular assemblies from the list of permitted and special uses authorized in the B-2 District — meeting halls, art galleries, museums, schools, libraries, recreational buildings, community centers, and certain other secular assembly uses — but continued to expressly permit commercial gymnasiums, health clubs, and salons; hotels and motels; restaurants and taverns; and day-care centers (as an allowed “special use”). River of Life maintains that these remaining permitted uses are “nonreligious assemblies” within the meaning of § 2(b)(1) of RLUIPA, and that allowing these uses in the B-2 District while excluding churches like River of Life treats religious assemblies on “less than equal terms” than “a nonreligious assembly or institution” in violation of RLUIPA. The district court denied River of Life’s motion for a preliminary injunction. Relying on our decisions in Vision Church and Digrugilliers, the court followed the Eleventh Circuit’s interpretation of § 2(b)(1) and concluded that River of Life had a “slight likelihood of success on the merits.” But the court also held that this “slight likelihood” was not enough to tip the balance of harms in the church’s favor. River of Life appealed. A panel of this court abandoned the Eleventh Circuit’s interpretation of the equal-terms provision — previously approved in Vision Church and Digrugilliers — and instead adopted that of the Third Circuit in Lighthouse Institute. We ordered rehearing en banc to address this shift in circuit caselaw and because the interpretation of the equal-terms provision is an important and recurring legal issue that has divided the circuits and warranted the attention of the full court. II. A. The equal-terms provision is best understood not in isolation but in the context of RLUIPA’s other protections for religious land uses and against the backdrop of the decade-long tug of war between Congress and the Supreme Court over the protection of religious liberty. See Cutter v. Wilkinson, 544 U.S. 709, 714, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (“RLUIPA is the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens, consistent with this Court’s precedents.”). RLUIPA was enacted in the wake of City of Boeme v. Flores, which invalidated the broader Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq., as exceeding Congress’s authority under § 5 of the Fourteenth Amendment to enforce the limits on state power imposed by § 1 of the Amendment. 521 U.S. 507, 532-36, 117 S.Ct. 2157,138 L.Ed.2d 624 (1997); see also Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 897-98 (7th Cir.2005). RFRA, in turn, had been adopted in response to the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which altered the prevailing strict-scrutiny standard of Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), applicable to laws that substantially burden the First Amendment right to the free exercise of religion. See City of Boerne, 521 U.S. at 512, 117 S.Ct. 2157 (“Congress enacted RFRA in direct response to the Court’s decision in Employment Div., Dept. of Human Resources of Oregon v. Smith.” (citation omitted)). Smith held that facially neutral and generally applicable laws that burden free-exercise rights need not satisfy a heightened standard of review — neither the compelling-interest standard of Sherbert nor any more rigorous form of review than the test for basic rationality that is applicable to all laws. 494 U.S. at 878-79, 110 S.Ct. 1595. Three years later, the Court clarified that “[f]acial neutrality [alone] is not determinative .... Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Without retreating from Smith, the Court held in Lukumi that a facially neutral, generally applicable law is subject to strict scrutiny if it amounts to a “religious gerrymander” or is enforced in a way that discriminates against religion or targets a particular religious group or practice for discriminatory treatment. Id. at 535-47, 113 S.Ct. 2217; see also Bloch v. Frischholz, 587 F.3d 771, 785-87 (7th Cir.2009) (en banc). Of course it remains true that “the minimum requirement of [free-exercise] neutrality is that a law not discriminate on its face.” Lukumi 508 U.S. at 533, 113 S.Ct. 2217. Finally, the Court reiterated in Lukumi that a law permitting “ ‘individualized governmental assessment of the reasons for the relevant conduct’ ” is not considered “generally applicable.” Id. at 537, 113 S.Ct. 2217 (quoting Smith, 494 U.S. at 884, 110 S.Ct. 1595). In a regulatory system where exemptions from otherwise applicable rules are permitted, denying a religious-exercise exemption requires a compelling justification. Id. While the Lukumi case was making its way to the Supreme Court, Congress was considering legislation in response to the Court’s decision in Smith; RFRA was enacted soon after the Court’s decision in Lukumi was announced. RFRA restored the compelling-interest standard of Sherbert and applied broadly to all governmental actions that substantially burdened free-exercise rights. See City of Boerne, 521 U.S. at 515-16, 117 S.Ct. 2157. In City of Boerne, however, the Supreme Court invalidated the new statute as exceeding Congress’s § 5 enforcement power. The Court drew a distinction between laws that remedy or prevent constitutional violations and laws that attempt to “determine what constitutes a constitutional violation.” Id. at 519, 117 S.Ct. 2157. Only the former are valid uses of the § 5 enforcement power. Id. Laws enacted under § 5, the Court said, require “a congruence and proportionality between the [constitutional] injury to be prevented or remedied and the means adopted to that end.” Id. at 520, 117 S.Ct. 2157. Based on the sheer breadth of the statute as well as the inadequacy of the legislative record supporting it, the Court concluded that “RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections.” Id. at 532, 117 S.Ct. 2157. So Congress went back to the drawing board, narrowed its focus, and began compiling a legislative record of free-exercise violations in two discrete areas: laws affecting land use by religious organizations and laws affecting the religious exercise of institutionalized persons. RLUIPA was the result of this effort and was adopted in 2000, three years after the Court decided City of Boeme. For more on this history, see generally, Sarah Keeton Campbell, Note, Restoring RLUIPA’s Equal Terms Provision, 58 Duke L.J. 1071, 1076-85 (2009); Patricia E. Salkin & Amy Lavine, The Genesis of RLUIPA and Federalism: Evaluating the Creation of a Federal Statutory Right and Its Impact on Local Government, 40 Urb. Law. 195, 205-08 (2008); Roman P. Storzer & Anthony R. Picarello, Jr., The Religious Land Use and Institutionalized Persons Act of 2000: A Constitutional Response to Unconstitutional Zoning Practices, 9 Geo. Mason L.Rev. 929, 931-44 (2001); Douglas Laycock, State RFRAs and Land Use Regulation, 32 U.C. Davis L.Rev. 755, 770-82 (1999). B. RLUIPA stipulates that the use of real property for religious purposes is a form of “religious exercise,” see 42 U.S.C. § 2000ec-5(7)(B) (“[t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose”), and codifies several strands of First Amendment free-exercise jurisprudence. See World Outreach Conference Ctr. v. United States, 591 F.3d 531, 533-35 (7th Cir.2009); see also 146 Cong. Rec. S7774-S7775 (joint statement of Sen. Hatch and Sen. Kennedy) (“The right to build, buy, or rent [in] a [physical] space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes---- Each [of RLUIPA’s land-use] subsection[s] closely tracks the legal standards in one or more Supreme Court opinions, codifying those standards for greater visibility and easier enforceability.”). More specifically, RLUIPA’s land-use provision recognizes that land-use regulation can interfere with religious-exercise rights in a variety of ways and creates statutory remedies for several different kinds of free-exercise wrongs: § 2000cc. Protection of land use as religious exercise (a) Substantial burdens (1) General rule No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution— (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. (b) Discrimination and exclusion (1) Equal terms 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 nonreligious assembly or institution. (2) Nondiscrimination No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination. (3) Exclusion and limits No government shall impose or implement a land use regulation that— (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. 42 U.S.C. § 2000cc (emphasis added). Subsection (a) of § 2000cc — the “substantial burdens” prohibition — enforces the Free Exercise Clause right to be free from state action that substantially interferes with the practice of religion without compelling justification. This provision codifies the Sherbert standard to the extent permitted by Smith and Lukumi. That is, where a land-use regime permits individualized exemptions from regulatory restrictions — and almost all of them do— the government must have a compelling justification for denying an exemption from a restriction that substantially burdens the exercise of religion. Stated differently, a government “ ‘that has a system for granting individual exemptions from a general [land-use] rule must have a compelling reason to deny a religious group an exemption that is sought on the basis of hardship or, in the language of the ... Act, of a substantial burden on ... religious exercise.’” World Outreach, 591 F.3d at 534 (quoting City of New Berlin, 396 F.3d at 897) (internal quotation marks omitted). Subsection (b) of § 2000cc enforces the Free Exercise Clause right to be free from state action that discriminates on the basis of religion or religious practice, or discriminates among or between religions. The remedies provided in subsection (b) do not require proof that the challenged state action amounts to a “substantial burden” on religious exercise. This subsection is divided into three parts. Subsection (b)(1) is the equal-terms provision, at issue here. It codifies a particular kind of equality principle; No land-use regulation may treat “a religious assembly or institution” on “less than equal terms” than “a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(l). Subsection (b)(2) states a more general antidiscrimination rule; it prohibits the imposition or implementation of a land-use regulation that “discriminates against an assembly or institution on the basis of religion or religious denomination.” Id. § 2000cc(b)(2). Subsection (b)(3) prohibits land-use regulations that operate to “totally exclude” a religious assembly from and a jurisdiction or “unreasonably limit” a religious assembly, institution, or structure within a jurisdiction. Id. § 2000ec(b)(3)(A), (B). There is some obvious overlap in these statutory provisions. A land-use regulation that “totally excludes” a religious assembly from a jurisdiction in violation of subsection (b)(3) will also likely be a “substantial burden” on the religious assembly in violation of subsection (a)(1). A “substantial burden” on a religious assembly might also be discriminatory in violation of subsection (b)(2). But each of RLUIPA’s land-use subsections captures a distinct kind of free-exercise harm and must be given its own force and effect. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“Redundancies across statutes are not unusual events in drafting, and so long as there is no positive repugnancy between two laws ..., a court must give effect to both.” (internal quotation marks and citation omitted)); see also City of New Berlin, 396 F.3d at 900; Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 762 (7th Cir.2003) (RLUIPA’s land-use provisions are “operatively independent of one another.”). C. The equal-terms provision appears first in RLUIPA’s list of remedies for “[d]iscrimination and exclusion” but is not phrased as a general anti-discrimination rule. RLUIPA has one of those; § 2000cc(b)(2) contains general antidiscrimination language prohibiting governments from imposing or implementing any land-use regulation that “discriminates against any assembly or institution on the basis of religion or religious denomination.” (Emphasis added.) The language of the equal-terms provision is different; it prohibits governments from imposing or implementing 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.” 42 U.S.C. § 2000ce(b)(l) (emphasis added). This language is plain. To prove an equal-terms violation, a plaintiff “religious assembly or institution” need only establish that the challenged land-use regulation treats it on “less than equal terms with a nonreligious assembly or institution.” There is no requirement that the challenged regulation (or the regulatory authority that adopted or enforced it) have a discriminatory purpose or motive or evince anti-religious bias. This contrasts with the antidiscrimination provision contained in § 2000cc(b)(2), which targets regulations that discriminate “on the basis of religion.” (Emphasis added.) Accordingly, a land-use regulation that on its face or in its operative effect or application treats a religious assembly or institution less well than a nonreligious assembly or institution will violate the equal-terms provision even if it was adopted or implemented for reasons unrelated to religious discrimination. III. A. The Eleventh Circuit was the first to consider the scope of the equal-terms provision and has the most extensive body of caselaw interpreting and applying this part of RLUIPA. In Midrash Sephardi the Eleventh Circuit held that although the equal-terms provision “has the ‘feel’ of an equal protection law, it lacks the ‘similarly situated’ requirement usually found in equal protection analysis.” 366 F.3d at 1229. Accordingly, the court declined to import a “similarly situated comparator” requirement into RLUIPA equal-terms analysis. Instead, the court said, the equal-terms provision has a more “direct and narrow focus” and by its terms requires the court to evaluate whether the challenged land-use regulation treats a “religious assembly or institution” on “less than equal terms” than “a non-religious assembly or institution.” Id. at 1230. Because RLUIPA does not define “assembly” or “institution,” the court consulted dictionary definitions and concluded that “a natural and ordinary understanding of ‘assembly’ [i]s a group gathered for a common purpose.” Id. at 1231. The zoning ordinance at issue in Midrash Sephardi permitted private clubs and lodge halls in the municipality’s business district but excluded churches and synagogues. Because private clubs and lodge halls were commonly understood as secular “assemblies” and were permitted in the zone while churches and synagogues were excluded, the Midrash Sephardi court concluded that the challenged ordinance facially violated the equal-terms provision. Id. The court took the analysis a step further, however, and applied strict scrutiny to the statutory violation. “RLUIPA’s equal terms provision codifies the SmithLukumi line of precedent,” the court reasoned, so “a violation of § (b)’s equal treatment provision, consistent with the analysis employed in Lukumi, must undergo strict scrutiny.” Id. at 1232. The municipality’s proffered justification for excluding churches and synagogues from the business district — the “interests of retail synergy” — flunked the compelling-interest test. Id. at 1235. The Eleventh Circuit completed its analysis in Midrash Sephardi by considering whether the equal-terms provision was a permissible use of Congress’s § 5 enforcement power as understood in City of Boeme. The court concluded that it was, largely because the equal-terms provision codified the Supreme Court’s Free Exercise Clause jurisprudence. Id. at 1236-40 (holding that § 2000cc(b)(l) reflects free-exercise jurisprudence and is consistent with existing Equal Protection and Establishment Clause caselaw). In two subsequent cases, the Eleventh Circuit elaborated on Midrash Sephardi and adapted its analysis to “as applied” challenges under the equal-terms provision. See Primera Iglesia, 450 F.3d at 1307-08; Konikov, 410 F.3d at 1324-28. Primera Iglesia — the more recent of the two cases — offered this summary of the circuit’s approach to RLUIPA equal-terms cases: Based on a review of our case law construing the Equal Terms provision and reviewing closely related Supreme Court precedent arising under the Free Exercise Clause of the First Amendment, we can discern at least three distinct kinds of Equal Terms statutory violations: (1) a statute that facially differentiates between religious and nonreligious assemblies or institutions; (2) a facially neutral statute that is nevertheless “gerrymandered” to place a burden solely on religious, as opposed to nonreligious, assemblies or institutions; or (3) a truly neutral statute that is selectively enforced against religious, as opposed to nonreligious assemblies or institutions. 450 F.3d at 1308. In the first two types of claims, the equal-terms provision focuses on the content of the challenged land-use regulation to determine whether it expressly treats a religious assembly or institution on less than equal terms than a nonreligious assembly or institution, or was “gerrymandered” so that its unequal effect falls almost entirely on a religious assembly or institution, as in Lukumi. Id. at 1308-09. In an as-applied “selective enforcement” claim, however, the court held that an equal-terms plaintiff will generally be required to identify a similarly situated nonreligious assembly or institution that was treated more favorably. Id. at 1311; Konikov, 410 F.3d at 1327-29. B. We have cited Midrash Sephardi, Konikov, and Primera Iglesia with approval and specifically followed the Eleventh Circuit's approach in two prior cases. See Digrugilliers, 506 F.3d at 616; Vision Church, 468 F.3d at 1002-03. The claimant in Vision Church maintained (among other statutory and constitutional claims) that a special-use permit requirement in a local zoning ordinance violated RLUIPA’s equal-terms provision. To resolve this claim, we relied on the Eleventh Circuit’s decision in Konikov, noting first that as a general matter, there was no need to identify a “similarly situated” nonreligious land use for comparison against the religious claimant. “ ‘For purposes of a RLUIPA equal terms challenge, the standard for determining whether it is proper to compare a religious group to a nonreligious group is not whether one is “similarly situated” to the other, as in our familiar equal protection jurisprudence.” Vision Church, 468 F.3d at 1002-03 (quoting Konikov, 410 F.3d at 1324). We looked instead to the text of the equal-terms provision to find the relevant comparison: “[T]he pertinent question is whether the ‘land use regulation ... treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.’ ” Id. at 1003. Vision Church then quoted at length from the passage in Primera Iglesia summarizing the three ways in which RLUIPA’s equal-terms provision might be violated. Id. (quoting Primera Iglesia, 450 F.3d at 1308). Because the permit requirement at issue in Vision Church was facially neutral, did not “target religion through religious ‘gerrymandering,’ ” and had not been selectively enforced against the claimant church, there was no equal-terms violation. Id. Digrugilliers built on Vision Church and is very much like this case. In Digrugilliers a municipal zoning ordinance excluded churches from a commercial district but permitted a variety of other secular assemblies, including auditoriums, assembly halls, community centers, senior centers, day-care centers, art galleries, civic clubs, and libraries. 506 F.3d at 614-15. A Baptist minister sued, claiming an equal-terms violation, and like River of Life, moved for a preliminary injunction. The district court denied the motion and the minister appealed. Like the Village of Hazel Crest here, the municipality in Digrugilliers argued that the exclusion of churches from the commercial district was justified because churches would inhibit commercial development within the zone. As additional support for this argument, the municipality noted that state law prohibited the sale of alcohol or pornography within 200 and 500 feet, respectively, of a church. We reversed, relying on Vision Church and the Eleventh Circuit’s decisions in Primera Iglesia and Midrash Sephardi. Id. at 616. We focused not on the economic-development objectives of the municipality but on the ordinance’s facial differentiation between religious and nonreligious assemblies, and dismissed the municipality’s reliance on state laws protecting churches from incompatible adjacent land uses. We said: “Government cannot, by granting churches special privileges ( ... the right of a church to be free from offensive land uses in its vicinity), furnish the reason for excluding churches from otherwise suitable districts.” Id. We concluded in Digrugilliers that the minister’s equal-terms claim had “at least some, and possibly great, merit,” id. at 618, and remanded for application of the remaining preliminary-injunction criteria. C. After our decisions in Vision Church and Digrugilliers, the Third Circuit weighed in on the equal-terms provision, disagreeing with the Eleventh Circuit and requiring all equal-terms plaintiffs to identify a similar