Creating Confusion Rather than Clarity: The Sixth Circuit's (Lack of) Decision in Tree of Life Christian Schools v. Upper Arlington

Abstract

There is currently a split among five federal circuits as to what constitutes a secular comparator to a religious assembly or institution under the equal terms provision of the Religious Land Use and Institutionalized Persons Act. Stemming from this initial split, courts have further divided as to what is necessary to establish a prima facie case for an equal terms claim. On May 18, 2016, the U.S. Court of Appeals for the Sixth Circuit in Tree of Life Christian Schools v. Upper Arlington became the most recent circuit to address the equal terms provision. Rather than providing a clear articulation of the equal terms provision, however, the Sixth Circuit refused to officially adopt a position regarding the circuit split. This Comment argues that in abstaining from formally expressing a legal standard for determining violations of the equal terms provision, the Sixth Circuit shirked its appellate duty to create clarity and encourage uniformity.