Writing for the 7th Circuit in his usual engaging style, yesterday Judge Richard Posner in Digrugilliers v. Consolodated City of Indianapolis, (7th Cir., Oct. 30, 2007), reversed a district court's denial of a preliminary injunction in a religious land use case. At issue was whether in requiring a Baptist Church to obtain a variance in order to lease space for its religious services in a district zoned for commercial use, Indianapolis was violating the provision of RLUIPA that prohibits unequal treatment of religious institutions.
The Court of Appeals rejected two rather elaborate theories used by the district judge to deny relief to the church. The lower court said that since a religious use includes not only religious services, but also residential uses such as a rectory for the minister, churches would get preferential treatment if they were not required to obtain a variance. Second it said that a church could interfere with existing businesses because state law prohibits the sale of liquor or pornography within specified distances from any church. Judge Posner wrote: "Government cannot, by granting churches special privileges (the right of a church official to reside in a building in a nonresidential district, or the right of the church to be free from offensive land uses in its vicinity), furnish the premise for excluding churches from otherwise suitable districts."
