This article is divided into three parts. First, it explores certain issues inherent in a Nondiscrimination claim, including how the Nondiscrimination provision has been mistakenly conflated with other RLUIPA land use provisions, whether a showing of direct hostility toward a particular faith by governmental actors is required, and what might qualify as adequate comparators in a case where a claimant asserts that it was treated differently and worse than similarly situated applicants. Second, the article proposes application of the reasoning in McDonnell Douglas Corp. v. Green to some Nondiscrimination claims. This would be achieved by burden shifting; after the plaintiff establishes a prima facie case of dissimilar treatment, triggering a presumption of discrimination, the burden would shift to the defendant to show a nondiscriminatory motive for its actions. Finally, the article provides different real-world examples and applies the suggested solution to the various contexts in which a Nondiscrimination claim arises.
Roman P. Storzer & Blair L. Storzer,
Christian Parking, Hindu Parking: Applying Established Civil Rights Principles to RLUIPA's Nondiscrimination Provision,
Rich. J. L. & Pub. Int.
Available at: http://scholarship.richmond.edu/pilr/vol16/iss2/4