Grace United seems to be asking us to adopt a
per se rule requiring that any land use regulation which permits any secular exception satisfy a strict scrutiny test to survive a free exercise challenge. Consistent with the majority of our sister circuits, however, we have already refused to interpret
Smith as standing for the proposition that a secular exemption automatically creates a claim for a religious exemption.
See Axson–Flynn, 356 F.3d at 1297 (a system of individualized exemptions “is one in which case-by-case inquiries are
routinely made, such that there is an ‘
individualized governmental assessment of the reasons for the relevant conduct ’ that ‘invite [s] considerations of the particular circumstances' involved in the particular case” (quoting
Smith, 494 U.S. at 884, 110 S.Ct. 1595) (emphases added)). As the district court correctly observed, several “federal courts have held that land use regulations, i.e., zoning ordinances, are neutral and generally applicable notwithstanding that they may have individualized procedures for obtaining special use permits or variances.”
Grace United Methodist Church, 235 F.Supp.2d at 1200 (citing cases). Indeed, in the land use context, the Sixth, Seventh, Eighth, and Eleventh Circuits have rejected a
per se approach and instead apply a fact-specific inquiry to determine whether the regulation at issue was motivated by discriminatory animus, or whether the facts support an argument that the challenged rule is applied in a discriminatory fashion that disadvantages religious groups or organizations.
See, e.g., Civil Liberties For Urban Believers v. City of Chicago, 342 F.3d 752, 764–5 (7th Cir.2003) (ordinance permitting churches in all residential areas but requiring special use approval to operate churches in commercial and business areas and limiting church operation in manufacturing areas held neutral laws of general applicability);
First Assembly of God of Naples v. Collier County, 20 F.3d 419, 423–24 (11th Cir.1994) (city's ordinance prohibiting homeless shelters in certain areas held neutral and of general applicability because motivated by health and safety concerns, applied to both church and secular group homes and did not completely prohibit operation of homeless shelters);
Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 472 (8th Cir.1991) (zoning ordinance excluding churches and other non-profits from city's central business district had no impact on religious belief and was general law applying to all land use in city). According to these courts, although zoning laws may permit some individualized assessment for variances, they are generally applicable if they are motivated by secular purposes and impact equally all land owners in the city seeking variances.
See, e.g., First Assembly of God of Naples, 20 F.3d at 423–24.