USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 1 of 34

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2392

ALIVE CHURCH OF THE NAZARENE, INC.,

Plaintiff – Appellant,

v.

PRINCE WILLIAM COUNTY, VIRGINIA,

Defendant – Appellee.

------------------------------

THE GENERAL CONFERENCE OF SEVENTH-DAY ADVENTISTS; THE JEWISH COALITION FOR RELIGIOUS LIBERTY,

Amici Supporting Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:21-cv-00891-LMB-JFA)

Argued: October 26, 2022 Decided: January 31, 2023

Before KING and HEYTENS, Circuit Judges, and Sherri A. LYDON, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Heytens and Judge Lydon joined. USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 2 of 34

ARGUED: Benjamin Paul Sisney, THE AMERICAN CENTER FOR LAW & JUSTICE, Washington, D.C., for Appellant. Alan Frederic Smith, PRINCE WILLIAM COUNTY ATTORNEY’S OFFICE, Prince William, Virginia, for Appellee. ON BRIEF: Erik W. Stanley, PROVIDENT LAW, Scottsdale, Arizona; Jordan Sekulow, Stuart J. Roth, Colby M. May, THE AMERICAN CENTER FOR LAW & JUSTICE, Washington, D.C., for Appellant. Curt G. Spear, Jr., Deputy County Attorney, PRINCE WILLIAM COUNTY ATTORNEY’S OFFICE, Prince William, Virginia, for Appellee. Christopher Pagliarella, YALE LAW SCHOOL FREE EXERCISE CLINIC, Washington, D.C.; Gordon D. Todd, John L. Gibbons, William Thompson, III, SIDLEY AUSTIN LLP, Washington, D.C., for Amici Curiae.

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KING, Circuit Judge:

In November 2018, plaintiff Alive Church of the Nazarene, Inc. (the “Church”),

purchased 17 acres of land — zoned primarily for agricultural use — on which the

Church sought to conduct religious assemblies. After defendant Prince William County,

Virginia (the “County”) denied the Church’s request to worship on its property before the

Church complied with the zoning requirements, the Church initiated this lawsuit in

August 2021 in the Eastern District of Virginia. See Alive Church of the Nazarene, Inc.

v. Prince William Cnty., No. 1:21-cv-00891 (E.D. Va. Aug. 3, 2021), ECF No. 1 (the

“Complaint”).

By its Complaint, the Church has alleged six claims against the County — three

claims under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and

three federal constitutional claims. For reasons explained in its Memorandum Opinion of

November 2021, the district court dismissed those claims pursuant to Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

See Alive Church of the Nazarene, Inc. v. Prince William Cnty., No. 1:21-cv-00891 (E.D.

Va. Nov. 10, 2021), ECF No. 25 (the “Dismissal Opinion”). In resolving this appeal by

the Church, as explained below, we are satisfied to affirm the district court.

I.

A.

Because this appeal centers on certain zoning laws, both state and local, we begin

with a review of those provisions. First of all, Virginia allows localities to “regulate,

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restrict, permit, prohibit, and determine . . . [t]he use of land, buildings, structures and

other premises for agricultural, business, industrial, residential, flood plain and other

specific uses[.]” See Va. Code § 15.2-2280(1). Pursuant to that authority, and in an

effort to “create an environment favorable for the continuation [of] farming and other

agricultural pursuits,” the County has zoned certain areas within its bounds as “A-1,

Agricultural” land. We refer herein to the various tracts of land designated by the County

as “A-1, Agricultural” as the “Agricultural District.”

Land within the Agricultural District — including the Church’s 17-acre property

— is bound by the requirements set forth in Chapter 32, Article III of the Prince William

County Code (the “Agricultural Zoning Ordinance,” or simply the “Ordinance”), in

addition to the County’s general zoning requirements. The self-identified purpose of the

Agricultural Zoning Ordinance is to “encourage conservation and proper use of large

tracts of real property in order to assure available sources of agricultural products, to

assure open spaces within reach of concentrations of population, to conserve natural

resources, prevent erosion, and protect the environment; and to assure adequate water

supplies.” See Prince William Cnty. Code § 32-301.01.

To that end, within the Agricultural District, the County has restricted the use of

land primarily to agricultural purposes. The County allows 14 uses to operate by right in

the Agricultural District, subject to strict development standards. In addition to the 14

by-right uses, the County allows 35 nonagricultural “special uses” — including religious

institutions — to operate within the Agricultural District after a site-specific review and

subject to conditions outlined in a Special Use Permit (a “SUP”). See Prince William

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Cnty. Code § 32-100, -301.04. All other uses are prohibited by the County on land lying

within the Agricultural District.

Relevant to this appeal, the 14 by-right uses include farm wineries, limited-license

breweries, and agricultural operations. Pursuant to Virginia law, all agricultural

operations can carry out agritourism activities. See Va. Code § 15.2-2288.6.

“Agritourism” is defined by Virginia law as “any activity carried out on a farm or ranch

that allows members of the general public, for recreational, entertainment, or educational

purposes, to view or enjoy rural activities, including farming, wineries, ranching,

horseback riding, historical, cultural, harvest-your-own activities, or natural activities and

attractions.” Id. §§ 3.2-6400, 15.2-2288.6. Within the Agricultural District certain

nonagricultural activities, like outdoor meetings, tent revivals, or business events, require

a property owner to apply for a Temporary Activity Permit (a “TAP”), which will be

granted only if “the proposal will not impair the purpose and intent of the zoning

ordinance, and when the use is not so recurring in nature as to constitute a permanent use

not otherwise approved on a site plan.” See Prince William Cnty. Code § 32-210.01.

Meanwhile, to qualify as a farm winery or limited-license brewery, an

organization must (1) be located on a producing farm, vineyard, or orchard; (2) produce

its respective beverages on-site; and (3) be licensed by the Virginia Alcohol Beverage

Control Board (the “ABC Board”). See Prince William Cnty. Code § 32-100. To

preserve the economic vitality of the Virginia wine and beer industries, state law

prohibits localities from regulating the “[u]sual and customary activities and events” at

farm wineries and limited-license breweries “unless there is a substantial impact on the

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health, safety, or welfare of the public.” See Va. Code §§ 15.2-2288.3 (referring to farm

wineries); -2288.3:1 (referring to limited-license breweries). In accordance with state

law, the County authorizes farm wineries and limited-license breweries to host special

events (such as weddings, banquets, and conferences, of up to 150 people) without

obtaining a TAP or a SUP to do so. See Prince William Cnty. Code § 32-300.07(10)(b).

B.

As reflected in the Complaint, in November 2018, the Church bought its 17 acres

of land in Nokesville, Virginia, within the Agricultural District. 1 The Church purchased

that particular parcel of property because its prior owners had obtained a SUP allowing

them to build a 40,000-square-foot house of worship and to use the land for religious

purposes. The Church was able to adopt that SUP — with minimal changes — for its

own plans. In addition to allowing the Church to operate within the Agricultural District,

the SUP requires it to utilize low-impact development designs for its buildings, construct

water retention areas, implement stormwater management strategies, and build turn lanes

on roads into the property, if requested by the County. Notably, compliance with those

requirements will cost hundreds of thousands of dollars, which the Church does not

currently have available. Nevertheless, according to the Complaint, the Church “intends

to. . . fulfill the SUP requirements” and build its proposed house of worship. See

Complaint ¶ 26.

1 Because the district court dismissed the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, we accept the facts alleged in the Complaint as true and recite them in the light most favorable to the Church. See Feminist Majority Found. v. Hurley,

(4th Cir. 2018).

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While gathering funds to begin construction, the Church’s congregation began

meeting at various off-site locations. Initially, the congregation met at a school, but when

the school was forced to close in response to the COVID-19 pandemic, the Church

moved its religious services to a local farm winery, also located in the County’s

Agricultural District. The Church subsequently investigated whether it could congregate

for religious worship on its own property before it was able to comply with the terms of

its SUP. In response, the County’s zoning administrator informed the Church that if it

licensed itself as a farm winery or limited-license brewery, it could “build without

building permits and hold as many events as [it] want[s].” See Complaint ¶ 34.

Thereafter, the Church informed the County that it planned to use its property to

grow and harvest Christmas trees, fruit trees, and pumpkins, and to sell those products

on-site. Concomitantly, the Church sought official confirmation that its plan qualified as

an agricultural use allowed to operate by right in the Agricultural District. The County

provided such confirmation by letter dated February 26, 2021 (the “Zoning Verification

Letter”). Therein, the Zoning Administrator stated that the Church’s planned use for the

property would be “permitted by right” as the “principal bona fide agricultural use of the

property.” See J.A. 69. 2

The Zoning Verification Letter further spelled out that the Church could not use

the property for any other purpose, or build any structures that are not associated with the

approved use. Additionally, the Zoning Verification Letter made clear that “events such

2 Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in this appeal.

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as weddings, wedding receptions, corporate parties/meetings, conferences, banquets,

dinners, and private parties would not be permitted to occur on the Property or in any

building/structure,” unless the Church was issued a farm winery or limited brewery

license by the ABC Board or received a TAP. See J.A. 70. As such, the Zoning

Verification Letter reflected that, if the Church wished to hold religious services on the

property before complying with the terms of its SUP, it would need to establish itself as a

farm winery or limited-license brewery.

The Church thereafter began the process of establishing itself as a farm winery or

limited-license brewery. According to the Complaint, the Church intended to make

nonalcoholic cider using fruit harvested from its fruit trees. As required of all farm

wineries and limited-license breweries, the Church sought to acquire a license from the

ABC Board. Although the Church completed nearly all of the steps necessary to qualify

for the license, it ultimately determined that obtaining a license from the ABC Board

would violate its sincerely held religious belief against the sale or promotion of alcohol.

Consequently, the Church stopped the licensure process. Given the fact that it had no

farm winery or limited brewery license and had not complied with the SUP, the Church

was thereafter unable to hold religious gatherings on its property.

C.

By its Complaint of August 2021, the Church takes issue with the County’s

requirement that it and other religious institutions obtain a SUP to operate within the

Agricultural District as well as the requirement that the Church obtain a farm winery or

limited brewery license from the ABC Board to congregate on its land before complying

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with its SUP. The Complaint alleges that the Agricultural Zoning Ordinance violates

RLUIPA and the Constitution of the United States. According to the three RLUIPA

claims, the County’s two requirements violate RLUIPA’s equal terms, nondiscrimination,

and substantial burden provisions. The three constitutional claims meanwhile allege that

those requirements contravene the First Amendment’s Free Exercise and Peaceable

Assembly Clauses, and the Fourteenth Amendment’s Equal Protection Clause. In

support of its claims, the Church attached the Zoning Verification Letter to the Complaint

and incorporated it by reference therein.

In September 2021, the County moved to dismiss the Church’s Complaint under

Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing to sue and under

Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Based upon

the analysis in its Dismissal Opinion, the district court dismissed the Complaint in its

entirety pursuant to Rule 12(b)(6). The Church timely noted this appeal, and we possess

jurisdiction under

. 3

3 By its Dismissal Opinion, the district court rejected the County’s Rule 12(b)(1) argument and ruled that the Church possesses Article III standing to sue. Although that ruling is not challenged by the County on appeal, “federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” See Henderson ex rel. Henderson v. Shinseki,

(2011). Having carefully assessed the standing issue, we are satisfied that the court correctly ruled that the Church has Article III standing to pursue its claims.

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II.

We review de novo a district court’s dismissal of a complaint under Federal Rule

of Civil Procedure 12(b)(6) for failure to state a claim. See United States ex rel. Nathan

v. Takeda Pharms. N. Am., Inc.,

(4th Cir. 2013). To survive a motion

to dismiss, a complaint must “state a claim to relief that is plausible on its face.” See

Ashcroft v. Iqbal,

(2009). Although we are constrained to accept the

factual allegations in the complaint as true, “we need not accept legal conclusions

couched as facts or unwarranted inferences, unreasonable conclusions, or arguments.”

See Wag More Dogs, LLC v. Cozart,

(4th Cir. 2012).

III.

On appeal, the Church challenges the dismissal of each of its claims, identifying

several aspects of the Dismissal Opinion that it contends were decided in error. We first

address the Church’s three RLUIPA claims. We then review and resolve the three

constitutional claims.

A.

We begin with the Church’s three RLUIPA claims. RLUIPA establishes statutory

protections for the free exercise of religion that exceed the requirements contained in the

Constitution. See Jehovah v. Clarke,

(4th Cir. 2015). In that regard,

RLUIPA protects the free exercise of religion by addressing land use ordinances and the

religious rights of institutionalized persons. The portion of RLUIPA pertaining to land

use is further subdivided into the substantial burden, nondiscrimination, and equal terms

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provisions. The Church claims that the County’s actions violate all three of those

provisions. We consider each claim in turn.

1.

The first of the Church’s RLUIPA claims is its equal terms claim, by which it

asserts that the Agricultural Zoning Ordinance treats religious assemblies and institutions

worse than nonreligious assemblies and institutions. Under RLUIPA’s equal terms

provision, “[n]o government shall impose or implement a land use ordinance in a manner

that treats a religious assembly or institution on less than equal terms with a nonreligious

assembly or institution.” See 42 U.S.C. § 2000cc(b)(1). To state an equal terms claim, a

plaintiff must allege that: (1) it is a religious assembly or institution, (2) subject to a land

use ordinance, and (3) the land use ordinance treats the plaintiff on less than equal terms

with (4) a nonreligious assembly or institution. See Canaan Christian Church v.

Montgomery Cnty.,

(4th Cir. 2022). Here, it is undisputed that the

Church is a religious assembly subject to a land use ordinance. Our analysis, therefore,

focuses on whether the Church has sufficiently alleged that it has been treated on less

than equal terms with a nonreligious assembly or institution.

As to that equal terms question, “[i]f a plaintiff offers no similarly situated

comparator, then there can be no cognizable evidence of less than equal treatment, and

the plaintiff has failed to meet its initial burden of proof.” See Canaan,

(quoting Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty.,

(11th Cir. 2006)). Accordingly, to present an equal terms claim, a

plaintiff must propose a comparator that is “similarly situated with regard to the

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ordinance at issue.” See Canaan,

(internal quotation marks omitted). Put

differently, the nonreligious comparator must be an entity that has the same effect on the

ordinance’s purpose as a religious assembly or institution. See, e.g., River of Life

Kingdom Ministries v. Village of Hazel Crest,

(7th Cir. 2010)

(rejecting comparison of churches to assemblies that “have different effects on the

municipality and its residents”).

A land use ordinance violates RLUIPA, for example, if it excludes religious

assemblies, but at the same time includes nonreligious assemblies that undermine the

ordinance’s goal in the same way. See, e.g., River of Life,

(recognizing

that “[i]f 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”). Thus, a

zoning ordinance that specifically excludes religious institutions from an area zoned for a

particular purpose is not necessarily discriminatory, so long as the included uses do not

have the same effect on the regulatory purpose as the excluded religious uses.

(concluding that there was no equal terms violation where zoning ordinance excluded

churches along with other noncommercial uses from a commercial district, while

including only commercial uses); Thai Meditation Ass’n of Ala., Inc. v. City of Mobile,

(11th Cir. 2020) (deciding there was no equal terms violation where

the challenged ordinance “lump[ed] [churches] in with other non-religious entities in

requiring planning approval for projects in residential districts”).

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a.

The Complaint alleges that the County treats the Church worse than nonreligious

assemblies because the Church cannot operate within the Agricultural District without a

SUP while farm wineries and limited-license breweries can. Focusing on the third and

fourth elements of the equal terms claim — whether the Church properly alleged that it

has been treated worse than a nonreligious assembly or institution — the district court

observed that the nonreligious comparator must be similarly situated to the Church “with

respect to the purpose of the underlying ordinance.” See Dismissal Opinion 11.

To determine the purpose of the Agricultural Zoning Ordinance, the district court

looked to the Prince William County Code, which provides that the aim of the

Agricultural District is to “encourage ‘farming and other agricultural pursuits.’” See

Dismissal Opinion 11 (quoting Prince William Cnty. Code § 32-301.01) The court then

determined that the Church is similarly situated to its “statutory companions” — i.e.,

those listed among the 35 special uses that must be permitted in the Agricultural District,

such as child-care facilities and civic clubs. Id. As the court saw it, the Church and those

other assemblies and institutions are similarly situated, in that they “are not agricultural

and do not advance the [Agricultural District’s] purpose.” Id.

The district court rejected the Church’s contention that its “engage[ment] in bona

fide agricultural uses” renders it comparable to farm wineries and limited-license

breweries — and unlike the nonagricultural entities that require a SUP to operate in the

Agricultural District. See Dismissal Opinion 12. The court reasoned that the Church’s

agricultural activity “does not make the comparison to civic clubs and child-care facilities

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inapt.” Id. Rather, it “means that instead of comparing the Church to a generic civic

club, the Church must be compared to a civic club that, like the Church, is engaged in

bona fide agricultural uses.” Id. The court recognized that “[i]f the County permitted

such a civic club to hold gatherings while denying the same to the Church, the Church

would state an equal terms claim.” Id. (internal quotation marks omitted). The Church,

however, “has alleged nothing of the sort.” Id.

Expounding on the Church’s effort to liken itself to farm wineries and limited-

license breweries, the district court explained that the Church’s agricultural activity “does

not change the fact that religious institutions are not agricultural by definition and must

therefore get permission to operate in the [Agricultural] District.” See Dismissal Opinion

12 n.5. “In contrast,” the court emphasized, “farm wineries and limited-license breweries

are allowed in the [Agricultural District] by right because they are, by definition,

agricultural.” Id. In light of that analysis, the court concluded that the Church “has failed

to state an equal terms claim.” Id. at 12 (internal quotation marks omitted).

b.

On appeal, the Church asserts that the district court erred in concluding that the

Church is not similarly situated to farm wineries and limited-license breweries.

According to the Church, the only distinction is that farm wineries and limited-license

breweries can obtain an ABC license while the Church cannot. That difference, the

Church contends, does not further the County’s goal of preserving farmland. We

disagree, however, with the Church’s theory.

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Significantly, farm wineries and limited-license breweries are allowed to host

special events because those events further agricultural activity. Farm wineries and

limited-license breweries remain profitable by selling their products directly to the public.

Hosting special events enhances the ability to market and sell products and therefore

increase their economic viability. Put simply, the more profitable farm wineries and

limited-license breweries are, the more likely they will continue in operation and draw

more investment in the same industry. Because farm wineries and limited-license

breweries must be located on producing farms, vineyards, or orchards, investment in their

continued success directly advances the promotion of farming.

But allowing religious institutions to conduct worship services does not further the

purpose of the Agricultural Zoning Ordinance — that is, to promote farming. Specific to

the Church, allowing services would not increase its ability to continue farming its land.

Accordingly, we cannot agree with the Church that it is similarly situated to farm

wineries and limited-license breweries with regard to the Ordinance. The Church has

failed to meet its initial burden of proof by providing a similarly situated comparator with

which it has been treated unequally, and has thereby failed to state a RLUIPA equal terms

claim. 4

4 In addition to farm wineries and limited-license breweries, the Church maintains that it is similarly situated to agricultural operations that can conduct agritourism activities. That argument does not help the Church, however, as it has qualified itself as an agricultural operation by growing Christmas trees, fruit trees, and pumpkins, and thus can also conduct agritourism activities. It is solely prevented from conducting nonagricultural activities. In that regard, the County is treating the Church on equal terms with agricultural operations.

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2.

The second of the Church’s RLUIPA claims is its nondiscrimination claim, which

is based on an allegation of discriminatory intent. RLUIPA’s nondiscrimination

provision proclaims that “[n]o government shall impose or implement a land use

ordinance that discriminates against any assembly or institution on the basis of religion or

religious denomination.” See 42 U.S.C. § 2000cc(b)(2). Unlike the equal terms or

substantial burden provisions of RLUIPA, the nondiscrimination provision requires

evidence of discriminatory intent to establish a claim. A plaintiff demonstrates a prima

facie case when it alleges facts sufficient to show that the challenged government

decision was “motivated at least in part by discriminatory intent.” See Jesus Christ Is the

Answer Ministries, Inc. v. Balt. Cnty.,

(4th Cir. 2019). If a plaintiff

sufficiently alleges a prima facie case of discrimination, a court may not dismiss that

claim, “even if the defendant advances a nondiscriminatory alternative explanation for its

decision, and even if that alternative appears more probable.”

Probing discriminatory intent involves a “sensitive inquiry” that must take into

account both direct and circumstantial evidence, as laid out by the Supreme Court in

Arlington Heights v. Metro. Housing Development,

(1977). See

Jesus Christ Is the Answer,

. In that inquiry, a court can consider

contemporary statements by decisionmakers indicating bias, derisive comments made to

lawmakers by members of the community, the historical background of the decision, and

any deviations from the standard decisionmaking process implying a decisionmaker’s

discriminatory intent. See Arlington Heights,

. To establish a prima

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facie case of discrimination, that evidence must demonstrate at least some religious

animus. See Jesus Christ Is the Answer,

(concluding that community

member’s disapproving remarks at administrative hearing regarding church, followed by

denial of church’s land use petition, established prima facie claim of religious animus);

Bethel World Outreach Ministries v. Montgomery Cnty. Council,

(4th

Cir. 2013) (ruling that community opposition to size of two proposed church buildings

implied no religious animus, only objections to large buildings in rural zone).

a.

By its Complaint, the Church alleges that the County contravened the

nondiscrimination provision of RLUIPA in two ways. The first is the County’s

regulatory differentiation between religious institutions and agricultural operations, and

the second is the County’s requirement that the Church obtain a license from the ABC

Board in order to hold religious gatherings on its land. Although the Complaint itself

does not allege discriminatory intent, the Church argued to the district court that “intent

may be inferred from the treatment itself,” including the Zoning Verification Letter

indicating that the Church must qualify as a farm winery or limited-license brewery to

conduct worship services on its land without a SUP. See Dismissal Opinion 13 (quoting

Response to Motion to Dismiss).

The district court ruled that, assuming the Complaint’s factual allegations are true,

those facts do not imply religious animus on the part of the County. The purported

differential treatment — that religious institutions need a SUP to operate within the

Agricultural District while farm wineries do not — does not illustrate the County’s

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discriminatory intent because, as the court explained in its equal terms analysis, the

Church has not properly alleged that it has been subjected to differential treatment. As to

the Zoning Verification Letter, the court observed that it does nothing more than spell out

the law. The court therefore determined that the Church’s dispute is “with the law itself.”

See Dismissal Opinion 14. After pointing out that the Church has alleged no facts

indicating that the Agricultural Zoning Ordinance was passed with religious animus, the

court deemed the Church’s nondiscrimination claim to be insufficient.

b.

Relying on our decision in Jesus Christ Is the Answer, the Church maintains on

appeal that the district court prematurely dismissed its nondiscrimination claim.

Specifically, the Church contends that the court improperly credited the County’s

alternative explanation for its allegedly discriminatory actions. The Church asserts that it

presented a prima facie case for discrimination which, as in Jesus Christ Is the Answer,

cannot be dismissed at the motion to dismiss stage. To support its assertion of a prima

facie case, the Church points to the Agricultural Zoning Ordinance’s SUP requirement

and to the Zoning Verification Letter.

We agree, however, with the district court’s assessment of the nondiscrimination

claim. The Complaint does not allege that the County either passed the Agricultural

Zoning Ordinance with discriminatory intent or enforced it in a discriminatory manner.

Nor has the Church asserted facts sufficient to establish a prima facie claim of religious

animus by the County. The Church simply points us again to the SUP requirement and to

the Zoning Verification Letter. But neither implies religious animus. As in Bethel

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Outreach Ministries, there is no evidence that any of the decisionmakers or community

members expressed any animosity toward the Church in particular or religious

institutions in general. Nor does the Zoning Verification Letter represent a deviation

from the existing law or express any opinion about the Church’s proposed religious

activities. Having been presented with nothing more, we are satisfied to agree with the

district court that the Church has failed to state a RLUIPA nondiscrimination claim.

3.

The Church’s third and final RLUIPA claim is its substantial burden claim.

Relevant to that claim, RLUIPA provides:

No government shall impose or implement a land use ordinance 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.

See 42 U.S.C. § 2000cc(a)(1). To determine whether an impermissible burden has been

imposed, we ask (1) whether the impediment to the organization’s religious practice is

“substantial,” and (2) whether the government is responsible for the impediment. See

Canaan,

.

Under the first prong of the substantial burden analysis, in the land use context, an

impediment is substantial if “the property would serve an unmet religious need, the

restriction on religious use is absolute rather than conditional, and the organization must

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acquire a different property as a result.” See Jesus Christ Is the Answer,

.

An impediment is absolute where land use restrictions wholly prevent a religious

organization from building any house of worship on its property, rather than simply

imposing limitations on the building. See Bethel World Outreach Ministries,

. That is, if a land-use restriction would limit the building’s size, that restriction is

not an absolute impediment, as it would still allow a religious institution to construct a

building. See Canaan,

(recognizing that “[t]he fact that there are practical

and legal restrictions preventing a larger development on the [p]roperty does not amount

to a RLUIPA substantial burden violation”).

Pursuant to the second prong of the substantial burden analysis, even if a religious

institution can establish that it faces an absolute impediment to religious practice, its

claim will fail if the burden was “self-imposed.” See Canaan,

; see also

Andon, LLC v. City of Newport News,

(4th Cir. 2016) (“A self-

imposed hardship generally will not support a substantial burden claim under RLUIPA,

because the hardship was not imposed by governmental action altering a legitimate, pre-

existing expectation that a property could be obtained for a particular land use.”). As

such, if a religious institution acquires land knowing that it is subject to certain

restrictions, any burden resulting from those restrictions has not been imposed by the

government; but rather, the burden is self-imposed. See Canaan,

.

Nonetheless, if an organization knowingly purchases land subject to certain restrictions,

but reasonably expects that it can comply with those restrictions, the burden is not self-

20 USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 21 of 34

imposed if the government “subsequently makes development and use practically

impossible.”

.

a.

The Complaint alleges that the Agricultural Zoning Ordinance’s SUP requirement

imposes a substantial burden on religious institutions by “forcing [churches] to expend

substantial resources to obtain a SUP before meeting to worship.” See Complaint ¶ 112.

The district court rejected the Church’s substantial burden claim because the Church had

purchased the land with full knowledge of the applicable Agricultural Zoning Ordinance

and its SUP requirement. In fact, as the court noted, “the Church admitted. . . that it

purposely paid more for the land because it had a SUP.” See Dismissal Opinion 15

(internal quotation marks omitted). The court ruled that any burden was therefore self-

imposed.

The district court additionally considered whether the government had changed its

posture with respect to religious land use after the Church bought its land and determined

that it had not. In essence, the court explained, the Church is seeking a way to avoid

complying with its SUP and to avoid satisfying the other statutory requirements that

would allow it to host special events on its property. In other words, the Church seeks an

“automatic exemption to religious organizations from generally applicable land use

ordinances” that would “favor religious uses over secular uses.” See Dismissal Opinion

15 (quoting Andon, LLC,

).

21 USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 22 of 34

b.

On appeal, the Church shifts focus, claiming that “the SUP is a distraction” and

asking us instead to concentrate solely on the requirement that it obtain an ABC license

in order to congregate on its land before complying with the terms of its SUP. See Br. of

Appellant 35. In any event, we agree with the district court that the Church’s

complained-of burden is self-imposed. That is because the Church did not have a

reasonable expectation of religious land use without complying with its SUP or the

statutory requirements to become a farm winery or limited-license brewery.

Notably, the Church’s substantial burden claim also fails for the independent

reason that the impediment to religious land use is not absolute. Indeed, the Church itself

recognizes that it can and will use its property for religious purposes without any license

from the ABC Board when it complies with the SUP. The Agricultural Zoning

Ordinance thus does not require the Church to seek out new property, or even to adjust its

plans to erect its buildings. Rather, the Church must simply comply with the terms of its

SUP. In all of these circumstances, the Church’s substantial burden claim fails. 5

5 The Church suggests on appeal that it had a reasonable expectation — absent an ABC license or compliance with its SUP — of conducting religious services as agritourism events on its land. See Br. of Appellant 35 (identifying “agritourism events” as “what it is seeking to do”). We decline to reach that theory, however, which would require us to interpret the Virginia statute defining “agritourism” and consider whether it includes religious worship services. Because we are satisfied that the Church’s substantial burden claim fails due to the fact that the complained-of impediments are not absolute, we need not reach the Virginia state law question.

22 USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 23 of 34

B.

We turn now to the Church’s three federal constitutional claims. More

specifically, the Church claims that the SUP requirement and the ABC licensure

requirement violate the First Amendment’s Free Exercise and Peaceable Assembly

Clauses and the Fourteenth Amendment’s Equal Protection Clause. The Church’s

constitutional claims rest on the same factual allegations as its RLUIPA claims. We

address each constitutional claim in turn.

1.

First is the Church’s free exercise claim. The First Amendment provides that

“Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof.” See U.S. Const. amend. I. As the Supreme Court has recognized,

the Free Exercise Clause protects against laws that discriminate against or among

religious beliefs or that restrict certain practices because of their religious conduct. See

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

(1993).

Under the Free Exercise Clause, a facially neutral and generally applicable ordinance is

subject to rational basis review, “even where it has the incidental effect of burdening

religious exercise.” See Canaan,

. Laws that are not neutral and generally

applicable, however, are subject to strict scrutiny review.

To determine a law’s neutrality, therefore, we must determine its object. See

Lukumi,

. If a law has “no object that ‘infringe[s] upon or restrict[s]

practices because of their religious motivation,’” then the law is neutral. See Liberty

Univ., Inc. v. Lew,

(4th Cir. 2013) (quoting Lukumi,

)

23 USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 24 of 34

(alterations and emphasis in original). On the other hand, if a law limits religious

practice “without a secular meaning discernable from the language or context,” then the

law lacks neutrality.

When presented with a law that affects religious practice, even if indirectly, a

court must look behind the law’s text to determine if it was enacted “because of” and not

“in spite of” its effect on religion. See Lukumi,

. Such an inquiry

compels the court to look at contemporaneous statements made by decisionmakers or

community members surrounding the law’s passage, and any deviations from standard

decisionmaking procedures.

(applying the Arlington Heights “sensitive

inquiry” into lawmakers’ intent). In the land use context, if a particular ordinance

explicitly regulates religious institutions, it is nevertheless neutral if religious institutions

are “just one among many” other nonreligious regulated uses, and there is no independent

evidence of religious animus. See Civ. Liberties of Urb. Believers v. City of Chicago,

(7th Cir. 2003) (finding commercial zoning ordinance neutral even when it

“includes ‘church’ as just one among many and varied religious and nonreligious

regulated uses” because there is no record, “nor do [a]ppellants articulate in anything but

conclusory terms that the object and purpose of the [challenged ordinance] are anything

other than those expressly stated therein”).

a.

The Complaint alleges that both the SUP requirement and ABC licensure

requirement lack neutrality and violate the Free Exercise Clause of the First Amendment.

Specifically, the Church asserts that the SUP requirement is facially discriminatory

24 USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 25 of 34

because it explicitly subjects religious institutions to differential treatment, and the ABC

licensure requirement is discriminatory because it only affects religious practice.

According to the Church, that effect demonstrates that the licensure requirement was

enacted to target religious practice. As the Church would have it, the SUP and licensure

requirements are therefore subject to — and fail — strict scrutiny.

The district court concluded that the Agricultural Zoning Ordinance is subject to

only rational basis review, and that it survives. Specifically, the court determined that the

law is facially neutral (and generally applicable) because it treats all similarly situated

entities alike — it does not single religious institutions out for differential treatment. See

Dismissal Opinion 16. Furthermore, the court observed that the Church alleged no facts

indicating that the County created the Agricultural District for the purpose of infringing

upon or restricting religious practice. Id. at 17.

In thus conducting its rational basis review, the district court recognized that the

applicable standard requires the Church to establish that the Agricultural Zoning

Ordinance is not rationally related to a legitimate government interest. See Dismissal

Opinion 17 (citing Bethel World Outreach Ministries,

). The court then

invoked our precedent for the proposition that the Agricultural District’s purpose — “to

prioritize farming and other agricultural pursuits” — is a legitimate government interest.

(internal quotation marks omitted) (citing Sylvia Dev. Corp. v. Calvert Cnty.,

, 821 n.3 (4th Cir. 1995)). Addressing the SUP requirement, the court concluded that

requiring religious institutions to obtain a SUP before operating in the Agricultural

25 USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 26 of 34

District is rationally related to the County’s legitimate interest “because religious

institutions generally are not agricultural.” Id.

With respect to the ABC license requirement, the district court identified an

additional legitimate government interest: preserving the economic vitality of Virginia’s

wine and beer industries. See Dismissal Opinion 18. The court reasoned that such

interest justified “specifically prioritizing farm wineries and limited-license breweries

within the [Agricultural] District,” as those operations “must be located on a farm, which

limits their ability to locate elsewhere (a limitation the Church does not have).” Id. That

is, the court concluded that allowing farm wineries and limited-license breweries to

operate in the Agricultural District by right “is rationally related to furthering the

[governmental] interest in preserving the vitality of the wine and beer industry.” Id.

b.

The Church claims on appeal that the SUP requirement is facially discriminatory

because it singles out religious institutions for differential treatment. The Church also

contends that the ABC licensure requirement lacks neutrality, in that it is designed to

affect only religious institutions. According to the Church, the requirement that farm

wineries and limited-license breweries obtain an ABC license targets religious

institutions because only religious institutions are unable, due to their beliefs, to get such

a license. The Church again points us to the Zoning Verification Letter, contending that

it provides support for the proposition that “the Church is treated differently than every

other use that is able to obtain a liquor license.” See Br. of Appellant 38.

26 USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 27 of 34

With respect to the SUP requirement, we observe that although the Agricultural

Zoning Ordinance requires religious institutions to secure a SUP, it does so for the

secular purpose of preserving agricultural land. As previously discussed with respect to

the RLUIPA nondiscrimination claim, the Church has not alleged facts sufficient to claim

that the SUP requirement was designed for the purpose of infringing religious exercise.

Rather, the Church asks us to infer from the fact that the Ordinance explicitly requires

religious institutions — along with 34 other nonreligious land uses — to obtain a SUP,

that the Ordinance was written with the intent to target religious practice. Yet nothing in

the Church’s Complaint suggests, nor does the Church articulate in anything but

conclusory terms, that the object of the Ordinance is anything other than the one

expressly stated therein — i.e, to promote farming. The SUP requirement is, therefore,

neutral.

We reach the same conclusion with respect to the ABC licensure requirement.

The Agricultural Zoning Ordinance defines farm wineries and limited-license breweries

as organizations located on a working farm that produce their respective beverages on

site and are licensed by the ABC Board. That definition makes no mention of religious

practice, either explicitly or implicitly. Although it might incidentally burden an

agricultural religious institution that wishes to get around its SUP, the Church has not

alleged facts sufficient to suggest that the County required farm wineries to obtain farm

winery licenses, or limited-license breweries to obtain limited brewery licenses, with

such a result in mind.

27 USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 28 of 34

In these circumstances, we agree with the district court that the Agricultural

Zoning Ordinance is subject to rational basis review. We further agree with the court that

the Agricultural Zoning Ordinance survives rational basis review and therefore does not

contravene the Free Exercise Clause of the First Amendment.

2.

Next, we turn to the Church’s peaceable assembly claim. In pertinent part, the

First Amendment provides that “Congress shall make no law. . . abridging the freedom of

speech, or of the press; or the right of the people peaceably to assemble.” See U.S. Const.

amend. I. It has long been established, however, that the government may impose

content-neutral “time, place, and manner” restrictions on those First Amendment rights.

See Cox v. New Hampshire,

(1941). “The principal inquiry in

determining content neutrality, in speech cases generally and in time, place, or manner

cases in particular, is whether the government has adopted a regulation of speech because

of disagreement with the message it conveys.” See Ward v. Rock Against Racism,

(1989).

Where a restriction is content neutral, the restriction must be “justified without

reference to the content of the regulated speech,” narrowly tailored to further a substantial

governmental interest, and leave open “ample alternative channels of communication.”

See Rock Against Racism,

. The requirement of narrow tailoring is

satisfied “so long as the . . . ordinance promotes a substantial government interest that

would be achieved less effectively absent the ordinance.”

. The ordinance does

not have to use the “least restrictive or least intrusive means” of promoting its goal.

at

28 USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 29 of 34

798. Indeed, the requirement of narrow tailoring is met if “a substantial portion” of the

law’s burden on assembly serves to advance its goals. See Am. Legion Post 7 of Durham,

N.C. v. City of Durham,

(4th Cir. 2001).

a.

For the purposes of the County’s motion to dismiss, the Church conceded in the

district court that the Agricultural Zoning Ordinance contains content-neutral time, place,

and manner restrictions that are subject to intermediate scrutiny. In opposing the

dismissal of its peaceable assembly claim, the Church focused on the fact that —

although it had started growing apple trees, Christmas trees, and pumpkins — it was

denied permission to worship on its land solely on the basis of its inability to obtain an

ABC license. Prohibiting worship services in these circumstances, the Church argued,

does not further the County’s interest in promoting farming and preserving agricultural

land.

Applying intermediate scrutiny, the district court first considered the County’s

assertion of a substantial government interest. Consistent with its analysis of the

Church’s free exercise claim, the court concluded that the County has a substantial

interest in promoting both farming generally and the wine and beer industries

specifically. See Dismissal Opinion 19. Additionally, based on our precedent

recognizing a substantial government interest in preserving a county’s aesthetics, the

court reasoned that “conserving agricultural land…in the ever-growing Washington, D.C.

metropolitan area, is undoubtedly a substantial government interest.”

(citing Wag

More Dogs,

).

29 USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 30 of 34

In next determining whether the Agricultural Zoning Ordinance is narrowly

tailored, the district court rejected the Church’s theory that the Ordinance failed

intermediate scrutiny because it could not “demonstrate how excluding churches engaged

in agricultural production furthers the goal of preserving agricultural land.” See

Dismissal Opinion 19. The problem with the Church’s theory, the court explained, is that

the Agricultural Zoning Ordinance need not be the least restrictive or intrusive means of

promoting the County’s goal. Id. at 19-20. The court then decided that the Ordinance “is

narrowly tailored precisely because it does not bar entities that primarily have a non-

agricultural purpose, like the Church, from assembling in the [Agricultural District].” Id.

at 20. Moreover, the court observed that the Ordinance leaves open ample alternative

avenues for the Church to assemble, including religious gatherings on its property once it

complies with its SUP. Id.

b.

On appeal, the Church argues that the district court erred in deciding that requiring

a religious institution to obtain an ABC license before it can operate on agricultural land

survives intermediate scrutiny. See Br. of Appellant 40 (“The County . . . has identified

no evidence or argument demonstrating how the exclusion of churches from the

[Agricultural District] on the basis that they cannot obtain liquor licenses due to their

sincerely held religious beliefs furthers the goal of preserving agricultural land.”).

Subjecting the ABC licensure requirement to the scrutiny required of content-neutral

time, place, and manner restrictions, the Church contends, reveals that the Ordinance

infringes on assembly more broadly than necessary to achieve its goal.

30 USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 31 of 34

As the district court concluded, however, the Agricultural Zoning Ordinance is

narrowly tailored because it leaves open ample other avenues for assembly. While the

requirement to obtain an ABC license to hold special events as a farm winery incidentally

burdens those religious organizations that are prevented from obtaining an ABC license

because of their sincerely held religious beliefs, those organizations can still assemble on

land within the Agricultural District if they obtain a SUP. Meanwhile, the requirement to

get a SUP is narrowly tailored because it allows the County to achieve its goal of

preserving farmland. And as the Church alleges in its Complaint, it has not been

prevented from assembling at schools, licensed farm wineries, and online. In these

circumstances, the Church has failed to state a peaceable assembly claim.

3.

Finally, we address the Church’s equal protection claim. The Equal Protection

Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deny to any

person within its jurisdiction the equal protection of the laws.” See U.S. Const. amend.

XIV, § 1. The Equal Protection Clause’s central aim is to bar government

decisionmakers from “treating differently persons who are in all relevant respects alike.”

See Nordlinger v. Hahn,

(1992). Accordingly, “[t]o succeed on an equal

protection claim, a plaintiff must first demonstrate that he has been treated differently

from others with whom he is similarly situated, and that the unequal treatment was the

result of intentional or purposeful discrimination.” See Martin v. Duffy,

(4th Cir. 2017) (quoting Morrison v. Garraghty,

(4th Cir. 2001)).

If the plaintiff makes this initial showing, then the law is subject to strict scrutiny. See

31 USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 32 of 34

Morrison, 239 F.3d at 654. Under strict scrutiny review, a law is presumptively

unconstitutional, unless the government can show it is narrowly tailored to achieve a

compelling government interest. See City of Cleburne v. Cleburne Living Ctr., 473 U.S

432, 440 (1985). Under rational basis review, on the other hand, a law is presumptively

constitutional, and the claimant bears the burden of showing that the law is not rationally

related to any legitimate government interest. Id.

a.

The Complaint alleges that because the Agricultural Zoning Ordinance treats the

Church less favorably than farm wineries, limited-license breweries, and agricultural

operations, with which the Complaint contends the Church is similarly situated, the

Ordinance is subject to strict scrutiny under the Equal Protection Clause. The Complaint

further asserts that the Ordinance fails strict scrutiny because it does not serve a

compelling government interest and is not the least restrictive means to accomplish the

County’s goal.

The district court dismissed the equal protection claim on a basis similar to the

Church’s RLUIPA nondiscrimination and First Amendment free exercise claims: the

failure to present any facts establishing discriminatory intent on the part of the County.

See Dismissal Opinion 21. Additionally, the court concluded that its analysis of the

Church’s RLUIPA equal terms claim “dooms the equal protection claim.” Id. That was

because, as the court explained in regard to the equal terms claim, the Church is not

similarly situated to farm wineries with respect to the purposes of the Agricultural Zoning

Ordinance. Id. (explaining that, in the equal protection context, similarly situated entities

32 USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 33 of 34

must be “in all relevant aspects alike”). Having no reason to apply strict scrutiny, the

court upheld the Ordinance on rational basis review and dismissed the Church’s equal

protection claim.

b.

On appeal, the Church takes issue with the district court’s ruling that the

Agricultural Zoning Ordinance should be subject only to rational basis review. The

Church again contends that it is similarly situated to farm wineries, limited-license

breweries, and agricultural operations. Moreover, the Church asserts that, because it is

conducting agricultural activities on its property, “the only appreciable difference

between the Church and farm wineries, limited-license breweries and agritourism

activities is that the Church is religious.” See Br. of Appellant 41. To distinguish

between entities on the basis of their religious status, the Church maintains, is to make a

distinction based on a fundamental right, which triggers strict scrutiny.

We agree, however, with the district court’s well-reasoned decision. As heretofore

explained with respect to the RLUIPA equal terms claim, even considering its ongoing

agricultural activities, the Church is not similarly situated to farm wineries and limited-

license breweries because allowing the Church to operate unregulated within the

Agricultural District undermines the goal of the Agricultural Zoning Ordinance — that is,

to promote farming and preserve agricultural land. Contrary to the Church’s position,

religious institutions and farm wineries or limited-license breweries are distinguishable

based on the fact that the latter must be located on producing farms while the former face

33 USCA4 Appeal: 21-2392 Doc: 38 Filed: 01/31/2023 Pg: 34 of 34

no such restrictions. 6 Moreover, and as discussed with regard to the Church’s

nondiscrimination claim, the Church has alleged no facts suggesting that the County

passed the Ordinance with religious animus. Accordingly, we are satisfied that the

Church’s equal protection claim fails as a matter of law.

IV.

Pursuant to the foregoing, we reject each of the Church’s appellate contentions

and affirm the judgment of the district court.

AFFIRMED

6 As discussed with regard to the equal terms claim, now that the Church has established itself as an agricultural operation, it can, like other agricultural entities, conduct agritourism. But, also like other agricultural operations, the Church must obtain a TAP to conduct nonagricultural activities. The Church, therefore, has not alleged any differential treatment from agricultural operations.

34