                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 07-1358
TOBY DIGRUGILLIERS,
                                                Plaintiff-Appellant,
                                 v.

CONSOLIDATED CITY OF INDIANAPOLIS, et al.,
                                             Defendants-Appellees.
                          ____________
             Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
      No. 1:06-cv-00952-SEB-JMS—Sarah Evans Barker, Judge.
                          ____________
   ARGUED SEPTEMBER 12, 2007—DECIDED OCTOBER 30, 2007
                          ____________


 Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
  POSNER, Circuit Judge. The plaintiff is the pastor of the
Baptist Church of the West Side, a small congregation
(30 to 50 members) that conducts church services in a
building that it has leased in a part of Indianapolis
zoned C-1. Under the Indianapolis zoning code, the
church’s building is a “religious use,” defined as “a land
use and all buildings and structures associated therewith
devoted primarily to the purpose of divine worship to-
gether with reasonably related accessory uses, which are
subordinate to and commonly associated with the primary
2                                                 No. 07-1358

use, which may include but are not limited to, educa-
tional, instructional, social or residential uses.” City of
Indianapolis Zoning Code § 735-751(b). A religious use
is forbidden in C-1 districts without a zoning variance. So
the City told the plaintiff that he would have to either
apply for a variance, which would require a proceeding
before the board of zoning appeals, see Ind. Code § 36-7-4-
918.4, or move his church. The plaintiff did neither, but
instead brought this suit; he is authorized by the charter
of the church to sue on the church’s behalf.
  The suit charges that the requirement of obtaining a
variance in order to make a religious use of land in C-1
districts violates the provision of the Religious Land
Use and Institutionalized Persons Act of 2000, 42 U.S.C.
§ 2000cc et seq., that forbids a local government to “impose
or implement a land use regulation in a manner
that . . . . treats a religious assembly or institution on less
than equal terms with a nonreligious assembly or in-
stitution.” § 2000cc(b)(1). The plaintiff moved for a pre-
liminary injunction that the district court denied on the
sole ground that the suit has negligible prospects of
success. The plaintiff appeals from that denial.
  The Indianapolis zoning ordinance refers to C-1 districts
(the “C” standing for “Commercial”) as “Office-Buffer
Districts,” explaining that they are intended to be buffers
between residential districts on the one hand and entirely
commercial, or industrial, districts on the other hand.
City of Indianapolis Zoning Code § 732-201(a). Among
the land uses that the code permits in C-1 districts with-
out need for a variance are assisted-living facilities, au-
ditoriums, assembly halls, community centers, senior
citizens’ centers, day-care centers, nursing homes, funeral
homes, radio and television studios, art galleries, civic
No. 07-1358                                                 3

clubs, libraries, museums, junior colleges, correspondence
schools, schools that teach data processing, and nurseries,
together with “accessory uses and structures, subor-
dinate, appropriate and incidental to the above permitted
primary uses, including supportive services directly
related to and in the same building with the primary use,”
plus various “accessory retail and service commercial
uses,” including a cafeteria or other restaurant serving
only employees and guests, drugstores, florists, office-
supply services, and newsstands.
  The question is whether in requiring the Baptist Church
of the West Side to obtain a variance in order to be per-
mitted to lease space for its religious services in a district
zoned C-1, the City is “treat[ing] a religious assembly or
institution on less than equal terms with a nonreligious
assembly or institution.” The district judge thought not,
primarily because the zoning code defines a religious
use to include not only the type of “accessory” uses
permitted to C-1 users, but also residential uses, such as
a rectory for the minister of the church, which are not
permitted in districts zoned C-1. To allow religious uses
in those districts without a variance would, therefore, the
judge thought, give churches rights greater than rather
than equal to those of secular users.
  There is no indication that the plaintiff lives or intends
to live, or that anyone else lives, in the building that
the Baptist Church of the West Side has leased; indeed,
the lease does not permit the property to be used as a
residence. More important, the City may not, by defining
religious use so expansively as to bestow on churches
in districts in which it allows them to operate more rights
than identical secular users of land have, justify exclud-
ing churches from districts in which, were it not for
4                                              No. 07-1358

those superadded rights, the exclusion would be dis-
criminatory. The meaning of “religious assembly or
institution” in the Religious Land Use and Institutionalized
Persons Act is a question of federal rather than state
law. Konikov v. Orange County, 410 F.3d 1317, 1324-25 (11th
Cir. 2005) (per curiam); Midrash Sephardi, Inc. v. Town of
Surfside, 366 F.3d 1214, 1229-31 (11th Cir. 2004). It has to
be. Otherwise the City could exclude churches from
districts zoned residential by ordaining that a residen-
tial use of land does not include the grazing of sheep but
a religious use does, and therefore the federal Act does
not require the City to permit churches in residential
zones, as to do so would give churches more rights than
the other users of land in those zones have. Such an
approach—in effect defining “religious assembly or
institution” as a church plus a sheep farm—would be
bootstrapping. This case, in which the City has in ef-
fect defined the term to mean a church plus a residence,
is less extreme, but is equally opposed to the scheme of
the federal Act. Whatever restrictions the City imposes
on other users of land in C-1 it can impose on the Baptist
Church of the West Side without violating the “equal
terms” provision.
  The City points out—inconsequently, as we shall
see—that in districts zoned SU-1 (“Special Use”) churches
can locate without obtaining a variance. Some 4,044
acres in the City are zoned SU-1, which sounds like a lot
until one remembers that the City of Indianapolis is
coterminous with Marion County. The county occupies
400 square miles, and much of it is nonurban—in fact
20 percent is classified as agricultural. “Marion County
Community Profile,” www. savi.org/savii/comm_info/
Community_Profiles/ CNTY/18097/history.aspx (visited
No. 07-1358                                                  5

Oct. 4, 2007). About 280 of the 4,044 acres zoned SU-1 have
no structure on them, which the City argues provides
plenty of opportunities for the Baptist Church of the
West Side to build a church (not that it could afford to, in
all likelihood, with such a tiny congregation). But there is
nothing in the record about the price, ownership, topogra-
phy, or location of these parcels. Maybe the reason there
are no structures on them is that their location or some-
thing else about them makes them unsuitable for build-
ings in general or a church building in particular.
  So the record compiled in the preliminary-injunction
proceedings does not permit a conclusion that the City’s
discrimination against churches in C-1 districts is offset
by the creation of a privileged zone for religious uses in
SU-1. And anyway an offset could not eliminate the dis-
crimination. The existence of alternative sites for a
church is relevant only when a zoning ordinance is chal-
lenged as imposing a “substantial burden” on religious
uses of land, Saints Constantine & Helen Greek Orthodox
Church, Inc. v. City of New Berlin, 396 F.3d 895, 899-900 (7th
Cir. 2005); Midrash Sephardi, Inc. v. Town of Surfside, supra,
366 F.3d at 1227-28; San Jose Christian College v. City of
Morgan Hill, 360 F.3d 1024, 1035 (9th Cir. 2004), under a
different section of the federal Act from the equal-terms
section at issue in this appeal. 42 U.S.C. § 2000cc(a)(1). The
equal-terms section is violated whenever religious land
uses are treated worse than comparable nonreligious ones,
whether or not the discrimination imposes a substantial
burden on the religious uses. Vision Church v. Village of
Long Grove, 468 F.3d 975, 1002-03 (7th Cir. 2006); Primera
Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County,
450 F.3d 1295, 1308 (11th Cir. 2006); Midrash Sephardi, Inc.
v. Town of Surfside, supra, 366 F.3d at 1228-31. If proof of
6                                                No. 07-1358

substantial burden were an ingredient of the equal-terms
provision, the provisions would be identical, which could
not have been Congress’s intent.
  The district court gave another reason for its decision,
however. Indiana law forbids the sale of liquor within
200 feet of a church, or pornography within 500 feet. Ind.
Code §§ 7.1-3-21-11(b), 35-49-3-3. Allowing a church to
locate in a C-1 district could therefore interfere with
other land uses. Pornography might be sold by a news-
stand, or liquor in a restaurant, both the newsstand and
the restaurant being permissible accessory uses in C-1,
and they might be within 200 and 500 feet of the church,
respectively. There is no evidence that any such activity
is going on within those radii of the Baptist Church of
the West Side, but the reason may be that it would vio-
late state law.
   This reason for allowing the exclusion of churches
from C-1 turns out to suffer from the same infirmity as the
first one, the one based on the definition of religious use
in the zoning ordinance. Government cannot, by grant-
ing 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. The 200- and
500-foot protective zones give churches privileges that
similarly situated secular users of C-1, other than schools,
do not enjoy. The Supreme Court suggested in Larkin v.
Grendel’s Den, Inc., 459 U.S. 116, 124 (1982), that churches
may be granted such a privilege only if it is extended to
“like institutions.” See also Texas Monthly, Inc. v. Bullock,
489 U.S. 1, 14-16 (1989); Edward H. Ziegler, Jr., Rathkopf’s
Law of Zoning & Planning § 29:4, p. 2 (4th ed. Supp. 2007).
No. 07-1358                                                7

If not, the grant may violate the establishment clause.
Some of the institutions permitted by the Indianapolis
ordinance in C-1 districts, but not given the benefit of
protective zones, such as day-care centers, nursing homes,
and junior colleges—not to mention an assembly hall that
might be used by the Women’s Christian Temperance
Union—might well be thought institutions that are “like”
churches so far as anything connected with the interests
protected by zoning is concerned. If so, the disparity
regarding protective zones would be another example of
discrimination in favor of religion (with schools tossed
in perhaps just to give the impression of doling out even-
handed treatment to secular institutions that are like
religious ones), which as we said cannot be a defense to a
zoning exclusion challenged under the equal-terms pro-
vision of the Religious Land Use and Institutionalized
Persons Act.
  This case is unlike Corporation of Presiding Bishop of
Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S.
327 (1987), which upheld, against a challenge based on
the establishment clause, Congress’s exempting em-
ployees of religious organizations from Title VII’s pro-
hibition against religious discrimination in employment.
The Court held that the discrimination in favor of religion
was only apparent, that actually it created a level play-
ing field with secular institutions because of charac-
teristics of religious institutions that secular ones do not
share, notably the role of faith as a criterion of employ-
ment. But it is not contended, or apparent to us, that a
similar argument is available for the protective zones
with which Indiana surrounds churches. Although many
Baptist sects are strongly opposed to the drinking of
alcoholic beverages, it does not follow that permitting
the sale of such beverages in the vicinity of a Baptist
8                                               No. 07-1358

church would impair the church’s effective operation as
a religious institution any more gravely than it would
impair the effective operation of a day-care center, which
is to say, probably not gravely at all. Not that Grendel’s
Den settled the issue against a claim that the free exer-
cise of religion might require barring the sale of alcohol
near a church or other place of worship. The objection to
the state law in that case was that it allowed a church to
decide whether to permit liquor to be sold near it. The
Court refused to allow a church a share in secular gov-
ernment.
  It is irrelevant that the protective zones to which the
district court pointed in upholding the City’s exclusion
of churches from districts zoned C-1 were commanded
by the state, while the exclusion itself was commanded
by the City. The City is part of the government of Indiana,
and if it would violate the federal Act for the City to
exclude churches from C-1 districts—and since the City
does not argue that the state is required by the First Amend-
ment to create protective zones around churches—the
City may not exclude churches from those districts. For
the federal Act treats state and local government inter-
changeably, 42 U.S.C § 2000cc-5(4)(A)(i), and Indiana-
polis’s power to zone is conferred by state law. Ind. Code
§ 36-1-3. Contrary to a suggestion in Cornerstone Bible
Church v. Hastings, 948 F.2d 464, 471 (8th Cir. 1991), a
state cannot be permitted to discriminate against a reli-
gious land use by a two-step process in which the state’s
discriminating in favor of religion becomes a predicate
for one of the state’s subordinate governmental units to
discriminate against a religious organization in violation
of federal law. The exercise of a delegated power is nor-
mally and here imputed to the delegator.
No. 07-1358                                                9

  So the plaintiff’s claim that the City is violating the
federal Act has at least some, and possibly great, merit. The
district judge, having ruled that it had no possible merit,
did not consider the other factors, besides the merits,
that are germane to the decision whether to grant or
deny a preliminary injunction. The judge would have
been right to pretermit that inquiry had she been right
that the claim had no merit; but we have seen that it has
at least some merit, and no more is required to necessitate
an inquiry into the balance of irreparable harms. Cavel
International, Inc. v. Madigan, No. 07-2658, 2007 WL
2239215, at *4 (7th Cir. July 18, 2007). The balance seems
to favor the plaintiff. If his church must vacate its prem-
ises while his case wends its way to completion, the
church’s religious activities will be hampered. It is hard
to see what difference it can make to the City if the
church is allowed to remain in its current premises until
final judgment (by which we do not mean the Day of
Judgment). The church has been in its present premises
since the middle of 2005, without, so far as appears,
causing any trouble to anyone, including other users of
land in its vicinity. But striking the balance of irreparable
harms (the harm to the plaintiff if preliminary relief is
denied, the harm to the City if it is granted) is a task for
the district court in the first instance.
                                REVERSED AND REMANDED.
10                                          No. 07-1358

A true Copy:
      Teste:

                      _____________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




               USCA-02-C-0072—10-30-07
