Amnesia And The Mosque

One senses a bit of amnesia  these days.   Remember the strategic importance of respecting moderate Islam?  (George W. Bush's speechwriter does.)  Remember the intrisic value of religious freedom in America?  Eight years ago, Congress unanimously passed the Religious Land Use and Institutionlized Persons Act.  The law provides that:

No government shall impose or implement a land use regulation 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.

According to the Department of Justice, the law was adopted after:

Congress found that houses of worship, particularly those of minority religions and start-up churches, were disproportionately affected, and in fact often were actively discriminated against, by local land use decisions. Congress also found that, as a whole, religious institutions were treated worse than comparable secular institutions.

Many of us might actually be concerned about this law, since it has the potential to privilege religion above other important values.  Yet it was the law's very supporters who now oppose the mosque.  According to Marci Hamilton:

The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) -- has been a hammer that has been held by one religious developer after another, to obtain power to overcome land-use laws simply because the applicant for a zoning variance or bye is religious. RLUIPA has been a bane for homeowners and those in residential neighborhoods who have had the character of their surrounding neighborhoods dramatically altered by arrogant religious land use applicants....The ACLJ [American Center for Law and Justice] and the ADF [Anti-Defamation League], among many others, fought hard to obtain RLUIPA. Thus, it is ironic that they are now publicly demonstrating the very discriminatory anti-religious purpose that they claimed made RLUIPA necessary in the first place. I suppose they fought for the right under RLUIPA to enjoy preferences under land use codes for their own coreligionists, but may not really believe in the same expansive protection for those whose beliefs differ.

-- Dan Filler and Roger Dennis

Comments

[Chad Emerson]

I completely agree that the project developers have followed the established land use regulations in order to obtain the necessary approvals for the mosque/community center development. As a legal issue, that seems like the end of the road for this matter.

I'm not sure what RLUIPA has to do with this because the project was approved. Obviously, had it not been approved, then RLUIPA could have come into play but that's not the case.

Doesn't this make a RLUIPA analysis moot in this instance?

On the political side of the issue, I'm not aware (but may very well have missed) other instances where the ADF or other groups opposing this project have opposed the building of mosques in other sites in the U.S. From that quote, it seems like Ms. Hamilton is using one unique instance to evidence a larger nefarious trend that really doesn't exist.

Surely, people can see that this is not a legal issue but an entirely political one with a host of very unique circumstances that are hard to extrapolate beyond this example.

[Howard Wasserman]

This demonstrates why so many commentators (including, in particular, Prof. Hamilton) feel so strongly about the disestablishmentarian view of the First Amendment. Many people who urge exemptions for religion (and Hamilton consider RLUIPA such an exemption) do so because they or their co-religionists will benefit, but never think about what happens when those religions with which they disagree seek the same benefits.