By Melissa Rogers
For the September 2010 edition of Report from the Capital
No doubt you’ve heard about the bitter battle over plans for an Islamic community center in lower Manhattan. But this isn’t the only place where there have been struggles over Islamic institutions this summer. Hundreds of protesters marched against plans for a mosque in Murfreesboro, Tenn. In Temecula, Calif., members of a local Tea Party group picketed the Friday prayer session of a mosque that is seeking to build a new worship center nearby. In rural Wisconsin, some Christian clergy vigorously protested when a group sought permission to open the county’s first mosque. The Wisconsin town board unanimously approved the project, but the mosque was later vandalized.
In a report describing some of these incidents, The New York Times noted: “At one time, neighbors who did not want mosques in their backyards said their concerns were over traffic, parking and noise — the same reasons they might object to a church or a synagogue. But now the gloves are off.” Many opponents of these projects now freely admit that their opposition to mosques is precisely because they are Islamic institutions. Indeed, a recent poll found that 34 percent of Americans said “there are some places in the United States where it is not appropriate to build mosques, though it would be appropriate for other religions to build houses of worship,” and 14 percent said “mosques should not be permitted anywhere in the United States.”
These trends present a critical test for religious freedom. In response, I propose that we do two things.
First, let’s visit our local policymakers and remind them of applicable constitutional principles and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The First Amendment bars the state from discriminating against certain faiths, including discrimination that “is masked as well as overt.” Thus, whether it is plain to see or whether it lurks behind objections about things like traffic, aesthetics and noise, faith-based discrimination by the government violates the Constitution.
RLUIPA is a federal law that reflects the conviction that gathering as a religious community is a quintessential and fundamental act of free exercise, and thus deserves heightened protection against governmental interference. Ten years ago, the Baptist Joint Committee led an extremely diverse coalition of religious and civil liberties groups in supporting RLUIPA, and a unanimous Congress enacted the measure (see the timeline on the next page). The Act shields religious assemblies of every faith from land use regulations that are unnecessarily burdensome or discriminatory.
The most typical RLUIPA case involves an evaluation of whether the government has implemented a land use regulation in a way that places a substantial burden on religious exercise, and, if so, whether there is a narrowly tailored compelling interest to justify such a burden. Those provisions are fully applicable in cases involving mosques, of course. But in recent cases that involve opposition to planned institutions precisely because of their Islamic affiliation, another provision of RLUIPA is even more on point. That provision plainly states: “No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.”
Resources on RLUIPA are posted on the BJC’s website at www.BJConline.org/RLUIPA. Please consider sharing them with local policymakers.
Local officials may also need to be reminded that the fact that some have committed terrorist acts in the name of a faith is not a justification for denying others who claim that faith their free exercise rights. If it were otherwise, the government would not only have to shut down all mosques, but it would also have to shut down all churches and synagogues. Of course, the government can and should act on specific and credible threats of terrorism, wherever those threats arise. And the United States can and does punish terrorist facilitators, weapons of mass destruction proliferators and money launderers. Where there is evidence of this kind of criminality, claims of religious exercise will provide no shield. But the government’s target must be terrorism, not a religion.
Second, let’s preach and teach on the Christian commitment to religious liberty and loving our neighbors. This season provides an excellent opportunity to preach and teach about the Christian case for defending the religious liberty rights of all people. Part of loving our neighbors as ourselves is protecting our neighbors’ ability to practice their faith. And we know God’s design is for each person to have freedom in matters of faith.
There is no contradiction between calling on the government to protect the free exercise rights of all people and sharing the gospel. Indeed, defending free exercise rights for everyone sends a powerful message of love and confidence in one’s faith. Likewise, calling for equality in religious liberty certainly is not the same as saying that all religions are equally true. Instead, it’s a call for government to leave theological judgments and other religious matters in the hands of people of faith and their communities.
Speaking out against acts like the “Burn a Koran” day sponsored by a Florida church is also critically important at this time. We certainly would not feel loved if our neighbors started burning Bibles. Just as we ask others to publicly condemn actions that are at odds with their faith, we need to do likewise.
When we look back on this chapter in our nation’s history, wouldn’t we rejoice if it could be said that we asserted a bold Christian witness, including a vigorous defense of the God-given right of religious freedom for all? Let’s get to work.
Melissa Rogers, a former BJC General Counsel, is the director of Wake Forest University Divinity School’s Center for Religion and Public Affairs and is a nonresident senior fellow at The Brookings Institution.
This column is from the September 2010 Report from the Capital. Click here to view the entire magazine as a PDF document.