I'm a little surprised that news coverage of recent mosque controversies has made practically no mention of the Religious Land Use and Institutionalized Persons Act (RLUIPA). (I guess, in their defense, it *is* hard to pronounce.) That law, passed in 2000, prohibits government from burdening religious activity through land use restrictions, unless there is a "compelling state interest" to do so and that interest is achieved with the least restrictive means possible.
That is a high standard for government to meet before restricting religious activity, as it should be, and the divisive debates we are hearing offer strong evidence of why that standard is such a good idea. The growth and location of a religious community should not be subject to the biases and religious preferences of government officials and the public.
The very purpose of RLUIPA is to remove religious land use decisions from the reach of this kind of political pressure, majority preference, and not-in-my-backyard mentality.
If there is some legitimate, legal rationale for New York, for example, to deny the construction permit near ground zero, we are not hearing it in the heated discussion coming from talk radio, cable news and candidates for office. Opponents argue the mosque's location would be "inappropriate," but a sense of propriety has no bearing on whether it would be protected by law. Even if the NY Landmark Commission were inclined to listen to them, public outrage is not likely to qualify as a compelling state interest.
News reports could do a better job of making that clear. And maybe ask those fanning the issue – like Newt Gingrich and Rep. Peter King (who, incidentally, was in the House when RLUIPA passed without objection) – what remedy they seek? Does "inappropriate" mean they believe the Cordoba House's request should be withdrawn? Denied? If the latter, under what authority?
UPDATE (8/3): The NYTimes reports the Landmarks Commission voted 9-0 to allow the building to go forward, rejecting a bid to have the site named a historical landmark.
