Ten years ago, Republicans in Congress passed a major law to protect the right of Muslims to establish mosques even where such a building might be unwelcome. Yes, they did. They just may not have thought of it quite that way at the time.
The law, called the Religious Land Use and Institutionalized Persons Act (RLUIPA), was aimed at a common problem often ignored by the courts: local government bodies using zoning authority to prevent religious institutions from moving in or expanding their operations.
It had the support of such groups as the Christian Legal Society and the Family Research Council. Rep. Charles Canady (R-Fla.), said it was aimed at “the well-documented and abusive treatment suffered by religious individuals and organizations in the land use context.” Sen. Orrin Hatch (R-Utah), pushed it because, he said, “At the core of religious freedom is the ability for assemblies to gather and worship together.”
Today, of course, that statute is a problem for anyone hoping that the city, state, or federal government would take action to block an Islamic community center in lower Manhattan, commonly referred to as the Ground Zero mosque. Many of those opponents are happy to disregard both the law and the Constitution in their effort.
Not all critics of the plan endorse government intervention. Former New York Mayor Rudy Giuliani agreed the Cordoba Initiative has the right to build at that site if it chooses, while insisting that it should reconsider out of “sensitivity”-a trait rarely associated with him.
But other opponents are not so respectful of religious rights. Former Republican House Speaker Newt Gingrich said that permitting the construction of the center would show “weakness and submission” to our enemies.
Carl Paladino, who is running for governor of New York in the GOP primary, has vowed to seize the land. Pamela Geller, head of Stop Islamization of America, urged the city to give landmark status to the existing building to kill the proposal.
Among the citizens who turned out to protest the building at the Landmarks Preservation Commission meeting, there was no visible deference to the religious liberty of Muslims. When the commission voted to let the plan proceed, there were shouts of “Shame on you!” and “Disgrace!”
But had the city used its landmarking power to kill the project, it would have faced a court challenge. And thanks to the 2000 law, it would probably lose.
The law says, “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 it meets very strict conditions. Nor may any government inflict a regulation that discriminates “on the basis of religion or religious denomination.”
Before this law, cities usually got away with such behavior, because zoning authority gives them broad discretion to hinder religious groups in the outwardly neutral guise of architectural preservation or traffic control. It wasn’t hard to discriminate without being obvious enough to get in trouble.
In passing the measure, Congress sided with unpopular minority sects that often found themselves blocked at every turn by local governments. So even if the opposition to the Cordoba plan were cloaked as an impartial effort to preserve the character of the neighborhood, it would run smack up against this law.
This case, though, is even simpler. Most of the time, when local authorities throw up roadblocks before unwanted religious groups, they do so in a way designed to conceal their real motive. Here, though, the critics object to the center precisely because it involves Muslims doing nothing more than practicing their religion.
There is nothing covert or subtle about the opponents’ motives. To stop the building on the grounds that Islam has no place near Ground Zero would clearly defy the law’s ban on religious discrimination.
That prohibition is a credit largely to conservatives who understood the dangers of putting religion at the mercy of government. The law was an effort by Republicans (and many Democrats) to protect the rights of believers-especially despised minorities.
The law recognized the importance of assuring the same freedom for them as for everyone else. That objective made sense 10 years ago, and it still does.
This column first appeared at Reason.com.
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