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Why Using “Landmark Status” to Block the NY Mosque is a Threat to Religious Land Use Rights

I recently received a message from Jay Sekulow of the American Center for Law and Justice (ACLJ) calling on Christians to protest plans to build a mosque in Manhattan near Ground Zero. ( )
Although the ACLJ, not to be confused with the American Civil Liberties Union (ACLU), does not try to hide the fact that anti-Muslim sentiment is a predominant reason behind their opposition to the mosque, the ACLJ is instead trying to use a calling on the city to declare the proposed site a “historic landmark” because the landing gear from one of the jets that crashed into the World Trade Center landed on the site.
The ACLJ knows that there is nothing better than rallying around an “enemy” to bring out advocates and wallets, and is raising allegations that the mosque would be offensive and is telling supporters that the builder has unspecified terrorist ties. Setting aside, for the moment, the tinge of religious discrimination and Establishment Clause violation, let’s focus on the legal issues raised by the ACLJ’s tactic of declaring the site a “landmark” and how this could adversely affect church building projects across America.
Promoters of a mosque at Ground Zero, if blocked, could assert their rights under the “Religious Land Use and Institutionalized Persons Act” (RLUIPA) that religious organizations in America who wanted to build and maintain their property without undue burden, such as unreasonable zoning laws, have fought for over the last twenty years.
The legal history of RLUIPA overshadows most of what happens in the courts and although many of you are familiar with it, I’m going to give it again for the benefit of those just joining us. In 1990, the Supreme Court ruled in Employment Division v. Smith (the infamous peyote case) that if a governmental rule applies the same to everybody then it’s okay even if it puts a “substantial burden” on the free exercise of religion. Thus, Mr. Smith, an Oregonian, who had smoked peyote during a religious ceremony and got fired as a result was denied state unemployment benefits. Oregon could have made an exception for religious exercises but decided not to and so the court said that Mr. Smith was surely out of luck.
Many people said that Mr. Smith should never have smoked peyote even if it was part of his religion because it messed with his health and safety and that he deserved to be fired and denied unemployment benefits. But court watchers were alarmed when they realized how big a hole the Supreme Court had blown in the Free Exercise Clause. This provided states with the mechanism for getting rid of religious accommodation for religious minorities. State employees aren’t likely to go out of their way to accommodate your religious minority practices if they come into conflict with generally applicable state law. If everybody has to wear blue hats, then you do too. If everybody has to take a test on Saturday, then you do too. They’d say, “This is the state and we don’t have the resources or ability to accommodate every request. What makes you so special?”
Anyway, Congress, not open advocates of peyote and in a rare show of clarity, decided that this wasn’t good and they passed the Religious Freedom Restoration Act (RFRA) in 1993 which required religious accommodation in almost every area of life.
The Supreme Court fired back in 1997 in Boerne v. Flores and struck down RFRA. In Boerne, the Catholic Archbishop of San Antonio, Patrick Flores, wanted to enlarge the church in Boerne, Texas. The city objected saying that the 1923 structure was a “historic landmark.” The case was litigated and the Supreme Court said that the city was right and that RFRA, which was the brand-spanking new law signed by President Clinton that the church relied on to win its case, only applied to Federal Government actions, not state actions.
Members of Congress scratched their heads and tried to figure out a way to get a law passed that would help churches like the one in Boerne and still pass so they came up with the oddly configured, but workable, Religious Land Use and Institutionalized Persons Act (RLUIPA). They figured that the new law could also apply to prisoners since they were stuck in prison and needed to have a way to have their religious practices accommodated.
Congress was so jazzed about RLUIPA that it was passed in 2000 by “unanimous consent” by both the House and Senate and no vote was even taken. RLUIPA prohibits the imposition of burdens on the ability of prisoners to worship and gives churches and other religious institutions a way to avoid burdensome zoning law restrictions on their property use.
So coming back to the mosque, if RLUIPA were applied, the city would have to have a really good reason to deny a building permit. But now the religious right in America is up in arms, not about the neutral building of a house of worship, but because it is a place where Muslims would worship.
But what does the ACLJ think about Christian churches that admittedly want to house actual convicted criminals?
In Barr v. City of Sinton, the ACLJ makes an argument that under RLUIPA and the Texas Religious Freedom Restoration Act (Sinton is in Texas), a pastor was wrongly prohibited from building a halfway house for low-level criminals within 1,000 feet of his church.
In an ACLU press release, (… ) Jay Sekulow is quoted as saying, “The city’s ordinance puts an unfair burden on Pastor Barr’s free exercise of religion by forcing him to either permanently shut down Philemon Homes or relocate beyond city limits. The city’s ordinance also turns the Texas RFRA on its head – a statute that the Texas legislature intended to provide broad protection for the free exercise of religion by limiting the authority of state and local government officials to apply laws and ordinances in a way that substantially burdens religiously motivated conduct. We’re hopeful the Supreme Court of Texas will correct this injustice.”
Now I’m sure that the ACLJ would not want to see New York “apply laws and ordinances in a way that substantially burdens religiously motivated conduct” if the group was Christian, but since it’s Muslim, it’s a whole different story.
If Sekulow, et al, are able to convince the city to prohibit the building of the mosque, the ACLJ has already written a brief (that the ACLU also joined) that the mosque could adopt and modify for their argument.
If the ACLJ were able to have the mosque site declared a historic landmark, but the underlying reason is religious discrimination, they could be surrendering the hard-fought rights gained under RLUIPA. Soon churches across America would find it harder to expand their buildings or seek out new sites. Even today, it is difficult for houses of worship churches, synagogues, or mosques to be built in many communities- they do not provide tax revenue, they bring in traffic, and the neighbors simply say “Not In My Back Yard.”
The ACLJ is now making the opposite argument with regard to the Ground Zero Mosque, and is emblematic of an emerging trend in American religion and politics. Groups are willing to openly assert rights when it is in their own best interest to do so, but block identical rights when they disagree with whoever is asserting the right.
Many religious organizations have benefited enormously from the Religious Land Use and Institutionalized Persons Act (RLIUPA). Using cover of faith to block its application to unpopular religious groups is the quickest path to its demise.
Michael Peabody is the editor of where this article first appeared.

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