When Muslims in Bernards Township, N.J., sought to build a mosque, they found themselves subjected to a strange requirement that wasn’t imposed on other houses of worship: They’d have to build a “supersized” parking lot.
Officials in the township insisted that since Muslims gather for prayers on Friday afternoon, everyone who might come to the mosque should have a dedicated parking spot.
Local officials said their concerns weren’t motivated by anti-Muslim bias, and indeed there was scant evidence of Islamophobia at public meetings. But Muslims in the central Jersey area believed the requirement was arbitrary, and that it was being unfairly imposed on them. Backed by the U.S. Department of Justice, they sued and won.
On Dec. 31, 2016, U.S. District Court Judge Michael Shipp ruled that township officials never bothered to assess how worshippers at other houses of worship might use their facilities, or when they might arrive for services. The unequal treatment, Shipp said, gave the local zoning board “unbridled and unconstitutional discretion” in this case.
There has been a lot of talk about “Muslim bans” and other forms of ill treatment against members of the Islamic faith since President Donald J. Trump took office in January. Trump, who boasted about plans to keep Muslims out of the United States during his campaign, has been accused of stirring up anti-Muslim bias, and many members of that religion are justifiably concerned. (See “Fear Factor,” January 2017 Church & State.)
But even before Trump took office, Muslims in America often struggled to do something that Christians usually accomplish without any difficulty: build and open a place to worship.
Mosques have become a target for hate crimes in recent years with perpetrators burning and vandalizing them, but an overlooked form of aggression occurs when government officials create obstacles to prevent mosques from being constructed in the United States.
“Mosques are under assault throughout the country,” said Adeel Mangi, an attorney for the Islamic Society of Basking Ridge, which won the case in Bernards Township.
Mangi said the victory in Bernards Township “truly is a landmark ruling with national impact.”
The victory came in part thanks to a federal law called the Religious Land Use and Institutionalized Persons Act (RLUIPA). Passed in 2000, the legislation is designed to prevent discrimination against religious groups, and ensure that members of faith communities have the right to erect houses of worship without undue interference.
Yet disputes still arise even in clear cases of bias. Though use of RLUIPA by houses of worship to override zoning regulations applicable to secular non-profits has caused some concerns among church-state separation advocates, there is broad agreement that RLUIPA’s prohibition against discrimination among religious faiths by zoning bodies is a beneficial protection for religious liberty.
Efforts by local residents to block the construction of a mosque in Rutherford County, Tenn., dragged on for years and were marked with crude attacks on Muslims. One attorney in the area who opposed the mosque told the Nashville Tennessean, “I understand that they want Shariah law in Rutherford County...What is wrong with wanting to ask questions about direct ties to terrorism? What’s the harm in that? Why do we have to undergo cavity searches at the airports? It’s because of the Muslims.”
Some conflict over the construction of houses of worship may reflect the kinds of concerns that pop up whenever large building projects are proposed: People express concerns about parking, traffic, noise and quality of life issues.
But some houses of worship seem to raise the ire of residents quicker than others. According to a Dec. 18, 2016, report from The New York Times, 11 of the last 13 RLUIPA cases that the U.S. Justice Department has been involved in have included mosque rejections.
“In the area of RLUIPA enforcement, the Civil Rights Division of DOJ has seen a disproportionate number of cases involving mosques and Islamic schools,” the American Bar Association, a network of voluntary lawyers and law students, noted in their “Zoning and Mosques” guide, which was updated in 2015.
The American Civil Liberties Union (ACLU) has been tracking anti-mosque incidents and legal discrimination for years. The group notes on its website that “while mosque opponents frequently claim their objections are based on practical considerations such as traffic, parking and noise levels, those asserted concerns are often pretexts masking anti-Muslim sentiment.
“Government officials in some areas of the country have yielded to this religious bigotry, treating mosques and Islamic centers differently than other proposed houses of worship and/or denying zoning permits without the compelling interest that is required by the RLUIPA,” the ACLU statement read.
Opponents disagree. Karen Lugo, a constitutional lawyer who authored Mosques in America: A Guide to Accountable Permit Hearings and Continuing Citizen Oversight, argued in a Feb. 14 column in American Thinker, a conservative online publication, that community concerns in some cases hold merit.
As an example, she cites services held during Ramadan, the holiest month of the Islamic year. At Ramadan, Muslims fast from sunrise until sunset and often meet for special services, which can cause congested traffic and extra noise for 30 consecutive nights due to taraweeh, which are Ramadan-exclusive nightly prayer services.
While churches and other houses of worship may cause the same issues during holiday services, some argue that the length of Muslim services such as long-lasting nightly prayers one month per year, Friday prayers every week during a weekday rush hours and early morning Eid prayers may bring unique inconveniences.
“Residents are right to want reliable answers and to expect a use permit that protects residential interests as well as religious siting rights,” Lugo wrote. “Delicate balancing is required to avoid discriminatory results and many local land use planners are not prepared to administer the legally complicated proceedings.”
The problem is, such issues are rarely raised about other faiths. A Christian church, for example, might hold a multi-night revival service or encourage people to attend more frequently during holidays. These events rarely raise community ire.
The fact that Muslims are often singled out for other kinds of ill-treatment leads to the suspicion that many of the claims about zoning are bogus. For example, members of other faiths are rarely called upon to affirm their patriotism.
In a move that many Muslims and supporters dubbed as religious profiling, Texas state Rep. Kyle Biedermann (R) attempted to poll the beliefs of mosque leaders and Muslim student associations around the state by sending them a survey in January.
Biedermann’s survey exposed a common mindset among Islamophobes, who argue that Islam is not a religion but rather a political ideology, and hence neither the First Amendment nor religious anti-discrimination laws apply to Muslims.
And to many people who fear-monger while understanding little about the religion, Muslims have to prove their patriotism more than any other religious minority in the U.S. This appears to be a common theme at town hall meetings that discuss pending or potential mosque construction.
That’s why mosque advocates like Rizwan Jaka, chair of the board of the All Dulles Area Muslim Society (ADAMS), interpret the permit rejections to Islamophobia. ADAMS is currently facing strong community opposition to its proposal to build a mosque in Norfolk, Va.
“With over 30 mosques being prevented from being built based off of anti-Muslim bigotry or implicit bias wrapped in land-use arguments, that gives us some concern,” Jaka told The Washington Post on Jan. 1.
While some lawyers like Lugo argue that anti-Muslim bias isn’t a strong factor in these cases, judges tend to allow pro-mosque and pro-Muslim community center advocates to challenge towns on the basis of discrimination.
On Feb. 26, U.S. District Judge Matthew F. Kennelly said that evidence suggesting that the city of Des Plaines, Ill., discriminated against the Society of American Bosnians and Herzegovinians, a local Sufi Muslim congregation, was strong enough for them to take their fight to trial. The congregation’s permit to construct a new community center was denied in 2013, when the group was then named the American Islamic Center (AIC).
The local government’s refusal to extend a building permit was especially ironic in this case: Sufi Muslims are a minority within the Muslim community and are widely considered to be progressive. They needed their own place to practice Sufism freely because other mosques didn’t allow Sufi practices, or had an unwelcoming environment toward them due to Sufism’s nontraditional and mystical approach to Islam.
Officials in Des Plaines gave Society members a response many other mosques and community centers have gotten nationwide: The congregation would not meet parking needs and would increase traffic in the area. The rejection came despite a Feb. 27 report from The Cook County Record, a legal news site, noting that a consultant told city officials that the Society’s community center wouldn’t significantly impact traffic.
Kennelly took notice, saying that while city officials could make a case that they denied the Society’s permit for valid reasons, they failed to legally justify their reasoning for creating different standards for Muslim community centers that weren’t applicable to other houses of worship.
The cycle of applying for building permits only to see them turned down over issues of parking and traffic is familiar to many American Muslims. Some of these disputes go to court and take years to resolve. In the meantime, construction of mosques or Islamic centers may be delayed, leaving people with no place to worship or crammed into facilities that don’t meet their needs.
So what sparks this tailored treatment towards mosques and community centers? Town halls that include proposed or pending mosque construction give a glimpse of bluntly Islamophobic individuals pressuring their elected officials to reject permits.
In Tennessee, mosque opponents were unable to persuade county officials to block construction of the facility. Citing a provision in the state’s public meeting laws, they insisted that officials hadn’t provided adequate notice of the meeting when construction of the mosque was approved and filed a lawsuit. That kept things tied up in court for two years.
During the dispute, things got ugly. The Tennessean described what happened: “When the Islamic Center put up a sign on their land announcing that it would be the ‘future home’ of their new building, someone spray painted ‘NOT WELCOME’ all over it. Construction equipment parked at the site was set on fire. At the first planning commission meeting following the mosque’s approval, angry residents turned up to speak their minds. A local pastor said to the commission that ‘we have a duty to investigate anyone under the banner of Islam.’ A homeowner two blocks from the new mosque’s new home said of Muslims that ‘we are fighting these people, for crying out loud, we should not be promoting this.’” (The mosque opened in 2012, although some residents continued to try to shut it down. The U.S. Supreme Court ended the matter when it refused to hear the case in June of 2014.)
A similar situation occurred in Sterling Heights, Mich. Officials in the Detroit suburb voted Feb. 21 to allow the American Islamic Community Center to construct a mosque on its land despite strong community opposition.
The town’s mayor, Michael C. Taylor, said the result was the “American thing to do.” Some of his constituents disagreed.
According to M Live, a Michigan news site, a resident who had previously attended town halls to speak against the mosque reportedly said, “What they should do is probably have Homeland Security check these people out, just in case.” Another said, “Have you ever read the verses in the Quran where they talk about killing all non-Muslims?”
But even after zoning permits are granted, mosques continue to face adversity, and cities are finding new ways to prevent the successful construction of mosques. With the heightened anti-Muslim bias in the U.S., mosques have become a target by extremists for vandalism, while proposed mosques have become a target for vocal aggression.
Muslims and activists are well aware of the challenges ahead.
“Ignorance coupled with government power can be very difficult to overcome,” Mohammed Abdrabboh, a lawyer representing the American Islamic Community Center, said at the news conference after the win.
But the problem, it seems, isn’t limited to Muslims. On Long Island, N.Y., a group of Sikhs are suing because they’ve been denied the right to build a temple by officials in Oyster Bay. The Sikhs say they’ve been required to undergo a lengthy environmental review that hasn’t been applied to other houses of worship.
Officials, meanwhile, counter that they have legitimate concerns – ones that might sound familiar to Muslims.
“The town’s highest priority is that there is adequate parking,” town officials told NBC News, “and that all relevant environmental reviews are followed so as to not disturb the surrounding community’s peaceful enjoyment of their neighborhood.”