Is that New York Mosque Sacrosanct, or is It Subject to Local Land-Use Decisions?

As you know, the printed pages and the airwaves have been filled to overflowing lately with stories about the adventures and misadventures of that mosque that has been proposed for a site next to “ground zero,” the site of the destroyed Twin Towers in New York City.

What we find fascinating about that caper is that people debating whether the proposed mosque should or should not be built, have largely structured their arguments in terms of the First Amendment freedom or religion provision. Supporters of the would-be mosque builders – and surprisingly, some of its opponents — have asserted that construction of that mosque is permissible as a matter of constitutional law, with the opponents arguing that other considerations should counsel restraint and accommodation on the part of the mosque proponents.  

But all that disregards legal reality. Places of religious worship are regularly denied permission to build, because of local land-use regulations, some of which are transparently contrived to stop the construction on grounds other than the ostensible ones. If you want a concise description of the pertinent law, check out Professor Steven Eagle’s treatise REGULATORY TAKINGS, 2nd ed., Lexis Publishing, 2001, at § 7-3(d) which will tell you more than you want to know about cases in which construction of places of religious worship was interdicted because of covenants running with the land, or local land-use regulations, or neighborhood opposition.   

Things got so bad in that regard that in 1993 Congress enacted the Religious Freedom Restoration Act (RFRA) which limited the ability of local land-use regulators to “substantially burden a person’s exercise of religion.” But the U.S. Supreme Court held that law unconstitutional in City of Boerne v. Flores, 521 U.S. 507 (1997), because the law went beyond legislative powers by purporting to define the scope of the 14th Amendment, which, said the court, is a judicial function.

In 2000, Congress struck back by enacting the Religious Land Use and Institutionalized Persons Act (RLUIPA) prohibiting land use restrictions burdening the exercise of religion, except in furtherance of compelling government interests. So far, no Supreme Court battles over that one.  But all that does not mean that construction of churches and temples cannot be banned by local laws. Thus, the Texas Court of Appeals held that a Sikh temple built near Austin at a cost of $350,000, plus $100,000 for the land, would have to be demolished because it was built in violation of local CC & Rs limiting land uses to residences. Perry Stein, Sikhs Dispute Texas Ruling on Temple, Wall St. Jour., Aug 14, 2010, at p. A5. Sounds to us like an erroneous decision because it’s hard to imagine a worse case of etoppel. But what do we know about the doings of our betters?  

And over in Litchfield, Connecticut, the town has just been taken to court over its denial of permission to allow reconstruction of a historical structure in order to enlarge it and make it into an Orthodox Jewish synagogue. So far, the court denied the town’s motion to dismiss and the case is going to trial. See Rinker Buck, Denial of Synagogue Plan Stokes Battle, Los Angeles Times, Sep. 12, 2010, at p. A38.  

So it’s as if we were operating in two parallel universes. In one, the right to build places of religious worship is deemed sacrosanct (no pun intended), while in the other one they are merely development projects subject to regulation like all others. We could be mistaken, but so far, none of the outspoken mavens who regale us daily with fiery commentary about that “ground zero” mosque, have tried to bridge the two universes. Maybe one of these days someone will.

Folow up. Today’s Los Angeles Times reports that the U.S. Department of Justice has filed a lawsuit against the city of Walnut, California, accusing it of religious discrimination. It seems that in 2008 the city denied permission to Chung Tai Zen Center to build a Buddhist temple on its property. The lawsuit is evidently based on a theory of denial of equal protection — the city later granted permission to build a Catholic church that was evidenly bigger than the proposed Buddhist temple.

See Robert Fatureci, Feds Sue City for Discrimination, L.A. Times, September 14, 2010, at p. AA4.