Religious discrimination persists in zoning proceedings despite strict legal protection | News and Commentary

Last Sunday was a historic and joyous day in DeSoto County, Mississippi. The county’s first mosque, the Abraham House of God, eventually broke ground in the town of Horn Lake. While the occasion was festive, it was also a relief for the mosque’s founders, who were forced to sue last year after city officials — motivated by anti-Muslim prejudice — denied them a critical zoning permit.

Represented by the ACLU, the ACLU of Mississippi and Simpson Thacher & Bartlett LLP, the mosque and its founders argued in a 2021 lawsuit that the zoning plan includes both the First Amendment, which prohibits choosing one faith for discriminatory treatment, and the religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law that provides increased protections to religious groups seeking to establish a house of worship or use property for other religious purposes. In a decisive victory, our clients quickly won a consent decree (a court order agreed to by the parties) requiring the city to approve their construction site plan and prohibiting further discrimination against them.

But that didn’t stop Horn Lake from trying again to thwart our clients’ right to develop their property. In April, our customers applied for a conditional occupancy permit to build an Islamic cemetery next to the mosque. Although the city’s planning committee staff “strongly and categorically” recommended approval of the application, some commissioners declined. Echoing the biased sentiment expressed nearly a year earlier by a city councilor who voted against the mosque’s construction plan, a town planning commissioner lamented: “I assume Muslims across the country will come to Horn Lake. to bury their dead.”

Only after we intervened again and reminded the city to comply with First Amendment, RLUIPA and the Consent Decree, the Planning Commission voted 4-3 to recommend approval of the permit. And last week, the council of aldermen voted in favor of the recommendation so that the mosque can provide vital funeral and burial services to the local Muslim community.

The Horn Lake issue is not the only recent incident where minority religious groups or places of worship have faced discriminatory hurdles in zoning procedures. In some cases, such as in Horn Lake, the bias is overt and unmistakable. In other countries, the bias may be more veiled, shrouded in vague — and unsupported — allegations that the proposed land use will create problems with parking, traffic or noise.

Last summer, the ACLU and the ACLU of Rhode Island stepped in to represent the Horn and Cauldron, Church of the Earth, a small Wiccan church in Coventry, Rhode Island. Wicca is a nature-based religion, and the church’s religious services, educational classes, and other faith-based activities focus on the relationship between the earth and the divine. As in Horn Lake, the Coventry Planning Commission staff recommended approval of our clients’ permit application, noting that the application met all requirements and that “the Church has had operations on the property for many years and the Planning and Zoning Department no complaints since the founding of the church.”

Nevertheless, members of the Coventry Zoning Board of Review declined to approve the permit in a public hearing, citing inaccurate parking issues (the church has more than adequate parking for visitors) and baseless allegations about fire safety (the church follows all-safety laws, and the facilities comply with the guidelines of the fire brigade). When we got involved, it was clear that city officials were either unaware of their obligations under RLUIPA, let alone under the First Amendment. Earlier this month, the zoning plan granted the permit for the church in response to our plea.

Unfortunately, some zoning discrimination cases are not resolved quickly. In 2016, the Thai Meditation Association of Alabama, a Buddhist religious organization, filed suit after the city of Mobile repeatedly thwarted its efforts to develop a meditation center on a 100-acre lot. The complaint alleged that the city’s denial of approving zoning plans bowed to the community’s hostility to Buddhism — an unknown faith to some. The case has dragged on for years, with a court recently finding that city officials made deceptive statements, violated local ordinances, disregarded the religious nature of the proposed use and “manipulated the reasons that the planning approval was refused”, including by drawing up false minutes. As the lawsuit progresses, the ACLU and a number of other civil rights and religious freedom groups recently filed an amicus brief with the U.S. Court of Appeals for the Eleventh Circuit, supporting the Association’s claims.

But even if the Association ultimately triumphs, it will come at a high cost, as we have seen with our own customers. To challenge discriminatory zoning laws, religious groups often have to tap into limited financial reserves. Moreover, every day when zoning approvals are wrongly denied is another day when the religious groups or places of worship are prevented from fully practicing their faith in fundamental ways. And because zoning is deeply ingrained in and connected to the local community, the suffering and dignified harm that minority faith applicants face from discriminatory denials comes much closer to home.

Therefore, we will continue to defend the right of all religions – especially those that may be unknown to some or unpopular in the eyes of others – to be free from unfair treatment in zoning proceedings. It’s not just the law; it’s the right thing to do.

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