Academic journal article The Journal of Gender, Race and Justice

Zone of Oppression: Why the Unpredictable Application of a Federal Law Threatens Religious Liberty

Academic journal article The Journal of Gender, Race and Justice

Zone of Oppression: Why the Unpredictable Application of a Federal Law Threatens Religious Liberty

Article excerpt

I. Introduction

In the aftermath of 9/11, Muslim Americans were the victims of considerable outright discrimination.1 Following the Manhattan Park51 Mosque controversy,2 however, many local zoning boards and city councils subjected Muslim Americans to a more discrete form of discrimination: systematically denying the Muslim-American religious groups who applied for mosque construction permits.3 To combat such discrimination, Muslims, and all other religious organizations, utilize the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).4

Thomas E. Perez, the Assistant Attorney General for the Justice Department's Civil Rights Division, celebrated the ten year anniversary of RLUIPA by releasing this statement: "The freedom to practice one's faith in peace is among our most cherished rights. RLUIPA has proven to be a powerful tool in combating religious discrimination and ensuring religious freedom for all individuals."5 RLUIPA prevents local and state zoning boards and councils from substantially burdening religious organizations with discriminatory land use laws and zoning decisions.6 In essence, RLUIPA prevents local zoning boards from denying building permits to religious organizations simply because the boards do not agree with the organization's religious beliefs.7

Mr. Perez's statement, extolling the use of RLUIPA as a vital tool in the war against encroachment upon religious liberties, might seem unnecessary in a country that has long prided itself on its protection of religious liberties.8 RLUIPA, however, does more than protect religious freedoms from those who simply dislike religion.9 More importantly, RLUIPA prevents individuals from discriminating against certain specific religions that are the "wrong" types of religion.10

In the ten years since Congress enacted RLUIPA, the Civil Rights Division of the Justice Department (the office charged with enforcing RLUIPA)11 has opened fifty-one investigations, filed seven lawsuits, filed ten amicus briefs, and intervened in seventy-one lawsuits to litigate religious discrimination and to defend RLUIPA's constitutionality.12 The majority of investigations concerned the Jewish, Muslim, and Buddhist faiths-an investigation rate thirteen times their representation in the general public.13 Of the investigations concerning Christians, half of them involved racial or ethnic minorities.14 Even more alarming is that of the eighteen cases involving Muslims, the Department opened eight of those investigations in the six-month time period between May 2010 and September 2010 (the time period surrounding the Ground Zero mosque controversy).15

RLUIPA is crucial in this time of increased animosity directed at individuals practicing Islam.16 In 2010, for example, the Justice Department investigated controversies arising from opposition to mosque constructions in Tennessee, Wisconsin, California, and Manhattan.17 While the Manhattan Zoning Council eventually passed the permit allowing the Park51 Mosque, the outcry against the Mosque infected much of the country with similar animosity.18 Such vitriol manifested itself in the form of land use and zoning request denials.19 To combat such discrimination, federal courts and the Justice Department utilize RLUIPA.20

Congress enacted RLUIPA to broadly protect religious organizations21 in a manner consistent with Supreme Court Free Exercise precedent.22 Both the statutory text and its legislative history support the directive that courts are to use RLUIPA to strike down zoning board decisions that substantially burdened religious organizations.23 However, courts have struggled to fulfill the goals of the statute because Congress failed to define the term "substantial burden."24 As such, the United States Circuit Courts of Appeals have used different definitions and arrived at wildly differing results.25 In many situations where common sense would suggest that a zoning board greatly and substantially burdened a religious organization, many circuit courts fail to find RLUIPA violations. …

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