Rogers briefly describes how the ongoing controversy over the NY Islamic Center violates the spirit and intent of the legal traditions of both the Constitution and the Religious Land Use and Institutionalized Persons Act (RLUIPA):
The First Amendment to the United States Constitution bars the state from singling out certain religions for special disabilities. In 1993, for example, the United States Supreme Court said: “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs . . . ." This includes discrimination that "is masked as well as overt."
Further, a federal law that specifically deals with religious institutions and land use regulation, the Religious Land Use and Institutionalized Persons Act (RLUIPA), plainly states: "No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination." Whether the entity is Muslim, Mormon, or Methodist, Congress recognized that faith-based discrimination by the government must not be tolerated.
Thus, if government officials were to reject or specially burden plans for mosques or other Islamic institutions because of their religious affiliation, it would violate both the Constitution and federal statutory law. This would be true whether the discrimination was plain to see or whether it lurked behind objections about things like traffic, aesthetics, and noise.
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