In Legal Fight Against U.S. Towns, Muslims May Lose Major Ally

The Justice Department has sued several municipalities for blocking mosques and Islamic schools from being built. But the future of those lawsuits under a Trump administration is unclear.
by | January 13, 2017
Muslims pray during a service at a community center in New Jersey. (AP/Julio Cortez)

Call it a new form of NIMBYism.

Back in 2010, plans for the so-called Ground Zero mosque, an Islamic cultural center a couple of blocks from the World Trade Center site in New York City, triggered a nationwide furor. In the face of controversy, condos went up instead of a cultural center.

Today, controversies over building mosques and other Muslim centers continue around the country. They aren't getting much national attention, but debates at the local level have led to expensive lawsuits -- some from the U.S. Department of Justice -- against cities for alleged religious discrimination.

On New Year's Eve, federal District Court Judge Michael Shipp ruled that the township of Bernards, N.J., had discriminated against a local Islamic society that has been seeking to build a mosque. The township "unambiguously treated [the] application to build a Muslim mosque differently than applications for Christian churches and Jewish synagogues," wrote Shipp. That, he concluded, "reflects sufficient intent to discriminate on the basis of religion."

Christian groups, including the Ethics & Religious Liberty Commission of the Southern Baptist Convention and the National Association of Evangelicals, signed an amicus brief in support of the Islamic group's position.

But the main legal ally for Muslims in this case, and some others like it, has been the Justice Department. Outside of New Jersey, the feds have also brought their own lawsuits against two cities in Michigan -- Sterling Heights and Pittsfield Township -- that refused permission for mosques or Islamic schools.

Islamic groups, however, are concerned that the new administration will no longer be a sympathetic ally. President-elect Donald Trump -- who campaigned on pledges to create a Muslim registry and ban them from entering the country -- enters the White House next Friday.

"As far as the impact of a new attorney general at the Justice Department, it could make a big difference in the way things are handled," said Jim Sues, executive director of the New Jersey chapter of the Council on American-Islamic Relations. "It's not a difference I would look forward to at all."

Confirmation hearings for Trump's nominee for U.S. attorney general, U.S. Sen. Jeff Sessions, ended Wednesday. During the two days of questioning, Sessions said he "[does] not support the idea that Muslims, as a religious group, should be denied admission to the United States." But he also said he supports “extreme vetting” of immigrants that may take a person's religious beliefs into account. According to the Southern Poverty Law Center, Sessions is a "champion of anti-Muslim and anti-immigrant extremists."

The lawsuits from the Obama Justice Department and Islamic groups allege that municipalities stand in violation of the Religious Land Use and Institutionalized Persons Act, a federal law enacted in 2000 that bars discrimination against individuals and religious organizations in zoning and land-use laws.

Bernards Township and other cities typically argue that they have rejected mosques or other Islamic sites due to concerns about traffic or parking. But proposed mosques have triggered outrage in some communities. Planning or zoning board meetings sometimes turn angry, with neighbors showing up to complain.

At a city council hearing in Sterling Heights in 2015, resident Saad Antoun held up a picture of a woman wearing a niqab, a veil for the face. "This mosque is going to bring ... people like this," said Antoun, according to the Detroit Free Press. "This is scary and disgusting. Please stop the mosque."

Community opposition can be strong even when zoning or planning boards appear sympathetic to mosques or other Islamic building projects, said Sues. There appears to be no rhyme or reason, he said, as to why some attract ardent opposition while others sail through without controversy.

The one thing that is clear is that when local decisions trigger lawsuits, it's expensive for everybody. Municipalities often have to hire pricey outside legal counsel, and the same can be true for Islamic groups.

"It's cost them a great deal of time and money," said Sues. "It has been a significant drain."

Bernards Township, for example, has retained the services of the venerable Connecticut-based firm Robinson and Cole. The township committee and planning board will hold a meeting on Jan. 17 to consider a response to the New York's Eve ruling, which could include an appeal.