Freedom of Religion

Religious Liberty Under Fire

The conflict is over a mosque, not cakes or birth control.

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Spend any time surfing conservative websites and you cannot help being impressed by the degree to which they seem to care about religious liberty. One day they are defending nuns from birth control mandates; another, they are sticking up for businesses that don't want to endorse gay pride or gay marriage.

So you would think they would be outraged that Culpeper, Virginia, has denied a permit that would let a small group of the faithful build a house of worship. On that score, unfortunately, you would be wrong.

Conservative organs such as National Review, The Daily Caller and The Daily Signal have published scads of commentaries about Hobby Lobby, the Little Sisters of the Poor, wedding-cake makers and so on. But they have not said word one about the Islamic Center of Culpeper (ICC). The fight is now the subject of a federal lawsuit brought by the Justice Department.

The ICC has a legitimate beef. Its members have been without a permanent worship site for a long time. They looked around for a place to put one, and eventually bought a plot of land where they could build a small mosque. It is not ideal, but it is what they could manage.

The land does not have water and sewer service. The ground will not accommodate a septic system. So the only option left is a pump-and-haul system, in which sewage is occasionally pumped out of storage tanks and hauled away. You need a permit for that.

Over the past quarter-century Culpeper has considered 26 pump-and-haul permits. Nine of them were for churches. The county approved every single one.

Then in February, ICC director Mohammad Nawabe asked for one. First, the county delayed a hearing on the matter. The county attorney said she needed to study the issue—even though she had not needed to study any of the preceding cases. Residents of Culpeper started calling their county supervisors, urging them to reject the application.

"The majority of the calls and emails I had was because of the religion, not because it's a pump-and-haul or environmental reasons," says Supervisor Sue Hansohn. The Justice Department's complaint notes that "much of the opposition… made references to terrorism and the 9/11 attacks."

A crowd showed up to the next meeting, in April, when the board of supervisors voted on the ICC's permit. Supervisor Bill Chase made a motion to deny the permit. The audience cheered. The motion passed, 4-3. No permit for the ICC.

If this looks like blatant religious discrimination, that's because it is—despite the tissue-thin excuses county officials have offered. They claim, for instance, that they simply don't want to issue a pump-and-haul permit for a building that hasn't been built yet. But "the Board previously approved requests for pump-and-haul operations where the applicant presented circumstances that were similar, if not identical, to the ICC's," says the Justice Department, "including circumstances where an applicant did not yet own the property and in which there was not an existing structure. The Board considered 26 applications and never denied a pump-and-haul permit to a commercial or religious use prior to the ICC."

Justice is bringing suit under RLUIPA, the Religious Land Use and Institutionalized Persons Act. RLUIPA says government cannot use land-use restrictions to impose a substantial burden on a religious body unless the restrictions serve a compelling governmental interest and are the least restrictive means of doing so. Congress passed the law 16 years ago, chiefly because of complaints from Christian megachurches.

Some of those churches had met opposition from local governments because of neighborhood concerns about traffic and noise. (When a thousand or more worshipers leave the parking lot at the same time, it can create a bit of a snarl.) Congress said, in effect, too bad: Your claim to a traffic-free residential street does not trump the religious liberty of people who want to go to church.

It's painfully clear that Culpeper is going to lose this case badly. Concerns about traffic and noise are neutral, legitimate considerations that qualify as governmental interests, albeit not compelling ones. Bigotry against Muslims is not neutral, not legitimate, and certainly no kind of a governmental interest. It's animosity toward a particular religion, full stop.

Yet so far, conservatives seem not to care. All of which makes you wonder about their devotion to the religious liberty of nuns and cake designers: Is it sincere—or just a handy weapon in the perpetual war between the Red Team and the Blue? Nuns and cake designers have a defensible argument that they should be allowed to exercise their faith even outside a house of worship. But it is certainly no stronger than the argument of Muslims who simply want to exercise their faith within one.

This article originally appeared at the Richmond Times-Dispatch.