Denial of Mosque Permit Violated Law, Argues ACLU-NJ

May 13, 2016

The ACLU of New Jersey today took a stand for the rights of Muslim New Jerseyans who have tried to build a mosque only to be denied for reasons that bear the signs of religious discrimination. The ACLU-NJ, the national ACLU's Program on Freedom of Religion and Belief, and other civil rights organizations joined a friend-of-the-court brief filed by the organization Muslim Advocates (PDF) in U.S. District Court to support the Islamic Society of Basking Ridge, whose proposal for a mosque in Bernards Township, in Somerset County, has been thwarted by the local government after a years-long ordeal.

"Behind each hollow excuse used to deny the Islamic Society's application lurks an undeniable motive: discrimination based on religion," said ACLU-NJ Executive Director Udi Ofer. "The congregants of the Islamic Society of Basking Ridge have the fundamental right to worship freely, as all Americans do. By moving the goal posts for members of one faith only, the Bernards planning board has engaged in the worst kind of NIMBYism."

The plaintiffs, as well as the ACLU-NJ, Muslim Advocates, and the national ACLU, argue that the township, including its planning board and township committee, violated the Islamic Society's rights guaranteed by the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Constitution.

"It violates federal law and the Constitution for local government to have one set of zoning standards for churches and another for mosques," said ACLU-NJ Legal Director Ed Barocas. "Bernards has given exceptions to other religious groups on these zoning restrictions — restrictions that are so malleable, the town changed them whenever the Islamic Society showed it could meet them. It's time for the charade in Bernards to end, and it's time for the courts to call the actions of the board what they are: discriminatory, improper, and not representative of who we are as Americans."

The amicus brief gives an overview of the pernicious discrimination against American Muslims in the 21st century, with a particular focus on similar cases of zoning restrictions that thinly veil religious discrimination. The issue arose most prominently in 2010, when an anti-Muslim backlash formed in response to the planned construction of the Park51 Muslim community center in lower Manhattan.

"While Muslims make up about one percent of the U.S. population, of the 51 RLUIPA land-use investigations initiated by the U.S. Department of Justice in the first decade since the statute passed in 2000, 14 percent involved mosques or other Islamic structures," the brief said.

The town has a policy setting a 3:1 ratio for church seating to parking spots for churches, auditoriums and theaters. An uproar broke out in 2012 when the Islamic Society sought to build a mosque, calculating that it would have 50 parking spots based on its expected capacity of 150 people. Although organizations have had that ratio waived, the planning board balked, trying to find alternate formulas, including ones involving the number of prayer rugs that could fit – ostensibly to increase the number of parking spaces to justify denial of the application.

The Islamic Society's lawsuit, filed March 10, came nearly four years after its initial application in August 2012. Bernards Township held 39 hearings, concerning issues such as parking and the space a prayer rug would take up, before ultimately denying the application, according to the Islamic Society's brief. In an effort to prevent the Bernards zoning ordinance from applying to the mosque, the town board planner and the planning board's attorney wrote a memo claiming that the policy applied literally, to "churches" exclusively rather than to other religious buildings such as mosques.

In addition to the ACLU-NJ and national ACLU, several other civil rights groups signed onto the Muslim Advocates brief: Asian Americans Advancing Justice, ColorofChange, Asian American Legal Defense & Education Fund, Arab American Institute, Interfaith Center of New York, T'ruah: The Rabbinic Call for Human Rights, National Religious Campaign Against Torture, South Asian Americans Leading Together, American-Arab Anti-Discrimination Committee, Islamic Society of Central Jersey, Center for New Community, National Council of Jewish Women, Union for Reform Judaism, Central Conference of American Rabbis & Women for Reform Jadaism, and the National Sikh Campaign.

Read the friend-of-the-court brief (PDF) in the case, captioned Islamic Society of Basking Ridge v. Township of Bernards.

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Category: Religious Freedom

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