Kennesaw mosque decision shows religious liberty requires eternal vigilance

For about 12 months spanning this year and last, I led a real-estate search for my church. It’s a difficult task, finding property to fit the size and budget of a smallish religious group. It’s more difficult when one has to consider the additional restrictions imposed by city and county zoning ordinances.

So I can only imagine the further degree of difficulty to find a place to meet and pray when one is looking for property to house not a church but a mosque — and other, unwritten barriers arise. The Suffah Dawaad congregation, whose application for a land-use permit was denied this week by the Kennesaw City Council, has my sympathy. I hope it will also have its victorious day in court if and when that time comes.

This is the reason religious liberty is safeguarded in the Constitution and in more recent laws: not to protect ubiquitous faiths practiced and accepted by many, but to protect those which are met with suspicion and opposition. It’s the reason this country exists as it was conceived by the Founders.

Many of the opponents quoted in news reports leading up to the council’s decision — not all of whom, note, actually lived in Kennesaw — expressed fears about having Muslims worshipping near them. To them, I’d say familiarity doesn’t have to breed contempt. It can also yield understanding. Keep your friends close and your enemies closer; nearby residents might prejudge the Suffah Dawaad congregants as one or the other, but in neither case does the old adage suggest keeping them at a distance.

Other opponents pointed out there were other mosques and Islamic prayer halls not too far away. (That objection doesn’t exactly jibe with the first one. And I won’t bother addressing the complaints about parking, traffic and zoning categories, all of which have been pretty thoroughly debunked by others.) I would hazard a guess that proximity of other churches has not been successfully employed as an argument against a new church.

It seems clear the application was denied because the applicants were Muslims. In this country, that’s not a good reason.

If the congregation does indeed sue the city, it can rely on the federal Religious Land Use and Institutionalized Persons Act. That 2000 law requires courts to apply a strict scrutiny legal test when evaluating zoning laws and rulings, among other things. It enhances the religious freedoms enshrined in the First Amendment by ensuring any substantial burden on religious rights that arises in land-use cases meets a “compelling government interest” and is the “least restrictive means” of doing so.

But if these Muslims — or any other religious group or individual in Georgia — were to face a substantial burden on their religious freedom due to a different local or state government action not related to land use, they would have much less assurance. That’s because Georgia is in the minority of states that does not have a broader Religious Freedom Restoration Act which mirrors the federal law of that name passed by Congress in 1993.

By rights, the First Amendment ought to suffice. But two centuries of court decisions show us that doesn’t always happen — at least, not to the extent most Americans probably think it should. The federal RFRA stiffens the constitutional protections for religious liberty when the federal government is involved. It’s clear our local and state governments could use that kind of reinforcement, too.

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74 comments
WmInkennesaw
WmInkennesaw

Since the mayor wants to revisit the Mosque matter and have Council ask questions here are a few for them:


Why did F. Islam lie on his submission saying that there were no Mosques within a 20 mile radius?


What does the 'F' stand for in Mr. F. Islam? 


Is it true that after the initial 24 months that his group would be applying for extensions of the waiver to stay as long as they wanted?


Is it true under Islamic law that once a Mosque is established that it can NEVER be closed?


Why did Mosque attorney Dillard apologize to the Council in a closed session for his clients lies but he did not apologize to the community in the general session?


The major proponent of a Mosque in the Kennesaw stirp mall Mr. Amer, owns the 11 unit, Shops at Hickory Grove strip mall, located at 2639 Hickory Grove Rd, Acworth and has 3 vacant units (120, 130, 140) why dosen't he put the Mosque there since it is only 3.9 miles away and by being closer to I-75 both malls are a 17 minute drive from his Marietta 10 bedroom estate?


Ask Mr Amer why he wants to start a new Mosque in Kennesaw when he is .6 of a mile from the East Cobb Islamic Center, 1111 Braswell Rd, Marietta  and 3.1 miles from the Masjid Ibad-ur-Rahman Mosque, 2692 Sandy Plains Rd, Marietta.    Rather than a 2 minute drive to the East Cobb Center he would rather drive 17 minutes to Kennesaw to his own Mosque?


Why aren't the other 7 Marietta area Mosques good enough for Mr Amer and his followers?


More info at:  http://mayormathews.blogspot.com/

LogicalDude
LogicalDude

The religious freedom bills Kyle references can result in things like this: 

"The Michigan House of Representatives has passed a religious freedom bill that might potentially allow emergency medical personnel to exercise religious objections to treating gay patients."


In the name of "religious freedom", it allows individuals to ignore their duties as a citizen to society, or allow people to be bigots in the name of religion. 


As much as "religious freedom" has a nice ring to it, the repercussions and reasoning behind many of these bills is more about the things that certain residents of Kennesaw believe (and reject another set of residents' beliefs.)




Kyle_Wingfield
Kyle_Wingfield moderator

@LogicalDude "The religious freedom bills Kyle references"

Emphasis added, to make this point: Not all of these bills are the same. I haven't read the Michigan bill, and no one has filed a bill here in Georgia yet. So I can't compare the two, and neither can you. But the federal law has never been successfully used in court to defend a discriminatory action, and a state bill mirroring that law could not be expected to be any different.

Jefferson1776
Jefferson1776

The election in 1800 and the result should prove that allowing less gov't in religion will be just fine.  You have to believe in America.

FIGMO2
FIGMO2

Like I was saying...

Kennesaw may revisit mosque decision

Representatives of the mosque say they’ve spoken to the U.S. Department of Justice about what they see as blatant discrimination in violation of federal law. The department has intervened in similar cases across the country, including decisions by Lilburn and Alpharetta to deny mosque expansions. Under federal pressure, those cities ultimately approved the expansions.

http://www.ajc.com/news/news/local-govt-politics/kennesaw-may-revisit-mosque-decision/njMLN/

IReportYouWhine
IReportYouWhine

TBS 5 hours ago

@IReportYouWhine

Can you tell the blog exactly what you know about the Muslims who are involved with this Kennesaw issue?

Yes, they are all fine individuals other than the fact that the religion they are promoting is a menace to innocent men, women and children all over the world. 


Any adherent to islam, regardless of what is preached in a mosque, can be easily led to the more extremist elements of this religion, much like the so called gateway drugs leading to the harder stuff. The internet is full of that crap, glorifying violence, glamorizing power over entire groups of people, promoting racism against others. All it takes is a couple of mouse clicks to lead the earnest believers down the wrong path.


It can only be changed from within.

Yes_Jesus_Can
Yes_Jesus_Can

I am beginning to recognize that your heart is filled with authentic compassion, which is a gift that cannot be taught. A wonderful gift!

-------------------------------------------

If I may ask it, is the supernatural ability to look into one's heart a divine attribute only, or is it given to females too? 

You're OK, MaryElizabeth.  I never agree with your politics, but on this one, I'm merely observing your writing, which I do not disagree with either today.  That quote though seems to be something of a vestigal judgement, albeit emotional and presumptive. Anyway, I have never observed a man to say such a thing.  However,  men, when they do make emotive  ejaculations ("Your fear and bigotry is a damn poor excuse for denying somebody else the basic freedoms that are guaranteed in the Constitution. It’s cowardly." ) do so only in a pessimistic way, I think. 

What a wonderful gift! 

Just kidding. 

Claver
Claver

@Yes_Jesus_Can Bush was able to look into Putin's eyes and get a sense of his soul.  Now that is a supernatural power!

Dusty2
Dusty2

Ah,Kyle, you are correct in suggesting we follow religious liberty.  But one case came to mind which I suppose it wasn't freedom of religion but freedom from child molestation.  I refer to the United Nuwabian nation of Moors who settled in Eatonton from New York over ten years ago.  The Feds now own that property. Their leader & founder is in jail. This weird group did say they were religious in nature.  Maybe is one's "religion" is weird enough it will be shut down. The groups still puts out information about its "religion" and has a book store in Atlanta if it hasn't gone out of business.

Kyle_Wingfield
Kyle_Wingfield moderator

@Dusty2 As I've said elsewhere, freedom of religion isn't absolute. You can't kill someone in the name of religion and get away with it in this country.

FIGMO2
FIGMO2

RLUIPA has the power to intimidate government officials. If the religious organization wins their case, the governing body must pay their legal fees. Oftentimes government will cave knowing they'll have to pay court costs. 

MaryElizabethSings
MaryElizabethSings

The Suffah Dawaad congregation, whose application for a land-use permit was denied this week by the Kennesaw City Council, has my sympathy. I hope it will also have its victorious day in court if and when that time comes.

+++++++++++++++++++++++++++++++++++++++++++++++++


Kyle, although I often disagree with your political positions because of our different ideas regarding the role of government, I have appreciated your article on the Garner case and also your position on this case.  I am beginning to recognize that your heart is filled with authentic compassion, which is a gift that cannot be taught.  A wonderful gift!


To all, I would like to state that I have been friends for over 20 years with a Muslim family who are naturalized citizens from Iran.  They have been in America probably 30 years.  The father is a scientist at Emory and the mother is a pharmacist. Our children have been close friends all during these years.  What an opportunity missed if my husband and I had rejected these lovely people as our friends.  Instead, in middle and high school, I advised our daughter to find friends who genuinely cared about her as a person and wanted to be friends with her because they liked her, appreciated her, and because they shared mutual interests.  I advised my child to disregard social cliques of prestige in forming friends. I believe I gave my child good advice for her Muslim friend will be a lifelong friend and they will share life's stages together with their young, growing families.

straker
straker

Kyle


I am still waiting for those good peaceful Muslims in America to take to the streets and protest all the brutality that ISIS and others are doing.


I'm waiting to see, on the evening news, protests all over the country by angry American Muslims over how their "peaceful" religion is being used by brutal, savage people.


And waiting


And waiting


And waiting


Kyle, you've been worrying about the Ebola virus. I'd say you might start worrying about catching the "politically correct" virus.

DawgDadII
DawgDadII

@straker  It is not illegal to be suspicious of a religious group. It is illegal to discriminate against them and their members, as that discrimination is defined in our Constitution and Law. Kyle's position appears to me to be consistent with the conservative viewpoint.


I don't believe it is realistic to expect good Muslims to march and speak out against all the bad apples, they have families to raise and lives to live. I do expect them to uphold their responsibilities as American citizens, or as our guests. If Muslims are being coerced or threatened by the radical fringe, or if they become aware of a real threat, they DO have a responsibility to speak up. That applies to everyone, not just Muslims.

Caius
Caius

@straker  I believe they are in the streets protesting Ferguson, the Eric Garner chokehold death and the killing of the 12 year old in Cleveland.  At least I have seen interviews with self described Muslims at several protests. Maybe the thought is clean up here first and over there later.  Just guessing as they did not address your particular point of view.


Who gets to decide what particular religions get approved by government and which ones do not get approved?  City? County? State? Federal Government? 

The christian community is still in a fight with the Obama administration over Christian churches right to the "free exercise" of their religion.  Dozens of cases are still in the Federal Court system.  Kyle is correct in that eternal vigilance is required if one wants to maintain his constitutional rights.




GMFA
GMFA

@straker And I bet you are out there protesting the NYPD and Ferguson PD decisions. I think I can see your sign.

Claver
Claver

@straker If some Christian group thousands of mile away from me in a far off country started doing terrible things, I would be horrified by it.  But, I do not see myself taking to the streets here in America to protest it.  I doubt you would either.

RoadScholar
RoadScholar

OMG Kyle, another good editorial I agree with! Are you showing your liberal side?

Kyle_Wingfield
Kyle_Wingfield moderator

@RoadScholar I don't think treating people fairly is a liberal or conservative thing. Of course, what's "fair" can and does differ depending on the issue.

FIGMO2
FIGMO2

For some reason, I'm unable to reply to Kyle's comment from 40 minutes prior.

Anyhoo, here's the way I look at it....zoning regulations can impede a church's right to assemble, but, in no way, can they impede AN INDIVIDUAL'S religious freedom. They're free to hold it (their faith) near and dear...  

Kyle_Wingfield
Kyle_Wingfield moderator

@FIGMO2 There does seem to be some weirdness with the commenting feature this morning, at least on my end.

CrazySexyKool
CrazySexyKool

@FIGMO2 -   Figmo -- When discussing the right to practice your religion freely, as depicted by the FFs and as further strengthen by Congressional laws, by not allowing a church/mosque/temple to assemble in your district but allowing OTHER mosques/temples/churches to assemble is in violation of the Constitution.


The "separate but equal" clause was struck down decades ago.  Let's not try to bring it back now because of some people's fear and ignorance.

Kyle_Wingfield
Kyle_Wingfield moderator

@CrazySexyKool @FIGMO2 I don't think that was the point. If you scroll to the bottom of this thread, the original point was about properties zoned residential vs. commercial -- and wasn't really specific to this case.

Caius
Caius

Kennesaw city government appears to be what we can call "cafeteria Americans", they go through the Constitution and pick and choose what particular items best fit their mood that day. Just like their daddy,     President Barack Obama, they trash the First Amendment. 




straker
straker

The Muslim religion is increasingly being taken over by those with a 14th century medieval mindset and matching behavior.


Openly welcoming them here makes about as much sense as storing unstable dynamite in your bedroom


Sooner or later it(they) might just go off.

RoadScholar
RoadScholar

@straker And how about those deadly "Christian wars" ? Their track record is as bad!

Kyle_Wingfield
Kyle_Wingfield moderator

@straker That's a mighty broad generalization. If it were true as generally as you seem to believe, rather than in just the more limited cases that are plain for all to see, you'd think our major cities would look like Jerusalem during the first and second intifadas.

AvailableName
AvailableName

You had me until you promoted a state RFRA.  I'd take my chances with the First Amendment and the federal act rather than having a state statute being used to promote the ability of say Southern Baptists to discriminate against minorities that their religion doesn't approve of.  I know, I know, Mr. McKoon (sp?) says his bill wouldn't do that but I'd just as soon leave well enough alone.

Kyle_Wingfield
Kyle_Wingfield moderator

@AvailableName Well, the Supreme Court has explicitly said the federal RFRA does not apply to the states. So there's not a chance to take there.

As for discrimination, I'll pose the same challenge to you that I have to others. The federal RFRA has been around since 1993, and state RFRAs since the late 1990s. Find me one successful use of the RFRA as a defense of discrimination.

(Hint: It was claimed in the famous New Mexico photographer/gay wedding case, and the courts rejected that argument.)

AvailableName
AvailableName

@Kyle_Wingfield @AvailableName I'll assume you are right but I would maintain my point, RFRAs, federal and state are and will be used for religious mischief.  The federal act was invoked in the Hobby Lobby case by the majority as a partial basis for the ruling giving corporations a soul to throw around, in my view discriminating against flesh and blood female employees.


Kyle_Wingfield
Kyle_Wingfield moderator

@AvailableName If you are so certain they "are" being used "for religious mischief," then surely you can find me just one example. Again, not where someone has claimed RFRA allows them to do (or not do) something, but where a court has agreed with them.

Hobby Lobby didn't represent "discrimination" by the way, unless you think some women were being treated differently than others. You might want to revisit the fact that most of the contraceptives on the Obama administration's list were not at issue in that case.

AvailableName
AvailableName

@Kyle_Wingfield @AvailableName "Most?"  It isn't discrimination unless you foreclose all avenues?  And women were treated differently.  One class unfortunately works for Hobby Lobby and can't afford medically prescribed, safe and effective but very expensive IUDs, not available at the drug store counter as argued by conservatives.  Another class works for a secular company or has the money on their own to pay for the contraceptives.


Hobby Lobby's biggest sin isn't the mangling of statutory interpretation and further erosion of First Amendment protections.  Rather it is the Supreme Court's further expansion of the personhood of corporations.  No good will come of it.

Kyle_Wingfield
Kyle_Wingfield moderator

@AvailableName So now you're claiming HL was "discriminating" against inanimate objects?

The only way discrimination would have come into play in the HL case is if it were differentiating among its own employees. For example, by doing one thing for Christians and another for non-Christians.


Question the Logic
Question the Logic

Kyle, your logic starts off soundly, but I wonder....Can you provide an example of where a state RFRA in Georgia would prevent something that has happened in this state....which would not already be prevented under the First Amendment of the US Constitution or the Georgia Constitution?

Kyle_Wingfield
Kyle_Wingfield moderator

@Question the Logic You're missing the point of a RFRA. The point is not to cover something not covered by the Constitution (either one). The point is to establish the legal test which courts must use in evaluating such constitutional claims.

Freedom of religion is not, in practice, an absolute freedom. So courts have to decide how to evaluate such claims in competition with other rights or governmental interests. The RFRA clarifies the standard for doing so.

Question the Logic
Question the Logic

@Kyle_Wingfield @Question the Logic So what do you suggest the test under a RFRA should be and what do you think the practical outcomes would be? I would suggest that our Constitutions have served us well for a great number of years. I think that the admission on your part that they already protect Freedom of Religion is telling. 

Kyle_Wingfield
Kyle_Wingfield moderator

@Question the Logic I don't have to say what the RFRA test "should be." Congress already established it, and other states have followed suit.

The test is: Does a government law/regulation/action place a "substantial burden" on someone's religious freedom? If so, does that law/reg/action serve a "compelling government interest"? If so, does it serve that interest via "the least restrictive means"?

If the court determines the government meets both of the latter two tests (the first one applies to the claimant), then the claim fails. If not, the claim prevails.

Kyle_Wingfield
Kyle_Wingfield moderator

@Question the Logic "and the affected religious group would win."

You are making a mighty big assumption there. Absent a RFRA law, the court could choose a much lower standard by which it evaluated the government's actions, and the group very well might not win.

Question the Logic
Question the Logic

@Kyle_Wingfield @Question the Logic I know that you pointed out RLUIPA in your article, but then you went on to say if it was something other than land use or zoning a state RFRA would help. Can you provide an example of something in the state that has happened where a state RFRA would change the outcome? You asked another person to provide an example of discrimination utilizing a state RFRA. I ask you, can you provide an example in Georgia of a religious action regulated by the government, that was not related to land use or zoning, which would change under a state RFRA and change in such a manner that it would actually be Freedom of Religion?

Question the Logic
Question the Logic

@Kyle_Wingfield @Question the Logic Actually it is not an assumption at all. It is fact. I guess you have never heard of RLUIPA? Let me help you out. The Religious Land Use and Institutionalized Persons Act applies to state and local governments. It also says that a government action, in the case of land use and zoning, cannot put a "substantial burden" on the religious entity. Additionally, any government action has to serve a "compelling government interest". So, yeah....they would win here. It is not an assumption. Therefore, I must turn it back to you. What purpose would a state RFRA serve?

Kyle_Wingfield
Kyle_Wingfield moderator

@Question the Logic Since you acknowledge I referred to RLUIPA in the post, perhaps now you will acknowledge that I mentioned RFRA as needed for things other than land-use cases, since RLUIPA is limited to those.

You can Google cases in which RFRA has applied just as easily as you Googled RLUIPA.

Kyle_Wingfield
Kyle_Wingfield moderator


@Question the Logic So now you're reduced to acknowledging it's easy to find cases where RFRA has applied, and simply complaining I haven't listed any of them?
I think we've played out this string.

Kyle_Wingfield
Kyle_Wingfield moderator

@Question the Logic "used to create special rules based upon a person's religion"

And there it is.

Thanks for admitting what you really oppose is people exercising their religion in ways you disagree with. Being allowed to exercise it thus amounts, in your view, to "special rules."

We do have a special rule for the religious. It's called the First Amendment.

But as I've pointed out several times today, the First Amendment is not absolute. Courts have to decide how to evaluate competing claims -- such as the one you mention, about animal sacrifice.

Or the use of illegal substances (Native Americans and peyote is one example from the past).

Or a law that wouldn't seem to have anything to do with religion. Such as a city ordinance requiring businesses to be closed on Sunday, which harms Jewish- or Muslim-owned businesses since their holy days each week don't fall on Sunday, and they wouldn't want to have to choose between violating their consciences by being open on Friday or Saturday, or losing business by being closed two days a week.

Or having to buy an insurance plan that must include abortion coverage (states issue insurance mandates, too).

Hundreds of religious-freedom claims have been taken to court over the years, and having a common standard for evaluating them is a good thing. One more time: RFRA doesn't give anyone any rights he didn't have before. It provides a framework for evaluating religious liberty against other rights and government interests.

Kyle_Wingfield
Kyle_Wingfield moderator

@Question the Logic I would add that the fact that not all claims under RFRA are successful is not an indication the law isn't needed. Religious liberty is important enough that it demands a high bar be cleared before it is violated. That doesn't mean the bar is never cleared, or that the law wasn't useful in those cases. Having the bar set high and consistently is important in and of itself.