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On Sacred Land

By Khaled A. Beydoun. Full Text. 

From 2010 through the present, land-use discrimination against Muslims marked a prolific uptick—sixty percent greater than that of the post-9/11 period. Most startlingly, only twenty percent of Muslim land use disputes were resolved without a federal suit, compared to eighty-four percent of suits involving a non-Muslim claimant. This highlights the staunch resistance many local governments have against the creation of mosques and other Muslim institutions and how the Religious Land Use and Institutionalized Person’s Act (RLUIPA) counters this form of religious discrimination during an era of shrunken judicial protection following Employment Division v. Smith.

The Anti-Sharia Movement (ASM), which also emerged in 2010, casts Islam as un-American and Muslim institutions as symbols of threat. It endorses these fears through legislation introduced at the state level. This Article ties the rise in Muslim land use discrimination to the projective influence of the ASM on local governments. It makes three entwined arguments: first, that the discriminatory posture of municipal governments toward Muslim land use requests is shaped by the local effect of the ASM; second, that RLUIPA enforcement not only overrides discriminatory denials of Muslim land use requests but restores collective and collateral rights to Muslim communities by facilitating the creation of institutions vital for religious expression; and third, that RLUIPA relief retrenches the municipal entanglement of the ASM by imposing penalties, which have a deterrent effect on prospective discrimination against Muslims within the land use realm and beyond.

This analysis follows with proposals aimed at enhancing RLUIPA’s capacity to protect Muslims, and other religious minority groups, from land use discrimination during a moment of rising racial and religious animus. Looking ahead, this Article is also concerned with the other side of the religious freedom debate. And, from the vantage point of the establishment clause, it concludes with an appeal for coordinated strategies by vulnerable religious minority and LGBTQ groups—common targets of movements that wield religious freedom as a basis for discrimination.