Perhaps the most devastating argument against conservatives who advocate blocking the attempt to use a building in lower Manhattan as a mosque and an Islamic cultural center in lower Manhattan is that they are advocating for a violation of First Amendment religious liberty rights. So, in the last few days Rush Limbaugh and the Southern Baptist Convention's Richard Land have both attempted to argue that the Constitution is not implicated because no one has the right to build a religious institution wherever they want; rather people must abide by zoning laws and the like. In fact, the Supreme Court has held that the religious discrimination that Limbaugh and Land are advocating is unconstitutional.

Land stated on Public Radio International's To the Point that people “do have the right to have these mosques. Now, they don't have the right to have them any particular place they want them. You know, the Supreme Court in the [City of] Boerne [v. Flores] decision said that a Catholic church couldn't expand because of the objections of the historical district that it would bother the historical nature of the town square in Boerne.” Similarly, on his radio show, Limbaugh cited zoning laws and said “If you're going to bring the First Amendment into it, that's where your argument's going to fall apart. There are 23 mosques in New York. The government -- the Constitution does not guarantee you can put your church anywhere you want it. It just says you cannot be denied the practice of worship.”

Limbaugh's and Land's argument is riddled with holes. The most obvious flaw -- but by no reason the only one -- is that the New York City Landmarks Commission has said that New York land use laws do not prevent the use of the building in question as a mosque and Islamic community center.

But equally important, conservatives are arguing for religious discrimination, which is unconstitutional and illegal under federal law. Let's not kid ourselves into thinking that these people would fight against other uses of the building. The conservative objections would disappear if, instead of a mosque, the building were turned into a church, a synagogue, or even a shopping mall. And the Supreme Court has made clear that while states and localities don't need to make exceptions to their land use laws to accommodate religious institutions, they can't actively discriminate on the basis of religion either.

Land is correct that the Supreme Court held in City of Boerne v. Flores that the Constitution and federal laws did not prevent a city from using its zoning laws to block the expansion of a Catholic church. In Boerne, the Supreme Court reaffirmed its holding in Employment Division v. Smith that states can apply “neutral laws of general applicability” to everyone even if those laws create a “substantial burden” on certain people's religious practices.

But Land and Limbaugh aren't arguing for generally applying neutral zoning laws in this case. They are arguing that New York should block the use of the building as a mosque specifically because it's a mosque. Again, they certainly wouldn't have a problem if the building in question was to be used for a church or synagogue. And in Smith, the Supreme Court made clear that the government is not allowed to discriminate against religious beliefs.

In Smith, the Supreme Court majority opinion, written by Justice Antonin Scalia, stated: “Just as we subject to the most exacting scrutiny laws that make classifications based on race, see Palmore v. Sidoti, supra, or on the content of speech, see Sable Communications, supra, so too we strictly scrutinize governmental classifications based on religion.” In plain language, Scalia is saying, just as intentional discrimination on the basis of race is almost certain to be unconstitutional, so is intentional discrimination based on religion.

Given that Scalia analogized religious discrimination to discrimination on the basis of race, the words of the 1886 case of Yick Wo v. Hopkins, an Equal Protection Clause case dealing with race discrimination are relevant. Yick Wo dealt with a San Francisco zoning ordinance that was used to discriminate against Chinese-Americans. The law in question didn't explicitly discriminate, but the evidence showed that the law was used to deny Chinese-Americans the power to open businesses, but was not used against white-owned businesses. The Supreme Court said:

Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.

Furthermore, the New York Court of Appeals -- New York State's highest court -- has itself cautioned against using zoning laws to discriminate against religious institutions.

As we've noted, in the 1950s, the village of Sand Points, New York, tried to block the conversion of a property to a synogoue on the basis of zoning laws. Their arguments under the zoning laws were pretty flimsy and the Court of Appeals in Community Synagogue v. Bates reversed the village's decision. And the court included a strong affirmation of religious freedom as part of its decision:

The position of the Village, as stated clearly in its brief (pp. 12-14) is that the board of appeals, under the provisions of the ordinance here, should have the power to deny an application for the location of a church at a “precise spot”. This would not, of course, prohibit the use, erection, alteration or improvement of buildings or structures for churches and synagogues, in municipalities such as the intervenor, but would limit it. While many may be tempted to think that the solution offered by the [Village] is excellent, when one thinks it through one realizes that, if the municipality has the unfettered power to say that the “precise spot” selected is not the right one, the municipality has the power to say eventually which is the proper “precise spot”. That, we all can see is the wrong solution. The men and women who left Scrooby for Leyden and eventually came to Plymouth in order to worship God where they wished and in their own way must have thought they had terminated the interference of public authorities with free and unhandicapped exercise of religion. We think that we should accept the fact that we are the successors of “We, the people” of the Preamble to the United States Constitution and that a court may not permit a municipal ordinance to be so construed that it would appear in any manner to interfere with the “free exercise and enjoyment of religious profession and worship”.

In addition, the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) strongly limits the power of state and local zoning boards to impose burdens on religious institutions. That statute provides that a state may not use there zoning laws to impose a “substantial burden” that affect interstate commerce on the religious exercise of a person or religious institution unless there is a compelling government interest for the state's actions. It also prohibits discrimination against religious institutions. From the statute:

(a) Substantial burdens

(1) General rule

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution --

(A) is in furtherance of a compelling governmental interest; and

(B) is the least restrictive means of furthering that compelling governmental interest.

(2) Scope of application

This subsection applies in any case in which --

(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;

(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or

(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.

(b) Discrimination and exclusion

(1) Equal terms

No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.

(2) Nondiscrimination

No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.

(3) Exclusions and limits

No government shall impose or implement a land use regulation that --

(A) totally excludes religious assemblies from a jurisdiction; or

(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.