Recently, we reported that Bernards Township, New Jersey (the “Township”) had invited the Islamic Society of Basking Ridge (“ISBR”) to resubmit an application to develop a mosque. Previously, the Township denied the Islamic Society’s application for a 4,250 square foot mosque after more than 39 public hearing sessions over the course of about 4 years.  Our previous posts regarding the controversy are available here, here, and here.

ISBR’s case has garnered significant media attention in the last few weeks. One reason why may be that almost 50 Township residents received subpoenas in connection with the action. The 112-page complaint contains pages of allegations of “Community Opposition and Anti-Muslim Animus.” Community opposition and individual residents’ blatant animus have supported, at least at the summary judgment stage, a plaintiff’s RLUIPA and constitutional challenges. (See, for example, the decision in and our commentary regarding, a lawsuit against Bridgewater, NJ, which settled for $7.75 Million.) (For more information and another example, scroll to page 7 here.)

Another reason for the attention may be that an unusually large number of amici joined together in filing a friend of the court brief in support of ISBR.  According to the opening lines of the brief: “Amici are religious, legal, and civil liberties organizations concerned that the Religious Land Use and Institutionalized Persons Act (RLUIPA) be accurately interpreted and that constitutional rights be fully enforced.”

Amici include: American Association of Jewish Lawyers and Jurists, Baptist Joint Committee for Religious Liberty, Becket Fund for Religious Liberty, Center for Islam and Religious Freedom, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Interfaith Coalition on Mosques, International Mission Board of the Southern Baptist Convention, International Society for Krishna Consciousness, Muslim Bar Association of New York, National Asian Pacific American Bar Association, National Association of Evangelicals, New Jersey Muslim Lawyers Association, Queens Federation of Churches, Sikh American Legal Defense and Education Fund, Sikh Coalition, South Asian Bar Association of New Jersey, South Asian Bar Association of New York, and Unitarian Universalist Legislative Ministry of New Jersey.

Members of the above list are also joined by a number of individual amici. In their brief, the amici urge the court “to grant Plaintiffs’ 12(c) motion for partial judgment on the pleadings because Defendants have improperly applied different legal standards to a mosque simply because it is a mosque.”

The amici brief first addresses why Congress passed RLUIPA and relies on quotes from the Congressional Record and several RLUIPA cases to explain why “land-use regulation can threaten religious liberty.”  Next, the brief argues that the defendants have violated each of the three RLUIPA Nondiscrimination provisions: Section 2(b)(1)’s  “equal terms” provision; Section 2(b)(2)’s denominational discrimination provision; and Section 2(b)(3)’s total exclusions provision. Since the Township required more than double the amount of parking usually required for other applicants, the amici argue, ISBR was treated worse than other land use applicants “precisely because it is a mosque.”  Finally, the amici argue that the Township’s Parking Ordinance is unconstitutionally vague because it “leaves the parking ratio determination open-ended, subjecting applicants to the unfettered will of the Planning Board.”

The amici correctly note that the Third Circuit treats RULIPA’s Equal Terms provision as including a strict liability standard—if religious uses are treated less favorably, such diversity in treatment cannot be justified by a narrowly tailored, compelling government interest.  (See Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir. 2007)).  Readers should note, however, this view has not been adopted in other circuits.

Original photography by Wilson Salvador some rights reserved