In September of this year in Sterling Heights, Michigan, the city council voted 9-0 to reject a special use building permit for a mosque in their suburban town. There was a great deal of opposition in the town to the building, and the vote was democracy in action. The only problem is that constitutional rights are restraints on democracy, and this action was almost certainly an unconstitutional act.

The city planner urged the councilmen to reject the plan, because the building would be too big for the land it would occupy compared to the surrounding neighborhood. Another resident said, “I live in the vicinity where they want to build the mosque. It is very, very busy.” Still more residents packed the city council meeting, overflowed into additional buildings, chanted “God Bless America,” and booed the exiting Muslim and civil rights leaders who sought the building permit. Residents who spoke mentioned more about “the people” than they did “the building.” It is neither irrational nor uncharitable to believe that this action was about more than traffic and zoning codes.

The First Amendment states, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof….” The Fourteenth Amendment states “No state shall…deprive any person of life, liberty, or property, without due process of law,” and that includes state and local governments: right down to Sterling Heights, Michigan.

Building a place of worship is unquestionably a central aspect of the “free exercise” of religion. The only question is whether the city council gave due process of law in its rejection of the mosque. The answer to that question is certainly “no.”

To give due process when a city policy curtails a religious practice, the decision must be rational and “neutral and generally applicable.” For example: rejecting a building because it fails the city fire-marshal’s inspection. If a decision targets only one religion and not others, the city must have a compelling reason and narrowly tailor their enforcement to achieve that compelling reason. To translate that legalese, there is very little hope for the city in court if they target one religion and not others.

You can see the location of the proposed mosque in Google Street View right here. Face north and that is the remarkably unspectacular lot on a 4 lane roadway divided by a turn lane. Will the building cause traffic? Yes. Is the road capable of handling this traffic with some basic civil engineering? You tell me. The building was supposed to be 20,000 square feet. If you struggle as I do to realize what that means, take a look at this remarkably unspectacular one-story building that Google says measures 20,000 square feet. The building size shrinks as you add stories. While I’m no engineer, I have a funny feeling that 20,000 is fewer square feet than this other religious building also located in Sterling Heights. Note the four lane highway divided by a turn lane and the surrounding residential area.

Does that decision about “size” and “traffic” look “neutral,” and “generally applicable”? Does it appear that it did not apply to one religion? I don’t think so. Do you?

Those are the facts and the law. But here’s another tried-and-true First Amendment layman’s test: A city council rejects your proposed Baptist church after atheist neighbors complain your steeple is too tall, your building would ruin their sunset view, because your building won’t fit in with the neighborhood, because the church wouldn’t do any good in the neighborhood, and because you need to go “build your church somewhere else.” Is that acceptable?

The First Amendment that protects them also protects you.