Discriminating Against the Dead: How to Protect Muslim Cemeteries from Exclusionary Land Use Mechanisms

Abstract

U.S. Muslims face virulent, entrenched opposition in constructing the cemeteries that allow them to bury their dead according to Islamic law and tradition. Despite state and federal laws designed to guard against acts of religious discrimination such as the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”), local governments impede Muslim cemetery constructions via zoning ordinances and adjudicative permit denials. As a result of these efforts, Muslims experience unfair discrimination as local land control bodies unduly delay or block their attempts to build cemeteries. To better protect Muslims’ rights in land use disputes, this Note advocates for amendments to RLUIPA’s key provisions, namely, adding a definition of “substantial burden,” delineating what land uses constitute “religious exercise,” and creating measures to punish discriminatory action by local governments.