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The Official Podcast for the Minnesota Law Review - https://journals.law.umn.edu/mlr
00:00:08:19 - 00:00:38:14
Unknown
Hello and welcome to another episode of Experto Crede the Minnesota Law Review Podcast. I'm your host, Zach Wright, an online editor for volume 105. On this episode, I am joined by Professor Baden, an associate professor of law and the associate director of Civil Rights and Social Justice, Damon J. Keith, center for Civil Rights at Wayne State University Law School. Professor Baden scholarship focuses on national security, Islamophobia, modern policing, and critical race theory.
00:00:38:16 - 00:01:04:36
Unknown
We discuss Professor Biden's article titled On Sacred Land, which analyzes how the Religious Land Use and Institutionalized Persons Act counters land use discrimination against Muslims. The article was published in the Minnesota Law Review in the spring of 2021. I hope you enjoy listening to our conversation as much as I enjoyed having it.
00:01:04:40 - 00:01:31:21
Unknown
Professor Baden, thank you for joining me today. Yeah, thanks so much for having me. Yeah, absolutely. So, you know, as we are want to do on this podcast, I thought I would start with some high level kind of definitions of some key terms that come up a lot in your piece, and we'll come up in our conversation. So the first one of those terms that I was hoping you could kind of define and talk about briefly is land use discrimination.
00:01:31:26 - 00:02:33:43
Unknown
Yeah. Land use discrimination is when a, some, some body of city government engages in whether it be racial, religious, identity based discrimination and extending access to whether it be the whether it be real property or the construction of a building on, on a parcel of land. Perfect. So now I've got two acronyms for you. The first one is Asme, Asme, the anti movement was a sort of political movement that emerged, I would say, in 2010, on the heels of the emergence of the the Tea Party movement, whereby, you know, various political actors, one individual specifically that I identifying the piece, David, you look to pass looked I'm sorry look to push legislation that essentially demonizes
00:02:33:43 - 00:03:09:14
Unknown
Islam under the banner of this these anti bills that were percolating through throughout much of the country. Okay. And this this last acronym, there might be a fun shorthand way to say it, but I'm not familiar. So I have to spell it the RL you IPA. Yeah. Religious land use it incarcerated Persons Act Institutionalized Persons Act is legislation that was enacted in 2000 that looks to address land use discrimination and federal complaints against land use discrimination.
00:03:09:19 - 00:03:42:14
Unknown
You know, extending relief or possible relief to parties, including the subjects of this piece on sacred land, Muslims, to curb the prospect of discrimination and have access to to land. Gotcha. So it kind of sounds like it's it's functioning maybe at the crux of land use discrimination. Assam. Is that fair? Yeah, exactly. So the legislation effectively is is an instrument that aggrieved parties use to cut against land use discrimination.
00:03:42:14 - 00:04:05:24
Unknown
And the land use discrimination that is focal to this piece is the the anti movement, the Assam, which is, you know, a form of, you know, Islamophobia. And maybe we can define that term if you'd like, go for it. Yeah I think it'd be helpful. Yeah. Llama phobia is you know essentially bigotry towards Muslims. And you know Assam.
00:04:05:24 - 00:04:44:26
Unknown
The anti movement is a form of state sponsored Islamophobia that is extended or enforced by way of looking to demonize Muslims and then impair their access to land. Gotcha. Okay. So sorry. Go on. Yeah. So these four different definitions or pieces kind of come together almost a network form to describe what this piece focus is in on. And real quick before we we dive into what the focus of your piece is, I also think it'd be helpful to explore a little bit of the background that kind of led to the development of these, these four things in this moment that your piece focuses on.
00:04:44:26 - 00:05:16:19
Unknown
So, you know, I'd like to ask you a little bit about a case called Employment Division V Smith. Could you talk about the significance of that case? Yeah. Employment Division versus Smith was a was a landmark decision in 1990 which essentially reshapes free exercise of religion jurisprudence. It says that discrimination that is not intentional is not enough to bring forward a claim against a government.
00:05:16:19 - 00:05:49:00
Unknown
So basically as a, as a as a consequence of Smith, you need full fledged intentional discrimination to bring forward the higher burden of proof that is enacted by courts to assess free exercise of religion discrimination. And I suppose that probably wasn't happening to often after that court case came down. Yeah. The before Smith proving a proving activity or state or state action that substantially burdens religion was enough to trigger heightened scrutiny within the courts with regard to free exercise of religion.
00:05:49:04 - 00:06:20:14
Unknown
Smith does away with that. In some ways, it's analogous to the Washington versus Davids case, which puts forward this really difficult standard where plaintiffs or grief parties have to prove intentional discrimination, which, you know, in today's times is really difficult to prove because governments, state actors, individuals, oftentimes guys through animistic guys or discrimination, which makes it really tough to prove intent.
00:06:20:19 - 00:06:59:33
Unknown
And so jumping from a point of vision v Smith, one other I think key piece of background here is the Religious Freedom Restoration Act of 1993. Where does that fit into this kind of background puzzle? Yeah. So, you know, a sense to, you know, attempts at first to broadly cut against the the negative effect that Smith had on aggrieved parties to fight against religious discrimination on the part of state actors and their proxies introduces a substantial burden test in a broad array of different realms.
00:06:59:38 - 00:07:32:04
Unknown
And it's sort of, you know, it's sort of, you know, blazes the trail for Lupa, which is more focused in nature. We're Lupa focus specifically on land use and also discrimination against incarcerated individuals. It's far more narrow than repre, but river becomes sort of the, the, the, the legislative boon that enables the spawn of Lupa in 2000. And there's been a lot of controversy around and specifically these mini bills that are popping up on the on the state level.
00:07:32:07 - 00:08:07:12
Unknown
It's important to know that, you know, this piece on Sacred Land is really interesting because it focuses specifically on land use and land use discrimination. But the bodies of legislation that homes in on are really timely because it's critical to to identify that reference. These mini bills have been used as weapons to legitimize discrimination against sexual minorities. And so there's a lot of opposition against, on grounds of it being a bill that facilitated discrimination against the LGBTQ community.
00:08:07:16 - 00:08:51:50
Unknown
I actually think that's a fantastic transition into looking at a little bit more closely. So, as I understand it, and please feel free to correct me if I'm wrong there sort of protections and then there's some causes of actions. And is that is that right? Yeah. So it has a deterrent effect. So Lupa exists. So it functions as, you know, a you know a signal or a mechanism to state agencies, board commissions, planning commissions, you know, these bodies that assess and green light or restrict building on properties that if you discriminate and we identify that you discriminate, then there might be punitive action taken on, you know, on the part of the DOJ, but
00:08:51:50 - 00:09:21:52
Unknown
it has a proactive sort of arm as well, enabling the DOJ to investigate religious discrimination on the part of those state agencies. And the second, it enables unilateral action on the part of the on the part of the DOJ to bring suit on behalf of aggrieved party. So it has a, you know, multi-dimensional effect deterrent, but also proactive and, you know, in stifling on one end but then fighting against discrimination as well.
00:09:21:57 - 00:09:36:31
Unknown
That seems like a to me. It seems like a very powerful sort of mechanism to being able to the DOJ being able to to bring suit on behalf of these aggrieved parties, especially considering the background of employment Division v Smith.
00:09:36:36 - 00:10:05:52
Unknown
Yeah, definitely. So, you know, and again, I think what is sort of transformative about Lupa is that, you know, you don't have to prove intent. Substantial burden is enough. So substantial burden is, you know, in some respects analogous to, you know, disparate impact in the 14th amendment context or in the title seven context. So it's a lower threshold where if the evidence is persuasive enough that we do have substantial burdening of religious exercise and the DOJ can act.
00:10:05:57 - 00:10:29:12
Unknown
Gotcha. And the the last little piece of background I wanted to cover here was your piece kind of breaks down land use discrimination experienced by Muslims during the time of Lupa and it it into two different pieces. It's like the birth of her Lupa in 2020 ten and then 2010 to present. Could you talk about those two different pieces?
00:10:29:16 - 00:10:48:38
Unknown
Yeah. So, you know, it's interesting. I this is one this is one of the few pieces that I've written. And if you're familiar with my, I guess, broader corpus of work, I write on national security in the war on terror. And I'm critical of state policy because it has an injurious effect on Muslim and marginalized communities in the United States.
00:10:48:38 - 00:11:11:48
Unknown
This this piece was aberration in the sense that I was sort of lauding a piece of state law having a positive effect, but that wasn't the intent of Lupa. Right? We're you know, legislators were championing Lupa in 2000 and recall, right? 2000 was a year before the 9/11 terror attacks and the emergence and expansion of the war on terror in the days after.
00:11:11:52 - 00:11:42:12
Unknown
The objective of wasn't necessarily to sort of vindicate the religious rights of Muslim communities. Right. I think it's important to sort of identify that it didn't have that sort of altruistic aim when it was being spearheaded and then, you know, supported by legislators in 2000, it was supported, ironically enough, by a lot of evangelicals. Southern conservative legislators were more interested in protecting the religious rights of churches, right?
00:11:42:14 - 00:12:18:21
Unknown
Christian groups, specifically in states where, you know, secularism and non religiosity were becoming really popular. So we're Lupa, politically speaking, was was pushed forward to to protect Christian rights. But coincidentally enough it becomes a piece of law that after nine over 11 becomes very potent, becomes very productive in the protection of Muslim rights during an era of unprecedented Islamophobia and anti-Muslim animus.
00:12:18:26 - 00:12:45:16
Unknown
First in, you know, what scholars call the War on Terror decade 2001 to 2010, where you see an unprecedented uptick in hate crimes, hate incidents against Muslim individuals and Muslim communities. But in that same vein, you also see in uptick in land use discrimination against Muslims seeking to build mosques, seeking to build cemeteries, seeking to build religious schools.
00:12:45:21 - 00:13:16:43
Unknown
And that's that's logical, right? Because you would think that land use discrimination would increase at the same rate or as similar rate of hate crimes in eight incidents. So although not intended to be an instrument of religious vindication for Muslims, becomes that in the War on Terror decade, and then becomes even more useful in the following decade where we witness in even a higher uptick in land use discrimination against Muslims from 2010 to 2020.
00:13:16:48 - 00:13:40:31
Unknown
The second decade that you identify. And I think it's actually really interesting. Something else you identify in your piece is, you know, ASM has had differing impacts at maybe the state legislative and local government level versus its discursive impact. Could you could you talk about that? Because I think that ties in really nicely what you were just talking about.
00:13:40:36 - 00:14:09:33
Unknown
Yes. So, you know. Ironically enough, it's kind of it's kind of counterintuitive. You people in what I present this piece that, to law faculties, but also when I present it to, to, to lay audiences, they're really surprised by the fact that land use discrimination against Muslims actually escalated after 2010. You would think that in the immediate wake of the nine over 11 terror attacks, when things were very, you know, when racism and Islamophobia is quite intense, that it would be higher then.
00:14:09:38 - 00:15:01:33
Unknown
And that's why I decided to write, to write this piece. I read a read, a study that showed that discrimination not only discrimination, but the inability to settle cases when involving a muslim party was far higher after 2010 led me to sort of identify what the catalyst of that was, and it was very much this ASM, this anti-Chinese movement that was picking up steam in 2010 and really capitalizing on the anti-Muslim hysteria and Islamophobia that emerged in the War on Terror decade and sort of mutated into a full fledged political movement and then a legislative sort of a movement to push forward bills that essentially cast Islam, the entire religion.
00:15:01:33 - 00:15:37:52
Unknown
And it's critical to identify that Islam is the fastest growing religion in the United States. It's in terms of racial and ethnic demographics, the most diverse faith group in the United States. So this movement, ASM, was looking to brand Islam not only as a religion, but as a political and civilizational movement that was, you know, sort of conspiring to erode American values, you know, threaten American security, becoming not only pervasive in the South, but across the United States.
00:15:37:55 - 00:16:06:12
Unknown
And so the ASM as a movement becomes the spur, the catalyst that leads to an even greater uptick in land use discrimination after 2010. Did it have any success in passing any sort of state legislation? Yeah. So its its success, I think I think in in the piece I measure how it's it's important to sort of identify or qualify what success means with regard to this movement.
00:16:06:14 - 00:16:30:09
Unknown
Right. So you can't measure success. And I think that the, you know, the, the spearhead of the movement, this individual, David Urashima, who wrote the model Bill and who became sort of the political engine behind the movement, even says himself that the real objective here isn't to pass standing legislation. Many states did pass standing legislation. I think the number now might stand at 15.
00:16:30:14 - 00:17:06:33
Unknown
But that's only one sort of metric of success. I think the bigger metric of success is and echoing what he said is he wanted to sort of stage and mainstream a heuristic movement, right? Sort of a, you know, a broader sort of popular narrative in discourse that was not only echoed in, you know, Congresses within the States, but more in media, social media, in communities within households, that anti-social was a threat to the American way of life.
00:17:06:33 - 00:17:43:04
Unknown
So this heuristic objective, I think, was the principal sort of metric of success that Urashima was aiming for. And I think that that me as a scholar when writing this piece was honing in on versus how many pieces of legislation were actually enacted at the state level. And to that measure, it was very successful, I think, because an especially, you know, with early on, the kind of unexpected success of the Tea Party, you know, functions as a boom that pushes the ASM forward.
00:17:43:04 - 00:18:14:02
Unknown
And then obviously, in 2015, with the emergence of Donald Trump, who made Islamophobia full fledged campaign issue, you had an even greater boon that pushes the Assam further, more expansively across the United States. So it was very it was a very successful movement, and I think a very well strategized movement in that it anchored itself the very powerful, powerful political currents, specifically the Trump administration.
00:18:14:07 - 00:18:44:00
Unknown
And I mean, I think it's it's you've just spoken about how broadly influential the Assam movement has been. And I think that something your piece does so well is kind of focus in on how it's impacted land use and has resulted in land use discrimination. And you've included a couple different examples, but one I wanted to talk with you more about today is actually another court case called the United States we call Pepper County.
00:18:44:04 - 00:19:02:07
Unknown
This is I realize it's not the first time I've asked you about a court case, but it is one of the few times myself as a law student can cold call law professor. So I was wondering if you could tell me a little bit, and then we can dive deeper into about the case. United States, we Culpeper County.
00:19:02:12 - 00:19:42:40
Unknown
Yeah. So Culpeper is a small town in Virginia. It's close to Charlottesville, where the University of Virginia seated not too far from Washington, D.C., where you had a small but kind of burgeoning Muslim community that was essentially using a used car lot as a makeshift mosque for a long time. But like many not only Muslim communities, but faith groups across the country that are sort of emerging and galvanizing, what those communities do is tend to they pull their money and they pull their money to build a religious institution that the entire community can benefit from.
00:19:42:40 - 00:20:11:09
Unknown
And that's exactly what happened in Culpeper. So they pulled their money, hadn't raised enough money where they can build an actual formal, standalone mosque. They applied for a license to build a mosque and specifically needed a they needed a septic tank. You know, various city codes require that you meet specific structural benchmarks before you receive a license. And that was sort of, you know, one of the licenses they needed to procure before building.
00:20:11:09 - 00:20:39:19
Unknown
So they followed all the steps, you know, followed protocol, apply for a license for a septic tank. And they were denied by a 3 to 2 board vote. And the organizers of the mosque, community leaders, you know, we're thinking, hey, there's something going on. We followed all the steps. And the history shows that within Culpeper County that there hadn't been many denials, if any denials of these septic tanks.
00:20:39:28 - 00:21:04:00
Unknown
Why are we being denied? What's unique about our claim and our license that that leads you to this sort of unprecedented board vote? Come to find out that you know, Virginia and, you know, it's it's interesting, right? We're kind of living at a time in this country.
00:21:04:04 - 00:21:33:57
Unknown
Hello, and welcome to another episode of the Minnesota Law Review Podcast. I'm your host, Zach Wright, an online editor for volume 105. On this episode, I am joined by Professor Baden, an associate professor of law and the associate director of Civil Rights and Social Justice, Damon J. Keith, center for Civil Rights at Wayne State University Law School. Professor Baden scholarship focuses on national security, Islamophobia, modern policing, and critical race theory.
00:21:34:00 - 00:22:00:19
Unknown
We discuss Professor Biden's article titled On Sacred Land, which analyzes how the Religious Land Use and Institutionalized Persons Act counters land use discrimination against Muslims. The article was published in the Minnesota Law Review in the spring of 2021. I hope you enjoy listening to our conversation as much as I enjoyed having it.
00:22:00:24 - 00:22:27:14
Unknown
Professor Baden, thank you for joining me today. Yeah, thanks so much for having me. Yeah, absolutely. So, you know, as we are want to do on this podcast, I thought I would start with some high level kind of definitions of some key terms that come up a lot in your piece, and we'll come up in our conversation. So the first one of those terms that I was hoping you could kind of define and talk about briefly is land use discrimination.
00:22:27:19 - 00:23:00:40
Unknown
Yeah. Land use discrimination is when a, some, some body of city government engages in whether it be racial, religious, identity based discrimination and extending access to whether it be the whether it be real property or the construction of, you know, a building on, on a parcel of land. Perfect. So now I've got two acronyms for you. The first one is ASEM, Asme.
00:23:00:43 - 00:23:37:26
Unknown
The anti Sheria movement was a sort of political movement that emerged, I would say, in 2010, on the heels of the emergence of the the Tea Party movement, whereby, you know, various political actors, one individual specifically that I identify in the piece, David Shami, looked to pass looked I'm sorry, look to push legislation that essentially demonizes Islam under the banner of this these anti bills that were percolating through throughout much of the country.
00:23:37:31 - 00:24:04:57
Unknown
Okay. And this this last acronym, there might be a fun shorthand way to say it, but I'm not familiar, so I'll have to spell it the UI P.A.. Yeah. Religious land use, an Incarcerated Persons Act, institutionalized Persons Act is legislation that was enacted in 2000 that looks to address land use discrimination and federal complaints against land use discrimination.
00:24:05:02 - 00:24:38:00
Unknown
You know, extending relief or possible relief to parties, including the subjects of this piece on sacred land, Muslims, to curb the prospect of discrimination and have access to to land. Gotcha. So it kind of sounds like it's it's functioning maybe at the crux of land use discrimination. Assam. Is that fair? Yeah, exactly. So we're Lupa. The legislation effectively is is an instrument that aggrieved parties use to cut against land use discrimination.
00:24:38:00 - 00:25:13:21
Unknown
And the language discrimination that is focal to this piece is the the anti movement, the ASM, which is, you know, a form of Islam phobia. And maybe we can define that term if you'd like, go for it. Yeah I think it'd be helpful. Yeah. As is you know essentially bigotry towards Muslims. And you know ASM the anterior movement is a form of state sponsored Islamophobia that is extended or enforced by way of legislation looking to demonize Muslims and then impair their access to land.
00:25:13:26 - 00:25:40:12
Unknown
Gotcha. Okay. So sorry. Go on. Yeah. So these four different definitions or pieces kind of come together almost a network form to describe what this piece focus is in on. And real quick before we we dive into what the focus of your piece is, I also think it'd be helpful to explore a little bit of the background that kind of led to the development of these, these four things in this moment that your piece focuses on.
00:25:40:12 - 00:26:12:02
Unknown
So, you know, I'd like to ask you a little bit about a case called Employment Division V Smith. Could you talk about the significance of that case? Yeah. Employment Division versus Smith was a was a landmark decision in 1990 which essentially reshapes free exercise of religion jurisprudence. It says that discrimination that is not intentional is not enough to bring forward a claim against a government.
00:26:12:02 - 00:26:44:45
Unknown
So basically, as a as a consequence of Smith, you need full fledged intentional discrimination to bring forward the higher burden of proof that is enacted by courts to assess free exercise of religion discrimination. And I suppose that probably wasn't happening to often after that court case came down. Yeah. The before Smith proving a proving activity or state or state action that substantially burdens religion was enough to trigger heightened scrutiny within the courts with regard to free exercise of religion.
00:26:44:52 - 00:27:15:50
Unknown
Smith does away with that. In some ways, it's analogous to the Washington versus Davis case, which puts forward this really difficult standard where plaintiffs or aggrieved parties have to prove intentional discrimination, which, you know, in today's times is really difficult to prove because governments, state actors, individuals oftentimes guys through animus, they guys are discrimination, which makes it really tough to prove intent.
00:27:15:55 - 00:27:55:16
Unknown
And so jumping from a point of vision V Smith. One other I think key piece of background here is the Religious Freedom Restoration Act of 1993. Where does that fit into this kind of background puzzle? Yeah. So, you know, a sense to, you know, attempts at first to broadly cut against the the negative effect that Smith had on aggrieved parties to fight against religious discrimination on the part of state actors and their proxies, introduces a substantial burden test in a broad array of different realms.
00:27:55:21 - 00:28:27:55
Unknown
And it's sort of, you know, it's sort of, you know, blazes the trail for a loop which is more focused in nature, focus specifically on land use and also discrimination against incarcerated individuals. It's far more narrow than. But reefer becomes sort of the the, the legislative boon that enables the spawn of in 2000. And there's been a lot of controversy around and specifically these many that are popping up on on the state level.
00:28:28:00 - 00:28:52:33
Unknown
It's important to know that, you know, this piece on Sacred Land is really interesting because it focuses specifically on land use and land use discrimination. But the bodies of legislation that homes in on are really timely because it's critical to identify that reference. Specifically, these mini referral bills have been used as weapons to legitimize discrimination against sexual minorities.
00:28:52:38 - 00:29:16:28
Unknown
And so there's a lot of opposition against, on grounds of it being a bill that facilitated discrimination against the LGBTQ community. I actually think that's a fantastic transition into looking at a little bit more closely. So, as I understand it, and please feel free to correct me if I'm wrong there sort of protections and then there's some causes of actions.
00:29:16:28 - 00:29:57:24
Unknown
And is that is that right. Yeah. So it has a deterrent effect. So loop exists. So it effectively functions as you know a you know a signal or a mechanism to state agencies, board commissions, planning commissions, you know, these bodies that assess and green light or restrict building on properties that if you discriminate and we identify that you discriminate, then there might be punitive action taken on, you know, on the part of the DOJ, but it has a proactive sort of arm as well, enabling the DOJ to investigate religious discrimination on the part of those state agencies.
00:29:57:24 - 00:30:28:50
Unknown
And the second, it enables unilateral action on the part of the on the part of the DOJ to bring suit on behalf of aggrieved party. So it has a, you know, multi-dimensional effect deterrent, but also proactive and, you know, in stifling on one end but then fighting against discrimination as well. That seems like a to me, seems like a very powerful sort of mechanism to being able to the DOJ being able to to bring suit on behalf of these aggrieved parties, especially considering the background of employment.
00:30:28:50 - 00:30:32:14
Unknown
Division B Smith.
00:30:32:19 - 00:31:01:36
Unknown
Yeah, definitely. So, you know, and again, I think what is sort of transformative about is that, you know, you don't have to prove intent. Substantial burden is enough. So substantial burden is, you know, in some respects analogous to, you know, disparate impact in the 14th amendment context or in the title seven context. So it's a lower threshold where if the evidence is persuasive enough that we do have substantial burdening of religious exercise and the DOJ can act.
00:31:01:40 - 00:31:24:55
Unknown
Gotcha. And the the last little piece of background I wanted to cover here was your piece kind of breaks down land use discrimination experienced by Muslims during the time of Lupa and it into two different pieces. It's like the birth of her Lupa in 2020 ten and then 2010. To present. Could you talk about those two different pieces?
00:31:25:00 - 00:31:44:21
Unknown
Yeah. So, you know, it's it's interesting. I this is one this is one of the few pieces that I've written. And if you're familiar with my, I guess, broader corpus of work, I write on national security in the war on terror. And I'm critical of state policy because it has an injurious effect on Muslim and marginalized communities in the United States.
00:31:44:21 - 00:32:13:55
Unknown
This this piece was aberration in the sense that I was sort of lauding a piece of state law having a positive effect. But that wasn't the intent of Lupa. Right? We're you know, legislators were championing Lupa in 2000 and recall, right? 2000 was a year before the 9/11 terror attacks and the emergence and expansion of the war on terror in the days after the the objective of wasn't necessarily to sort of vindicate the religious rights of Muslim communities.
00:32:13:57 - 00:32:47:14
Unknown
Right. I think it's important to sort of identify that it didn't have that sort of altruistic aim when it was being spearheaded and then, you know, supported by legislators in 2000, it was supported, ironically enough, by a lot of evangelicals. Southern conservative legislators were more interested in protecting the religious rights of churches, right? Christian groups, specifically in states where, you know, secularism and non religiosity were becoming really popular.
00:32:47:14 - 00:33:28:57
Unknown
So were Lupa, politically speaking, was was pushed forward to, to protect Christian rights. But coincidentally enough, it becomes a piece of law that after nine over 11 becomes very potent, becomes very productive in the protection of Muslim rights during an era of unprecedented Islamophobia and anti-Muslim animus. First, in, you know, what scholars call the War on Terror decade 2001 to 2010, where you see an unprecedented uptick in hate crimes, hate incidents against Muslim individuals and Muslim communities.
00:33:29:02 - 00:34:15:45
Unknown
But in that same vein, you also see in uptick in land use discrimination against Muslims seeking to build mosques, seeking to build cemeteries, seeking to build religious schools. And that's that's logical, right? Because you would think that land use discrimination would increase at the same rate or a similar rate of hate crimes and eight incidents. So although not intended to be an instrument of religious vindication for Muslims, becomes that in the War on Terror decade, and then becomes even more useful in the following decade, where we witness in even a higher uptick in land use discrimination against Muslims from 2010 to 2020, the second decade that you identify.
00:34:15:50 - 00:34:39:52
Unknown
And I think it's actually really interesting. Something else you identify in your piece is, you know, ASM has had differing impacts at maybe the state legislative and local government level versus its discursive impact. Could you could you talk about that? Because I think that ties in really nicely what you were just talking about. Yes. So, you know. Ironically enough, it's kind of it's kind of counterintuitive.
00:34:39:55 - 00:35:05:19
Unknown
You people in what I present this piece that to law faculties, but also when I present it to, to to lay audiences, they're really surprised by the fact that land use discrimination against Muslims actually escalated after 2010. You would think that in the immediate wake of the 9/11 terror attacks, when things were very, you know, when racism and Islamophobia is quite intense, that it would be higher than.
00:35:05:24 - 00:35:57:16
Unknown
And that's why I decided to write, to write this piece. I read a read, a study that showed that discrimination not only discrimination, but the inability to settle cases when involving a muslim party was far higher after 2010 led me to sort of identify what the catalyst of that was, and it was very much this ASM, this anti-Chinese movement that was picking up steam in 2010 and really capitalizing on the anti-Muslim hysteria and Islamophobia that emerged in the War on Terror decade and sort of mutated into a full fledged political movement and then a legislative sort of movement to push forward bills that essentially cast Islam, the entire religion.
00:35:57:16 - 00:36:33:36
Unknown
And it's critical to identify that Islam is the fastest growing religion in the United States. It's in terms of racial and ethnic demographics, the most diverse faith group in the United States. So this movement, ASM, was looking to brand Islam not only as a religion, but as a political and civilizational movement that was, you know, sort of conspiring to erode American values, you know, threaten American security, becoming not only pervasive in the South, but across the United States.
00:36:33:38 - 00:37:01:57
Unknown
And so the ASM as a movement becomes the spur, the catalyst that leads to an even greater uptick in land use discrimination after 2010. Did it have any success in passing any sort of state legislation? Yeah. So its its success, I think I think in in the piece I measure how it's it's important to sort of identify or qualify what success means with regard to this movement.
00:37:02:00 - 00:37:26:02
Unknown
Right. So you can't measure success. And I think that the, you know, the, the spearhead of the movement, this individual, David Urashima, who wrote the model Bill and who became sort of the political engine behind the movement, even says himself that the real objective here isn't to pass standing legislation. Many states did pass standing legislation. I think the number now might stand at 15.
00:37:26:07 - 00:38:02:16
Unknown
But that's only one sort of metric of success. I think the bigger metric of success is and echoing what he said is he wanted to sort of stage and mainstream a heuristic movement, right? Sort of a, you know, a broader sort of popular narrative in discourse that was not only echoed in, you know, Congresses within the States, but more in media, social media, in communities within households, that anti-social was a threat to the American way of life.
00:38:02:16 - 00:38:38:48
Unknown
So this heuristic objective, I think, was the principal sort of metric of success that you was aiming for. And I think that that me as a scholar, when writing this piece was honing in on versus how many pieces of legislation were actually enacted at the state level. And to that measure, it was very successful, I think, because especially, you know, with early on, the kind of unexpected success of the Tea Party, you know, functions as a boom that pushes the ASM forward.
00:38:38:48 - 00:39:09:36
Unknown
And then obviously, in 2015, with the emergence of Donald Trump, who made Islamophobia full fledged campaign issue, you had an even greater boon that pushes the Assam further, more expansively across the United States. So it was very it was a very successful movement, and I think a very well strategized movement in that it anchored itself, the very powerful, powerful political currents, specifically the Trump administration.
00:39:09:40 - 00:39:39:48
Unknown
And I mean, I think it's it's you've just spoken about how broadly influential the Asme movement has been, and I think that something your piece does so well is kind of focus in on how it's impacted land use and has resulted in land use discrimination. And you've included a couple of different examples, but one I wanted to talk with you more about today is actually another court case called the United States v Culpeper County.
00:39:39:52 - 00:39:57:50
Unknown
This is I realize it's not the first time I've asked you about a court case, but it is one of the few times myself is a law student can cold call a law professor. So I was wondering if you could tell me a little bit, and then we can dive deeper into about the case. United States, we Culpeper County.
00:39:57:55 - 00:40:38:24
Unknown
Yeah. So Culpeper is a small town in Virginia. It's close to Charlottesville, where the University of Virginia seated not too far from Washington, D.C., where you had a small but kind of burgeoning Muslim community that was essentially using a used car lot as a makeshift mosque for a long time. But like many not only Muslim communities, but faith groups across the country that are sort of emerging and galvanizing, what those communities do is tend to they pull their money and they pull their money to build a religious institution that the entire community can benefit from.
00:40:38:24 - 00:41:06:55
Unknown
And that's exactly what happened in Culpeper. So they pulled their money, hadn't raised enough money where they can build an actual formal, standalone mosque. They applied for a license to a mosque and specifically needed a they needed a septic tank. You know, various city codes require that you meet specific structural benchmarks before you receive a license. And that was sort of, you know, one of the licenses they needed to procure before building.
00:41:07:02 - 00:41:35:02
Unknown
So they followed all the steps you follow protocol, apply for a license for a septic tank. And they were denied by a 3 to 2 board vote. And the the organizers of the mosque community leaders, you know, we're thinking, hey, there's something going on. We followed all the steps. And the history shows that within Culpeper County that there hadn't been many denials of any denials of these septic tanks.
00:41:35:09 - 00:41:57:33
Unknown
Why are we being denied what's unique about our claim and our license that that leads you to this sort of unprecedented board vote? Come to find out that you know, Virginia and, you know, it's it's interesting, right? We're kind of living at a time in this country where states are shifting in terms of their politics. But it's also critical to know that, you know, states aren't politically monolithic.
00:41:57:33 - 00:42:24:14
Unknown
I think you know that in Minnesota, the Twin Cities be very liberal. And, you know, it's out of the Twin Cities. Things can get quite conservative. That in some respects is true for Virginia, where the southern part of the state, kind of beyond the metro DMV area, can kind of turn red. And pepper is one of these places that not only turns red, but where the anti-satellite bills that were introduced were quite resonant.
00:42:24:14 - 00:42:27:52
Unknown
And.
00:42:27:57 - 00:42:56:21
Unknown
Virginia was a place where you had four of these anti bills being introduced over the during the last couple of years, sort of the broader temporal context in which this Muslim community applied for a septic tank license. So when the community learned about these Muslims objective to build a mosque, the residents sort of organized, right? The residents, the non-Muslim residents, the community.
00:42:56:24 - 00:43:36:36
Unknown
There was a barrage of phone calls, emails from residents, complaints from individuals in the community to effectively lobby the board to deny their license. And the board capitulated to that public pressure. And it kind of functions almost kind of, you know, what I call it in the pieces of popular covenant, right? This is the community, the sort of broader populace in the area mobilizing and then galvanizing to fight against the construction of an institution that is completed with terror, with suspicion within a similar.
00:43:36:40 - 00:44:14:40
Unknown
And the board effectively capitulated and gave in to the discriminatory tide coming from the city as a consequence of what was pretty patent in terms of this qualifying religious discrimination, the DOJ threw a file suit right through a federal court order and then relief and then delivers relief. Right. There's there's a positive conclusion to the DOJ suit. The conclusion was delivery of the permit to build the mosque in addition to delivery of the permit.
00:44:14:45 - 00:44:40:12
Unknown
What's really sort of impactful beyond just sort of prescription with the is that also mandates religious sensitivity, sensitivity trainings, trainings that the board has to go through, and then a monitoring of city records moving ahead. So it has a the Culpeper case is to kind of put a cap on it. Sorry if I'm speaking to. Oh no. No, not at all.
00:44:40:16 - 00:45:14:26
Unknown
To put a cap on it. The solution is to fold, right. It kind of has like a direct solution prescription, because delivery of the permit enables the Muslim community to build their mosque. And that mosque is currently standing today in the city of Culpeper. But it also kind of has a perspective prescription also, and that it looks to prevent future religious discrimination by mandating these trainings and monitoring of city records to stifle or, you know, again, prevent the prevent the prospect of this kind of thing happening again, not only to Muslim groups.
00:45:14:28 - 00:45:45:00
Unknown
Right. So let's say if a Jewish community wanted to build a synagogue in Culpeper, a Hindu group wanted to build a temple. These were Lupa trainings in DOJ monitoring essentially put the city on notice that we know what's going on. You have this stigma, you know, branded, branded against you that if you engage in like discrimination moving ahead, Lupa will be enforced to protect these communities.
00:45:45:04 - 00:46:13:26
Unknown
Has there been any sort of ASM backlash to lupus, given that, you know, you spoke at the beginning of our conversation, the proponents of maybe weren't museum people or Lupa wasn't intended to benefit Muslims exclusively by any means. Has there been sort of a backlash to Lupa being so effective? No, because I think the best way to sort of think about it is the Muslim beneficiaries were not intended, but it's a windfall.
00:46:13:31 - 00:46:44:21
Unknown
And I think that, you know, there's broad sort of, you know, especially popular and lay consciousness conceives of and frames Lupa as a sort of a Christian centric piece of legislation. Right. Very few people know within, you know, the I think the popular even I think the, the broader political sphere that Lupa has been an instrument that has benefited Muslims, that's been, you know, sort of marginalized within the broader consciousness, which is why I wrote this piece.
00:46:44:24 - 00:47:22:09
Unknown
Right. I wanted to tell the subaltern and, you know, fringe story about a piece of legislation that was benefiting Muslims that nobody really knew about, aside from aggrieved parties. And aside from a handful of DOJ lawyers who were bringing forward these suits. But ironically enough, much of the opposition to to Lupa has been, you know, advocates of, I think because much of this is also because we're Lupa has been, you know, in some respects unfairly conflated with, you know, them being both branded sort of religious protection statutes.
00:47:22:09 - 00:47:31:57
Unknown
Much of the opposition has been from the left, ironically enough, and specifically advocates of sexual minority rights.
00:47:32:02 - 00:47:55:12
Unknown
That's actually, again, a fantastic transition, because I know you mentioned that kind of the scope of victims to the religious animus that drives discrimination isn't limited to minority faith groups, but also kind of racial, sexual minority groups. Could you talk a little bit more about how Muslims and other victimized groups could coordinate or have coordinated or don't coordinate to kind of move forward or benefit from the Lupa?
00:47:55:16 - 00:48:21:12
Unknown
Yeah, that's and that's been the trickiest part of this, honest with you. Because, you know, it's kind of being supportive of a piece of legislation. And as a consequence of that support having really awkward bedfellows. Right. So, you know, you know, again, I'm somebody who tends to be more progressive, and I'm supporting a piece of legislation that has been championed by conservative, if not far right.
00:48:21:16 - 00:48:52:55
Unknown
You know, elements. And I've been on panels when presenting this piece where, you know, there have been scholars who are concerned with sexual minorities, LGBTQ rights, who are, you know, critical and justifiably critical against in religious freedom statutes like Lupa. Right. So I, I definitely, you know, echo their criticism, but also, you know, kind of the broader political context tied to these bills that sort of inspires your criticism.
00:48:53:00 - 00:49:23:52
Unknown
But yeah, you know, when writing this piece and thinking about where this piece is situated within the broader religious freedom debate scholarship, I was really mindful to, you know, be sensitive to the claims of sexual minorities with regard to, you know, countering the negative effect of these religious freedom statutes, specifically the many rivers popping across the states.
00:49:23:57 - 00:49:53:48
Unknown
And I was also mindful of at least initiating a discussion, which is why the last section in this piece on Sacred Land, which looks to, you know, at least initiate, you know, a conversation as to how Muslim communities can align themselves strategically with sexual minority communities to fight against, you know, kind of the same, the same political elements that are Islamophobic but also homophobic, because these are same actors who espouse those views.
00:49:53:48 - 00:50:13:14
Unknown
And oftentimes religious minorities and sexual minorities are victim to far right movements. I don't have the answers with this piece. Right. I'm still thinking about what those answers might be, and I'm looking forward to engage more fully with scholars who write about those issues. But I at least wanted to say this piece to say that although Muslims are benefiting from.
00:50:13:19 - 00:50:38:12
Unknown
I'm also conscious of the fact that religious freedom statutes have been used as weapons, you know, against vulnerable groups, including sexual minorities. But, you know, again, I don't have the answers as of yet, but I'm hoping to sort of be part of collectives and collaboratives to identify what those answers might be. I think that's excellent. So I guess you spoke again at the beginning about how is pretty narrowed.
00:50:38:14 - 00:51:06:12
Unknown
Is it fair to say that Lupa excels at what it was maybe intended to do, which was to address land use discrimination? I think so, I think I think one of its greatest attributes is that it's narrow, right? And by virtue of it being narrow, it can't be weaponized and it can't be distorted by elements that look to use religious or protections against religious discrimination to engage in proactive, let's say, homophobic discrimination the way that can.
00:51:06:14 - 00:51:23:12
Unknown
Right? I think I think rephrased breadth and that it applies to so much, you know, makes it a more sort of dangerous bludgeon for nefarious elements, to use it as a legal and a political tool to sort of.
00:51:23:16 - 00:51:55:07
Unknown
Mutate what might look like religious protection to actually be, same sex discrimination. It's tough to do that with Lupa, right? Because it's narrowed to two specific realms land use and then protection of incarcerated individuals, free exercise rights. So I think I think that's I think what you said is exactly true. The fact that it's so narrowly tailored makes it makes it more effective with its principal objectives on one hand.
00:51:55:09 - 00:52:17:33
Unknown
But it also, I think, makes it less cooperative than referenda mini reference. That's kind of keeping keeping your eyes looking forward here. My my final question for you is pretty open ended. But you know, where do you see Lupa going from here? Do you see it moving? Do you see it staying the same? Just any thoughts on that?
00:52:17:38 - 00:52:56:40
Unknown
It's tough to gauge. You know, I think I think it's tough to gauge, you know, and much of it is contingent with the political elements in power. I think in some respects, one of the one of the greatest sort of positives associated with rule is that's kind of flown under the radar. Right? It's not a piece of legislation that has garnered a lot of popular, you know, attention, and it hasn't caused the same kind of debate and opposition as and by virtue of it sort of being less cognizable, politically speaking, I kind of see it being steadfast in place in the near future.
00:52:56:43 - 00:53:26:26
Unknown
Now, one possible risk is, and I think one thing that, that I've identified, especially when discussing Lupa with journalists or various media outlets or with lay audiences, is there is this tendency and perhaps a political sort of movement to conflate it with riffraff? And one possible fear is that if opposition to refer on these many reference leads to conflating it was, then it possibly can be threatened.
00:53:26:31 - 00:53:53:10
Unknown
I don't see that being the case, but that's something I'm sort of paying attention to. Professor Baden, thank you so much for joining me today. No, thanks so much for having me. And I'm really excited to see this piece published by the Minnesota Law Review. And I really enjoyed working with you and your colleagues during the life of the editing process.
00:53:53:15 - 00:54:16:38
Unknown
The podcast is the official podcast of the Minnesota Law Review, a student run law review published by students at the University of Minnesota Law School for current and past issues. And for more information, visit Minnesota Law Review. The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by, the University of Minnesota.
00:54:16:40 - 00:54:23:12
Unknown
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