The city of Hamtramck, Michigan has decided to permit a mosque to broadcast by loudspeaker the "Muslim call to prayer" 5 times a day. Below is an excerpt (with link) from a CBS article describing the issues this has raised:

CBS/AP) Long known for pierogi and polka, the bustling city of Hamtramck, Mich., is now debating whether to add an amplified Arabic chant to the local sights and sounds.

In a sign of the deep changes in this once predominantly Polish town, the City Council is expected Tuesday to pass a noise ordinance amendment that would permit mosques to issue the traditional Islamic call to prayer over loudspeakers.

But some longtime residents are resisting what they consider an affront to non-Muslims.

Hamtramck, a city of 23,000 completely surrounded by Detroit, has an old-fashioned, small-town feel, with mom-and-pop stores and American flags adorning many of the tightly packed houses. Polish groceries and restaurants abound, and if you stop someone to ask for directions, there is a good chance that person speaks only Polish.

But in recent years, the city has become much more diverse. Stores selling saris and halal meat have opened, and signs in Bengali, Arabic and Bosnian compete with signs in Polish and English. Only 23 percent of the city's residents specified Polish ancestry in the 2000 census. The town also has a sizable black population — 15 percent.

The relationship between old Hamtramck and new Hamtramck has not been without friction. On Election Day in 1999, members of a residents group questioned would-be voters of Middle Eastern or Asian appearance on their eligibility to vote. In response to complaints of discrimination, the Justice Department sent monitors during local elections in 2001.

Now the request by the Bangladeshi al-Islah mosque for permission to air the Arabic call to prayer via loudspeakers five times a day has again revealed tensions

For the rest of the story:
http://www.cbsnews.com/stories/2004/04/20/...ain612805.shtml

(1) Question for debate: Has the city of Hamtramck violated the Establishment Clause of the first amendment in permitting the call to prayer to be broadcast 5 times daily in the city of Hamtramck?

(2) Question for debate: Would the city's refusal to allow the call to prayer constitute a violation of the Free Exercise clause of the first amendment?

I think the best parallel here is a sign ordinance. Has someone's freedom of speech been denied because he can't build the size of a sign at the elevation they wanted to get the most people to see his message?

At first glance this appears to be about noise. The town is not sponsoring the Muslim faith, but it is responded to a request from one of its largest (if not the largest) communities. At issue is how loud should the call to prayer be.

Had the town explicitly prohibited calls to prayer from Mosques I would say that the Muslim's of Hamtramck would have had their Constitutional protections violated.

Actually, it is possible to ignore a sign. This is a million times worse. You can't turn away from sound, like you can from a sign.

Has anyone here (I know most of the military people here had) ever had to endure the Muslim call to prayer? When I was in the Air Force and got deployed to Saudi Arabia, I had the "pleasure" of hearing it at 5:00am every single day as I was leaving to work. It is like all the cats of the world are getting raped simultaneously. There is NO reason why the whole city should have to hear this. Can they really not keep the sound contained to the mosque? Or let's all play the game of "Who can pray loudest".

I think there are two major distinctions between "signs" and the "calls to prayer":

(1) The calls to prayer broadcast over a loudspeaker 5 times daily is much more intrusive generally. The calls can be heard throughout the entire town. It is difficult to imaging a sign on private property that could be seen by every resident 5 times daily.

(2) The calls to prayer are a requirement in the muslim religion. Again, most signs are not part of any religious requirment. It is much easier (constitutionally) to say someone must take a sign down because of its intrusive nature if it is not a requirement of the person's religion. It is much more difficult (constitutionally) to say that a muslim may not have his call to prayer broadcast throughout his city when that is what his religion requires.

I think this issue has more to it then most. For a majority of america, religious based traditions come with just growing up, so they dont really stick out as much. For something like this, its going to stick out rather large, more so with the relationship america has with the iraq or the mideast of muslim community in general. SO its going to be very fuzzy/blurred on all what goes into supporting either a pro or con position on such.

As long as the government is not establishing such as like law or a holiday, or otherwise interacting with religion in terms of its system, i cant see much going against it, save that its getting past any noise laws for being religious in design, being its a call the prayer and all. Many traditions get to escape regulation or have more applied to them, as like the fourth of july, but if the local government is making the call to let it stand on the base its religious, then i would have to opt against it being able to escape in local law. On a side note, its very annoying if you dont have any kind of attachment to it, and it happens at various times withing a 24 hour period that may not at all be convenient to people to say the least.

I would say that for a constitutional thing, that it would have to pass noise laws on a non religious base to be honest with the constitution. I cannot go out in the street and blast my death metal at any time of the day, though it may be important to me or not to do such really does not matter i feel, again it would be a relative issue. some may say let it stand as is, some will go against it, and the ruling that comes down from a position of government cannot favor/dislike it for being religious, and to make a case on the freedom of speech, its something that will effect the community as a whole most likely, so i dont think you can really apply such as an argument. i cant come into someones home and just start yelling at them, or even talk, if they decide they dont want me in the residence, then i am losing my liberty, freedom and freedom of speech on in one shot i think that applies nicely to this, being loudspeakers are just that. Typically the prayer itself is not the only thing that may come over the loudspeaker, so if they only allow the prayer part, it would still somehow go against freedom of speech would it not.

Church bells as far as i know are not regulated, and its going to stay that way i imagine, and its in the public that this is taken place. I cannot support it either pro or con from a religious perspective to stay honest with the constitution, so i would have to find something else. Overall, i feel that if the community itself wanted to let this pass on its own or those affected by such, without any specific wording then that would be just, in that the government is not mandating something religious into law, either for or against. Overall, the cultural melting pot that is america generally makes those cultures traditions for the most part take a second seat overall to the law of the land, with exceptions of course. I mean if its religious or a tradition for you to not have medical care or that for your children, we obviously do not let that fly i imagine, save more if it kills the child. So its something that will come under scrutiny and could be applied in legal terms to a variety of things in american law depending on how it does pass or not. Then again its a states right issue, and withing the local city or so on.

So just because their religion requires them to force it on everyone else, everyone else has to endure it? What if my religion requires me to break into people's houses and praying there? Should I be allowed to?

Hello Looms

In my personal opinion, I find the calls to prayer very offensive. But I am not sure we can constitutionally ban them. In answer to your question regarding breaking into people's houses:

The courts have had to grapple with questions like this before. I think it boils down to the court deciding whether the action is truly an integral part of a legitimate religion.

There aren't any religions that require you to break into your neighbors house and pray there. Other "similar" issues might come up, for example: Can a city ban jehovah's witnesses from knocking at your door? (I think the Supremes said they can't). Are American Indians permitted to use peyote as part of their religious ceremony even though the law bans use of the substance? ( I think --though I am not quite sure-- the Supremes said they can).

1) Question for debate: Has the city of Hamtramck violated the Establishment Clause of the first amendment in permitting the call to prayer to be broadcast 5 times daily in the city of Hamtramck?The call to pray does is one thing, but to allow it to be amplified is an entire different question.

By allowing it to be be broadcast over loudspeakers is a clear violation of several rights. Nobody's rights extend beyond that person. Clearly everybody is going to hear the calls and that is a violation of their rights. Personally I would file lawsuits for property damage and civil rights violations.

(2) Question for debate: Would the city's refusal to allow the call to prayer constitute a violation of the Free Exercise clause of the first amendment? Nope, in this case the city and the mosque are violating the rights of those that do not want to hear the call. Their religion pre-dates amplification by a few centuries, they can fulfill their religious obligations without amplification, so there is no religious requirement for broadcasting their calls to prayer.

Ah, but that's the thing, and one of the most practical reasons for the separation of church and state, a legitimate religion is whatever the person happens to believe. What authorities determine the "legitimacy" of a religion? Religion can be anything. I could start a religion five minutes from now that requires me to be drunk 24/7, and then go ahead and sue my employer for firing me, sue the city for arresting me for public intoxication. No religious group should be given the right to force itself on anyone else. If Muslims, Christians, Jews, Buddhists, Hinduists, Wiccans, Hare Krishnas, Jedi, Satanists, and Worshippers of a Giant Stapler Named Bob all decided (with the help of friggin amplifiers) to have a shouting match directly in front of your house, is it fair to you, and what your beliefs might be? It is completely and utterly ridiculous when someone claims that their religion requires them to force it down everyone's throat. It's crap when the Evangelicals do it, it's crap when Muslims do it. Nothing Contsitutional about forcing religion on anyone.

My religion forbids me to have other gods before mine. It is an ancient and well-established religion. Therefore, having to listen to loud blaring Muslim prayer five times daily would be a violation of my religious beliefs. Forcing me to go inside during those times in order to not violate my beliefs would be a violation of my right to personal liberty.

As long as it doesn't violate the town's noise ordinances, I don't see the Muslim call to prayer as being any more offensive than the ringing of church bells. The level of sound is likely to be similar, and whether the residents of Hamtramck want to admit it or not, it has a religious connection. The only difference is that Americans have listened to church bells throughout their lives, and it becomes easy to push it into the background. Eventually, the same will be true for the Muslim call to prayer.

What I am seeing is a town that is having a difficult time dealing with a changing population base, and the people are naturally resisting that change. I do not think that there is any violation of the establishment clause here because the town is not endorsing any particular religion. Disallowing the call to prayer would be a violation of first amendment rights, but if the volume is loud enough to disturb the peace, than the citizens certainly have a right to request that it be turned down.

The noise ordinance was amended for Muslim prayer time. The citizens don't have the right to have it turned down, if that's the case, no matter how loud or disruptive it becomes. I would be against Swaggart on the loudspeaker, too. This isn't church bells, it's absolutely obnoxious to have to listen to loud prayer five times per day, at all hours, every day.

Several points worth mentioning here.

To review the First Amendment:



In this case, the government was not establishing the religion, therefore it is difficult to see how this is relevant. In regards to the second question, a good argument could be made that prohibiting the call to prayer would be violating the free exercise thereof.



Mrs. P, first, listening to these calls doesn't force you to believe them...therefore you are not being forced to hold another god above yours. Second, the god they believe in is the same (all People of the Book), therefore you again would not be being forced to put another god above yours.

I find an analogy that could address most of the other comments here (oops, Cyan was posting the same thought!). The Muslim call to prayer would be identical, I think, to the ringing of church bells. Which, now that I think of it...I haven't heard in quite some time. What has been the rulings on that? Whatever precedence was set there would carry directly to this case, I think. The main difference being the number of times it is performed. However, these calls last for a minute or two, just five times a day. So, I think arguing against it from that perspective alone would be a losing argument--although it might be sufficient to have the volume regulated.

If the government, local or federal, is saying that the prayer is allowed over existing law period because its an important part of their religious process, it would be the government establishing support with law for a religion.
Its the same thing that can count against christmas or having in god we trust on our money. Its a law that states a religious thing is to take place in regards to the american people or america in general, and of course again, its law regarding support for in this case or against a particular religion, when we are to govern religious matters in government at a 0 tolerance level, like none in government, no religion in government type of thing, like prayer being part of a school systems regulations, and not just some kids doing it before eating lunch or what not. It is intrusive also, and if they turned it down to not be, it would really have no point i would imagine, thought it could make them happy i guess.

Thanks for the religious lecture. I'm less concerned about Jesus Christ and whose God is "the real one" than thinking of a way to circumvent disruptive loud prayer for townspeople who don't all want to hear it. I do see this as a conflict of individual religious rights. Would the Muslims want to hear loud broadcast Jewish prayer five times per day?

Understood, but what I'm getting at is that it's reasonable for the citizens to request the volume to be turned down if the call to prayer is truly loud enough to disturb the peace, but it's not reasonable for them to ask it to be disallowed completely. A loudspeaker doesn't have to be turned up to top volume to be effective, and I can understand why the Muslims would want to use one. It carries farther than the human voice, and I see it as the difference between the ringing of church bells and the sound of a priest standing at the top of the tower screaming down to the people below.

MrsP, whether the Muslims would want to hear a Jewish call to Prayer five times a day is irrelevant, particularly if it's legal for them to do the same. That's the point here. If it's legal for one group, it's legal for all of them.

In this case, legally, it's permissable for Muslims to exercise their freedom of religion in this manner. If Jews or Christians decide to do the same thing as part of their religious observances, there's not a lot anyone's going to be able to do about it.

They all have the right to express themselves as they see fit, for the most part. Don't like it? Ignore it. No one is forcing you into the Mosque to pray at those times.

And, as has been noted before, people live with regular external annoyances like church bells and living under airplane landing patterns. After a short while, you become innured to it, and barely notice it.

Sorry, Mrs. P...wasn't trying to lecture anyone. I was just trying to point out that this line of reasoning was unlikely to lead to the outcome you desired. As to the question you pose...Muslims, having been given that right, could hardly then argue it should be exclusive to them.

I can see, as Cyan suggests, that a reasonable volume be imposed. As had been mentioned earlier in this thread, the call to prayer took place long before amplification existed. So, having it turned up to top volume could hardly be considered a religious necessity. I couldn't say exactly what proces could be used, but it seems to me that 'reasonable' would be loud enough to be heard, but not so loud as to be aggravating to others (by volume, not content).

According to hayleyanne, that isn't the case. Loud public loudspeaker prayer is permitted only if it is an integral part of a legitimate religion. This isn't a fundamental part of the Jewish faith, or the Christian faith, for that matter...therefore Jews and Christians cannot broadcast their prayer over the loud speakers.

Otherwise, this could quickly become a battle of public loud and disruptive prayers. Muslims pray five times? Christians will pray 10 times! Ect...

Edited to add: My apologies, Hobbes. I was overdramatic.

I have a pal that is from the former eastern block and lived in one of that nations that ethnic wars took place in. After the war was all done, which came about from religion, the two groups of people would put their time and energy into building bigger and better religious buildings then each other, like as some form of sign or something. So its something that can come out of hand. If we declare that such as issue if of to the state, what would be the difference then saying that a store gives 10% off to a certain religion and not to others, i mean it still stays private but of course can be looked at as wrong, and this applies here, as some can take offense to the loudspeaker from many angles. THis can lead to more problems, just like having the state or local law declaring religious matters as governed law in general. again for the law to support this decision on the nature of it being religious is something that can be easily argued also as wrong, does this also then include that public education within the community must buckle and do such over the pa system for muslim students, its still law and government in such, and relation to state would it not? so again, i dont agree with this in terms of government being its religious in nature period. The public in this situation must then also come to the mercy of the loudspeaker and what ever may come from it, regardless if they want to or not, and its not a structure such as a airport or the L train or what not, its only being judged on the aspect of its holiness really, and in terms of law or government in relation to america or american people, i do not see how such can actually pass, though it could be a different story just on the base that the community had no laws that it would conflict with in the first place, that still would not resolve any social issues it may raise, and again the support of religion by law by the government, either local or federal.

With all this talk of rights and religious obligations, is it really too much to ask that people show a little polite restraint and common decency?

Why is necessary for a call to prayer to be broadcast over a city five times a day? Surely a man's voice is adequate to call the faithful to the mosque. The rest of the population need not be burdened with the disturbance.

Moif

I do declare, I believe this to be first time that we have been on the same side of an issue.

By all means the call to prayer is a tenant of their religion, but since that requirement was created long before electricity amplification is not a requirement. The call for pray and church bells fulfill the same function. As long as neither are amplified I have no problem with them.

I do not know of any bells chiming as 5am, but would certain endorse a restriction of the decibel level if they did. Those that failed the level should not be allowed to bother the rights of others especially early in the morning or late at night.

The Muslim call to prayer is different from the ringing of church bells for two reasons. First, the ringing of church bells has generally lost any religious significance and usually only marks the time/hour of the day. In contrast, the Muslim call to prayer is primarily religious in nature and is specifically meant to remind Muslims of their religious obligations. Second, church bells ringing, much like the "in God we trust" on our money, is so deeply rooted in our nation's history that it takes on a historic connotation more so than a religious one.

With these two distinctions in mind then, I would argue that the broadcasting itself takes it outside the mosque and into the public square and as such constitutes a violation of the establishment clause. The issue is different from the usual nativity scene issue in the public square because broadcasted sound travels well beyond its original source. I like the idea of allowing the call to prayer in the traditional way-- broadcast by a person and not a loudspeaker.

I'm in agreement with Cyan here.

Eliminating the call to prayer is like eliminating symbols of Christmas. Religion, whether some of us ridicule or despise it, is part of the fabric of our existence. While we shouldn't use it in a way that deliberately offends others (or hurts their eardrums), we should have some leeway in the public expression of it.

I fail to see how outlawing or legislating against public demonstrations of religion, whether visual or auditory, is promoting tolerance. It would be like trying to eradicate racial intolerance by requiring everyone to wear brown paper bags over their heads or otherwise disguising their color to make sure they don't offend anyone. There is a difference between solving a problem and just not dealing with it.

And quite frankly, I am surprised by anyone who subscribes to the "take me as I am" mindset not being willing to tolerate others as they are, i.e., religious.

According to whom? Don't most people own clocks and watches to tell the time? It is my understanding that church bells serve the purpose of informing churchgoers of the time for mass.

As a non-religious person, I view it all in the same manner, and it is my feeling that as long as these reminders regardless of what religion they belong to are broadcast at a reasonable volume, it should not be a problem.



People generally have the freedom to express themselves religiously inside or out of their sacred temples even if it means that their beliefs sometimes bleed over onto others who do not believe as they do. I don't see how this can be considered a violation of the establishment clause unless the government itself is endorsing a specific religion.



Which is exactly why I support the idea of enforcing a reasonable volume, but if we're going to reduce it to the level of the human voice, than I can think of quite a few other city sounds that I'd like to see banned, as well.

(1) Question for debate: Has the city of Hamtramck violated the Establishment Clause of the first amendment in permitting the call to prayer to be broadcast 5 times daily in the city of Hamtramck?

I rather doubt either clause would be violated.

(2) Question for debate: Would the city's refusal to allow the call to prayer constitute a violation of the Free Exercise clause of the first amendment?

In your wording of the questions you have hit something that is often a question, that is do the "establishment clause" and the "free exercise clause" sometime conflict with rather than compliment each other. I don't think denying the request would be a violation of the "free exercise clause."

For a couple of years, I worked graveyard shift and sleeping during the day was often a problem, with just the necessary noises like those made by emergency vehicles, trucks with loud speakers announcing that the water would be cut off for a specified time to make repairs or testing of emergency system sirens. Restricting noise to what is absolutely necessary would violate no right and would protect shift workers from undue disturbance during inverted sleeping hours. Pitty the poor nurse or police officer who works the 11 to 7 shift.

Should this be allowed, I can invasion the equivalent of a middle school cafeteria food fight, where different religious organizations try to toss more noise than the other groups. The city is in danger of opening a real can-of-worms. Once you establish a precedent for one group, you have to do it for all.

The best bet is for the city to deny the request on grounds of noise pollution. I really don't see much difference in the call to prayer and living next to a college frat house and having to PUT UP WITH loud noise on an around-the-clock basis.

Edited several times. I can't seem to type today.

I'm surprised that, unless it escaped my attention, nobody has bothered mentioning what the First Amendment actually says about religious practice.

Question for debate: Has the city of Hamtramck violated the Establishment Clause of the first amendment in permitting the call to prayer to be broadcast 5 times daily in the city of Hamtramck?

No. There is no state action. The Establishment Clause reads "Congress shall make no law respecting an establishment of religion..." US Const. am 1. Clearly Congress has done nothing of the sort. The Courts, however, have held that through the 14th Amendment ("No State shall make or enforce any law which shall... deprive any person of life, liberty or property without due process of law"), the Establishment Clause applies to conduct of the states and their chartered municipalities. See Cantwell v. Connecticut, 310 US 296 (1940). For a good critique of that decision, pointing out the irony that an amendment intended to preserve states' authority in certain areas, including the establishment of religion, was effectively reversed by the prevailing interpretation of the 14th Amendment. see Stewart's dissent in School District of Abbington, Penn. v. Schempp, 374 US 203, 308 (1963). But neither the First, Fourteen, or any other constitutional provision, except the Thirteenth which prohibits slavery, apply to private conduct.

It is true that the government (any government, be it local, state, or national) violates the equal protection clause and the Establishment Clause if it permits one religious group to act in a manner that it denies to another. Larson v. Valente, 456 US 228 (1982). But I don't see that happening on these facts. The government is making no affirmative act. It is, apparently, allowing each religion mentioned to act in a substantially similar manner. The Establishment Clause is not implicated.

However, if I'm wrong on the above analysis, the Establishment Clause would be violated only if it: does not have a secular purpose; its principal or primary effect advances or inhibits religion; and fosters an 'excessive government entanglement with religion' Lemon v. Kurtzman, 403 US 602 (1971). Unless I am mistaken as to the facts, the noise ordinance statute is being applied equally to religious and non-religious institutions; I can see arguments going both was on the second element; there is surely no entanglement of religion and state by allowing private entities to blow their bells and whistles.

Question for debate: Would the city's refusal to allow the call to prayer constitute a violation of the Free Exercise clause of the first amendment?

"Congress shall make no law... prohibiting the free excercise [of religion]." US Const. am. 1.

Oregon v. Smith 494 US 872 (1990), interprets the Free Exercise Clause to mean that "a law that is neutral and of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice." "If the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest." Church of the Lukumi Babalu Aye v. Hialeah, 508 US 520 (1993).

In other words, individuals, sects, or even large religious institutions can't use religion as an excuse to break the law under the protection of the Free Exercise Clause. I can't sacrifice my eldest son or stone my wife for adultery and cite the Old Testament, for example, as a defense. Or, on the facts here, a church, temple or mosque can't cite religion as a reason for violating generally applicable noise ordinances (if that is the true reason behind them).

Now, if this law is being applied unequally, permitting some religions to toll bells and others not to, obviously this "restricts practices because of their religious motivation, the law is not netural, and it is invalid..." Babalu Aye v. Hialeah, supra. It would also most likely violate, as mentioned above, the Establishment Clause and Equal Protection Clause.

(1) Understood that the First amendment applies to "state" action. The argument I was envisioning would view the broadcast as going beyond the mosque itself and into the "public square" so to speak. It permeates the city -- loudly -- and often ---(5 times a day). If the city permits it then the city, in essence, is supporting the use of the "public square" or "city airwaves" (whatever you want to call it) in the same way that it may let a group put up a nativity scene at city hall. I think you can analogize the two situations.

(2) As far as the free exercise clause goes-- it does not depend on whether the law (the noise ordinance) is being applied equally. Assume the city banned ALL religious type sounds -- bells, calls to prayer etc. The mosque would still have an argument that its members 1st amendment rights of free exercise were being violated.

This analogy is interesting, but I believe it's rather misleading. The important difference is that the government owns the land around city hall with the nativity scene. Placing a religious message of any kind on government property implies that the government approves of the message. The only two ways to deal with this are to allow anybody to place any kind of religious message on government property (possible, but very difficult and full of dangers) or to forbid all religious messages on government property (easy and safe.)

The government doesn't own the air through which the prayers are broadcast. A closer analogy would be a billboard with a religious message on it. There is no implication that the government approves of the message. The prayers and the billboard have to obey reasonable laws that would also be applied to non-religious messages. (No billboards in the middle of a wilderness area; no broadcasts that violate noise regulations.) The only question to be asked is if the laws are reasonable and necessary, and if they are applied equally to everybody.



I agree that a law which banned all religious broadcasts would violate the free exercise of religion. It would also be an evil, foolish, and unnecessary law. However, a law which banned all broadcasts above a certain level of sound as noise pollution could be necessary and reasonable. Of course, the exact provisions of such a law would be open to debate.

You say: (1) Understood that the First amendment applies to "state" action. The argument I was envisioning would view the broadcast as going beyond the mosque itself and into the "public square" so to speak. It permeates the city -- loudly -- and often ---(5 times a day). If the city permits it then the city, in essence, is supporting the use of the "public square" or "city airwaves" (whatever you want to call it) in the same way that it may let a group put up a nativity scene at city hall. I think you can analogize the two situations.

Even on your restated facts there is no state action. Respectfully, it's a poor analogy, as there's a fundamental difference between the government affirmatively setting up a nativity seen on public land, on the one hand, and taking no action against a church prosletyzing on its own property (even if the speech can be heard beyond the metes and bounds of its property). In any event, the Establishment Clause is not meant to protect people's ears (and eyes for that matter- would you have churches build walls around outward displays of religion?) from religion coming from the churches themsleves.

There is case law to support the removal of sectarian symbols on private property where the location of the symbol gave the impression of government endorsement of the symbol and where the government usually sells the land to avoid application of the Establishment Clause. See Mercier v. City of LaCross 305 F.Supp.2d 999 (2004) for a recent discussion. But your facts are different, and even that case recognizes, as it must, "An Establishment Clause violation must be moored in government action of some sort." O'Connor, concurring, Captiol v. Pinnette 515 US 739, 779 (1995). You have none. Really. It's not even a close question, unless....

I restate the Lemon v. Kurtzman test. The Establishment Clause would be violated only if it: does not have a secular purpose; its principal or primary effect advances or inhibits religion; and fosters an 'excessive government entanglement with religion' Lemon v. Kurtzman, 403 US 602 (1971). Noise ordinances have secular purposes. However, though we cannot tell from your facts, if there is an applicable noise ordinance that is not being enforced in the same way it is against other entities (either secular entities or other religious ones), it would go to show that there is a nonsecular purpose in the law's application. But that's about the only way there would be any Establishment Clause violation.

You say (2) As far as the free exercise clause goes-- it does not depend on whether the law (the noise ordinance) is being applied equally. Assume the city banned ALL religious type sounds -- bells, calls to prayer etc. The mosque would still have an argument that its members 1st amendment rights of free exercise were being violated.

As I said in my first post, it depends on the law that the police are enforcing. If this is a generally applicable law, both as written and applied, such as a noise ordinance, there is no Free Excercise Violation per Oregon v. Smith and its progeny. It's not really a close question either.

Again, I disagree. Whether the law is "generally applicable" is not the test. As you say in an earlier post-- the court under Oregon v. Smith and its "progeny" will ask whether the government has a "compelling state interest" behind the law at issue.

An example of a "generally applicable law" that was nonetheless found unconstitutional was one that prohibited people from knocking on your door to distribute religious literature. The J.Witnesses challenged this law and it was held to be unconstitutional as a violation of their free exercise rights.

I would argue that the noise ordinance does not serve a compelling state interest enough on balance to justify restricting the rights of muslims to have their call to prayer prohibited.

For a nice break down of the free exercise clause and relevant case law, here is a good link from Findlaw:

http://supreme.paxtv.findlaw.com/constitut...dment01/05.html

Hi Victoria. I like your analogy to the billboards. You are probably right and this is the closer analogy. But I still think there is something unique about the broadcasting of the sound that makes this case possibly different. At least I would make the argument, but it probably woudn't win.

Despite the idea that by permitting the broadcasts by the muezzin of calls to prayer as being some kind of endorsement because it uses "the public square", I don't see any violation of the establishment clause, because (as has been pointed out) the government does not own the public square anyway, and because it is not the government making the noise.
If there is any legal recourse against this moqsue, or any other, for the "problem", then it lies down the route of a complaint against noise nuisance rather than any Constitutional finessing.

That case in itself would be very hard to win, since - because the government does not own the air and since it is not itself making the sectarian noises - the establishment clause has no bearing. Therefore the noise nuisance would have to be compared with other similar noise nuisances. Factory sirens/hooters/whistles would be similarly loud and happen at similarly disruptive hours, and while they are less common today (more for economic than for noise reasons - the factories are not there in such numbers), they would be a very useful precedent for any lawyers defending the rights of a mosque.

More pertinently. if Billy Graham held a rally at an open-air stadium (as he and other evangelists often do) the noise coming from the crowd and the amplified preaching and singing would be quite comparable to the muezzin's chanting, if at less antisocial hours. If any part of government permitted a mosque to be silenced, the Constitutional duty set by the establishment clause would surely be to also silence Billy Graham and his ilk, would it not?

The case you cite is not really a 'generally applicable law', which was what the problem was. The law in question specifically targeted religious speech and was not neutral in scope. It prohibited solicitation for the purpose of soliciting religious funds and was therefore not neutral. I believe it was Justice O'Connor that has stated that the test is if a casual observer could perceive either a governmental support or disparagement of religion. If it could be determined that such was the case, it runs afoul of the Establishment Clause. This is clearly the case here. It does not matter that it does not specifically mention Jehova's Witnesses. It prohibits all religious speech and is therefore illegal as it would be a perceived disparagement of religion. If, on the other hand, they were to reword the statute to disallow all solicitation for any reason, the Jehova's Witnesses would have little recourse in court. There are other problems with a statute like that, but I just lay it here as an example of a neutral law.

The noise ordinance on the other hand is absolutely neutral. It is enforceable towards rock concerts, political rallies, church bells and of course the call to prayer. As such, no casual observer can perceive an endorsement or disparagement unless a special waiver is given to the Muslim church or if the Muslim church was singularly targeted. If all noise is regulated the same no endorsement or disparagement is apparent. As long as the noise generated by the Call to Prayer is regulated equally with other noises both secular and religious, no violation is apparent. Specifically prohibiting the Muslim call to Prayer would violate this.

I agree they will not be able to outright prohibit it, however; they should be able to regulate the volume as long as they apply the regulation equally.

Not a very good example, Julian. If there is a concert going on, that is very different than somebody in the neighborhood blasting that same music at various times throughout the day, 365 days a year. The muslims want this to be a permanent thing, while Billy Graham, comes, does his thing, and leaves, and unfortunately, lives on to do it all again at a different place. The point is, the muslims want it heard in THE ENTIRE CITY. Yeah, that'll help the property value, "Come live here, a place where you will constantly be subjected to a noise worse than hearing your own teeth being drilled." Do muslims have some inherent right to subject an entire city to their beliefs? And this is NOTHING like hearing a bell. A bell is a neutral sound, it is nothing like hearing a speaker blasting "Allah U Akbar". The only good part of the whole deal is that it probably wont be long before someone gets tired of hearing it, and smashes the speakers with a tire iron.

Maybe I'm missing something. I was under the impression that Muslim prayer is the specific exception under the amended noise ordinance. Essentially an endorsement if that is the case, because other religions are prohibited from doing so, and other types of "secular" noise are prohibited at those levels. If all noise, and all religious speech, is permitted to be broadcast in the same manner, for the same duration, I have no problem with it. I think the community would quickly determine that they should re-amend the noise ordinance in that case, however.

"In a sign of the deep changes in this once predominantly Polish town, the City Council is expected Tuesday to pass a noise ordinance amendment that would permit mosques to issue the traditional Islamic call to prayer over loudspeakers."

You are correct, I had missed that. This would seem to be a violation as it is specifcally allowing an activity for one religion that is restricted for anyone else.

If this had not violated any noise ordinance currently in place, it could not have been prohibited. Since they planning to ammend the noise ordinance specifically for a religion, it would seem that they are in violation of the Establishment Clause. It all depends on the language of the ordinance and how it is applied though. If they are altering the ordinance to allow higher levels for all, that is one thing and would be permissible even though the intent would be to allow the church to broadcast. Altering current laws to allow activities that are not allowed for others is a clear violation. I think they are going to find themselves in a bind if the latter is the case.

I think the Council amended it to allow the Muslim call to prayer, specifically so as to avoid a violation of the free exercise clause. I don't think your argument regarding neutrality flies. There have been lots of cases where the law (whatever context) is neutrally applied and the law has still been held to violate the free exercise clause. What about a prisoner in jail -- subject to requirement that his hair be cut short. Isn't there some religions that require hair to be grown naturally. Rastafarians or some sect like that? or Conservative Jews as well? Would that neutrally applied law be held constitutional? I don't think so, as it infringes the free exercise rights of these prisoners.

However, in this instance they are going beyond what is required to allow them free expression. They can still use their voice. The noise statute by itself does not infringe on their ability to freely express themselves without loudspeakers so they cannot then claim that they cannot freely express themselves. The law was in place prior to their request and unless they can prove that it is being enforced unevenly with regards to other noise in the area there is no apparent violation of their right to expression or exercise.

As for the jail inmates, that law would be upheld if it could be shown that it was applied with no religious basis. If, on the other hand, it was only instituted or was only enforced when a group of Rastafarians or others with such religious rules entered the facility it could then be argued that such a rule was enforced solely for a singular purpose.

Free expresion has its limits. If I choose to worship satan, does that then give me the right to commit human sacfrice in the name of expressing my religion? Hardly, as it is a criminal act that violates current law that is universally applied without religious bias. Most neutral laws I have seen overturned have been shown to specifically target religion, which is just as much a violation as supporting any one religion. A law must be neutral in regards to support of religion and/or disparagement of the same. It must treat all groups equally. It cannot let any one group have excessive rights other groups do not have.

From the ACLU



The amendment seems to be reasonable. It is inclusive of all faiths, and it attaches restrictions to the sounds.

According to several Justices, the test is not only compelling interest, but what a reasonable observer would perceive. The two do go hand in hand, however; when "one" religion is given preferential treatment above all others it gives the impression that government endorsement is present. In this case, no other religion is given such a waiver in regard to noise levels. They are specifically giving the Mosques a waiver and not giving any other church a waiver. If the same waiver is given to each and every church to amplify their bells or whatever, then no Establishment issue will result, but by clearly singling out the Muslim faith for preferential treatment they have produced an atmosphere whereby a casual observer would perceive that the state has declared that faith to be preferable to all others. "Since the city has not given my faith such a waiver, I now feel that I belong to an inferior faith."

The government "can" argue that controlling noise is required in order to maintain order and safety. If you argue that they have no such interest you are arguing that the noise ordinance is invalid regardless of the religious aspect and the municipalities have no right to regulate it. If they have the right to regulate noise at all they have the right to regulate it in this regard as well.

I am not saying they can ban them making the Call to Prayer in its entirety as that would be illegal as well. I am only saying they can regulate the volume of said amplifications. If they did not alter the ordinance and allowed them to broadcast within the limits of the current ordinance, there would not be a problem. My question would be: How does the restriction of amplification cause them harm in regards to their expressing their faith. They are still able to perform the same exercise without amplification. They are not giving them the 'ability' to perform the exercise as they have that ability already. What they are doing is providing them the ability to perform this exercise through amplification in violation of current laws through waiver.

I do not think the Mosques can show harm for not being able to amplify the Call to Prayer when they are currently able to perform such activities without amplification.

Thanks for finding that. As I said earlier, we needed to see the actual wording of the ammendment to determine if the Call to Prayer was being singularly waived above all other types of religious broadcast. Since they are not singling out any particular faith for deferential treatment, I do not believe they will have any Establishment issues. Everyone gets the waiver.

It should also be noted that in modern warfare, blasting out obnoxious noises at loud volume is in fact considered an effective psychological warfare tactic...

I wouldn't dispute that there would be a difference of degree between the mosque and the concert, but that the same point of constitutional pricniple would have to be applied to both cases. A ban on the muezzin but not the preacher on the same grounds certainly would be unconstitutional.

At a tangent, my old landlords in London were Muslim, and they had a special closed-circuit radio on in their home that piped the calls to prayer directly from mosque to faithful, with no intervening noise pollution. I thought this worked admirably well, though I got the impression it was rather expensive (given the rent they charged me, they could certainly afford it), so it might not be ideal everywhere.

(1) Question for debate: Has the city of Hamtramck violated the Establishment Clause of the first amendment in permitting the call to prayer to be broadcast 5 times daily in the city of Hamtramck?

No, this is a local matter, not a national one. I'm pretty sure that noise ordinances in communities cover this sort of thing, and Julian hit on the solution, which I'll address below.

(2) Question for debate: Would the city's refusal to allow the call to prayer constitute a violation of the Free Exercise clause of the first amendment?

There is no need to refuse the call to prayer, only to limit it through technology to those who give a hoot. This can be done in several ways using today's available technologies.

- Issue inexpensive pagers to the faithful and email prayer reminders via a messaging server. We do this all the time in IT. The pagers can be set on vibrate to avoid disturbing people in restaurants, movie theaters and other social gatherings. I've got a powerful vibrating pager that will wake me, thus maintaining relationship bliss. Loud beeps are not necessary.

- Do the same thing with cell phones that are message-enabled and have a vibrate mode.

- The radio idea of Julian's is great! How cheap is a small radio these days? I bet some are out there that fit in the ear like a hearing aid. Maybe the city has a public broadcast frequency? Maybe the local NPR would help out.

The real problem here is the exercise of religion that violates the rights of others not practicing that religion. Assuming that the call to prayer is indeed in the Koran (not sure, somehow doubt it), then the point is to pay attention to Allah five times a day. And since people need to be reminded of this, being as most don't have that in the Daytimer or the to-do list on the PDA, calls to prayer are needed.

Back 2,000 years ago, the reminders had to be done by the human voice. That is not the case today, due to technology developed in a very non-religious, sectarian way.

So I might say, science beat out religion once again. Actually what has happened is an ancient tradition is no longer needed, yet the religious point can still be maintained via available and inexpensive technologies.

Some of the technology solutions have been given, and might I say that they fit in elegantly? I'm sure other technology solutions exist that would keep everybody happy.

Heh, it just came to me that if Buddhists tried this out, the loud speakers would be going on all the time because enlightenment is a constant mantra! Wow, we better use technology to nip this in the bud now. Otherwise we'll all be stuck with hearing chants that sound like indianajonesindianajonesindianajones 24 hours a day.

Edited to add: Oh, and what if some techie decided to use noise-cancellation stuff right across from the mosque? I'd sure be tempted to do so whether loud speakers are used or not.

Sports stadiums are places where we expect to hear noise--football games, concerts, race cars or tenured simpletons like Billy Graham. I would have no problem with Muslims or Billy Graham having a rally at a sports arena if the facility were paid for entirely by private money and the owner approved.

The Dallas Cowboys are building a new retractable roof Stadium in Arlington. Arlington voters aproved a one half cent increase in city sales tax to build the new stadium. If religious groups pay the going rental rates to Jerry Jones and the City of Arlington, then I have no problem. They should not get a cut rate on rentals.



I assume the "faithful" know how to use old technology, like wrist or pocket watches.

I hear the call to prayer quite often in where I live and it's just not that bad. In fact when you're playing football and it rings out over a sunset it's very atmospheric!

I don't belive it's an attempt to convert me by forcing a different religion down my throat because I don't understand a word they're saying! Also it doesn't go on for very long. Unlike the church bells which can peal for what seems like hours.

What they have done is allowed the call prayer in a spirit of religious tolerance. And for if you have to tolerate something then the chances are it's an inconvience, and as they go this isn't such a terrible one. It is actions such as this that help communities understand each other. That allows cultures some room to breathe. Their tolerance is a act of patience will hopefully, in time, be reciprocated.
In the spirit of community people tolerate the Sunday morning DIYer's who start hammering away nice and early, the football supporters as the chant through the streets, feashers discovering beer. car horns, alarms and all the rest. If we didn't I don't think we'd ever stop being angry.
On my particular list of annoyances this one comes somewhere near the bottom.

(1) Question for debate: Has the city of Hamtramck violated the Establishment Clause of the first amendment in permitting the call to prayer to be broadcast 5 times daily in the city of Hamtramck?

Being that the actual text:

does not single out a particular religion, no.


(2) Question for debate: Would the city's refusal to allow the call to prayer constitute a violation of the Free Exercise clause of the first amendment?

This is trickier... the fact that they are not restricting the right to do a call to prayer by refusing, I would say no to this as well, unless other religious announcements (such as church bells) were allowed in the ordinance.

The fact is, many Christian churches have bell sounds, some of which are amplified, that announce religious meetings. I see no reason to deny what the mosque is asking.

I would disagree with that assertion, although I don't think its relative to the legal issue. It is a safe bet that any practicing Muslim could tell you, probably to the minute, but certainly within a few minutes, what time each of the five prayers is...just as any practicing Christian could easily tell you what time Church service is. I think it is more of a tradition that is being followed, and also an issue of synchronizing the activities of those that aren't actually at the mosque. Many Muslims conduct their prayers at home, which is perfectly acceptable...and I think this is one of the things driving the desire to broadcast the call to prayer, in that it is targeted at those not at the Mosque, not at those attending prayer there. So, in a practical sense, this is the need that any remedy should address (and one I think the radio broadcast does an excellent job of...as it is quite easy for anyone to have a simple radio available in their prayer room).