Call to prayer ordinance raises First Amendment questions

Free exercise v. establishment clause at issue

Masjid An-Nur in North Minneapolis. Photo courtesy of Mississippi Watershed Management Organization.

The Minneapolis City Council last month removed restrictions on the hours that mosques may play amplified calls to prayer. It’s a laudable way to reach out to a large community, which includes the greatest number of people of Somali ancestry in the United States. 

The new ordinance allows Muslims to play the call to prayer from the mosques around the city the customary five times a day, from pre-dawn to post-sunset. The previous noise ordinance prohibited the call to prayer — known in Arabic as the adhan — during certain early morning and late night hours. 

But the widespread blessing of the new measure — which was unanimously approved by the City Council  and praised by Mayor Jacob Frey — overlooks some of its legal vulnerabilities.

The litigation might be regarded as being brought in bad faith for the purposes of trolling the city and its Muslim community, but the city’s attorneys should be prepared in any case because there are substantial — and legitimate — legal issues arising from the ordinance that warrant scrutiny and cannot easily be brushed away under the “frivolous litigation” rubric.

Under the establishment clause of the First Amendment, government bodies may not give preferential treatment to religious groups or religious practices. Although there is necessarily some flexibility, the Minneapolis measure would appear to give preference to one particular religion — a form of favoritism that is not condoned under this provision. 

The courts have devised a three-part test derived from a 1971 U.S. Supreme Court case — Lemon v. Kurtzman — for determining the validity of establishment clause challenges:  

• Does the policy have a secular purpose?

• Does the measure advance or inhibit religion?

• Would a legal challenge involve “excessive entanglement” by the judiciary if subject to litigation?

This three-pronged standard has been subject to substantial unease — including on the part of some of the justices themselves. The late Justice Antonin Scalia, in his customary colorful language, equated it in a subsequent opinion to a “ghoul in a late night horror movie that is repeatedly killed and buried,” only to rise Lazarus-like as it “stalks” First Amendment religious jurisprudence.  

His right-wing colleague Justice Clarence Thomas finds it ”utterly indeterminate,” preferring instead a test to determine if the measure in question constitutes an “endorsement” of particular practice or sect. 

Despite the criticisms, the Lemon tenet still remains the prevailing law, and the Minneapolis measure seemingly fails to satisfy any of the three prongs, let alone all of them.

It’s clearly not secular. Its effect undoubtedly is to advance the religious practice of Muslims, but not other religions. And, any legal action would embroil the courts in having to assess certain features of Muslim prayer practices, which would create the type of “entanglement” that is frowned upon by the Lemon law. 

There are, to be sure, countervailing considerations.  

Also embedded within the First Amendment is the free exercise clause, which occasionally conflicts with the establishment clause. While the latter proscribes governmental assistance to religion in general, the former necessitates accommodating religious practices and preferences.  (“Congress shall make no law…prohibiting the free exercise thereof.”) 

By relaxing limits on noise from mosques, the city’s ordinance may fall within the religious exercise clause, as articulated by the measure’s author, City Council Member Aisha Chughtai. 

Frey echoed that view, equating it with the ringing of church bells summoning the faithful, or the blowing of the Jewish Shofar on that religion’s two high holidays, proclaiming that now they “can all be heard.” 

But Christian bells are not sounded at 3:30 a.m or as late as 11 p.m., as is permissible under the new call ordinance. Nor are Shofars heard externally from the synagogues where they are blown during religious ceremonies.

These concerns raise vexing issues underscoring the friction between the two constitutional clauses governing the role of the state in religion and vice versa.

The new measure may be legally suspect on other grounds, including running  afoul of the Minnesota Environmental Rights Act, known as MERA. Enacted in 1971 — the same year as the Lemon doctrine was adopted — MERA recognizes “quietude” as a legally protected natural resource and provides private citizens the right to enforce provisions of the statute. 

MERA’s embrace of “quietude” as a feature warranting legal protection was reflected in a landmark 1977 ruling of the state Supreme Court in a case entitled MPIRG vs. White Bear Rod & Gun Club. The ruling upheld a lower court decision in Ramsey County restricting use of a rural field adjacent to a wildlife lake as grounds for a shooting range and gun club. In so doing, the court noted that “quietude” is specifically enumerated as a protected natural resource under MERA, and that the planned shooting range and gun club would degrade such tranquility, which would impact wildlife and human enjoyment of the nearby lake.

Cities with mosques differ from the rural pastoral site, but the veneration of tranquility resonates. The city’s broadening of the permissible window for the call to prayer beyond daylight hours may very well subject the measure to successful challenge under MERA. 

The new ordinance permits noise from religious ceremonies to be broadcast into public spaces at nearly all hours of the day and night. While sound from a religious ceremony might be imperceptible when joined with the cacophony of city noises during peak daylight hours, the same cannot be said during overnight hours. 

The City Council deserves commendation for trying to satisfy concerns of the large Muslim population here — variously estimated as between 70,000 to 80,000 in the Twin Cities — but the ordinance raises constitutional and environmental legal issues that could create interesting litigation if the measure were to be subject to judicial challenge. 

The outcome cannot be easily predicted, and either way it would be a close call.

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.

David Robbins
David Robbins

David Robbins is an attorney at the firm Meyer Njus Tanick, where he focuses on business law and civil litigation. He prevailed before the Minnesota Supreme Court on behalf of pro bono client in precedential case strengthening the constitutional rights of automobile passengers to be free from unreasonable searches and seizures.