ACLU of Michigan: Hamtramck Noise Ordinance Still Needs Work

POST BY Kary L. Moss Executive Director
May 06, 2004

Muslim calls to prayer are constitutionally permissible if Hamtramck treats religious and nonreligious speech equally.

In the past week, the American Civil Liberties Union of Michigan has received hundreds of calls and e-mails from around the country from people asking our position on the amended Hamtramck noise ordinance passed by the City Council. The change in the ordinance occurred in response to a request that the Wayne County city allow a Muslim call to prayer five times a day.

The Hamtramck controversy cannot be viewed as governmental support of one faith over another, although that is how many self-identified Christians calling our office seem to feel. Instead, this issue concerns both the right to expression of all speech, whether religious or political, as well as the need to reasonably accommodate religious expression.

In an effort to accommodate members of the Muslim faith, Hamtramck has allowed a practice that would not have been possible under the original noise ordinance. That ordinance, which also has First Amendment problems, makes it unlawful “for any person to create, assist in creating ... any excessive, unnecessary or unusually loud noise, or any noise which either annoys, disturbs...”

The new amendment says: “The City shall permit ‘call to prayer,’ ‘church bells’ and other means of announcing religious meetings to be amplified between the hours of 6 a.m. and 10 p.m. for a duration not to exceed five minutes (emphasis added).”

Hamtramck must first make the original ordinance constitutional. Then, to accommodate the needs of Muslims, Christians and members of other faiths, the city can create what are called “reasonable time, place, and manner restrictions.” These restrictions need to equally apply to other nonreligious but protected speech.

The American Civil Liberties Union does support reasonable efforts by the government to accommodate religious expression. This gets tricky and requires the balancing of important constitutional rights—the right to religious freedom and separation of church and state.

The ACLU is a strong advocate of both religious freedom and the separation of church and state.

We believe government should remain neutral in matters of religion. It must not suppress the free exercise of religion nor may it promote religion over nonreligion.

It is because of the separation of church and state, not in spite of it, that Americans enjoy such a degree of religious freedom, a freedom unknown to the rest of the world. And Americans take full advantage of this freedom: The United States is home to more than 1,500 different religions, with more than 360,000 churches, synagogues and mosques.

To balance the rights, Hamtramck can make adjustments in its noise ordinance. For example, it can limit the hours, duration and maximum noise level under which calls to prayer and ringing of church bells are permissible. It should do so by adopting specific neutral criteria that cover both religious and nonreligious noise.

The maximum level of sound permitted under the ordinance should be scientifically measurable and not subjectively based.

The city must allow for reasonable accommodation of religious speech, whether it is the ringing of church bells or the Muslim call to prayer or interdenominational holiday decorations. This is also true in governmental workplaces.

It is for this reason that the ACLU has supported federal regulations that allow government agencies to accommodate personal religious expression by federal employees, including the wearing of head coverings by Jews, Muslims or members of the Sikh faith, if it does not impair workplace efficiency.

Hamtramck has done its best to be sensitive to the needs of the community, and we applaud city officials for doing so. The city has, unfortunately, gone too far with its noise ordinance, but it is a problem that can be corrected in the interests of all those who live in Hamtramck.

By Kary L. Moss / Special to The Detroit News

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