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The ordinance approved by the Minneapolis City Council last month removing restrictions on the hours that mosques may play amplified calls to prayer from their rooftops is a laudable way to reach out to the city's Muslim community, which includes the largest native Somali population in the United States.

By extending the time for the amplified calls beyond the previous 7 a.m. to 10 p.m. boundaries to an indefinite period will allow Muslims to play the call to prayer the customary five times a day, rather than only the three or four times that were feasible under the pre-existing rule.

But this newspaper's editorial blessing of the new measure overlooked several of its problems ("Call to prayer is a call to inclusion," April 13).

A major issue is one of the pillars of the First Amendment. Under existing interpretation of the amendment's establishment clause, governmental bodies may not give preferential treatment to religious groups or religious practices. While there is necessarily some flexibility in practice, the Minneapolis measure is clearly designed to give preference to one particular religious sect, Muslims, a form of favoritism that is not condoned under this provision.

Courts have devised a three-part test for determining the validity of measures challenged under the establishment clause, derived from a 1971 Supreme Court ruling, Lemon v. Kurtzman. The questions are: 1) Does the law or government action in question have a primarily secular purpose? 2) Is its principal effect to advance religion? And 3) would it require "excessive entanglement" in religion by the government or the courts?

This three-pronged standard has been the source of substantial unease, including among Supreme Court justices themselves. The late Justice Antonin Scalia, in his customary colorful language, equated the "Lemon test" in a subsequent opinion to a "ghoul in a late night horror movie that is repeatedly killed and buried" only to rise again as it "stalks" First Amendment religious jurisprudence.

Scalia's ultraconservative colleague Clarence Thomas finds the test "utterly indeterminate," preferring instead to ask whether the measure in question constitutes an "endorsement" of a particular practice or sect.

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

The exemption of the call from noise restrictions clearly is not secular, but is directed to facilitate a particular religious activity, Muslim prayer. Its effect undoubtedly is to advance that religious practice, but not others. Further, potential legal challenges would require courts to assess the significance and nature of certain features of Muslim prayer practices, just the type of "entanglement" that is frowned upon by the Lemon test.

There are, to be sure, countervailing considerations. Also embedded within the First Amendment is the free exercise clause, which sometimes conflicts with the establishment clause. While the establishment clause proscribes governmental assistance to a religion or religion in general, the free exercise clause requires government often to accommodate religious practices and preferences. By relaxing limits on noise from mosques, the city's call ordinance may serve the free exercise clause, but its tension with the establishment clause raises vexing concerns.

In addition to the constitutional issues, the new measure may be legally suspect on other grounds. It may run afoul of the Minnesota Environmental Rights Act (MERA), which 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 v. White Bear Rod & Gun Club" that upheld a lower-court ruling in Ramsey County restricting use of a rural field adjacent to a wildlife lake as grounds for a shooting range and gun club.

While urban settings like the Minneapolis neighborhoods where mosques are located obviously differ from the rural pastoral site, the veneration of "tranquillity" resonates in considering the validity of the Minneapolis measure. While the predecessor version of the ordinance permitted noise from religious ceremonies to emanate into public spaces during normal daylight hours, the city's broadening of the permissible window may make the measure vulnerable under MERA.

The noise from a religious ceremony might be imperceptible when joined with the cacophony of the daytime city, but the same cannot be said during overnight hours.

Although the City Council deserves credit for trying to satisfy concerns of the large Muslim population here, the legal issues could produce quite interesting litigation if the "call" measure were challenged. It would be a close call.

Marshall H. Tanick and David Robbins are constitutional and environmental law attorneys with the Twin Cities law firm of Meyer Njus Tanick. This article is republished from a somewhat different version in the Minnesota Reformer.