This
is the inaugural issue of Religious Freedom in
Focus, a monthly email update about the Civil
Rights Division’s religious liberty and
religious discrimination cases. Assistant Attorney
General R. Alexander Acosta has placed a priority
on these cases. Through vigorous enforcement
of:
- Federal
statutes prohibiting religion-based discrimination
in education, employment, housing, public facilities,
and public accommodations;
- Federal
laws against arson and vandalism of houses
of worship and bias crimes against people because
of their faith; and
- The
Religious Land Use and Institutionalized Persons
Act (RLUIPA);
and
through participation as intervenor and friend-of-the-court
in cases involving the denial of equal treatment
based on religion, the Civil Rights Division
is working to protect the right of people of
all faiths to participate fully in public life.
IN
THIS ISSUE:
Title
VII’s Religious Accommodation Provisions
Vindicated
On
the eve of an en banc argument before the United
States Court of Appeals for the Seventh Circuit,
the plaintiff and defendants in Holmes v.
Marion County reached a settlement, averting
a decision on the constitutionality of the religious
accommodation provisions of Title VII. Title
VII prohibits employers from discriminating against
employees based on religion, and also requires
accommodation of religious beliefs and practices
such as Sabbath observance or the wearing of
religious garb, unless the accommodation would
be an undue hardship on the employer. The Seventh
Circuit Court of Appeals covers Illinois, Wisconsin,
and Indiana.
The
case was brought by a Muslim woman after her
request that she be permitted to wear a
head scarf while working for the Marion County
(Indiana) welfare office was refused. The county
defendants sought to have the suit dismissed
on the grounds that Title VII exceeded Congress’s
power under Section 5 of the Fourteenth Amendment
and was therefore unconstitutional as applied
to private suits against State employers in Federal
court. The Civil Rights Division intervened
for the limited purpose of defending the constitutionality of Title VII. A
District Court agreed that Title VII was constitutional,
but a three-judge panel of the Seventh Circuit reversed.
The Civil Rights Division petitioned
for rehearing before the entire 12-judge
court en banc. The en banc court vacated the
panel opinion and slated argument for January
21, 2004.
The
day before the rehearing, and just minutes before a
Civil Rights Division attorney
was to leave for Chicago to argue
the appeal, the plaintiff and the defendants
reached a settlement. Since the grant of rehearing
vacated the panel opinion, the Title VII rights
of employees of state and local governments within
the Seventh Circuit who require accommodation
of their religious beliefs and practices are
once again in full force. The Civil Rights Division
will continue to defend vigorously challenges
to the constitutionality of this important civil
rights law.
Seniors
May Pray Again at Texas Senior Center
In
August 2003, the City of Balch Springs, Texas,
told seniors using the city’s senior center
that they could no longer pray out loud
before meals, get together to sing gospel music,
or bring in religious speakers, such as an elderly
minister who for years had led a Monday morning
devotional with friends at the center. All of
these activities had been initiated and run by
the seniors themselves, without the involvement
of city employees. A group of seniors filed suit
against the city in September, claiming violations
of their right to free speech under the First
Amendment and equal protection of the law under
the Fourteenth Amendment.
The
Civil Rights Division opened an investigation
in November 2003 to determine if the city was
engaged in discrimination against religion in
violation of the Constitution and Title III of
the Civil Rights Act of 1964, which prohibits
discrimination based on religion in public facilities.
In addition to written questions and document
requests, the Civil Rights Division sent an attorney
to the site in December, who met with both city
officials and attorneys as well as the plaintiffs
and their attorney.
On
December 22nd, the Balch Springs City Council
voted unanimously to lift the ban on religious
activity at the center and to adopt a policy
that will permit speakers to address center members
without censorship based on the religious viewpoint
of the speech. On January 8, 2004, the city and
the seniors filed a consent judgment with the
Federal District Court. On the same day, the Civil
Rights Division announced that it was closing
its investigation. Assistant Attorney General
R. Alexander Acosta remarked: “Senior citizens
should not be forced to check their faith at
the door in order to participate in city-run
programs and facilities. There is a critical
difference between government-sponsored religious
speech, which raises legitimate concerns about
government neutrality toward religion, and the
personal religious expression of citizens who
wish to engage in activities such as voluntary
prayer before meal.”
Division
Argues that Town Violated Rights of Orthodox
Jewish Congregations
Assistant Attorney General R. Alexander Acosta appeared
before the 11th Circuit Court of Appeals in Atlanta
on January 13, 2004, arguing for the United States
that the Town of Surfside, Florida illegally barred
two Orthodox Jewish congregations from meeting
in commercial space they had rented. The case, Midrash
Sephardi v. Town of Surfside, was brought
by the congregations in Federal court under the
Religious Land Use and Institutionalized Persons
Act (RLUIPA) (see “Focus on RLUIPA” below
for more information on this statute enacted in
2000). The congregations had been meeting in rented
space above a bank, and were faced with eviction
because the town zoning code did not permit houses
of worship in the business district, although “lodge
halls” and “private clubs” operated
for “social, educational or recreational
purposes” were permitted under the code.
The United States intervened in the case after
the Defendants challenged the constitutionality
of RLUIPA.
The
district court ruled against the plaintiffs.
Although the “equal terms” subsection
of RLUIPA (section 2(b)(2)), provides that “[n]o
government shall impose or implement a land use
regulation in a manner that treats a religious
assembly or institution on less than equal terms
with a nonreligious assembly or institution,” the
court found that there was more synergy between
businesses and secular assemblies, and thus houses
of worship were distinguishable. The court also
ruled that while RLUIPA bars operation of zoning
laws that would cause a substantial burden on
religious exercise without compelling government
justification, this provision should be read
to mean burdens on citizens of the jurisdiction.
Since most of the congregants lived across the
border in the neighboring communities of Bal
Harbor and Bay Harbor Islands--even though these
are within walking distance of the property--the
court held that they could not show a burden
under RLUIPA.
On appeal to the Eleventh Circuit, the United States
submitted briefs supporting
reversal of the district court and arguing
that RLUIPA was a constitutional
exercise of Congress’s power. The Civil
Rights Division argued that excluding a synagogue
where “social, educational, and recreational” clubs
or lodges are permitted is a plain violation of
RLUIPA’s “equal terms” provision,
and is precisely the harm that Congress was trying
to rectify when it enacted RLUIPA. Senators Hatch
and Kennedy, the Senate sponsors of RLUIPA, issued
a summary of the bill explaining that the equal
terms provision is targeted at the problem that “[z]oning
codes frequently exclude churches in places where
they permit theaters, meeting halls, and other
places where large groups of people assemble for
secular purposes.” The United States' brief
also argued that RLUIPA explicitly protects “persons,” and
not merely residents or taxpayers of particular
jurisdictions, and that the district court was
wrong to hold otherwise. As AAG Acosta said in
an interview with the Miami Herald: “The
big-picture issue is this: can you discriminate
on the basis of religion against neighboring residents
to protect your tax base?” See “Justice
Department Backs Jewish Congregations’ Suit,” Miami
Herald, January 14, 2004. The answer to that question,
we believe, is no, and the United States will continue
to defend the rights of people of all faiths to
gather for worship without facing discrimination
from zoning laws.
Focus
on RLUIPA
The Religious
Land Use and Institutionalized Persons Act,
or RLUIPA, was passed by a unanimous Congress in
2000. RLUIPA bars governments from discriminating
against churches and other religious uses, or substantially
burdening such uses without compelling justification,
in applying zoning and landmark law. The law gives
the United States authority to bring an action
for injunctive relief, and this responsibility
for enforcement has been assigned to the Civil
Rights Division. The Civil Rights Division has
opened 15 formal investigations and filed one lawsuit
under RLUIPA, United
States v. Maui. (See Adam Liptak, “Justice
Department Takes up a Little Church’s Zoning
Fight,” New York Times, July 4, 2003.)
The
Division’s RLUIPA investigations involve
institutions that span the breadth of religious
traditions. Many of these investigations have
led to out-of-court resolutions, such as:
West
Mifflin, Pennsylvania: A predominantly
black Baptist congregation purchased a church
that had been vacated by a predominately
white Baptist congregation, but was denied
an occupancy permit. After the Civil Rights
Division sent a letter to the town stating
that it was opening an RLUIPA investigation
in December of 2002, West Mifflin issued
the congregation its permit.
Northbrook, Illinois:
Northbrook, Illinois’ zoning
ordinance totally prohibited religious
uses from a number of its business
and industrial zones, but permitted non-religious
membership-based organizations like
the Rotary Club. After the Civil
Rights Division opened an RLUIPA
investigation in response to a complaint
by a Presbyterian congregation in
April of 2003, Northbrook amended its zoning
ordinance to treat houses of worship
the same as other private organizations.
Loudoun
County, Virginia: A Muslim K through 12 school purchased
a large tract of land in Loudoun County in 1997 with plans
to build a campus to combine its elementary and high
schools. Despite open and widespread anti-Muslim
animus expressed in the community against
the school, the county issued a conditional
use permit to the school. Then, in 2002,
the County Zoning Administrator issued a
ruling that would move up the date in which
construction would have to be completed,
which would have had the effect of blocking
the project. In December of 2002, the Civil
Rights Division opened an RLUIPA investigation
and sent a letter to the county seeking information.
One month later, the county’s Board
of Zoning Appeal reversed the Zoning Administrator,
thus allowing the project to move forward.
The
Civil Rights Division is committed to continuing
to work to ensure that RLUIPA rights are enforced.
The Division’s Housing and Civil Enforcement
Section currently has seven formal investigations
open and has eleven preliminary inquiries underway.
If you have an RLUIPA matter that you think may
be of interest to the Division, please contact
the Housing and Civil Enforcement Section.
United
States Department of Justice
Civil Rights Division
http://www.usdoj.gov/crt