Religious
Freedom in Focus is a periodic email update about
the Civil Rights Division's religious liberty and religious discrimination
cases. The Civil Rights Division 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.
More information about this initiative, and back
issues of this newsletter, may be found on the religious
discrimination home page of the Civil
Rights Division website. You may also contact the Special Counsel for Religious Discrimination, Eric W. Treene, at (202)
353-8622.
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IN THIS ISSUE:
Salvation
Army’s Government Contracts Do Not Waive
its Religious Freedom Protection, Court Rules
A federal court in New York has ruled that
the Salvation Army did not waive federal protections for religious
organizations’ hiring
rights when it entered into contracts with the City of New York
and others to provide social services such as foster care, adoption
services, and AIDS hospice care. On September 30, federal District
Court Judge Sidney Stein dismissed portions of a case brought
by the New York Civil Liberties Union against the Salvation Army
and New York officials claiming that the Salvation Army had violated
federal employment discrimination laws. Judge Stein ruled that
a federal law guaranteeing religious organizations autonomy in
personnel matters barred such claims. The court decision is an
important affirmation of a key facet of the President’s
Faith-Based and Community Initiative. The Department of Justice
filed a friend-of-the-court
brief in the case in August 2004.
The Salvation Army’s activities in New York include providing
various social services through contracts with the government,
such as foster care and adoption services, operation of group
homes, HIV services, and day care. A group of Salvation Army
employees filed suit against city and state officials, and the
Salvation Army itself, claiming that the programs constituted
impermissible aid to religion, and that the Salvation Army’s
policy of considering religion in hiring and staffing decisions
violated Title VII, the federal law prohibiting discrimination
based on religion. A provision in Title VII specifically exempts
religious organizations like the Salvation Army and permits them
to consider religion in personnel decisions, in order to respect
their autonomy. However, the employees argued that this provision
is unconstitutional when the organization is performing contracts
with the government.
The Salvation Army and the other defendants moved to dismiss
the complaint. The United States filed a friend-of-the-court
brief, due to the national importance of the issues involved.
The court agreed that a religious organization that contracts
with the government to provide secular services does not lose
its right to preserve its character through its hiring and staffing
decisions. The Court held: “the notion that the Constitution
would compel a religious organization contracting with the state
to secularize its ranks is untenable in light of the Supreme
Court’s recognition that the government may contract with
religious organizations for the provision of social service.
. . . Just because the Constitution may require that the content
of government-funded services be secular does not mean that the
providers cannot feel a sense of spiritual fulfillment in providing
them.”
The
court thus dismissed the employment discrimination
claims against the Salvation Army, as well as other
state and federal claims. The court permitted plaintiffs’ claim
that the services provided by the Salvation Army
are in their application not secular as required
by the Constitution to go forward, since this claim
was distinct from the other, rejected claims: “Any
impermissible advancement of religion in this action
derives from the government defendants’ support
for the Salvation Army’s programs–which
may or may not prove to violate the Establishment
Clause as this litigation unfolds–not from
the broadly applicable exception to Title VII.”
DOJ Obtains Consent Decree in Bus Driver Religious
Accommodation Case
The Department of Justice entered a consent
decree with the Los Angeles Metropolitan
Transit Authority on October 4, resolving a lawsuit brought
by the United States against the MTA for refusing to accommodate
bus drivers’ Sabbath
observances.
The suit challenged the MTA’s policy of requiring all
prospective bus drivers to state on their job applications that
they can be available “24/7.” The MTA rejected outright
applicants who could not be available any day or time. The case
was prompted by a complaint from a Jewish man who was refused
consideration because his faith forbids him to work from sundown
Friday through sundown Saturday. The Civil Rights Division filed
suit under Title VII to vindicate his rights, and the rights
of all other future applicants whose religious requirements conflict
with their work schedules.
Title VII requires employers to make a reasonable accommodation
of an employee’s religious observance and practice, “unless
an employer demonstrates that he is unable to reasonably
accommodate to an employee's or prospective employee's
religious observance or practice without undue hardship
on the conduct of the employer's business.” While accommodations
that would cause undue hardship on the employer need
not be made, a blanket policy of rejecting anyone with religious
conflicts with the 24/7 work schedule, the suit contended,
violates the law. The bus drivers’ union, the United
Transportation Union, was added as a party as well.
In
the consent decree, the Los Angeles MTA agreed to
make a number of changes to its policies that will
accommodate the religious needs of employees in a manner
consistent with the rights of other employees under
the collective bargaining agreement. Under the consent
decree, the MTA must accept the applications of Sabbath-observant
applicants, and provide them with information about
their accommodation rights. The agreement permits
bus drivers to swap assignments with other drivers.
It also provides that if a driver is not able to
use his seniority to obtain a schedule that accommodates
his religious needs, and cannot find someone with
whom to swap assignments to avoid working on his Sabbath,
then he can go on a temporary leave of absence, with
benefits and without loss of seniority, until an
assignment that meets his needs becomes available. The
agreement also requires the MTA to include information
about religious accommodations in its literature and
in training programs for supervisors.
“We
are pleased that we were able to reach an agreement
that accommodates the religious needs of bus drivers,
while being consistent with the business needs of
the MTA and the rights of other employees,” said
Wan J. Kim, Assistant Attorney General for the Civil
Rights Division. “The
opportunity to serve the public should be open to
all, regardless of religion.”
Federal
Court Permanently Bars New York City
School Board’s
Discrimination Against Religious Speech
On November 17, a federal court in New York ruled that
the New York City School Board unconstitutionally
discriminated against religious speech when it refused
to rent school facilities on Sundays to a Christian
congregation on an equal basis with other civic and
community groups. Judge Loretta Preska ruled that
there was no valid basis for denying the congregation
equal access to facilities on the grounds that its
speech was religious in nature. The United States
filed a friend of the court brief in support of the
congregation’s position in the case, Bronx Household of Faith v. Board of Education
of the City of New York.
The School Board makes school facilities available for rent
after hours to groups for "social, civic and recreational
meetings and entertainments, and other uses pertaining to the
welfare of the community." Under this policy, nearly 10,000
groups per year hold activities at school facilities. Rental
for religious services, however, is forbidden, and Bronx Household’s
application to rent facilities on Sundays for weekly worship
meeting was rejected. After litigation in the 1990's failed,
Bronx Household filed suit again in 2002, claiming that it was
entitled to equal treatment based on the Supreme Court’s
2001 decision in Good News Club v. Milford. In Good
News Club,
the Supreme Court held that a policy nearly identical to New
York City’s could not be used to bar a group from using
school facilities after-hours that teaches morals and character
to children through Bible study and games, prayer and songs.
Based
on Good News Club, Judge Preska ruled in June 2002 that Bronx
Household of Faith was likely to win the case, and granted
a temporary order allowing them to rent the school facilities
as the case progressed. The School Board appealed, and the
United States filed a friend-of-the-court
brief with the Court of Appeals. The Court of Appeals upheld Judge
Preska. Since then, as the suit has proceeded, Bronx Household
and 22 other congregations have used school facilities for
Sunday services.
Despite
the holding of the Court of Appeals that the reasoning of
Good News Club should apply to this situation, New
York continued to fight to deny equal access to the church.
In May 2005, the United States filed a second
friend-of-the-court brief, this time with the trial
court, urging it to grant a permanent injunction against
the School Board.
In her November 17 ruling, Judge Preska agreed with the United
States’ arguments and permanently barred the school from
discriminating against religious speech. She remarked that the
School Board’s continued insistence that barring the church
from the school "does not amount to unconstitutional viewpoint
discrimination is astonishing in light of the Supreme Court's
clear holding in Good News Club." She rejected the School
Board’s claim that it needed to discriminate to avoid appearing
to support religion in violation of the Establishment Clause.
She noted that the fact that (i) rentals were made to community
groups on a first-come, first-served basis; (ii) that the congregation’s
meetings took place on Sundays when no children were present;
and (iii) that the School Board’s requirement that all
posters and advertisements indicate clearly that the school does
not endorse the function, all serve to undercut the School Board’s
argument that members of the community might think that the School
Board was supporting the congregation’s worship activities.
Indeed, she added, “not only does the Board not endorse
Plaintiffs’ activities, but it has actively opposed them
for more than a decade.”
Guilty
Pleas in Detroit Mosque Threat Cases
Two
men who sent threatening emails to a Detroit mosque have
pleaded guilty to violating the civil rights of the mosque’s
congregation. On November 15, John Barnett pleaded guilty
in the U.S. District Court for the Eastern District of Michigan
to sending a threatening email from his home in North Salem,
New York to the Islamic Center of America in May 2004. This
followed on the heels of the November 9 plea of Michael Bratisax
to sending a similar message from Pleasantville, New York
to the Islamic Center of America in Detroit the same month.
The cases were prosecuted by the Civil Rights Division and
the U. S. Attorney’s Office for the Eastern District
of Michigan.
The
statute under which the men were convicted, 18
U.S.C. 247,
makes it a crime
to “intentionally obstruct[ ], by force or threat of
force, any person in the enjoyment of that person's free
exercise of religious beliefs, or attempt[ ] to do so.” The
defendants face up to a year in prison each.
"All
Americans have the right to worship where they choose, undisturbed
by intimidation and racist threats," said Wan J. Kim,
Assistant Attorney General for the Civil Rights Division. "The
Justice Department is committed to prosecuting anyone who
threatens to commit or commits acts of criminal bigotry."
United States Argues that Boy Scout Jamboree
at Fort A.P. Hill Does Not Violate Constitution
The
United States filed an appeals
brief on October 28 in the
United States Court of Appeals for the Seventh Circuit, arguing
that the military’s support for the Boy Scout Jamboree
does not violate the separation of church and state. A lower
court ruled on June 22, 2005 that because the Boy Scouts
require members to take an oath to do their duty to God and
to be reverent, federal support for the Boy Scouts violates
the Constitution’s Establishment Clause. The court
permanently barred future jamborees from being held at Fort
A.P. Hill in Virginia or from receiving any support from
the military.
The
brief, filed by DOJ’s Civil Division, argues that the
Boy Scout Jamboree, held every four years, offers the military
a unique opportunity to project a positive image to the more
than 40,000 Scouts and leaders in attendance. The military
holds events such as band performances and fly-overs, operates
an adventure training area, displays military equipment,
and provides logistical support to the Scouts, such as building
tent cities and bathrooms. In addition to providing a public
relations event to reach potential future officers and soldiers,
the logistical support provided serves a military training
function as well.
The
brief explains that while the Scouts do in fact have a requirement
in the Scout Oath that a Scout do his duty “to God
and his country” and that reverence is a virtue listed
in the Scout Law, the Boy Scouts is not a religious organization.
The brief notes that “the BSA has no theology and does
not engage in religious instruction itself, but merely encourages
members to practice their religious beliefs as directed by
their families and spiritual advisors.” The support
for the Jamboree provided by the military simply cannot be
equated with the types of aid to religious organizations
that have been found to violate the Establishment Clause,
the brief concludes.
As
discussed in a previous article in
Religious Freedom in Focus, the Civil Rights Division filed
a friend
of the court brief earlier this year
in an appeal of a similar case in which a federal court in
San Diego ruled that the Establishment Clause barred the
city from leasing parkland to the Boy Scouts to build a campground
and an aquatic center. The case is expected to be heard by
the Ninth Circuit Court of Appeals in January.
United
States Urges Ninth Circuit Court of Appeals to Uphold
Constitutionality of RLUIPA
In
two appeals heard on October 17, the United States urged
the Ninth Circuit Court of Appeals in San Francisco to uphold
the constitutionality of the Religious
Land Use and Institutionalized Persons Act (RLUIPA).
One federal court in California, in Guru
Nanak Sikh Society v. County of Sutter, discussed in
detail in a prior Religious
Freedom in Focus, upheld
RLUIPA as a valid exercise of Congress’s power to enforce
civil rights under the Fourteenth Amendment. Another California
federal court reached the opposite result in Lake
Elsinore Christian Center v. City of Elsinore, and struck
down the statute as unconstitutional. Attorneys for the United
States argued that RLUIPA merely codified existing protections
under the Free Exercise, Equal Protection, and Establishment
Clauses of the U.S. Constitution, and to the extent that
Congress might be considered to have added further legal
protections, these were legitimate prophylactic measures
designed to deter constitutional violations.
The
Civil Rights Division has opened 25 RLUIPA investigations
since 2001, and filed 3 lawsuits under the statute. Investigations
have yielded favorable outcomes without litigation in nine
cases. Further information about RLUIPA is available at the
Division’s Housing
and Civil Enforcement Section webpage.
A one-page color information sheet about RLUIPA that can
be printed and distributed is available here.
United States Department of Justice
Civil Rights Division
http://www.usdoj.gov/crt