Religious
Freedom in Focus is a
periodic 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.
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. |
IN
THIS ISSUE:
Civil Rights
Division Supports Boy Scouts' Right to Use Parkland
The Civil Rights Division
submitted an appeals brief on February 15, arguing that the Boy
Scouts' leasing of parkland from the City of San Diego does not violate the
Constitution. In Barnes-Wallace v. Boy Scouts of America, the U.S. District
Court held that the Boy Scouts of America is a religious organization and
therefore leases between the City and the Scouts to operate portions of city
parkland violated the Establishment Clause of the Constitution. The United
States' amicus brief to the Ninth Circuit Court of Appeals in San Francisco
explains that the Boy Scouts is not a religious organization for constitutional
purposes, and that in any event the leases are value-for-value transactions
that would not violate the Constitution even if made by the city with a church
or other religious organization.
The suit was brought by the ACLU on behalf of six San Diego
residents in U.S. District Court in San Diego challenging two
leases for city-owned, undeveloped parkland. In exchange for use
of the land, the Boy Scouts agreed to invest several million
dollars developing the sites, pay all operating and maintenance
costs, and open the facilities for use by other San Diego youth
organizations and individuals. Pursuant to these leases, the Boy
Scouts built an aquatic center on Fiesta Island for swimming,
canoeing, and other water sports, and built a campground in Balboa
Park. The City of San Diego has entered similar leases for the
development and maintenance of city-owned buildings and parkland
with more than 100 other community organizations. The lawsuit
challenges the leases on the ground that the Boy Scouts is a
religious organization and that the leases therefore violate the
Establishment Clause of the Constitution. The District Court
agreed, and invalidated both leases.
The Civil Rights Division's brief argues for reversal, stressing that
the fact that the Boy Scout Oath mentions God and the Scout Law
includes reverence as a virtue does not transform the Boy Scouts
into a church for Establishment Clause purposes. Rather, the brief
explains, the Boy Scouts "is a social and recreational organization
dedicated to promoting good character, citizenship, and personal
fitness in young boys in a manner that does not undermine, and in
fact respects and supports, the religious values with which they
enter the program." The brief also explains that even if this case
did involve an actual church, the leases would nonetheless be a
legitimate arms-length arrangement in which each side gave something
of value to obtain a benefit: the Boy Scouts paid a substantial sum
of money in development and maintenance costs and received use of the
land, and the City gave use of the land in exchange for the Scouts
providing valuable recreational resources that are open to the
public. Such arrangements, made between the City and many other
San Diego nonprofit groups, maximize the public benefit from public
land. The brief further explains that the activities at
issue–camping, canoeing, and swimming–are secular in nature and are
simply outside the purview of the Establishment Clause.
"Put simply, the Boy Scouts of America is not a church, and
camping, canoeing, and swimming are not religious activities,"
said R. Alexander Acosta, Assistant Attorney General for the
Civil Rights Division. "The Boy Scouts should not be barred
from leasing public lands on an equal basis with other youth
groups."
Seventh Circuit RLUIPA Victory
The United States Court of Appeals for the
Seventh Circuit handed down an important victory for the Religious
Land Use and Institutionalized Persons Act of 2000 (RLUIPA) on
February 1. In
Sts. Constantine and Helen Greek Orthodox Church
v. City of New Berlin, the appeals court unanimously held
that New
Berlin, Wisconsin violated RLUIPA when it declined to rezone a
40-acre plot of land to permit a Greek Orthodox congregation to
build a church. The Civil Rights Division submitted a
friend-of-the-court
brief, and argued the case for the United
States before the court. This is only the second federal appellate
decision upholding the claim of a house of worship under RLUIPA.
The United States also participated in the first RLUIPA
appellate victory,
Midrash Sephardi v. City of Surfside,
argued by Assistant Attorney General R. Alexander Acosta and handed down
by the U.S. Court
of Appeals for the Eleventh Circuit last year.
In Sts. Constantine and Helen, the Seventh Circuit held,
in an opinion by Judge Richard Posner, that the city's denial of
rezoning, and its proposal of various "delaying
game" procedural hoops, imposed a substantial burden on the church's
religious exercise. The Court rejected the trial court's reasoning
that a substantial burden could be found only if a church
demonstrated that it could locate nowhere else in the jurisdiction.
Instead, the court found that "the burden here was substantial.
The Church could have searched around for other parcels of
land... , or it could have continued filing applications with
the City, but in either case there would have been delay,
uncertainty, and expense."
The court explained that the purpose of the "substantial burden"
provision of RLUIPA is to "backstop[ ] the explicit prohibition
of nondiscrimination in the later sections of the Act." The
substantial burden provision thus addresses "the vulnerability
of religious institutions–especially those that are not
affiliated with the mainstream Protestant sects or the Roman
Catholic Church– to subtle forms of discrimination when, as in
the case of the grant or denial of zoning variances, a state
delegates essentially standardless discretion to nonprofessionals
operating without procedural safeguards."
Brief Filed in Florida School Choice Case
The Civil Rights Division submitted a
brief
with the Florida Supreme Court on January 25 arguing
that the Florida Court of Appeals employed an erroneous reading of
U.S. Supreme Court precedent when it struck down a Florida
school-choice program.
The case involves Florida's Opportunity Scholarship Program, which
provides students in failing schools with scholarships to use at
the school of their choice, whether public or private.
Several Florida taxpayers, represented by the ACLU, People for the
American Way, and a number of other nonprofit advocacy groups,
challenged the case under the Establishment Clause of the United
States Constitution as well as provisions of the Florida
constitution. The State of Florida, joined by the Urban League
and parents who intervened in the case, vigorously defended the
scholarship program. After the Supreme Court upheld school
vouchers in Zelman v. Simmons-Harris in 2002, the plaintiffs
dropped their Establishment Clause claim, but continued to pursue
their Florida constitutional claims.
On November 12, 2004, the Florida Court of Appeals ruled that the
Opportunity Scholarship Program violated a provision of the
Florida Constitution that bars money from the state treasury
from being used "in aid of any sectarian institution."
Prior Florida Supreme Court cases had upheld tax exemptions and
revenue bonds that aided religious institutions under this no-aid
provision, because these benefit programs were not directed at
aiding religion but were simply general welfare programs in which
religious institutions sought to participate. The appeals court,
however, distinguished these cases on the ground that they did
not involve direct cash transfers as does the Opportunity
Scholarship Program. The appeals court also rejected the
argument of the State and the intervernors that applying the
Florida constitution to bar students choosing religious schools
from the program would be discrimination against religion in
violation of the Free Exercise Clause of the U.S. Constitution.
The appeals court found this case to be similar to Locke v.
Davey (2004), in which the U.S. Supreme Court held that barring
a state-scholarship recipient from using his scholarship toward
a divinity degree did not violate the Free Exercise Clause.
In its amicus brief to the Florida Supreme Court, the Civil Rights
Division argues that the Florida Court of Appeals misread Locke v.
Davey. Locke, the brief stresses, "did not purport to overrule
prior Free Exercise precedents barring discrimination against
religion, but simply applied these precedents to the specific
situation of a State declining to fund the actual training of
clergy." The brief points out that the Opportunity Scholarship
Program involves neither of the two special circumstances
highlighted by the Supreme Court in Locke: the long historical
pedigree of the principle "prohibit[ing] using tax funds to support
the ministry," and the "relatively mild burden" on scholarship
recipients due to the small amount of the scholarship in that case
and the ability of divinity school students to use it toward
courses of study at other schools.
The brief explains how the Opportunity Scholarship presents an
entirely different set of facts from those in Locke. First, in
contrast to the mild burden on the scholarship recipient in Locke,
the Opportunity Scholarship Program provides children from poor
areas with scholarships of several thousand dollars. Denying these
scholarships could dramatically and negatively impact these
children. Second, unlike the bar on funding clergy training
upheld in Locke, "[h]ere, by contrast, the State actively is
seeking means to improve general primary and secondary education
for the poorest of students. No comparable historical pedigree
exists for barring such funds from being used by families for
tuition at religiously affiliated primary and secondary schools."
The brief also explains how the interpretation of the Florida no-aid
provision adopted by the Florida Court of Appeals would jeopardize
a wide range of Florida programs, from Medicaid funds that go to
religiously affiliated hospitals to state programs for students
with disabilities, some of whom attend religious schools. The
court of appeals' interpretation of the no-aid provision would thus
lead to discrimination against religious students and other benefit
recipients in a wide range of programs, raising serious federal
constitutional questions. Given these serious consequences of the
court of appeals' reasoning, the brief urges the Florida Supreme
Court to apply the doctrine of constitutional avoidance, that is,
avoiding creating federal constitutional difficulties whenever
possible. The brief argues that the best interpretation of the
no-aid provision in this case therefore is to interpret it
consistent with prior precedent allowing aid under general welfare
programs to go to religious uses through the private choices of
beneficiaries. This would avoid the First Amendment problems, both
in this case and in future cases involving other programs.
Civil
Rights Division Closes Investigation After City Grants Synagogue Permit
On February 2, 2005, the Civil Rights Division closed its
investigation into whether the City of Lyndhurst, Ohio violated
the rights of an Orthodox Jewish Synagogue under the Religious
Land Use and Institutionalized Persons Act (RLUIPA)
when it denied it a use
permit. The investigation was closed in response to the
City Council's changing course and deciding to grant the
permit.
The Warrensville Center Synagogue was founded in 1959 to serve an
Orthodox Jewish congregation in Cleveland Heights, an eastern
suburb of Cleveland, Ohio. The congregation consists substantially
of elderly Holocaust survivors, and currently numbers a little
under 200 members. The congregation sold its facility in Cleveland
Heights because many of its members had difficulty walking long
distances. In August 2000, the congregation purchased a lot of
slightly less than one acre in Lyndhurst, Ohio, on a site where
congregants could more easily walk to services.
On August 23, 2001, the Planning Commission denied Warrensville
Center Synagogue's application, stating that the application failed
to meet the objectives and specific requirements of the city's
Master Plan and zoning ordinance, which requires a two-acre minimum
lot size for religious institutions. On September 4, 2001,
the City Council affirmed the Commission's denial of the
congregation's application, stating that the parcel was a
non-conforming lot.
The Civil Rights Division opened an investigation of the city in
December 2003 to determine if it had violated the synagogue's RLUIPA
rights. In November 2004, the parties reached an agreement on a
revised building plan that the city believed would be better suited
to the lot size and that the congregation agreed would accommodate
its needs. With the Mayor's assistance, the congregation also
reached an agreement to share parking with the Church of the Good
Shepherd on an adjoining parcel. With these concerns addressed,
the city approved the revised application for a conditional use
permit and the variances necessary to enable the synagogue to build
on the location it had chosen. The Civil Rights Division closed its
investigation in response.
Assistant Attorney General for Civil Rights, R. Alexander Acosta,
applauded the city's approval of the synagogue: "We are pleased that
the city was able to find a solution that accommodated both the
rights of the synagogue members and the concerns of the city in
managing development."
Religious Bias Crimes Update
The Civil Rights Division's prosecutions of religious-based bias
crimes continue to yield strong results. Prosecuting the
perpetrators of bias-motivated crimes remains a top priority of
the Justice Department. During Fiscal Year 2004, the Justice
Department brought a record number of criminal civil rights
prosecutions.
Portland, Oregon Cemetery Desecration:
Two Oregon men have pleaded guilty to desecrating a Jewish cemetery in
Portland. The two men admitted that on May 24, 2003, they vandalized
the Congregation Shaarie Torah Cemetery by painting swastikas and
anti-Semitic slogans in order to frighten and intimidate area Jewish
residents. On January 13, the Division announced that Sean Andrew
Sigley, a self-described white supremacist, pleaded guilty to federal
conspiracy charges. He will be sentenced on March 28, 2005, and faces
up to ten years in prison. His accomplice, Steven Hale Smith, pleaded
guilty to damaging religious property on February 3, 2005. He also
awaits sentencing. The case was investigated by the Federal Bureau of
Investigation and the Portland Police Bureau.
Voice mail threats to Nebraska Mosque:
George M. Doyle, II, who pleaded guilty to leaving threatening voice
mail messages on the answering machine of the Islamic Center of
Omaha on November 17, 2004, was sentenced to 10 days imprisonment
and required to apologize to his victims.
E-mail threat to Muslim Organization:
On January 13, 2005, Dale T. Ehrgott pleaded guilty to sending
threatening emails from Reno, Nevada to the Washington, D.C.
offices of the Council on American-Islamic Relations. He was
sentenced by the court to one year's probation and fifty hours
of community service.
United
States Department of Justice
Civil Rights Division
http://www.usdoj.gov/crt