Religious Freedom In Focus, Volume 14

DOJ seal United States Department of Justice
Civil Rights Division

October/November 2005
Volume 14

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.


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

Updated August 6, 2015