Religious Freedom In Focus, Volume 18

DOJ seal United States Department of Justice
Civil Rights Division

October 2006
Volume 20

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.


United States Files Civil Rights Suit Over Village Barring of Orthodox Jewish Shabbos House

The United States filed suit in the United States District Court for the Southern District of New York against the Village of Suffern, New York on September 25, alleging that the village’s denial of zoning approval to a group operating an Orthodox Jewish Shabbos House near a local hospital violated the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Bikur Cholim is a private religious organization that operates a Shabbos House near Good Samaritan Hospital in Suffern. The Shabbos House provides lodging and meals on the Sabbath to Orthodox Jews who have been released from care or who are visiting patients at the hospital, but whose religious beliefs preclude them from traveling on the Sabbath or holy days.

Bikur Cholim has operated a Shabbos House near Good Samaritan Hospital since 1988, first on the grounds of the hospital, and then, when the hospital in 2004 determined that it no longer had the space available for the Shabbos House, in a building across the street from the hospital’s parking lot. The Shabbos House is in a residential zone. The village determined that the Shabbos House should be classified as “transient/motel,” and there are no zones in the village that permit such uses. After the village denied it a permit, Bikur Cholim sought a variance to permit it to operate a Shabbos House for up to 14 people. The village denied the variance.

The suit alleges that Suffern’s enforcement of its zoning laws prevents Bikur Cholim from operating a Shabbos House anywhere within walking distance of the hospital. This, the suit alleges, imposes a substantial burden on the religious exercise of Orthodox Jews who cannot drive on the Sabbath or holy days, and therefore must be within walking distance of the hospital to visit friends and family or if they are released from the hospital on or near the Sabbath or holy days. RLUIPA requires that zoning laws that impose a substantial burden on religious exercise must be justified by a compelling governmental interest pursued in the least restrictive manner. The suit seeks an order from the court permitting the Shabbos House to operate.

Since 2001, the Civil Rights Division has reviewed more than 120 cases involving RLUIPA and has opened 26 full investigations. These have included investigations involving Christian, Jewish, Muslim, Hindu and Buddhist houses of worship and religious schools. Most of these have been resolved out of court through voluntary modification of potentially discriminatory zoning regulations. The Division also has filed three RLUIPA lawsuits. More information about RLUIPA can be found on the Civil Rights Division's Housing and Civil Enforcement Section homepage.

Michigan Court Finds that School Discriminated Against Student’s Religious Speech

On October 5, the United States District Court for the Eastern District of Michigan held that the Saginaw School District violated the Free Speech rights of a fifth-grade student when it barred him from passing out candy-cane ornaments with religious messages attached during a class exercise. The United States had filed a friend-of-the-court brief in the case, Curry v. Saginaw School District, arguing that censoring the student’s speech solely because it was religious violated his constitutional rights.

Every year, in mid-December, a Saginaw, Michigan elementary school holds an exercise called “Classroom City” in which each fifth-grader is asked to create, build, and market a product of his or her choosing. The students then “sell” the product to other students in exchange for pretend money in “stores” each child constructs from cardboard boxes in the school gymnasium. The activity is designed to teach children about business, commerce, and civics. In 2003, one fifth-grader chose to make candy-cane Christmas ornaments from pipe cleaners and beads to sell at Classroom City. He attached a card to each ornament entitled “The Meaning of the Candy Cane,” which described the religious significance of the colors and shape of the candy cane.

School officials, however, determined that the boy would have to remove the explanatory cards because of their religious content. His mother complained first to his teacher, and then to the school principal. However, the principal informed her that the card was inappropriate in a public school because it was religious. The boy’s parents filed a First Amendment suit in federal court. The school defended its actions on the ground that it sought to avoid disruption and to avoid violating the Establishment Clause of the Constitution.

The District Court in its October 5 decision held that the student’s candy-cane ornament with attached message was within the parameters of the assignment, which was designed to simulate a city where “different products and viewpoints converge on the streets and in commerce.” The court held that the school had discriminated against the student’s expression solely based on its religious viewpoint. The school could not justify its censorship on the ground that the messages would be seen as religious speech of the school rather than religious speech by the student, the court held. Under the facts here, the court found, where each child chose his own product and the purpose of the exercise was to simulate the diversity of the marketplace, “no reasonable observer would attribute to the school the religious message on the card attached to the candy cane ornament.”

The court declined the plaintiff’s request for an injunction and damages, however, because he no longer attended the school and thus would not engage in similar exercises at the school in the future, and because the case did not meet the requirements for monetary damages.

Assistant Attorney General Wan J. Kim applauded the decision: “The court properly recognized that there is a critical difference between religious viewpoints expressed by public schools, which the Constitution forbids, and individual religious expression by students at school, which the Constitution protects.”

Appeals Court Rules that Public Library May Exclude Religious Group Seeking Equal Access to Community Room

On September 20, the United States Court of Appeals for the Ninth Circuit ruled that a public library could bar a religious group from using its “community room” for holding a workshop that would include a sermon and other worship activity. The United States had filed a friend-of-the-court brief in November 2005 arguing that in light of the broad range of community groups that had been permitted to use the room, denying equal access to the religious group would violate the Constitution.

The Contra Costa County Library has a policy permitting community groups to use various meeting rooms at the library branches for holding meetings free of charge. The Antioch Branch Library has allowed its community room to be used by a wide range of groups, including Narcotics Anonymous, the Sierra Club, and the East Contra Costa Democratic Club. However, when Faith Center Church sought to hold a four-hour “Women of Excellence Conference,” the afternoon session of which would include a sermon and worship, the library denied the application based on a rule forbidding the community room to be used for worship.

Faith Center brought suit in July 2004, arguing that Supreme Court precedent prevented the county from discriminating against religious speech. A federal trial court agreed, and required the county to provide equal access for Faith Center’s conference. The county appealed.

In its brief, the United States cited the Supreme Court’s holding in Good News Club v. Milford (2001) that when the government opens space up to community groups for speech on a wide variety of matters of interest to the community, it cannot discriminate against community groups wishing to engage in religious speech. To do so is to discriminate against religious viewpoints. The brief observed: “religious worship . . . involves educational, cultural, and community aspects [and thus] meets the purposes established by the County for the library meeting rooms. Religious worship is also communicative. This is readily apparent when a leader preaches or reads to the congregation, but even corporate worship activities such as hymns and prayers are expressions among believers, and to observers, of their common faith.” The brief also contended that the county’s efforts to distinguish between religious speech, which it would allow, and religious worship, which it would exclude, invite the government to delve into constitutionally problematic religious matters. The brief stressed that while the county may not discriminate, it may undertake measures to prevent any particular group from dominating the community room: “The County may make and enforce neutral rules to avoid disturbing other patrons, such as noise limitations, or limitations on how frequently one group may use the room, but may not discriminate on the basis of viewpoint.”

The Ninth Circuit reversed, in a 2-1 decision, and held that Faith Center could be excluded from the community room. The majority held that while the Constitution prohibits discriminating against religious viewpoints on secular subjects, the government may discriminate against worship as a separate category of speech entirely. The court wrote that “[p]ure religious worship is not a secular activity that conveys a religious viewpoint on otherwise permissible subject matter,” and thus may as a category be excluded.

In a concurrence, Judge Karlton wrote that this case could be easily decided by reference to the “plain meaning of the First Amendment.” Judge Karlton wrote that the Supreme Court had erred in the last two decades in analyzing cases such as this under the Free Speech Clause. Rather, he argued, “religious speech is categorically different than secular speech and is subject to analysis under the Establishment Clause and the Free Exercise Clause without regard to the jurisprudence of free speech.”

In dissent, Judge Tallman argued that it is impossible to make a legal distinction between worship and other forms of religious expression. Since the Supreme Court has held that exclusion of religious expression based on its viewpoint is forbidden by the Constitution, the same should be true for religious expression that is characterized as “worship”: “The County cannot validly parse religious worship from other religious speech in trying to apply this policy without engaging in the very action it is trying to prevent -- entangling itself in religion in a manner that violates the First Amendment.”

On October 4, Faith Center filed a petition for rehearing with the Ninth Circuit. A decision on the petition is pending.

United States Department of Justice
Civil Rights Division

Updated August 6, 2015