Religious Freedom In Focus, Volume 2

DOJ seal

United States Department of Justice
Civil Rights Division


March 2004
Volume 2

Religious Freedom in Focus is 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.


Civil Rights Division Submits Brief Defending the Boy Scouts' Right to Use City Land in San Diego; Court Refuses to Accept it

The Civil Rights Division on March 4, 2004, submitted a brief in federal court in San Diego in support of the Boy Scouts in Barnes-Wallace v. Boy Scouts of America, an ongoing legal battle over the Boy Scouts' use of city land. The brief argued that the Boy Scouts is not a religious organization and that its operation of a water-sports facility on city property does not violate the First Amendment's bar against establishments of religion. The Court, which ruled against the Boy Scouts last July in a related claim involving the Boy Scouts' operation of a campground in San Diego's Balboa Park, refused to accept the United States' brief. The United States is disappointed that its views will not be heard on this important issue in the trial court.

The Justice Department's friend-of-the-court brief was submitted in an ACLU lawsuit brought by six San Diego residents in U.S. District Court in San Diego that challenges a lease under which the Boy Scouts built an aquatic center on Fiesta Island for swimming, canoeing, kayaking and other water sports. In exchange for being able to reserve the facility for its own activities, the Boy Scouts agreed to invest more than $1.5 million to develop the center, pay all its operating costs and open it for use by other youth organizations. 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 sought to invalidate this lease and a similar lease for a Boy Scout facility in San Diego's Balboa Park, arguing that the Boy Scouts is a religious organization and that the leases violate the Establishment Clause of the Constitution. In July 2003, the District Court invalidated the Balboa Park lease but delayed ruling on the Fiesta Island lease, citing insufficient evidence.

The Justice Department brief argued that 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," and is not a religious organization under the Establishment Clause. The brief also argued that the type of benefit to the Boy Scouts that the suit challenges, namely opportunities for youth to participate in water sports, is secular in nature and cannot in any event be construed to be aid to religion in violation of the Constitution.

"Quite simply, the Boy Scouts of America is not a church, and canoeing, kayaking and swimming are not religious activities," said R. Alexander Acosta, Assistant Attorney General for the Civil Rights Division, in a press release announcing the submission. "The Boy Scouts should not be prohibited from using public lands on an equal basis with other youth groups."

The case is currently scheduled to be heard by the District Court on April 5, 2004.

Civil Rights Division Brief Defends Constitutionality of Title VII

On March 8, 2004, the Civil Rights Division filed a brief in the United States Court of Appeals for the Sixth Circuit defending the constitutionality of Title VII's religious accommodation provisions. In the case, Muhammed v. Ohio Department of Rehabilitation & Correction, a Muslim corrections officer brought suit in 2001 seeking, among other things, the right to wear a Muslim skullcap, called a kuffi, under his uniform cap. The State of Ohio moved to dismiss, arguing that Congress lacked authority to require states to accommodate the religious beliefs and practices of employees.

The District Court upheld the constitutionality of Title VII and the State appealed. The Civil Rights Division intervened in the Court of Appeals for the limited purpose of defending the constitutionality of Title VII. The brief filed by the Civil Rights Division on March 8th argues that the Title VII accommodation provisions, as applied to State employers, simply enforce the Free Exercise Clause of the Constitution. Because Title VII targets conduct that is subject to heightened constitutional scrutiny, the Civil Rights Division argues that Congress has the necessary leeway to craft appropriate remedies under Section 5 of the Fourteenth Amendment.

Civil Rights Division Closes Pennsylvania Religious Zoning Discrimination Investigation

On March 17, 2004, the Civil Rights Division announced that it was closing its investigation of the zoning practices of Brighton Township, Pennsylvania, in light of changes the township made to its zoning code to eliminate discriminatory treatment of houses of worship. The investigation had been opened in January of 2003 pursuant to the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") (see Focus on RLUIPA, Volume 1, February issue of Religious Freedom in Focus) after the Beaver Assembly of God was unable to expand its church due to zoning laws that facially discriminated against houses of worship.

Under the Brighton zoning code, houses of worship were limited to lots with five or more acres. However, numerous other types of buildings with the same or greater impacts on traffic and noise, including adult movie theaters and cabarets, assembly halls, and fraternal organizations, had no minimum acreage requirement. The Beaver Assembly of God's church, which it had occupied since the early 1970s, was on a 1.25 acre parcel. The church was too small for its growing congregation, and it purchased an adjoining 2-acre lot and sought to build a larger church. Its zoning application was rejected due to the failure of the combined parcels to meet the 5-acre minimum. The church brought a federal suit against the township in January of 2003, and the Department of Justice then opened an investigation, seeking documents and information from the township. The township subsequently amended its ordinance to remove the five-acre requirement and create a zone in the Township in which houses of worship are permitted as of right. The township also agreed to permit the church to proceed with construction on its property. In light of these victories, the Department of Justice has decided to close its investigation.

"Nothing justifies zoning laws that make it harder for people to assemble for religious exercise than for secular purposes such as civic meetings, fraternal gatherings, or movie going, let alone adult entertainment," said R. Alexander Acosta, Assistant Attorney General for Civil Rights. "We commend Brighton Township for recognizing the discrimination against religion that was written into its zoning code and for promptly correcting it."

Since September of 2000, when Congress enacted RLUIPA, the Civil Rights Division has opened 15 investigations into allegations of religious discrimination in local government land use and zoning practices in cases involving a wide range of religious traditions. For more information about RLUIPA, including information on filing complaints, please visit the Civil Rights Division's Housing and Civil Enforcement's RLUIPA page.

Church Arson Act's Constitutionality Defended

On February 9, 2004, the Eighth Circuit heard oral argument in United States v. Corum. The case involves the federal civil rights prosecution of Gary Corum for making a series of bomb threats to synagogues in the Minneapolis area. He was convicted of three counts of violating the statute known as the Church Arson Prevention Act, 18 U.S.C. 247, which prohibits damaging or destroying religious property, or interfering with religious exercise through force or the threat of force, in a manner that affects interstate commerce. He was also convicted of three counts of 18 U.S.C. 844(e), which prohibits using a telephone or other instrument of interstate commerce to make a threat.

On appeal, Corum argues that the Church Arson Prevention Act violates the Constitution's Establishment Clause by singling out religious institutions for special protection. He also maintains that there is an insufficient nexus between his acts and interstate commerce to satisfy the jurisdictional elements of the Act. In response, the Civil Rights Division argues in its brief that preventing violence affecting interstate commerce does not advance religion, but rather "curb[s] violence and threats that have an adverse effect on an aspect of interstate commerce that Congress found to be particularly vulnerable to violent interference." The Division also argues that Corum's threats affected interstate commerce because the synagogues are engaged in a wide range of religious, social service, and educational activities affecting commerce. The Eighth Circuit decision is pending.

Supreme Court Reverses Ninth Circuit in Locke v. Davey

The U.S. Supreme Court handed down Locke v. Davey on February 25, 2004, holding that the State of Washington did not violate the constitutional rights of a high school graduate when it barred him from using a State "Promise Scholarship" toward a Pastoral Ministries degree at a religiously affiliated college. The Ninth Circuit Court of Appeals had held that the state had violated his rights under the Free Exercise Clause of the Constitution. The United States submitted an amicus brief in support of affirming the Court of Appeals, arguing that Washington State had imposed a special disability on individuals' exercise of their religion in violation of the Free Exercise Clause because it permitted students to use their scholarships to undertake any choice of course of study, including the secular study of religion, but barred them from using their scholarships to major in theology at religious institutions.

The Supreme Court disagreed, holding that while the Establishment Clause permits students to use their scholarships for ministerial training, States are not required to allow the use of scholarships for such purposes. The Court noted the special concern expressed in State Constitutions at the time of the Founding regarding the use of tax funds to support the training of ministers. The Court also noted that students may use the Promise Scholarships to take theology courses at religiously affiliated schools, but only are forbidden from pursuing a theology or divinity degree. Finding that the "State's interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars, the Court held that Davey's rights were not violated.

United States Department of Justice
Civil Rights Division

Updated August 6, 2015