Religious Freedom In Focus, Volume 6

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United States Department of Justice
Civil Rights Division


August/September 2004
Volume 6

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.

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.


Civil Rights Division Defends Constitutionality of Salvation Army Programs

The Civil Rights Division filed a brief on August 26 defending the constitutionality of the Salvation Army's contracts with New York City to provide foster care and other social services in a case filed by the New York Civil Liberties Union. The case has broad implications for President George W. Bush's Faith-Based and Community Initiative.

In Lown v. Salvation Army, a group of Salvation Army employees has sued the Salvation Army and the City of New York. They claim that the Salvation Army's inquiry into employees' religious affiliations, its requirement that employees not act in a manner that violates Salvation Army principles, and similar employment policies violate their constitutional rights. They contend that because the Salvation Army has contracts with New York to provide foster care and adoption services, residential treatment programs, and other social services sometimes provided by the government, the Salvation Army should be treated as the equivalent of the government itself for constitutional purposes. The suit thus contends that the Salvation Army cannot take religion into consideration in its employment policies and practices. The suit also claims that the contracts violate the separation of church and state.

The Salvation Army and the city filed motions asking the court to dismiss the case. The Civil Rights Division's friend-of-the-court brief for the United States asks the Court to grant these motions.

First, the brief argues that, contrary to the plaintiff's understanding, charitable and social works are not the sole province of the government. In fact, it notes, the history of private charity long predates the modern welfare state. This matters because under Supreme Court decisions, a private entity performing a uniquely government function may be a state actor subject to the same constitutional restrictions as the government itself. This is not the case here.

Second, the contracts with the Salvation Army do not violate the First Amendment ban on government establishments of religion. The social service programs are not themselves religious in any way. In fact, strict contract provisions specify that the services must not have any religious content. The United States' brief argues that when the government contracts with a private organization for social services that are wholly secular in nature, as here, the fact that the organization itself may be religiously affiliated and may have employment practices that take religion into consideration does not make the programs unconstitutional. So long as the government is getting the secular benefits that it pays for, it does not matter who is providing the services. To disqualify the Salvation Army simply because it is a religious organization would be to discriminate against religion, the brief argues.

This is one of the guiding principles behind the President's Faith-Based and Community Initiative. The outcome of this case will have nationwide implications for that initiative, and for the ability of faith-based programs at all levels to receive public support.

Texas City Council Changes Course and Permits Church Construction After DOJ Investigation

On August 30, the city council of Balch Springs, Texas reversed itself and now will permit a Christian congregation with a predominantly Hispanic membership to go forward with church construction plans. In response, the Civil Rights Division announced on September 3 that it was closing an investigation opened in June into whether the city council's prior zoning actions blocking the church violated the federal Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). Assistant Attorney for Civil Rights General R. Alexander Acosta applauded the decision: "Once again this new civil rights law has served to protect the rights of houses of worship朴articularly minority ones貿rom arbitrary government action. We are very pleased that Templo La Fe will be able to move forward with its plans."

Templo La Fe Worship Center, a Christian congregation with approximately 100 members, purchased a six-acre plot of land in 1997 in Balch Springs. The property is in a residential district in which houses of worship are allowed to locate as-of-right. Under the guidance of city zoning and planning officials, Templo La Fe spent $33,000 adding a water main and making other improvements necessary for construction of its church.

Despite the City's Planning and Zoning Commission's unanimous recommendation to approve the project in June 2003, the City Council overruled it. The Council cited concerns about traffic and drainage, issues that the Planning and Zoning Commission had addressed. Church members claim that council members made off-the record comments that they would prefer a commercial, tax-paying property on the site.

Templo La Fe filed a complaint with the Civil Rights Division, which opened an investigation on June 23, 2004 into whether the City Council's actions violated RLUIPA. RLUIPA bars zoning discrimination against houses of worship and religious schools. The Division sent document requests to the city, and a Division attorney met with city officials in August. Templo La Fe also filed a private lawsuit under RLUIPA.

On August 30, the Council voted to reverse its previous decision and granted Templo La Fe its use permit. The church expects to begin building soon.

The Department of Justice Civil Rights Division has opened 20 formal investigations under RLUIPA in cases involving religious schools and houses of worship from a broad range of religious traditions.

Civil Rights Division Files Brief in RLUIPA Appeal

On August 13, the Civil Rights Division filed a brief in the United States Court of Appeals for the Seventh Circuit, arguing that a federal trial court had erred when it dismissed a suit by a Greek Orthodox Church under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Saints Constantine & Helen Greek Orthodox Church sued New Berlin, Wisconsin, after the city denied the church's proposal to rezone a 14-acre parcel of land to build a church. In dismissing the suit, the trial court ruled that to establish a "substantial burden" on religious exercise that triggers the protection of RLUIPA, a church must show that there was no other location in the city on which it could build.

The Civil Rights Division brief argues that this rule misreads the statute. While the possibility of alternative locations should be one factor considered by a court in evaluating whether or not there is a burden, there are numerous other factors that need to be considered, such as the property's proximity to worshipers, the property's unique fitness to meet the church's religious needs, costs肪oth financial and time and effort紡lready incurred in planning the church, among others. The Civil Rights Division made the same argument in its brief in the Ninth Circuit Court of Appeals in Guru Nanak Sikh Society v. Sutter County. Both cases are pending.

Civil Rights Division Files Title VII Suit Against Los Angeles Transportation Authority for Failure to Accommodate Sabbath

The Civil Rights Division filed a suit on September 16 against the Los Angeles Metropolitan Transit Authority alleging that its policy of refusing to make any attempt to accommodate work schedules to meet employees' needs to refrain from work on the Sabbath violates Title VII. The complaint filed by the Civil Rights Division in federal court cites the example of a Jewish man who was fired from his job as a bus driver-trainee after he informed the MTA of his need to observe the Sabbath from sundown Friday to sundown Saturday. The suit seeks to require the MTA to adopt a policy for considering reasonable accommodations of the religious needs of employees.

The Civil Rights Division's Employment Litigation Section enforces Title VII in cases involving state and local government employers. Title VII prohibits discrimination on the basis of race, sex, religion, and national origin in hiring and in the terms and conditions of employment. Title VII requires employers to make a reasonable accommodation of employees' religious beliefs and practices, unless doing so would create an undue hardship for the employer.

United States Department of Justice
Civil Rights Division

Updated August 6, 2015