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
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)
IN THIS ISSUE:
Censoring Religious Song at School Talent Show Unconstitutional, Federal Court Rules
On December 11, the United States District Court for the District of New Jersey held that the Frenchtown Elementary School District violated the Free Speech rights of a second grade student when it prohibited her from singing a Christian song in a school talent show. The Civil Rights Division had filed a friend-of-the-court brief in the case, O.T. v. Frenchtown Elementary School District Board of Education, arguing that the district’s censorship was unconstitutional because it was based solely upon the religious perspective of the song.
The Frenchtown Elementary talent show, dubbed “Frenchtown Idol,” was held on a Friday night and consisted of songs, skits, and other performances by students. Each student was free to choose his or her own act, subject to a few basic guidelines barring acts using profanity or involving weapons, alcohol or drugs. However, when the plaintiff chose to sing a contemporary Christian song, “Awesome God,” she was told that it was inappropriate because of its religious content. The plaintiff’s parents subsequently filed suit in federal court, claiming that the school’s censorship violated the First Amendment. The school defended its actions by arguing that the song had an overtly religious, proselytizing message and that permitting the song would have violated the Establishment Clause of the First Amendment.
The district court rejected these arguments, finding that the school’s censorship of “Awesome God” violated the student’s free speech rights. The court first held that this case did not involve a school exercising control over its curriculum, but rather involved restrictions on individual student speech in an activity designed for student expression. The court found that “Frenchtown Idol was not part of the school curriculum, but was, instead, a voluntary after-school event in which students were invited – not required – to participate. Frenchtown Idol participants were obligated to select their own pieces for the performance, and to develop and rehearse them at home. Indeed, despite some general oversight by faculty members to ensure that the selected material did not contain profanity, vulgarity or inappropriate sexual overtones, the school did not maintain any control over the participants’ selections.”
Since the student’s selection otherwise fit the parameters of the forum, the school could not censor it because of its religious perspective, the court ruled. The court specifically rejected the school’s claim that while a song with some religious content like “God Bless the USA” would be fine, this song should be censored because it was a “proselytizing song” that “commanded the listener to adhere to the singer’s beliefs.” The court pointed out that many songs encourage someone to believe something, noting that school officials had admitted that students could sing songs that “espouse a belief that it is important to take care of the earth, espouse a belief that it is important to help poor and impoverished people, and to lean on friends when they experience hardships.” In light of the fact that secular “proselytizing” through songs would be permitted, the court ruled that the school not discriminate against religious songs that did the same thing.
Finally, the court held that allowing the student to sing “Awesome God” would not violate the Establishment Clause. The individual performances in the talent show are properly viewed as the speech of the performer, and not that of the school, the court held. The court noted that “even if the school sponsored and promoted the talent show as an event, the school did not promote Plaintiff’s – or any other student’s – individual performance or speech.”
Assistant Attorney General Wan J. Kim applauded the decision. “Schools may not discriminate against students because of their religious beliefs and expression,” he said. “While the Establishment Clause bars schools from engaging in religious activities and expression, this prohibition does not extend to the individual expression of students.”
Settlement Reached in Church Eminent Domain Case
On the eve of oral arguments before the United States Court of Appeals for the Second Circuit, Faith Temple Church and the Town of Brighton, New York entered a stipulation of settlement on November 9 mooting the appeal addressing whether the town’s taking of the church’s property violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Civil Rights Division had filed a brief in support of the church’s position, and Assistant Attorney General Wan Kim was scheduled to argue the case before the appeals court on November 13.
As described in the April/May 2006 issue of Religious Freedom in Focus, the United States had argued that because the church’s land was being seized as part of the town’s implementation of its comprehensive zoning plan, RLUIPA’s protections applied. The settlement reached by the parties will permit the church to build on its land, while selling a portion to the town.
RLUIPA, enacted in 2000, protects houses of worship and other religious uses of property from discriminatory or unduly burdensome landmarking and zoning regulation. 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 through voluntary modification of zoning policies regulations. The Division also has filed four RLUIPA lawsuits. More information about RLUIPA can be found on the Civil Rights Division's Housing and Civil Enforcement homepage.
United States Brief Argues That Village Interfered with Orthodox Jews’ Religious Obligation to Visit the Sick
On November 27, the United States urged a New York trial court to reject the Village of Suffern’s motion to dismiss its lawsuit challenging the village’s refusal to permit an Orthodox Jewish “Shabbos House” to operate near a hospital in the village. The United States filed suit September 25 in federal district court in Manhattan, contending that the village violated RLUIPA when it denied zoning approval to the house operated by an Orthodox Jewish group that provides lodging and meals to Orthodox Jews who have been released from care at the hospital or who are visiting patients at the hospital, but whose religious beliefs preclude them from traveling on the Sabbath or holy days.
As set forth in the October Religious Freedom in Focus, the village determined that the Shabbos House should be classified as a “transient/motel,” a use not permitted anywhere in the village. An Orthodox Jewish group, Bikur Cholim, sought a variance to permit it to operate a Shabbos House for up to 14 people, which was denied. The United States then filed suit under RLUIPA seeking to require the village to permit the operation of the Shabbos House. One of RLUIPA’s provisions requires that when a zoning law places a “substantial burden” on religious exercise, a government may only enforce it if it can show that it serves a compelling government interest and that this is the least restrictive way to achieve that interest.
In response to the United States’ suit, the village asked the court to dismiss the case. The village’s central argument is that visiting the sick is not a tenet of Judaism, so the village is not burdening anyone’s exercise of religion. The United States’ brief responds that “RLUIPA does not require that ‘religious exercise’ be ‘compelled by, or central to, a system of religious beliefs.’” Rather, the brief contends, something is religious exercise “if the beliefs are sincerely held and in the individual’s own scheme of things, religious.” Thus “the Village’s denial of Bikur Cholim’s application burdens the religious exercise of Orthodox Jews visiting relatives at the Hospital, forcing them to choose between violating the rules of the Sabbath or neglecting their religious obligation to visit the sick.”
United States Files Brief to Protect Florida Zoning Discrimination Settlement
On October 25, the Civil Rights Division filed an appeals brief arguing that the trial court in the United States’ zoning discrimination suit against Hollywood, Florida properly rejected a last-minute attempt by a synagogue’s neighbors to stop a settlement. In the case, Hollywood Community Synagogue and United States v. City of Hollywood, the synagogue and the United States claimed that the city had discriminated against an Orthodox Jewish synagogue in barring it from operating in a residential neighborhood, in violation of RLUIPA. After almost two years of litigation, on the eve of trial and as the city, the synagogue, and the United States prepared to settle the case, the synagogue’s neighbors sought to intervene and stop the settlement.
As detailed in the June/July Religious Freedom in Focus, the Civil Rights Division reached a consent decree with the City of Hollywood, Florida and the Hollywood Community Synagogue, entered on July 7, 2006, which allows the synagogue to continue to operate in the residential district where it is located. The Department of Justice had filed suit in April 2005, alleging that the City had discriminated against the Chabad Lubavitch-affiliated synagogue in denying it a permit and taking action to shut it down, while granting permits to and allowing operation of similarly situated houses of worship. The synagogue had filed its own RLUIPA challenge in September 2004, which was consolidated with the United States’ suit.
On June 26, 2006, the day the case was scheduled for trial, the parties informed the district court that they had decided to settle the case through a consent decree. Then, on July 6, a group of the synagogue’s neighbors sought to intervene in the case to stop the settlement. The trial court denied this request on July 7, and entered the consent decree reached by the parties.
The United States' brief argues that the District Court was correct in rejecting the last-minute effort by the neighbors to scuttle the settlement. The neighbors had been actively involved in opposing the synagogue since 2001, and had consulted with the city throughout the litigation, including appearing as witnesses in depositions. The brief argues that the trial court properly rejected their argument that they did not know until the last minute that their interests might not be fully protected by the city, in light of ongoing settlement discussions between the parties that were reported in the press, editorials in local papers calling for a settlement, and press reports from as early as May 2005 indicating that several city commissioners believed that case should be settled. The brief concluded that “overwhelming evidence establishes that long before appellants moved to intervene, they knew that negotiations between the parties were ongoing and that their interests had not always been squarely aligned with the City’s.” The brief thus urges the appeals court to hold that the District Court was correct in not allowing the neighbors to come in at the eleventh hour to disrupt the settlement.
United States Department of Justice
Civil Rights Division