Freedom in Focus is a periodic email update about the Civil Rights Division's religious liberty and religious discrimination cases. On February 20, 2007, Attorney General Alberto R. Gonzales announced a new initiative, The First Freedom Project, to highlight the Department of Justice's work protecting religious freedom. 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 and back issues of this newsletter may be found at www.FirstFreedom.gov. You may also contact the Special Counsel for Religious Discrimination, Eric W. Treene, at (202) 353-8622.
IN THIS ISSUE:
Philadelphia Woman Pleads Guilty to Sending Threat to Muslim Supervisor
On June 22, a Philadelphia woman pleaded guilty to a federal charge of criminal interference with employment on the basis of race and religion by sending a note threatening violence to her supervisor, who is Muslim and Arab-American. The sentencing hearing is scheduled for October 24. She faces a maximum term of one year in prison, a one year period of supervised release, and a $100,000 fine. This case was previously reported in Volume 25.
The woman, Kia Reid, left an anonymous threatening letter in her supervisor’s office at work which included the phrases “REMEMBER 9/11,” “you and your kids will pay,” and “death,” cut from magazines and newspapers. Reid’s actions violated 18 U.S.C. § 245, which makes it a crime to interfere with a person’s federally protected rights on the basis of race, color, religion, or national origin.
“It is twisted to believe that threats or violence against innocent Arab or Muslim individuals somehow avenge the terrorist attacks of 9/11,” said Wan J. Kim, Assistant Attorney General for the Civil Rights Division. “Our system of justice will not permit threats and attacks against innocents. The Justice Department will remain committed to vigorously prosecuting these crimes.”
Under the Department’s initiative to combat backlash crimes after 9/11, the Division has investigated over 750 backlash crimes involving violence and threats aimed at individuals perceived to be Arab, Muslim, Sikh, or South Asian. Prosecuting the perpetrators of bias-motivated crimes is a top priority of the Justice Department. Since 2001, the Division has charged 165 defendants in 105 cases of various bias-motivated crimes.
Township’s Taking of Mosque’s Property Implicates RLUIPA, United States Argues
On July 20, the United States filed a friend-of-the-court brief arguing that a New Jersey township may have violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) by delaying a mosque’s building application for more than three years, then attempting to seize its property. The brief, filed in Albanian Associated Fund v. Township of Wayne, argues that the mosque had presented sufficient evidence to show that the Township used its eminent domain power to thwart the mosque’s zoning application for discriminatory reasons in violation of RLUIPA, and that the court thus should let the case proceed to trial. The United States, at the invitation of the court, also participated in the hearing on the Township’s motion for summary judgment on July 25.
The Albanian Associated Fund purchased land in Wayne in 2001 to build a mosque, then applied for the necessary conditional use permit in 2002. The land is vacant and is located near a church, a preschool facility, an office building, a service station, and residences. A group of Wayne residents opposed the mosque’s construction, and hearings on the conditional use permit were heated.
While the Township Planner in 2003 found that the mosque’s building project was in compliance with the various criteria, the conditional use permit remained pending for more than three years. The mosque presented evidence that there were various procedural irregularities in how its application was handled and in how the Township responded to the mosque’s readiness to address the various concerns the Township raised about the building project. In April 2006, while the permit application was still pending, the Township short-circuited the permit process by starting eminent domain proceedings to take the property, saying that the Township wanted to preserve the property as an open space. The mosque filed suit under RLUIPA and various state and federal constitutional provisions in July 2006. In June 2007, the Township moved for summary judgment.
RLUIPA makes it illegal to discriminate on the basis of religion in the “impos[ition] or implent[ation]” of a “land use regulation.” The United States’ brief contends that the mosque has produced sufficient evidence to show that the Township deliberately thwarted the mosque’s conditional use permit application for discriminatory reasons through its exercise of its eminent domain power. The brief asserts that the conditional use permit process is plainly a “land use regulation,” and notes that there is evidence that “[i]n addition to delay and other measures used to thwart the construction of the Mosque’s religious facility, the Township drew on its power of eminent domain to accomplish its goals of barring construction.” The brief concludes that “[i]n this context, the use of eminent domain may properly be viewed as the implementation of the Township’s land use regulations,” and thus “[t]he elements of an RLUIPA violation are therefore all properly presented in this case.” The United States therefore urged the court to deny summary judgment and allow the case to proceed to trial.
Since 2001, the Civil Rights Division has reviewed more than 130 cases involving RLUIPA and has opened 32 formal investigations. These have included investigations involving Christian, Jewish, Muslim, Hindu and Buddhist houses of worship and religious schools. Many of these have been resolved out of court through voluntary modification of potentially discriminatory zoning 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 Section RLUIPA page or at www.FirstFreedom.gov.
Second Circuit Sends Bronx Household of Faith Back to Lower Court
In the most recent court decision in a Christian congregation’s prolonged efforts to rent New York school facilities on weekends on an equal basis with secular organizations, the United States Court of Appeals for the Second Circuit sent the case back to the trial court for further proceedings.
In 2002, a federal trial court in Manhattan entered a temporary injunction requiring the New York City Board of Education to permit the Bronx Household of Faith and other religious congregations to rent school facilities after-hours on equal terms with other private organizations as Bronx Household’s lawsuit moved forward. The Court of Appeals upheld that temporary injunction in 2003, agreeing with the United States’s friend-of-the-court brief that under the Supreme Court’s Good News Club v. Milford decision, the exclusion likely was viewpoint discrimination in violation of the First Amendment.
After the school board revised its policy and again denied the church an equal opportunity to rent facilities, the trial court ruled in favor of Bronx Household and entered a permanent injunction. The city appealed. The United States submitted another friend-of-the-court brief in July 2005, arguing that the City still was unconstitutionally discriminating based on viewpoint. The brief argued that worship falls within the permitted category of social, civic, or other activities “pertaining to the welfare of the community” under which thousands of private organizations have been permitted to rent facilities after hours. Worship, the brief argues, is also communicative in the same way that songs, speeches, secular rituals, and other activities engaged in by groups like the American Legion, the Boy Scouts and Girl Scouts, and other community organizations are. Consequently, the United States argued that worship is not a distinct, excludible category of speech in these circumstances.
The Court of Appeals did not decide the case, however, but instead sent it back to the trial court for further proceedings. There were three separate opinions from the three judges who heard the case. Judge Leval held that the case was not ripe for adjudication because in his view it was not clear that the school board had formally adopted the revised policy in dispute. He thus voted to vacate the judgment below and remand the case. Judges Calabresi and Walker believed that the case was in fact ripe for adjudication and would have reached the merits. Judge Calabresi would hold that worship is a distinct category of speech, and thus the revised policy was viewpoint-neutral. He therefore also voted to vacate the lower decision, but on this different ground. Judge Walker reached the opposite conclusion, agreeing with the United States that the revised policy unconstitutionally discriminated based on viewpoint. With two judges wanting the trial court decision vacated, albeit for different reasons, the case was sent back to the lower court for further proceedings.
First Freedom Project Seminar to be Held in Chicago
On September 19, the Department of Justice will hold its fifth regional seminar on Federal Laws Protecting Religious Freedom at the Metcalfe Federal Building in Chicago. This seminar is part of the Attorney General’s First Freedom Project, which highlights the Department’s ongoing efforts to enforce laws against religious discrimination, criminal laws against interference with religious exercise and attacks on religious institutions and individuals, and other laws protecting religious freedom.
Special Counsel for Religious Discrimination Eric Treene and Steven Rosenbaum, Chief of the Civil Rights Division’s Housing and Civil Enforcement Section, will discuss civil laws protecting religious freedom, including laws against discrimination in education, employment, housing, public facilities, and public accommodations, as well as the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). Mark Kappelhoff, Chief of the Civil Rights Division’s Criminal Section, will discuss federal laws criminalizing religion-based threats and violence against houses of worship and individuals.
The seminar will be held from nine until noon, and is open to attorneys, community and religious leaders, government officials, and others who are interested in learning about laws protecting religious liberties. A flyer about the seminar, with registration information, is available here.
United States Department of Justice
Civil Rights Division