DOJ seal United States Department of Justice
Civil Rights Division
RELIGIOUS FREEDOM IN FOCUS

August/September 2007
Volume 27
 

Religious Freedom in Focus is a periodic email update about the Civil Rights Division's religious liberty and religious discrimination cases. On February 20, 2007, the Department of Justice launched a new initiative, The First Freedom Project, to highlight its 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:

Consent Decree Entered in Florida Sabbath Accommodation Case

On August 28, the United States District Court for the Southern District of Florida entered a consent decree resolving the Justice Department’s suit against Palm Beach County alleging that the county failed to accommodate a park ranger’s Sabbath observance.

The United States’ lawsuit under Title VII of the Civil Rights Act of 1964, filed August 7, alleged that a part-time park ranger for the County’s Park and Recreation Department was denied reasonable accommodation of his need to refrain from work on Sundays and was constructively discharged from his position as a result. Title VII requires employers to make a reasonable accommodation of employees’ religious observances and practices, unless doing so would cause undue hardship to the employer. The case was referred to the Justice Department by the Equal Employment Opportunity Commission after the EEOC was unable to mediate an agreement between the ranger and the county.

Under the terms of the consent decree, the ranger is being offered his job back, along with back pay and retroactive pension contributions. The consent decree also requires the county to provide training for supervisory personnel on Title VII’s requirements and post notices about this consent decree at various locations.

Acting Assistant Attorney General for the Civil Rights Division Rena J. Comisac applauded the agreement. “Public employees should not be forced to choose between their jobs and their faith,” she remarked. “The law requires employers to undertake reasonable efforts to accommodate employees’ religious needs. We are pleased that the county worked cooperatively with the Department of Justice to resolve this matter.”

The case was handled by the Civil Rights Division’s Employment Litigation Section, which 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.

Mormon Scholarship Recipient Denied Equal Treatment, Brief Argues

The United States filed a friend-of-the-court brief on August 24 arguing that West Virginia improperly denied a Mormon college student a scholarship deferral when he took a two-year leave of absence to become a missionary. The brief filed in the case, Haws v. West Virginia Higher Education Policy Commission, argues that because the state grants referrals for a variety of secular reasons, the Free Exercise Clause requires the state to have a compelling reason for not extending similar exemptions to students requesting scholarship deferrals for religious reasons.

David Haws, an honors graduate from his West Virginia high school, was awarded a “PROMISE Scholarship,” a merit-based scholarship designed to encourage top graduates to go to college in the state. He chose to attend West Virginia University, and the scholarship covers virtually all of his tuition and fees. In the spring of his freshman year, Haws turned 19 and determined to go on a two-year mission in accordance with his Mormon beliefs. He sought a two-year deferment of his scholarship.

The West Virginia Higher Education Commission regulations permit scholarship deferments in a range of circumstances. Deferments are provided for personal medical leave, family medical reasons, bereavement, voluntary enlistment in the armed services for up to seven years, or being called to duty in the armed services. The Commission regulations also provide for additional deferments at the discretion of the scholarship program’s executive director.

Under the Free Exercise Clause of the United States Constitution, persons whose religious beliefs conflict with generally applicable and neutral laws or policies are ordinarily not entitled to an exemption. This principle was established by the Supreme Court in Employment Div., Dept. of Human Resources of Oregon v. Smith (1990), which held that since the drug laws applied to everyone without exception, a Native American religious practitioner could not receive an exemption to permit him to take the drug peyote. However, the Smith Court noted that a law or policy is not “generally applicable” if it includes a system of “individualized exemptions,” that is, if it permits exemptions based on a case-by-case “assessment of the reasons for the relevant conduct” and the “particular circumstances” involved. When such a system of exemptions exists, the government may refuse to extend such exemptions to religious reasons only if it has a compelling reason for refusing to do so.

The United States’ brief argues that West Virginia has established just such a system of individualized exemptions both by exempting certain pre-approved reasons for which it will allow scholarship deferments, and by reserving the discretion to grant exemptions on a case-by-case basis. Accordingly, as the Supreme Court stated in Church of the Lukumi Babalu Aye v. City of Hialeah (1993), “in circumstances in which individualized exemptions from a general requirement are available, the government may not refuse to extend that system to cases of religious hardship without compelling reason.” Thus, the United States argues, the Commission must show compelling reasons for denying a deferment to Haws to accommodate his religious mission, which it failed to do.

Zoning Authorities Cannot Bar Church From Zone Where Secular Assemblies Are Permitted, United States Argues to Seventh Circuit

On September 12, the Civil Rights Division argued to the Seventh Circuit that the City of Indianapolis likely violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it refused to permit religious assemblies in a commercial district without a zoning variance while allowing non-religious assemblies as-of-right in the same district. Special Counsel for Religious Discrimination Eric Treene argued on behalf of the United States as amicus in the case, Digrugilliers v. Indianapolis, that the city’s asserted interest in preventing establishments that sell alcohol and pornography from locating near churches could not justify barring them from the commerical district entirely.

As reported in Volume 24, the Civil Rights Division filed a friend-of-the-court brief with the Seventh Circuit on April 4, arguing that a lower court erred in rejecting the argument that RLUIPA required the city to allow churches in the commercial zone on the same terms as other assemblies.

In 2004, the Baptist Church of the Westside leased space in a commercial zone that permits clubs, assembly halls, community centers, and other similar uses and began holding worship and related activities in the building. The city subsequently told the church that its activities were barred in the commercial zone without a variance from the city. The church filed suit, claiming that the city had violated Section 2(b)(1) of RLUIPA, which provides that the government may not “impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”

The trial court below rejected the 2(b)(1) unequal treatment claim on the ground that churches were not similar to the various permitted assembly uses, for two reasons. First, the court argued, churches are permitted in certain other zones of the city as of right or by special use permit, and in those zones they are automatically allowed to have accessory uses such as parsonages and schools. The trial court reasoned that churches are thus treated very favorably in the overall zoning scheme. Second, the trial court reasoned that Indiana law restricts how close establishments selling liquor and pornography can be to a church, and thus a church in a commercial district could affect nearby businesses in ways that secular assemblies could not.

The United States’ brief argued that both of these grounds were in error, for essentially the same reason. Both grounds involved not an evaluation of the characteristics of the Baptist Church of the Westside and its actual assembly activities, but rather involved attributes the city and state have decided to ascribe to churches as a category. While some churches have or wish to have schools and parsonages, and therefore might look favorably on this zoning scheme, this church simply wishes to be treated as well as secular assemblies like clubs, lodges, and assembly halls. Similarly, some churches may like the law that prevents liquor and pornography from being sold nearby. But this church simply wants, as is its right under RLUIPA, to be treated the same as clubs, lodges, and other secular assemblies in the commercial district. As the United States’ appeals brief argued: “However well-meaning the State and City might have been in enacting these laws does not alter the conclusion that what they have actually done is treat the Church less favorably than nonreligious assemblies in violation of RLUIPA.”

The United States asked the Seventh Circuit Court of Appeals to reverse the trial court and hold that the church has shown that it is likely to succeed on its claim. The court took the case under advisement.

Registration Still Open for September 19 Religious Freedom Seminar in Chicago

The Department of Justice will hold its fifth regional seminar on Federal Laws Protecting Religious Freedom on September 19 at the Metcalfe Federal Building in Chicago. This seminar is part of the 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.

Acting Assistant Attorney General Rena J. Comisac will provide an introduction and overview of the seminar. The seminar will include presentations by Special Counsel for Religious Discrimination Eric Treene and Steven Rosenbaum, Chief of the Civil Rights Division’s Housing and Civil Enforcement Section, on 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). Kenneth W. Gibson, Deputy 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 liberty. Illinois CLE credit has been applied for, and CLE for other states may be available as well. A flyer about the seminar is available here. To register through September 17, please send an email to FirstFreedom@USDOJ.gov. After September 17, please call Valissa Johnson at 202.514.9470.


United States Department of Justice
Civil Rights Division
http://www.usdoj.gov/crt