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

March 2011
Volume 45
 

Religious Freedom in Focus is a periodic email update about the Civil Rights Division's religious liberty and religious discrimination 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);

the Civil Rights Division is working to protect the right of all people to practice their faiths freely and without discrimination.

Back issues of this newsletter may be found at http://www.justice.gov/crt/spec_topics/religiousdiscrimination. You may also contact the Special Counsel for Religious Discrimination, Eric W. Treene, at (202) 353-8622.

IN THIS ISSUE:

DOJ Files RLUIPA Suit on Behalf of Sikh Inmate

On March 15, the Department of Justice filed a lawsuit in federal court against various California officials and entities under the Religious Land Use and Institutionalized Person Act (RLUIPA) seeking to protect a Sikh inmate who has been ordered to cut his hair and beard in violation of his faith. The lawsuit follows a Justice Department investigation that revealed that California’s inmate grooming policy had imposed a substantial burden on the ability of Sukhjinder Basra, a practicing Sikh, to exercise his faith.

Basra is incarcerated at the California Men’s Colony in San Luis Obispo, California, in its minimum security facility. He is a lifelong Sikh who adheres to the Sikh principle of Kesh, the requirement to allow one’s hair and facial hair to grow naturally and remain unshorn. He considers it a grievous sin to cut his hair. Beginning in March 2010, Basra has been ordered repeatedly to cut his beard, which he has refused to do because of his religious convictions. As a result he has faced increasingly severe discipline.

RLUIPA’s institutionalized persons provision provides that state and local governments may not impose a substantial burden on the religious exercise of a person confined to institutions such as prisons, mental health facilities and state-run nursing homes, unless the government can demonstrate that the imposition of the burden furthers a compelling governmental interest and is the least restrictive means of furthering that compelling interest.

The United States’ suit seeks to intervene in a private lawsuit recently filed on behalf of Basra. The suit was filed in the U.S District Court for the Central District of California against the state of California, the California Department of Corrections and Rehabilitation, Governor Jerry Brown, and two other officials. The suit seeks an order under RLUIPA requiring the defendants to allow Basra to wear his facial hair unshorn without penalty.

On the day the complaint was filed, Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, remarked: “The freedom to practice one’s faith in peace is among our most cherished rights. RLUIPA has proven to be a powerful tool in combating religious discrimination and ensuring religious freedom.” André Birotte Jr., U.S. Attorney for the Central District of California stated that “[t]he rights guaranteed by the Constitution extend to all people in the United States. By protecting those rights – even for those incarcerated – we strengthen those rights for all.”

RLUIPA, which also contains a provision protecting places of worship and other religious land uses from discrimination and unjustifiable burdens on religious freedom, was enacted by both houses of Congress unanimously and signed into law on September 22, 2000. The Civil Rights Division issued a Report on the 10th Anniversary of RLUIPA on September 22, 2010, detailing how RLUIPA has helped secure the ability of thousands of individuals and institutions to practice their faiths freely and without discrimination. The Division also issued policy statements on RLUIPA’s institutionalized persons section and its land use section in conjunction with RLUIPA’s tenth anniversary, designed to provide guidance for state and local officials in formulating policies and practices, as well as information for religious organizations and individuals whose rights may have been violated.

The institutionalized persons provision of RLUIPA is enforced by the Civil Rights Division’s Special Litigation Section. More information about the Division’s work to protect the religious rights of institutionalized persons act may be found here. The land use provisions are enforced by the Division’s Housing and Civil Enforcement Section. Information about the rights of places of worship and other religious land uses may be found here.

Court Holding Facility is Covered by RLUIPA, En Banc Court Rules

On March 15, the U.S. Court of Appeals for the Ninth Circuit held that a county court holding facility that required a Muslim woman to remove her headscarf while in custody awaiting a court appearance was an "institution" covered by the Religious Land Use and Institutionalized Persons Act (RLUIPA). The unanimous decision in the case, Khatib v. County of Orange, was issued by an eleven-judge en banc panel, and reversed a decision by a three judge panel of the court issued in May 2010. The United States filed an amicus brief and argued the case before the en banc court in December 2010.

The case involves a Muslim woman, Souhair Katib, who had been convicted of misdemeanor violations of California welfare law and sentenced to probation and community service. During a subsequent court appearance, the court temporarily revoked her probation, and she was held in the Orange County Santa Ana Courthouse holding facility for most of the day. Before being placed in a holding cell, Ms Katib was required, despite her repeated objections, to remove the headscarf she wears for religious reasons.

Ms. Katib filed suit in federal court against the county and county officials, claiming that their actions in requiring her to remove her headscarf violated RLUIPA. Section 3 of RLUIPA provides that “no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The federal trial court dismissed her complaint, finding that the county holding facility was not an “institution” under RLUIPA, and therefore the court did not have to analyze whether the headscarf ban substantially burdened Katib’s religious exercise or whether the ban was justified. RLUIPA by reference defines “institution” as including, among other things, jails and “pretrial detention facilit[ies],” but the trial court held that the holding facility was neither. On appeal, a panel of the United States Court of Appeals for the Ninth Circuit agreed and affirmed the dismissal. Judge Kozinski wrote a vigorous dissent.

The Ninth Circuit granted en banc review. The United States filed a friend of the court brief for the en banc rehearing and was granted leave to argue before the en banc court. The eleven judge court unanimously reversed the district court, finding that the court holding facility was indeed a “pretrial detention facility.”

The court observed that Congress enacted RLUIPA out of recognition of “the significance of religious freedom in all aspects of life.” The court also noted that RLUIPA states that its provisions are to be construed “in favor of broad protection of religious exercise, to the maximum extent permitted” by its terms and the Constitution. The court thus found that the court holding facility easily qualified as a “pretrial detention facility.” A pretrial detention facility means, the Court held, “precisely what that phrase suggests: a facility where individuals who are not yet convicted are held pending court proceedings.” The Orange County courthouse holding facility houses as many as 600 detainees per day, including persons taken into custody at the courthouse and those transferred from other facilities for court hearings or trials. It thus plainly qualified as a “pretrial detention facility,” the court held, and therefore was an “institution” for purposes of RLUIPA. The court held alternatively that the holding facility also qualified as a jail, likewise triggering RLUIPA.

The court did not have before it the merits of the case, that is, whether requiring Ms. Katib to remove the scarf was a substantial burden and whether requiring removal furthered a compelling government interest through the least restrictive means. The court of appeals thus sent the case back to the trial court for further proceedings.

More information about the Civil Rights Division’s enforcement of the institutionalized persons section of RLUIPA may be found at the Special Litigation Section homepage.

Sentencing in Ohio Church Arson

On March 9, an Ohio man was sentenced to 51 months in prison for setting fire to the First Azusa Apostolic Faith Church of God in Conneaut, Ohio. Ronald J. Pudder of Conneaut pleaded guilty last year to setting fire to the predominantly African-American church in May 2010, in an attempt to destroy it. First Azusa is the sole predominantly African-American church in the Conneaut area.

Pudder was prosecuted under the Church Arson Prevention Act, which makes it a crime to intentionally damage, destroy, or attempt to destroy religious property, or use force or threat of force to interfere with religious exercise. Pudder pleaded guilty under a section of the Act making it a crime to engage in such arson or violent interference with religious exercise because of the race, color, or ethnic characteristics of the targeted church.

As a result of the arson, the front door of the church was scorched, but the flames did not penetrate its interior. Investigators later determined the front door and other doors had been doused with an accelerant, but only the front door had caught fire.

On the day of the sentencing, Thomas E. Perez, Assistant Attorney General for Civil Rights stated: “In this nation, one of our most basic rights is the freedom to practice our faith in peace. We will not tolerate acts of violence that attempt to disrupt that right.”

More information about the Civil Rights Division’s prosecutions of attacks on places of worship and other hate crimes may be found at the Division’s Criminal Section home page.

Texas Man Pleads Guilty in Arson of Mosque Playground

On February 23, an Arlington, Texas, man pleaded guilty to violating the Church Arson Prevention Act by setting fire to a playground outside a mosque in July 2010. Henry Clay Glaspell pleaded guilty in federal district court to deliberately setting the fire at the Dar El-Eman Islamic Center in Arlington.

At the plea hearing, Glaspell admitted that he set the fire as part of a series of ethnically-motivated acts directed at individuals of Arab or Middle Eastern descent associated with the mosque. Glaspell further admitted that he stole and damaged mosque property, threw used cat litter at the front door of the mosque, and shouted racial or ethnic slurs at individuals of Arab or Middle Eastern descent at the mosque on multiple occasions. This marks the 50th prosecution of post-9/11 backlash crimes against Arab, Muslim, Sikh and South Asian Americans brought by the Department of Justice. These prosecutions, which have involved assaults, arsons, and threats against members of these communities, have resulted in 45 convictions to date.

“Arab-Americans are part of the American family, and the defendant today admitted that he targeted Arabs at a Mosque where people worship peacefully and children play,” Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, said on the day the plea was entered. He added that “hate-fueled incidents of this kind will not be tolerated in our country. The Justice Department is committed to vigorously prosecuting hate crimes against all persons.”

U.S. Attorney for the Northern District of Texas James T. Jacks likewise remarked that “all members of our community must be free to live without fear that they will be targeted because of their ethnicity or religion. This office will vigorously prosecute those who commit such despicable acts of hatred.”

Glaspell’s sentencing has been set for July 11, 2011. Glaspell faces a maximum penalty of 20 years in prison.

More information about post 9/11 backlash prosecutions, and cases involving discrimination against Arab, Muslim, Sikh and South Asian Americans, may be found at the Civil Rights Division’s Initiative to Combat Post-9/11 Backlash page.

Guilty Pleas in California Synagogue and Church Vandalism Case

On January 14, two California men pleaded guilty to federal civil rights charges in connection with the 2006 vandalism of a synagogue and two churches in Modesto. The men, Brian Lewis of Modesto and Abel Mark Gonzalez of Morgan Hill, pleaded guilty in federal district court to conspiring to violate the civil rights of congregants of Congregation Beth Shalom by spray-painting anti-Semitic and neo-Nazi graffiti on the synagogue’s exterior walls. They also admitted to vandalizing two churches in Modesto with anti-Christian graffiti. The churches targeted were a Roman Catholic church and school, Our Lady of Fatima, and the Greek Orthodox Church of the Annunciation.

In response to the guilty plea, Thomas E. Perez, Assistant Attorney General for the Civil Rights Division remarked that “freedom of worship for all Americans is a constitutional right that the federal government will continue to protect through strong enforcement of our nation’s civil rights laws.” He added that “this prosecution sends a clear signal to all who may contemplate similar conduct that we will continue to seek justice for victims of hate crimes and will hold accountable those who threaten religious freedom.”

Similarly, U.S. Attorney for the Eastern District of California Benjamin B. Wagner stated: “This country and this state are bastions of religious freedom, and our duty is to preserve and protect that liberty. No job is more important for this office than protecting the right to worship free from violence, fear, or intimidation. As this case indicates, together with the FBI and our state and local law enforcement allies, we will vigorously investigate and prosecute those who attack that right.”

Lewis and Gonzalez each face a maximum sentence of 10 years in prison and a fine of $250,000. A sentencing hearing has been set for April 8, 2011.

Sentencing in Desecration of Alabama Messianic Synagogue

On January 21, a federal judge sentenced Thomas Hayward Lewis to a year and a day in prison for violating the civil rights of congregants of the Congregation Tree of Life Messianic Synagogue in Mobile. Lewis pleaded guilty last to violating the Church Arson Prevention Act by defacing the synagogue with threatening graffiti and neo-Nazi markings.

Lewis admitted that in January 2009, he and accomplice Christian Rodney Ice spraypainted the Messianic synagogue with anti-Semitic graffiti and neo-Nazi markings. Lewis also pleaded guilty to unlawful possession of an unregistered firearm. Ice, who also pleaded guilty to violating the Church Arson Act, is currently serving a two-year probation sentence.

"Threats against religious institutions and their members have no place in this country and will not be tolerated," Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, said on the day of the sentencing. "This case should send a clear message to others who would carry out similar criminal acts that they will be held accountable for their actions."

U.S. Attorney for the Southern District of Alabama, Kenyen R. Brown, remarked: "The U.S. Attorney’s Office is committed to the protection of our citizens’ civil rights. The U.S. Constitution’s guarantee of freedom of religion is one of our citizen’s most sacred civil rights."

Exhaustion of Remedies not Required Under RLUIPA, Court Holds in Buddhist Worship Center Case

On January 13, a federal court in California held that the United States could sue the City of Walnut under the Religious Land Use and Institutionalized Persons Act (RLUIPA) for denying zoning approval to a Buddhist worship center, even assuming the center had not exhausted all local administrative appeals. The United States District Court for the Central District of California court held in the case, United States v. City of Walnut, that after the City Planning Commission denied the Chung Tai Zen Center a zoning permit, it did not need to appeal the case to the city council before it, or the United States, could bring suit under RLUIPA.

The Zen Center had applied for a conditional use permit to build a worship center in Walnut in June 2006. After working with city planning staff, the staff recommended approval in June 2007. In January 2008, the city planning commission denied the application.

The United States filed suit under RLUIPA on September 13, 2010, alleging that the city’s denial discriminated against the Zen Center based on religion. The suit also alleged that the city had treated the Center less favorably than nonreligious places of assembly, and that it imposed a substantial burden on the Center’s religious exercise without compelling justification. The lawsuit alleges that that until it denied the Zen Center’s permit application, the city had not rejected any application for a conditional use permit to build, expand or operate a house of worship since at least 1980. The complaint also alleges that the city treated the Zen Center differently than similarly situated religious and non-religious facilities.

The city moved to dismiss the complaint in federal district court, claiming that the Zen Center had not exhausted its remedies because it could have appealed the planning commission’s denial to the city council, and that the United States suit to enforce the Zen Center’s RLUIPA rights therefore should be barred. The United States responded that, while the Zen Center had in fact appealed the decision through a letter to the city council, such an appeal was not required before a RLUIPA land-use suit can be brought. The federal district court agreed that exhaustion of administrative remedies is not required for land-use suits under RLUIPA. The court noted that the section of RLUIPA addressing prisoners’ rights is subject to the exhaustion requirements of the Prison Litigation Reform Act of 1995, but that RLUIPA is silent as to the land-use provisions. As a result, “the carve-out of an exhaustion requirement for prisoners in RLUIPA demonstrates that Congress did not intend to impose a general exhaustion requirement in RLUIPA actions.”

The court further noted that even if there were an exhaustion requirement for land use claims under private lawsuits under RLUIPA, it would not apply to RLUIPA suits brought by the United States. The court observed that “it is a well-settled principle of law that the United States will not be barred from independent litigation by the failure of a private plaintiff.”

RLUIPA, enacted in 2000, contains a number of different provisions protecting churches, synagogues, mosques, temples, and other places of worship from discrimination and undue interference with religious exercise through application of zoning and landmarking laws. On the tenth anniversary of RLUIPA on September 22, 2010, the Department of Justice issued a Report on Enforcement of RLUIPA, along with a Statement on RLUIPA with common questions and answers about this important law.

Los Angeles Zoning Decision Against Jewish Congregation May be Reviewed in RLUIPA Suit, Federal Court Holds

On January 6, a federal court in California held that claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA) by a small Jewish congregation that was denied a permit to hold services in a home in a Los Angeles neighborhood could proceed. The City of Los Angeles had argued that Congregation Etz Chaim already had an opportunity to demonstrate to city zoning officials why it should be allowed to operate, and that these hearings precluded further review in federal court under RLUIPA. The court rejected this argument, however, and instead adopted the United States’ reasoning that the city’s preclusion argument would undermine the purpose of RLUIPA.

This case involves the longstanding efforts of the congregation to gather for worship in a house in the Hancock Park neighborhood. The congregation’s rabbi, in fact, testified before Congress while it was considering passage of RLUIPA, and the congregation added a RLUIPA claim to a pending 1997 lawsuit shortly after RLUIPA’s passage in 2000.

In the latest phase of this dispute, the Central Area Planning Commission again denied the congregation a conditional use permit in 2009 that would have allowed it to operate. The Congregation's latest lawsuit, filed on March 3, 2010, alleges that the city's permit denial violated RLUIPA. The city moved to dismiss the suit, arguing that any RLUIPA claims are legally precluded in federal court because of the decisions of the administrative hearings that the congregation had before the Planning Commission and before a city zoning official.

The Justice Department filed a statement of interest with the court on November 1, 2010, setting forth the United States’ position that precluding the RLUIPA claim would be improper.

In its decision on January 6, the District Court first noted that preclusion can only apply when a state adjudicative body has already decided an identical issue or set of issues. Here, the congregation has brought suit specifically to challenge the zoning denial as being improper under RLUIPA. The zoning authorities’ decision therefore cannot be deemed to have decided the issue already. The court held, quoting the Ninth Circuit Court of Appeals in Guru Nanak Sikh Society v. County of Sutter, that “it would be counterintuitive, to say the least, for a federal court to shield local government officials from scrutiny under the Constitution and federal civil rights laws by giving preclusive effect to their allegedly discriminatory decisions.”

Indeed, the court held, RLUIPA was designed precisely to address improper actions by boards of zoning appeal and similar governmental bodies. The court quoted at length the United States’ argument that “the legislative history demonstrates that Congress enacted RLUIPA to serve as a federal statutory solution to religious discrimination and violation of the free exercise of religion by state and local entities, including zoning boards, planning commissions, and their respective agencies of appeal. This congressional purpose would be thwarted if zoning boards are able to insulate actions that would violate RLUIPA by making a ruling purportedly under RLUIPA and then arguing that a claimant is precluded from challenging the ruling. Therefore, there should be at minimum, a strong presumption against finding preclusion, to ensure that Congress’s intent to provide an enforcement mechanism for discrimination and violation of the free exercise of religion is not undermined.”

More information about the Civil Rights Division’s enforcement of the land use provisions of RLUIPA may be found at the Division’s Housing and Civil Enforcement Section homepage.


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