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

May 2011
Volume 46
 

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:

Conviction in Massachusetts Church Burning

On April 14, a jury in Massachusetts convicted Michael Jacques of three crimes related to the burning of a predominantly African-American Pentecostal Church in Springfield the morning after Barack Obama's election as the first African American president of the United States.

Evidence at trial established that in the early morning hours of November 5, 2008, Jacques and two co-conspirators poured gasoline on and set fire to the Macedonia Church of God in Christ, which was under construction and 75 percent complete. The fire completely destroyed the church. Jacque was convicted of violating 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. He also was found guilty of conspiracy to deprive parishioners of their civil rights, and use of fire in the course of a federal felony.

Jacques will be sentenced on September 15, 2011. Two other co-conspirators, Thomas Gleason and Benjamin Haskell, have previously pleaded guilty for their role in the arson. Haskell was sentenced to nine years in prison.

Civil Rights Division Closes Investigation of Unequal Treatment of Florida Church in Response to Zoning Change

On May 20, the Civil Rights Division notified the City of Palm Beach Gardens, Florida, that it was closing its investigation of the city under the Religious Land Use and Institutionalized Persons Act (RLUIPA) in response to zoning changes enacted on May 5, 2011. The Civil Rights Division had opened an investigation in January 2011, after receiving a complaint that a pastor had been told by the city that he would have to apply for a zoning permit in order to continue to hold worship in rented facilities in a public high school.

The Donald Ross Road Baptist Church had been renting the cafeteria of a public high school in Palm Beach Gardens, Florida, for Sunday worship for three years. These meetings are attended by approximately 25 worshippers. The church rents the space from Palm Beach County, which operates the school. However, the City of Palm Beach Gardens sent a notice to the county and the church in September 2010 that they would have to apply for a conditional use permit in order to continue holding services there, since the zoning code required churches to obtain conditional use permits in that zone. The zoning code, however, permitted theaters and indoor recreational centers without the need for a conditional use permit. Also, the county rented school space to various nonreligious entities, including civic organizations, performing arts groups, and for-profit educational groups, without any complaints from the city.

The Civil Rights Division opened an investigation to determine whether the city's actions were in violation of Section 2(b)(1) of RLUIPA, which provides that "No government shall 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."

In response, the city revised its ordinance on May 5. The revised ordinance allows religious organizations with fewer than 100 members to operate as a permitted use in every zoning district in the city. The ordinances also place religious uses with over 100 members in the same zoning category as other assembly uses, defined as any building used for fraternal, educational, political, or social purposes. In addition, the city refunded all fees that had been paid by the high school in connection with the city's earlier demand that the school apply for a conditional use permit. In light of these changes, the Civil Rights Division closed its investigation.

RLUIPA protects individuals, places or worship, and other religious institutions from discrimination in the application of zoning and landmarking laws. On September 22, 2010, the Civil Rights Division marked the 10th Anniversary of this important law by releasing a report on the first ten years of RLUIPA enforcement, and issuing policy guidance to help citizens and local officials understand their rights and obligations under RLUIPA. Additional information about the Division's RLUIPA land use cases may be found at the Housing and Civil Enforcement Section homepage.

Civil Rights Division Closes Frederick, Maryland, RLUIPA Investigation After Zoning Law Amended to Treat Religious Assemblies Equally

On May 23, the Civil Rights Division closed its investigation of the City of Frederick, Maryland, under RLUIPA after the city amended its zoning ordinance to treat religious assemblies equally with non-religious assemblies.

The Civil Rights Division opened an investigation of the city in March 2010, after receiving a complaint that the Strong Tower Church had been prohibited from operating in leased premises in the city's business district. The church, a growing congregation of approximately 50 members, had previously met in the pastor's home. It found vacant space for rent in a strip mall in the downtown business district. The site had previously been used as a computer training facility. When the church applied for a use permit, however, the city told the pastor that churches were prohibited in the business zone. A variety of non-religious assembly uses, however, were allowed in the business zone, including private clubs, reception facilities, child care facilities, dance and music schools, theaters, and others.

The Civil Rights Division opened an investigation to determine if the city's zoning code, both on its face and in its application to the Strong Tower Church, violated section 2(b)(1) of RLUIPA. That section requires that religious assemblies be treated, at a minimum, on equal terms with nonreligious assemblies.

In response, earlier this year the city amended its ordinance to allow churches as a permitted use in the downtown business district, thus equalizing treatment with nonreligious assemblies. After reviewing the new ordinance and confirming with the complainant that all outstanding issues had been resolved, the Civil Rights Division notified the city on May 23 that it was closing its investigation. The church is now seeking new rental space in the city.

Additional information about the Department of Justice's enforcement of the land use provisions of RLUIPA is available on the Civil Rights Division's Housing and Civil Enforcement Section's homepage.

Consent Decree Entered in Jewish Boarding School Case

On May 6, a federal judge in New York entered a consent decree resolving a suit filed by the United States alleging that the Village of Airmont violated RLUIPA and the Fair Housing Act (FHA) by blocking construction of a Jewish boarding school. In the consent decree, which is a settlement approved and enforced by a court, the village agreed to alter its zoning code, allow the school to be built, and take other remedial measures.

The United States filed suit in June 2005, alleging that the village enacted a ban on boarding schools in 1993 specifically to keep Hassidic Jews from settling in the village. At the time the ban was enacted, the Hassidic Jewish community operated boarding schools, called yeshivas, in nearby areas. The village's zoning code permits group care facilities, nursing homes, sleep-away camps, and hotels. The suit alleges that the village enacted the boarding school ban to keep Hasidic yeshivas out of the village in violation of RLUIPA and the FHA. The suit also contends that the village violated the RLUIPA rights of Congregation Mischknois Lavier Yakov, which was denied a permit to build a yeshiva in 2002.

Under the consent decree, the village has until October 15, 2011 to amend its zoning code to permit boarding schools, grandfather the yeshiva, and comply with RLUIPA and the FHA. The consent decree also imposes notice and record keeping requirements on the city and requires the village to refrain from discrimination in the future. The village also agreed to pay the United States a $10,000 civil penalty.

More information about the Department of Justice's enforcement of RLUIPA and the Fair Housing Act may be found on the Civil Rights Division's Housing and Civil Enforcement Section's homepage.

United States Files Brief Supporting Los Angeles Synagogue in Long-Running RLUIPA Dispute

On April 28, the United States filed a Statement of Interest in Congregation Etz Chaim v. City of Los Angeles, arguing that city violated RLUIPA by denying zoning approval for a small Jewish congregation to gather in a home in a residential neighborhood. The United States' brief argues that the city has imposed a substantial burden on the congregation's religious exercise, and that it has treated the congregation less favorably than non-religious assemblies in the same neighborhood.

As detailed in Volume 44 of Religious Freedom in Focus, this case involves the longstanding efforts of a small Hassidic Jewish congregation to gather for worship in a house in Los Angeles' Hancock Park neighborhood. The United States' Statement of Interest supports the congregation's argument that it is entitled to summary judgment—that is, that based on the undisputed facts in the case, it has shown that it is entitled to relief under RLUIPA and thus a trial is unnecessary.

The United States' brief contends that the city has violated RLUIPA section 2(a), which protects against "substantial burdens" on religious exercise through zoning. The brief notes that this provision requires a review of all of the surrounding facts, including the history of a congregation's efforts to locate a place of worship. Where there are "no ready alternatives" or where alternatives would require "substantial delay, uncertainty and expense," a substantial burden may be found. Here, the Congregation has shown that its members needed to be able to walk to worship. Many of the congregants, who had moved to the neighborhood to be within walking distance of the congregation, would be physically unable to walk farther to another location outside of the neighborhood. Also relevant is the fact that the congregation belongs to a unique Chassidic sect of Judaism, and their rabbi is the only Witznitzer Rebbe in the United States. The brief concludes that the congregation has established that its religious exercise was substantially burdened. Under RLUIPA, a municipality can only impose such a burden if it has a compelling reason for doing so, which, the United States argues, the city has not shown.

The United States' brief also argues that the congregation has demonstrated that it has not been treated equally with nonreligious assemblies in the Hancock Park neighborhood, in violation of RLUIPA Section 2(b)(1). Section 2(b)(1) provides that "No government shall 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." This was intended to address the numerous instances Congress identified of cities barring churches in places where nonreligious assemblies with similar impacts on the communities are allowed. As the Joint Statement of RLUIPA sponsors Senators Hatch and Senator Kennedy stated, "zoning codes frequently exclude churches in places where they permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes."

The United States' brief notes that the Ninth Circuit Court of Appeals, which covers California, has not yet laid out the standard for determining what constitutes unequal treatment of religious and nonreligious assemblies under RLUIPA. Other courts, however, have used different approaches. Under any of these approaches, the brief argues, the congregation has not been treated equally. The zoning code on its face allows "community centers" in the district. Moreover, the city has allowed various secular assemblies to locate in Hancock Park. For example, the Los Angeles Tennis Club, in addition to sporting activities, hosts regular social gatherings for members and "a full slate of holiday parties throughout the year" including a Fourth of July gala, and events featuring opportunities for children "to meet Santa and the Easter Bunny." The brief concludes that permitting such assemblies to operate but not the congregation constitutes unequal treatment in violation of RLUIPA Section 2(b)(1).

A decision by the court is expected in the next several weeks.

Fair Housing Act Covers Homeless Shelters, but Religious Exemption Applies to Faith Based Program, United States Argues

On April 29, the United States filed a brief in the Ninth Circuit Court of Appeals arguing that while the Fair Housing Act extends to homeless shelters generally, a Christian shelter and substance abuse program in Idaho falls within an exception permitting religious organizations to prefer persons of the same religion. The brief was filed in response to the Court's request for the position of the United States on several legal issues involved in the appeal. In the brief, filed in Intermountain Fair Housing Council v. Boise Rescue Mission, the United States concluded that the Fair Housing Act applies to conduct beyond simply the sale or rental of a dwelling; that a homeless shelter is a dwelling under the Fair Housing Act; and that the Fair Housing Act's exemption for religious organizations bars the claims against the Boise Rescue Mission.

The case involves claims by two individuals that they were victims of religious discrimination by the Boise Rescue Mission. One is a woman who was admitted to a comprehensive Discipleship Program, a one-year substance abuse program that requires participants to engage in Bible study, worship, prayer and other religious activities. The woman was eventually terminated from the program because she did not adhere to the religious beliefs of the Discipleship Program. The second claim was by a man in the regular homeless shelter program of the Rescue Mission. He claims that he stopped going to the shelter because he had been told by an employee that he would have to attend religious services, and because certain preferences were given to those attending religious services. They both brought suit under the Fair Housing Act.

A federal district court in Idaho held that a homeless shelter is not a dwelling and that the Fair Housing Act therefore does not apply. After the plaintiffs appealed, the Ninth Circuit asked the United States to provide its analysis of the key issues in the case.

The United States brief first asserts that the Fair Housing Act is not limited to the sale or rental of dwelling, and thus it is not determinative that guests at the homeless shelter do not pay rent. While the FHA bars refusal to sell or rent dwellings based on protected classifications such as race or religion, it also covers conduct relating to the provision of housing that "otherwise make [housing] unavailable." This, and a related provision barring discrimination in the provision of services, extends to provision of housing and related services to homeless persons for free.

The United States next confirms that the Rescue Mission is a "dwelling" under the FHA. While transient places of shelter, such as a motel or bed and breakfast, are not covered by the Fair Housing Act, there are numerous facts in this case that indicate that the shelter, while temporary, was not merely transient. For example, shelter residents have to return each night or be barred from the shelter for 30 days.

Finally, the United States' brief takes the position that while the homeless shelter is a covered dwelling under the Fair Housing Act, the Plaintiffs claims were barred by the FHA's exemption for religious organizations. Section 3607(a) of the FHA provides that the FHA does not prohibit a religious organization from "limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin."

This religious organization exemption, the United States contends, bars suit by both plaintiffs in this case. The woman in the Discipleship Program contended that she was expelled because she was not a Christian. The Defendants have a slightly different explanation: they say that she had been a seeker who was exploring Christianity but then was expelled "because she was not committed to recovery through the Discipleship Program's rigorous religious requirements." The United States' brief argues that "however the rationale is articulated," she was expelled by the Rescue Mission "because she did not adhere to its religious beliefs."

Likewise the other plaintiff left the regular shelter because he was uncomfortable being required to attend chapel services. The United States' brief contends that chapel attendance requirements are covered by the religious organization exemption: "A housing provider may limit the occupancy of a dwelling or give preference to persons of the same religion by creating a housing opportunity suited only to members of that religion. In particular, compulsory attendance at daily religious celebrations of the religion's creeds or beliefs creates a de facto limitation or preference restricting those who will apply or continue to stay."

The case is schedule for oral argument on July 12 in San Francisco.

More information about the Department of Justice's enforcement of the Fair Housing Act may be found at the Civil Rights Division's Housing and Civil Enforcement Section's homepage.

Justice Department Files Suit to Protect Prisoners' Access to Religious Texts

On April 12, the United States filed a civil rights lawsuit alleging that a South Carolina jail denied inmates access to religious books and other publications in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment. In the suit, filed against the Berkeley County Sheriff's office and Sheriff H. Wayne DeWitt, the United States sought to intervene in a private lawsuit lawsuit brought by a group that publishes materials for prisoners. The court granted intervention in the case, Prison Legal News v. Berkeley County Sheriff's Office, on May 3.

The Berkeley County Detention Center prohibits inmates from receiving any books, magazines, newspapers, religious texts or other expressive materials through the mail. While the Detention Center makes copies of the Bible available to inmates, its policies make it difficult or impossible for non-Christian inmates to obtain their primary religious texts and secondary materials, for Christians to obtain religious materials other than the Bible, and for all inmates to obtain various other written materials.

The Justice Department filed its lawsuit to force the Detention Center to comply with the First Amendment and RLUIPA. The First Amendment protects the right of inmates to receive a reasonable amount of expressive material, and forbids government institutions from favoring certain religions over others. RLUIPA protects the religious freedom of inmates by barring policies and actions that impose a substantial burden on their religious exercise, unless the detention facility can show that its policy or action is supported by a compelling interest. The suit seeks to require that the Detention Center inmates "have access to outside reading material, including religious texts, and to provide access to religious texts that does not privilege a single religion."

On the day the suit was filed, Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, stated: "The freedom to practice one's faith is among our most cherished rights, and the Justice Department is committed to defending that right. RLUIPA has proven to be a powerful tool in combating religious discrimination and ensuring religious freedom for all individuals."

RLUIPA was enacted by both houses of Congress unanimously and signed into law on September 22, 2000. In addition to protecting the rights of persons confined to institutions such as prisons, mental health facilities and state-run nursing homes, the law also addresses religious discrimination in land use. In the 10 years since its passage, RLUIPA has helped secure the ability of thousands of individuals and institutions to practice their faiths freely and without discrimination. On the 10th Anniversary of RLUIPA, the Department of Justice issued a report on the first ten years of RLUIPA enforcement, as well as policy guidance on the institutionalized persons section and on the religious land use section.

Brief Filed in Kosher Meal Case

On April 8, the United States filed a Statement of Interest in a RLUIPA lawsuit in federal court in Texas supporting a Jewish inmate's efforts to obtain kosher meals. Max Moussazadeh is an observant Jew who is incarcerated in a Texas prison that does not provide kosher meals to inmates. The prison does, however, make kosher food available to inmates for purchase at the commissary at their own expense. The Texas Department of Corrections says that its sole justification for not providing kosher meals is to control costs. Moussazadeh filed a suit under RLUIPA in October 2005. RLUIPA requires that prison policies that impose a substantial burden on an inmate's religious exercise must be justified by a compelling governmental interest pursued through the least restrictive means necessary. Moussazadeh subsequently moved for summary judgment, that is, for decision by the judge based on the undisputed facts in the case.

The United States' brief contends that a mere assertion of increased cost alone is not a compelling governmental interest under RLUIPA. Starting with the text of RLUIPA, the United States' brief notes that RLUIPA plainly contemplates that some required religious accommodations will involve increased costs. RLUIPA states that "this chapter may require a government to incur expense in its own operations to avoid imposing a substantial burden on religious exercise." Then, surveying cases interpreting RLUIPA, the United States' brief shows that increased cost alone cannot be a compelling governmental interest for denying religious diets required by inmates' religions. The brief notes that "while Defendants have made general assertion about cost savings, they have not cited evidence that the cost savings accrued by their refusal to provide Mr. Mousssazadeh with a kosher diet is more than merely marginal." Indeed, the Statement of Interest notes that the Texas Department of Corrections does provide kosher meals in one of its facilities, and had provided Mousssazadeh with kosher meals there before he was transferred to another facility.

The United States' brief also contends that the defendants have not shown that their refusal to provide kosher meals is the means of controlling cost that is least restrictive on the religious exercise of observant Jews. The brief notes that 32 states and the Federal Bureau of Prisons currently provide kosher meals to inmates, and that defendants have not shown any reasons why their situation is distinct.

The motion for summary judgment is pending.

Civil Rights Division Files RLUIPA Brief Supporting Native American Prisoners in Alabama

On April 8, the Civil Rights Division filed a Statement of Interest arguing that the Alabama Department of Corrections has violated the RLUIPA rights of a group of Native American inmates by requiring them to cut their hair. While recognizing the compelling interest of prisons in ensuring security, the United States' brief supports the inmates' contention that Alabama had not offered evidence demonstrating that security needs barred them from accommodating the Native American religious practice of wearing hair uncut. The case, Limbaugh v. Thompson, is pending in the United States District Court for the Middle District of Alabama.

Alabama requires male inmates to wear short hair. The plaintiffs in Limbaugh are Native American prisoners who first filed suit in 1993 seeking an exemption from the short-hair policy for practitioners of Native American religion who wear their hair uncut. Many practitioners of Native American religion believe that they must not cut their hair, except when mourning. After the passage of RLUIPA in 2000, the plaintiffs amended their suit to include a RLUIPA claim. The defendants contend that their refusal to grant an exemption does not violate RLUIPA because, they claim, wearing long hair is not required by Native American religion, and in any event security concerns prevent any exemption.

The United States' brief first argues that the ban on long hair imposes a substantial burden on Native American religion under RLUIPA. The plaintiffs, the brief notes, have offered extensive evidence that hair length plays an important or central role in their religious tradition.

While security has long been considered a compelling governmental interest in the prison context, it is not sufficient, the brief states, for the defendants here to simply invoke security in the abstract to defeat a RLUIPA claim. Rather, they must show that security "is actually furthered by banning these specific Plaintiffs from having long hair." While the defendants point to concerns about inmates hiding contraband in long hair or changing their appearance by cutting their hair after escaping from prison, these are all concerns that also are present in women's prisons in Alabama, where long hair is permitted, and there is no evidence that this has eroded security there. The defendants, the brief contends, have not pointed to any specific evidence that their policy meaningfully advances their interest in ensuring security. The failure to produce such evidence is particularly notable in light of the fact that 40 states and the Federal Bureau of Prisons either do not require short hair or recognize religious exceptions to grooming policies requiring short hair.

Finally, the brief contends that the ban on long hair is not the "least restrictive" means of furthering any compelling government interest. Under this prong of the RLUIPA inquiry, the defendant is required to demonstrate that it considered alternatives but that these were not feasible. Here, there was no evidence that defendants had considered any alternatives.

The case was argued on January 23, 2009, and a decision is pending.


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