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

August 2012
Volume 53
 

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:

Special Note: Responding to the Oak Creek Tragedy

There is perhaps no element of religious freedom as basic as the right of people to be able to gather for prayer and worship peaceably and without fear of violence. This expectation that people in free and just societies rightly assume was shattered on Sunday, August 5, when a gunman attacked a Sikh Gurdwara in Oak Creek, Wisconsin. He fired repeatedly, killing six worshippers, wounding three others, and wounding a police officer who had come to their aid.

We at the Civil Rights Division join all Americans in grieving over this terrible tragedy: for the lives lost, for the damage inflicted on families, friends, and community, and for the blow to our collective sense of decency and our assumption that places of worship will be places of peace. As Attorney General Eric Holder observed at the memorial service for the victims of the Oak Creek shooting: "We've seen an outpouring of support - from the larger community here in Oak Creek and across the state of Wisconsin; from Hindu, Muslim, Christian, and Jewish faith leaders; and from countless Americans nationwide who are truly heartbroken by what happened here on Sunday. Sunday's attack was not just an affront to the values of Sikhism. It was an attack on the values of America itself." The shooting was an act of terrorism and hatred that "is anathema to the founding principles of our nation and to who we are as a people."

The Department of Justice took a number of steps in response to the shooting, addressing both the law enforcement and human needs arising from the tragedy. The Department immediately opened an investigation both under the domestic terrorism laws and under the civil rights laws. The civil rights laws protecting places of worship and individuals from violence based on religion include the Church Arson Prevention Act, 18 U.S.C. § 247, which makes it a crime to use force to interfere with religious exercise, and the Matthew Shepard and James Byrd, Jr., Hate Crime Prevention Act, 18 U.S.C. § 249, which makes it a crime to engage in violence against a person based on various protected classifications, including national origin and religion. The investigation, which is ongoing, is being conducted by the FBI in conjunction with the ATF and local law enforcement, and in coordination with the Civil Rights Division, the National Security Division, and the U.S. Attorney's Office for the Eastern District of Wisconsin.

The FBI deployed Victim Specialists to Oak Creek to provide resources and support to the victims and their families, which included Punjabi translators and bilingual grief counselors. The FBI coordinated with the Department's Office of Victims of Crime to assist family members of the victims traveling from India, and help with other immediate and long-term needs. The U.S. Attorney's Office and the Department's Community Relations Service held several meetings and forums, which included representatives from the FBI, ATF, the Civil Rights Division, and others, with the Oak Creek community to answer questions and address concerns.

Despite the tragedy, as the Attorney General said: "We are united today-not only by a shared sense of loss, but also by a common belief in the healing power of faith, and in the universal principles that are glorified in our nation's churches, synagogues, mosques, temples, Gurdwaras, and other houses of worship."

DOJ Files Suit Seeking Kosher Meals for Florida Prisoners

On August 14, 2012, the Civil Rights Division filed suit against the Florida Department of Corrections ("FDOC") alleging that FDOC's refusal to provide kosher meals burdens the religious exercise of Florida prisoners in violation of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The suit charges that FDOC discontinued its prior kosher food program in 2007 despite a warning from an FDOC study group that terminating the program would likely violate federal law. Since FDOC discontinued the kosher program, the suit alleges, several hundred FDOC prisoners of various faiths have been forced to violate their religious beliefs on a daily basis by consuming non-kosher food.

Section 3 of RLUIPA forbids state prison practices that "substantially burden" prisoners' religious exercise unless the challenged practice is the least restrictive means of achieving a compelling government interest. The DOJ suit, filed in the U.S District Court for the Southern District of Florida, contends that FDOC's denial of kosher food violates RLUIPA because FDOC can provide kosher meals consistent with its compelling interests. Not only did FDOC's own study group recommend continuing the kosher food program, the suit alleges, but FDOC currently provides kosher meals to approximately 15 prisoners through a pilot program in one facility. The suit argues that, while this limited program cannot accommodate most of the Florida prisoners for whom keeping kosher is part of their religious exercise, it demonstrates that FDOC can provide such meals consistent with its interests in safe and effective corrections management.

The complaint further argues that kosher meal service is consistent with FDOC's compelling interests because most state correctional facilities in the United States, and the Federal Bureau of Prisons, offer kosher meals to all prisoners who seek such meals to exercise their religious beliefs. The suit alleges that FDOC's interests in prison security and management are virtually identical to the majority of institutions that provide kosher meals.

The Civil Rights Division filed suit after investigating FDOC's food service practices for more than a year. The investigation included expert analysis of FDOC's food service and security operations, and identified numerous prisoners whose religious exercise was substantially burdened by FDOC's policies. The suit seeks injunctive and declaratory relief, including an order from the District Court that FDOC will comply with RLUIPA and provide kosher meals to prisoners with a religious basis for keeping kosher.

In addition to protecting the religious exercise of persons confined to institutions, RLUIPA contains a number of different provisions protecting places of worship and religious schools from discriminatory or unduly burdensome zoning regulations. On the tenth anniversary of RLUIPA on September 22, 2010, the Department of Justice issued a Report on Enforcement of RLUIPA, along with a policy statement on the institutionalized person provisions and a policy statement on the land use provisions of RLUIPA, which include common questions and answers about this important law. Further information on the Civil Rights Division's RLUIPA enforcement work is available at the Special Litigation Section's RLUIPA page and the Housing and Civil Enforcement Section's RLUIPA page.

Church Harmed By Restrictive Zoning Laws, United States Argues

On August 8, the United States argued before the United States Court of Appeals for the Fifth Circuit that the RLUIPA rights of a small Christian church in Holly Springs, Mississippi, had been violated by the city's application of its zoning laws. The United States had filed an amicus brief in the case, Opulent Life Church v. City of Holly Springs, on March 13, 2012 urging the Appeals Court to reverse a federal trial court's denial of a preliminary injunction to the church.

Opulent Life Church sought to move from space it has been using at another church into a larger space of its own. The church found a location that met its needs in the city's central business district, and applied for a permit to make alterations to the property and occupy it. The city planning commission tabled the request, telling the pastor that the church had not met the zoning requirements. The commission gave him a list of requirements, including one that churches must be approved by 60% of neighboring landowners, and that the Mayor and Board of Alderman must also approve. These requirements did not apply to other assembly uses in the city, including union halls, social clubs, funeral homes, and movie theaters.

The church filed suit against the city and sought a preliminary injunction against enforcement of the ordinance. A federal district court denied the injunction, finding that the church had not shown that it was "irreparably harmed" by the restrictions. The church appealed.

Section 2(b)(1) of RLUIPA 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." The United States' amicus brief argued that the neighbor-approval rule applicable to churches but not others violated RLUIPA. The United States also argued that the church had shown that it was harmed by the city's actions because the space the church currently occupied was inadequate for its current activities and likely hindered the church's efforts to expand its membership. The United States brief also noted that deprivation of religious rights for even a short time can cause irreparable injury.

On the night before oral argument, the city changed its ordinance. It removed the special requirements for churches but barred churches and social clubs from the city's central square. At the argument, the city admitted that its previous ordinance had violated RLUIPA but claimed that the church's rights were never affected because it could meet in its current building. The church argued that the new ordinance likely violated RLUIPA. The United States argued, consistent with its brief, that the church was harmed by the delay in moving to its new building and that the district court erred in assessing this harm. The court took the case under advisement.

DOJ Wins Temporary Restraining Order in RLUIPA Suit, Allows Tennessee Mosque to Open

On July 18, a federal District Court in Nashville ordered a Tennessee county to process the Islamic Center of Murfreesboro's application for a certificate of occupancy for its new mosque, and to disregard a state court order to the contrary. The federal court found that following the state court order likely would violate RLUIPA. The state Chancery Court had entered that order on June 13 in a suit brought by Rutherford county residents opposed to the mosque. In the July 18 ruling, the federal court granted the United States' motion for a temporary restraining order filed in conjunction with a RLUIPA lawsuit filed the same day. Following the federal court order, the county granted a temporary occupancy permit on August 7, and a permanent certificate of occupancy on August 23. The Islamic Center of Murfreesboro held its first worship services at the new mosque on August 10.

The case began when the Islamic Center, which has been operating in Rutherford County since 1982, sought to construct a new mosque for its growing congregation. The converted office space in which it had been worshipping was far too small to accommodate its current congregation for weekly prayers, and lacked space for a nursery for children, youth and educational activities, weddings, funerals, and holiday celebrations. In 2009, it purchased land in Rutherford County in a zone where places of worship are allowed as-of-right. In May 2010, the Islamic Center applied for site-plan approval to build a new center, phase one of which was a multi-purpose building housing a mosque and space for other religious activities. After considering the proposal at a regularly scheduled, advertised meeting, the county unanimously approved the site plan. Following the county's approval, opponents of the mosque filed a lawsuit in state Chancery Court in September 2010 seeking to stop construction.

In that suit, the mosque opponents made numerous claims, including arguing that Islam is not a religion, and that a mosque is thus not properly considered a place of worship under the zoning ordinance. The United States filed a friend of the court brief in October 2010 pointing out that Islam is indeed a religion according to all legal and practical understandings of the term "religion," and that the county would in fact violate RLUIPA if it treated the mosque differently on that ground. The state Chancery Court dismissed all of the mosque opponent's claims in May 2011, with the exception of a claim that the meeting at which the site plan was approved did not provide sufficient notice.

On June 1, 2012, as the mosque neared completion, the Chancery Court ruled that the county had provided insufficient public notice for the hearing at which it approved the mosque's site plan. The Chancery Court reasoned that the mosque construction project was "a matter of great public importance and a matter of tremendous public interest," as evidenced by the controversy it had engendered, and in such circumstances, the court held, greater notice than usual was required. The Chancery Court declared the site use plan and building permit void and ordered the County not to issue an occupancy permit to the mosque. The County appealed the Chancery Court's ruling to the Tennessee Court of Appeals, and asked the Chancery Court to stay its ruling. The Chancery Court denied the stay on July 2. On July 17, the County informed the mosque that it could not process its application because of the Chancery Court order.

The Justice Department's suit filed on July 17 alleged that the County's refusal to process the certificate of occupancy application, based on the Chancery Court's heightened notice requirement for the mosque project, imposed a substantial burden without compelling justification in violation of RLUIPA. RLUIPA requires that government zoning actions that impose a substantial burden on religious exercise are only permitted if they further a compelling governmental interest and do so through the least restrictive means. The Justice Department also sought a temporary restraining order and preliminary injunction. After a hearing held the same day, the federal court held that the United States had "carried its burden of showing that [the County's] compliance with the Orders of the Rutherford Count Chancery Court in this dispute violates RLUIPA. Compliance with the State Court's Orders imposes a heightened notice requirement regarding the mosque which substantially burdens the Islamic Center's free exercise of religion without a compelling governmental interest." The court thus ordered the county to process the certificate of occupancy application, notwithstanding the Chancery Court order.

On the day the suit was filed, Thomas E. Perez, Assistant Attorney General for the Civil Rights Division stated: "Our nation was founded on bedrock principles of religious liberty. The Department of Justice will continue to vigorously enforce civil rights laws that protect religious freedom. " He continued: "When a faith community follows the rules, as the Islamic Center of Murfreesboro has done in seeking to construct its place of worship, it is impermissible to change the rules in a discriminatory way that prevents people of faith from exercising their fundamental right to worship."

Jerry E. Martin, U.S. Attorney for the Middle District of Tennessee, remarked: "The United States Attorney's Office will zealously protect every citizen's right to worship and assemble. If we do not protect the rights of these congregants in Rutherford County, then the rights of all people are endangered and diminished."

After the court's ruling, Imam Ossama Bahloul, the imam of the Islamic Center of Murfreesboro, described the importance of the decision for the freedom of all Americans. He stated: "We are here to celebrate the freedom of religion and that the concept of liberty is a fact existing in this nation. The winner today is not an individual, the winner today is our nation and the fact that our Constitution prevailed." He also noted: "We set an example to people everywhere. We can look to the people in the Middle or Far East or in the middle of Africa saying to them 'America is the role model. Try to learn from us in America.'"

Since the enactment of RLUIPA in 2000, the Department of Justice has used the law to protect the rights of churches, synagogues, mosques, temples, and other places of worship, and religious schools, from discrimination and undue interference with religious exercise through application of zoning and landmarking laws. These cases are described in a report issued on the 10th Anniversary of RLUIPA, and at the Civil Rights Division's Housing and Civil Enforcement Section's website.

 


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