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

November 2012
Volume 54
 

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:

Town Hall Meeting of Religious Organizations at Department of Justice Addresses Religion-Based Hate Crimes

On October 3, 2012, the Civil Rights Division and the Community Relations Service (CRS) of the Department of Justice hosted a Roundtable on Religion-Based Hate Crimes at the Robert F. Kennedy Main Justice Building Conference Center. Representatives from 22 religious and interfaith organizations representing a broad array of religious communities participated in a discussion about data collection and reporting relating to religion-based attacks on individuals and places of worship, and the adequacy of current categories in the FBI's Uniform Crime Reports.

In the wake of the tragic mass shooting at the Sikh Gurdwara in Oak Creek, Wisconsin on August 5, 2012, in which six congregants were killed and four people were wounded, including a responding police officer, the Senate Judiciary's Subcommittee on the Constitution, Civil Rights, and Human rights held a hearing on September 19 entitled "Hate Crimes and the Threat of Domestic Extremism." Deputy Assistant Attorney General Roy Austin testified at the hearing about the Civil Rights Division's hate crime prosecutions, and in particular attacks against Sikhs and members of other religious groups as well as attacks on places of worship. At the hearing, the subject of the reporting categories for religious hate crimes came up repeatedly. Currently, the religion section of the FBI Hate Crime Incident Report used by police to report information on hate crimes contains the categories "anti-Jewish," "anti-Catholic," "anti-Protestant," "anti-Islamic," "anti-other religion," "anti-multiple religions, groups," and "anti-atheism/agnosticism."

At the October 3 town hall meeting, diverse religious groups presented anecdotal and survey evidence about hate crimes against Sikhs and Hindus, as well as against Arab Americans, and recommended that these be added as categories in the Uniform Crime Reports to help better understand religious and ethnicity-based hate crimes. Changes to the FBI Uniform Crime Reports are considered by the Criminal Justice Information Services Advisory Policy Board, a board made up of federal, state, local, and tribal law enforcement officials and subject matter experts. The Board then makes recommendations to the FBI Director.

Indiana Man Charged in Arson of Toledo-Area Mosque

On October 5, federal criminal charges were filed against an Indiana man in U.S. District Court in Toledo stemming from the September 30 arson of the Islamic Center of Greater Toledo. Randolph Linn, 52, of St. Joe, Indiana, was charged violating the Church Arson Prevention Act, which makes it a federal crime to intentionally deface, damage or destroy religious real property based on the religion or race of its congregation. He also was charged with using fire and explosives to commit a felony.

The Perrysburg Township Fire Department was notified in the afternoon of September 30 of a fire at the Islamic Center. Officials and officers discovered a red plastic gas can in the middle of the Islamic Center's prayer room, and the carpet underneath had been burned. The fire had been extinguished by a sprinkler system, but there was significant damage to the prayer room and other areas of the Islamic Center. Officials and officers determined the fire had been intentionally set, according to an affidavit filed in U.S. District Court. Linn was arrested on October 2.

"The Department of Justice will aggressively prosecute persons who attack, deface or damage houses of worship because of racial or religious animus," said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, on the day the chargers were filed. "We appreciate the cooperation of state, local and federal law enforcement in their efforts to ensure that no one in this country is hindered in their ability to worship freely in the manner of their choosing."

The investigation is ongoing, and is being conducted by the Perrysburg Township Police Department, the State of Ohio Fire Marshal, the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Federal Bureau of Investigation.

Church Harmed By Restrictive Zoning Law, Fifth Circuit Concludes

On September 27, the U.S. Court of Appeals for the Fifth Circuit ruled that a former Mississippi city ordinance violated a church's rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), and that a new ordinance may do so as well. The United States had filed a friend-of-the-court brief in March and argued in support of the church's position on August 8 in the case, Opulent Life Church v. City of Holly Springs.

The case involves the efforts of a small church that has sought to move from borrowed space at another church into its own, larger location. It found an available space for rent in Holly Spring's central business district and sought a permit to make modifications to make it a suitable location to hold its worship services. The City Planning Commission informed the church that it did not meet the necessary criteria. Among the criteria for churches and other places of worship to locate in the district were that they must obtain the permission of 60% of neighboring landowners and the approval of the Mayor and Board of Aldermen, requirements not applicable to other uses in the zoning district. The church filed suit on January 10, 2012, and the Federal District Court denied its motion for a preliminary injunction.

On appeal, the United States filed an amicus brief urging the Appeals Court to reverse the trial court. The United States agreed that the ordinance's requirement that places of worship, but not other types of buildings, obtain approval of the Mayor, the Board of Aldermen, and 60% of neighbors violated RLUIPA. 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 also argued that the church had shown that it was harmed by the city's actions because the space the church currently occupies is inadequate for its activities and likely has 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. In addition, the United States argued that the court erred in finding that the church could not show any harm or substantial threat of harm where it had not yet exceeded the capacity of its current building.

The night before oral argument, the city amended its ordinance. The city admitted at oral argument that its prior ordinance violated RLUIPA. It removed the objectionable requirements for churches but barred churches outright from the courthouse square area where Opulent Life had leased its new building.

The Fifth Circuit vacated the District Court's decision, stating that the old ordinance, "plainly violated the Equal Terms Clause" of RLUIPA by placing special requirements on "churches, and only churches." The court also noted that the new ordinance may violate the Equal Terms provision as well, since it barred churches but permitted other uses that might be comparable "assemblies or institutions" to churches, such as "libraries, museums, and art galleries." The court remanded the case to the trial court, directing that the burden would be on the City to show that it has treated the Church at least as well as all other institutions and assemblies that are similarly situated with regard to the purpose of the zoning district.

The Court of Appeals also rejected the District Court's decision that the church suffered no harm, holding that denial of religious freedom is presumptively harmful. The court remanded for consideration under the appropriate legal standard and to allow the city to present any evidence that it would be harmed by a preliminary injunction.

RLUIPA contains a number of different provisions protecting places of worship and religious schools from discriminatory or unduly burdensome zoning regulations, and also contains a section protecting the religious exercise of persons confined to institutions. 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 land use provisions of RLUIPA and a policy statement on the institutionalized person provisions, 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 Housing and Civil Enforcement Section's RLUIPA page and the Special Litigation Section's RLUIPA page.

Jury Convicts 16 for Attacks on Amish in Ohio

On September 20, a jury in Cleveland convicted 16 people of federal hate crimes arising out of a series of religiously-motivated assaults on practitioners of the Amish religion.

The convictions stem from a series of assaults that occurred in four Ohio counties between September and November 2011. In each assault, defendants forcibly cut the beards and hair of practitioners of the Amish faith with whom they had ongoing religious disputes. In three of these assaults, defendants invaded the homes of the victims, sheared their hair, and caused pain and physical injuries. The manner in which Amish men wear their beards and Amish women wear their hair are symbols of their faith, as noted in trial testimony.

The jury found the 16 defendants guilty of conspiring to violate the Matthew Shepard-James Byrd, Jr. Hate Crimes Prevention Act, which prohibits any person from willfully causing bodily injury to any person, or attempting to do so by use of a dangerous weapon, because of the actual or perceived religion of that person. The jury also convicted various groups of defendants with four hate crime counts against eight specific victims involving kidnapping. The jury also convicted Samuel Mullet Sr., Lester Mullet and Eli Miller with concealing or attempting to conceal various items of tangible evidence, and convicted Sam Mullet of making false statements to the FBI.

"The violent and offensive actions of these defendants, which were aimed at beliefs and symbols held sacred by this country's Amish citizens, are an affront to religious freedom and tolerance, which are core values protected by our Constitution and our civil rights laws," said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, on the day of the verdict. "Those laws prohibit the use of violence to settle religious differences and the Department of Justice and the Civil Rights Division will vigorously enforce those laws."

Samuel Mullet Sr., is the Bishop of the Amish community in Bergholz, Ohio, while the remaining defendants are all members of that community. Mullet exerted control over the Bergholz community by taking the wives of other men into his home and by overseeing various means of disciplining community members, including corporal punishment, according to trial testimony. As a result of religious disputes with other members of the Ohio Amish community, the defendants planned and carried out the assaults on their perceived religious enemies.

Judge Dan Aaron Polster has scheduled a sentencing hearing on January 24, 2013.

Court Upholds South Dakota Native American Prisoners' Rights under RLUIPA

On September 19, 2012, the U.S. District Court for the District of South Dakota ruled that the South Dakota Department of Corrections (DOC) violated the institutionalized persons section of RLUIPA by refusing to allow Native American prisoners to use tobacco as part of Lakota religious ceremonies. The decision in Native American Counsel of Tribes v. Weber, which followed a trial and a post-trial Statement of Interest filed by the United States, preserves the religious rights of hundreds of Native American prisoners in South Dakota.

Section 3 of RLUIPA forbids state prison policies and practices that "substantially burden" prisoners' religious exercise unless the challenged practice is the least restrictive means of achieving a compelling government interest. In 2009, the DOC imposed an absolute ban on tobacco, reversing its then-existing policy that permitted Native American prisoners to use tobacco in religious ceremonies. The change affected hundreds of prisoners, as 27 percent of DOC's population is Native American, mostly from the Ogala band of the Lakota Sioux people, who use a tobacco and willow bark mixture in religious ceremonies. In response, the Native American Council of Tribes filed suit against the DOC, alleging that the absolute ban on tobacco products burdened the religious exercise of Lakota prisoners.

After trial, DOC filed a brief asserting that its policy did not restrict a recognized "religious practice" under RLUIPA because of divergent opinions within the Lakota community about the importance of tobacco use. DOC further argued that the ban on all tobacco was not a "substantial" impediment to religious exercise because the amount of tobacco used in Lakota ceremonies was small. In response, the Civil Rights Division filed a Statement of Interest asserting that the centrality of a religious practice is not a proper inquiry under RLUIPA and offering a framework for analyzing whether DOC's policies burdened religious exercise. The Court largely followed the Division's analytical framework, finding that DOC's tobacco ban substantially burdened the religious exercise of Lakota prisoners.

The Court further ruled that DOC's tobacco ban failed the second prong of RLUIPA, since it was not the least restrictive means of achieving a compelling government interest. The generalized security interests cited by DOC did not justify the policy because they were not supported by evidence of specific problems or incidents related to use of tobacco in religious ceremonies. Indeed, the Court found that prison administrators' assertions about security problems were not entitled to deference because of their conclusory nature. Moreover, the Court concluded that DOC's tobacco ban was not the least restrictive option for achieving security interests, evidenced by DOC's failure to consider implementing policies similar to the Federal Bureau of Prisons and the many state correctional facilities that permit tobacco use during religious ceremonies.

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

Suit Alleging that City and Town Engaged in Systematic Religious Discrimination Should Move Forward, United States Argues

On September 13, the Civil Rights Division filed briefs in its religious discrimination suit against Colorado City, Arizona and Hildale, Utah, arguing that the court should allow the suit to move forward. The suit, as reported in the June 2012 issue, alleges that the two municipalities, whose populations are predominantly composed of members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), along with other defendants, have engaged in a longstanding pattern or practice of religious discrimination against persons who are not members of the FLDS. The suit alleges that the municipalities have allowed the FLDS Church to improperly influence the provision of police protection, utility services, and access to housing and public facilities, leading to discriminatory treatment of non-FLDS residents. The municipalities moved separately on August 27 to dismiss the suit for failure to state a claim, or alternatively for an order requiring the United States to file a more definite statement.

The United States' response to Colorado City's motion notes that its complaint "sets forth, in 50 detailed paragraphs," facts showing religious discrimination in violation of the Constitution and federal laws. The complaint details numerous practices and incidents of police misconduct demonstrating that the joint Colorado City/Hildale Marshal's Office "(1) fails to provide policing services to non-FLDS; (2) selectively enforces laws against non-FLDS; (3) serves as the enforcement arm of the Church; (4) enforces FLDS edicts; (5) fails to cooperate with law enforcement efforts by other offices investigating crimes by FLDS; (6) arrests non-FLDS without probable cause; (7) deprives individuals of property without due process; and (8) disregards legal rulings that guarantee the rights of non-FLDS." The response likewise details allegations of facts showing a denial of fair housing rights and denial of equal access to public facilities for non-FLDS. The brief thus concludes that the United States has plainly set forth a cause of action under the Fair Housing Act, the Violent Crime Control and Law Enforcement Act, 42 U.S.C. § 14141, and Title III of the Civil Rights Act of 1964.

Similarly, the United States' response to Hildale's motion to dismiss details the many facts in the complaint that plainly state a cause of action, including: that the police have applied trespass and traffic laws differently based on the religion of the persons involved, that the police have engaged in surveillance of non-FLDS members on behalf of the church, and that the police have enforced religious edicts of the FLDS church, including returning an underage bride to her husband and participating in the slaughter of domestic dogs at the direction of FLDS leadership. The U.S. brief also details allegations establishing Fair Housing Act violations, including delaying of utility service to non-FLDS individuals and denying property subdivisions that would make housing available to non-FLDS individuals. The U.S. response also details how, with regard to the allegations of Title III violations, the police threatened non-FLDS children with arrest who were playing in a public park, and describes incidents involving harassment of non-FLDS persons at the local zoo.

The case is being jointly litigated by attorneys from the Housing and Civil Enforcement Section and the Special Litigation Section of the Department of Justice's Civil Rights Division.

A decision on the motions to dismiss is pending.

 


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