Freedom in Focus is a
monthly email update about the Civil
Rights Division's religious liberty
and religious discrimination cases.
Assistant Attorney General R. Alexander
Acosta has placed a priority on these
cases. Through vigorous enforcement
statutes prohibiting religion-based discrimination
in education, employment, housing, public
facilities, and public accommodations;
laws against arson and vandalism of houses
of worship and bias crimes against people
because of their faith; and
Religious Land Use and Institutionalized
Persons Act (RLUIPA);
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
More information about this initiative, and back issues
of this newsletter, may be found on the
religious discrimination home page of the Civil Rights
Civil Rights Division Defends Constitutionality of Salvation Army Programs
Rights Division filed a brief on
August 26 defending the constitutionality of the Salvation Army's
contracts with New York City to
provide foster care and other social services in a case filed by the
New York Civil Liberties Union. The case has broad implications
for President George W. Bush's Faith-Based and Community
v. Salvation Army, a group of Salvation Army employees
has sued the Salvation Army and the City of New York. They
claim that the Salvation Army's
inquiry into employees' religious affiliations, its requirement that
employees not act in a manner that violates Salvation Army
principles, and similar employment policies violate their
constitutional rights. They contend that because the Salvation
Army has contracts with New York to provide foster care and adoption
services, residential treatment programs, and other social services
sometimes provided by the government, the Salvation Army should be
treated as the equivalent of the government itself for constitutional
purposes. The suit thus contends that the Salvation Army cannot take
religion into consideration in its employment policies and practices.
The suit also claims that the contracts violate the separation of
church and state.
Salvation Army and the city filed motions asking the court to dismiss
the case. The Civil Rights Division's friend-of-the-court brief
for the United States asks the Court to grant these motions.
First, the brief argues that, contrary to the plaintiff's
understanding, charitable and social works are not the sole province
of the government. In fact, it notes, the history of private
charity long predates the modern welfare state. This matters
because under Supreme Court decisions, a private entity performing
a uniquely government function may be a state actor subject to the
same constitutional restrictions as the government itself. This is
not the case here.
Second, the contracts with the Salvation Army do not violate the First
Amendment ban on government establishments of religion. The social
service programs are not themselves religious in any way. In fact, strict
contract provisions specify that the services must not have any
religious content. The United States' brief argues that when the
government contracts with a private organization for social services
that are wholly secular in nature, as here, the fact that the
organization itself may be religiously affiliated and may have
employment practices that take religion into consideration does
not make the programs unconstitutional. So long as the government
is getting the secular benefits that it pays for, it does not matter
who is providing the services. To disqualify the Salvation Army
simply because it is a religious organization would be to discriminate
against religion, the brief argues.
This is one of the guiding principles behind the President's
Community Initiative. The
outcome of this case will have nationwide implications for that initiative,
and for the ability of faith-based programs at all levels to receive public
City Council Changes Course and Permits Church Construction After DOJ Investigation
August 30, the city council of Balch Springs, Texas reversed itself
and now will permit a Christian congregation with a predominantly
Hispanic membership to go forward with church construction plans.
In response, the Civil Rights Division announced on September 3 that
it was closing an investigation opened in June into whether
council's prior zoning actions blocking the church violated
the federal Religious
Land Use and Institutionalized Persons Act of 2000 (RLUIPA).
Assistant Attorney for Civil Rights General R. Alexander
Acosta applauded the decision:
"Once again this new civil rights law has served to protect the
rights of houses of worship–particularly minority ones–from arbitrary
government action. We are very pleased that Templo La Fe will be
able to move forward with its plans."
Fe Worship Center, a Christian congregation with approximately 100
members, purchased a six-acre plot of land in 1997 in Balch Springs.
The property is in a residential district in which houses of worship
are allowed to locate as-of-right. Under the guidance of city
zoning and planning officials, Templo La Fe spent $33,000 adding a
water main and making other improvements necessary for construction
of its church.
the City's Planning and Zoning Commission's unanimous recommendation
to approve the project in June 2003, the City Council overruled
it. The Council cited concerns about traffic and drainage, issues
that the Planning and Zoning Commission had addressed. Church
claim that council members made off-the record comments that they
would prefer a commercial, tax-paying property on the site.
La Fe filed a complaint with the Civil Rights Division, which opened
an investigation on June 23, 2004 into whether the City Council's
actions violated RLUIPA. RLUIPA bars
zoning discrimination against houses of worship and religious
The Division sent document requests to the city, and a Division
attorney met with city officials in August. Templo La Fe also filed
a private lawsuit under RLUIPA.
August 30, the Council voted to reverse its previous decision and
granted Templo La Fe its use permit. The church expects to begin
Department of Justice Civil Rights Division has opened 20 formal
investigations under RLUIPA in cases
involving religious schools and houses of worship from a broad range
of religious traditions.
Rights Division Files Brief in RLUIPA Appeal
August 13, the Civil Rights Division filed a brief in the United
States Court of Appeals for the Seventh Circuit, arguing that a
federal trial court had erred when it dismissed a suit by a Greek
Orthodox Church under the Religious
Land Use and Institutionalized Persons Act (RLUIPA).
Constantine & Helen Greek Orthodox Church sued New Berlin, Wisconsin,
after the city denied the church's proposal to rezone a 14-acre
parcel of land to build a church. In dismissing the suit, the trial
court ruled that to establish a "substantial burden" on religious
exercise that triggers the protection of RLUIPA, a church must show
that there was no other location in the city on which it could build.
Rights Division brief argues that this rule misreads the statute.
While the possibility of alternative locations should be one
considered by a court in evaluating whether or not there is a burden,
there are numerous other factors that need to be considered,
the property's proximity to worshipers, the property's unique fitness
to meet the church's religious needs, costs–both financial and time
and effort–already incurred in planning the church, among others.
The Civil Rights Division made the same argument in its brief in the
Ninth Circuit Court of Appeals in Guru Nanak Sikh Society v. Sutter County.
Both cases are pending.
Civil Rights Division Files Title VII Suit Against Los Angeles
Transportation Authority for Failure to Accommodate Sabbath
Rights Division filed a suit on September 16 against the Los
Metropolitan Transit Authority alleging that its policy of refusing
to make any attempt to accommodate work schedules to meet employees'
needs to refrain from work on the Sabbath violates Title
VII. The complaint
filed by the Civil Rights Division in federal court cites the example
of a Jewish man who was fired from his job as a bus driver-trainee
after he informed the MTA of his need to observe the Sabbath from
sundown Friday to sundown Saturday. The suit seeks to require the
MTA to adopt a policy for considering reasonable accommodations of
the religious needs of employees.
Rights Division's Employment Litigation Section 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. Title VII requires employers to make a
reasonable accommodation of employees' religious beliefs and
practices, unless doing so would create an undue hardship for the
States Department of Justice
Civil Rights Division