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

May 2014
Volume 60
 

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:

Three Anti-Jewish Hate Crimes Prosecuted in April in Texas, Utah and New Mexico

Anti-Jewish hate crimes remain the most reported religious-based hate crimes in the United States, representing 674 out of a total of 1,099 religious hate crimes recorded for 2012 in the FBI Hate Crime Reports. In April, public attention was focused on anti-Jewish hate crimes as a result of the April 13 shooting in Kansas City, during which two people were killed at the Jewish Community of Greater Kansas City in Overland Park and one person was killed at a Jewish retirement community nearby. The accused shooter is being prosecuted by Kansas authorities with the assistance of the FBI.

We have seen such anti-Jewish shootings before, such as the shooting at the Jewish Community Center in Los Angeles in 1999, which resulted in the wounding of three children and two adults and the murder of a postal worker in the aftermath, and the shooting at the Holocaust Museum in Washington D.C. in 2009, which left a security guard dead. Both cases were prosecuted by the Department of Justice.

In addition to such shooting cases, the Department also regularly prosecutes a variety of cases of anti-Jewish hate crimes and other hate crimes against religious groups and individuals. In April alone, the Department prosecuted three anti-Jewish cases:

  • Houston, Texas: Dante Phearse pleaded guilty on April 28 to violating the Church Arson Prevention Act, 18 U.S.C. § 247, by making a bomb threat to Congregation Beth Israel in Houston. In addition to punishing acts of arson and the use of explosive devices against places of worship, Section 247 makes it a crime to use violence or the threat of violence to interfere with the free exercise of religious beliefs. Sentencing is set for July 7.
  • Salt Lake City, Utah: Macon Openshaw pleaded guilty on April 16 to violating 18 U.S.C. § 247 for firing three shots from his .22 caliber handgun at the Congregation Kol Ami synagogue in Salt Lake City. Openshaw admitted that in 2012 he shot at the synagogue because of its religious character. Under the plea, he agreed to be sentenced to 60 months incarceration. Sentencing is scheduled for July 15, 2014.
  • Albuquerque, New Mexico: John W. Ng was indicted on April 24 under 18 U.S.C. § 245 for threatening and interfering with the federal rights of the owner of a Jewish restaurant in two separate incidents by leaving threatening notes on the door of her restaurant. An indictment only establishes probable cause, and Ng is presumed innocent until proven guilty.

Such violence affects many communities. Since the 9/11 attacks, the Department of Justice has prosecuted 60 defendants, with 52 convictions to date, in cases involving attacks against Muslim, Sikh, Arab, or South Asian individuals and institutions. In the wake of the mass shooting at the Sikh Temple in Oak Creek, Wisconsin, the Civil Rights Division held a town hall meeting with religious organizations to discuss the tracking and reporting of religious hate crimes. Based on input from the diverse Muslim, Sikh, Jewish, Christian, and Hindu communities participating in that meeting, the Division recommended that anti-Sikh and anti-Hindu, as well as anti-Arab, be added as categories to the annual FBI Hate Crime reports. These categories, along with several others recommended by the Advisory Policy Board, will be tracked beginning in 2015.

Appeals Court Affirms Native American Religious Practice Under RLUIPA

A federal appeals court on April 28 ruled that Native American prisoners in South Dakota have a right under the Religious Land Use and Institutionalized Persons Act (RLUIPA) to use a small amount of tobacco in their religious ceremonies. The court affirmed a lower court ruling that the South Dakota prisons' ban on all use of tobacco imposed a substantial burden on Lakota Native Americans' religious exercise, and that allowing the burning of a mixture of 1% tobacco mixed with willow bark did not interfere with the prisons' interests in controlling contraband. The United States had filed a friend-of-the-court brief in support of affirmance.

The dispute arose after South Dakota's decision in 2009 to bar Lakota prisoners from using tobacco in religious ceremonies. Prison officials justified the ban as furthering the prisons' interest in preventing diversion of tobacco within the prisons, which ban smoking. The prison officials also contended that denying tobacco did not interfere with Lakota religious practice, since they claimed they had consulted Lakota leaders and had concluded tobacco was "not traditional" and not required in Lakota worship.

RLUIPA provides that prison policies that impose a "substantial burden" on religious exercise must be justified by a compelling government interest and pursued through the means least restrictive on religious exercise.

The United States Court of Appeals for the Eighth Circuit ruled that the total ban on tobacco in Lakota ceremonies imposed a substantial burden on inmates' religion in violation of RLUIPA. The Court rejected the prison officials' argument that some Lakota leaders had told them that tobacco was not necessary, in light of the substantial evidence produced by Lakota prisoners demonstrating their sincere and longstanding belief that tobacco is integral to their religious ceremonies. The Court held that the fact "that some Native Americans practicing the Lakota religion would consider red willow bark a sufficient alternative to tobacco does not undermine the decision of the district court" that these prisoners' religious exercise was substantially burdened.

The appeals court then held that the banning of all tobacco was not the least restrictive means of achieving a compelling interest in order and security, since the prisoners were willing to accept a willow bark mixture containing only 1% tobacco. While acknowledging that under RLUIPA "prison administrators' expertise must be given deference," the court noted that the burden of proof is on the prison officials to show that there is no less restrictive means of achieving its security interests. The court of appeals found that the prison officials here had not "meaningfully considered any of the alternatives or tested the effectiveness of such alternatives" before rejecting them, and thus failed to meet RLUIPA's requirements.

More information about the Civil Rights Division's enforcement of the institutionalized persons provision of RLUIPA, including questions and answers about rights and responsibilities under the law, is available on the Special Litigation Section's RLUIPA page.

Georgia City Changes Zoning Ordinance to Treat Churches Equally With Non-Religious Assemblies

In response to a Department of Justice investigation under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the City of Eatonton, Georgia voted on May 19 to allow churches and other places of worship to be built as of right in two business and one light industrial district. The move equalizes the treatment of religious assemblies in the city with various non-religious assemblies. In response, the Department has closed its investigation.

The Department had opened an investigation in response to a complaint from a small Christian church that said it was unable to find an affordable location in the city as a result of zoning regulations that disfavored places of worship relative to other place of assembly. The Department's investigation uncovered other churches that had faced problems finding an appropriate location. Section 2(b)(1) of RLUIPA provides that a religious assembly or institution must not be treated "on less than equal terms with a nonreligious assembly or institution."

Before the change adopted on May 19, within the General Commercial and Local Commercial zones, assembly halls, cultural facilities, fraternal organizations, funeral homes, and schools, colleges, universities, and technical schools were allowed as of right, while places of worship required a conditional use permit. Similarly, in the Light Industrial Zone, assembly halls, funeral homes, schools and technical schools were permitted, but places of worship were excluded entirely. With the ordinance change, places of worship will be allowed in these three zones as of right.

Further information on the Civil Rights Division's work enforcing the land use provisions of RLUIPA, including questions and answers about RLUIPA and a report on the first ten years of Justice Department enforcement of RLUIPA, is available at the Housing and Civil Enforcement Section's RLUIPA page.

Justice Department Files Suit Against School District Over Failure to Accommodate Muslim School Police Officer

The United States on March 5 filed an employment discrimination lawsuit against the School District of Philadelphia over its decision to deny a religious accommodation to a Muslim school police officer who had worn a beard on the job for 27 years. The suit, brought under Title VII of the Civil Rights Act of 1964, alleges that the school district reasonably could have provided an exemption to a new grooming policy limiting beards to 1/4 inch in length.

Title VII requires that employers make a reasonable accommodation of employee's religious observances and practice unless the employer can prove that this would impose an "undue hardship" on its operations.

Siddiq Abu-Bakr has been a school security officer and school police officer since 1987. An observant Muslim, he has worn a beard longer than 1/4 inch for the entire time that he has worked for the school district, and the wearing of a beard has never interfered with his performance of his duties. In 2010, a new grooming policy for school police and security officers limited beards to 1/4 inch in length. Abu-Bakr believes that his faith requires him to wear his beard untrimmed and longer than 1/4 inch. Abu-Bakr informed his supervisor that he could not trim his beard because of his religious beliefs, and was subsequently issued a written reprimand.

The United States' suit seeks declaratory and injunctive relief requiring the school district to develop and implement a grooming policy that accommodates religious practices as required by Title VII, as well as monetary damages for Abu-Bakr and others similarly situated.

On the day the complaint was filed, Acting Assistant Attorney General for the Civil Rights Division Jocelyn Samuels said: "Individuals should not have to choose between maintaining their jobs and practicing their faith when accommodation can be reasonably made. Federal law requires all employers, even those with grooming and uniform policies, to reasonably accommodate the religious observances and practices of their employees."

More information about Civil Rights Division cases regarding religious discrimination in employment is available on the Employment Litigation Section website.

Georgetown Professor and DOJ Lawyer Engage Malaysians on Religious Freedom Issues

In April, Georgetown University professor Timothy Shah and DOJ Special Counsel for Religious Discrimination Eric Treene travelled to Malaysia on a State Department-sponsored trip to discuss issues of religious tolerance and religious freedom with Malaysian government and community leaders.

Approximately 60% of the population of Malaysia is Muslim, but Malaysia has active and sizable minority religious communities including Christians, Hindus, and Buddhists. The country is currently in the process of considering a national harmony law to address issues of discrimination and tolerance in a comprehensive way.

In meetings and speeches, Professor Shah, who is Associate Director of the Religious Freedom Project of the Berkley Center for Religious, Peace and World Affairs at Georgetown, presented the findings of his research about religious freedom around the globe, showing that social conflict and hostilities based on religion increase the more that government regulates religion and takes sides on religious matters, and that they decrease when there is greater religious freedom and protection of religious minorities.

Special Counsel Eric Treene discussed the fact that Malaysia and the United States, while very different countries with different histories, both are countries that are at the same time diverse and devout: in each country there are sizable populations of religious minorities, and in each country both members of the majority faith and members of minority faiths are devout, measured by criteria such as rates of weekly attendance at religious services and daily prayer. In presentations such as one given at the Malaysian Judicial and Legal Training Institute on April 8, he described how the United States, from the time of the framing of the Constitution through adoption of comprehensive federal nondiscrimination laws in the 20th century, has sought to protect the religious freedom of both majority and minority faiths and create an environment where all faiths can flourish.

 


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