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Religious Freedom In Focus, Volume 1

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United States Department of Justice
Civil Rights Division


February 2004
Volume 1

This is the inaugural issue of Religious Freedom in Focus, 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 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);

and 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 life.


Title VII’s Religious Accommodation Provisions Vindicated

On the eve of an en banc argument before the United States Court of Appeals for the Seventh Circuit, the plaintiff and defendants in Holmes v. Marion County reached a settlement, averting a decision on the constitutionality of the religious accommodation provisions of Title VII. Title VII prohibits employers from discriminating against employees based on religion, and also requires accommodation of religious beliefs and practices such as Sabbath observance or the wearing of religious garb, unless the accommodation would be an undue hardship on the employer. The Seventh Circuit Court of Appeals covers Illinois, Wisconsin, and Indiana.

The case was brought by a Muslim woman after her request that she be permitted to wear a head scarf while working for the Marion County (Indiana) welfare office was refused. The county defendants sought to have the suit dismissed on the grounds that Title VII exceeded Congress’s power under Section 5 of the Fourteenth Amendment and was therefore unconstitutional as applied to private suits against State employers in Federal court. The Civil Rights Division intervened for the limited purpose of defending the constitutionality of Title VII. A District Court agreed that Title VII was constitutional, but a three-judge panel of the Seventh Circuit reversed. The Civil Rights Division petitioned for rehearing before the entire 12-judge court en banc. The en banc court vacated the panel opinion and slated argument for January 21, 2004.

The day before the rehearing, and just minutes before a Civil Rights Division attorney was to leave for Chicago to argue the appeal, the plaintiff and the defendants reached a settlement. Since the grant of rehearing vacated the panel opinion, the Title VII rights of employees of state and local governments within the Seventh Circuit who require accommodation of their religious beliefs and practices are once again in full force. The Civil Rights Division will continue to defend vigorously challenges to the constitutionality of this important civil rights law.

Seniors May Pray Again at Texas Senior Center

In August 2003, the City of Balch Springs, Texas, told seniors using the city’s senior center that they could no longer pray out loud before meals, get together to sing gospel music, or bring in religious speakers, such as an elderly minister who for years had led a Monday morning devotional with friends at the center. All of these activities had been initiated and run by the seniors themselves, without the involvement of city employees. A group of seniors filed suit against the city in September, claiming violations of their right to free speech under the First Amendment and equal protection of the law under the Fourteenth Amendment.

The Civil Rights Division opened an investigation in November 2003 to determine if the city was engaged in discrimination against religion in violation of the Constitution and Title III of the Civil Rights Act of 1964, which prohibits discrimination based on religion in public facilities. In addition to written questions and document requests, the Civil Rights Division sent an attorney to the site in December, who met with both city officials and attorneys as well as the plaintiffs and their attorney.

On December 22nd, the Balch Springs City Council voted unanimously to lift the ban on religious activity at the center and to adopt a policy that will permit speakers to address center members without censorship based on the religious viewpoint of the speech. On January 8, 2004, the city and the seniors filed a consent judgment with the Federal District Court. On the same day, the Civil Rights Division announced that it was closing its investigation. Assistant Attorney General R. Alexander Acosta remarked: “Senior citizens should not be forced to check their faith at the door in order to participate in city-run programs and facilities. There is a critical difference between government-sponsored religious speech, which raises legitimate concerns about government neutrality toward religion, and the personal religious expression of citizens who wish to engage in activities such as voluntary prayer before meal.”

Division Argues that Town Violated Rights of Orthodox Jewish Congregations

Assistant Attorney General R. Alexander Acosta appeared before the 11th Circuit Court of Appeals in Atlanta on January 13, 2004, arguing for the United States that the Town of Surfside, Florida illegally barred two Orthodox Jewish congregations from meeting in commercial space they had rented. The case, Midrash Sephardi v. Town of Surfside, was brought by the congregations in Federal court under the Religious Land Use and Institutionalized Persons Act (RLUIPA) (see “
Focus on RLUIPA” below for more information on this statute enacted in 2000). The congregations had been meeting in rented space above a bank, and were faced with eviction because the town zoning code did not permit houses of worship in the business district, although “lodge halls” and “private clubs” operated for “social, educational or recreational purposes” were permitted under the code. The United States intervened in the case after the Defendants challenged the constitutionality of RLUIPA.

The district court ruled against the plaintiffs. Although the “equal terms” subsection of RLUIPA (section 2(b)(2)), provides that “[n]o 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 court found that there was more synergy between businesses and secular assemblies, and thus houses of worship were distinguishable. The court also ruled that while RLUIPA bars operation of zoning laws that would cause a substantial burden on religious exercise without compelling government justification, this provision should be read to mean burdens on citizens of the jurisdiction. Since most of the congregants lived across the border in the neighboring communities of Bal Harbor and Bay Harbor Islands--even though these are within walking distance of the property--the court held that they could not show a burden under RLUIPA.

On appeal to the Eleventh Circuit, the United States submitted briefs supporting reversal of the district court and arguing that RLUIPA was a constitutional exercise of Congress’s power. The Civil Rights Division argued that excluding a synagogue where “social, educational, and recreational” clubs or lodges are permitted is a plain violation of RLUIPA’s “equal terms” provision, and is precisely the harm that Congress was trying to rectify when it enacted RLUIPA. Senators Hatch and Kennedy, the Senate sponsors of RLUIPA, issued a summary of the bill explaining that the equal terms provision is targeted at the problem that “[z]oning 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 also argued that RLUIPA explicitly protects “persons,” and not merely residents or taxpayers of particular jurisdictions, and that the district court was wrong to hold otherwise. As AAG Acosta said in an interview with the Miami Herald: “The big-picture issue is this: can you discriminate on the basis of religion against neighboring residents to protect your tax base?” See “Justice Department Backs Jewish Congregations’ Suit,” Miami Herald, January 14, 2004. The answer to that question, we believe, is no, and the United States will continue to defend the rights of people of all faiths to gather for worship without facing discrimination from zoning laws.

Focus on RLUIPA

Religious Land Use and Institutionalized Persons Act, or RLUIPA, was passed by a unanimous Congress in 2000. RLUIPA bars governments from discriminating against churches and other religious uses, or substantially burdening such uses without compelling justification, in applying zoning and landmark law. The law gives the United States authority to bring an action for injunctive relief, and this responsibility for enforcement has been assigned to the Civil Rights Division. The Civil Rights Division has opened 15 formal investigations and filed one lawsuit under RLUIPA, United States v. Maui. (See Adam Liptak, “Justice Department Takes up a Little Church’s Zoning Fight,” New York Times, July 4, 2003)

The Division’s RLUIPA investigations involve institutions that span the breadth of religious traditions. Many of these investigations have led to out-of-court resolutions, such as:

West Mifflin, Pennsylvania: A predominantly black Baptist congregation purchased a church that had been vacated by a predominately white Baptist congregation, but was denied an occupancy permit. After the Civil Rights Division sent a letter to the town stating that it was opening an RLUIPA investigation in December of 2002, West Mifflin issued the congregation its permit.

Northbrook, Illinois: Northbrook, Illinois’ zoning ordinance totally prohibited religious uses from a number of its business and industrial zones, but permitted non-religious membership-based organizations like the Rotary Club. After the Civil Rights Division opened an RLUIPA investigation in response to a complaint by a Presbyterian congregation in April of 2003, Northbrook amended its zoning ordinance to treat houses of worship the same as other private organizations.

Loudoun County, Virginia: A Muslim K through 12 school purchased a large tract of land in Loudoun County in 1997 with plans to build a campus to combine its elementary and high schools. Despite open and widespread anti-Muslim animus expressed in the community against the school, the county issued a conditional use permit to the school. Then, in 2002, the County Zoning Administrator issued a ruling that would move up the date in which construction would have to be completed, which would have had the effect of blocking the project. In December of 2002, the Civil Rights Division opened an RLUIPA investigation and sent a letter to the county seeking information. One month later, the county’s Board of Zoning Appeal reversed the Zoning Administrator, thus allowing the project to move forward.

The Civil Rights Division is committed to continuing to work to ensure that RLUIPA rights are enforced. The Division’s Housing and Civil Enforcement Section currently has seven formal investigations open and has eleven preliminary inquiries underway. If you have an RLUIPA matter that you think may be of interest to the Division, please contact the Housing and Civil Enforcement Section.

United States Department of Justice
Civil Rights Division



Updated May 30, 2023