Religious Freedom In Focus, Volume 16

DOJ seal United States Department of Justice
Civil Rights Division

February/March 2006
Volume 16

Religious Freedom in Focus is a periodic email update about the Civil Rights Division's religious liberty and religious discrimination cases. The Civil Rights Division 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.

More information about this initiative, and back issues of this newsletter, may be found on the religious discrimination home page of the Civil Rights Division website. You may also contact the Special Counsel for Religious Discrimination, Eric W. Treene, at (202) 353-8622.


Civil Rights Division Argues Boy Scouts Can Participate in City Lease Program; Acknowledgment of God Does Not Make Scouts a Religious Organization

The Civil Rights Division appeared for the United States as friend-of-the-court before a federal appeals court in California on February 14, arguing that a lower court erred in finding the Boy Scouts of America to be a religious organization and thus barred by the Establishment Clause from leasing land from San Diego. As set forth in Volume 9 of Religious Freedom in Focus, the United States submitted a friend-of-the-court brief with the United States Court of Appeals for the Ninth Circuit in February 2005 supporting the Boy Scouts’ call for reversing the lower court’s ruling in the case, Barnes-Wallace v. Boy Scouts of America.

The City of San Diego leases city property at low cost to community groups, who in turn make improvements to the land and provide benefits to the City. The Boy Scouts leased parkland from the City under this program for use as a campground and an aquatic center, and in return for the use of the properties agreed to make multi-million dollar improvements, cover operating expenses, and open the properties to other youth organizations. Two sets of parents brought suit against the City and the Boy Scouts, arguing that because the Boy Scout Oath acknowledges a duty to God, and the Boy Scouts have certain other religious characteristics, the leasing deal violated the Establishment Clause. The Federal District Court in San Diego agreed and invalidated the leases.

The Ninth Circuit Court of Appeals permitted the United States to argue the case in support of the Boy Scouts. In seeking to appear, the United States pointed to its general interest in cases involving individuals and groups seeking access to government land. The United States also cited its particular interest in the Boy Scouts’ access to government property. The United States noted that in a different case, Winkler v. United States, the United States is defending federal laws providing U.S. military support for the Boy Scout Jamboree, held every four years at Fort A.P. Hill in Virginia. A federal court ruled in Winkler that the use of Fort A.P. Hill and other military support for the Scouts violated the Establishment Clause, and the United States appealed. Arguments will be held in Winkler before the Seventh Circuit Court of Appeals on April 6.

In the San Diego case, the United States argued in its brief that the Boy Scouts are strictly nonsectarian and have no creed, but rather are a recreational and social organization that seeks to build character and virtue in young men. The fact that the Scouts hold up reverence as a virtue does not make it a religion for Establishment Clause purposes. The United States further argued that even if the Scouts were assumed to be a “religion,” the leasing deals were the type of arms-length, value-for-value transactions involving secular activities into which the government may enter with religious organizations.

The February 14 argument before the Ninth Circuit was held in Pasadena before Judges Canby, Berzon, and Kleinfeld. A recording of the argument may be heard at the Ninth Circuit website (10MB file size). A decision is pending.

Guilty Plea, Sentencings in Bias Crime Cases

On March 13, Michael Bratisax was sentenced for interfering with the religious exercise of Muslims at the Islamic Center of America in Detroit. He pleaded guilty in November 2005 to violating 18 U.S.C. 247 by sending two threatening emails to the Islamic Center from his home in New York. The criminal statute, known as the Church Arson Prevention Act because of its provisions regarding physical attacks on houses of worship, also prohibits anyone from intentionally obstructing or attempting to obstruct, “by force or threat of force, any person in the enjoyment of that person’s free exercise of religious beliefs.” Bratisax was sentenced to two years’ probation, with conditions including attending anger management and diversity training, refraining from drinking alcohol, submitting to random drug and alcohol testing, and creating a website dedicated to anger management and diversity.

Separately, on March 14, Daniel R. Alba was sentenced to six months of home confinement for lying to federal investigators who questioned him about his role in the bombing of a Palestinian family’s minivan in Burbank, Illinois. Alba provided a commercial explosive device of the type used in professional fireworks to a friend, Eric Kenneth Nix. Shortly after the start of the war in Iraq, Nix put the device into the minivan of the Palestinian family, who lived in his neighborhood, and set it off, destroying the minivan. Nix pleaded guilty on March 6 to a felony violation of 42 U.S.C. 3631, which prohibits threats or violence that interfere with fair housing rights. He will be sentenced on June 8.

Since the 9/11 attacks, the Department of Justice has investigated more than 700 cases of threats, vandalism, and attacks on Muslims, Arabs, Sikhs, and South Asians, and brought federal prosecutions against 34 defendants, with 31 convictions to date. With the assistance of the Department of Justice in many cases, state and local government have brought more than 150 such prosecutions. More information is available on the Civil Rights Division’s Initiative to Combat Post-9/11 Discriminatory Backlash, and at the Civil Rights Division Criminal Section's website.

City Reverses Course and Allows Church to Build After DOJ Opens Investigation

The Civil Rights Division closed its investigation of the City of Fairfax, Virginia on February 8, 2006 after the City reversed course and granted One God Ministry’s application for a special use permit to build a church. The Division had opened an investigation last fall into whether the City’s denial of several applications for such a permit violated the Religious Land Use and Institutionalized Persons Act (RLUIPA).

One God Ministry, a non-denominational church currently worshiping at a local elementary school in the City, had sought to build a 200-seat capacity church in the City to accommodate its multi-ethnic, multi-racial congregation of about 75 members. It submitted three applications for special use permits for two different properties. Despite One God Ministry’s repeated efforts to secure approval, the City Council denied each application without explanation.

The Civil Rights Division opened an investigation on September 15, 2005. Shortly afterward, the City and One God Ministry entered into negotiations. These discussions led to the City and One God Ministry entering into an agreement on November 3, 2005, providing that One God Ministry file another special use permit application for the City’s consideration. A fourth application was filed, and on December 13, 2005, the City granted it. The Civil Rights Division closed its investigation in response to the favorable outcome.

Since 2001, the Civil Rights Division’s Housing and Civil Enforcement Section has opened 26 investigations of municipalities and counties for violation of RLUIPA, and filed three lawsuits.

Hearing Held in RLUIPA Case Alleging Discrimination Against Hasidic Jews

On February 14, Judge Stephen C. Robinson of the United States District Court for the Southern District of New York held a hearing on the Village of Airmont, New York’s motion to dismiss a lawsuit brought by the United States that contends that the Village violated federal law when it enacted a zoning provision barring boarding schools. The suit, filed by the United States on June 10, 2005 under the Religious Land Use and Institutionalized Persons Act (RLUIPA) contends that the boarding school provision was enacted specifically to keep Hasidic Jews from settling in the Village. The suit also contends that the ordinance placed a substantial burden on the religious exercise of a Hasidic Jewish congregation that was denied a permit to build a boarding school, or yeshiva, in 2001.

The Village moved to dismiss the case on September 9. The Village first sought to dismiss the claim that it violated the ban on discrimination contained in section 2(b)(2) of RLUIPA. That section states: “No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.” The Village argued that it did not violate that section here because the statute treats religious and secular boarding schools equally. The United States responded in its brief that the Village violated this provision by using its zoning power to try to keep out a specific religious group.

The Village further contended that it did not substantially burden the religious exercise of the congregation because there were alternative religious uses to which it could have put the property. The United States argued in response that education in a yeshiva is an important part of the religious training of young Hasidic men, and that they thus were indeed substantially burdened by the permit denial. Finally, the Village argued that RLUIPA exceeded Congress’s powers under the Constitution. The United States countered that RLUIPA is a valid exercise of Congress’s power under Section 5 of the Fourteenth Amendment to enforce the provisions of the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

A decision on the motion to dismiss is pending.

United States Department of Justice
Civil Rights Division

Updated August 6, 2015

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