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Religious Freedom In Focus, Volume 18

DOJ seal United States Department of Justice
Civil Rights Division

June/July 2006
Volume 18

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.


Consent Decree Reached in Synagogue Discrimination Case

The Civil Rights Division reached a consent decree on July 7 with the City of Hollywood, Florida and the Hollywood Community Synagogue, which will allow the Orthodox Jewish synagogue to continue to operate out of the residential district where it is located. The Department of Justice had filed suit against the City of Hollywood in April 2005, arguing that the City’s decision to deny the synagogue a special use permit to operate out of a residential district violated the Religious Land Use and Institutionalize Persons Act (RLUIPA). The Department’s suit was later consolidated with a separate suit brought by the synagogue.

The Chabad Lubavitch-affiliated synagogue in 2001 applied for a permit to operate out of two residential homes. After several hearings, and despite determinations by the zoning board to grant the synagogue a permit, the city commission ultimately denied the synagogue a permit to operate permanently from its properties. The United States’ complaint alleged that the city had granted similar permits to numerous other houses of worship and nonreligious assemblies, and indeed had never before denied any place of worship a special permit to operate in a residential district. The Department further alleged that the city had not enforced the zoning code against other religious assemblies which were operating in the same district without permits.

On June 26, Judge Joan A. Lenard ruled that Hollywood’s procedures for reviewing zoning applications for houses of worship operating out of residential neighborhoods were facially unconstitutional, since they were vague and gave city officials unbridled discretion to refuse permits and the ability to covertly discriminate against houses of worship. On June 27, Judge Lenard also denied the City’s motion for summary judgment against the United States, permitting the remainder of the case to go to trial. The parties reached an agreement as the judge prepared to impanel a jury.

Under the consent decree, the synagogue can continue to operate permanently out of its current location as a matter of right, and may purchase additional properties within a block of its current location for expansion. The consent decree also requires city officials to undergo training on the requirements of RLUIPA, requires the city to adopt new complaint procedures, and requires periodic reporting to the Department of Justice. Under a separate agreement filed at the same time, the city agreed to pay the synagogue $2 million.

RLUIPA, enacted in 2000, prohibits religious discrimination in land-use and zoning decisions. Since 2001, the Civil Rights Division has reviewed more than 118 cases involving RLUIPA and has opened 26 full investigations. These have included investigations of unequal treatment of Christian, Jewish, Muslim, Hindu and Buddhist houses of worship and religious schools. Most of these have been resolved amicably through voluntary modification of potentially discriminatory zoning regulations. The Division also has filed three RLUIPA lawsuits. More information about RLUIPA can be found on the Civil Rights Division's Housing and Civil Enforcement homepage.

DOJ Defends Student’s Right to Sing Religious Song

On June 19, the Civil Rights Division filed a friend-of-the-court brief in support of an eight-year-old girl who was forbidden from singing a Christian song in a school talent show because the song she wanted to sing was too religious. The suit, O.T. v. Frenchtown Elementary School District Board of Education, was filed by the student’s parents in 2005 in federal district court in New Jersey. It argues that the school violated her constitutional rights by censoring her speech.

The talent show, held on a Friday night, consisted of songs, skits, and other performances by students, who selected and rehearsed their acts on their own. Each student was free to choose his or her own act, subject to a few basic guidelines barring acts using profanity or involving weapons, alcohol or drugs. However, when the plaintiff chose to sing a contemporary Christian song, “Awesome God,” she was told that it was inappropriate because it contained an overtly religious message.

In its friend-of-the-court brief, the Civil Rights Division notes that there is a distinction between curricular speech, in which the schools have a great deal of control over content, and situations where a school invites children to speak on topics of their choosing. In the latter case, the schools may not discriminate on the basis of viewpoint, such as religious viewpoint. The brief points out that parents and students attending the event would not perceive the individual performances as the speech of the school, but rather would understand that each child’s act was his or her own expression. And under the First Amendment, student speech cannot be censored based on its viewpoint absent a compelling justification.

For this same reason, the school’s proffered justification that it had to censor the speech to satisfy the Constitution’s Establishment Clause does not hold up to scrutiny, the brief argues. The Supreme Court has noted that there is a “critical difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Here, the speech was the student’s, not the school’s, and this would be understood by the audience. The school thus had no compelling reason to censor the song, the brief argues.

DOJ Files Brief Clarifying the Equal Terms Provision of RLUIPA

On June 7, 2006, the Civil Rights Division filed a friend-of-the-court brief in Lighthouse Institute for Evangelism, Inc. v. City of Long Branch in the United States Court of Appeals for the Third Circuit, arguing that the district court had incorrectly applied an important section of the Religious Land Use and Institutionalized Persons Act (RLUIPA) protecting houses of worship from discrimination.

After Lighthouse Institute was denied a zoning permit to use its commercially-zoned property as a church, it filed suit under RLUIPA. One of its claims was under section 2(b)(1) of RLUIPA, which provides: “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.” In ruling against the church, the court held that it was not enough that the church show discrimination, but that it also must show that the discrimination imposed a "substantial burden" on its religious exercise.

The Civil Rights Division’s appeal brief argues that the court erred by importing the “substantial burden” test, which is contained in a different part of RLUIPA pertaining to different kinds of claims, to discrimination claims under 2(b)(1). The brief contends that the anti-discrimination provisions of RLUIPA, 2(b)(1), which bars discrimination in favor of secular uses and against religious ones, and 2(b)(2), which bars discrimination against particular religions, cannot be read to require the additional step of proving a “substantial burden.” The brief states that “[u]nder this interpretation, a municipality could create a zone in which, for example, Christian churches may build on one-acre lots but Hindu temples must build on five acre lots, unless a Hindu congregation can show that this rule substantially burdens its religious exercise.” The brief urges the appeals court to reverse this part of the trial court’s decision.

DOJ Again Supports Bronx Household of Faith’s Appeal to the Second Circuit

On July 16, the Civil Rights Division for the second time filed an amicus brief in the United States Court of Appeals for the Second Circuit, supporting a Christian congregation’s right to rent school facilities from the New York City School Board on an equal basis with other civic and community groups, in Bronx Household of Faith v. Board of Education of the City of New York.

The city makes school facilities available after hours to groups for “social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community.” Nearly 10,000 permits are issued per year under this policy allowing groups to use school facilities. Groups renting facilities have included sports leagues, Legionnaire Greys, Boy and Girl Scouts, community associations, a college for holding English instruction, and numerous diverse groups.

Bronx Household of Faith is a small, independent church that has sought to rent school facilities for Sunday worship. The school board, however, has long refused to rent facilities to groups that intend to engage in worship activities. After an initial round of litigation in the 1990's failed, Bronx Household filed suit against the New York City School Board a second time in 2002, claiming that it was entitled to equal treatment based on the Supreme Court’s 2001 decision in Good News Club v. Milford. In Good News Club, the Supreme Court held that a policy nearly identical to New York City’s could not be used to bar a group from using school facilities after-hours that teaches morals and character to children through Bible study, games, prayer and songs. In June 2002, a federal court in New York ruled that, in light of the Good News Club decision, Bronx Household of Faith was likely to win the case and granted a temporary order allowing it to rent the school facilities as the case progressed. On appeal, the United States filed a friend-of-the-court brief supporting Bronx Household’s position, and the appeals court affirmed. Since then, as the suit has proceeded, Bronx Household and 22 other congregations have used school facilities for Sunday services.

After the ruling, the school board modified its procedures, but the new provisions continued to deny churches equal access to its facilities. In May 2005, the United States filed a second friend-of-the-court brief, this time with the district court, urging it to grant a permanent injunction against the School Board. On November 17, the judge permanently barred the school from discriminating against the church. The City appealed to the Second Circuit. In its most recent friend-of-the-court brief, the United States argues: "The Board engaged in unconstitutional viewpoint discrimination by denying Bronx Household the same opportunity to promote its activities that other groups enjoy. Restrictions on private speech must be viewpoint neutral. In all relevant respects, Bronx Household's meetings did not differ from other groups' meetings that the Board permitted to use the school. Rather, the Board denied Bronx Household use of the school solely because of the religious perspective of its activities."

The brief points out that the city’s efforts to argue that worship is a distinct, excludable category of speech ultimately fails. Worship, like the various diverse activities the city has permitted in the schools after hours, is a social and civic activity. It is also communicative in the same way that songs, speeches, secular rituals, and other activities engaged in by groups like the American Legion, the Boy Scouts and Girl Scouts, and other community organizations are. As the brief notes, in addition to the obvious communicative nature of sermons or homilies, “communal worship activities such as singing and prayers are also expressions among believers” and “communicate specific messages among participants and observes about the participants’ world view.” Worship thus is a form of speech protected by the First Amendment, the brief argues.

United States Department of Justice
Civil Rights Division

Updated August 6, 2015