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Religious Freedom In Focus, Volume 28

DOJ seal United States Department of Justice
Civil Rights Division

October 2007
Volume 28

Religious Freedom in Focus is a periodic email update about the Civil Rights Division's religious liberty and religious discrimination cases. On February 20, 2007, the Department of Justice launched a new initiative, The First Freedom Project, to highlight its work protecting religious freedom. 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 and back issues of this newsletter may be found at You may also contact the Special Counsel for Religious Discrimination, Eric W. Treene, at (202) 353-8622.


Second Circuit Finds Jewish School’s Rights Were Violated in Zoning Permit Denial, Upholds Constitutionality of RLUIPA

The Second Circuit ruled on October 17 that a New York village violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it denied a Jewish school a zoning permit it needed to expand. The court also rejected the village’s argument that Congress exceeded its power in enacting RLUIPA and that RLUIPA violated the Establishment Clause. The United States is a defendant-intervenor in the case, Westchester Day School v. Village of Mamaroneck.

Westchester Day School is an Orthodox Jewish school for students from pre-K through high school, established in 1948 in Mamaroneck, New York. The school places a heavy emphasis on religious study, and Judaic concepts are incorporated throughout the curriculum. Over the years, the classrooms had become overcrowded and outdated, and in 1998 the school determined that it desperately needed to update and expand its facilities. It applied for the necessary permit and submitted detailed environmental, traffic, and other impact studies. The Zoning Board of Appeals initially determined that no negative impact on the community would result from the expansion project. Shortly thereafter, however, the board reversed course under pressure from the community and denied the permit. The school then filed suit in U.S. District Court, and the United States intervened to defend the constitutionality of RLUIPA.
The district court ruled for the school in 2003 prior to trial, but the Second Circuit Court of Appeals in 2004 reversed and held that there were issues in dispute that required a trial. After a bench trial, the district court found that the school’s religious mission was substantially burdened by the lack of adequate facilities, and that the Village did not have a compelling reason for imposing this substantial burden, thus violating RLUIPA. The court also rejected the Village’s constitutional challenges to RLUIPA. The village appealed to the Second Circuit.
On appeal, the United States argued that the school had demonstrated a substantial burden on its religious exercise as required by RLUIPA. The brief argued that the building project was necessary for the continued viability of the school, and that the school "has endured years of negotiation, expense, effort, and delay, and the district court correctly determined that ‘any purported willingness on the part of the [village] to consider fairly, much less approve, another application actually filling [the school’s] needs is, at the least, highly suspect." The United States also argued that RLUIPA was a constitutional response by Congress to zoning abuses.
The Second Circuit in its October 17 decision agreed that the school’s RLUIPA rights had been violated. The court determined that the school had demonstrated that the expansion was necessary to meet its needs in effectively providing an education grounded in the study of Judaism. The court also found that the school had demonstrated that there were not adequate alternative building sites and that the zoning board had acted arbitrarily and contrary to New York zoning law, an indication that the school would not receive fair consideration if it were to modify its plan and try again for board approval. The court concluded: "We are persuaded that [the school] has satisfied its burden of proving that there was no viable alternative to achieve its objectives, and we conclude that [its] religious exercise was substantially burdened by the [zoning board’s] arbitrary and unlawful denial of its application." Turning to the justification offered by the village – traffic safety – the court stressed that it is not enough for the village to argue that public safety is compelling in the abstract: the village had to show that public safety created a compelling reason in this particular case, which it had not done.
The court also ruled that the application of RLUIPA to this case is constitutional. The court found that the expansion and modernization project would have at least a minimal effect on interstate commerce, thus satisfying the demands of the Commerce Clause. The court also rejected the claim that finding for the school in this case constitutes government support for religion in violation of the Establishment Clause: "Under RLUIPA, the government itself does not advance religion; all RLUIPA does is permit religious practitioners the free exercise of their religious beliefs without being burdened unnecessarily by the government."
Rena J. Comisac, Acting Assistant Attorney General for the Civil Rights Division, applauded the decision: "RLUIPA is an important civil rights statute enacted by Congress to address widespread discrimination by zoning officials against religious schools and houses of worship. We are pleased that the Second Circuit found RLUIPA to be a constitutional exercise of Congress’s power, and that the court interpreted its terms broadly to protect religious freedom."

Federal Court Rules Taking of Mosque’s Land May Violate RLUIPA

On October 1, a New Jersey federal court ruled that a township may have violated a mosque’s rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it initiated eminent domain proceedings to take the mosque’s land while its construction application was pending. The United States filed a brief and participated in the court hearing as a friend-of-the-court in the case, Albanian Associated Fund v. Township of Wayne.

As set forth in Volume 26, the case involves the efforts of an Albanian Muslim congregation to construct a mosque on land it purchased in the Township of Wayne. After the congregation’s permit application was pending for more than three years, the Township began eminent domain power in 2006 to take the land and leave it undeveloped. The eminent domain taking of the property was undertaken pursuant to an "open spaces" ordinance designed to identify and preserve undeveloped property. The Albanian Association contended that the real reason the Township was taking these steps to block the mosque was bias against Muslims. The United States’ brief agreed that the congregation had presented sufficient evidence of discriminatory purpose that the case should be allowed to proceed to trial.

While not ruling on the question of whether eminent domain proceedings themselves constitute "land-use regulation" covered by RLUIPA, the court ruled that RLUIPA applied here because the "open spaces" ordinance was a land-use regulation, and the use of eminent domain power was the means by which the open spaces ordinance was implemented. RLUIPA section 2(b)(2) 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." This effort to take the congregation’s land, the court ruled, is plainly an implementation of the open spaces ordinance, and the congregation had presented evidence that discriminatory animus was behind the effort: "The circumstances of this case and the manner in which the plaintiff’s property was pursued, at the very least, support an indication of discriminatory or improper purpose for which plaintiff is entitled to inquire into the Council’s motives in condemning the plaintiff’s property and raise the issue of credibility before the trier of fact." The case will now proceed to trial.

"We are pleased that the court recognized that while local officials have authority to control development, these powers must not be abused," Rena J. Comisac, Acting Assistant Attorney General for the Civil Rights Division, said. "The exercise of these powers becomes illegitimate when used for discriminatory purposes."

Since 2001, the Civil Rights Division has reviewed more than 140 cases involving RLUIPA, opened 34 formal investigations, and filed four lawsuits. These have included investigations involving Christian, Jewish, Muslim, Hindu, and Buddhist houses of worship and religious schools. Many of these have been resolved out of court through voluntary modification of potentially discriminatory zoning regulations. The Division also has filed four RLUIPA lawsuits. More information about RLUIPA can be found on the Civil Rights Division's Housing and Civil Enforcement Section RLUIPA page or at

"Pervasively Sectarian" Scholarship Ban Conflicts with Constitution, Brief Argues

On September 21, the Civil Rights Division filed a friend-of-the-court brief in the United States Court of Appeals for the Tenth Circuit, arguing that a Colorado scholarship program’s exclusion of students attending a nondenominational Christian university violated the Constitution. The brief filed in the case, Colorado Christian University v. Weaver, contends that Colorado’s policy of providing scholarships to students to be used at the college of their choice, whether public or private, but excluding schools deemed by the state to be "pervasively sectarian," conflicts with Supreme Court precedent.

Colorado has a scholarship program providing tuition assistance to low-income students attending private and public colleges and universities within the state. Under the program, the state has permitted students to use their scholarships to attend various schools, including some religiously affiliated schools. However, the state bars students from using the scholarship at schools it deems to be pervasively sectarian. The state thus found students at Colorado Christian University, a nondenominational school with approximately 2,000 students which features majors including accounting, mathematics, history, and theology, to be ineligible for scholarships, regardless of the major the student chooses, because the state found that various religious attributes of the school made it pervasively sectarian.

The University filed suit against the state officials administering the program, claiming discrimination in violation of the Equal Protection Clause, the Establishment Clause, and the Free Exercise Clause of the U.S. Constitution. A federal trial court ruled in favor of the state, finding that while discriminatory, the discrimination was justified by the state’s desire to bar its funds from going to pervasively sectarian schools.

The United States’ brief contends that the district court erred and that the policy in fact violates the Constitution. Colorado’s rule barring aid to "pervasively sectarian" schools was based on a concept set forth in older Supreme Court decisions, which the Court has since repudiated. Under the pervasively sectarian concept, the brief notes, "some institutions were deemed so religious that any aid they touched automatically became constitutionally tainted." This doctrine was repudiated by the Supreme Court in Mitchell v. Helms (2000). In Mitchell, the Court upheld a program that gave schools secular instructional aids such as computers and did not distinguish between public and private, religious or secular schools, and in particular did not make distinctions among different types of religious schools. A plurality of the Court observed that "nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of the Court bar it." The plurality explained: "If a program offers permissible aid to the religious (including the pervasively sectarian), the areligious, and the irreligious, it is a mystery which view of religion the government has established, and thus a mystery what the constitutional violation would be." Similarly, Justices O’Connor and Breyer, writing a concurring opinion in the case, also rejected the pervasively sectarian concept, repudiating the notion "that the secular education function of a religious school is inseparable from its religious mission."

The United States’ brief contends that Mitchell, as well as numerous other Supreme Court decisions, prohibits discriminating against students wishing to use their scholarship to attend schools the state deems pervasively sectarian. The brief points out that "a student attending [Colorado Christian University] cannot receive tuition assistance, while one attending an institution that also has a religious character but, in the view of the state, is not as ‘pervasively’ religious . . . may receive public funding. And this holds true even if the CCU student elects to study a purely secular subject such as accounting, mathematics or history, while the similarly situated [student at other religiously affiliated schools] decides to major in religion." This violates the Free Exercise and Equal Protection clauses, the brief argues, as well as a line of Establishment Clause cases barring laws making "denominational preferences." It also raises Establishment Clause concerns about the state delving into religious doctrine and determining which schools are too religious and should be barred from the scholarship program and which are acceptable.

The brief also notes that the Supreme Court’s decision in Locke v. Davey (2004), which permitted a state to bar a student from using a scholarship to train to become a minister, did not apply to the facts here. The Locke decision was based on a narrow holding based on the historical concern with using state funds to support churches or train clergy. Such concerns are not raised when students use scholarships to attend the school of their choice to pursue general educational programs.

Religious Freedom Seminar Slated for Los Angeles

The next of a series of DOJ regional seminars on Federal Enforcement of Laws Protecting Religious Freedom will be held in Los Angeles, California, on Thursday, November 29, from 9:00 a.m. to noon. These seminars are part of the Department’s religious freedom initiative, The First Freedom Project.

The seminar will cover the full range of religious liberty laws enforced by the Department of Justice’s Civil Rights Division: laws barring discrimination based on religion in employment, public education, housing, credit, and access to public facilities and public accommodations; laws barring zoning authorities from discriminating against houses of worship and religious schools; laws protecting the religious rights of institutionalized persons; and criminal statutes such as the Church Arson Prevention Act, which makes it a federal crime to attack persons or institutions based on their religion or otherwise interfere with religious exercise through threats or violence.

The seminar will be held at the U.S. Attorney’s Office Training Room, located at the Federal Building, 300 North Los Angeles Street. To register, please send your name, phone number, and organization, if applicable, to More information is available here.

United States Department of Justice
Civil Rights Division

Updated August 6, 2015