Religious Freedom In Focus, Volume 4

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United States Department of Justice
Civil Rights Division


May 2004
Volume 4

Religious Freedom in Focus is 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.

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.


Court Enters Consent Decree Guaranteeing Muslim Girl's Right to Wear Headscarf to School

In an important victory for the religious liberty of people of all faiths, U.S. District Judge Frank H. Seay entered a consent decree on May 20 in the case of a sixth-grade Muslim girl in Muskogee, Oklahoma who had been barred from wearing her headscarf, (or hijab) to school. The consent decree, reached between the United States, lawyers for the student, and the Muskogee Public School District, will permit her to wear her hijab at school and will also require the school district to accommodate the religious needs of other children. The school had suspended her for eight days in October 2003 for refusing to take off her hijab.

Nashala Hearn had worn her hijab for several weeks at the beginning of the 2003-2004 school year. However, on September 11, 2003, the sixth-grader was told that she could no longer wear her hijab. School officials said that other students were frightened by the hijab, and cited the “no-hats” policy in the school’s dress code. The dress code had not been applied consistently, however. Students with thinning hair due to medical reasons were permitted to wear scarves. The school had also allowed students to wear “Cat in the Hat” hats for Dr. Seuss’s birthday, and to wear hats on other special days. When Nashala refused to take off her hijab, she was suspended.

Nashala, through her father, brought suit against the school district in October 2003, alleging violation of her constitutional rights and violations of Oklahoma law. She was permitted to wear her hijab during the pendency of the lawsuit. The Civil Rights Division opened an investigation in November 2003, and then intervened in the lawsuit upon finding evidence to support a claim based on the denial of her rights under the Constitution’s Equal Protection Clause.

The consent decree, which will last for six years, will permit Nashala to wear her hijab, and requires the school district to make similar religious accommodation for any other student in the school system who has a bona fide religious objection to the dress code. The school district will also implement a training program for all teachers and administrators regarding the revised dress code and publicize the revisions to students and parents. The school district also must certify its compliance with the terms of the order to the Department of Justice for a four-year period. In a confidential agreement, the district settled Nashala’s damages claim and claim for expungement of her school records.

“This settlement reaffirms the principle that public schools cannot require students to check their faith at the school house door,” said R. Alexander Acosta, Assistant Attorney General for Civil Rights. “The Department of Justice will not tolerate discrimination against Muslims or any other religious group. As the President and the Attorney General have made clear repeatedly, such intolerance is un-American, and is morally despicable.”

Appeals Court Rules Florida City Discriminated Against Orthodox Jewish Congregations

In a significant victory for the right of people of faith to gather for worship, on April 21, the U.S. Court of Appeals for the Eleventh Circuit ruled that the City of Surfside, Florida, violated the religious liberties of two small Orthodox Jewish congregations when it barred them from meeting in rented commercial space. This was the first time that a house of worship has won under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) in a federal court of appeals. Assistant Attorney General R. Alexander Acosta argued the case for the United States in January.

“The court sent a strong message that the right to worship is a civil right, and that zoning laws cannot be used to discriminate against churches, synagogues, and other houses of worship,” said Assistant Attorney General Acosta. “The Department of Justice will not tolerate illegal discrimination in zoning on the basis of religion.”

The two congregations, Midrash Sephardi and Young Israel of Bal Harbor, had rented space above a bank in the city’s commercial district. Surfside’s zoning code permitted private clubs, lodge halls, dance studios, music studios, and language schools in the commercial district, but excluded houses of worship. When threatened with eviction, the two congregations challenged the city’s actions under RLUIPA. The federal trial court ruled in favor of the city last year.

On appeal, the Civil Rights Division submitted two briefs, one arguing that the city had violated the congregations’ rights under RLUIPA, and the second arguing that RLUIPA is a valid exercise of Congress’s power to enforce the Fourteenth Amendment. The Court of appeals agreed, and reversed the lower court. The Court of Appeals held that the city had violated RLUIPA’s “equal terms” provision, which requires that religious assemblies be treated no less equally than “a non-religious assembly or institution,” by barring religious congregations while allowing private clubs such as a Masonic lodge in its commercial district. The court rejected Surfside’s claim that its private clubs contribute to the local economy in a way that the synagogues do not.

The court also rejected both the city’s claim that RLUIPA exceeded Congress’s legislative authority, and its claim that RLUIPA’s goal of protecting houses of worship from discrimination violated the Establishment Clause.

USA PATRIOT Act Leads to Arrest in Bias Crime Against El Paso Mosque

Thanks to a provision of the USA PATRIOT Act, the FBI arrested a Texas man shortly after he sent a threatening e-mail to the El Paso Islamic Center. On May 21, a federal grand jury in the Western District of Texas returned a two-count indictment charging that thirty-year-old Jared Bjarnason sent an e-mail to the mosque threatening its destruction if American hostages held in Iraq were not freed within three days.

The FBI made the arrest after obtaining information about the sender from two internet service providers. The FBI was able to obtain that information thanks to a provision of the USA PATRIOT Act that permits internet service providers to turn over email records to law enforcement officials “if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information.” Absent this provision, investigating authorities would have had to obtain a separate search warrant from each service provider through whose system the e-mail traveled, a process which could have taken over 30 days. With the USA PATRIOT Act’s authority, agents were able to address the threat in near-real time.

The first count returned by the grand jury was under 18 U.S.C. 247, known as the Church Arson Prevention Act, which makes it a federal crime to use force or the threat of force to interfere with a person’s free exercise of religion. The second count was under 18 U.S.C. 875, which makes it a federal crime to transmit a threat in interstate commerce. The defendant is considered innocent until proven guilty in a court of law.

More information about the USA PATRIOT Act is available at

Conviction of Tallahassee Mosque Attacker Upheld

On April 30, the United States Court of Appeals for the Eleventh Circuit upheld the conviction of Charles Franklin under the Church Arson Prevention Act for driving his pick-up truck through the front of the Islamic Center of Tallahassee. The appeals court rejected Franklin's claim that the provision of the Church Arson Prevention Act under which he was convicted was beyond Congress's power to enforce civil rights under the 13th Amendment.

On March 25, 2002, Franklin drove his truck through the front doors of the Islamic Center. After crashing the truck into the mosque, Franklin went to a nearby bar and was heard bragging about “getting back” at Arabs and Muslims for the 9/11 attacks. He made similar statements to police when he was arrested.

He was charged under 18 U.S.C. 247(c), which makes it a crime to “intentionally deface[ ], damage[ ], or destroy[ ] any religious real property because of the race, color, or ethnic characteristics of any individual associated with that religious property.” Franklin was convicted on February 20, 2003, and sentenced to 27 months in prison.

The appeals court rejected his argument that this section of the Church Arson Prevention Act was unconstitutional. The court determined that in passing the Act, “Congress found that the destruction and damage to religious property posed a serious national problem, and that there had been an increase in arson of places of religious worship that serve predominantly African American congregations.” While the 13th Amendment was addressed at protecting African-Americans, the fact that the Act also can protect people of other races does not render it unconstitutional, the court held.

“This conviction, and the court's affirmance, send a clear message that attacks on mosques and other house of worship will be punished severely,” R. Alexander Acosta, Assistant Attorney General for Civil Rights, said. “Here a man angry about the attacks against innocents on 9/11 retaliated by attacking innocents. Such violence cannot, and will not, be tolerated.”

United States Department of Justice
Civil Rights Division

Updated August 6, 2015

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