RELIGIOUS FREEDOM IN FOCUS, VOLUME 77 - December/2018

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

The Civil Rights Division is working to protect the right of all people to practice their faiths freely and without discrimination.

 

Back issues of this newsletter may be found at http://www.justice.gov/crt/spec_topics/religiousdiscrimination. You may also contact the Special Counsel for Religious Discrimination, Eric W. Treene, at (202) 353-8622.

IN THIS ISSUE:

 

Florida City Amends Zoning Code to Treat Places of Worship Equally With Nonreligious Assemblies

On December 4, the Department of Justice closed its investigation of the City of Coconut Creek, Florida under the Religious Land Use and Institutionalized Persons Act (RLUIPA), after the City changed its zoning code to treat houses of worship equally with nonreligious assemblies. 

The Department opened an investigation in 2016 into the City’s treatment of churches and other houses of worship in its zoning code.  At the time, nonreligious assemblies such as dance and martial arts studios, fitness clubs, and childcare facilities were allowed to operate as of right in business districts, while houses of worship in these districts were required to obtain special land use permits to operate. 

Section 2(b)(1) of RLUIPA states that “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.”  This provision, according to lead sponsors Senators Edward Kennedy and Orrin Hatch, was included in RLUIPA because “[z]oning codes frequently exclude churches in places where they permit theaters, meetings halls, and other places where large groups of people assemble for secular purposes. . . . Churches have been denied the right to meet in rented storefronts, in abandoned schools, in converted funeral homes, theaters and skating rinks—in all sorts of buildings that were permitted when they generated traffic for secular purposes.”  RLUIPA authorizes the Department of Justice to bring suits to enforce the law’s provision, in addition to authorizing affected organizations and individuals to file their own suits.

After the Department opened its investigation, the City of Coconut Creek proposed amending its zoning laws.  In November this year, the City completed the process of amending its ordinance to equalize treatment of houses of worship and nonreligious assemblies.  In response to the ordinance changes, the Department closed its investigation. 

In June 2018, the Department of Justice launched the Place to Worship Initiative to provide public education, training, and enhanced enforcement of RLUIPA.  Further information is available on the Initiative homepage, www.justice.gov/crt/placetoworship, or on the Civil Rights Division’s Housing and Civil Enforcement Section RLUIPA page.

 

DOJ Files Brief Supporting Church’s Right to Rent Space at Community Center

On November 20, the Department of Justice filed a Statement of Interest in U.S. District Court in South Carolina supporting a church’s claim that the Town of Edisto Beach violated its rights under the First Amendment when the town barred it from renting space at the Town’s Civic Center. 

The case, Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, involves a small Christian congregation that sought to rent space for Sunday worship in the Civic Center, which is available for rental by community groups to hold events and activities.  The Town responded by enacting a policy barring worship services at the Civic Center, citing separation of church and state concerns.  As a result, the church filed a First Amendment lawsuit and sought a preliminary injunction to allow it to rent space at the facility.

The Constitution requires that churches be allowed to rent facilities on an equal basis with other community groups.  The Supreme Court held in the landmark case of Widmar v. Vincent (1981), that a university could not “discriminate against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion.”  The United States’ Statement of Interest argues that allowing equal access to all groups, including the church, is required by the First Amendment.  Allowing equal access, the United States argues, ensures the government neutrality toward religious expression that the Constitution requires.  The brief concludes: “[T]he Town gets it exactly backwards:  it seeks to permit the content and viewpoint discrimination against religious worship that the Free Speech and Free Exercise Clauses prohibit and to prohibit the equal access to the Civic Center that the Establishment Clause permits.”

On the day the brief was filed, Acting Attorney General Matthew Whitaker remarked:  “The Constitution protects the right of individuals and groups to exercise their religion without discrimination because of their religion. The First Amendment requires that religious individuals and groups have the same opportunity to rent public facilities as other members of the community.  The Department of Justice is committed to protecting the First Amendment rights of Americans, including fostering the religious expression of members of all faiths.”

The court held a hearing on the preliminary injunction request on November 29.  A decision in the case is pending.

 

Focus on Religious Hate Crimes

The mass shooting at the Tree of Life Synagogue in Pittsburgh on October 27, resulting in the killing of 11 people and the injuring of seven others, has underscored the need for vigilance against attacks on people because of their faith, and for the vigorous prosecution of these crimes.

On October 31, Robert Bowers was charged in a 44-count indictment on hate crime and other charges for the Tree of Life Synagogue shooting.  He faces a possible death sentence if convicted.

On November 13, the FBI released its annual hate crime report, showing that anti-Jewish hate crimes had risen sharply, from 684 in 2016 to 938 in 2017.  Acting Attorney General Matthew Whitaker called the hate crime report “a call to action—and we will heed that call. The Department of Justice’s top priority is to reduce violent crime in America, and hate crimes are violent crimes.  They are also despicable violations of our core values as Americans.”  He added that he was “particularly troubled by the increase in anti-Semitic hate crimes—which were already the most common religious hate crimes in the United States—that is well documented in this report.  The American people can be assured that this Department has already taken significant and aggressive actions against these crimes and that we will vigorously and effectively defend their rights.”

In addition to the Tree of Life indictment, since January 2017, the Department of Justice has obtained indictments against 15 defendants and 10 convictions in cases involving arson or other attacks or threats against houses of worship, and during the same period obtained indictments against 13 defendants and 9 convictions in cases involving hate crimes committed against individuals because of their religious beliefs.  For example, on October 17, a Texas man was sentenced to 24.5 years in prison for the arson of a mosque in Victoria, Texas, and on November 13 a Wisconsin man pleaded guilty to sending threatening letters to a Jewish Community Center in Whitefish Bay, Wisconsin.

In addition to focusing on prosecution of hate crimes, the Department of Justice is engaged in various hate-crime related public education and prevention efforts.  The Department of Justice in October launched a new hate crime website to provide information and links to resources, has developed a Safeguarding Houses of Worship app for helping houses of worship assess their vulnerabilities and develop security plans, is providing technical assistance to law enforcement agencies on hate crimes through the DOJ COPS Office Collaborative Reform Initiative for Technical Assistance Center, and recently announced funding to the University of New Hampshire to conduct a national survey of hate crime incidents and victimization, among other initiatives.  The FBI and the DOJ Community Relations Service have held workshops around the country on protecting places of worship from active shooter, arson, and other threats, and FEMA also maintains a useful page on Resources to Protect Your House of Worship.

 

25th Anniversary of RFRA Commemorated

On November 16, Acting Attorney General Matthew Whitaker released a statement commemorating the 25th Anniversary of the Religious Freedom Restoration Act.  He remarked:

“Today marks the 25th anniversary of the Religious Freedom Restoration Act (RFRA), an important law protecting one of our most fundamental freedoms. RFRA was approved by Congress with overwhelming bipartisan support, passing the House unanimously and approved 97 to 3 in the Senate, and signed into law by President Clinton.

“RFRA ensures that our foundational freedom of religious liberty is protected: the right to believe, worship, and practice our faiths according to the dictates of our consciences. 

“RFRA requires that whenever actions by the federal government would impose a substantial burden on a person’s religious exercise, the government must give reasons for doing so. And unless the government has a compelling reason, and the government action burdens religion no more than is necessary, RFRA requires that the government accommodate religious freedom.

“It is a remarkable thing for any government to impose such restraints on itself. It is much easier for a government to operate in a manner it believes to be most effective and disregard the costs on individual liberty and conscience. The enactment of RFRA was a bold affirmation that religious freedom and freedom of conscience are precious and deserving of protection, even if this may make things harder for the government. 

“The enactment of RFRA was also a re-affirmation of America’s promise to protect religious minorities, which stretches back to George Washington’s promise to the Jewish Congregation in Newport that they would find not only tolerance but equal rights in America, and President Lincoln’s granting of conscientious objector status to Quakers during the Civil War. Minority faiths have been protected by RFRA over the past 25 years.

“Today we celebrate the anniversary of this law and renew our commitment to protecting the freedom of all Americans to exercise their religious convictions openly, in speech and actions. Under President Donald Trump, the Department of Justice will continue defend the rights of people of faith.”

 

Department Closes Investigation After New Jersey Township Approves Church Expansion

On October 16, the Civil Rights Division closed its investigation of the Township of Cedar Grove, New Jersey under the Religious Land Use and Institutionalized Persons Act (RLUIPA) after the Township approved St. Mark’s Coptic Orthodox Church’s expansion project.

The church had been operating since 1992 in a building on a 5-acre lot that was formerly used as a small office building, which the congregation retrofitted to use as a church.  The church now serves 200 Coptic Christian families, and the building has become inadequate.  The church sanctuary is L-shaped, and parishioners cannot see the priest or alter from nearly half the seats.  The building lacks adequate classrooms for Sunday school, and the retrofitted sanctuary is inadequate for weddings, funeral, and other special events.  The church also has insufficient parking, leading to parishioners parking on a neighborhood street.

In 2011, the church applied to the Township to build a new church on its property.  While the new church would only increase the building’s footprint by 500 square feet, it would have two floors and a configuration designed as a church.  The plan also would add close to 200 parking spots. 

After more than 20 hearings over a four-year period, the Township Zoning Board of Appeals denied the church’s application.  In October 2016, the church filed suit against the Township and the Zoning Board of Appeals under RLUIPA.  In November 2016, the Department of Justice opened a RLUIPA investigation.  Section 2(a) of RLUIPA prohibits a municipality from imposing a land use regulation in a manner that substantially burdens the religious exercise of a religious assembly or institution, unless the imposition of the burden is in furtherance of, and is the least restrictive means of furthering, a compelling governmental interest. 

In August 2018, after several rounds of mediation, the Township, Zoning Board and the church reached a settlement agreement, which permitted the church to expand its facility.  More information about RLUIPA is available on the Department’s Place to Worship Initiative homepage, www.justice.gov/crt/placetoworship, and at the Civil Rights Division’s Housing and Civil Enforcement Section RLUIPA page.

 

DOJ Closes RLUIPA Investigation After Chicago Reaches Parking Agreement With Church

On October 19, 2018, the Civil Rights Division closed its investigation of the City of Chicago, Illinois under the Religious Land Use and Institutionalized Persons Act (RLUIPA) after the City reached an agreement with Immanuel Baptist Church concerning off-street parking.  The Department in June 2017 opened an investigation of the City’s zoning and land use practices relating to its imposition of an off-street parking requirement on the church.

The church had been operating in its current location as a lessee since 2011.  It had no off-street parking, but there was ample on-street parking available in the immediate area, and many members of the church used public transit or walked to religious services.  In 2016, the church entered into an agreement to purchase the property, but in order to secure financing, it needed certification from the City that it was in compliance with applicable zoning requirements. Although the church had been operating for years with the City’s knowledge, the City refused to certify compliance until the church obtained off-street parking.  The church was unable to obtain the required parking and was unable to obtain financing. 

The Department’s investigation sought to determine whether the City’s parking requirement violated RLUIPA, which protects places of worship and other religious uses of property from discriminatory or unduly burdensome zoning regulation.

Last spring, the City and the church reached an agreement whereby the church would secure off-street parking off-site.  Based on the agreement, in September 2018 the church was able to close on the property, and the Department closed its investigation in response.

More information about RLUIPA is available on the Department’s Place to Worship Initiative homepage, www.justice.gov/crt/placetoworship, and at the Civil Rights Division’s Housing and Civil Enforcement Section RLUIPA page.

 

Department Provides Technical Assistance on Religious Accommodation at County Detention Facility, Concludes Investigation

In conjunction with the United States Attorney’s Office for the Northern District of Georgia, the Civil Rights Division initiated an investigation in June 2017 to evaluate the Cherokee County Detention Center (CCDC) polices regarding religious headcoverings and access to religious materials.  The investigation sought to ensure compliance with the provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA) on religious accommodation of persons in institutions.  

RLUIPA provides that polices that impose a “substantial burden” on the religious exercise of persons confined to certain government institutions, including many prisons and jails, must be justified by a compelling government interest, narrowly tailored to restrict religious exercise no more than necessary. The Department of Justice’s RLUIPA investigation originated with a complaint by a Muslim woman detained at the jail who alleged she was held without her head-covering in view of other people and that she was not permitted access to certain religious documents. 

The investigation looked at allegations of inconsistent implementation of the CCDS’s religious accommodation policy, as well as restrictions on access to religious books, and the process by which prisoners were permitted to seek a kosher or other religious diet.  The Department provided technical assistance to the CCDC, and the CCDC modified its policies to address concerns.  The CCDC also provided additional training to staff on its religious accommodation policy.  In response to these actions, the Department closed the investigation this fall.

Further information about the Department’s enforcement of the institutionalized persons provision of RLUIPA is available on the Civil Rights Division’s Special Litigation Section RLUIPA page.

 

 

 

 

Updated December 6, 2018

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