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Religious Freedom In Focus, Volume 8

DOJ seal United States Department of Justice
Civil Rights Division
November/December 2004
Volume 8

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.



Texas City Agrees to Equal Access for Religious Groups

The Division opened this investigation in May 2004 after a city official informed the Purpose Life Church that it could no longer rent for worship meetings a room at the local YMCA, which leases space in a city-owned building, because "local governments are not allowed to have church activities in city-owned buildings." The Purpose Life Church is a small church with no meeting space of its own. In December 2003, the Kaufman County YMCA agreed to rent space to this church to hold worship meetings on Saturday afternoons. The city then objected.

On March 2, after its efforts to change the city's position failed, the church filed a federal suit alleging violation of its constitutional rights. The Civil Rights Division then opened an investigation of the city's actions under Title III of the Civil Rights Act of 1964 which prohibits the denial of "equal utilization of any public facility" based on religion, and Title IX of the Civil Rights Act of 1964, which allows the United States to intervene in cases of general public importance that involve denial of equal protection of the laws.

Over the past twenty years, the Supreme Court has consistently held that when the government makes facilities available to private groups for meetings and similar activities, it may not discriminate against faith-based groups. Most recently, in Good News Club v. Milford (2001), the Court held that once a school opens its facilities to youth and community groups for after-school use, it may not selectively prohibit comparable religious groups - there a group that held weekly meetings for boys and girls that taught moral values from a Biblical perspective - from making similar use of the space.

In response to the lawsuit and the Civil Rights Division investigation, the City of Terrell passed a resolution stating that it would not discriminate on the basis of viewpoint, including religious viewpoint, in access to city property, and agreed to allow the Purpose Life Church to use the YMCA space. The investigation was conducted by the Division's Housing and Civil Enforcement Section, which since January 1, 2001 has looked into 57 complaints of religious discrimination and opened 21 formal investigations.

California Court Holds Religious-Speech Fee Unconstitutional


On November 17, 2004, in Child Evangelism Fellowship v. Lenz, a federal court in California struck down the Upland School District's policy of charging religious groups a "usage fee" for use of school facilities, which was not charged to other private groups. The Civil Rights Division submitted an amicus brief to the court opposing the selective fee. Assistant Attorney General R. Alexander Acosta applauded the decision: "The Constitution does not tolerate a sliding fee scale based on one's religious views. We are very pleased that the District Court has upheld the principle of equal treatment for all regardless of religion."


This matter arose when a Pomona school demanded a usage fee from the Good News Club, a Christian youth organization, to hold meetings after school. An Upland School District policy gives free access to school facilities for youth activities drawing at least half of their participants from the local community. The District has granted free access to groups such as the YMCA, the Boy Scouts, the Girl Scouts, and Camp Fire. The policy, however, provides that those using facilities for "religious activities" must pay a fee. The policy is based on a California law that requires school facilities to be open for use by community groups, but mandates that schools charge religious groups a usage fee. Pursuant to this policy, the local Good News Club chapter was charged for its meetings. When it could not pay, the district told it that it would not be allowed back on school grounds until it paid the fee.

In Good News Club v. Milford (2001), the Supreme Court held that a New York school district that opened its facilities to community groups that "promote[] the moral and character development of children," could not bar the local Good News Club from using the facilities simply because the Good News Club promoted these ends from a religious viewpoint. Relying on the Milford decision, the Pomona Good News Club filed suit against the Upland School District on July 9, 2004. The Civil Rights Division's brief supports the Good News Club's position that the school district policy and the California statute on which it was based unconstitutionally discriminate against religious viewpoints.

The District Court agreed with the Good News Club and the United States, finding no distinction between selectively granting access, the issue in Good News Club v. Milford, and selectively charging a fee. The court held: "For the purposes of determining viewpoint discrimination, there is no legal distinction in Supreme Court precedent between an exclusion from a limited public forum and a differential fee schedule." The Court also rejected the school district's argument that giving free access to the Good News Club would violate the Establishment Clause. Citing Rosenberger v. Rector & Visitors of the University of Virginia (1995), a case that held that the University of Virginia could not deny a student-run Christian magazine access to student activity funds available to pay student publication printing costs, the court held that allowing the Good News Club the same free access granted to other private groups "would ensure neutrality toward religion, not threaten it."

Morton Grove, IL, Grants Special Use Permit for School After DOJ Mediation


On November 22, 2004 the Village of Morton Grove, Illinois granted a special use permit to the Muslim Community Center, resolving a two year old dispute, which included a federal lawsuit and a Civil Rights Division investigation. The permit allows the Muslim Community Center to construct a mosque and expand its existing school facilities. The Muslim Community Center operates a K-8 school in Morton Grove, which holds daily prayer services for its students in its gym, and which also opens services on Fridays to local Muslims. In November 2002, the school applied for a permit to expand its facilities to provide more classrooms, and to build a mosque on the site. The proposal met with heated community opposition. Although some of the opposition was based on traffic and congestion concerns, incidents of vandalism at the school and expressions of anti-Muslim sentiment also occurred.


In April 2003, the Village denied the school's permit application. In October 2003, the school filed a federal action under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Civil Rights Division opened an investigation into whether the school's rights were violated, also under RLUIPA. The Department of Justice Community Relations Service also began mediation efforts between the school and the village.

As previously reported in Religious Freedom in Focus, after a series of mediation sessions with the Community Relations Service, the school and the Village announced in court on June 2, 2004 that they had reached an agreement on a plan that would meet the school's expansion needs while limiting the impact on traffic, parking, and congestion. The Board of Trustee's vote was the final step in implementing this settlement.

The granting of the special use permit averts the need for protracted litigation or further federal involvement. Assistant Attorney General R. Alexander Acosta remarked: "We are pleased that the school and the community were able to work out a plan that accommodated the school's religious needs while also responding to the concerns of neighbors."

Supplemental Brief Filed In Salvation Army Case

On December 13, the Civil Rights Division filed a second brief (pdf and WordPerfect formats) defending the constitutionality of contracts between the Salvation Army and New York City to provide foster care, adoption services, hospice care and other social services. In the case, Lown v. Salvation Army, a group of Salvation Army employees sued the Salvation Army and the City of New York, claiming that the contracts were unconstitutional. The suit did not allege that the services provided under the contracts were themselves religious. Rather, the plaintiffs argued that the Salvation Army's practice of taking religion into consideration in hiring and the religious atmosphere of the Salvation Army workplace tainted the secular contracts. This case has broad implications for the President's Faith-Based and Community Initiative.

As reported in the August/September issue of Religious Freedom in Focus, the United States filed a friend-of-the-court brief on August 26 asking the court to dismiss the complaint on the grounds that the Salvation Army is a private entity and not a government actor as the plaintiffs contend, and that the contracts with the Salvation Army do not violate the Establishment Clause.

Plaintiffs subsequently amended their complaint to charge that the Salvation Army is engaged in religious discrimination in violation of Title VII of the Civil Rights Act of 1964. While Section 702 of Title VII specifically permits religious organizations to take religion into consideration in hiring and the terms and conditions of employment, the plaintiffs claim first that the Salvation Army has waived this Section 702 exemption, and second that even if it has not, it would be unconstitutional to allow it invoke the exemption in light of the social service contracts with the government. The Civil Rights Division's supplemental brief demonstrates that the carrying out of social service contracts does not alter the basic right embodied in the Section 702 exemption permitting religious organizations to define their character through their employment policies.

Focus on Religious Bias Crimes

Prosecuting crimes based on racial, ethnic, and religious bias is a priority for the Civil Rights Division. The Division has prosecuted 154 defendants in 104 such cases since 2001. Many of these crimes involve attacks on churches, synagogue, mosques, and other religious sites. The Civil Rights Division is determined to bring the perpetrators of these crimes to justice. The Division has brought 22 cases against 26 defendants involving threats, arson, or vandalism of religious sites since 2001. Some recent examples:

Desecration of Virginia Church: Two men were sentenced to prison terms on October 19 for vandalizing a historically African-American church in Roanoke, Virginia. The men, Zachary Lee Bryant and Christopher Martin, pleaded guilty in July to breaking into the Mount Moriah Baptist Church in January 2004 and smashing windows in the church's sanctuary, discharging fire extinguishers, and committing other acts of vandalism throughout the church. The men were sentenced to 27 and 21 months in prison, respectively.

Desecration of Jewish Cemetery: Also on October 19, two men were indicted for desecrating a Jewish Cemetery in Portland Oregon this past May by spray-painting swastikas and anti-Semitic messages. The two men, Sean Andrew Sigley and Steven Hale Smith, are charged with conspiring to vandalize the Congregation Shaarie Torah Cemetery in order to intimidate area Jewish residents. They face up to eleven years in prison each if convicted. An indictment is merely an allegation of guilt, and defendants are presumed innocent until proven guilty.

Attempted Arson of El Paso Mosque: On October 21 the Civil Rights Division announced the indictment of Antonio Nunez-Flores on charges of attempted arson of the Islamic Center mosque in El Paso, Texas on September 17. The indictment alleges that he threw one Molotov cocktail at the mosque, which shattered on the ground, and placed another Molotov cocktail next to the mosque's gas meter. The second Molotov cocktail was discovered and extinguished before exploding. If convicted, he faces up to 100 years in prison. An indictment is merely an allegation of guilt, and defendants are presumed innocent until proven guilty.

E-Mail Threats Sent to Detroit Mosque: On November 16, the Civil Rights Division announced the indictment of two New York men for sending e-mail threats to the Islamic Center of America in Detroit, Michigan. The indictments charge that Michael Bratisax and John Barnett sent threatening emails to the mosque this past May. If convicted, Bratisax faces up to 12 years in prison, and Barnett faces up to six years in prison. An indictment is merely an allegation of guilt, and defendants are presumed innocent until proven guilty.

Updated June 7, 2023