RELIGIOUS FREEDOM IN FOCUS, VOLUME 83 - November/2019

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:

 

United States Files Brief Explaining That Maryland Improperly Excluded Christian School from Scholarship Program

On November 26, the Department of Justice and the U.S. Department of Education filed a Statement of Interest in federal court in Maryland, explaining that the Maryland State Department of Education discriminated against Bethel Christian Academy when it excluded the school from its BOOST Scholarship program due to the school’s beliefs regarding marriage and gender set forth in its Parent-Student Handbook. The United States’ brief explains that the school is likely to succeed on its claims under the First Amendment’s Free Speech and Free Exercise Clauses, and thus may be entitled to a preliminary injunction from the United States District Court for the District of Maryland.

“The First and Fourteenth Amendments to the United States Constitution protect religious schools from coercive government actions that force them to choose between abandoning or betraying their faith and participating in public programs,” said Eric Dreiband, Assistant Attorney General for the Civil Rights Division. “The Department of Justice will continue to fight for the rights of religious people and organizations, whether or not their beliefs are popular with government officials.”

Maryland’s BOOST program provides scholarships to students from low-income backgrounds to attend nonpublic schools.  Bethel Christian Academy is a nonpublic K-to-8 school in Savage, Maryland run by Bethel Ministries, a Pentecostal church. Bethel Christian Academy provides a rigorous academic program for a diverse student body that is 85% nonwhite. 

Since its inception in 2016, the BOOST program has required participating schools to accept scholarship students without regard to race, color, national origin, or sexual orientation. Starting in 2019, the program added a requirement that schools not discriminate at all on these bases as well as on gender identity or expression. The nondiscrimination provisions provide, however, that they do not “require any school or institution to adopt any rule, regulation, or policy that conflicts with its religious or moral teachings.” 

Bethel Christian Academy states that it does not discriminate on the basis of sexual orientation or gender identity, and that it has no intention of doing so in the future. However, it states in its Parent-Student Handbook that it supports “the biblical view of marriage defined as a covenant between one man and one woman” and that it believes “that God immutably bestows gender upon each person at birth as male or female to reflect His image.” 

As a result of this language, in 2018, Maryland officials removed Bethel Christian Academy from the BOOST program, and demanded the return of $102,600 for previously paid scholarships. The school filed suit and, on October 31, 2019, asked the court for a preliminary injunction.

The United States’ Statement of Interest explains that the Maryland officials’ actions violated the Free Speech and Free Exercise Clauses of the Constitution. Regarding free speech, the United States explains that while states may prohibit discriminatory conduct, the school has represented that it will not discriminate against students based on their sexual orientation or gender identity. Accordingly, the officials are punishing the school for its beliefs and expression in violation of the First Amendment. With regard to the free exercise of religion, the United States points out that two years ago, in Trinity Lutheran Church of Columbia v. Comer, the Supreme Court made clear that a private organization cannot be required to renounce its religious character to participate in a public benefit program.

In July 2018, the Department of Justice announced the formation of the Religious Liberty Task Force. The Task Force brings together Department components to coordinate their work on religious liberty litigation and policy, and to implement the Attorney General’s 2017 Religious Liberty Guidance.

 

Colorado Man Charged with Federal Hate Crime for Plotting to Blow Up Synagogue

On November 22, the Department of Justice announced that a federal grand jury in Denver had indicted Richard Holzer, 27, of Pueblo, Colorado for attempting to blow up the Temple Emanuel Synagogue in Pueblo. 

The grand jury returned a three-count indictment.  Count One charges Holzer with intentionally attempting to obstruct persons in the enjoyment of their free exercise of religious beliefs, through force and the use and attempted use of explosives and fire, in violation of Title 18, United States Code, Section 247. Holzer had previously been charged under this provision in the original criminal complaint filed November 4.  Count Two charges Holzer with attempted arson, and Count Three charges Holzer with using fire or an explosive device to commit a felony offense.  The charges in the complaint and superseding indictment are merely allegations and the defendant is presumed innocent unless proven guilty in a court of law.

According to the affidavit in support of the criminal complaint filed on November 4, Holzer planned to destroy Temple Emanuel, a synagogue in Pueblo, Colorado, that is listed on the National Register of Historic Places. After visiting Temple Emanuel and observing Jewish congregants, Holzer, who self-identifies as a skinhead and a white supremacist, told undercover FBI agents that he wanted to do something that would tell Jewish people in the community that they are not welcome in Pueblo, and they should leave or they will die.

Holzer allegedly met with undercover agents posing as fellow white supremacists to discuss a plan to attack Temple Emanuel, and then visited the Synagogue together with them. The affidavit alleges that on November 1, 2019, Holzer met with undercover agents, who provided Holzer with inert explosive devices that had been fabricated by the FBI, including two pipe bombs and 14 sticks of dynamite. According to the affidavit, Holzer planned to detonate the explosives several hours later, in the early hours of Saturday morning, November 2.

Holzer is currently in federal custody. If convicted, Holzer faces a maximum penalty of 50 years in prison.  He faces a maximum penalty of 20 years in prison if convicted.

On November 12, the FBI released the 2018 Hate Crime Statistics. The statistics showed that religion-based hate crimes were the second-largest hate crime category in 2018, making up 20 percent of hate crime incidents. Of these religious hate crimes, anti-Jewish hate crimes made up 59 percent of incidents, with 835 total incidents, down from 938 in 2017.

Combating hate crimes, such as attacks on places of worship, is a priority of the Department of Justice. In October 2018, the Department launched a new hate crime website to provide information and links to resources. The Department’s Justice Technology Information Center has developed a Safeguarding Houses of Worship page that includes an app for law enforcement to use in working with faith communities as well as other useful resources for places of worship and law enforcement. The Department is also providing technical assistance to law enforcement agencies on hate crimes through the DOJ COPS Office’s Collaborative Reform Initiative for Technical Assistance Center

U.S. Attorney’s offices, 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.  An informational flyer from the Community Relations Service about its Protecting Places of Worship program is available here.  FEMA also maintains a useful page on Resources to Protect Your House of Worship, collecting links from diverse federal agencies.

 

DOJ Closes Investigation After Wisconsin City Equalizes Treatment of Places of Worship

On November 21, the Civil Rights Division closed its investigation into the City of Oak Creek, Wisconsin, under the Religious Land Use and Institutionalized Persons Act (RLUIPA), after the city modified its zoning code to treat places of worship the same as nonreligious assemblies. In July 2018, the Civil Rights Division opened an investigation into the city’s treatment of places of worship in its zoning code, after learning that the city told a church that it could not locate in a property it sought to purchase in a business district but allowed nonreligious assemblies to locate in the same district. 

The Oak Creek zoning code prohibited places of worship in its B-2 Community Business District, while permitting various nonreligious assemblies, such as clubs, fraternities, and sororities, in the zone as of right. The city also conditionally allowed funeral homes, day care facilities, and “commercial recreation facilities” such as dance halls and health clubs. The city relied on this code provision when informing the Chapel of Peace and Light, a small church with approximately 20 members, that it could not operate at the property it sought to purchase. The city also told the church that it would not be able to seek a variance for the property, but would need a rezoning to operate, which would require a long application process and would be at the discretion of the City to grant or not. Consequently, the church canceled its plans to buy the property.

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.” (quoted in DOJ’s Report on Enforcement of RLUIPA).

After the Department opened its investigation, the city initiated efforts to review its zoning code regarding places of worship, and on November 13, 2019, the city amended the code to permit them in its business, retail, institutional, and manufacturing districts, equalizing the treatment of places of worship and nonreligious assemblies. In response to the zoning code changes, the Department closed its investigation.

In 2018, the Department launched the Place to Worship Initiative, to increase awareness of RLUIPA’s requirements among local officials and communities, and to increase enforcement. More information is available on the initiative homepage and the web site of the DOJ Civil Rights Division’s Housing and Civil Enforcement Section, which enforces RLUIPA. 

 

United States Files Brief in Buddhist Meditation Center Appeal

On October 23, the Civil Rights Division filed a friend-of-the-court brief in the U.S. Court of Appeals for the Eleventh Circuit in the appeal of a Buddhist association seeking to locate a meditation center in a residential district in Mobile, Alabama. The United States’ brief argues in the case, Thai Meditation Association of Alabama, Inc. v. City of Mobile, that the trial court applied the wrong standard for evaluating “substantial burden on religious exercise” under the Religious Land Use and Institutionalized Persons Act (RLUIPA) to rule against the Buddhist association.

The case involves the efforts of the Buddhist association to move from a small building in a busy area on Airport Boulevard in Mobile to a 6.72-acre property in a residential district.  The association claims that the current location has traffic noise that interferes with religious activities, is too small, and lacks sleeping quarters for visiting monks. It sought, and was denied, zoning approvals to locate to the residential property that members had purchased.

The U.S. District Court ruled against the Buddhist association on its claims under RLUIPA and on its constitutional and state law claims. The court held that to show a “substantial burden on religious exercise” under RLUIPA, the association would have to prove that the city had “imposed pressure so significant as to require Plaintiffs to forego their religious beliefs.” The court found that the association had fallen short of that showing.  

In its brief to the appeals court, the United States explains that showing that the zoning actions require a religious organization to forego its religious beliefs was a far more demanding standard than is required under RLUIPA and controlling court decisions. Rather, the United States explains, a plaintiff may show a substantial burden by establishing that a government regulation puts substantial pressure on it to modify its behavior in a way that significantly hinders its religious exercise.   

The brief describes the various ways that federal courts have applied a totality-of-the- circumstances test to evaluate pressures to modify religious behavior and the degree of the impact on religious exercise. These include evaluating the need of the religious organization for new or expanded facilities; whether the religious organization had a reasonable expectation that it could use the property for the purpose it intended based on the zoning ordinance and how it has been applied to others; whether the religious organization has been completely denied a project or simply asked to modify it; the delay, uncertainty, and expense in finding alternative locations created by the zoning denial; and whether the government acted arbitrarily or in a discriminatory fashion.

The trial court concluded that the Buddhist association had not shown a substantial burden on religious exercise because it could still can operate at its current location, albeit with various inadequacies and hindrances to its religious exercise. This, the United States brief concludes, was in error because the court did not consider the various ways in which the association alleges it has been required to compromise its religious activities by the city’s denial, which under RLUIPA may constitute a substantial burden on religious exercise. The United States thus asked the appeals court to vacate the case and remand for the trial court to apply the proper standard. Oral argument in the case has not been scheduled.

 

Justice Department Files Brief in Maine School Choice Appeal

On October 7, The Department of Justice filed a friend-of-the-court brief in the United States Court of Appeals for the First Circuit, explaining that a Maine law that bans religious schools from the state’s school tuition program violates the First Amendment of the United States Constitution.

The majority of Maine’s school districts do not operate their own high schools. Instead, those school districts may either contract with another school to educate their resident high school students, or they may pay tuition to the private high school of the parent’s choice—but only if the high school is not religious in nature. The plaintiffs in this case, Carson v. Makin, all live in school districts that do not operate their own high schools and either send their children to a religious high school at their own expense, or would like to send their children to a religious high school but cannot afford to do so. They sued the Commissioner of Maine’s Department of Education, claiming that Maine law violates the United States Constitution.

“Our Constitution guarantees that all people in our nation may exercise their religion free from discrimination by the government,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division, on the day the brief was filed. “The First Amendment’s religious freedom protections are especially important for families and children, and the Department of Justice is committed to ensuring that all children may participate equally in educational programs without discrimination because of their religion.”

On June 26, 2019, the United States District Court for the District of Maine held that it was bound by First Circuit precedent from 2004 to uphold Maine’s religious-school ban, but it noted that the Supreme Court’s 2017 decision in Trinity Lutheran Church of Columbia v. Comer might cause the First Circuit to reassess its prior precedent.

In Trinity Lutheran, the Supreme Court held that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion,” and may only be justified by the most compelling governmental interests. In its friend-of-the-court brief, the United States explains that Trinity Lutheran obligates the Court of Appeals to reassess the constitutionality of Maine’s religious-school ban. Because Maine “prohibits religious schools, simply because of their religious character, from receiving funds available to the rest of the community,” the United States’ brief explains, the state’s tuition program imposes “special disabilities on religious adherents on the basis of their religious status,” and thus violates the Constitution’s Free Exercise Clause. The United States raised similar arguments in a September 2019 brief it filed with the United States Supreme Court in Espinoza v. Montana Department of Revenue, which concerns a similar religious-school ban in a Montana scholarship program.

Oral argument in the case has not been set.

 

DOJ Reaches Agreement With Virginia Department of Corrections Over Religious Practice Policies

On October 7, the Department of Justice announced that it reached an agreement with the Commonwealth of Virginia to resolve its investigation into the Virginia Department of Corrections (VDOC), pursuant to the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §2000cc. The investigation and agreement addressed VDOC’s five-person minimum for group worship and religious activities, its policy of preventing prisoners from attending religious services if they missed services in the past, and its restrictions on access to religious diets. 

“This settlement will ensure that men and women in VDOC’s custody can practice their religions consistent with their sincerely held beliefs, including through group worship and an appropriate religious diet,” Assistant Attorney General Eric Dreiband of the Civil Rights Division said on the date the settlement was announced. “We commend the Commonwealth for its willingness to make changes to further its commitment to rehabilitating prisoners and preparing them for reentry into their communities.”

Before signing the agreement, VDOC made policy changes addressing all three issues.  The new policy (1) removes the five-person minimum requirement for religious services and activities; (2) prohibits removal from the religious diet for failing to pick up a minimum number of common fare meal trays per month; and (3) removes the requirement that prisoners regularly attend services in order to remain eligible to attend religious services and activities.

Under the agreement, VDOC affirmed the importance of protecting the rights of men and women in its custody to engage in religious practice and acknowledged that the policy revisions are consistent with its goals. As part of its implementation efforts, VDOC will provide training to staff and chaplains involved in implementing the revised policy.

For additional information about the Civil Rights Division and its Special Litigation Section, please visit www.justice.gov/crt/special-litigation-section. Those interested in finding out more about RLUIPA may visit https://www.justice.gov/crt/religious-land-use-and-institutionalized-persons-act-0. The Department of Justice issued a Report on the Tenth Anniversary of RLUIPA in 2010, and an Update on RLUIPA Enforcement in 2016.

Updated November 26, 2019

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