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RELIGIOUS FREEDOM IN FOCUS, VOLUME 84 - January/2020

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 Urges U.S. Supreme Court to Overturn “Blaine Amendments”

On January 22, the United States participated in oral arguments before the U.S. Supreme Court explaining that the Montana Constitution’s “no-aid” amendment, which bars any state education funds from going to religious schools, violates the Free Exercise Clause of the U.S. Constitution.   State provisions like this are often called “Blaine Amendments” because they were enacted in the 19th century after a failed attempt by Rep. James G. Blaine to add a similar measure to the U.S. Constitution.  The United States’ amicus brief explains that Montana’s no-aid amendment, which the Montana Supreme Court used to strike down a tax-credit program that facilitated scholarships to students at both religious and nonreligious schools, violates the Free Exercise Clause by discriminating against schools solely on their religious status or identity.

The case, Espinoza v. Montana Department of Revenue, involves children attending a Christian school who were denied participation in the Montana Tax Credit Scholarship Program after the Department of Revenue issued a rule declaring ineligible any student attending a school owned or controlled “by a church, religious sect, or denomination.”  Under the scholarship program, Montana taxpayers could contribute up to $150 to privately run scholarship organizations and receive a tax credit. The scholarship organizations then provided scholarships for families attending non-public elementary and secondary schools in the state.  After a state trial court ruled in favor of the parents in May 2017, the state appealed to the Montana Supreme Court. The Montana Supreme Court ruled on December 12, 2018, that providing the scholarship to students at religious schools would violate the state’s no-aid provision, and struck down the entire program.

The U.S. Supreme Court granted certiorari. The United States explained in its amicus brief that the Montana Supreme Court violated the Free Exercise Clause by using the state’s Blaine Amendment to strike down the program.  The United States explained that “[t]he Constitution forbids imposing special disabilities on religious adherents on the basis of their religious status,” and the Montana no-aid provision, “violates that elementary rule.”  The state’s no-aid provision “prohibits religious schools, simply because of their religious character, from receiving funds available to the rest of the community.”  Citing the Supreme Court’s 2017 decision in Trinity Lutheran Church v. Comer, which found that a Missouri program that excluded a church nursery school from a program providing various schools with safe playground surfacing, the United States’ brief stated that Montana’s “discriminatory restriction is ‘odious to our Constitution’” and it “cannot stand.”  The Civil Rights Division also had filed an amicus brief with the Montana Supreme Court making substantially similar arguments.

 

Department of Education Issues Updated Guidance on Constitutionally Protected Prayer in the Public Schools

On January 16, the Department of Education issued updated Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools.   Section 8524(a) of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act, requires the Secretary of Education to issue guidance informing state and local education agencies, and the public, about constitutionally protected prayer in public elementary and secondary schools.  The law also requires that, as a condition of receiving funds, local education agencies must certify that they are in compliance with the prayer guidance.  The law mandates that the Department of Justice’s Office of Legal Counsel review and approve the guidance.  The guidance had not been updated since it was originally issued in 2003.

The Guidance observes that “students and teachers do not ‘shed their constitutional rights at the schoolhouse gate,” (citing the Supreme Court’s 1969 Tinker v. Des Moines School District decision). The guidance explains that while public school officials may not show favoritism toward religious expression such as prayer, “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.”

The Guidance explains how the overarching principles apply in particular contexts. For example, it explains that students may pray alone or in groups during noninstructional time according to the same rules applied to other student-initiated expressive activities.  The guidance explains that teachers also may take part in prayer on their own time during the school day—even with students—so long as “the overall context makes clear that they are not participating in their official capacities.” The Guidance explains the circumstances in which students may pray at assemblies, graduation, and noncurricular events, and addresses other applications of the general principles.

One feature that is completely new in the updated guidance is that while the law’s certification requirement covers only the prayer provisions, the guidance also lays out, for the general benefit of the educational agencies and the public, a description of the constitutional rules regarding other critical issues involving religious liberty in public school, including excusals for religious holidays, students wearing religious clothing, distribution of religious literature, and teaching about religion in the curriculum. The guidance also explains the requirements of the Equal Access Act, under which student religious clubs in public secondary schools must be treated equally with other noncurricular student clubs.

 

United States Files Statement of Interest in Georgia Hindu Temple Case

On January 27, the United States filed a statement of interest in a case in Georgia brought by a Hindu association under the Religious Land Use and Institutionalized Persons Act (RLUIPA), alleging that Forsyth County improperly denied a Conditional Use Permit to construct a Hindu temple in a residential neighborhood.  The County on December 6, 2019 asked the U.S. District Court for the Northern District of Georgia to rule that the Hindu association had no legal standing to sue the County under RLUIPA since the properties in the subdivision where the Hindu association wants to build have restrictive covenants prohibiting non-residential uses.  The United States’ statement of interest explains that since the County’s actions were independent of the covenants, and the covenants indeed may never be enforced, the association has standing to challenge the County’s actions.

The Hindu Association filed suit in 2017, alleging that the County’s denial of the permit was done for reasons that were “incorrect as a matter of law,” including to “mollify County residents who were hostile to the proposed Hindu temple.”  The County responded by arguing that the Hindu Association cannot challenge the denial of the permit, because restrictive covenants on the property prohibit nonresidential uses.  Restrictive covenants are contracts written into land transactions that impose limits on how a property can be used.

The United States’ brief explains that the existence of restrictive covenants do not negate the ability of the Hindu association to sue the County for its actions.  While as written the restrictive covenants would indeed prohibit a temple or any other nonresidential use, there is an open question in the case whether the restrictive covenants had ever been enforced in the past against noncommercial uses in the subdivision or whether any neighbor in the subdivision would seek to enforce the covenant in the future. The U.S. brief contends that “the restrictive covenants are not self-enforcing, and whether a third party not before this Court can, will, or even wants to enforce the alleged restrictive covenants is a speculative issue.”  As a result, the United States’ brief explains, the existence of the covenants and their possible future invocation does not negate the fact that the association has alleged that the county’s permit denial has injured them under RLUIPA, and that they are entitled to pursue that claim.

The United States also filed a Statement of Interest in July 2018 in U.S. District Court in Maryland supporting a RLUIPA lawsuit by a Hindu association seeking to locate a Hindu temple in Howard County, Maryland.   That case, Jagannath Organization for Global Awareness, Inc. v. Howard County, was resolved by settlement, and the temple’s conditional use permit was granted on December 3, 2019.

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 DOJ Civil Rights Division’s Housing and Civil Enforcement Section RLUIPA page.

 

United States Intervenes in Maryland Church Zoning Dispute to Defend Constitutionality of RLUIPA

On January 13, the Department of Justice intervened in a suit brought by a Baptist church against Baltimore County, Maryland under the Religious Land Use and Institutionalized Persons Act (RLUIPA), after the County challenged RLUIPA as an unconstitutional exercise of Congress’s power.  The United States also filed a comprehensive brief explaining that RLUIPA is a valid exercise of Congress’s power to enforce constitutional rights and the right to regulate commerce. 

The suit, filed by Hunt Valley Baptist Church in March 2017 in federal district court against Baltimore County, alleges that the County violated RLUIPA when it denied it a special exception to build on land it had purchased to build a new church.  In November 2019, the County submitted a Notice of Constitutional Question to the district court, arguing that RLUIPA was unconstitutional.  The United States intervened to defend the constitutionality of this important civil rights law.

The brief notes that Congress enacted RLUIPA’s land use provision “in response to what it found to be a widespread pattern of discrimination in state and local zoning against religious assemblies and institutions.”  The brief, in great detail, explains how Congress relied on its powers to enforce fundamental constitutional rights, equal protection of the law, and its power to regulate actions that substantially affect interstate commerce.

The brief also explains how RLUIPA’s various provisions accommodating the ability of diverse religious communities to use property for religious worship, education, and other religious activities, cannot be said to amount to government advancement of religion in violation of the Establishment Clause, as Baltimore County contends.  Rather, it protects the free exercise of religion guaranteed by the First Amendment, and reduces excessive governmental interference with religious exercise.

The brief also notes that every court but one that has considered the issue has held RLUIPA to be constitutional. The only one that did not was reversed on appeal.

 

New York Man Charged With Federal Hate Crimes for Machete Attack at Rabbi’s Home

On January 9, 2020, the Department of Justice announced that a New York man had been indicted by a federal grand jury for federal hate crimes related to his alleged machete attack during Hanukkah observances at a rabbi’s home in Monsey, N.Y. on the night of December 28, 2019.

Grafton Thomas, 37, of Orange County, was indicted with five counts of willfully causing bodily injury because of the victims’ religion in violation of 18 U.S.C. 249, and five counts of obstructing the free exercise of religion in an attempt to kill, in violation of 18 U.S.C. 247.

According to the allegations in the indictment and a previously issued criminal complaint, on December 28, Thomas entered the Rabbi’s home during observances related to the end of Shabbat and the seventh night of Hanukkah. Thomas declared to dozens of assembled congregants, “no one is leaving,” and attacked the group with an 18-inch machete. At least five victims were hospitalized with serious injuries, including slash wounds, deep lacerations, a severed finger, and a skull fracture.

The indictment and complaint also allege that Thomas was stopped in Harlem by members of the New York City Police Department. A subsequent search of his residence and phone revealed handwritten journals with several pages of anti-Semitic references, including references to “Adolf Hitler” and “Nazi Culture.”  Thomas’s cellphone contained Internet searches relating to Jews, including searches for terms such as “Zionist Temples” in Staten Island and New Jersey, “why did Hitler hate the Jews,” and “prominent companies founded by Jews in America.”

 “Since before our founding as a nation and ever since, this country has provided refuge for people from other parts of the world who suffered violence and other forms of persecution because of their right to believe and worship as they see fit,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “The United States remains today a beacon of freedom for persecuted religious people all over the world, and violent attacks against anyone because of religion is both illegal and against everything our nation stands for. The United States Department of Justice will continue to prosecute anyone who engages in such conduct to the fullest extent of the law.”

The charges in the indictment are merely accusations, and the defendant is presumed innocent unless and until proven guilty.

On November 12, 2019, 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.

 

United States Urges Supreme Court to Revisit Standard for Accommodating Employees’ Religious Practices

On December 9, 2019, the United States filed an amicus brief with the United States Supreme Court urging the Court to grant certiorari in a case addressing the requirements of employers to accommodate employees’ religious observances and practices under Title VII of the Civil Rights Act of 1964.

The case, Patterson v. Walgreens, involves a suit by a Walgreens call-center instructor who alleges he was fired after the company failed to reasonably accommodate his religious obligation as a Seventh-day Adventist to refrain from work on the Sabbath.  Lower federal courts ruled against the employee, who then sought review in the Supreme Court raising three issues.

The Civil Rights Division enforces Title VII for employees of state and local governments.  Title VII forbids discrimination based on race, color, sex, national origin, and religion, and requires employers to “reasonably accommodate” employees’ religious observances and practices unless doing so would cause “undue hardship on the conduct of the employer’s business.” 

The Supreme Court in TWA v. Hardison (1977), held that requiring an employer “to bear more than a de minimis cost” to accommodate a religious practice amounts to an “undue hardship.”   The United States’ brief urges the court to revisit this 1977 decision, pointing out that, as a simple textual matter, a “de minimis” cost means a very small or trifling cost, and “undue” hardship means something significant and excessive.  Thus, allowing employers to avoid accommodating religion if they can show a de minimis cost undermines Congress’s instruction that an employee must be accommodated unless the cost on the employer would amount to an undue hardship.

More information about the Department of Justice’s enforcement of Title VII is available on the Civil Rights Division Employment Litigation Section homepage.

Updated January 31, 2020