RELIGIOUS FREEDOM IN FOCUS, VOLUME 86 - May/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:

 

Justice Department Sends Letter to California Governor Calling for Equal Treatment of Religious Gatherings

The Civil Rights Division and all four U.S. Attorneys in California sent Governor Gavin Newsom a letter on May 19 raising concerns about California’s treatment of places of worship in its reopening plan.  That plan, set forth by Governor Newsom in a May 4 Executive Order, calls for reopening in stages the various activities that have been limited over the past two months under emergency powers to combat COVID-19.

The DOJ letter focuses on the disparity in treatment between places of worship and other types of gatherings in the reopening plan.  The letter observes that places of worship are not permitted to hold religious worship services until Stage 3 of the plan, regardless of any social distancing measures or other precautions, but in Stage 2, schools, restaurants, factories, offices, shopping malls, swap meets, and others are all permitted to operate with social distancing.

The letter stressed that “[t]he Department of Justice does not seek to dictate how States such as California determine what degree of activity and personal interaction should be allowed to protect the safety of their citizens.”  However, the letter continued, “we are charged with upholding the Constitutional federal statutory protections for civil rights.  Whichever level of restrictions you adopt, these civil rights protections mandate equal treatment of persons and activities of a secular and religious nature.”

The letter explained that under the Supreme Court’s decision in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), laws that do not treat religious activities equally with comparable nonreligious activities are subject to heightened scrutiny under the Free Exercise Clause of the First Amendment.  Religious gatherings may not be singled out for unequal treatment compared to other nonreligious gatherings that have the same effect on the government’s public health interest, absent the most compelling reasons. 

This equal treatment principle was the subject of Attorney General William P. Barr’s April 14 statement on Religious Practice and Social Distancing, issued in conjunction with the Department’s participation in a Mississippi case that involved a drive-in church challenging a COVID-19 restriction.  (The Department also filed a brief on May 3 in a federal case in Virginia involving sixteen people who had gathered to worship in a sanctuary that seats more than 200 people.  The press release can be found here).   The Attorney General emphasized the need to practice social distancing to control the spread of COVID-19, and noted that temporary restrictions that would be unacceptable in normal circumstances may be justified.  But “even in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers.  Thus, government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity.” 

The letter to Governor Newsom states that delaying religious worship until Stage 3 while allowing similar secular gatherings constitutes the kind of differential treatment the Supreme Court identified in the Lukumi decision where the government is not willing to impose on certain favored activities the same restrictions it is willing to impose on constitutionally protected religious worship. 

The letter stressed that it should not be construed as advocating for no limitations on gatherings for worship:  “While it is true that social distancing requirements applied to places of worship may inevitably result in much smaller congregations than some faith groups would like, in our experience with other controversies around the country, many places of worship are quite content to operate at 15-25% of capacity in a way that allows for social distancing between family groups.”

The letter concluded:  “Religion and religious worship continue to be central to the lives of millions of Americans.  This is true now more than ever.  Religious communities have rallied to protect their communities from the spread of this disease by making services available online, in parking lots, or outdoors, by indoor services with a majority of pews empty, and in numerous other creative ways that otherwise comply with social distancing and sanitation guidelines.  We believe . . . that the Constitution calls for California to do more to accommodate religious worship, including in Stage 2 of the Reopening Plan."

Update: On May 25, Governor Newsom issued new guidelines for reopening places of worship. 

 

Justice Department Files Suit Against Jackson, New Jersey Alleging Zoning Code Used to Keep Out Orthodox Jewish Schools and Residents

On May 20, the Justice Department filed a lawsuit against the Township of Jackson and its planning board, alleging that they violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Fair Housing Act (FHA) by targeting the Orthodox Jewish community through zoning ordinances restricting religious schools and barring religious boarding schools.

“Using zoning laws to target Orthodox Jewish individuals for intentional discrimination and exclude them from a community is illegal and utterly incompatible with this Nation’s values,” said Eric Dreiband, the Assistant Attorney General for the Civil Rights Division, on the day the suit was filed.  “Let me be clear. The Department of Justice will use the full force of its authority to stop such anti-Semitic conduct and prevent its recurrence.”

Craig Carpenito, the U.S. Attorney for the District of New Jersey, also remarked on the suit filing, stating:  “Religious discrimination has no place in our society and runs counter to the founding principles of our nation.  No religious community should ever face unlawful barriers or be singled out for inferior treatment. This complaint reflects our continued commitment to combat discrimination and unequal treatment.”

The complaint, filed in the U.S. District Court for the District of New Jersey, alleges that the township passed and applied two zoning ordinances in a manner that discriminated against the Orthodox Jewish community.  The ordinances prohibit dormitories throughout Jackson, making it impossible for religious boarding schools such as Orthodox Jewish yeshivas to operate there. Although Jackson passed these ordinances to prevent dormitories anywhere in Jackson, the planning board has since approved, without requiring a variance, plans for two nonreligious projects with dormitory-type housing.

The complaint further alleges that the township and planning board enacted the ordinances against a backdrop of extreme animus by some Jackson residents and township decision-makers toward the Orthodox Jewish community and a movement by residents to keep Orthodox Jewish individuals from settling in Jackson.  The complaint alleges that the township and planning board’s actions towards the Orthodox Jewish community violate RLUIPA’s non-discrimination and equal-terms provisions, as well as the FHA.

RLUIPA is a federal law that protects religious institutions from unduly burdensome or discriminatory land use regulations.  In June 2018, the Justice Department announced its Place to Worship Initiative, which focuses on RLUIPA’s provisions that protect the rights of houses of worship and other religious institutions to worship on their land.  More information is available at www.justice.gov/crt/placetoworship.  A portal for submitting complaints is available at that site.  Additional information about RLUIPA and the FHA is also available at the Department’s Housing and Civil Enforcement Section’s homepage.

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.

 

North Lauderdale, Florida Changes Zoning Code to Equalize Treatment of Places of Worship

On May 15, 2020, the Civil Rights Division closed its RLUIPA investigation of the City of North Lauderdale, Florida, after the city modified its zoning code to treat places of worship equally with nonreligious assemblies.  In May 2019, the Department opened an investigation into the North Lauderdale zoning code’s treatment of churches and other places of worship after learning that the city imposed restrictions on churches that did not apply to a wide range of nonreligious assemblies.

The city zoning code required places of worship to apply for and be granted a “special exception” permit to locate in the B-2 business district, but allowed “civil associations, art galleries, art schools, business schools, clubs (civil and private), dance academies, athletic clubs, funeral homes, lodge halls with seating of less than 100, museums, and theaters and motion picture houses” in the district by right.  The code also limited places of worship, collectively, to no more than 20% of the floor area of any shopping center, but imposed no size restriction on other assemblies.

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 10th Anniversary Report on RLUIPA).

After the Department opened its investigation, the city initiated efforts to amend its zoning code regarding places of worship and ultimately amended its code to equalize the treatment of places of worship and nonreligious assemblies in its business district.  In response to the zoning code changes, the Department closed its investigation.

More information is available on the Place to Worship Initiative page.

 

Missouri Man Indicted for Hate Crime and Arson Charges

On May 12, 2020, a federal grand jury in Missouri indicted Nicholas J. Proffitt, 42, for his conduct in connection with the April 24, 2020 fire at the Cape Girardeau Islamic Center. The indictment charges Proffitt with damaging religious property because of the property’s religious character  in violation of 18 U.S.C. § 247, using fire to commit a federal felony, and damaging a building used in interstate commerce through the use of fire.

An indictment is merely an accusation and the defendant is presumed innocent until and unless proven guilty.

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 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.

 

Rastafarian Prisoner Released From Solitary Confinement After Justice Department Files Brief Supporting Religious Liberty Claim

On April 21, the Justice Department filed a Statement of Interest explaining that a Rastafarian prisoner awaiting trial in Pennsylvania was likely to succeed on his claim that his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) were violated when he was put in solitary confinement for refusing to cut his hair.  The prisoner, Eric McGill, wears dreadlocks for religious reasons, and while prisoners may wear long hair if they keep it in a ponytail, dreadlocks are forbidden completely.  Shortly after the Justice Department filed its Statement of Interest, the jail transferred McGill to the general population and modified its policy.

McGill is a practicing Rastafarian who has worn his hair in dreadlocks for seven years in exercising his religious beliefs.  He is being held at the Lebanon County Correctional Facility while awaiting trial.  The facility did not permit prisoners to wear dreadlocks, based on concerns about the hiding of contraband, as well as concerns about hygiene.  McGill asked if he could tie his hair up as those with long hair can do, but this proposal was rejected.  When McGill refused to cut his dreadlocks, he was placed in solitary confinement.  He then filed suit in federal court, and sought a preliminary injunction to allow him to go back to the jail’s general population.

The United States’ brief observed that under RLUIPA, if an inmate demonstrates a substantial burden on his religious exercise, a correctional facility must show that it has a compelling interest for infringing his religious exercise, and that the facility is using the least restrictive means to achieve that compelling interest.  Here, the United States’ brief explained, McGill’s religious exercise was burdened because he was being put to the choice of abandoning his beliefs and being released from solitary confinement, or following his beliefs and enduring solitary confinement.  This pressure creates a substantial burden on religious exercise.

The United States’ brief also explained that the prison facility had not shown the governmental interest necessary to justify infringing on religious exercise.  The United States noted that the jail had not presented any specific reasons why it could not accommodate McGill’s dreadlocks in the same way it accommodates prisoners with long hair, and that the jail had to do more than simply assert security and hygiene in the abstract.  The brief noted that other prisons and jails in Pennsylvania, as well as Federal Bureau of Prisons facilities, permit dreadlocks, and that when a practice is commonly permitted in other facilities, Supreme Court precedent requires a facility departing from this practice to provide specific reasons why it believes it must take a different approach.

The same week that the United States filed its brief, the correctional facility moved McGill to the general population and modified its policy.

More information about RLUIPA’s institutionalized persons provision is available at the Civil Rights Division’s Special Litigation Section RLUIPA page.

Updated May 27, 2020

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