RELIGIOUS FREEDOM IN FOCUS, VOLUME 87 - July/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 Continues Efforts to Protect Worship From Unequal Treatment in COVID-19 Restrictions

The Justice Department is continuing its efforts to ensure that the rights of places of worship are not violated in efforts to curb the spread of COVID-19. In legal briefs filed in Washington State and Colorado, and in letters to officials in Maryland and New York, the Department has sought to ensure that religious gatherings are treated fairly and not subject to restrictions that are imposed unequally on nonreligious gatherings with similar impacts on public health.

The Department of Justice articulated the equal treatment principle for places of worship in Attorney General William P. Barr’s April 14 statement on Religious Practice and Social Distancing. 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.” Assistant Attorney General Eric Dreiband also addressed these issues in an Op-ed.

In the Washington State case, Haborview Fellowship v. Inslee, for example, the United States argued that Washington’s preferable treatment of secular gatherings such as restaurants, taverns, and outdoor protests compared to the restrictions imposed on indoor and outdoor religious services triggered heightened scrutiny under the Constitution. The United States’ brief discussed how at the end of May, in South Bay United Pentecostal Church v. Newsom, the U.S. Supreme Court, by a 5-4 vote, declined to temporarily block California’s reopening plan. Chief Justice Roberts concluded that, on the facts of the California case, California “exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”  

The United States’ brief explained that the State of Washington “exempts or treats more leniently” precisely the types of activities that Chief Justice Roberts said are appropriate comparators for religious gatherings—specifically, activities that involve people “congregat[ing] in large groups [ ]or remain[ing] in close proximity for extended period,” such as restaurants, taverns, and protests. Because those activities are permitted with social distancing and hygiene measures, the church must be treated the same unless the state can persuasively show that there are material differences between gathering for an extended period in a restaurant or tavern and a house of worship, or between an outdoor protest and an outdoor worship service. Shortly after the brief was filed, Governor Inslee modified the rules to permit places to worship to operate at 25% capacity or 200 persons, whichever is lower, in certain counties, and up to 50% capacity or 400 persons, whichever is lower, in other counties.

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.

 

Supreme Court Hands Downs Three Victories for Free Exercise of Religion at End of Term

The Supreme Court handed down three victories for free exercise of religion in the last two weeks of the October 2019 term:

Espinoza v. Montana Department of Revenue:  On June 30, the Court ruled that the Montana Supreme Court violated the Free Exercise Clause when it invalidated legislation providing tax credits supporting scholarships to religious and nonreligious private schools. The Montana Supreme Court had struck down the tax credit program under the “no-aid” provision of the Montana constitution, which bars any state aid from going to any school “controlled in whole or in part by any church, sect or denomination.” Relying on its 2017 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court held that the Montana Supreme Court’s application of the “no-aid” provision had disqualified “otherwise eligible recipients from a public benefit solely because of their religious character" and that this "imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.” The Court explained that “Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.” The United States participated as amicus in the case, with Civil Rights Division attorneys on the brief. The United States’ arguments were detailed in the January 2020 issue of Religious Freedom in Focus.

Our Lady of Guadalupe School v. Morrissey-Berru & St. James School v. Biel:  On July 8, the Supreme Court held that held that the First Amendment’s Religion Clauses prevent courts from intervening in employment disputes involving teachers at religious schools who are entrusted with the responsibility of instructing their students in their faith. The Court held that elementary school teachers at two Catholic schools qualified for the “ministerial exception”, which provides autonomy for religious institutions in deciding who will represent and teach their faith. The Court held that “educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”  The Court stressed that “the Religion Clauses protect the right of churches and other religious institutions to decide matters of faith and doctrine without government intrusion.” The United States participated as amicus in the case, with Civil Rights Division attorneys on the brief. 

Little Sisters of the Poor v. Pennsylvania:  Also on July 8, the Supreme Court upheld the federal government’s authority to exempt employers from providing contraceptive coverage to their employees under the Affordable Care Act if doing so would violate their sincere religious or moral beliefs. The Court noted that for years the Little Sisters and others “have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.” The Court held that the federal accommodation for objectors like the Little Sisters for the Poor was supported by statutory authority and was carried out in a procedurally proper manner. Justice Alito, joined by Justice Gorsuch, wrote that he believed the federal government accommodation was not merely permissible, but required by the Religious Freedom Restoration Act.

 

RLUIPA Suit Filed Against Stafford County, Virginia, Over Blocking of Islamic Cemetery

On June 19, the Department of Justice filed a lawsuit alleging that Stafford County, Virginia, violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) by enacting overly restrictive zoning regulations prohibiting an Islamic organization from developing a religious cemetery on land it had purchased for that purpose. 

The complaint, filed in the Eastern District of Virginia, alleges that the county passed an ordinance in 2016 that blocked the All Muslim Association of America from developing an Islamic cemetery on a 29-acre parcel of land that it owns. When the association bought the property, it complied with all of the state and local requirements for use as a cemetery. But after learning of the association’s plans, the county amended its ordinance to require that cemeteries be no closer than 900 feet from private wells and certain types of streams, thus preventing the association from using its property as a cemetery. The United States’ complaint alleges that this requirement is far more restrictive than the Virginia Department of Health’s 100-foot distancing standard, has no legitimate health justification, imposes a substantial burden on the association’s religious exercise, and is not narrowly tailored to achieve a compelling governmental interest.

On the day the suit was filed, Eric S. Dreiband, Assistant Attorney General for the Civil Rights Division, stated: “The United States of America must and will remain a nation committed to the right of all people to practice their faith free from unjustified governmental restrictions. Indeed, this nation exists to provide sanctuary to people seeking the religious freedom that is too often denied in other parts of the world, and the Department of Justice is committed to protecting the fundamental right of people of all faiths to practice their religion free from illegal governmental interference. That right protects the freedom of faith communities to use their land for religious purposes, including for cemeteries, houses of worship, and religious schools.”

The complaint seeks injunctive relief, including a court order that the county allow the association to build its cemetery in conformity with the prior ordinance.

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.

 

Suit by Muslim Prisoners Seeking Religious Accommodation Should Proceed, Brief Argues

On June 24, the Civil Rights Division filed a Statement of Interest explaining that a suit by Muslim prisoners under the institutionalized persons provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA) should be allowed to go forward. The suit alleges that Muslim prisoners are denied the ability to hold their own Friday prayer services, and are required to join the prayers services of the Nation of Islam or the Nations of Gods and Earths religious groups that plaintiffs believe are different faith traditions and whose religious services do not meet their religious needs. The suit also raises other religious accommodation issues for Muslim prisoners. 

RLUIPA provides that covered facilities may not substantially burden the religious exercise of a person confined to the facility unless the government can show a compelling governmental interest that is enforced through the means that is least restrictive of religious exercise. Covered facilities include any “program or activity that receives federal financial assistance.” The Defendants, officials of the Arkansas Department of Corrections, argued that while the Arkansas Department of Corrections receives federal funds, the Arkansas Division of Corrections, the sub-component of the Arkansas Department of Corrections that manages the facility in which plaintiffs are incarcerated, does not currently receive any federal funds. The United States’ Statement of Interest notes, however, that RLUIPA’s definition of “program or activity” incorporates the definition from Title VI of the Civil Rights Act of 1964, as amended in 1988. This definition provides that “program or activity” encompasses “all of the operations of . . . a department, agency, special purpose district, or other instrumentality of a State or of a local government” that receives or dispenses federal financial assistance. That, the brief explains, plainly includes the operations of the facility here.

One of the plaintiffs in the case, Gregory Holt, was the plaintiff in the Supreme Court’s RLUIPA unanimous decision upholding the right to wear a beard, Holt v. Hobbs.

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

Updated July 24, 2020

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