RELIGIOUS FREEDOM IN FOCUS, VOLUME 88 - October/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:

 

Vermont’s Barring Parochial Student from College Course Program Violates Constitution, Department of Justice Argues

On October 14, the Department of Justice participated in oral argument in the United States Court of Appeals for the Second Circuit in the case of a Vermont parochial student challenging her exclusion from a state college course program for high school students. Principal Deputy Associate Attorney General Claire Murray argued for the United States as friend-of-the-court in the case, A.M. v. French, that excluding the student from the program on the grounds that she attends a religious school violated the Free Exercise Clause.

Vermont’s “Dual Enrollment Program” provides high school students the opportunity to take up to two college courses while still in high school, with tuition paid by the State. It is open to public school students, home school students, and students attending nonreligious private schools who do not have a public high school in their school district. The program, however, excludes those students without public high school in their district who choose to attend private religious schools. Plaintiff A.H. attends a Catholic private school and would like to participate in the program and take courses at the University of Vermont, which she would be able to do were her school a secular private school.

A federal trial court on May 29, 2020, denied a preliminary injunction to several students and their parents, holding that they had not shown that they were likely to succeed on their claim under the Free Exercise Clause. Plaintiff A.H. and her parents appealed and, after the U.S. Supreme Court held on June 30 in Espinoza v. Montana Dept. of Revenue that Montana violated the Free Exercise Clause when it “bar[red] parents who wish to send their children to a religious school” from public benefits “solely because of the religious character of the school,” the Second Circuit Court of Appeals stayed the trial court’s decision pending appeal.

At the argument and in its amicus brief filed on August 19, the United States argued that the District Court erred in permitting the state to continue to exclude A.H. from the Dual Enrollment Program. The United States’ brief explained that “[t]he Supreme Court’s repeated holdings, including in Espinoza, that religious entities and their adherents cannot be excluded from or disadvantaged under public programs and benefits based on their religious character, make clear that [the student and her school’s] disqualification from the Dual Enrollment Program is impermissible under the Free Exercise Clause.”

“Ever since our patriotic ancestors declared our independence, rejected monarchy, and established the United States of America, our nation has supported and defended a very simple and important ideal, namely, that government may not discriminate against people of faith because of religion,” said Assistant Attorney General for the Civil Rights Division Eric Dreiband. “Our Founding Fathers enshrined this principle in the First Amendment of the United States Constitution, and the United States today remains dedicated to the right of all people to practice their faith without suffering injustice at the hands of governments. The First Amendment, common decency, and our shared humanity demand no less. The Department of Justice will continue to defend the right of all people to exercise religion according to the dictates of their faith and conscience.”

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.

 

Federal Court Orders District of Columbia to Permit Church’s Outdoor Worship Service

On October 9, a federal court in Washington, D.C. granted a preliminary injunction to allow Capitol Hill Baptist Church to go forward with its plan to hold outdoor worship services for its 850 members. The court held that the church had shown a likelihood of success on its claim that the District of Columbia’s permit denial violated its rights under the Religious Freedom Restoration Act (RFRA) and that an injunction was justified. The United States had filed a Statement of Interest urging the court to grant the injunction in the case Capitol Hill Baptist Church v. Bowser.

The church filed suit against the District of Columbia and its mayor in U.S. District Court on September 22, alleging that the imposition of a 100-worshiper limit, even for outdoor worship services with social distancing and masks as the church proposed, violated its rights under the Constitution and RFRA, in light of the mayor and District’s allowance and often celebration of outdoor protests numbering in the thousands.

On October 2, 2020, the Justice Department filed a Statement of Interest supporting the church’s claim. The United States’ brief explained that while the government is entitled to some deference when crafting rules to protect the public health and reduce the risk of COVID-19 transmission, there is no constitutional or statutory basis for allowing protests and rallies attended by thousands of people, while at the same time silencing religious worship.  

In its ruling on October 9 in favor of the church, the federal court ruled that Capitol Hill Baptist “Church has shown that it is likely to succeed in proving that the District’s actions impose a substantial burden on its exercise of religion. For its part, the District has not shown that it is likely to prove a compelling interest in prohibiting the Church from holding outdoor worship services with appropriate precautions, or that its restrictions are the least restrictive means available to achieve its public health objectives.”

Though seeking to prohibit the Church’s socially-distanced outdoor worship, the District of Columbia nonetheless denied that the protests it had encouraged this past summer caused infection. The Court observed: “In fact, the District’s brief explains that the protests did not trigger any spike in COVID-19 ‘outbreaks,’ undermining the notion that large gatherings are always exceptionally dangerous.”

In response to the ruling, Assistant Attorney General Eric Dreiband of the Civil Rights Division remarked: “Yesterday, in the heart of our nation’s capital, Washington, D.C., a federal district court ruled that the fundamental right of all Americans to worship endures during our COVID-19 response. Last night’s decision is a victory for religious liberty and the rule of law. In an overwhelming vote, Congress passed the Religious Freedom Restoration Act in order to guarantee our nation’s first freedom is always upheld. The Department of Justice is grateful the court ruled preliminarily with this in mind and is grateful that members of Capitol Hill Baptist Church will be able to worship together on Sunday.”

The statement of interest is part of Attorney General William P. Barr's initiative, announced April 27, directing Assistant Attorney General for Civil Rights, Eric Dreiband, and the U.S. Attorney for the Eastern District of Michigan, Matthew Schneider, to review governmental policies around the country to ensure that civil liberties are protected during the COVID-19 pandemic.

 

San Francisco Changes “One Congregant” Rule for Places of Worship After DOJ Calls it Unconstitutional

San Francisco Mayor London Breed announced on September 29 that the city was raising its limit on indoor religious worship from only a single congregant permitted at a time to allowing congregants at 25% of capacity with a cap of 100. The Justice Department four days earlier had sent a letter to the mayor explaining that the city’s policy of only allowing a single worshiper in places of worship regardless of their size, while allowing multiple patrons in other indoor settings including gyms, tattoo parlors, hair salons, massage studios, and daycares, was contrary to the Constitution and the nation’s best tradition of religious freedom.

The letter, sent by Assistant Attorney General for the Civil Rights Division Eric Dreiband and U.S. Attorney for the Northern District of California, David Anderson, explains that San Francisco’s policy of treating secular businesses more favorably than houses of worship was “wholly at odds with this nation’s traditional understanding of religious liberty, and may violate the First Amendment,” and called on the mayor to take action to treat places of worship equally with other venues where people share enclosed spaces.

While continuing to enforce the one-congregant rule, San Francisco allowed patrons at hair and nail salons, tattoo parlors, and massage studios with no limit so long as 6-foot distancing is followed. Gyms were allowed to open at 10 percent of capacity, daycares to operate with 10 to 12 children per class, and retail establishments generally could operate at 50 percent capacity.

The letter called on the city to immediately equalize its treatment of places of worship with other gatherings to comply with the First Amendment. The letter stressed that “there is no pandemic exception to the Constitution. Individual rights, including the protections in the Bill of Rights, are always operative and restrain government action. Thus, even in times of emergency, when reasonable, narrowly-tailored, and temporary restrictions may lawfully limit our liberty, the First Amendment and federal statutory law continue to prohibit discrimination against religious institutions and religious believers.”

 

Department of Justice Marks 20th Anniversary of Religious Land Use and Institutionalized Persons Act with Comprehensive 20-Year Report

The Justice Department on September 22 marked the 20th Anniversary of the Religious Land Use and Institutionalized Persons Act (RLUIPA) by releasing a comprehensive report detailing how RLUIPA has helped preserve the religious liberty rights of thousands of individuals and institutions.

RLUIPA, which protects the rights to use land for religious purposes without discrimination or unduly burdensome regulation, and protects the religious exercise of persons confined to institutions, was signed into law by President Clinton twenty years ago. The report recounts the history and purpose of RLUIPA, how it has been interpreted in the courts, and the Department of Justice’s enforcement efforts, which have protected the religious liberty of people of a wide range of faiths in a broad array of settings.

Some key points in the report include:

  • The Department of Justice has opened 553 preliminary and full investigations under RLUIPA;
  • The Department has filed 28 RLUIPA lawsuits;
  • The Department has filed 53 amicus briefs and statements of interest in privately filed RLUIPA cases;
  • The Department has intervened in more than 65 cases to defend the constitutionality of RLUIPA;
  • Under the Department’s Place to Worship Initiative, launched in June 2018, the Department has filed double the number of RLUIPA cases and briefs, and 60% more full investigations, compared to the department’s RLUIPA filings in an average two-year period;
  • The Department’s land use cases frequently involve the rights of minority faiths. 55% of the department’s court filings have involved Muslims and Jews. This is consistent with the legislative history of RLUIPA, where Congress found that minority faiths were disproportionately represented in zoning disputes;
  • The Department has filed cases and briefs that have protected the rights of a wide range of religious groups, including Christians, Muslims, Jews, Sikhs, Hindus, Native Americans, and others.

 

Eric Dreiband, Assistant Attorney General for the Civil Rights Division, stated: “For more than four centuries, religious people from all over the world have sought refuge here. Often, these people did so to escape persecution by monarchs, dictators, and other despots. Then, when our ancestors established the United States of America, the Founders adopted the First Amendment to the United States Constitution and thereby preserved in law the right of all people to exercise religion. Two decades ago, the Congress extended these protections when it passed RLUIPA. The Department of Justice is steadfastly committed to enforcing RLUIPA vigorously to protect the right of all people to practice their faith and worship together.”

More information about the Place to Worship Initiative is available at www.justice.gov/crt/placetoworship. More information about the enforcement of the RLUIPA rights of prisoners and others confined to institutions is available at the Special Litigation Section RLUIPA page, https://www.justice.gov/crt/religious-land-use-and-institutionalized-persons-act-0.

 

Justice Department Settles Suit Over Borough’s Denial of Permit to Orthodox Worship Center

On September 15, the Justice Department announced that it has reached an agreement with the Borough of Woodcliff Lake, New Jersey, to resolve allegations that the borough violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) by denying zoning approval for an Orthodox Jewish congregation to construct a worship center on its property.

The proposed consent decree, which must still be approved by the court, would resolve a lawsuit filed by the United States against the borough alleging that it had prevented Valley Chabad, an Orthodox Jewish congregation that has worshiped in the borough for over 20 years, from constructing a new house of worship. A separate settlement agreement and proposed consent decree have resolved a related lawsuit filed by Valley Chabad against the borough. 

The United States’ complaint, filed in June 2018, alleged that Woodcliff Lake violated RLUIPA by imposing a substantial burden on Valley Chabad’s religious exercise. On three occasions between 2006 and 2013, Valley Chabad attempted to purchase parcels of property in the borough in order to construct a house of worship and meeting center, called a Chabad house, large enough to meet its needs. The complaint alleged that in each instance, the borough purchased or re-zoned the parcels, preventing development of a Chabad house.

As part of the consent decree, the borough will permit Valley Chabad to construct a new Chabad house on its property. The borough also agreed to establish a procedure for receiving and resolving RLUIPA complaints, train its employees on RLUIPA’s requirements, and submit regular reports to the United States and the court on its compliance. In the separate agreement that resolves the related private action, the borough agreed to pay Valley Chabad $1.5 million to resolve its claims for damages and attorney’s fees that arose from the borough’s conduct. 

“The United States is, and must always remain, committed to the right of all people to practice their faith and worship together,” Assistant Attorney General for the Civil Rights Division Eric Dreiband said on the say the settlement was filed. “The U.S. Department of Justice will continue to fight against any unlawful deprivation of the right of all people to practice their faith. Through this agreement, the Valley Chabad and its members will be able to build a house of worship and to exercise their right to practice their religion freely.”

More information about RLUIPA is available at www.justice.gov/crt/placetoworship.

 

Justice Department Files Brief in Indiana Supreme Court Supporting Catholic Archdiocese’s First Amendment Rights in Former High School Teacher’s Lawsuit

The Justice Department on September 8 filed a friend-of-the-court brief in the Indiana Supreme Court explaining that the First Amendment to the U.S. Constitution gives the Roman Catholic Archdiocese the right to decide for itself who should personify its beliefs, inculcate its teachings, and instruct students at religious high schools affiliated with the Archdiocese.

In its brief, the United States explains that three separate aspects of the First Amendment prevent a former Catholic high school teacher from suing the Archdiocese over his termination: the church-autonomy doctrine, the Archdiocese’s right to expressive association, and the ministerial exception—a doctrine reaffirmed and clarified by the U.S. Supreme Court in its 7-2 decision three months ago in Our Lady of Guadalupe School v. Morrissey-Berru.

“Our ancestors arrived on our shores to establish a country where the people would be secure to practice their faiths and to gather freely with their religious communities. To that end, the First Amendment to the United States Constitution protects the right of religious institutions and people to decide what their beliefs are, to associate with others who share their beliefs, and to determine who will teach the faithful in their religious schools,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “Let there be no doubt:  the Department of Justice will continue to defend the First Amendment rights to believe, worship and associate in a manner that respects the dignity and choice of all individuals.”

This case stems from a directive issued by the Archdiocese to Cathedral High School, a Catholic school in Indianapolis. The Archdiocese told Cathedral that the school’s continued employment of a teacher in a public, same-sex marriage in contradiction to Catholic teachings on marriage would result in Cathedral’s forfeiture of its Catholic identity. After much deliberation, the school terminated the teacher. The teacher then filed suit against the Archdiocese, claiming the directive to Cathedral interfered with his employment and his contractual relationship with the school.

In September 2019, the United States filed a statement of interest in Indiana state trial court arguing that the First Amendment required this lawsuit to be dismissed. The trial court, in May 2020, declined to dismiss the case, instead ordering discovery into Catholic doctrine and its application and into whether the Archbishop is the highest ecclesiastical authority on the matters at issue. The Archdiocese is now asking the Indiana Supreme Court to intervene and dismiss the case.

The United States explains in its brief in the Indiana Supreme Court that the First Amendment prevents courts from impairing the constitutional rights of religious institutions. The former teacher’s lawsuit attempts to penalize the Archbishop for determining that schools within the Archdiocese cannot employ teachers in public, same-sex marriages and simultaneously identify as Catholic. U.S. Supreme Court precedent makes clear that the First Amendment protects the Archdiocese’s right to this form of expressive association, just as it protects a wide array of non-religious expressive association from membership in the NAACP to the Boy Scouts, and courts cannot interfere with that right.

The brief also makes clear that, under the church-autonomy doctrine, courts cannot second-guess how religious institutions interpret and apply their own religious laws. U.S. Supreme Court precedent has long held, the brief recounts, that the “First Amendment requires civil courts to refrain from interfering in matters of church discipline, faith, practice and religious law.”

Additionally, the brief explains that the ministerial exception grounded in the Religion Clauses of the First Amendment and elaborated on by the U.S. Supreme Court’s decision in Our Lady of Guadalupe School shields from judicial review the Archdiocese’s direction to Cathedral (or else lose its Catholic affiliation) to terminate the employment of a high-school teacher such as Payne-Elliott who has an important role in fulfilling the Church’s mission to pass on its faith to the next generation.

 

Focus on Religious Hate Crimes

The Department of Justice has had two guilty pleas and one indictment in the last month in cases involving threats and alleged threats against places of worship and congregants.

Guilty Plea in Colorado Synagogue Bombing Plot: On October 15, 2020, Richard Holzer, 28, pleaded guilty to federal hate crime and explosives charges for plotting to blow up the Temple Emanuel Synagogue in Pueblo, Colorado. Holzer admitted that he planned to destroy Temple Emanuel, a synagogue in Pueblo, Colorado, that is listed on the National Register of Historic Places. Holzer, who self-identifies as a Neo-Nazi and a white supremacist, told undercover agents repeatedly of his hatred of Jewish people and suggested using explosive devices to destroy the Synagogue. Holzer further admitted that he coordinated with the undercover agents to obtain explosives, including pipe bombs. Sentencing is set for January 20, 2021. Holzer faces a maximum sentence of 20 years in prison for the hate crime charge and 20 years for the explosives charge. Further information is available here.

Michigan Man Pleads Guilty to Threatening Worshiper: Ronald Wyatt, 22, pleaded guilty on September 23 in U.S. District Court for the Eastern District of Michigan to threatening an African American woman to obstruct her free exercise of religion. Wyatt admitted that in July 2019 he sent a Facebook message to the woman saying: “See you at church on Wednesday night with my AK to put you and your [expletive] family down [expletive].” Pursuant to the plea agreement, sentencing will take place in one year. He faces a maximum sentence of one year in prison. More information is available here.

Alaska Man Accused of Threatening California Synagogue: A federal grand jury in Alaska returned an indictment on September 21 charging William Alexander, 49, with threatening to kill the congregants of a California synagogue. Alexander was charged with making threatening interstate communications and with intentionally obstructing and attempting to obstruct persons in the enjoyment of their free exercise of religious beliefs through the threatened use of force. The indictment alleges that, on November 1, 2019, Alexander called the synagogue and left a voice message threatening to “kill” its Jewish congregants. An indictment is a formal accusation of criminal conduct, and not evidence of guilt. The defendant is presumed innocent unless proven guilty. More information is available here.

Combating hate crimes, such as attacks and threats against 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.

Updated October 27, 2020

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