Skip to main content

Religious Freedom In Focus, Volume 9

DOJ seal United States Department of Justice
Civil Rights Division
January/February 2005
Volume 9

Religious Freedom in Focus is a periodic email update about the Civil Rights Division's religious liberty and religious discrimination cases. Assistant Attorney General R. Alexander Acosta has placed a priority on these 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);

and through participation as intervenor and friend-of-the-court in cases involving the denial of equal treatment based on religion, the Civil Rights Division is working to protect the right of people of all faiths to participate fully in public life.

More information about this initiative, and back issues of this newsletter, may be found on the religious discrimination home page of the Civil Rights Division website. You may also contact the Special Counsel for Religious Discrimination, Eric W. Treene, at (202) 353-8622.



Civil Rights Division Supports Boy Scouts' Right to Use Parkland

Seventh Circuit RLUIPA Victory

Brief Filed in Florida School Choice Case

Civil Rights Division Closes Investigation After City Grants Synagogue Permit

Religious Bias Crimes Update


Civil Rights Division Supports Boy Scouts' Right to Use Parkland


The Civil Rights Division submitted an appeals brief on February 15, arguing that the Boy Scouts' leasing of parkland from the City of San Diego does not violate the Constitution. In Barnes-Wallace v. Boy Scouts of America, the U.S. District Court held that the Boy Scouts of America is a religious organization and therefore leases between the City and the Scouts to operate portions of city parkland violated the Establishment Clause of the Constitution. The United States' amicus brief to the Ninth Circuit Court of Appeals in San Francisco explains that the Boy Scouts is not a religious organization for constitutional purposes, and that in any event the leases are value-for-value transactions that would not violate the Constitution even if made by the city with a church or other religious organization.

The suit was brought by the ACLU on behalf of six San Diego residents in U.S. District Court in San Diego challenging two leases for city-owned, undeveloped parkland. In exchange for use of the land, the Boy Scouts agreed to invest several million dollars developing the sites, pay all operating and maintenance costs, and open the facilities for use by other San Diego youth organizations and individuals. Pursuant to these leases, the Boy Scouts built an aquatic center on Fiesta Island for swimming, canoeing, and other water sports, and built a campground in Balboa Park. The City of San Diego has entered similar leases for the development and maintenance of city-owned buildings and parkland with more than 100 other community organizations. The lawsuit challenges the leases on the ground that the Boy Scouts is a religious organization and that the leases therefore violate the Establishment Clause of the Constitution. The District Court agreed, and invalidated both leases.

The Civil Rights Division's brief argues for reversal, stressing that the fact that the Boy Scout Oath mentions God and the Scout Law includes reverence as a virtue does not transform the Boy Scouts into a church for Establishment Clause purposes. Rather, the brief explains, the Boy Scouts "is a social and recreational organization dedicated to promoting good character, citizenship, and personal fitness in young boys in a manner that does not undermine, and in fact respects and supports, the religious values with which they enter the program." The brief also explains that even if this case did involve an actual church, the leases would nonetheless be a legitimate arms-length arrangement in which each side gave something of value to obtain a benefit: the Boy Scouts paid a substantial sum of money in development and maintenance costs and received use of the land, and the City gave use of the land in exchange for the Scouts providing valuable recreational resources that are open to the public. Such arrangements, made between the City and many other San Diego nonprofit groups, maximize the public benefit from public land. The brief further explains that the activities at issue–camping, canoeing, and swimming–are secular in nature and are simply outside the purview of the Establishment Clause.

"Put simply, the Boy Scouts of America is not a church, and camping, canoeing, and swimming are not religious activities," said R. Alexander Acosta, Assistant Attorney General for the Civil Rights Division. "The Boy Scouts should not be barred from leasing public lands on an equal basis with other youth groups."


Seventh Circuit RLUIPA Victory


The United States Court of Appeals for the Seventh Circuit handed down an important victory for the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) on February 1. In Sts. Constantine and Helen Greek Orthodox Church v. City of New Berlin, the appeals court unanimously held that New Berlin, Wisconsin violated RLUIPA when it declined to rezone a 40-acre plot of land to permit a Greek Orthodox congregation to build a church. The Civil Rights Division submitted a friend-of-the-court brief, and argued the case for the United States before the court. This is only the second federal appellate decision upholding the claim of a house of worship under RLUIPA. The United States also participated in the first RLUIPA appellate victory, Midrash Sephardi v. City of Surfside, argued by Assistant Attorney General R. Alexander Acosta and handed down by the U.S. Court of Appeals for the Eleventh Circuit last year.

In Sts. Constantine and Helen, the Seventh Circuit held, in an opinion by Judge Richard Posner, that the city's denial of rezoning, and its proposal of various "delaying game" procedural hoops, imposed a substantial burden on the church's religious exercise. The Court rejected the trial court's reasoning that a substantial burden could be found only if a church demonstrated that it could locate nowhere else in the jurisdiction. Instead, the court found that "the burden here was substantial. The Church could have searched around for other parcels of land... , or it could have continued filing applications with the City, but in either case there would have been delay, uncertainty, and expense."

The court explained that the purpose of the "substantial burden" provision of RLUIPA is to "backstop[ ] the explicit prohibition of nondiscrimination in the later sections of the Act." The substantial burden provision thus addresses "the vulnerability of religious institutions–especially those that are not affiliated with the mainstream Protestant sects or the Roman Catholic Church– to subtle forms of discrimination when, as in the case of the grant or denial of zoning variances, a state delegates essentially standardless discretion to nonprofessionals operating without procedural safeguards."


Brief Filed in Florida School Choice Case


The Civil Rights Division submitted a brief with the Florida Supreme Court on January 25 arguing that the Florida Court of Appeals employed an erroneous reading of U.S. Supreme Court precedent when it struck down a Florida school-choice program.

The case involves Florida's Opportunity Scholarship Program, which provides students in failing schools with scholarships to use at the school of their choice, whether public or private. Several Florida taxpayers, represented by the ACLU, People for the American Way, and a number of other nonprofit advocacy groups, challenged the case under the Establishment Clause of the United States Constitution as well as provisions of the Florida constitution. The State of Florida, joined by the Urban League and parents who intervened in the case, vigorously defended the scholarship program. After the Supreme Court upheld school vouchers in Zelman v. Simmons-Harris in 2002, the plaintiffs dropped their Establishment Clause claim, but continued to pursue their Florida constitutional claims.

On November 12, 2004, the Florida Court of Appeals ruled that the Opportunity Scholarship Program violated a provision of the Florida Constitution that bars money from the state treasury from being used "in aid of any sectarian institution." Prior Florida Supreme Court cases had upheld tax exemptions and revenue bonds that aided religious institutions under this no-aid provision, because these benefit programs were not directed at aiding religion but were simply general welfare programs in which religious institutions sought to participate. The appeals court, however, distinguished these cases on the ground that they did not involve direct cash transfers as does the Opportunity Scholarship Program. The appeals court also rejected the argument of the State and the intervernors that applying the Florida constitution to bar students choosing religious schools from the program would be discrimination against religion in violation of the Free Exercise Clause of the U.S. Constitution. The appeals court found this case to be similar to Locke v. Davey (2004), in which the U.S. Supreme Court held that barring a state-scholarship recipient from using his scholarship toward a divinity degree did not violate the Free Exercise Clause.

In its amicus brief to the Florida Supreme Court, the Civil Rights Division argues that the Florida Court of Appeals misread Locke v. Davey. Locke, the brief stresses, "did not purport to overrule prior Free Exercise precedents barring discrimination against religion, but simply applied these precedents to the specific situation of a State declining to fund the actual training of clergy." The brief points out that the Opportunity Scholarship Program involves neither of the two special circumstances highlighted by the Supreme Court in Locke: the long historical pedigree of the principle "prohibit[ing] using tax funds to support the ministry," and the "relatively mild burden" on scholarship recipients due to the small amount of the scholarship in that case and the ability of divinity school students to use it toward courses of study at other schools.

The brief explains how the Opportunity Scholarship presents an entirely different set of facts from those in Locke. First, in contrast to the mild burden on the scholarship recipient in Locke, the Opportunity Scholarship Program provides children from poor areas with scholarships of several thousand dollars. Denying these scholarships could dramatically and negatively impact these children. Second, unlike the bar on funding clergy training upheld in Locke, "[h]ere, by contrast, the State actively is seeking means to improve general primary and secondary education for the poorest of students. No comparable historical pedigree exists for barring such funds from being used by families for tuition at religiously affiliated primary and secondary schools."

The brief also explains how the interpretation of the Florida no-aid provision adopted by the Florida Court of Appeals would jeopardize a wide range of Florida programs, from Medicaid funds that go to religiously affiliated hospitals to state programs for students with disabilities, some of whom attend religious schools. The court of appeals' interpretation of the no-aid provision would thus lead to discrimination against religious students and other benefit recipients in a wide range of programs, raising serious federal constitutional questions. Given these serious consequences of the court of appeals' reasoning, the brief urges the Florida Supreme Court to apply the doctrine of constitutional avoidance, that is, avoiding creating federal constitutional difficulties whenever possible. The brief argues that the best interpretation of the no-aid provision in this case therefore is to interpret it consistent with prior precedent allowing aid under general welfare programs to go to religious uses through the private choices of beneficiaries. This would avoid the First Amendment problems, both in this case and in future cases involving other programs.


Civil Rights Division Closes Investigation After City Grants Synagogue Permit


On February 2, 2005, the Civil Rights Division closed its investigation into whether the City of Lyndhurst, Ohio violated the rights of an Orthodox Jewish Synagogue under the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it denied it a use permit. The investigation was closed in response to the City Council's changing course and deciding to grant the permit.

The Warrensville Center Synagogue was founded in 1959 to serve an Orthodox Jewish congregation in Cleveland Heights, an eastern suburb of Cleveland, Ohio. The congregation consists substantially of elderly Holocaust survivors, and currently numbers a little under 200 members. The congregation sold its facility in Cleveland Heights because many of its members had difficulty walking long distances. In August 2000, the congregation purchased a lot of slightly less than one acre in Lyndhurst, Ohio, on a site where congregants could more easily walk to services.

On August 23, 2001, the Planning Commission denied Warrensville Center Synagogue's application, stating that the application failed to meet the objectives and specific requirements of the city's Master Plan and zoning ordinance, which requires a two-acre minimum lot size for religious institutions. On September 4, 2001, the City Council affirmed the Commission's denial of the congregation's application, stating that the parcel was a non-conforming lot.

The Civil Rights Division opened an investigation of the city in December 2003 to determine if it had violated the synagogue's RLUIPA rights. In November 2004, the parties reached an agreement on a revised building plan that the city believed would be better suited to the lot size and that the congregation agreed would accommodate its needs. With the Mayor's assistance, the congregation also reached an agreement to share parking with the Church of the Good Shepherd on an adjoining parcel. With these concerns addressed, the city approved the revised application for a conditional use permit and the variances necessary to enable the synagogue to build on the location it had chosen. The Civil Rights Division closed its investigation in response.

Assistant Attorney General for Civil Rights, R. Alexander Acosta, applauded the city's approval of the synagogue: "We are pleased that the city was able to find a solution that accommodated both the rights of the synagogue members and the concerns of the city in managing development."


Religious Bias Crimes Update

The Civil Rights Division's prosecutions of religious-based bias crimes continue to yield strong results. Prosecuting the perpetrators of bias-motivated crimes remains a top priority of the Justice Department. During Fiscal Year 2004, the Justice Department brought a record number of criminal civil rights prosecutions.

Portland, Oregon Cemetery Desecration: Two Oregon men have pleaded guilty to desecrating a Jewish cemetery in Portland. The two men admitted that on May 24, 2003, they vandalized the Congregation Shaarie Torah Cemetery by painting swastikas and anti-Semitic slogans in order to frighten and intimidate area Jewish residents. On January 13, the Division announced that Sean Andrew Sigley, a self-described white supremacist, pleaded guilty to federal conspiracy charges. He will be sentenced on March 28, 2005, and faces up to ten years in prison. His accomplice, Steven Hale Smith, pleaded guilty to damaging religious property on February 3, 2005. He also awaits sentencing. The case was investigated by the Federal Bureau of Investigation and the Portland Police Bureau.

Voice mail threats to Nebraska Mosque: George M. Doyle, II, who pleaded guilty to leaving threatening voice mail messages on the answering machine of the Islamic Center of Omaha on November 17, 2004, was sentenced to 10 days imprisonment and required to apologize to his victims.

E-mail threat to Muslim Organization: On January 13, 2005, Dale T. Ehrgott pleaded guilty to sending threatening emails from Reno, Nevada to the Washington, D.C. offices of the Council on American-Islamic Relations. He was sentenced by the court to one year's probation and fifty hours of community service.

United States Department of Justice
Civil Rights Division

Updated December 4, 2017