United States' Suit Alleging Systematic Religious Discrimination By Twin Cities On Utah/Arizona Border May Proceed To Trial, Court Rules

DOJ seal United States Department of Justice
Civil Rights Division

June 2015
Volume 63

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.


On June 17, a federal court ruled that the United States had produced sufficient evidence to proceed to trial in its suit alleging that Colorado City, Arizona and Hildale, Utah have engaged in pervasive discrimination and constitutional violations against citizens who are not members of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS).

The United States' suit alleges that the municipalities and two utilities have worked in concert with FLDS leadership to deny non-FLDS individuals housing and police protection, and to use the police department to enforce the edicts of the FLDS church. The suit alleges extensive violations of the Violent Crime Control and Law Enforcement Act, 42 U.S.C § 14141, based on the municipalities' joint police force's violation of the First Amendment, the Fourth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. These include allegations that the police have deliberately failed to provide police protection to non-FLDS residents, selectively enforced laws against non-FLDS residents, served as an arm of the FLDS church, and regularly used its officers to enforce church edicts. The United States' suit also alleges that, in violation of the Fair Housing Act, the defendants have engaged in a pattern or practice of denying and delaying the provision of water service to non-FLDS residents, and have prevented non-FLDS residents from occupying existing housing or building new homes.

With regard to the police, the court held that the United States had produced evidence to support a claim of violation of the Establishment Clause. The court held that the United States "has come forward with evidence that FLDS leaders direct who becomes an officer and the Marshal. . . . This evidence suggests control by the FLDS of governmental law enforcement, which may constitute unconstitutional fusion and entanglement." The court further held that the United States "has also come forward with evidence that suggests that . . . officers endorsed and protected the FLDS church, often in violation of the oaths they took to uphold the law." The court also held the United States had produced evidence of improper searches and seizures in violation of the Fourth Amendment and denial of Equal Protection.

The Court also found that an injunction previously issued against the municipalities after the Arizona Attorney General won a fair housing suit based on religious discrimination against two non-FLDS residents did not bar the United States from seeking a broader injunction for religious discrimination under the Fair Housing Act in this case. The court further held that the finding of liability in the earlier case does not carry over to this case. The court also held that the United States could seek emotional distress damages for 10 aggrieved persons.

The case is being litigated by attorneys from the Division's Housing and Civil Enforcement Section and the Special Litigation Section. A trial date has not been set.

DOJ Closes Investigation of Virginia County After Rezoning Allows Church Construction

On June 12, the Department of Justice closed its investigation of James City County, Virginia under the Religious Land Use and Institutionalized Persons Act (RLUIPA), after the county amended its zoning to permit a church to build on 40 acres it had purchased in the county.

The Peninsula Pentecostal Church sought to build a new church to accommodate its growing congregation in Norfolk. After nearly a decade of searching, the church entered into a contract in March 2013 to buy 40 acres of land in James City County, which borders the City of Norfolk. The land was located in an industrial zone, which at that time permitted places of public assembly, including churches, to build as of right. The Church's initial proposal was to build a 2,400-seat church, along with extensive ancillary uses including a day care center, school, and senior housing. After county officials told the church at a meeting in April 2013 that most of the ancillary uses would require rezoning but that the church and day care were allowed as of right, the church decided just to pursue the church and day care.

After the April 2013 meeting, however, the county enacted a zoning change removing churches and assemblies from the uses permitted by right in the industrial zone. The County then denied the site plan application in August 2013, without grandfathering the church as a permitted use.

In June 2014, the Department of Justice opened an investigation of the County for potential violations of RLUIPA. The county cooperated with the investigation, providing documents and interviews with employees. During the pendency of the investigation, the church applied for rezoning of the parcel from industrial to a mixed use district to allow the church as well as commercial uses. On April 28, 2015, the James City County Board of Supervisors approved the rezoning application, thus allowing the church to go forward with its plans. In response, the Department closed its investigation.

Further information on the Civil Rights Division's work enforcing the land use provisions of RLUIPA, including questions and answers about RLUIPA and a report on the first ten years of Justice Department enforcement of RLUIPA, is available at the Housing and Civil Enforcement Section RLUIPA page.

Supreme Court Clarifies Religious Accommodation Standard Under Title VII

The Supreme Court on June 1 ruled that the Equal Employment Opportunity Commission could proceed with its Title VII claim against Abercrombie & Fitch on behalf of a Muslim woman who had been denied a sales job because she wore a headscarf to her interview. The Solicitor General argued the case before the Supreme Court on behalf of the United States.

Title VII prohibits discrimination in employment because of race, color, religion, sex, or national origin. Title VII further provides that discrimination based on religion includes failure to make a reasonable accommodation of an employee's religious observances and practices, unless doing so would be an undue hardship on the employer. Under this provision, for example, the Department of Justice has brought suit to protect the rights of Pentecostal and Muslim women bus drivers to wear skirts and headscarves, respectively, while working as bus drivers; the right of a Messianic Jewish police officer to refrain from work on the Sabbath, and the right of a Muslim teacher to take unpaid leave to go on the pilgrimage to Mecca, among other cases.

The woman in this case went to her job interview with Abercrombie wearing a headscarf. During the interview, she did not request a religious accommodation to allow her to wear the headscarf. However, supervisors assumed that she wore the headscarf because she was a Muslim, and did not give her the job because they did not want to make an exception to their "look" policy to accommodate her.

The Court of Appeals dismissed the case, finding that Abercrombie could not be liable for failure to accommodate her religious practice because the applicant had not told her interviewer that she needed an accommodation. The Court of Appeals found that they thus acted only on as suspicion that she needed an accommodation, rather than actual knowledge of such a need.

The Supreme Court reversed, holding that "the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions." Finding that the EEOC's complaint alleged discrimination regardless of whether Abercrombie actually knew or merely suspected that the applicant would want a religious accommodation, the Court remanded the case to the lower court to evaluate whether Abercrombie could accommodate her without undue hardship.

While the EEOC is charged with bringing Title VII suits against private employers, the Civil Rights Division's Employment Litigation Section brings suits where the employer is a public entity, such as a school district or a police department. More information is available on the Employment Litigation Section website.

Georgia City Changes Zoning Ordinance to Treat Religious and Non-Religious Assemblies Equally

In response to a Department of Justice investigation under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the City of Kennesaw, Georgia on April 20 changed its zoning code to allow places of worship to operate as of right in all of its zoning districts. The move equalizes the treatment of religious assemblies in the city with various non-religious assemblies. In response, the Department closed its investigation on May 7.

The Department opened an investigation after the city voted to deny a permit to a mosque that sought to lease space in one of the city's commercial districts. The city had recently voted to approve a permit for a church to locate in a commercial district under similar circumstances.

The Department's investigation revealed that religious assemblies were required to obtain permits to locate within many of the city's zoning districts, whereas non-religious assemblies, such as assembly halls, clubs, lodges, nightclubs, and theaters, were permitted to locate in these districts by right. Section 2(b)(1) of RLUIPA provides that a religious assembly or institution must not be treated "on less than equal terms with a nonreligious assembly or institution." With the ordinance change, places of worship will be allowed in all zoning districts as of right and will not need to apply for use permits.

Florida Must Provide Kosher Meals for Prisoners, Court Rules

A federal court in Florida ruled on April 30 that the Florida Department of Corrections violated RLUIPA by failing to provide kosher meals to prisoners. The court in United States v. Florida Department of Corrections found that denying the meals imposed a substantial burden on the exercise of Jewish prisoners and others who need a kosher diet, and that the Department of Corrections had not demonstrated that its concerns over increased costs were compelling. The case was brought by the Department of Justice in 2012 following a 15-month investigation.

RLUIPA's institutionalized persons section provides that no government may impose a "substantial burden on the religious exercise of a person" in certain institutions, including prisons, "unless the government demonstrates that imposition of the burden on that person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest."

Prior to the United States' lawsuit, the Florida Department of Corrections was the only large correction system in the country that did not offer kosher meals. The Department of Corrections conceded that this imposed a substantial burden on kosher-observant Jews and some other prisoners. However, it contended that it had a compelling interest in controlling costs since the kosher meals, which consisted of cold food only, cost $1.66 per day more per prisoner. The court rejected that argument, holding that "Defendants, who bear the burden of proof on this issue, have not shown that the costs of the [kosher meal] are so onerous that they have had an effect on Defendants' operations." Indeed, the court found that Department of Corrections could not demonstrate that it had a compelling interest in controlling the cost of a kosher diet when key personnel had conceded that implementing the kosher diet was sustainable. The court also noted that special meals provided to certain prisoners for health reasons had similar costs. In addition, the court found that the Department of Corrections had not enforced its own procedures to ensure that only those with sincere religious beliefs received the kosher meals, and that had the cost been truly onerous the Department of Corrections would have taken action to make sure it was not giving more kosher meals than necessary to meet prisoners' religious needs.

"Religious freedom is a cornerstone of our pluralistic society," said Principal Deputy Assistant Attorney General Vanita Gupta of the Civil Rights Division on the day the decision was announced. "State and local correctional facilities incarcerate individuals from a wide variety of faith groups and religious backgrounds. Accommodating these prisoners' religious exercise is a core tenet of effective prison management. It reduces tension and disciplinary incidents, fosters learning and self-reflection and ultimately eases prisoners' transition back into mainstream society."

The Civil Rights Division's Special Litigation Section enforces the institutionalized persons section of RLUIPA. The Justice Department has previously used RLUIPA to secure prisoners' rights to access religious texts, wear religiously significant clothing, receive religious diets, and other cases.

United States Department of Justice
Civil Rights Division

Updated August 6, 2015

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