RELIGIOUS FREEDOM IN FOCUS, VOLUME 75 - June/2018

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:

• Department of Justice Announces Place to Worship Initiative
• Department Files Suit Over Zoning Denial of New Jersey Synagogue Construction
• Supreme Court Rules that Colorado Civil Rights Commission Violated Free Exercise Rights of Christian Baker Who Refused to Bake Cake for Same-Sex Wedding
• Department Files Brief Supporting Church’s Expansion Efforts
• Three Men Convicted for Plotting to Bomb Somali Muslim Apartment and Mosque in Kansas
• RLUIPA Investigation Closed after Corrections Department Modifies Policy Regarding Native American Religious Ceremonies

Department of Justice Announces Place to Worship Initiative

On June 13, the Attorney General announced the Place to Worship Initiative, focusing on protecting the ability of houses of worship and other religious institutions to build, expand, buy, or rent facilities—as provided by the land use provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA).

RLUIPA, enacted by Congress in 2000, protects religious institutions from unduly burdensome or discriminatory land use regulations. Specifically, RLUIPA bars land use regulations that impose a substantial burden on religious exercise without a compelling justification, requires governments to treat houses of worship as favorably as nonreligious assemblies, and bars governments from discriminating among religions and from totally or unreasonably excluding houses of worship. In addition to providing for private lawsuits, RLUIPA gave enforcement authority to the Department of Justice.

The Place to Worship Initiative includes a number of measures designed to enhance the Department’s enforcement of RLUIPA and increase public awareness of this important law:

• Public educational materials: The Department has created informational materials, including a four-page color brochure on RLUIPA and a new Questions and Answers on RLUIPA document.
• Website with complaint portal to facilitate individuals and representatives of religious institutions to bring RLUIPA matters to the attention of the Department.
• New partnerships between the Civil Rights Division and United States Attorney’s Offices on RLUIPA, including the creation of special trainings and training materials on RLUIPA to enhance the capacity of the Department to investigate and bring RLUIPA cases.
• Community outreach events on RLUIPA in conjunction with U.S. Attorney’s Offices around the country.

When announcing the initiative, Attorney General Jeff Session remarked “The Constitution doesn't just protect freedom to worship in private—it protects the public exercise of religious belief, including where people worship together.” He added: “By raising awareness about our legal rights, the Place to Worship Initiative will help us bring more civil rights cases, win more cases, and prevent discrimination from happening in the first place." He also discussed the initiative in a speech the same day to the Union of Orthodox Jewish Congregations of America.

In addition to the initiative website, further information is available on the RLUIPA page of the Civil Rights Division’s Housing and Civil Enforcement Section. You may also contact the Housing and Civil Enforcement Section on RLUIPA matters by writing to rluipa.complaints@usdoj.gov.

Department Files Suit Over Zoning Denial of New Jersey Synagogue Construction

On June 13, the Department filed suit alleging that the Borough of Woodcliff Lake, New Jersey violated RLUIPA when it denied zoning approval to allow the Valley Chabad, an Orthodox Jewish congregation, to build a new place of worship on its property.

The complaint, filed in U.S. District Court in New Jersey, alleges that Woodcliff Lake’s denial of a variance imposed a substantial burden on Valley Chabad’s religious exercise. The complaint alleges that between 2005 and 2013, Valley Chabad sought to purchase three different sites in the borough to construct a place of worship, and that the borough took steps to thwart each attempt. The complaint also alleges that after nine years of searching for a suitable location, in 2014 the Valley Chabad sought to construct a larger place of worship at its current location in the borough. After two years, 18 hearings, and substantial revisions by Valley Chabad to address size and transportation concerns, the zoning board denied the application. The zoning board cited aesthetic concerns, the adverse impact on the neighborhood’s character, and safety issues all of which, the United States alleges, were undermined by the testimony of the zoning board’s own experts.

“The right to use land for religious exercise, free from unduly burdensome or discriminatory restrictions, is a fundamental constitutional right,” said Acting Assistant Attorney General John Gore. “The Department of Justice remains vigilant in its enforcement of federal civil rights laws protecting religious groups’ ability to establish places of worship without improper interference.”

“Federal law protects all religious communities from discrimination and unlawful barriers when they seek to build a place of worship,” said U.S. Attorney Craig Carpenito. “According to the complaint, the Borough of Woodcliff Lake imposed a substantial burden on Valley Chabad’s religious exercise by repeatedly meddling in its attempts to purchase property in the area and citing subjective and misleading reasons to justify denying its zoning application.”

More information about RLUIPA and DOJ’s new Place to Worship Initiative is available at www.justice.gov/crt/rluipa and at www.justice.gov/crt/placetoworship.

Supreme Court Rules that Colorado Civil Rights Commission Violated Free Exercise Rights of Christian Baker Who Refused to Bake Cake for Same-Sex Wedding

On June 4, the United States Supreme Court ruled in Masterpiece Cakeshop v. Colorado Civil Rights Commission that the Commission violated the Free Exercise Rights of baker Jack Phillips, who had refused to bake a wedding cake for a same-sex wedding. The United States had filed a friend-of-the-court brief arguing for reversal on a separate ground raised by the baker—that the Commission violated his free speech rights. The Court did not reach that issue.

The Court ruled that the comments of the Colorado Civil Rights Commissioners, who were reviewing whether Phillips had violated state public accommodations law when he declined to make the cake on grounds of religious conscience, tended to show a “lack of due consideration for Phillips free exercise rights and the dilemma he faced.” Finding that “the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phillip’s religious belief,” the Court concluded that “Phillips’ religious objection was not considered with the neutrality that the Free Exercise requires.”

In a speech on religious liberty on June 13, Attorney General Jeff Sessions remarked on the case, saying:

Department Files Brief Supporting Church’s Expansion Efforts

On May 24, the Department filed a Statement of Interest in support of a Kansas Catholic church’s efforts to convert a dilapidated house next to its church building for youth and adult education and meetings. The Statement of Interest, filed with the U.S. District Court in Kansas, argues that St. Rose Philippine Duchesne Catholic Church had presented sufficient evidence to go to trial on its claim that the city’s denial of the project imposed a “substantial burden” on its religious exercise in violation of RLUIPA.

St. Rose is a Roman Catholic church that has experienced growth and now has inadequate space for the youth activities, adult and youth education classes, and meeting space that it believes are necessary to fulfill its religious mission. It purchased a run-down house adjacent to its property, and sought a permit to convert the house into a “Meeting House” to accommodate classrooms and meeting space. The property is in a zone that permits houses of worship as-of-right, subject to development standards such as density, parking, and landscaping and screening requirements. While the church presented evidence that it complied with all requirements, the city denied the permit, citing concerns about noise and traffic. St. Rose filed suit under RLUIPA.

The United States’ Statement of Interest contends that St. Rose has presented ample evidence that the city’s denial of the permit has imposed a substantial burden on its religious exercise, and that the city has not demonstrated a compelling interest for the permit denial, nor that denying the permit was the least restrictive means to achieve such objective.

The United States’ argument describes the standard courts use to determine if an action imposed a “substantial burden” on religious exercise under RLUIPA. Courts “evaluate the actual, practical impact of the restriction on the institution’s religious exercise, along with other factors that help evaluate the degree to which those impacts are fairly attributable to the government restriction, which include whether the institution had a reasonable expectation of obtaining the approval, whether there are reasonable alternatives available to the institution, and whether pursuing alternatives would cause undue delay, uncertainty, and expense for the institution.”

Here, the United States argues, St. Rose offered evidence that it is in great need of space for its religious activities. Additionally, St. Rose has shown that the church had a reasonable expectation when it purchased the property that it could use if for a religious purpose, that it lacks feasible alternatives, and that it suffers continued hardship from the denial.

The United States also argues that the city has not demonstrated that it is has a compelling governmental interest pursued in the manner that is least restrictive on religious exercise, noting that “[w]hile traffic and parking can certainly implicate pedestrian safety issues, mere generalized concerns about traffic and parking are insufficient to prove a compelling governmental interest.” The United States contends, moreover, that the church had presented evidence that it had adequate parking and that noise and congestion concerns were unfounded.

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

Three Men Convicted for Plotting to Bomb Somali Muslim Apartment and Mosque in Kansas

On April 18, three Kansas men were convicted of conspiring to blow up an apartment complex and attached mosque in Garden City, Kansas and kill its Somali Muslim residents. They were convicted of using a weapon of mass destruction and violating the housing rights of the residents after a four-week federal jury trial.

Evidence presented at trial revealed that the defendants plotted, over the course of several months, to attack the apartment complex, including making and testing explosives. During an eight-month-long FBI investigation, a confidential source, whom the government credited for thwarting the attack and saving the lives of innocent victims, recorded numerous conversations during which the defendants discussed and refined their plan. As the plan solidified, the defendants discussed obtaining four vehicles, filling them with explosives and parking them at the four corners of the apartment complex to create an explosion that would be sure to level the building and kill its occupants.

During the course of the investigation, one defendant also met with an undercover FBI agent posing as a black market arms dealer, in an effort to obtain a bomb. During one of the meetings, he took the agent to see the apartment building that the defendants were planning to destroy.

At their sentencing hearing on June 27, the defendants will face up to life in federal prison.

On the day the verdict was announced, Attorney General Jeff Sessions remarked: “The Department of Justice is resolute every day in fighting terrorist threats to the United States, both foreign and domestic. The defendants in this case acted with clear premeditation in an attempt to kill people on the basis of their religion and national origin. That's not just illegal—it's immoral and unacceptable, and we’re not going to stand for it.”

The Department is also currently preparing for trial in early July of a man accused of arson of a Texas mosque, and recently obtained a guilty plea in the case of man who made phone calls to an Augusta, Georgia mosque threatening to blow up the mosque and kills its congregants. At a speech at a Capitol Hill event on May 15, Acting Assistant Attorney General Gore remarked:

The freedom of religion is the first freedom that the Founding Fathers enshrined in the First Amendment of the Constitution. So when criminals target victims because of their religion, they are targeting the bedrock of our Bill of Rights.

My message to you today is simple: in the fight against hate crimes, your Department of Justice stands with you. Combatting hate crime is, and will continue to be, one of the Department’s top priorities.

More information about the Civil Rights Division’s hate crimes prosecutions is available on the Division’s Hate Crime information page.

RLUIPA Investigation Closed after Corrections Department Modifies Policy Regarding Native American Religious Ceremonies

In March, the Civil Rights Division closed its investigation of the New Mexico Corrections Department (“NMCD”) under the institutionalized persons provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA), after the NMCD modified its policies to allow prisoners who hold a sincere belief in Native American religion to participate in Native American religious ceremonies.

The Civil Rights Division had opened its investigation in October 2015 into the matter of a New Mexico prisoner denied access to Native American religious services, despite his assertions that he was a sincere practitioner of Native American Spirituality. During the investigation, the Civil Rights Division reviewed policies requiring prisoners wishing to participate in Native American religious ceremonies to possess documentation of Native American heritage, such as a tribal census or enrollment number. Under RLUIPA and relevant case law, prisoners are only required to show that they hold a “sincere belief” in that religion. RLUIPA bars state governments from imposing a substantial burden on a prisoner’s religious exercise unless the burden is the least restrictive means of furthering a compelling government interest, such as the security of other prisoners.

NMCD worked closely with the Civil Rights Division to revise its religious practices policies. Their current policies now closely track the statutory language of RLUIPA and make it clear that, so long as a prisoner has a sincere belief in a Native American religion, he or she should be able to participate in relevant religious practices. In light of these new policies, the Civil Rights Division closed its investigation.

More information on the Civil Rights Division’s enforcement of the institutionalized persons section of RLUIPA is available on the Special Litigation Section’s RLUIPA page.