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RELIGIOUS FREEDOM IN FOCUS, VOLUME 82 - September/2019

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 Asks Indiana Court to Dismiss Former Teacher’s Suit Against Archdiocese

The Justice Department on September 27 filed a Statement of Interest in an Indiana state court, explaining that the First Amendment bars a lawsuit brought against the Roman Catholic Archdiocese of Indianapolis by a former Catholic school teacher who was fired by his former employer because he was in a same-sex marriage in contradiction to Catholic teaching on marriage.

 “The First Amendment to the United States Constitution protects the right of religious institutions and people to decide what their beliefs are, to teach their faith, and to associate with others who share their faith,” Assistant Attorney General Eric Dreiband for the Civil Rights Division said on the day the Statement of Interest was filed.  United States Attorney Josh Minkler stated:  “If the First Amendment’s Religion Clauses stand for anything, it is that secular courts cannot entangle themselves in questions of religious law,” said.   

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 in Marion Superior Court in Marion County, Indiana, claiming that the Archdiocese’s directive to Cathedral tortiously interfered with his employment and his contractual relationship with the school.  The school was not named in the lawsuit.

The United States’ Statement of Interest explains that the First Amendment bars this lawsuit in at least two ways.  Initially, the First Amendment precludes courts from impairing the constitutional rights of expressive associations, such as religious institutions.  This lawsuit, however, seeks to penalize the Archdiocese for determining that schools within its diocesan boundaries cannot employ teachers in public, same-sex marriages, and simultaneously identify as Catholic.  As the Statement of Interest explains, “[t]he Supreme Court has made plain that the First Amendment protects the Archdiocese’s right to this form of expressive association, and that right cannot be frustrated by state actors, such as the Court.”  The Archdiocese has the right to determine what its beliefs are who may represent these beliefs, the brief contends.

The Statement of Interest also makes clear that secular courts cannot second-guess religious institutions’ interpretation and application of religious law.  Quoting a decision from the Supreme Court of the United States, the Statement of Interest explains that “[t]he First Amendment forbids secular courts from wading into such ‘quintessentially religious controversies.’”  Instead, the Statement of Interest continues, “the legitimacy of the Archdiocese’s decision as a matter of Catholic law” is committed exclusively “to the judgment of the Archdiocese.”   

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.

 

White House Symposium Addresses Security Issues for Places of Worship

On September 25, the White House and the Department of Homeland Security held a Faith-Based Community Safety and Security Symposium at the White House, bringing together government officials and diverse faith-based community representatives to discuss best practices on safety and security of places of worship and other facilities. The symposium addressed development of emergency response plans for places of worship, facility hardening and preparedness best practices, federal resources available to faith communities, and preventing and responding to particular threats such as active shooters, arson, and natural disasters.

Combating attacks on places of worship and other hate crimes are a priority of the Department of Justice. In October 2018, the Department launched a new 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.

 

DOJ Files Supreme Court Brief in Montana Scholarship Case

On September 19, the Department of Justice filed a Brief as Amicus Curiae with the United States Supreme Court in Espinoza v. Montana Department of Revenue, a case to be heard this term that will examine whether Montana’s exclusion of religious schools from student-aid programs violates the United States Constitution.

The case, Espinoza v. Montana Department of Revenue, involves children attending a Christian school who were denied participation in the Montana Tax Credit Scholarship Program after the Montana Department of Revenue issued a rule declaring ineligible students attending schools owned or controlled “by a church, religious sect, or denomination.”  Under the scholarship program, Montana taxpayers could contribute up to $150 to privately run scholarship organizations and receive a tax credit. The scholarship organizations then provided scholarships for families attending non-public elementary and secondary schools in the state.

Parents filed suit in December 2015 after their children were denied participation in the scholarship program because they attend a religious school. While a state trial court ruled in favor of the parents in May 2017, the state appealed to the Supreme Court of Montana. The Civil Rights Division filed an amicus brief on January 18, 2018 in the Supreme Court of Montana supporting the parents’ position. However, the Supreme Court of Montana, in a decision issued December 12, 2018, ruled that the Montana constitution’s “no-aid” provision, barring any state aid from going to religious schools, rendered the program invalid. The Supreme Court of the United States granted review on June 28, 2019.

The United States’ brief notes that the Montana no-aid provision and similar provisions in other states are often referred to as “Blaine Amendments,” which many states adopted in the late 19th century after an effort to pass a similar measure at the federal level, championed by Congressman James Blaine, failed to pass. The brief notes that these proposals arose “during an era of widespread hostility to Catholicism in general and Catholic schools in particular.”  

The United States’ brief argues that the Montana constitution’s “no-aid rule” violates the “elementary rule” that “[t]he Constitution forbids imposing special disabilities on religious adherents on the basis of their religious status.”  The brief notes that the Framers of the Bill of Rights were particularly concerned with the legal “burdens and disabilities” that England placed on religious dissenters, denying them equal rights to serve as legal guardians or hold office, and subjecting them to other “civil incapacitations.” Such penalties were prohibited in the United States by the Free Exercise Clause of the First Amendment. As the Supreme Court reaffirmed in Trinity Lutheran v. Comer (2017), the Free Exercise Clause bars “expressly discriminat[ing] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.” The policy challenged in Trinity Lutheran was based on a Missouri constitutional provision much like the Montana no-aid provision in this case.

The United States’ brief contends that, like the Missouri rule struck down in Trinity Lutheran, the Montana no-aid provision on its face discriminates based on religious status. The Montana no-aid provision “broadly and strictly” bars any aid to religious schools, and “thus incapacitates a school from receiving public funds simply because of what it is—a sectarian school, or school controlled by a ‘church, sect, or denomination.’” This discrimination undermines the three central purposes of the Free Exercise Clause:  it undermines religious liberty by pressuring parents to forego religious education in order to receive a public benefit; it undermines equality by treating people differently based on their religion; and it “foments religious division by demonstrating an ‘aggressively hostile’ attitude toward religion.”

The brief concludes that, as with Trinity Lutheran, the Montana Blaine Amendment’s discrimination against religious persons cannot be justified by a desire to impose greater distance between church and state than required by the Federal Establishment Clause, citing a long line of Supreme Court cases leading up to Trinity Lutheran in which the Supreme Court rejected such grounds for discrimination.

The date for oral argument before the Supreme Court has not been set.

 

Justice Department Files Suit Alleging RLUIPA Violation in Denial of Islamic Center

The Justice Department on September 19 filed a lawsuit against the City of Troy, Michigan, alleging that the City violated the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) by treating places of worship worse than equivalent nonreligious assemblies in its zoning code and denying zoning approval to a Muslim group seeking to establish an Islamic Center for worship and other community activities.

The complaint, filed in the Eastern District of Michigan, alleges that in 2018 the City of Troy denied zoning approval to Adam Community Center, an organization of Muslims who live and work in Troy, to operate a place of worship and community center.  In 2018, after a nine-year search for a permanent location, the Center acquired a building in one of the City’s commercial districts to use as an Islamic center.  The City’s zoning laws would allow a nonreligious place of assembly, such as a theater or banquet hall, to use the same building without further approval. But because of zoning restrictions on places of worship, the Center had to overcome an additional hurdle and seek City approval to use the building.

On June 19, 2018, the City’s zoning board denied the Center’s application. The complaint alleges that the City’s denial and its unequal treatment of places of worship in the City compared to nonreligious uses violate RLUIPA Section 2(b)(1).  This section states that “[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” This provision, according to lead sponsors Senators Edward Kennedy and Orrin Hatch, was included in RLUIPA because “[z]oning codes frequently exclude churches in places where they permit theaters, meetings halls, and other places where large groups of people assemble for secular purposes. . . . Churches have been denied the right to meet in rented storefronts, in abandoned schools, in converted funeral homes, theaters and skating rinks—in all sorts of buildings that were permitted when they generated traffic for secular purposes.” (quoted in DOJ’s Report on Enforcement of RLUIPA), which requires religious assemblies to be treated at least as well as nonreligious assemblies. 

The suit also alleges that the City’s actions imposed a substantial burden on the Center’s religious exercise in violation of Section 2(a), which requires that laws imposing a substantial burden on religious exercise be supported by a compelling governmental interest pursued through the least restrictive means available. 

The suit seeks an order to permit the Center to locate in the building, and to impose changes to the zoning law to ensure that other religious assemblies in the City are treated equally with comparable nonreligious assemblies.

On the day the suit was filed, Assistant Attorney General Eric Dreiband of the Civil Rights Division remarked:  “Zoning laws that treat mosques, churches, synagogues, and other religious assemblies less favorably than nonreligious assemblies illegally restrict religious exercise in violation of the Religious Land Use and Institutionalized Persons Act.” He added that: “The Department of Justice is committed to ensuring that local governments do not discriminate against faith communities in violation of federal law.”

Matthew Schneider, United States Attorney for the Eastern District of Michigan, remarked:   “Troy is obligated to treat religious assemblies and institutions on equal terms with nonreligious assemblies and institutions. This complaint reflects our commitment to protect the religious liberties of all people in this district.”

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.

Individuals who believe they have been subjected to discrimination in land use or zoning decisions may contact the Civil Rights Division Housing and Civil Enforcement Section at (800) 896-7743, or through the complaint portal on the Place to Worship Initiative website. More information about RLUIPA, including questions and answers about the law and other documents, may be found at http://www.justice.gov/crt/about/hce/rluipaexplain.php.

 

Ohio Man Sentenced to 30 Months in Anti-Jewish Assault

On July 9, Izmir Koch, 34, of Huber Heights, Ohio, was sentenced to 30 months in prison for beating a man he believed to be Jewish outside of a Cincinnati restaurant. 

Koch was convicted after a trial on December 17, 2018, of one count of violating the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act (18 U.S.C. § 249), and one count of making a false statement to the FBI. 

On February 4, 2017, the Defendant and his companions were heard yelling “I want to kill all of the Jews” and “I want to stab the Jews” outside a Cincinnati restaurant. The victim represented to Koch that he was Jewish, after which Koch began punching and kicking him. A number of other people joined in the assault. The victim was left with a broken facial bone and bruised ribs. The victim was not in fact Jewish, but was with friends and family members who were. 

After the incident, Koch, accompanied by his attorney, spoke voluntarily with the FBI.  Koch falsely told the FBI that he was not involved in the assault and that he made no derogatory comments about Jews.

“Individuals should be able to live without fear of attack or intimidation based on their religious beliefs,” said Assistant Attorney General Eric Dreiband of the Civil Rights Division.  “Prosecuting hate crimes is a top priority for the Department of Justice and as this sentence today demonstrates, we will not back down from obtaining justice for victims of violence based on hate.”

For more information about the Department of Justice’s work to combat and prevent hate crimes, visit www.justice.gov/hatecrimes: a one-stop portal with links to Department of Justice hate crimes resources for law enforcement, media, researchers, victims, advocacy groups, and other organizations and individuals.

 

Updated June 7, 2023