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Religious Freedom in Focus is a periodic email update about the Civil Rights Division's religious liberty and religious discrimination cases. In 2007, the Department of Justice launched a new initiative, The First Freedom Project, to highlight its work protecting religious freedom. 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 and back issues of this newsletter may be found at www.FirstFreedom.gov. You may also contact the Special Counsel for Religious Discrimination, Eric W. Treene, at (202) 353-8622.
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IN THIS ISSUE:
Former State Department Employee Receives Prison Sentence for Threats Against Arab-American Institute Employees
On July 11, a former foreign service officer with the U.S. Department of State was sentenced in federal court in the District of Columbia to 12 months in prison for sending email and voice mail threats to employees of the Arab American Institute (AAI). W. Patrick Syring had pleaded guilty on June 12 to federal civil rights charges and the interstate transmission of threatening communications.
Syring admitted that from approximately July 17 to 29, 2006, he sent a series of four threatening emails and three voice mail messages to six employees of AAI. AAI is a nonprofit organization that promotes Arab-American participation in the electoral process and public policy issues. Syring admitted that he intended to intimidate the victims and interfere with their employment because of their race as Arab-Americans and their national origin as Lebanese-Americans.
In addition to the prison sentence, Syring also was sentenced to three years of post-release supervision, 100 hours of community service, and ordered to pay a $10,000 fine. The case was investigated by special agents of the Federal Bureau of Investigation, and was prosecuted by the U.S. Attorney’s Office for the District of Washington, D.C. and the Civil Rights Division.
Since 9/11, the Justice Department has prosecuted 42 defendants for federal bias crimes against Muslims, Arabs, Sikhs, and South Asians, with 35 convictions to date. The Department has also assisted in more than 160 state and local prosecutions involving bias crimes against these groups. More information is available on the website of the Civil Rights Division's Initiative to Combat Post-9/11 Discriminatory Backlash.
State May Not Discriminate Against Religious Universities in Scholarship Program, Appeals Court Rules
On July 23, the United States Court of Appeals for the Tenth Circuit ruled that Colorado’s exclusion of students attending a nondenominational Christian university from state scholarship and aid programs violated the U.S. Constitution. The court held that denying students scholarships because they choose to attend schools that the state deems to be “pervasively sectarian” violates the Constitution. The United States had filed a friend-of-the-court brief in support of the position adopted by the court in the case, Colorado Christian University v. Weaver.
Colorado provides various scholarships and other aid to students attending private colleges and universities, but does not permit any aid to students attending schools that are “pervasively sectarian,” regardless of whether the student majors in a religious subject or subjects such as physics, business or engineering. To determine whether a school is “pervasively sectarian,” state officials examine criteria such as whether students and faculty are of “one religious persuasion,” whether the governing board reflects a particular religion, and whether there are required courses in religion or theology “that tend to indoctrinate or proselytize.” Under this policy, students have been permitted to use Colorado scholarships at a Methodist university and a Jesuit Roman Catholic university, but were forbidden to use scholarships at a nondenominational evangelical Protestant university and a Buddhist university that the Colorado Commission on Higher Education found to be too religious.
Colorado Christian University, one of the two schools determined by the State to be “pervasively sectarian,” filed suit, contending that barring its students from scholarship aid constituted discriminated in violation of the First and Fourteenth Amendments. The district court disagreed and granted summary judgment in favor of the State.
On appeal to the Tenth Circuit, the United States filed a friend-of-the-court brief, arguing that Colorado was unconstitutionally discriminating against students who attended schools deemed too religious by the State. In its brief, the United States stressed that the Supreme Court in Mitchell v. Helms (2000), had rejected the “pervasively sectarian” doctrine, that is, the concept that certain institutions were so religious that any aid flowing to them, however indirectly or however secular in nature, automatically became constitutionally tainted. The United States brief argued, citing the plurality opinion in Mitchell, that “nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of the Court bar it.”
The Court of Appeals agreed with the University and the United States and reversed the trial court. The court held that the “now-discarded doctrine that ‘pervasively sectarian’ institutions could not receive otherwise-available education funding” was an invalid basis for discrimination against certain religious schools. The court followed the Mitchell plurality’s view that “the application of the ‘pervasively sectarian’ factor collides with [Supreme Court] decisions that have prohibited governments from discriminating in the distribution of public benefits based upon religious status or sincerity.”
Additionally, the Court of Appeals held that the Colorado scholarship program’s policies violated the “well-established” principle that the government “should refrain from trolling through a person’s or institution’s religious beliefs.” In barring scholarships from being used at “pervasively sectarian” institutions, the court observed, the Colorado Commission on Higher Education engaged in intrusive and subjective inquiries such as reviewing syllabi in courses of Christian literature to determine if they proselytized or indoctrinated, deciding that faculty of multiple of Christian denominations represented a single religious persuasion rather than a multiplicity of religious persuasions, and other similarly searching inquiries of religious matters. This violated the Constitution, the court held. The court concluded that “if the State wishes to choose among otherwise eligible institutions, it must employ neutral, objective criteria rather than criteria that involve the evaluation of contested religious questions and practices.”
Revised Decision Issued in San Diego Boy Scout Case; Second Rehearing Petition Filed
On June 11, a panel of the United States Court of Appeals for the Ninth Circuit issued a revised decision certifying questions to the California Supreme Court in Barnes-Wallace v. Boy Scouts of America. The case involves an appeal by the Boy Scouts of a 2003 trial court ruling that San Diego’s leasing of parkland to the Boy Scouts constituted impermissible aid to religion in violation of the United States and California Constitutions. The Ninth Circuit panel had issued a similar decision certifying questions to the California Supreme Court in December 2006, in response to which the Boy Scouts filed a petition for rehearing, resulting in the revised decision. However, the Boy Scouts on June 25 filed another petition for review by the entire Ninth Circuit, and the court on July 9 ordered defendants to respond. The United States filed a friend-of-the-court brief in the appeal and participated in oral arguments.
The original action was initiated in 2000 by two families, alleging that the Boy Scouts of America is a religious organization, and that therefore San Diego’s leases of parkland to the Boy Scouts in order to operate a campground and an aquatic center violated the federal Establishment Clause and similar provisions in the California Constitution. A federal trial court agreed, and invalidated the leases.
As set forth in Volume 16 and Volume 9 of Religious Freedom in Focus, the United States’s friend-of-the-court brief argued that while the Boy Scout Oath includes a duty to God, and while the Scout Law includes reverence as a virtue, the Boy Scouts of America is strictly nonsectarian and has no creed. Rather, it is "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 United States argued further that even if the Scouts were assumed to be a “religion,” the leases were arms-length, value-for-value transactions involving secular activities, and were similar to leases the city had entered with more than 100 other community groups.
On December 18, 2006, a panel of the Ninth Circuit ruled that it did not need to decide the federal Establishment Clause questions if the case could be resolved solely on state constitutional grounds, and therefore certified three questions to the California Supreme Court.
The Boy Scouts have challenged the plaintiffs’ legal standing to bring the case, that is, that plaintiffs have shown insufficient personal harm from the leases to have a legal right to bring suit. As reported in Volume 22, the Boy Scouts filed a petition for rehearing of the Ninth Circuit certification order on January 3, 2007. The Boy Scouts argued that the court was incorrect in finding standing to sue based on plaintiffs’ lack of equal access to the leased property. Rather, the Boy Scouts argued, the families had the same access to the property as every other member of the public. In its June 11 opinion, the Ninth Circuit concluded that its initial decision was incorrect. But it found standing on a different basis: plaintiffs’ “personal emotional harm” and “loss of recreational enjoyment” resulting from the Boy Scouts’ use and control of the land. The Court, finding standing on this basis, again issued an order certifying questions to the California Supreme Court. The Boy Scouts assert in their new petition that this basis for standing also is flawed.
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