Skip to main content

RELIGIOUS FREEDOM IN FOCUS, VOLUME 78 - February/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:

 

Federal Court Agrees That University’s De-registering of Christian Student Group Violated the First Amendment

On February 6, 2019, the U.S. District Court for the District of Iowa ruled that the University of Iowa violated the First Amendment rights of a Christian student group when the University de-registered the group for requiring its student leaders to sign a statement of faith that included religious beliefs about sexuality and sexual identity.  The United States had filed a Statement of Interest on December 21, 2018, arguing that the University violated the First Amendment rights of Business Leaders in Christ (BLinC) to free association, free speech, and the free exercise of religion.  The court agreed that the University’s actions violated all three of these constitutional provisions and ordered the University to allow the student group to adhere to its religious beliefs in selecting leaders.

BLinC is a student group at the University of Iowa Tippie School of Business whose purpose is to help “seekers of Christ” learn “how to continually keep Christ first in the fast-paced business world” through Bible study, fellowship, and networking with other Christian students and business leaders.  University policies prohibit student groups from discriminating on a wide range of bases, including sexual orientation and gender identity.  BLinC puts no limitations on general membership, but requires leaders to sign and abide by its statement of faith, including a belief that sexual relations should only occur between a husband and wife. 

The University acknowledged that BLinC did not discriminate against anyone who wanted to sign and abide by the statement of faith, regardless of sexual orientation or gender identity.  However, the University claimed that BLinC’s statement of faith makes LGBT persons unwelcome and therefore excludes them.  The University freely admits that it allows registered student organizations to express viewpoints on sexual relationships and gender identity that differ from BLinC’s viewpoint.  The University also permitted various student groups to depart from the University’s nondiscrimination policy in furtherance of their particular purposes, such as all-female groups or groups designed to support particular ethnic groups.

Due to the University’s disagreement with BLinC’s statement of faith, the University de-registered BLinC, stripping it of the right to participate in the student activity fair, use the university website, or use university space for meetings and events on an equal basis with other student groups.  BLinC filed suit in December 2017 and moved for Summary Judgment in October 2018.

The District Court agreed with BLinC and the United States and ruled the University’s de-registering of BLinC unconstitutional.  First, the court held that the University’s actions were viewpoint discrimination in violation of BLinC’s right of free speech.  The court held that the University discriminated based on viewpoint when it allowed a student religious group whose beliefs includes support of homosexuality to limit leaders to those who share its views, but did not treat BLinC the same.  Likewise, the court held it to be viewpoint discrimination for the University to allow various groups to take sex or ethnicity into consideration when, in the University’s view, this supported the University’s “educational and social purposes.” 

Second, the court held that the University’s actions violated the group’s First Amendment right of expressive association, since “who speaks on the group’s behalf colors what concept is conveyed.”  Finally, the court held that providing exceptions to the University nondiscrimination policy for various secular reasons like creating spaces for minority students, but not providing exceptions for religious reasons, violated the Free Exercise Clause, since the University could point to no compelling reason for the differential treatment.

On the day the United States filed its Statement of Interest, Assistant Attorney General for the Civil Rights Division Eric Dreiband stated: “The First Amendment freedoms of association, speech, and religion prohibit public colleges and universities from suppressing the expression and beliefs of student groups that officials disagree with.”  He added:  “The University of Iowa in this case de-registered Business Leaders in Christ because university officials did not like its message.  That is forbidden by the Constitution.”

 

Court of Appeals Rules That Baltimore Church’s RLUIPA Claim May Proceed

On February 6, 2019, the U.S. Court of Appeals for the Fourth Circuit reversed a federal trial court and held that a small African Christian church’s suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA) may proceed.  The United States filed an amicus brief in the Court of Appeals in the case, Jesus Christ is the Answer Ministries, Inc. v. Baltimore County, Maryland last July. Principal Deputy Assistant Attorney General John M. Gore represented the United States at oral arguments in October, contending that the church had adequately alleged that the county discriminated against it and had imposed a substantial burden on its religious exercise without proper justification.

The case involves the efforts of Jesus Christ is the Answer Ministries, a small congregation with many members who are African immigrants, to build a church on a 1.2-acre lot in Baltimore County.  The property’s zoning allows churches as of right, subject to setback and buffer requirements which a church must meet “to the extent possible.”  The church initially submitted a plan that fell far short of meeting the setback and buffer requirements, but submitted a second plan which largely met them.  The church plan was vigorously opposed by neighbors, and the county denied the church’s second application.

The church filed suit under RLUIPA, which protects places of worship and other religious uses of property from discriminatory or unjustifiably burdensome applications of land-use regulations.  The suit alleged that neighbors opposing the plan had made racially and ethnically charged statements about the worship style of the congregation including references to “dancing and hollering” as if they were “home back in Africa.”  The suit also alleged that the church had made reasonable proposals and modifications to its plan and that their religious exercise was “substantially burdened” in violation of RLUIPA by the denial.  A federal district court ruled that the claims were insufficient to make out a RLUIPA claim and dismissed the complaint.

The court of appeals agreed with the United States that both of the church’s claims should be permitted to proceed.  

On the discrimination claim, the court agreed with the United States that while the statements of neighbors at a public hearing are not necessarily attributable to the government decision maker, these allegations, coupled with the allegation that the county was in fact influenced by these neighbors, is sufficient to state a claim of discrimination under RLUIPA.  The court also noted that while RLUIPA prohibits only religious discrimination and not ethnic or racial discrimination, the statements of the neighbors disparaging the congregants included both racial and religious elements, and the court would not try to disaggregate these on a motion to dismiss. 

On the substantial burden claim, the court agreed with the United States that a court should evaluate both the actual ways the zoning action imposes a burden on the church (e.g., here completely foreclosing the property’s use as a church), and the degree to which the local government is causing that burden.  The United States argued that the plaintiffs had a reasonable expectation when they bought the property that they could use it for a church, that they had demonstrated its willingness to make modifications to address county concerns, and that they were treated arbitrarily by the county. 

The court agreed, finding that the complete foreclosure of the use of the property resulting from the denial, the reasonable expectations of the church, and its willingness to modify its original plans, stated a claim of a substantial burden on religious exercise under RLUIPA.

In 2018, the Department launched the Place to Worship Initiative to increase awareness of RLUIPA’s requirements among local officials and communities and to increase enforcement. More information is available on the Place to Worship Initiative homepage and the website of the DOJ Civil Rights Division’s Housing and Civil Enforcement Section, which enforces RLUIPA. 

 

Long Beach Changes Zoning Code to Equalize Treatment of Places of Worship

On February 5, 2019, the Department of Justice closed its investigation of the City of Long Beach, California, under the Religious Land Use and Institutionalized Persons Act (RLUIPA), after the city modified its zoning code to treat places of worship equally with nonreligious assemblies.  The Department opened an investigation in February 2017 of the city’s treatment of churches and other places of worship in its zoning code, after learning that the city had issued a notice to a church to cease operations at a dance studio in a commercial zone.

The zoning code prohibited places of worship in its commercial business districts, while permitting various nonreligious assemblies in the zones as of right, such as dance centers, restaurants with entertainment, daycare centers, fitness studios, and banquet rooms.  The city relied on this code provision to order the Well Christian Fellowship Church, which has approximately 70 members, to cease meeting on Sundays in a dance studio that had been in operation for more than 20 years.

Section 2(b)(1) of RLUIPA states that “no 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).

After the Department opened its investigation, the city initiated efforts to amend its zoning code regarding places of worship and ultimately amended its code to permit places of worship in its commercial business districts and equalize the treatment of places of worship and nonreligious assemblies.  In response to the zoning code changes, the Department closed its investigation.

More information about RLUIPA is available on the Place to Worship Initiative homepage. 

 

Update on Religious Hate Crimes

In January 2019, the Department of Justice obtained sentences and indictments in three different cases involving attacks or attempted attacks on places of worship:

  • On January 29, a federal grand jury returned a three-count indictment charging an Ohio man with attempting to provide material support to ISIS, attempting to commit a hate crime, and possessing firearms in furtherance of a crime a violence, stemming from an alleged plan to attack a synagogue in the Toledo area.  An indictment is only a charge, and a defendant is presumed innocent until proven guilty.  Further information about the case is available here. 
  • Also on January 29, a federal grand jury charged a Pennsylvania man with additional federal hate crimes and firearms offenses in connection with the shootings at the Tree of Life Synagogue in Pittsburgh last October 2018.  An indictment is only a charge, and a defendant is presumed innocent until proven guilty.  Further information about the case is available here.
  • On January 25, the Department obtained sentences of 25, 26 and 30 years imprisonment for three Kansas men for conspiring to bomb an apartment complex and attached mosque in Garden City.  The men were convicted on April 18, 2018 of a hate crime conspiracy charge and a charge of conspiracy to use a weapon of mass destruction.  More information about the case and sentencing is available here.

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 also has developed a Safeguarding Houses of Worship app to help houses of worship assess their vulnerabilities and develop security plans.

The Department is also providing technical assistance to law enforcement agencies on hate crimes through the DOJ COPS Office Collaborative Reform Initiative for Technical Assistance Center, and recently announced funding to the University of New Hampshire to conduct a national survey of hate crime incidents and victimization, among other initiatives. 

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. FEMA also maintains a useful page on Resources to Protect Your House of Worship.

 

Court Agrees With United States that Mosque’s RLUIPA Claim Should Proceed

On December 12, 2018, the U.S. District Court for the District of New Jersey ruled that a Muslim congregation alleging that it was improperly denied septic permits and a certificate of occupancy to build a mosque could bring a claim under RLUIPA.  The court in the case, Garden State Islamic Center v. City of Vineland, agreed with the United States’ position in a Statement of Interest submitted in September 2017 that the city’s actions qualified as “land use regulation” under RLUIPA.

RLUIPA prohibits a government from imposing or implementing  a “land use regulation” in a manner that discriminates against religious uses, or which imposes substantial burdens on religious land uses without a compelling government justification pursued through the least restrictive means.  RLUIPA specifies that land use regulation means “zoning or landmarking” laws.

The Garden State Islamic Center received city approval to build a mosque in 2012.  When the Center sought to build the second phase of the mosque in 2016, the city denied it the necessary septic permits, claiming that the size of the septic system would now require state environmental review, and denied the mosque a final certificate of occupancy.  The mosque brought suit under RLUIPA, claiming that the denials were discriminatory and imposed a substantial burden on its religious exercise.

The city asked the court to dismiss the case, saying that the septic permits are not “zoning laws” and thus denying such permits cannot violate RLUIPA.  The United States contended in its Statement of Interest that the city’s actions triggered RLUIPA both because the septic regulations are incorporated into the city zoning code, and the septic permit denials constituted the means by which the city made its decision to deny the certificate of occupancy, the denial of which is plainly a zoning action. 

The court agreed. The court noted that the mosque was alleging that “the City’s tactics associated with the septic system process” evidenced an effort to deny the approval of the overall project.  The court concluded that “because the sewage regulation at issue is incorporated by reference into the City’s Land Use Ordinance, it qualifies as a zoning law.  To hold otherwise would put form over function.” 

In a similar case brought by the United States involving a proposed mosque in Culpeper, Virginia, a federal court in Virginia held in March 2017 that the sewage restrictions applied in that case constituted a land use regulation under RLUIPA because these regulations were cited by reference in the zoning code and were used in that case to thwart the mosque’s zoning application.

More information about RLUIPA is available on the Place to Worship Initiative homepage.

 

Updated June 7, 2023