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:

On June 21, the Civil Rights Division filed a lawsuit against Colorado City, Arizona and Hildale, Utah, whose populations are predominantly composed of members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), claiming that the two municipalities on the Arizona/Utah border engaged in a pattern or practice of religious discrimination against persons who were not members of the FLDS. The suit alleges that the municipalities, their joint police department, and the local utility providers under the municipalities' control, have allowed the FLDS Church to improperly influence the provision of police protection, utility services, and access to housing and public facilities, and that this improper influence has led to discriminatory treatment of non-FLDS residents.

The suit was brought against the City of Hildale, the Town of Colorado City, the Twin City Water Authority, and Twin City Power for discriminating based on religion in violation of the Fair Housing Act, the Violent Crime Control and Law Enforcement Act, 42 U.S.C. § 14141, and Title III of the Civil Rights Act of 1964. The suit alleges that the defendants have denied or unreasonably delayed providing water and electric service to non-FLDS residents and that the municipalities have refused to issue building permits and have prevented individuals from constructing or occupying existing housing because of the individuals' religious affiliation. The complaint further alleges that the Colorado City Marshal's Office, the municipalities' joint police department, has failed to provide policing services for non-FLDS residents, refused to cooperate with other law enforcement offices in investigating crimes against non-FLDS residents or crimes committed by FLDS residents, selectively enforced laws against non-FLDS residents, and used its authority to facilitate unlawful evictions of non-FLDS residents, among other unlawful conduct. The complaint also alleges that the Marshal's Office routinely uses its officers and authority to enforce the edicts and will of the FLDS.

"Religious freedom is a cherished principle of our democracy. City governments and their police departments may not favor one religious group over another and may not discriminate against residents because of their religious affiliation," said Thomas E. Perez, Assistant Attorney General for the Justice Department's Civil Rights Division, the day the suit was filed. "No individual in the United States should be targeted for discriminatory treatment by a town or its officials because of his or her religion."

The complaint seeks a court order prohibiting future discrimination by the defendants, monetary damages for those harmed by the defendants' actions, and a civil penalty. It is the first case ever brought by the Civil Rights Division under both the Fair Housing Act, which protects against discrimination in housing, and Section 14141, which authorizes the United States to file suit when a police department has engaged in a pattern or practice of violations of federal constitutional or statutory rights. The complaint alleges that the defendants engaged in a pattern or practice of violating the First, Fourth, and Fourteenth Amendments to the United States Constitution. This matter was investigated by attorneys from the Housing and Civil Enforcement Section and the Special Litigation Section of the Department of Justice's Civil Rights Division.

On June 21, a Texas man was indicted for telephoning a bomb threat to a mosque in Murfreesboro, Tennessee in September 2011. Javier Alan Correa, 24, of Corpus Christi, Texas, was indicted by a federal grand jury in Nashville and charged with violating the civil rights of members of the Islamic Center of Murfreesboro. The Islamic Center, which is building a new mosque in Rutherford County, has been the target of acts of arson and vandalism over the past two years which remain unsolved, and the subject of a lawsuit by county residents seeking to stop the new mosque.

Correa was charged in the Middle District of Tennessee with one count of intentionally obstructing by threat of force the free exercise of religious beliefs in violation of the Church Arson Prevention Act, and one count of using an instrument of interstate commerce to communicate a threat to destroy a building by means of an explosive device. The indictment was announced by Assistant Attorney General Thomas E. Perez for the Civil Rights Division, Jerry E. Martin, U.S. Attorney for the Middle District of Tennessee, and Aaron T. Ford, Special Agent-in-Charge of the Memphis Division of the FBI.

According to the indictment, on September 5, 2011, Correa called on a cellular phone from Corpus Christi to the Islamic Center of Murfreesboro and left a threatening, explicative-ridden voice message saying, among other things, "On September 11, 2011, there's going to be a bomb in the building."

On the day of the indictment, Jerry E. Martin, U.S. Attorney of the Middle District of Tennessee, stated: "The Department of Justice, the FBI and our law enforcement partners intend to protect the rights afforded under the Constitution to all individuals, including the most basic right to exercise freedom of religious beliefs." He continued: "The controversy and criminal activity surrounding the construction of this particular place of worship has impeded the ability of people to exercise that most basic right. We will continue to monitor the progress of construction and legal proceedings at the local level to insure these citizens are able to enjoy all basic liberties guaranteed under the Constitution."

An indictment is merely an accusation. All persons are presumed innocent unless and until proven guilty and have the right to a trial, at which, the government must bear the burden of proof beyond a reasonable doubt.

The Islamic Center of Murfreesboro has been the subject of a highly publicized lawsuit by county residents against the county, contending that the county improperly approved the mosque project, which is in a zone where churches and other places of worship are permitted as of right. In October 2010, as previously reported in Religious Freedom in Focus, the county residents argued that the mosque should not be permitted because Islam is not a religion but a political ideology. The United States filed a brief laying forth the long history of Congress, the Executive Branch, and the Supreme Court recognizing that Islam is a religion, and showing that Islam meets all of the legal tests for defining religion. In May 2011, a state court in Tennessee ruled that the claims that Islam was not a religion were indeed groundless. However, in May 2012, the court ruled that the county had not given proper notice of the meeting in which the mosque was approved. That ruling is under appeal.

On June 12, the Civil Rights Division filed a friend-of-the-court brief with the U.S. Court of Appeal for the Eleventh Circuit arguing that a federal trial court erred in granting summary judgment to a Georgia city in a mosque's suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The suit, Islamic Center of North Fulton v. City of Alpharetta, arose out of the city's denial of a permit for the Islamic Center to expand on a site it has occupied since 1998.

RLUIPA, enacted in 2000, contains a number of different provisions protecting churches, synagogues, mosques, temples, and other places of worship from discrimination and undue interference with religious exercise through application of zoning and landmarking laws. It also contains a section protecting the religious exercise of persons confined to institutions.

The Islamic Center of North Fulton currently worships in a 2,500 square foot mosque that it built after it acquired the property in 1998. Since then, its congregation has grown from 25 to approximately 600 members. It sought a permit in 2010 to build a 12,000 square foot mosque and a 1,910 square foot fellowship hall on the 4.2 acre site. The space was needed to have enough room for worship, facilities for ritual washing before prayer, spiritual counseling, a religious library, and youth activities. The Islamic Center identified several similarly sized church projects that the county has approved in recent years, and noted that it is comparable in size and neighborhood impact to two churches on the same road. After the County council denied the Islamic Center's application in May 2010, the Center filed a federal suit in the U.S. District Court for the Northern District of Georgia. On January 25, 2012, the court granted summary judgment for the County.

The United States' brief argues that the district court erred in the standard it used to evaluate the mosque's claim that the permit denial imposed a "substantial burden" on its religious exercise in violation of RLUIPA Section 2(a), as well as its claim that it was subject to religious discrimination in violation of RLUIPA Section 2(b)(2).

For the substantial burden claim, the trial court held that the Center had not demonstrated that its members were "forced or coerced into abandoning, modifying, or violating their religious beliefs." Surveying the case law in the Eleventh Circuit, the United States concludes that this was an inappropriate standard. Rather, in evaluating substantial burden, a court should examine "whether the denial of the permit, viewed against the totality of the circumstances, actually and substantially inhibits the Center's religious exercise, rather than merely inconveniencing it." The center alleged facts that could show this, and thus their claim should be permitted to go to trial.

The United States' brief also contends that the trial court erred in holding that to prove religious discrimination under RLUIPA Section 2(b)(2), the Islamic Center must show that another place of worship that is "prima facie identical in all relevant respects" was treated more favorably. The district court found that while the Center had pointed to churches and a synagogue that were similar, they were not identical. The United States' brief argues that this was an inappropriate standard to use. Rather, the court should have used the standard the Supreme Court laid out for evaluating whether facially neutral zoning actions are in fact the result of racial discrimination in Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977). Under Arlington Heights, courts perform "a sensitive inquiry into such circumstantial and direct evidence as may be available," such as substantial disparate impact, procedural and substantive departures from norms, and the administrative history of the decision, to determine if discrimination was in fact the motivating factor. The United States' brief argues that under Arlington Heights, the court below should have examined all of the surrounding factors to determine whether religion was the motivating factor of the County's decision to deny the Islamic Center's permit.

On the tenth anniversary of RLUIPA on September 22, 2010, the Department of Justice issued a Report on Enforcement of RLUIPA, along with a policy statement on the land use provisions of RLUIPA and a policy statement on the institutionalized person provisions, which include common questions and answers about this important law. Further information on the Civil Rights Division's RLUIPA enforcement work is available at the Housing and Civil Enforcement Section's RLUIPA page and the Special Litigation Section's RLUIPA page.

On May 30, the Civil Rights Division and the York City Transit Authority (NYCTA), filed a proposed settlement agreement in federal court in New York City resolving the Division's longstanding lawsuit over Muslim and Sikh transit workers wearing religious headcoverings on the job. Under the proposed settlement agreement, which must be approved by the court, the NYCTA will adopt a new policy that will allow employees in public contact positions such as bus drivers and subway operators to wear their religious headcoverings with their uniforms, and will implement a new religious accommodation policy to comply with Title VII of the Civil Rights Act of 1964.

The Justice Department's complaint, filed in September 2004, alleged that the NYCTA had not previously enforced its uniform headwear policies, but that in early 2002 the NYCTA began to selectively enforce these policies against Muslim and Sikh employees. Muslim and Sikh employees were required either to remove the religious headwear, cover it with a NYCTA cap, affix a NYCTA logo to it, or be transferred to positions without public contact.

Title VII prohibits discrimination based on race, color, sex, national origin, and religion. With regard to religion, Title VII further provides that an employer must make a reasonable accommodation of an employee's religious observances and practices unless doing so would be an undue hardship.

Under the terms of the proposed settlement agreement, the NYCTA must adopt a new headwear accommodation policy, which will allow employees to wear religious headcoverings of a color that matches their NYCTA uniform. Employees do not need to attach anything to the headwear, but instead must wear their i.d. badge on the uppermost right or left portion of their shirt or jacket, or around their neck. The proposed settlement agreement also requires the implementation of a new general religious accommodation policy, the provision of training to personnel, and the payment of $184,500 to eight current and former employees.

On the day the settlement was announced, Assistant Attorney General for the Civil Rights Division Thomas E. Perez stated: "This settlement agreement sends a clear message that the Department of Justice will not tolerate religious discrimination. I am pleased that the NYCTA has agreed to end its discriminatory practices that for years have forced employees to choose between practicing their religion and maintaining their jobs."

More information about the Civil Rights Division's efforts to protect workers from religious discrimination may be found on the Employment Litigation Section website.

In a brief filed on May 25, the Civil Rights Division argued that the Religious Land Use and Institutionalized Persons Act (RLUIPA) lawsuit of a Santa Fe, New Mexico church, which was denied approval to build a church on a site where it had previously worshipped for 14 years in a temporary structure, should be permitted to move forward. The United State's amicus brief, filed with the U.S. District Court in New Mexico in O Centro Espirita Beneficente Uniao do Vegetal v. County of Santa Fe, contends that the church alleged sufficient facts to support a claim under RLUIPA, and that its suit should not be dismissed.

O Centro Espirita Beneficente Uniao do Vegetal (UDV) is a church that has been worshipping in Santa Fe since 1992, first in a temporary hut, called a yurt, on a property in a rural residential area for 14 years, and for the last 6 years in rented space in Santa Fe. UDV is a Christian Spiritist religion that was originally founded in Brazil over 60 years ago. Its members drink hoasca tea as a sacrament, which is brewed from two plants indigenous to Brazil and contains a small amount of dimethyltryptamine (DMT), a Schedule I controlled substance. In 2006, the United States Supreme Court unanimously upheld the church's right to sacramental use of hoasca tea as part of its religious practice in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal.

The church has outgrown its current rented facilities, and has inadequate worship space and child-care facilities to meet the needs of its 80 members. It applied for a permit to build a church for 100 people on its property. The Board of County Commissioners, after holding two lengthy public hearings at which opponents voiced complaints about the UDV church and its use of hoasca tea, denied UDV's application in October 2011. UDV's application is the only application by a church that has been denied since 1981; 54 other applications have been approved by the County.

UDV filed a lawsuit in the United States District Court for the District of New Mexico on February 2, 2012, alleging that the Board's permit denial violated RLUIPA and other constitutional and statutory provisions. The complaint alleges that the County's actions violate RLUIPA by imposing a substantial burden on its worship without compelling justification, by treating it less favorably than nonreligious assemblies, and by discriminating against it based on its particular religion. The County filed a motion to dismiss UDV's complaint on March 29, claiming, in part, that UDV did not state a claim under RLUIPA.

The United States' friend-of-the-court brief states that all three RLUIPA claims should be permitted to move forward. The brief first argues that UDV has alleged a substantial burden on its exercise of its religion. Surveying the case law, the brief concludes that a zoning action imposes a substantial burden if, looking at all of the surrounding circumstances, it "significantly inhibits, meaningfully curtails, or denies reasonable opportunities for activities that are important to a congregation's religion." In light of the facts regarding the lack of adequate worship space, facts supporting the importance of this particular site to the UDV congregation, and the likely difficulties they would encounter with the County with any alternative property, the United States argues that the substantial burden test has been met.

Second, the United States' brief argues that UDV's equal terms claim under Section 2(b)(1) of RLUIPA should survive the County's motion to dismiss, because UDV alleges that similar non-religious assemblies and institutions, such as a private school, were treated more favorably than UDV's application.

Finally, the brief clarifies that to state a claim under RLUIPA's nondiscrimination provision, UDV need not allege that it is identical in all respects to another religious use whose land use application was approved, the standard urged by the County. Rather, as discussed above in the article about the Islamic Center of North Fulton case, whether a zoning decision was motivated by religious discrimination should be evaluated under the test laid out by the Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977), where a court looks at a variety of factors to try to discern actual motivation. The United States argues that under Arlington Heights, the court should examine all the surrounding factors to determine whether UDV's religion was the motivating factor behind the County's decision to deny its land use application.

United States Department of Justice

Civil Rights Division

http://www.justice.gov/crt