Department of Housing and Urban Development Restrictions on Grants to Religious Organizations That Provide Secular Social Services

12 Op. O.L.C. 190

Department of Housing and Urban Development Restrictions on Grants to Religious Organizations That Provide Secular Social Services

No. 88-23

United States Department of Justice

September 14, 1988

Douglas W. Kmiec Acting Assistant Attorney General Office of Legal Counsel

Department of Housing and Urban Development Restrictions on Grants to Religious Organizations That Provide Secular Social Services

The Establishment Clause of the Constitution does not require the Department of Housing and Urban Development to deny grants to religious organizations that engage in religion-based employment discrimination or to deny grants for rehabilitation, reconstruction, or construction of facilities that are owned by religious organizations.

Department of Housing and Urban Development prohibition on use of grant funds for religious counseling or use of grant funds to provide services in a facility in which sectarian or religious symbols are displayed is not more restrictive than the Establishment Clause requires.

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION

Introduction and Summary

This memorandum responds to your request for our opinion on whether certain regulations of the Department of Housing and Urban Development restrict the participation of religious organizations in the Community Development Block Grant ("CDBG") and Emergency Shelter Grant programs to a greater degree than is required by the Constitution. According to Mike Antonovich, Chairman of the Board of Supervisors of Los Angeles County, these regulations are keeping the Salvation Army from obtaining a Community Development Block Grant to provide emergency shelter and food to the homeless. In a memorandum ("Memorandum") submitted to you last November, Frank Atkinson suggested that HUD's ban on religious counseling exceeds Establishment Clause requirements and may transgress the Free Exercise Clause. The Memorandum therefore recommended that the Legal and Regulatory Policy Working Group develop an administration policy to enable religious organizations to participate in the delivery of government-assisted social services to the maximum extent permissible under the First Amendment.

The restrictions to which the Salvation Army objects are generally not embodied in formal rules, but rather are contained in an addendum that HUD requires as part of its grant agreement with religious organizations. The addendum states that the grantee agrees (1) not to discriminate against any employee or applicant for employment on the basis of religion in connection with the program [ 191] receiving the grant, ^[1] (2) not to discriminate on the basis of religion in the provision of funded services, (3) not to provide any religious instruction or counseling in connection with the program^[2], and (4) not to display any sectarian or religious symbols or decorations in any portion of the facility used to conduct the program. The addendum further provides that no federal funds may be used to construct rehabilitate, or restore any facility owned by a religious organization, except that "minor repairs" that are directly related to the provision of public services and that constitute in dollar terms only a minor portion of the federal grant may be made to a facility used exclusively for non-religious purposes.

For the reasons stated below, we believe that HUD's addendum interferes with religious organizations' ability to participate in the CDBG program in several respects not mandated by the Establishment Clause. First, we believe neither the Constitution nor the applicable statutes require religious organizations to refrain from discrimination on the basis of religion in employment as a condition of their receipt of funds under the Community Development Block Grant program. We also believe that the restriction on the use of federal funds to construct, rehabilitate, or restore facilities owned by religious organizations is more severe than current jurisprudence under the Establishment Clause requires. So long as religious organizations agree to dedicate facilities constructed, rehabilitated or restored with federal funds to secular purposes in perpetuity, the strictures mandated by Establishment Clause jurisprudence are satisfied. Finally, the prohibitions of religious instruction or counseling and religious symbols are acceptable so long as they are reasonably interpreted in light of the facts of each case. See infra note 17 and accompanying text.

After analyzing these restrictions under current Establishment Clause jurisprudence we review the Supreme Court's recent decision in Bowen v. Kendrick, 487 U.S. 589 (1988) and discuss its general implications for the participation of religious organizations in secular social welfare programs.

Analysis A. Amos Case and HUD's Restrictions Prohibiting Discrimination in Employment In Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 438 U.S. 327 (1987), the Supreme Court upheld against [ 192] an Establishment Clause challenge an exemption from title VII's ban on religious discrimination in employment for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation association, educational institution, or society of its activities." Id. at 330 n. 1. Specifically, the Court held that exemption satisfied the three-part test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971), for determining whether government assistance to religion is permissible under the Establishment Clause. The Court held that the law passed muster under the first prong of the Lemon test, which requires that legislation serve a secular purpose, because its purpose was to limit governmental interference with the exercise of religion. Id. at 335-36. The Court held that the exemption did not have the primary purpose of advancing religion, and thus passed the second prong of the Lemon test, because it did not increase the capacity of religious institutions to propagate their religion beyond that which the institutions possessed prior to enactment of title VII. Id. at 337. Finally, the Court concluded that the statute did not impermissibly entangle church and state, the third prong of the Lemon test, because it effected a complete separation between churches and title VII. Id. at 339.

Amos establishes that the Constitution permits an exemption for religious organizations from an otherwise generally applicable prohibition on religious discrimination in employment and therefore suggests that HUD is not constitutionally obligated to require grantees to refrain from religious discrimination in hiring. Amos, however, does not conclusively resolve the issue of whether HUD's regulation prohibiting religious discrimination in employment is required by the Establishment Clause, because Amos does not address whether an organization that practices religious discrimination in employment is a "pervasively sectarian" institution and therefore more likely to be ineligible to receive government financial assistance under current Supreme Court caselaw.^[3] Although we have found [ 193] no case in which this question is squarely presented, we believe the fact that an organization practices religious discrimination in hiring does not preclude government financial assistance in a manner otherwise compatible with the Establishment Clause.

There is no precise definition of a "pervasively sectarian" institution. In Hunt v. NcNair, 413 U.S. 734 (1973), the Court referred to institutions "in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission." Id. at 743. In Roemer v. Maryland Public Works Board, 426 U.S. 736 (1976), the Court defined a "pervasively sectarian" institution somewhat tautologically as an institution "so permeated by religion that the secular side cannot be separated from the sectarian." Id. at 759.^[4]

In practice, the concept of the "pervasively sectarian" institution has been applied only in the context of aid to church-related schools. Courts have generally found that church-related elementary and secondary schools are "pervasively sectarian, " while most post-secondary institutions have been deemed sufficiently secular to permit government assistance. In making these determinations, courts have looked at a variety of factors including the degree of control by religious organizations whether the school or its curriculum has the purpose of teaching and promoting a particular religious faith, whether there are religious restrictions on admission to the school, whether there are required courses in theology or religious doctrine, whether participation in religious exercises is required, and whether the school is an integral part of the sponsoring organization's religious mission.^[5] In particular, two appellate courts have considered restrictions or pref- [ 194] erences in hiring as one factor that may be indicative of a "pervasively sectarian" institution.^[6]

We do not believe, however, that these cases establish that any organization providing social services that limits employment opportunities to adherents of a single faith is "pervasively sectarian." Again, the only entities which have been found by the courts to be "pervasively sectarian" are parochial schools. In contrast religiously affiliated colleges—even those that grant preference in admissions or hiring to members of the sponsoring faith—have generally not been deemed pervasively sectarian. See Roemer v. Maryland Pub. Works Bd., 426 U.S. 736 (1976); Hunt v. McNair, 413 U.S. 734 (1973); Tilton v. Richardson, 403 U.S. 672 (1...