Separation of Church and State
in HUD Programs

The faith community has long been one of the leaders in assisting homeless persons and families and in providing affordable housing for poor people, especially special populations like the elderly and disabled. HUD is proud to be a partner in making assistance available for these purposes. But special consideration attends participation by the Faith Community.

The First Amendment to the United States Constitution states that "Congress shall make no law respecting an establishment or religion, or prohibiting the free exercise thereof." These two purposeful provisions—the Establishment Clause and the Free Exercise Clause—may sometimes seem in tension. Working them out requires careful, principled commitment. For purposes of the role of the Faith Community in HUD assistance programs, the Establishment Clause is generally the requirement that must be addressed.

Supreme Court cases have established that an organization’s religious affiliations do not constitutionally disqualify it from participating equally in a governmental program that provides grants to religious and non-religious entities alike on a neutral basis, where the criteria for funding are neutral and secular. However, a government may not choose to fund a particular organization because it is religious in character or because of its religious affiliations, and may not prefer religious organizations over others, e.g., by setting aside a particular portion of funds for them. Moreover, a government may not prefer certain religious denominations or organizations over others for funding, except on the basis of secular criteria unrelated to the organizations’ religious affiliations or tenets.

Thus, in the case of HUD funding to private organizations to enable them to provide services to people in need, such funding may be provided to religiously affiliated organizations. Such organizations must not, however, use HUD aid to advance specifically religious activities – such as religious worship, religious instruction, or proselytizing – in an otherwise substantially secular setting. HUD may, in other words, subsidize a religious organization’s secular program providing, for example, food and shelter to the homeless so long as that program can be meaningfully and reasonably separated from the organization’s sectarian activities. In particular, HUD must ensure that the organization’s privately-funded religious activities are not offered as part of its government-funded program and that the government-funded program is not used as a device to involve the participants in religious activities. The government may not provide funding directly to organizations in which secular activities cannot be separated from sectarian ones, because where secular and sectarian activities are inextricably intertwined, the provision of direct financial aid invariably will support religious activity. In addition, HUD expressly requires providers to agree not to discriminate on the basis of religion in hiring or in the provision of services.

Certain HUD programs involve aid to private organizations, including religiously affiliated organizations, to improve real property that is to be used for, e.g., housing assistance for the elderly and the disabled. The facilities and structures that are improved with such aid must not be used for sectarian instruction or as a place for religious worship.

As indicated above, the other side of the religious component of the First Amendment is the Free Exercise Clause. HUD is sensitive to this branch of the law. One way HUD helps in this respect relates to issues concerning the occasional and incidental use of community space for religious purposes in federally assisted public housing and section 202 and 811 projects for the elderly and disabled. The general HUD policy is that community space may be made available for purposes of interest to residents, including religious purposes, so long as the space is made available to all residents in the same manner.

HUD looks forward to continuing the shared mission of both government and the churches to lessen the hurt of poverty and homelessness and to move toward eradicating them.