HUD subsidized housing is governed by Section 109 (Equal Participation of Religious Organizations in HUD Programs and Activities) of Subpart A (Generally Applicable Definitions and Federal Requirements; Waivers) of Part 5 (General HUD Program Requirements; Waivers) of Subtitle A (Office of the Secretary, Department of Housing and Urban Development) of Title 24 (Housing and Urban Development) of the Code of Federal Regulations (CFR), which states:
(c) Inherently religious activities. Organizations that receive direct HUD funds under a HUD program or activity may not engage in inherently religious activities, such as worship, religious instruction, or proselytization, as part of the programs or services funded under a HUD program or activity. If an organization conducts such inherently religious activities, the inherently religious activities must be offered separately, in time or location, from the programs, activities, or services supported by direct HUD funds and participation must be voluntary for the beneficiaries of the programs, activities or services provided under the HUD program. 24 C.F.R. § 5.109.
Additionally, the CFR clearly proscribes any discrimination on the basis of religious belief in the dissemination of services funded by the Department of Housing and Urban Development. Section 5.109 of Title 24 of the Code of Federal Regulations reads:
(f) Nondiscrimination requirements. An organization that receives direct HUD funds shall not, in providing program assistance, discriminate against a program beneficiary or prospective program beneficiary on the basis of religion or religious belief. 24 C.F.R. § 5.109.
There is no case law, as of yet, which is expressly on point on this issue. The express law on the subject is vague – a fact that has been much exploited by those wishing to impinge upon the Establishment Clause. Non-religious organizations (i.e. secular, privately-owned, government-subsidized apartment buildings) often choose to display religious decorations during the holidays, either of their own volition or by approving the displays of individual tenants in common areas of the housing facilities. This situation presents numerous legal issues, including the extent to which the administration or owners of such facilities are government agents, the degree to which HUD subsidizes the common areas of such facilities, and whether this type of speech may be classified as either public or government speech. Each set of factual circumstances is different and presents unique legal issues and challenges. We support an interpretation of the Code of Federal Regulations (CFR), which would render religious displays exhibited by the administration/owners of such housing facilities as explicitly violative, as they evidence the government endorsed advancement of a particular faith or belief. In any case, discrimination against a program beneficiary or prospective program beneficiary, based upon religion or religious belief or non-belief, is always illegal. Perhaps the administration/owners of the facility have indicated that tenants may employ the common areas of the facility as a public forum for individual speech. Then the administration/owners may not exercise any form of discriminatory censorship over the content of such displays (i.e. excluding Muslim or Jewish or secular humanist displays in favor of Christian displays). If this type of discrimination occurs, then the administration/owners have evinced the government endorsed advancement or disparagement of a particular faith or belief. Also, this assertion of preference for one faith or belief or non-belief over another is an act of discrimination based upon religion or religious belief, which is strictly prohibited by the CFR, as indicated above.
The common areas of such facilities, such as lobbies, recreation rooms, and laundry services, are part of the HUD subsidized facilities – meant to be enjoyed by all tenants, religious and non-religious alike, and program beneficiaries may not be discriminated against in their use and enjoyment of such facilities. This prohibition is stated explicitly in the Code of Federal Regulations (CFR):
§ 6.4 Discrimination prohibited.
(a) Section 109 requires that no person in the United States shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with Federal financial assistance, on the grounds of race, color, national origin, religion, or sex.
(1) A Recipient under any program or activity to which this part applies may not, directly or through contractual, licensing, or other arrangements, take any of the following actions on the grounds of race, color, national origin, religion, or sex:
(i) Deny any individual any facilities, services, financial aid, or other benefits provided under the program or activity;
(ii) Provide any facilities, services, financial aid, or other benefits that are different, or are provided in a different form, from that provided to others under the program or activity;
(iii) Subject an individual to segregated or separate treatment in any facility, or in any matter of process related to the receipt of any service or benefit under the program or activity;
(iv) Restrict an individual's access to, or enjoyment of, any advantage or privilege enjoyed by others in connection with facilities, services, financial aid or other benefits under the program or activity;
(v) Treat an individual differently from others in determining whether the individual satisfies any admission, enrollment, eligibility, membership, or other requirements or conditions that the individual must meet in order to be provided any facilities, services, or other benefit provided under the program or activity;
(vi) Deny an individual an opportunity to participate in a program or activity as an employee;
(vii) Aid or otherwise perpetuate discrimination against an individual by providing Federal financial assistance to an agency, organization, or person that discriminates in providing any housing, aid, benefit, or service;
(viii) Otherwise limit an individual in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by other individuals receiving the housing, aid, benefit, or service;
(ix) Use criteria or methods of administration that have the effect of subjecting persons to discrimination or have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity with respect to persons of a particular race, color, national origin, religion, or sex; or
(x) Deny a person the opportunity to participate as a member of planning or advisory boards. 24 C.F.R. § 6.4.
Unfortunately, actual religious organizations are not required to remove religious paraphernalia from their facilities:
(d) Independence of religious organizations. A religious organization that participates in a HUD program or activity will retain its independence from Federal, State, and local governments, and may continue to carry out its mission, including the definition, practice, and expression of its religious beliefs, provided that it does not engage in any inherently religious activities, such as worship, religious instruction, or proselytization as part of the programs or services supported by direct HUD funds. Among other things, religious organizations may use space in their facilities to provide services under a HUD program without removing religious art, icons, scriptures, or other religious symbols. In addition, a religious organization participating in a HUD program retains its authority over its internal governance, and it may retain religious terms in its organization's name, select its board members on a religious basis, and include religious references in its organization's mission statements and other governing documents. 24 C.F.R. § 5.109.
Thanks to our legal intern, Sarah Braasch, for her legal research.