Government cannot help build churches, AU tells Federal Housing Agency

Church & State, Apr 2003

Government agencies cannot use tax funds to build houses of worship, Americans United advised the Department of Housing and Urban Development (HUD) last month.

Americans United submitted the comments in response to a plan from the Bush administration to use federal housing funds to help churches and other houses of worship construct or repair their facilities. Bush argues that houses of worship can get tax aid as long as their facilities are sometimes used for nonreligious purposes, such as the provision of social services.

AU disagrees. The proposal, AU told HUD, is constitutionally flawed and should not be implemented.

In a seven-page memorandum delivered March 7, Americans United's legal department said the plan, which was first made public in early January, fails "to comply with constitutional requirements."

After Bush unveiled the proposed regulatory change, HUD announced it would accept public comment about it until early March. Washington observers think the agency may approve the plan despite constitutional objections in order to advance the White House's "faith-based" agenda.

Richard A. Hauser, HUD's general counsel, told The New York Times that the department's traditional rule prohibiting religious entities from using tax dollars to build or refurbish houses of worship would be dumped for the administration's new plan.

AU said the administration is on the wrong track.

"The First Amendment clearly forbids government to build or repair houses of worship," said Barry W. Lynn, Americans United executive director. "I hope the Bush administration will scrap this egregiously unconstitutional proposal."

Lynn noted that the Supreme Court ruled in 1973 that tax funds could not be used for the maintenance of religious buildings. In its Committee for Public Education and Religious Liberty v. Nyquist decision, the justices stated that "[i]f the State may not erect buildings in which religious activities are to take place, it may not maintain such buildings or renovate them when they fall into disrepair."

AU's memo to HUD noted that the Bush plan contains no explanation of how federal workers would ensure that public funds are not spent to advance religion or how they would ensure that the needy would not be subjected to religious indoctrination in publicly funded programs that provide shelter or housing.

"The new HUD policy is a reckless extension of Bush's initiative to provide broad-based financial support to religious groups," Lynn said. "It will also undermine our country's efforts to help our neediest."

Americans United intends to challenge the new policy in court if the administration implements it.