Academic journal article Texas Journal on Civil Liberties & Civil Rights

The Fair Housing Act and Religious Freedom

Academic journal article Texas Journal on Civil Liberties & Civil Rights

The Fair Housing Act and Religious Freedom

Article excerpt

Whenever a state or federal law touches upon the subject of religion there is the possibility of conflict with the First Amendment. The First Amendment to the United States Constitution prohibits the government from establishing religion and from interfering with the free exercise of religion.' Both the Fair Housing Act and the 1996 Welfare Reform Act raise delicate issues relating to the establishment and free exercise of religion in the private and public housing markets.

The Fair Housing Act,2 passed by Congress after the assassination of Martin Luther King, Jr. in 1968, and amended by the Fair Housing Amendments Act of 1988, prohibits housing discrimination on the basis of religion.3 The Act makes it illegal for a housing provider, public or private, to discriminate in the sale or rental of housing or in the provision of housing services on the basis of religion.4 The Act contains a very limited exemption for religious organizations.5

The Welfare Reform Act of 1996 contains a charitable choice provision that authorizes federal and state governments to provide religious organizations with direct monetary grants for social services on the same basis as any other private organization.6 The Charitable Choice provision of the 1996 Welfare Reform Act, which was introduced in Congress by Senator John Ashcroft and signed into law by President William Clinton, began what under the George W. Bush Administration became known as the "Faith-Based Initiatives" program.7 This program allows religious organizations to participate in government subsidy programs on an equal basis with secular organizations. The Act does not specifically define a religious organization; instead, it provides that a religious organization retains "its independence from Federal, State, or local governments, including such organization's control over the definition, development, practice, and expression of its religious beliefs."8 It further provides that, "[n]either the Federal Government nor a State shall require a religious organization to - (A) alter its form of internal governance; or (B) remove religious art, icons, scripture, or other symbols. . . ."9 Under the Act, a religious organization may not refuse to serve persons on the basis of their religion or their refusal to participate in religious practice.10

The Federal Fair Housing Act's broad prohibition on religious discrimination in the sale or rental of a dwelling, or in the provision of housing services applies to housing that is faith-based." For example, the Act's prohibition on the publication of any notices, statements, or advertisements with respect to the sale or rental of a dwelling that indicates a preference, limitation, or discrimination based on religion12 undoubtedly affects the way many faith-based projects can be promoted to the public.

On the other hand, the Fair Housing Act exempts dwellings owned or operated by religious organizations from some of the prohibitions in the Act.13 Thus, the Act attempts to walk the delicate boundary between not favoring religion and not disadvantaging religion.

Early in his presidency, George W. Bush attempted to expand the application of the Charitable Choice provisions of the Act.14 Although he was unsuccessful with Congress, President Bush published a series of executive orders that expanded Faith-Based Initiatives.15 Traditionally government funding had been available to groups, such as Catholic Charities, that operated as independent section 501(c)(3) organizations.16 The Charitable Choice provisions of the Act and the Bush executive orders generally make government funds more available to faith-based religious organizations,17 and consequently they raise important concerns under the Establishment Clause of the First Amendment.

The 1996 Act did not apply directly to federal housing programs, and an attempt to extend the Charitable Choice provisions to housing assistance was defeated in 2001.18 However, in 2004 the Federal Department of Housing and Urban Development (HUD) adopted regulations to implement the President's FaithBased Initiatives in all HUD programs. …

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