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Yes, if a church[i] operates a shelter as part of its ministry,[ii] it can require shelter residents to participate in religious classes or services in order to continue staying at the shelter.[iii] But, if the shelter component of the church is really a government-operated service that is merely renting space in a church, then religious activities cannot be required of the residents.[iv]
The First Amendment says that the government cannot make laws establishing religion.[v] This has been interpreted to mean that when the government provides funding for religious institutions, it can only fund “the non-religious social services that they provide.” [vi]
It can be hard to distinguish between a church-run shelter and a government program. In terms of legal status for tax and injury liability purposes, a church shelter might be an accessory use[vii] of a church or an entirely separate non-profit organization,[viii] but neither of those status categories necessarily conveys whether the shelter is able to involve participants in religious activities.
Churches that shelter the homeless tend to do so because their religious doctrine somehow obligates or inspires them to provide helpful services to the poor. So the motivation for the church’s shelter is almost always religious. However, there are ways, at least in large cities, for churches to contract with state or city agencies so that those agencies pay the staff salaries or other costs associated with operating the shelter.
The circumstances surrounding those contracts establish either the private religious or public/governmental identity of a particular church shelter. In other words, the shelter program’s stated mission, its funding sources, and its related legal obligations determine whether religion can be a component of its programming.
The local and state laws at the foundations of these contracts typically delineate which particular funding relationships make the shelter service a government activity. A good example comes from the case of Greentree v. Good Shepherd which explains that the church’s shelter was exempt from filing an environmental impact statement prior to opening because it was not a new facility of the church. Instead, the shelter was part of an ongoing program of the City’s Housing Resources Administration, authorized by local ordinance. [ix]
[i] The word “church” is being used generically here to refer to any house of worship, be it a synagogue, mosque, temple, or other type of facility operated by a religious denomination and primarily in existence for religious worship services.
[ii] There are interesting zoning cases saying that operating a shelter or meal service for the poor is legally considered a church’s free exercise of religion under the First Amendment of the U.S. Constitution. See, St. John’s Evangelical Lutheran Church v. Hoboken, 479 A.2d 935 (N.J. Super. Ct. Law Div. 1983); Western Presbyterian Church v. Board of Zoning Adjustment, 849 F.Supp. 77 (D.D.C. 1994), mot. den., sum. j. granted, 862 F.Supp. 538 (D.D.C. 1994) dismissed, 1995 U.S. App. LEXIS 5085 (D.C. Cir. 1995).
[iii] Churches and other religious organizations exist as a distinct type of legal entity by way of the Internal Revenue Code’s definitions and treatment of various types of non-profit organizations. See, 26 U.S.C. § 501(c)(3) (2006). To get status as a religious organization under that code, they have to be “organized and operated exclusively for religious…purposes.” See the IRS’s resources for religious organizations.
[iv] A good description of how a local government contracted with a church to operate a shelter is written in the case of Greentree at Murray Hill Condo. v. Good Shepherd Episcopal Church, 550 N.Y.S.2d 981, 983-84 (N.Y. Sup. Ct. 1989). Basically, if the church is merely renting space to a government shelter program, that use of church space is not, in itself, a violation of the First Amendment’s separation of church and state provisions anymore than using churches as polling places for elections would be a violation. An example of when this kind of rental might occur is during a severe weather emergency when people cannot stay in their homes. Sometimes, there are government facilitated activities that temporarily need access to a big space in a certain neighborhood.
[v] U.S. Const. amend. I. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
[vi] Department of Justice archived material about Faith-Based Community Initiatives and Partnering with the Federal Government is available at http://www.justice.gov/archive/fbci/index.html. Note that the Faith Based Initiatives program has now closed. It is cited here only for description.
[vii] William W. Bassett, Religious Organizations and the Law §10:16 (2006).
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