[Link to
GCH-0009](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0009LOPS.doc)

[Link to
GCH-0068](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0068LOPS.doc)

[Link to
GCH-0087](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0087LOPS.doc)

[Link to
GCH-0092](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0092LOPS.doc)

[Link to
GCH-0098](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0098LOPS.doc)

Legal Opinion: GCH-0075

Index: 2.800

Subject: First Amendment Issues in Section 202 Project

June 28, 1993

MEMORANDUM FOR: Raymond C. Buday, Jr., Regional Counsel, 4G

FROM: Robert S. Kenison, Associate General Counsel

Office of Assisted Housing and Community Development, GC

SUBJECT: First Amendment Issues in Section 202 Project

We apologize for the delay in responding to your November 23, 1992,

memorandum concerning complaints of unequal treatment made by some
tenants of

a section 202/8 elderly housing project, Shalom Towers, located in
Louisville,

Kentucky. Eighteen tenants of this project submitted to the Louisville,
HUD

Office a list of concerns which they believe \"come under some type of

discrimination.\" A nineteenth tenant wrote Senator Mitch McConnell
raising

similar issues; Senator McConnell wrote the HUD Louisville Office asking
that

these concerns be addressed.

You request \"a written legal opinion concerning the legality under the

First Amendment to the United States Constitution of the maintenance of
an

exclusively kosher kitchen in a section 202 funded housing project, and
the

prohibition of certain recreational activities in the project from
sundown

Friday to sundown Saturday.\" This request is accompanied by an opinion
of

your office provided to the Atlanta FHEO Division that neither of the
policies

violates the First Amendment and that the implementation of these
policies has

no Fair Housing Act implications.

With respect to the kosher kitchen issue, Sharon Mizell, until recently

Chief of the section 202 Loan Branch, indicated that she had inquired
into the

issues raised and was advised that maintenance of the community room
kitchen

as a kosher kitchen would preclude its use by those tenants who do not
follow

the kosher dietary rules in food preparation. She advised the Regional
Office

that the kitchen was provided by HUD to serve all the tenants without
regard

to religious dietary restrictions, and that, if Shalom Towers wants a
kosher

kitchen that would not be equally available to all the tenants to
prepare food

of their choice, they would have to install a separate kosher kitchen
with

non-HUD funds. We agree with this solution but would not rule out joint

kosher and nonkosher use, should this be feasible.

Although the extent of restriction of recreational activities is not

entirely clear, we do not agree with the conclusion you have reached
that

restriction of the tenants\' recreational activities in project space on
the

Jewish Sabbath does not violate the First Amendment. We believe that the

Maryland Sunday closing law case, McGowan v. Maryland, 366 US 420
(1961), on

which your opinion principally relies, is inapposite. As stated in that

decision, the Sunday closing laws serve a secular purpose of providing a
day

for rest and recreation, when people may recover from the labors of the
week.

The opinion cites a long list of activities that are not prohibited,
including

purchases of groceries, tobacco, sweets, gas and oil; attendance at
bathing

beaches and amusement parks, and more recently, including Sunday sale of

alcoholic beverages, playing bingo and pinball machines, all calculated
to

make the day more enjoyable. The Sunday closing laws have been upheld
based

on the secular public welfare interest of providing a nonwork day; the

restriction on recreational activities serves no such interest and has
an

obvious exclusively religious context. Further, a nonprofit owner of a

Federally subsidized housing project has no such mandate to regulate the
lives

of its tenants, but is limited to those restrictions reasonably related
to the

landlord-tenant relationship.

Since you have cited McGowan to support the Saturday restriction on

activities, we suggest that comparison of a more recent case, Estate of

Thornton v. Caldor, Inc., 472 US 703 (l985) may be instructive. The
Court in

this case struck down a Connecticut statute providing that no person who

states that a particular day is his Sabbath may be required by his
employer to

work on that day, or be dismissed for failure to do so. The Court held
that

this law violated the Establishment Clause since the State had commanded
that

Sabbath religious observances automatically control secular interests at
the

work place, without regard to inconvenience to the employer or to other

employees. It further found excessive entanglement in the necessity for
a

State mediation board to determine which religious activities may be

characterized as observance of the Sabbath. The Court cited with
approval the

following statement made by Judge Learnad Hand in Otten v. Baltimore and
Ohio

R. Co., 295 F2d 58, 61 (CA 2 1953): \"The First Amendment . . . gives to
no

one the right to insist that in pursuit of their own interests others
must

conform their conduct to his own religious necessities.\" See also,

Nuechterlein, The Free Exercise Boundaries of Permissible Accommodation
Under

the Establishment Clause, 99 Yale L.J. 1127, 1141 (1990).

The reliance upon the Lynch and Allegheny cases is misplaced, since this

case is not about decoration. The analysis of Lemon flowing from these
two

cases is thus also flawed. Further, we believe that the application of
the

\"three part test\" articulated in the Lemon case needs to be applied in
the

light of the purposes clause limitations required by HUD with respect to
the

corporate articles of owners of section 202 projects. Attached is a
March 26,

1976, legal opinion provided to the Office of Housing by then Associate
Deputy

General Counsel Diana Stoppello, in regard to the eligibility of the
Salvation

Army, a branch of the Christian church, to receive a section 202 loan.
The

purposes clause of section 202 borrower corporations is strictly limited
to

providing housing and services designed to meet the needs of elderly
persons

and cannot include references to religion or to religious purposes. The

activities of the corporation must be within its secular purposes,
although

religious activities desired by the tenant body may be conducted in

multipurpose rooms, so long as all reasonable requests from all faiths
are

honored.

We are concerned that the combined circumstances of the exclusive use of

the community room on weekends for Jewish religious activities coupled
with

the limitations on other activities by tenants in the public spaces may,

indeed, serve the impermissible purpose of advancing religion and
excessively

entangling the Government. We particularly note that nineteen tenants
were

willing to risk the displeasure of the management in objecting to these

arrangements and the statement in the petition that \"others would have
signed

but are afraid of loosing (sic) their apartments.\"

In the attached April 12, 1993 opinion, Associate General Counsel Wilson

and Assistant General Counsel Carey do not agree that there are no fair

housing issues. Their opinion raises issues in this context concerning

reference by the management to the project as a \"Jewish building,\"
denial of

use of the kitchen to tenants not following kosher practices, and
limiting use

of residents\' funds for food purchases to kosher food.

Attachments