The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5377

September 25, 1978

CONSTITUTIONAL LAW:

Establishment of religion

Free exercise of religion

CONSTITUTION OF THE UNITED STATES:

First Amentment (Freedom of Religion)

CONSTITUTION OF MICHIGAN:

Art 1 Sec. 4 (Freedom of Religion)

Administrators of a municipally-owned or publicly-funded housing complex, in making the community room available for religious services to accommodate tenants who are unable to attend a church or synagogue, violate neither the First Amendment to the Constitution of the United States nor Const 1963 art 1, Sec. 4.

Honorable Harold Scott

State Senator

Capitol Building

Lansing, Michigan

You have informed me that the occupants of a municipally-owned or publicly-funded housing complex have requested that prayer meetings be permitted to be held in the community room of the complex, since many of them are unable to get about well enough to attend religious services in their churches and synagogues. You state further that a local religious leader has accepted their invitation to conduct the prayer meeting. Based upon these facts, you have asked my opinion concerning the constitutionality of holding prayer meetings in the community room of such housing complex.

The First Amendment to the Constitution of the United States, in pertinent part, provides:

'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, . . .'

The people of the State of Michigan have also incorporated in the 1963 Constitution the guarantee of free exercise of religion as set forth in art 1 Sec. 4, which states:

'Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend, or, against his consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary; nor shall property belonging to the state be appropriated for any such purpose. The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.'

In OAG, 1977-1978, No 5323, p ___ (June 29, 1978), the Attorney General noted:

'The Michigan courts have ruled that Const 1963, art 1, Sec. 4 and the establishment and free exercise clauses of the First Amendment are subject to similar interpretation. Alexander v Bartlett 14 Mich App 177, 182; 165 NW2d 445, 448 (1968); Advisory Opinion re Constitutionality of PA 1970, No 100, 384 Mich 82, 105; 180 NW2d 265, 274 (1970).'

In essence, the question presented is whether the administrators of a municipally-owned or publicly-funded housing complex, in accommodating the Free Exercise rights of tenants who are unable to attend religious services in a church or a synagogue, may make its community room available for religious services. The task at hand is to give meaning to both the Free Exercise Clause and the Establishment Clause.

The leading case on the interplay between the Free Exercise Clause and the Establishment Clause of the First Amendment to the Constitution of the United States is Zorach v Clauson, 343 US 306, 313-314; 72 S Ct 679, 684; 96 L Ed 954, 962 (1952). In upholding a released time program for the religious education of children attending the public schools, the Court found that the First Amendment does not require that there be a separation of Church and State in each and every respect. The Court endeavored to lay out the neutral course that must be pursued between the two Religion Clauses:

'We are religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. . . .'

The markings between the two Religion Clauses were further identified and delineated by the United States Supreme Court in Walz v Tax Commission of the City of New York, 397 US 664, 669-670; 90 S Ct 1409, 1411-1412; 25 L Ed 2d 697, 701-702 (1970). Relying upon Zorach v Clauson, supra, the Court said:

'The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.' (Emphasis supplied.)

Walz upheld the constitutionality of property tax exemptions authorized by the State Constitution as not constituting sponsorship, even though granting tax exemptions to churches would confer an indirect economic benefit.

The United States Supreme Court has adopted a three-part test to measure a state statute under the Establishment Clause. This test consists of first, that a statute must have a secular legislative purpose; second, it must have a principal or primary effect that neither advances nor inhibits religion; and third, it must not foster an excessive government entanglement with religion. Lemon v Kurtzman, 403 US 602; 91 S Ct 2105; 29 L Ed 2d 745 (1971); Committee for Public Education v Nyquist, 413 US 756; 93 S Ct 2955; 37 L Ed 2d 948 (1973); Roemer v Maryland Public Works Board, 426 US 736; 96 S Ct 2337; 49 L Ed 2d 179 (1976).

The strictures of the Establishment Clause measuring the use of a public building for religious services came before the Supreme Court of Delaware in Keegan v University of Delaware, 349 A2d 14 (1975), cert den, 424 US 934; 96 S Ct 1148; 47 L Ed 2d 342 (1976). There the University adopted a policy prohibiting religious services to be held in the commons room of the University dormitory. The Delaware court ruled that allowing religious worship groups the same rights and privileges to use the commons room of the dormitory as other groups represented a lawful accommodation, did not reflect a sectarian legislative purpose, did not have an effect that primarily advances religion, and did not foster excessive government entanglement with religion.

The practice of a municipally-owned or publicly-funded housing complex in making its community room available upon request of its residents for religious services to accommodate those who for physical or other reasons are unable to attend a church or a synagogue represents a secular purpose. The principal or primary effect of permitting such use of its community room neither advances or inhibits religion. It does no more to accommodate the needs of its residents than making the room available for cultural and educational purposes of the tenants. Nor is there any basis to contend that such action fosters a government entanglement with religion, since all the administrators of the housing complex do is simply make the room available.

Moreover, making the community rooms available for such purpose accommodates the religious needs of tenants who are unable to attend a church or a synagogue. Its action is clearly within the letter and spirit of benevolent neutrality implicit in the First Amendment and effectively rejects any contention that the operators of a housing complex are callously indifferent to the needs of its tenants.

This conclusion finds support in OAG, 1961-1962, No 3630, p 148 (August 21, 1961) which upheld the authority of a board of education of a school district to make public school buildings available during off-school hours for the purpose of holding religious instruction classes so long as the authority of the school was not utilized to secure the attendance of pupils at such classes and the use was simply a use of school buildings. This opinion held that the action of the board of education violated no constitutional provision, federal or state. It also held Bible study clubs or Bible fellowship clubs may meet on public school property.

It is therefore my opinion that the practice of administrators of municipally-owned or publicly-funded housing complexes making community rooms available for religious services upon request of residents gives meaning to both the Free Exercise Clause and the Establishment Clause. It does not constitute a sponsorship of religion. Rather, it represents an accommodation of the religious needs of the tenants of the complex in accord with the true spirit of the Religion Clauses of the First Amendment and Const 1963, art 1, Sec. 4.

Frank J. Kelley

Attorney General