The City of Missoula’s attempt to keep the homeless population warm this winter may get snagged on the issue of separation of church and state, the city’s attorney warned in an email Monday.
City zoning laws regulate buildings used as emergency homeless shelters, and prevented one long-running winter warming shelter, the Union Gospel Mission, from operating last winter because it wasn’t up to code. When the Poverello Center capped the number of people it could safely house, local officials scrambled to find a temporary solution.
Eventually space was found at the Salvation Army building on Russell Street, and city officials allowed it to be used as a temporary emergency shelter, forgoing the formal review process. Now, the city wants to make it easier for places like churches and other religious organizations to become emergency winter shelters.
But part of the changes would require the host shelters to maintain a management plan, which city attorney Jim Nugent warned could be an issue, since courts have recognized churches aren’t exclusively places of worship.
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“Down the road if you want to try and identify churches that are doing it to have a management plan, be careful about trying to enforce too many restrictions or requirements,” Nugent said at a committee meeting last week. “I think the religious assemblies probably already have that freedom and you’re pushing the envelope on the separation of church and state.”
Eran Pehan, director of Housing and Community Development, said rather than using specific temperatures to trigger the use of emergency shelters, the proposed changes would simply allow spaces to be used as extreme weather shelters during the five coldest months of the year.
In an email responding to draft proposed changes, Nugent said it was “legally dubious” to limit a church or other religious assembly to only provide emergency shelter during a certain time of year. He opined that courts have ruled churches provide services outside of worship as part of their religious mission, and the government is limited to the extent it can interfere or regulate that.
In a legal opinion published last Friday, Nugent cited both the Montana Constitution’s freedom of religion section and the First Amendment of the United States Constitution, in addition to various case law.