Churches in Texas should be entitled to reimbursement from FEMA Relief Funds for helping victims of Hurricane Harvey (just like others).President Trump was referencing the FEMA policy that prohibited private nonprofit houses of worship from receiving disaster relief funding, specifically from applying for FEMA Public Assistance Grants. These grants are used primarily for repairing damaged non-profit facilities following a natural disaster.
Less than four months after the President's tweet and ensuing lawsuits from churches and synagogues in both Florida and Texas, an amended FEMA manual was released at the beginning of January 2018. Alex Amparo, the FEMA Recovery Directorate Assistant Administrator (or FEMARCDAA for short), stated, "Private nonprofit houses of worship will not be singled out for disfavored treatment within the community centers subcategory of nonprofit applicants." Under this new policy religious institutions can potentially qualify as "community centers" which are in turn eligible for disaster grants. The policy also retroactively covers buildings which were previously ineligible and were damaged during Hurricanes Harvey.
The policy change was precipitated by Trinity Lutheran Church of Colombia v. Comer. The Supreme Court case, decided in June of 2017, revolved around a Missouri church which was denied state funds to resurface its non-profit preschool's playground. The court ruled that the exclusion of a church from an otherwise neutral and secular aid program violates the First Amendment's free exercise clause. A FEMA official stated,
In light of the Trinity Lutheran decision, FEMA has considered its guidance on private nonprofit facility eligibility and determined that it will revise its interpretation of the aforementioned statutory and regulatory authorities so as not to exclude houses of worship from eligibility for FEMA aid on the basis of the religious character or primarily religious use of the facility.Organizations like the American Center for Law and Justice are treating this as a significant victory in the name of Religious liberty. The ACLJ described the FEMA previous policy as discriminatory and argues that churches serve as an important place of refuge during natural disasters, providing basic necessities to those affected in their communities. The attorney for churches and synagogues suing over the previous FEMA policy stated,
By finally following the Constitution, FEMA is getting rid of second-class status for churches, which in the words of the Supreme Court was 'odious' to the First Amendment. We will watch carefully to make sure that FEMA’s new policy implemented to provide equal treatment for churches and synagogues alongside other charities.The ACLU and the Americans United for Separation of Church and State argued the contrary. Together these organizations in an amicus brief wrote,
The Establishment Clause prohibits the government from granting public funds for the support of religious uses, including for the construction or repair of buildings used for religious worship. The grants sought by the plaintiffs here would support repairs to church sanctuaries and other core religious facilities, and are thus plainly proscribed by the Establishment Clause.I question whether the Trinity Lutheran Church of Colombia v. Comer decision does in fact necessitate a change in the FEMA policy. The issue hinges on the application of funding. In the Colombia v. Comer case funding is being used for the sole purpose of resurfacing a preschool's playground which does not serve a religious function therefore no question of establishment of religion. In contrast, FEMA relief funding would be granted to repair church facilities which would in turn be used by that institution with the primary function of religious events and ceremonies, therefore an establishment of religion. In the terms of the free exercise clause, however, an reasonable argument can be made that the FEMA aid, like the Colombia v. Comer program, is neutral and secular and the exclusion of a church would be a breach of the free exercise clause. It is unclear to me in this scenario whether a breach of the establishment clause holds more weight than a breach of the free exercise clause leaving me conflicted in my opinion.
Sources: https://www.politico.com/story/2018/01/03/churches-disaster-funds-fema-religion-establishment-321202
1 comment:
This is an interesting case to deal with. Although the Trinity Lutheran vs. Comer was the case that participated this change, that one differs greatly from the Hurricane Harvey case, in terms of scenario and scales. One you have a natural disaster, where many lives were affected, then the preschool where in comparison, obviously not nearly as many people were hurt. Also, the costs would be significantly greater for repairing the "houses of worship", in that area. So, I strike vast differences between the two, that being said, it is our basis of comparison. Since the establishment clause prohibits the government from granting public funds for the support of religious uses, and it is clear that is where those funds would go to for the Hurricane; I do see an issue of violating the clause because where would it stop? That being said, there could be some sort of act enforced, stating something along the lines of, in the case of a natural disaster, FEMA relief funding could be granted to repair church facilities, but that goes with raising some more issues such as, where is this funding coming from? How can we ensure that all "houses of worship" receive equal funding, to ensure one religion is not being favored over another? This is a difficult case to deal with since the case that participated the policy change, differs so greatly from Hurricane Harvey relief. Overall, I believe it to be a violation of the establishment clause, but since the constitution is a living document, acts can be made for FEMA to be able to fund "houses of worship," in certain scenarios such as hurricane relief.
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