The Story: The Federal Emergency Management Agency (FEMA) recently changed rules that disqualified churches from disaster relief aid available to other nonprofits.
The Background: In the wake of natural disasters—such as last year’s Hurricane Harvey, which caused more than $200 billion in damage—privately run non-profit organizations often receive federal grants to rebuild and restore their facilities. According to FEMA, the purpose of these grants is to provide funds so that “communities can quickly respond to and recover from major disasters or emergencies declared by the President.”
However, non-profits have typically been ineligible from receiving such funds if the damaged facilities were established or used primarily for religious services, religious education, or religious activities, such as “worship, proselytizing, religious instruction, or fundraising activities that benefit a religious institution and not the community at large.” Three churches in Texas and two Jewish synagogues in Florida had filed lawsuits challenging the exclusion, but FEMA decided to change the rules because of the Supreme Court’s decision in an important religious liberty case from last year, Trinity Lutheran Church of Columbia v. Comer.
Last week FEMA issued a revision to their Public Assistance Program and Policy Guide, which reads:
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.
The revision will be made retroactive to cover damage incurred as early as August 23, 2017, providing relief to churches affected by Hurricane Harvey.
What It Means: In a surprising development, a controversy involving old car tires and a church playground led to churches becoming eligible for federal disaster relief funding.
The Trinity Lutheran case involved a religious preschool that was rejected from a state program that provides reimbursement grants to purchase rubberized surface material (for example, tire scraps) for children’s playgrounds. The preschool was ultimately denied the grant for its playground solely because the playground belongs to a religious organization.
The Supreme Court ruled last June that the state’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status. The Court said the policy expressly discriminated against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.
The ruling notes that the Court has “repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion” and concluded that the “exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”
Many religious liberty advocates argued that FEMA’s exclusion was based on the same unconstitutional exclusion in the Trinity Lutheran case. The lawsuit against FEMA by the three Texas churches said they were asking the agency to treat them on equal terms with other non-profit organizations in accepting, evaluating, and acting on their disaster relief applications. “The churches are not seeking special treatment; they are seeking a fair shake,” the lawsuit said.
One of the ironies of the previous FEMA rules, as the religious liberty law firm Becket has pointed out, is that FEMA regularly uses houses of worship to set up relief centers and yet denied the grants to churches because those same facilities were primarily used for “religious purposes.”
Not every Christians would agree, of course, that churches should take such funding from the state. But we should be able to agree that the determination to reject such funding should be left to the houses of worship rather to a federal agency. Indeed, all advocates of religious freedom should be wary of allowing the government to discriminate against religious organizations providing a benefit to their community. And we should be hesitant to allow the the state to exclude churches from receiving a generally available public benefit simply because they are religious.