Last week, three Texas churches filed a lawsuit against FEMA due to its policy of denying disaster relief to churches and other institutions simply because of their religious nature.

Under FEMA’s public assistance disaster relief program, repair money is available to a host of entities providing both critical and noncritical services. Examples of noncritical services include venues hosting art classes, food assistance services, health and safety programs, senior services, museums, zoos, and even stamp and coin collecting. Moreover, aid is also available to what are termed “various social functions of community groups.” Yet churches are banned under this policy because they are “religious.”

However, Hurricane Harvey didn’t discriminate in its choice of targets. When the storm hit the Texas coast, Harvest Family Church, Hi-Way Tabernacle, and Rockport First Assembly of God were all extensively damaged. Roofs caved in, trees fell in the buildings, and flooding caused serious damage to multiple structures. These churches need what is known as “emergency work” under FEMA’s public assistance program, yet they will be denied such relief because they are not “eligible” – solely because they are religious. Unfortunately, without debris removal and repair, according to the churches, people using their facilities and grounds face serious health and safety concerns as a result of “broken glass, sharp metal and wood, downed trees, falling limbs, mold and mildew, slick surfaces, and structures that are weakened by high winds and flooding.” While Harvey didn’t discriminate, FEMA did, and as a result the churches filed a lawsuit against FEMA challenging its ban as a violation of the Free Exercise clause of the First Amendment.

Under Trinity Lutheran Church v. Comer, a case the Supreme Court decided earlier this year, the government cannot discriminate against religious entities in a public grant program just because they are religious. The Court repeatedly made this point in its opinion in that case:

  • “This 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.”
  • “The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant.”
  • “Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character. . . . The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant.”
  • “In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. The rule is simple: No churches need apply.”
  • “The State in this case expressly requires Trinity Lu­theran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified.”
  • “The State has pursued its preferred policy to the point of expressly denying a qualified religious entity a public benefit solely because of its religious character. Under our precedents, that goes too far. The Department’s policy violates the Free Exercise Clause.”
  • But 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.

Likewise, the government can’t discriminate against the churches in this case. As the churches point out in their complaint, the government is providing public assistance repair money toward venues hosting “social activities to pursue items of mutual interest . . . educational enrichment activit[ies] . . . service[s] or activit[ies] intended to serve a specific group of individuals,” and “community board meeting[s].” There is no substantive difference between those activities whether they are hosted in or outside of a church. Yet a church hosting such activities would be denied recovery funds simply because it is “religious.”

In Justice Breyer’s concurring opinion in Trinity Lutheran, and at oral argument in that case, one of the points raised was that if the government flatly excludes public money from going to religious institutions, it would have to deny them services like law enforcement and fire emergency services. This would be the logical implication of the position, yet everyone can see it is ludicrous. If these churches would not be denied fire emergency services, why should they be denied money to address the extremely dangerous condition of their properties?

When the issue became public, President Trump seemed to side with the churches, tweeting: “Churches in Texas should be entitled to reimbursement from FEMA Relief Funds for helping victims of Hurricane Harvey (just like others).”

And why not, when faith groups and churches are providing the lion’s share of the effort toward cleaning up after Harvey and other disasters? Even the churches in this case are already caring for many in the community; it would add insult to injury to deny them the same aid offered to others. As the complaint points out,

“...[A]s it did in the aftermath of Hurricanes Rita and Ike, Hi-Way Tabernacle is currently serving as a staging center for FEMA and local government relief efforts. Despite suffering significant flooding and damage, the Tabernacle quickly got its facilities to a serviceable state and immediately began taking in evacuees. As of September 4, the church was sheltering between 60 and 70 people, with more expected. The Tabernacle’s gym has been transformed into a warehouse for the county, storing and distributing food, water, hygiene products, and clothing. Over 8,000 FEMA emergency meals have been distributed from the Tabernacle’s facilities. Relief workers are using the facilities to provide both medical services and haircuts to victims. The Tabernacle has been informed that governmental disaster relief helicopters may be landing on its property as well.”

 

It's great to see that Congressman Chris Smith has introduced the Federal Disaster Assistance Nonprofit Fairness Act of 2017 to remedy this problem. Under his proposed legislation, which amends the Robert T. Stafford Disaster Relief and Emergency Assistance Act by implementing the holding of Trinity Lutheran, religious entities will be treated exactly the same as all other entities under consideration for disaster relief assistance. For the three churches in Texas, and the many other religious institutions damaged by disasters, this change couldn’t come soon enough.

Let us hope this issue is fixed soon, and no entity is denied a spot in the public square just because it is religious.