(CN) – The Federal Emergency Management Agency said Tuesday it will now provide disaster aid to houses of worship, a policy shift spurred by lawsuits from three Texas churches and two Florida synagogues that were damaged by hurricanes.
After Hurricane Harvey ravaged southeast Texas in August three Texas churches sued FEMA on Sept. 4, claiming its ban on aid to faith-based organizations is unconstitutional.
Under FEMA’s former policies, disaster-relief grants could be awarded to schools, nursing homes and hospitals affiliated with religious groups, and church-run community centers, but only if less than 50 percent of their space was used for religious purposes.
The Texas churches complained in their Sept. 12 first amended lawsuit that FEMA’s expansive list of nonprofit community centers that were eligible for disaster-relief funds included performing arts centers and groups focused on “car care, ceramics, gardening . . . sewing, stamp and coin collecting,” while churches that provided shelter to people displaced by disasters were excluded.
But FEMA announced Tuesday it has done away with its house of worship-exclusion policy.
“Private nonprofit houses of worship are now eligible for disaster assistance as community centers, without regard to their secular or religious nature,” the agency said in a statement.
FEMA said that storm-damaged churches must apply for loans from the U.S. Small Business Administration, and it will give them disaster-relief funds if the SBA denies them a loan, or if the loan amount won’t cover their damage.
Hi-Way Tabernacle, a Pentecostal church in Cleveland, Texas, 55 miles northeast of Houston, is the lead plaintiff in the Texas lawsuit.
It housed 70 people displaced by Hurricane Harvey even though it suffered flood damage from the hurricane.
It also served as a staging center for FEMA, which distributed more than 8,000 emergency meals from the church, according to its attorneys with the Becket Fund for Religious Liberty in Washington, D.C.
Becket attorney Daniel Blomberg argued in a Nov. 7 hearing in Houston federal court that FEMA’s former policy was akin to a Missouri benefits program that excluded churches from applying for aid to resurface their playgrounds.
According to the FEMA’s 217-page Public Assistance Program and Policy guide informally released Tuesday, the policy shift was made because of the U.S. Supreme Court’s opinion in Trinity Lutheran Church of Columbia v. Comer.
The 7-2 opinion penned by Chief Justice John Roberts and issued June 26 found that the state of Missouri can’t withhold public funds to a church solely on the basis of its status as a house of worship. The issue found its way to the Supreme Court after the Missouri Department of Natural Resources had denied Trinity Lutheran a grant that was otherwise available to secular schools to resurface its playground.
But in a Dec. 7 order denying the Texas churches’ request for an injunction, U.S. District Judge Gray Miller wrote that the Missouri case is different because it involved the “funding of a playground, not a religious activity,” while the churches were demanding FEMA funds to repair sanctuaries mainly used for religious services.
Critics of the Supreme Court’s ruling in the Trinity case, however, see reason for caution should it blur the line between church and state.
Supreme Court Justice Sonya Sotomayor drew attention to that issue in her dissent, which Justice Ruth Bader Ginsburg joined.
“This Court has repeatedly warned that funding of exactly this kind—payments from the government to a house of worship—would cross the line drawn by the Establishment Clause,” the dissent says.
According to constitutional law professor Leslie Griffin at the University of Nevada Las Vegas, that concern stems from a fear among critics that the ruling could quickly lead to government funding of religion without thinking through the implications.
One portion of the revised FEMA policy Griffin pointed to in order to highlight this concern deletes the word “religious” from the following sentence: “Facilities established or primarily used for political, athletic, religious, recreational, vocational, or academic training, conferences, or similar activities are not eligible.”
In an email, Griffin said some could argue that this provision embodies the fears critics of the Trinity ruling have.
“They deleted ‘religious’ without looking at the bigger picture of who else got aid, who didn’t, and in what circumstances,” Griffin said. “It sets up the possibility that religion may get special aid in defiance of old Establishment Clause concerns. Critics are especially concerned that the Establishment Clause should prevent funding of church buildings themselves.”
For constitutional law professor Erwin Chemerinsky, the dean of Berkeley Law at the University of California, what the Trinity ruling requires of courts remains an open question.
In his view, FEMA likely could have made disaster aid available to houses of worship prior to the Trinity ruling in the same way the government provides them with police and fire protection.
“I think the interesting question is whether after Trinity Lutheran the Court would be required to provide such aid,” he said in an email. “Trinity Lutheran does not answer that question as it is explicit that it is only about aid for playgrounds.”
Chemerinsky pointed to the third footnote in the majority opinion, which he says limits the scope of the ruling.
“This case involves express discrimination based on religious identity with respect to playground resurfacing,” the footnote says. “We do not address religious uses of funding or other forms of discrimination.”
According to Chemerinsky, clarification is in order.
“I think it very important to separate what the government may do from what it is required to do [emphasis original]. I think Trinity Lutheran is about the latter and it is unclear how far that will extend,” he said.
But Daniel Blomberg, one of the attorneys working on the case, countered that the third footnote in the Trinity ruling is not part of the holding of the case, and was only joined by four justices. He finds a bigger constitutional problem in FEMA’s prior policy.
“You had government agents that were going in and saying, ‘you know, you just look a little too religious to me to get disaster relief aid.’ And people who are sincerely concerned about a good and healthy separation of church and state should be supportive of ending a policy that has bureaucrats making those kinds of calculations,” Blomberg said. “And allowing churches to have merely equal access to disaster relief services does not create a constitutional problem, it solves a constitutional problem.”
Blomberg said it only makes sense to allow houses of worship to get disaster aid, particularly since they are often the first to respond and help communities recover from natural disasters.
“Frankly, helping people who are doing that kind of thing – not because the government’s asking them too, not because they have to but because that’s who they are – that just makes a lot of sense,” he said.
FEMA meanwhile urged patience in court filings, unsuccessfully seeking a stay of the Texas case as it considered whether to change its policy.
The Texas churches appealed Miller’s order to the Fifth Circuit in New Orleans, which denied their emergency motion for relief.
The churches then asked U.S. Supreme Court Justice Samuel Alito to block the FEMA policy. FEMA published the new policy before its deadline to respond to the churches’ Supreme Court filing.
FEMA declined to comment on why it changed its policy, but offered a statement taken directly from its Jan. 2 policy guide: “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.”
Becket is also representing two Florida synagogues that were damaged by Hurricane Irma in another federal lawsuit making similar claims against FEMA.
Blomberg said the churches were severely damaged in the storm. Their FEMA disaster relief applications have been pending for 103 days, the Becket Law attorney said in a phone interview.
His clients welcomed news of the policy shift, he said.
“It’s a big step in the right direction. And now the real question is will FEMA follow what its saying it will do,” Blomberg said. “It’s great to see the policy change has been proposed but as far as the boots on the ground, the reality is these churches still aren’t getting the same help that other nonprofits are.”