Ban on Disaster Aid for Churches Likely Constitutional

HOUSTON, Texas (CN) – A federal judge on Thursday ruled against three hurricane-damaged Texas churches seeking disaster-relief aid from the Federal Emergency Management Agency, finding the congregations unlikely to prove a ban on aid to churches is unconstitutional.

U.S. District Judge Gray Miller denied the churches’ request for a preliminary injunction and temporary restraining order to “relieve” them from FEMA’s exclusion policy, which denies aid to groups that use their facilities primarily for religious purposes.

The churches — Harvest Family Church, Hi-Way Tabernacle and the Rockport First Assembly of God — were damaged by Hurricane Harvey in August, and sued FEMA on Sept. 4, claiming its ban on aid to faith-based organizations is unconstitutional.

The churches are represented by Becket, a Washington D.C.-based religious advocacy law firm.

In his order Thursday, Judge Miller said he does not believe that FEMA’s policy violates the U.S. Constitution’s Free Exercise Clause, as the churches have argued.

“Plaintiffs do not have to choose between being a church and receiving a government benefit because FEMA’s funds are not contingent on plaintiffs’ status as churches,” Miller said. “Rather, FEMA’s funds are contingent on how plaintiffs plan to use the funds — here, rebuilding facilities used for religious activities.”

Under FEMA’s policies, private nonprofits that provide religious services are eligible for public-assistance grants only if more than 50 percent of their facility is used for non-religious purposes.

The judge pointed out that the churches would use FEMA funds to repair church sanctuaries, a church steeple, and a fellowship hall.

Miller added that FEMA’s policy does not deny funding only to entities whose facilities are primarily used for religious activities – facilities used for “political, athletic, religious, recreational, vocational, or academic training, conferences, or similar activities” are also not eligible for federal aid.

The judge did not rule on whether FEMA’s policy is unconstitutional, but denied the churches’ emergency requests based on his determination that they have not shown that they are likely to succeed on the merits of their case.

Miller has presided over the case for one week. The case was previously in the court of U.S. District Judge Keith P. Ellison, who recused himself on Nov. 30.

Ellison denied FEMA’s request to stay the lawsuit on Nov. 8. The agency had argued that it was undertaking a “comprehensive review” of its disaster-aid policies, and argued that the case should be stayed until the review was complete.

In a statement Thursday, Becket deputy general counsel Eric Rassbach said the churches would appeal Miller’s ruling to the Fifth Circuit.

“FEMA is turning into the Grinch Who Stole Christmas. By continuing to discriminate against churches, FEMA is sending the message that churches are not full members of the community, when they are in fact the beating heart of disaster recovery in Texas and elsewhere,” Rassbach said in a statement.

The churches filed an emergency motion Thursday night with the Fifth Circuit, seeking an injunction of Miller’s order to let them apply for FEMA aid on equal footing with all other nonprofits. They also asked the New Orleans-based appellate court to fast track the briefing and hearing schedule for their appeal, invoking the biblical story of Mary and Joseph being denied a room at an inn in Bethlehem shortly before Mary gave birth to Jesus in a manger.

“There is no reason to keep telling these churches there is no room at the inn,” the motion states.

Meanwhile, the case will proceed to trial in Houston federal court.

In a Nov. 30 amicus brief, Americans United for Separation of Church and State, the American Civil Liberties Union, the Anti-Defamation League and other organizations said that “even in the wake of a terrible disaster,” the government must comply with constitutional restrictions that protect religious freedom by ensuring that religious worship is supported solely by private funds.

“The Establishment Clause of the First Amendment prohibits public funding of repairs of church sanctuaries and other buildings that are used principally for religious activities,” the groups said in the brief.  “And the First Amendment’s Free Exercise Clause does not supersede that prohibition or otherwise require public funds to be put to the support of religious uses.”

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