HOUSTON (CN) — The Federal Emergency Management Agency asked a federal judge Tuesday to dismiss claims from three Texas churches that FEMA’s disaster aid policies unconstitutionally discriminate against religious organizations.
The churches — Harvest Family Church, Hi-Way Tabernacle, and Rockport First Assembly of God — suffered extensive property damage from Hurricane Harvey. They sued FEMA on Sept. 4, claiming its ban on aid to faith-based organizations violates the “free exercise” clause of the First Amendment.
FEMA does not offer disaster-relief grants to businesses, but nonprofits such as zoos, nursing homes, museums and homeless shelters that provide “noncritical, but essential governmental services” to the public may be eligible, according to the complaint.
“Yet for houses of worship, FEMA’s policy is ‘simple: No churches need apply,” the churches say.
They cite the U.S. Supreme Court’s June ruling in Trinity Lutheran Church of Columbia Inc. v. Comer: that Missouri could not exclude a church preschool from a state program to resurface playgrounds, because such a denial constitutes religious discrimination.
The Texas churches say the discrimination in their case is “particularly irrational,” as FEMA officials have said that churches serve an essential role in disaster recovery, and that religious organizations are often among the first responders to disasters.
The three churches ask for preliminary and permanent injunctions prohibiting FEMA from enforcing its church exclusion policies.
“The churches are not seeking special treatment; they are seeking a fair shake,” the complaint states. “And they need to know now whether they have any hope of counting on FEMA or whether they will continue to be excluded entirely from these FEMA programs.”
The churches are represented by The Becket Fund for Religious Liberty, in Washington, D.C.
In a lengthy response to the request for an injunction, FEMA said it treats religious and nonreligious organizations alike, and does not “categorically exclude churches or other faith-based organizations from public assistance just as it does not categorically award grants to secular nonprofit organizations.”
FEMA said in a Sept. 28 statement that faith-based organizations in areas that have been declared disaster areas may apply for FEMA grants to “help them get back to the business of helping others.”
But Becket Fund attorney Daniel Blomberg told Courthouse News that the FEMA statement was misleading, and that many groups that apply for federal disaster aid wait for years, only to be denied assistance.
Private nonprofits that provide religious services are eligible for public assistance grants only if more than 50 percent of the facility for which they request aid provides “eligible services.” Religious education and religious services are ineligible services in FEMA’s Public Assistance Program and Policy Guide.
Taking direct aim at the policy in a Sept. 29 amicus brief supporting the churches, Houston synagogue Torah Vachesed and the unincorporated group Jews for Religious Liberty say the religious status of a community institution “cannot be resolved by a calculator.”
In determining whether an organization is “too religious” — the 50 percent rule — they say the government has an impossible task of drawing lines to establish where faith ends and culture or tradition begins.
“The Jewish faith is central to the Jewish sense of identity and community. It permeates Jewish community life, touching in some way every aspect of daily life and activities, from food, to clothing, to social gatherings, to community service. As a result, the government’s inquiry inevitably boils down to a determination of whether the community activities that occur at the Jewish 501(c)(3) are Jewish in character. If they are, the Jewish institution will not qualify for public hurricane assistance,” the amicus brief states.
“Put simply, any group that is too Jewish need not apply.”
The Roman Catholic Archdiocese of Galveston-Houston also filed an amicus brief in support of the churches.
“Firefighters don’t refuse to put out a fire because the fire is at a synagogue,” the Archdiocese said in its Oct. 2 brief. “The police don’t refuse to investigate a break-in because burglars targeted a church. And FEMA should not refuse houses of worship the same aid that it offers other nonprofits.”
The Archdiocese said that by refusing aid to religious organizations “that are so engaged in helping others,” FEMA’s policy hurts the broader community. It cited examples of religious organizations helping communities after Hurricanes Harvey and Irma, including a Miami nun who wielded a chainsaw to clear help clear debris after Irma, while wearing her habit.
“When police told her that others would come clear the trees, Sister Margaret Ann … responded that the trees were dangerous and couldn’t wait to be cleared,” the Archdiocese said.
“These examples are not merely colorful or inspiring anecdotes. In this case, they are reflective of the role — repeated over and over again by like-minded individuals inspired by faith — that houses of worship and religious communities play in helping our communities clean up and rebuild after natural disasters. Such organizations and communities don’t wait for the government. They dig in and get to work as soon as the needs are visible.”
Hi-Way Tabernacle has been assisting with Hurricane Harvey relief efforts.
The Pentecostal church in Cleveland, Texas, 55 miles northeast of Houston, suffered significant flooding damage from Harvey, but opened its doors to evacuees. Hi-Way Tabernacle is housing 70 Harvey refugees, who might be living there until November, attorney Blomberg said. He said the church has done the same after previous hurricanes.
The church is also serving as a staging center for FEMA, which has distributed more than 8000 emergency meals from the tabernacle’s facilities.
Blomberg said it’s “irrational” to exclude Hi-Way Tabernacle, which is essentially doing the government’s work, from federal disaster aid.
President Donald Trump apparently agrees. In a Sept. 8 tweet, he wrote that “churches in Texas should be entitled to reimbursement from FEMA Relief Funds for helping victims of Hurricane Harvey (just like others).”
FEMA said last week that it was considering making changes to its grant program and might adopt changes that would moot the plaintiffs’ claims. FEMA said this in its Sept. 29 motion for a 60-day stay of the case, but said it did not know what changes, if any, would result from its policy review.
The case is in U.S. District Judge Keith Ellison’s court.
The churches’ lead attorney is Eric Rassbach with The Becket Fund.
(Courthouse News reporter Cameron Langford contributed to this report. Photo shows the Harvest Family Church after Hurricane Harvey.)