Dec 04, 2017

Many people and institutions – including houses of worship – suffered great harm from Hurricane Harvey. But even in the most difficult of times, the longstanding principles of the First Amendment must not be abandoned.

That’s why Americans United and our allies have urged a federal district court in the Southern District of Texas to rule that the First Amendment’s religious freedom provisions don’t compel the Federal Emergency Management Agency (FEMA) to issue grants to reconstruct houses of worship, in part because such grants would violate separation of church and state.

Three Texas churches filed a federal lawsuit against FEMA in early September, calling for taxpayer aid to rebuild their sanctuaries, a fellowship hall, a steeple, pastoral offices and a parsonage – all of which were damaged by Hurricane Harvey.

Even in the wake of a hurricane, the First Amendment remains in effect.

Like most nonprofit organizations and businesses, houses of worship are already eligible for government reimbursement for the non-religious emergency services they provide to aid their communities in disaster recovery and for government loans to rebuild after a storm. But in this lawsuit, the churches assert that they should have access to a limited pool of direct government grants for rebuilding, which FEMA policy makes available only to nonprofit organizations that provide emergency or essential, government-like services that are available to the general public.

There’s a major constitutional problem with the churches’ demand: The government is not in the business of building or rebuilding churches, synagogues, and mosques – even after a terrible disaster.

In our brief, we point out that our Founding Fathers intended to preserve religious freedom by ensuring that taxpayers would not be forced to support religious beliefs to which they do not subscribe and by guaranteeing that houses of worship would not become dependent on state largesse, compete with each other for government funds or suffer from governmental interferences that accompanies public funding.

Granting public funds to repair and rebuild church sanctuaries and other core religious facilities, as the churches request, would plainly violate these founding principles.

The churches argue that their exclusion from FEMA’s grant program is the same as Missouri’s exclusion of churches from its playground resurfacing program that was invalidated recently by the Supreme Court in Trinity Lutheran Church of Columbia, Inc. v. Comer.

We disagree. The First Amendment does not require the government to fund religious activity on equal terms with secular activity. Unlike Trinity Lutheran, the grants here would support religious activities, and the determination made by FEMA is based on how a facility is used, not its religious status. (In fact, a religiously affiliated nonprofit institution that is not used for religious worship could be eligible to receive FEMA’s grants). The churches here seek funding to repair integral elements of their buildings that are necessary to their religious worship, not playgrounds.

Americans United continues to be concerned about those recovering from Hurricanes Harvey and Irma. But we can’t let these storms be used as a premise to undermine our founding constitutional religious protections. Religious freedom is one of our nation’s most cherished values, and it’s best protected by keeping a healthy distance between religious institutions and taxpayer funds.

P.S. On Friday, the judge who was hearing this case recused himself. It will be assigned to a new judge, and he or she will have to take some time to get familiar with the lawsuit. This will likely delay a ruling.