No church/state separation..

FEMA broadens churches' access to disaster funds

The president pushed for the policy change after Hurricane Harvey.

By JOSH GERSTEIN

Less than four months after President Donald Trump suggested churches should be able to receive federal disaster relief funds, officials have changed federal policies to make it easier for religious institutions to qualify for such aid.

With lawsuits pending in Texas and Florida from churches and synagogues challenging the limits, the Federal Emergency Management Agency announced Tuesday that it is removing language in its rules that often disqualified religious groups from aid available to other non-profits.

"Private nonprofit houses of worship will not be singled out for disfavored treatment within the community centers subcategory of [Public Assistance] nonprofit applicants," FEMA Recovery Directorate Assistant Administrator Alex Amparo wrote in a new manual released Tuesday.

FEMA said religious institutions could now qualify as "community centers" eligible for disaster grants, although facilities primarily used for "political, athletic....recreational, vocational, or academic training" will still be barred from receiving support.

Amid the Hurricane Harvey relief effort last September, Trump declared that the federal government was treating churches unfairly.

"Churches in Texas should be entitled to reimbursement from FEMA Relief Funds for helping victims of Hurricane Harvey (just like others),” the president tweeted.

It was not clear what specific relief programs Trump was addressing, but the revised policy FEMA made public Tuesday will be retroactive to coverage damaged incurred as early as Aug. 23, 2017, providing relief to houses of worship impacted by Harvey.

Amparo said the recent policy change was driven by a Supreme Court decision issued in June finding that the State of Missouri violated the Constitution when it excluded the Trinity Lutheran Church day-care center in Missouri from receiving state funds for playground resurfacing.

"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," the FEMA official said.

However, whether the Supreme Court's decision requires the changes made by the Trump administration is far from clear.

Indeed, the judge assigned to the suit that three Texas churches brought over the previous policy denied them an injunction last month, writing that the Trinity Lutheran decision did not mean FEMA was obligated to pay to repair structures used primarily for religious purposes.

"FEMA’s funds are contingent on how Plaintiffs plan to use the funds — here, rebuilding facilities used for religious activities," wrote U.S. District Court Judge Gray Miller, an appointee of President George W. Bush. "The government has a historical and justifiable interest in avoiding an establishment of religion and using public funds to support religion. ... Here, the funding would be used to repair church facilities so that Plaintiffs could use their facilities for their primary service, which Plaintiffs admit is providing religious activities."

The churches appealed the decision to the 5th Circuit Court of Appeals, which denied emergency relief but agreed to hear the case next month. Another request for an emergency injunction is pending at the Supreme Court, but was not acted upon before the policy change announced Tuesday.

An attorney for the churches and synagogues suing over the former policy, Daniel Blomberg of the Becket Fund, welcomed the administration's move.

"Better late than never,” Blomberg said. “By finally following the Constitution, FEMA is getting rid of second-class status for churches, which in the words of the Supreme Court was 'odious' to the First Amendment. We will watch carefully to make sure that FEMA’s new policy implemented to provide equal treatment for churches and synagogues alongside other charities.”

The latest move seems unlikely to mean an end to the legal saga, however, since several groups have argued that paying taxpayer funds to rebuild churches is unconstitutional.

"The Establishment Clause prohibits the government from granting public funds for the support of religious uses, including for the construction or repair of buildings used for religious worship," Americans United for Separation of Church and State, the American Civil Liberties Union, the Anti-Defamation League and others wrote in an amicus brief filed with the 5th Circuit last month. "The grants sought by the plaintiffs here would support repairs to church sanctuaries and other core religious facilities, and are thus plainly proscribed by the Establishment Clause."

A spokesman for Americans United, Rob Boston, said his group is reviewing the administration's announcement and considering how to respond.

"Our attorneys are looking at the new policy trying to determine the scope of the change," Boston said. "Under current FEMA rules, houses of worship can receive reimbursement for certain secular services they provide to communities in the wake of natural disasters. However, giving churches taxpayer support for purely religious uses, such as the rebuilding of sanctuaries, is unconstitutional under current precedent. If the new policy moves in that direction, we believe it is vulnerable."