Photo by Jill Carlson - Hurricane Harvey - August 28, 2017 - Story on FEMA funding for church rebuilding

Last summer, Hurricane Harvey created a wake of destruction across southeast Texas, and the Federal Emergency Management Agency (FEMA) stepped in to provide disaster-relief grants to some organizations. Under FEMA’s policy at the time, churches could receive funding to repair only those portions of their facilities where less than 50 percent of the space was used for religious purposes. As a result, schools or church-run hospitals and community centers could receive aid, but not church sanctuaries.

FEMA’s policy stated that “[f]acilities established or primarily used for . . . religious . . . activities are not eligible” for federal government aid. The term “religious activities” was defined as “worship, proselytizing, religious instruction, or fundraising activities that benefit a religious institution and not the community at large.”

On September 4, 2017, three Texas churches filed a lawsuit ( ) claiming that FEMA’s policy violated the Free Exercise Clause as expressed in the Supreme Court’s recent decision in Trinity Lutheran Church of Columbia, Inc., v. Comer 137 S. Ct. 2012 (2017).

The three congregations, including Harvest Family Church, Hi-Way Tabernacle, and Rockport First Assembly of God, claimed that the FEMA policy discriminated against churches because of their religious status. In the words of the lawsuit, “Under the Free Exercise Clause of the First Amendment – particularly as interpreted by the Supreme Court decision in Trinity Lutheran Church – government may not discriminate against a church, or a synagogue, or a mosque simply because of its status as a place of religious teaching and worship.”

The concept that the free exercise clause not only applies to the freedom of a person to follow their religious beliefs but also to their entitlement to government benefits is a relatively new concept. The churches, in this case, made an argument that churches are sometimes considered the “real first responders” to disasters and their facilities can be used to distribute emergency aid to the community at large.

We will not have to wait to find out what the courts think about the churches' argument because last week the Federal Emergency Management Agency (FEMA) announced that it would change its policy to allow churches, but not the other excluded organization types, including organizations that primarily provide “political, athletic, recreational, [or] vocational” activities or “academic training and conferences."

While Trinity Lutheran Church went to great pains to claim that it would be neutral about how its state-fund resurfaced playground would be used, the three Texas churches made no such neutrality claim. They simply stated that they deserved government funding for their places of “religious teaching and worship” and that not to fund them would violate their free exercise of religion.

Historically, the FEMA grants are for facilities where at least 50% of the activities provide “essential services of a governmental nature to the general public.” However, churches are not likely to devote more than 50% of their activities to providing such services to the public.

If FEMA has protected “free exercise” rights of churches by making sure they get government money as opposed to other presumably less-government-like organizations, it may have run afoul of the Establishment Clause in doing so by violating the fading constitutional prohibition on state funds going to religious institutions. This protects taxpayers from being forced to pay for religion and protects churches from excessive governmental entanglement and potential regulation.

It will be difficult to find a plaintiff to challenge this type of regulatory change since the Supreme Court’s 2007 decision in Hein v. Freedom From Religion Foundation, 551 U.S. 587 that taxpayers do not have the right to challenge the constitutionality of expenditures by the executive branch. So while the Free Exercise Clause is expanding towards requiring the government to pay for religion, the Establishment Clause is shrinking.

Photo: Jill Carlson, Hurricane Harvey taken 8/27/17 – Creative Commons.


1 Comment

  1. RussellsTeaPot says:

    How unfortunate that some Christians (not all) wish to malign the religious rights of fellow citizens by imposing a religious tax, similar to taxes that Madison vehemently opposed in Virginia.

    "When a Religion is good, I conceive that it will support itself; and, when it cannot support itself, and God does not take care to support, so that its Professors are oblig'd to call for the help of the Civil Power, it is a sign, I apprehend, of its being a bad one."

    – Benjamin Franklin

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