Will Trump Direct FEMA to Fund Churches Hit by Hurricanes?

The Trump administration “could go ahead and do it,” said Robert Tuttle, a professor at George Washington University Law School. But the problem is that “this seems to be policy that is made disaster by disaster.” Even if the president directs FEMA to do something, the agency could later face lawsuits for doing so. In this case, critics could argue that such funding violates the Establishment Clause of the First Amendment of the Constitution.

This, however, is the strategic brilliance of the Texas church lawsuit. If the churches win an injunction or the government loses in court and FEMA is directed to give out money to churches, there’s “no guarantee that … the government will appeal,” said Tuttle. By then, the funds would have already been disbursed, and it would be up to an outside group like Americans United for the Separation of Church and State to challenge the decision—and find itself in the politically tenuous position of trying to take money away from churches that got destroyed in a hurricane.

The churches’ lawsuit relies heavily on a recent Supreme Court decision, Trinity Lutheran v. Comer. In that case, a Missouri church sued the state for excluding it from a playground-resurfacing program on religious grounds. Seven of the nine justices found in favor of the church. “Trinity Lutheran is, in some ways, a closer case than this one,” argued Blomberg. While the church in that case was asking to be part of a program that would enhance its facilities, “no one is asking for the church to be improved” in Houston, he said. “They’re just trying to get back on their feet [and] … get to a place where they’re no longer a public-health and public-safety hazard.”

It’s not clear how broadly the Supreme Court justices intended for Trinity Lutheran to be applied, or whether they would see these cases as similar. “I am deeply skeptical of that analogy,” said Tuttle. Two things distinguish this case from Trinity Lutheran, he argued. In the majority opinion for that case, Chief Justice John Roberts noted that the decision doesn’t reach the question of “religious uses of funding,” meaning that it might not apply in cases where state funding goes to rebuild a literal sanctuary used for worship. The second difference, argued Tuttle, is that it’s not clear that the three Texas churches would be eligible for FEMA funding even if they weren’t houses of worship. The agency’s public-assistance program only covers certain kinds of immediate relief. Other, non-critical repairs are generally referred to the Small Business Administration, which provides disaster-recovery loans. Organizations can get FEMA money for permanent repair work if the SBA turns them down or doesn’t cover all of the damages.

Constitutionally speaking, “the real question comes down to whether this is framed as a public-safety, emergency-relief action or whether it’s framed as helping a church get a new building,” said Richard Garnett, a professor of law and political science at the University of Notre Dame. “Nobody thinks it’s unconstitutional for a fire truck to put out a fire at a church, and clearly there aren’t different Establishment Clause rules for fires and floods. But are there different rules for putting out fires and repairing a building after it burns?”

Harvey, Irma, and other recent disasters have created a strong legal test case—“it’s the kind of thing that we might cook up so that we can put it on exam questions,” said Garnett. Tuttle offered a slightly more cynical read: “Lawyers are taking this opportunity to try to get relief for these particular congregations—and at the same time, to extend the reach of Trinity Lutheran,” he said. Blomberg described it differently: Becket has been pushing against FEMA’s church policy for years, he said, and Trinity Lutheran was just a sign that the law is moving in the right direction, at least in its view.

In weighing in on the case in Texas, Trump wasn’t just commenting about a few specific churches. He intervened in a long-standing debate about the proper line between church and state in public funding. In an instant, the president could change the terms of the debate, but “whether or not it’s constitutionally permissible doesn’t hinge on whether the president supports it or not,” Garnett said. A change to FEMA’s policy would not be the end of the storm—legally or otherwise. As the churches say in their lawsuit: “Mold will not wait for litigation process to spread through the churches’ buildings; storm and flood debris will not stop rotting while the government processes their claims.”