The Government Gets Into the Church-Rebuilding Business

Tucked among the provisions in the budget bill passed by Congress on Friday are new rules about how FEMA, the Federal Emergency Management Agency, works with houses of worship. According to the new law, religious nonprofits can’t be excluded from disaster aid just because of their religious nature, which had been the agency’s policy in certain contexts prior to January.

The move resolves a long-standing controversy over the agency’s policy on religious aid, mostly recently raised during Hurricanes Harvey and Irma, which damaged a number of houses of worship in the South. It’s also part of a significant trend: Rules on government money going to religious organizations are loosening, a shift that has consequences well beyond disaster aid and emergency management.

Last summer, when Hurricane Harvey ripped across islands in the Caribbean, Louisiana, and Texas, it left roughly $125 billion in damage, according to the National Oceanic and Atmospheric Administration—second in cost only to Hurricane Katrina. Worse, it was followed almost immediately by Hurricanes Irma and Maria, which further devastated Florida, North Carolina, Puerto Rico, and other areas.

Among the many buildings that were damaged were churches and synagogues that got flooded and wrecked. Despite religious organizations’ key role in disaster-recovery efforts, houses of worship weren’t equally eligible for federal disaster-relief and rebuilding funds. As a result, a number of groups, including three churches in Texas and an Orthodox Jewish organization in Florida, sued the government.

Early on, it was clear that they had the White House on their side. “Churches in Texas should be entitled to reimbursement from FEMA Relief Funds for helping victims of Hurricane Harvey (just like others),” President Trump tweeted in September. From a legal perspective, time was arguably on their side as well. The hurricanes hit roughly one month after the U.S. Supreme Court decided Trinity Lutheran v. Comer, ruling that governments can’t discriminate against religious organizations in awarding grants simply because of their religious nature. The lawsuits relied heavily on that decision, reasoning that the disaster-aid exclusions were analogous to the situation presented in the case.

In January, FEMA took steps to resolve the dispute with new guidelines on eligibility for its public-assistance program, which provides grant money for debris removal, emergency protection, and facility repairs for certain kinds of organizations. In light of Trinity Lutheran, it decided, it would reinterpret the Stafford Act, the law that governs eligibility for disaster aid.

While these new guidelines changed the situation for houses of worship, they were ultimately impermanent and vulnerable to revision under a new administration. That’s where Congress’s new budget bill comes in: It revised the text of the Stafford Act itself. Under the new law, which was signed by Trump on Friday, houses of worship can’t be excluded from aid provided to other nonprofits, including schools, hospitals, and elder-care facilities, just because they’re led by people “who share a religious faith or practice.” This includes money for the “repair, restoration, and replacement of damaged facilities.”

That’s where things get legally tricky. Scholars are split on how the Constitution should be interpreted when it comes to government money for houses of worship. Over the last few decades, courts have steadily pushed interpretations that allow government grants to religious organizations in certain contexts, like providing educational materials to parochial schools or giving money for neutral renovations, such as resurfacing a playground.

Those who favor stricter rules separating church and state have worried that this will open the way to government money supporting explicitly religious functions. In her dissent to Trinity Lutheran, Justice Sonia Sotomayor argued that government money that goes toward an allegedly neutral purpose at a church is still government money supporting a church: It “cannot be confined to secular use any more than lumber used to frame the church’s walls, glass stained and used to form its windows, or nails used to build its altar,” she wrote. Arguably, her fears are actualized in the new FEMA law, which directly supports the rebuilding of church walls and altars after they’ve been destroyed in natural disasters. As Jason Lemieux, the director of government affairs at the Center for Inquiry, wrote in a statement, the new law would “require Americans to fund the repair of religious buildings with no regard for their individual religious or moral beliefs. … If churches want protection against damage from natural disasters, that’s what insurance is for.”

But religious-freedom advocates and faith organizations cheered the new law as a common-sense course correction to a flawed FEMA policy. “It was always strange to tell houses of worship that there is no room at the inn, when they are the first to help in time of need,” said Diana Verm, a lawyer Becket, the firm that championed the lawsuits against FEMA, in a statement. “Congress has now put this troubling history of discrimination behind us.” The Orthodox Union, which represents Modern Orthodox Jewish synagogues and rabbis, said the law will bring “a new era of fairness for disaster-stricken synagogues, churches, and other houses of worship.” The U.S. Conference of Catholic Bishops applauded it as “good not only for houses of worship but for the communities that depend on them.”

It’s possible that this new approach would have come about based on court decisions, regardless of the administration in office. But Trump certainly made things easier by throwing his weight behind the case for church funding. Throughout his time in office, the president has consistently given his unqualified support to causes championed by religious-freedom advocates. And these groups are actively looking for ways to expand the reach of Trinity Lutheran, especially in spheres like education that are much more contentious than disaster relief.

That’s the tactical brilliance of the new FEMA provision, though: Battles over the First Amendment don’t seem so compelling in the context of a torn-up church. For now, houses of worship will get to rebuild, and the legal consequences will be left for debate another day.