Does the First Amendment Prevent or Allow FEMA to Provide Disaster Aid to Churches?

To what extent, if any, can the government grant money to churches as part of its efforts to provide disaster relief? Currently, Federal Emergency Management Agency (FEMA) regulations allow certain private nonprofit organizations to receive disaster assistance if they have tax-exempt status and provide eligible services to the general public. Eligible services include primary and secondary education, medical assistance, child care, alcohol and drug treatment, and arts programs. FEMA prohibits disaster assistance, however, if the nonprofit organization provides certain ineligible services, such as vocational training, political education, athletic activities, and, most important for the purposes of this article, religious activities. ¹ As a result, churches are excluded from disaster aid funding.

At least 3 churches in the Houston, Texas, area, all damaged by Hurricane Harvey in September 2017, challenged this restriction on constitutional grounds, claiming that FEMA’s refusal to grant disaster assistance to churches violates their rights under the First Amendment’s free exercise clause. ² In addition, the Trump administration has suggested, aside from this litigation, that it may be prepared to abandon FEMA’s existing regulation and allow churches to receive disaster assistance. If it does, this action would likely trigger a constitutional challenge asserting that providing such aid would violate the First Amendment’s establishment clause. ³ In either case, denying or granting disaster aid to a church will raise serious constitutional questions.

This installment of Law and the Public’s Health addresses the second issue first. Would providing disaster aid to churches be permissible under the establishment clause if the Trump administration were to reverse current regulations? It then examines whether FEMA’s current policy of denying such aid violates the free exercise clause, assuming that providing disaster aid to churches would be permissible under the establishment clause.

Background

The constitutional jurisprudence surrounding permissible government aid to religious organizations is notoriously convoluted. This confusion stems in part because of the First Amendment itself. The First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” ⁴ Literally, then, the First Amendment sends a mixed message. On one hand, the establishment clause singles out religion for disfavored treatment. On the other, the free exercise clause affords religion special deference.

The first major Supreme Court case on government aid to religion, Everson v Board of Education of Ewing Township, ⁵ reflects this contradiction. Everson presented the question of whether the state could provide bus transportation to children attending parochial schools. After first stating that “no tax in any amount, large or small, can be levied to support any religious activities” and further declaring that the First Amendment was intended to erect “a wall of separation” between church and state, ⁶ the Court nevertheless proceeded to uphold the constitutionality of the program. Not funding the program, the Court contended, would constitute hostility toward religion. ⁷

Subsequent decades saw Everson’s ambivalence reflected in the case law, as Supreme Court decisions fluctuated on whether state aid programs were constitutional. In one decision, for example, the Court upheld a program in which the state provided textbooks to parochial school students ⁸ ; in another decision, it struck down a program that provided maps. ⁹ In one case, the Court invalidated a program that provided certain therapeutic services to parochial school students on school property, ¹⁰ whereas in another it upheld the provision of the exact same services to parochial school students in a temporary structure placed across the street from their school expressly for that purpose. ¹¹ The virtue of consistency was nowhere present in these decisions, a fact that the Supreme Court itself readily conceded. ¹²

Some consistency began to emerge in the 1980s. In Mueller v Allen, the Court upheld a Minnesota tax provision that allowed parents of schoolchildren to take certain deductions associated with the expenses of sending children to school. ¹³ Although the taxpayers who received the greatest financial benefits of this program were the parents of children attending religious schools, the Court upheld the provision on the grounds that the statute on its face did not single out religion for special treatment and that the tax deduction was a neutral program benefiting a wide class of taxpayers. ¹⁴ Under the Minnesota law, for example, the parents of public school students could deduct such costs as tuition for drivers’ education classes, although those parents did not have the same full tuition costs as the parents of children attending religious schools. Mueller was followed by Zelman v Simmons-Harris, which upheld a program that allowed the government to provide vouchers to children attending religious and nonreligious schools. ¹⁵ In Zelman, the Court, echoing the Mueller reasoning, held that the voucher program was constitutional because it benefited a wide class of beneficiaries, including those students attending nonreligious schools, even though most of those receiving the benefit were children attending religious schools. ¹⁶

May FEMA Provide Disaster Aid to Churches?

Mueller and Zelman indicate that, as long as a grant program has a wide class of recipients that includes religious and nonreligious beneficiaries, it will be upheld. These cases therefore would support the proposition that allowing churches to receive disaster funds would be permissible as long as FEMA provides aid to similarly situated beneficiaries. Thus, if FEMA changed its rule to allow churches to receive disaster aid, the government would likely assert in its defense that churches and the other beneficiaries of the program are similarly situated. It would likely contend that the purpose of the FEMA program is not building a church for its own sake but, rather, rebuilding communities and averting the dangers of physical harms and disease caused by weakened or ravaged structures. Providing disaster aid to churches, the government would argue, helps further these goals.

Nevertheless, as with everything else in religious clause jurisprudence, there are strong counterarguments. Those attacking providing aid to churches, for example, would likely argue that a house of worship is not similarly situated to other FEMA aid recipients, because it alone is performing a religious function. Under this reasoning, providing aid to a church would be singling out religion for favored treatment and would therefore be impermissible. Challengers would also contend that Mueller and Zelman do not reach this far and that, if the establishment clause means anything at all, it must mean that the government cannot, in effect, build a church.

How the current Supreme Court would rule if the federal government decides to reverse policy and provide disaster aid to churches is not clear. There are sound indications, however, that the Court would uphold FEMA providing disaster aid to churches. As explained previously, one key issue that would need to be resolved is whether, for the purposes of disaster relief, churches are similarly situated to other eligible nonprofit organizations. Given FEMA’s expertise in disaster assistance, it is probable that if FEMA concludes that churches are similarly situated to other eligible nonprofit organizations, the Court will defer to its determination. In addition, the Court would likely consider that churches can, and often do, play a secular role in facilitating disaster recovery, including serving as shelters and locations where residents can pick up emergency supplies. ¹⁷ Finally, aside from the merits of the constitutional issue, the reality is that the Court has become far less wary of government aid programs that benefit religion in recent years, and all signs are that this trend will continue.

Must FEMA Provide Disaster Aid to Churches?

Assuming that providing disaster relief to a church is permissible, the next question is whether it is mandatory under the free exercise clause. That is the claim raised by the churches who are currently suing FEMA for disaster funds in the wake of Hurricane Harvey. (Note: this claim is based on the free exercise clause rather than the Religious Freedom Restoration Act, because the churches here are not asking for an exemption from an otherwise applicable neutral law, as was the case in the Hobby Lobby litigation. ¹⁸ Rather, the churches are seeking to be included in a government program that they allege is not religiously neutral and directly discriminates against them.)

The proposition that religious institutions have a right to government funding on the same terms as comparable nonreligious entities marks a relatively new development in constitutional law, and the leading case on the subject was decided in spring 2017. In Trinity Lutheran Church of Columbia, Inc v Comer, a church-owned preschool sued Missouri because the state turned down its application for a reimbursement grant for the costs of resurfacing its playground with materials made from recycled tires. ¹⁹ The state allowed other nonprofit organizations to receive such a grant, but it had a policy that disqualified churches, a policy that Missouri enacted pursuant to a state constitutional provision that forbade the state from providing any financial aid directly to a church. ²⁰ The Court held that Missouri’s policy violated the free exercise clause on grounds that it denied “otherwise eligible recipients…a public benefit solely because of their religious character.” ²¹ The Court’s holding, however, was deliberately narrow. As it stated in a footnote, “this case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” ²²

How Trinity Lutheran will play out in the context of disaster aid funding is not clear. Certainly, the fact that the Court ruled that excluding religious schools from a grant program constitutes impermissible discrimination is good news for the churches. But unlike the Missouri program, FEMA’s existing policy does not disqualify only religious entities from participation. As noted previously, a wide range of nonprofit organizations other than churches do not meet eligibility standards. FEMA’s policy is thus not one that singles out religion for adverse treatment, as was the case in Trinity Lutheran. Furthermore, FEMA’s policy can be justified on grounds other than the government’s wariness about providing funds directly to a religious entity. Rather, the policy reflects a triage for the disbursement of limited funds based on FEMA’s determination of which types of organizations provide assistance to the general public and which organizations primarily serve a more limited constituency.

On this basis, the Court may be reluctant to hold that FEMA disaster aid funding for churches is constitutionally required. First, it might be inclined to defer to FEMA’s expertise in disaster assistance regarding which organizations are similarly situated for the purposes of facilitating disaster recovery (as it would likely defer to FEMA’s expertise even if it came to an opposite conclusion). Second, it would likely not read FEMA’s regulation as discrimination against religion given that its criterion for eligibility is based on the religiously neutral consideration of which organizations benefit the general public. In contrast with Trinity Lutheran, the FEMA regulation does not deny churches “a public benefit solely because of their religious character.” Finally, the Court would also be concerned that requiring FEMA to fund the churches would be problematic, because it would suggest that the government has virtually no discretion in its funding decisions—either that it must provide aid to religious entities under the free exercise clause or that it is forbidden to do so under the establishment clause. In a previous decision, Locke v Davey, the Court held that the First Amendment allows for some “room for play in the joints,” meaning that “there are some state actions permitted by the establishment clause but not required by the free exercise clause.” ²³ A decision that would require FEMA to fund churches would seriously undermine, if not directly overrule, this precedent.

One last observation. Even if courts find that the FEMA rule excluding churches from disaster aid is unconstitutional or the Trump administration decides to overturn the regulation administratively, it is likely that some churches will not seek government assistance. What is often forgotten is that originally, in the American colonies, the most powerful voices in favor of separation of church and state were Christian evangelicals. They espoused separation between church and state because they believed that state support would corrupt religion and make it less pure. ²⁴ As they saw it, a religion dependent on government would be tempted to alter or conform its practices to receive government largesse and would not be true to its better self. Government money, they understood, inevitably comes with government strings attached.