Judge denies churches FEMA funds
Case involving Texas sites damaged by Harvey tests constitutional limits
A Houston federal judge has denied an emergency request by three Texas churches for access to funds to rebuild sanctuaries damaged during Hurricane Harvey in a case that tests the constitutional boundaries separating church and state.
U.S. District Judge Gray H. Miller denied the churches’ motion Thursday for a temporary injunction to apply for Federal Emergency Management Agency grants.
The case will proceed to trial on the question of whether nonprofit religious organizations can use federal money to rebuild church sanctuaries. The churches’ argument relies on a U.S. Supreme Court ruling in June that found the Missouri state government could not deny funds to a church group that applied for federal community grants to improve a playground.
Churches in three hard hit communities — Harvest Family Church in Cypress,
“FEMA is turning into the Grinch who stole Christmas.”
Eric Rassbach, deputy general counsel at Becket
First Assembly of God in Rockport and Hi-Way Tabernacle in Cleveland — filed the suit in September, claiming the government’s disaster relief policy vio-
lated the Constitution’s establishment clause, denying faith groups the right to apply for funds.
Eric Rassbach, deputy general counsel at Becket, the nonprofit religious liberty law firm that brought the case, said upholding the government’s stance was particularly grim given the time of year.
“FEMA is turning into the Grinch who stole Christmas,” he said. “By continuing to discriminate against churches, FEMA is sending the message that churches are not full members of the community, when they are in fact the beating heart of disaster recovery in Texas and elsewhere.”
The churches promptly appealed Miller’s ruling on the injunction Thursday to the Fifth U.S. Circuit.
A Justice Department spokesperson declined to comment on the decision.
Timing not ‘ripe’
A range of groups that support the separation of church and state were pleased with Miller’s opinion, according to Alex Luchenitser, associate legal director at Americans United for Separation of Church and State, who filed a friend-of-the-court brief last week along with five other organizations.
“The Court correctly recognized that the Constitution does not require the government to grant churches tax dollars to rebuild their places of worship,” Luchenitser said. “This ruling protects the freedom of conscience of taxpayers by ensuring that they do not have to subsidize religions to which they do not subscribe.”
He added, “It also protects the religious freedom of churches, because governmental funding can result in improper governmental interference in religious matters.”
U.S. District Judge Keith Ellison had given the government a Dec. 1 deadline to respond to the churches’ request to apply for relief funds, which have previously been denied to religious groups seeking to rebuild houses of worship after natural disasters.
Ellison recused himself, and the case was transferred to Miller.
A Justice Department attorney said in briefs and oral argument that the timing was not “ripe,” and the government could not take a position about the churches getting the money. Top officials at FEMA were proposing a change in the law but those changes were awaiting administrative review, the lawyer said.
In the courtroom and filings, lawyers for the churches had asked the court to move swiftly, while FEMA remained in this holding pattern.
The lawsuit leans heavily on a June opinion by Justice John Roberts in which the Supreme Court found a Lutheran church in Missouri that ran a preschool and day care should not be denied access to state grants that pay for rubberized ground coverings made from reclaimed tires. The court found that excluding the church from an available public benefit due to its religious status amounted to discrimination against the group’s freedom of religion.
No firm stance from DOJ
Roberts wrote that Missouri’s denial did not amount to “chains or torture on account of religion.”
“The consequence is, in all likelihood, a few extra scraped knees,” the chief justice said. “But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”
The Justice Department has not taken a firm stance opposing the Texas churches request. But the friend-of-the-court brief by Americans United argues that the facilities the churches intend to rebuild are explicitly used for religious activities and should therefore not be granted government relief funds just because they are used for community service activities.