The Federal Emergency Management Agency recently changed course to allow emergency relief for churches and other religious houses of worship, on par with non-religious organizations and in keeping with the U.S. Supreme Court’s 2017 Trinity Lutheran case involving government grants for religious school playgrounds. How do disaster relief, playgrounds, and religious liberty relate to each other? In a nutshell, as FEMA has now affirmatively recognized, constitutional religious liberty protections mean that religious organizations may not be categorically disqualified from government grants such as for playground materials, to rebuild their houses of worship, or for other programs they may offer - even if they contain religious elements.
2017: A Year for Disasters, Rebuilding, and Religious Liberty Protections
Last year, seemingly one natural disaster after another struck various parts of the United States. Homes were lost, businesses were affected, and many houses of worship were damaged too. FEMA responded with much-needed funding, but not to rebuild religious organizations’ facilities. For example, four Texas churches were heavily damaged by Hurricane Harvey, but FEMA’s policy at the time rendered them categorically ineligible to receive federal funds. (See Harvest Family Church v. FEMA, 2017 U.S. Dist. LEXIS 186399.) In December 2018, the churches sought emergency injunctive relief from the U.S. Supreme Court, asking that FEMA end this blanket disqualification of religious organizations. In response, the Court gave FEMA until January 10, 2018 to justify its policy as legally valid.
Enter the U.S. Supreme Court landmark ruling of Trinity Lutheran Church of Columbia, Inc. v. Comer, which earlier in 2017 squarely rejected such categorical discrimination against religious organizations. In Trinity Lutheran, the Court evaluated a Missouri state statute expressly excluding religious organizations from receipt of government funds otherwise generally available to qualifying organizations. A Lutheran preschool had applied for a state grant to replace its sharp gravel playground with a rubber tire-based surface. Notably, the preschool offered all the educational programs of a secular institution, with Gospel principles integrated in the curriculum. The Missouri Department of Natural Resources rejected the preschool for grant eligibility for the new playground surface. Upon appeal, the U.S. Supreme Court held the state statute unconstitutional, ruling that the state improperly characterized the statute as preventing unconstitutional establishment of religion, when, in reality, the statute created penalties for religious organizations that did not exist for similarly situated organizations, merely because of their religious identity. The Court further explained that even laws which do “not directly prohibit religious activity, but merely condition eligibility on its abandonment” are violations of free exercise.
Back to FEMA: Spurred on by the Court’s invitation to reconsider, FEMA did an about-face and announced its new policy on January 3, 2018. As FEMA publicly explained:
In light of the Trinity Lutheran decision, FEMA has considered its guidance on private nonprofit facility eligibility and determined that it will revise its interpretation of the aforementioned statutory and regulatory authorities so as not to exclude houses of worship from eligibility for FEMA aid on the basis of the religious character or primarily religious use of the facility.
FEMA thus recognized Trinity Lutheran’s direct applicability and, presumably, churches and other religious organizations can now rebuild with FEMA federal funds.
A Good Idea for All – and Constitutional Too
Before the 2017 Trinity Lutheran decision, the general rule was that organizations engaged in both religious and secular activities could receive federal funds, provided the federal funds were used for purely secular activities and “offered on the same terms, without regard to religion, to all who adequately further that purpose.” (See Mitchell v. Helms, 530 U.S. 793, 809 (2000).) Any service or activity which was government funded, in any part, needed to be separate in time and location from religious activities. For example, a pastor could offer a government-subsidized anger management program for individuals recently leaving the penal system, but the pastor could not make Biblical references during the course of instruction. (See e.g. “Partnering with the Federal Government: Some Do’s and Don’ts for Faith-Based Organizations,” The White House: Faith Based and Community Initiatives). Faith-based organizations were thus forced to carefully separate religious instruction or discussion from any activities which were funded, in whole or part, by the government.
The Trinity Lutheran case and FEMA’s policy reversal provide an encouraging shift. Faith-based organizations are no longer per se disqualified from competing for government grants with other similarly situated, non-religious organizations, based on their religious nature. Some government “strings” may come with such funding, which may give reason for pause (and due consideration of funding restrictions), but the applicant religious organization should not be per se disqualified. Indeed, an organization that is discriminated against in a funding application, solely based on religion, may have a legal cause of action for relief, as did the Texas churches above.
As exemplified through the aftermath of last year’s disasters, countless nonprofit organizations and volunteers provide care, compassion, and material goods as charitable works – whether Christian, Muslim, Jewish, Hindu, or of other faiths. Such works of service may be considered as both personal and corporate expressions of worship and faith in action. This integration of religious convictions is well expressed in widespread ministry areas such as care for the homeless, after-school programs, prison ministries, medical clinics, orphanages, adoption and crisis pregnancy agencies, youth outreach, and elderly assistance. Religious organizations may – and should – be able to carry out such works of service with access to government funding that is otherwise available to non-religious organizations.
