When a disaster like Hurricane Harvey strikes, the Federal Emergency Management Agency (FEMA) swoops in to provide assistance. Like many readers of Learn Liberty, I get nervous when someone says, “I’m from the government and I’m here to help.”
When the government makes a benefit generally available, it cannot discriminate against religious citizens or institutions. However, according to attorneys from Becket, a public interest law firm, FEMA does exactly that.FEMA’s Public Assistance Program provides relief to a wide range of private nonprofit organizations that sustain damage from natural disasters. Institutions such as museums, libraries, and zoos are eligible for relief. According to the same Becket document, “FEMA’s policy provides that “facilities established or primarily used for…religious…activities are not eligible.”
Ironically, FEMA has recognized that “the local church, the local synagogue, the local faith based community, [and] the local mosque” are often among the first responders to disasters. Indeed, one of the three churches challenging FEMA’s policy is still being used as a “shelter for dozens of evacuees, a warehouse for disaster relief supplies, a distribution center for thousands of emergency meals, and a base to provide medical services.”
FEMA’s Public Assistance Program and constitutional law
It is bad public policy to exclude houses of worship from this sort of aid. And, according to attorneys from Becket, it is unconstitutional in light of last summer’s decision in Trinity Lutheran Church v. Comer.
This United States Supreme Court case involved a state program that provided safe playground surfaces made from recycled tires. Forty-four nonprofits applied for the program. Trinity Lutheran Church Preschool Learning Center’s application was ranked fifth, and 14 grants were awarded — but Trinity Lutheran’s application was rejected. It was denied solely because of Missouri’s constitutional provision prohibiting state funds from going to religious entities.
Chief Justice John Roberts, writing for the majority, contended that the “Free Exercise Clause ‘protect[s] religious observers against unequal treatment’ and subjects to the strictest scrutiny laws that target the religious for ‘special disabilities’ based on their ‘religious status’.” In this case, Missouri discriminated against an entity simply because it was religious, and it made no effort to explain why it had a compelling interest in doing so. This sort of discrimination against an organization “simply because it is a church, is odious to our Constitution” and so it “cannot stand,” Roberts wrote.
Many court-watchers expected the decision to be 5-4 and were shocked when it was decided 7-2 in favor of the church. Most justices, though, understood the bedrock American principle that governments cannot discriminate against religious citizens and institutions.
FEMA’s role in religious discrimination
No one is arguing that churches have a right to government funding — only that when a program is made generally available, governments cannot discriminate on the basis of religion.In this case, however, FEMA does not only discriminate against religious institutions. Indeed, the relevant policy reads in full: “facilities established or primarily used for political, athletic, religious, recreational, vocational, or academic training, conferences, or similar activities are not eligible” for funding. FEMA might reasonably argue that a whole range of facilities, not just religious ones, are excluded from its program. Such an argument may well withstand constitutional scrutiny.
Still, there is something wrong with a federal program that treats zoos more generously than it does churches, synagogues, and mosques.