Senate's Bipartisan Budget Agreement Will Assure FEMA Assistance For Houses of Worship

The Bipartisan Budget Agreement (full text) which will be voted on today by the Senate (CNN report) includes provisions assuring that houses of worship will be able to receive disaster assistance from FEMA. The Stafford Act, Sec. 42 USC  Sec. 5172 allows federal assistance for repair or replacement of non-profit facilities damaged or destroyed by major disasters.  However, until a recent policy change by FEMA, houses of worship were excluded. (See prior posting.)  The bipartisan budget bill (Sec. 20604 at pg. 48) adds the following:

SEC. 20604. (a) DEFINITION OF PRIVATE NON PROFIT FACILITY.—

Section 102(11)(B) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122(11)(B)) is amended to read as follows:

‘‘(A) IN GENERAL.—The term ‘private nonprofit facility’ means private nonprofit educational (without regard to the religious character of the facility), utility, irrigation, emergency, medical, rehabilitational, and temporary or permanent custodial care facilities (including those for the aged and disabled) and facilities on Indian reservations, as defined by the President.

‘‘(B) ADDITIONAL FACILITIES.—In addition to the facilities described in subparagraph (A), the term ‘private nonprofit facility’ includes any private nonprofit facility that provides essential social services to the general public (including museums, zoos, performing arts facilities, community arts centers, community centers, libraries, homeless shelters, senior citizen centers, rehabilitation facilities, shelter workshops, broadcasting facilities, houses of worship, and facilities that provide health and safety services of a governmental nature), as defined by the President. No house of worship may be excluded from this definition because leadership or membership in the organization operating the house of worship is limited to persons who share a religious faith or practice.’’.

(b) REPAIR, RESTORATION, AND REPLACEMENT OF DAMAGED FACILITIES.—Section 406(a)(3) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5172(a)(3)) is amended by adding at the end the following:

‘‘(C) RELIGIOUS FACILITIES.—A church, synagogue, mosque, temple, or other house of worship, educational facility, or any other private nonprofit facility, shall be eligible for contributions under paragraph (1)(B), without regard to the religious character of the facility or the primary religious use of the facility. No house of worship, educational facility, or any other private nonprofit facility may be excluded from receiving contributions under paragraph (1)(B) because leadership or membership in the organization operating the house of worship is limited to persons who share a religious faith or practice.’’. 

FEMA Policy Change: Houses of Worship Now Eligible For Disaster Relief

The Federal Emergency Management Agency announced yesterday that:

private nonprofit houses of worship are now eligible for disaster assistance as community centers, without regard to their secular or religious nature.  These changes are effective for disasters declared on or after August 23, 2017 and for applications for assistance that were pending with FEMA as of August 23, 2017, including applications on first- or second-level appeal, that as of today have not yet been resolved by FEMA.

The policy change, also reflected in a new edition of FEMA's Public Assistance Program Policy Guide, reverses a long-standing policy that is currently being challenged in two separate lawsuits growing our of recent hurricane damage in Texas and Florida. (See prior posting.) Becket issued a press release calling attention to FEMA's policy change.

More Challenges To FEMA's Policy On Disaster Aid To Religious Facilities

As three churches filed an appeal with the 5th Circuit (full text of Emergency Motion) after a Texas federal district court refused to enjoin a FEMA Policy Guideline that bars disaster relief grants for religious facilities, two Florida synagogues filed suit seeking to invalidate the same FEMA regulation. According to yesterday's Miami Herald, Chabad of Key West and Chabad of the Space Coast in Satellite Beach are seeking FEMA grants for repairs after damage from Hurricane Irma.  They contend that FEMA's policy violates their rights under the 1st Amendment and RFRA.

Court Upholds FEMA Policy Denying Disaster Grants To Religious Facilities

In Harvest Family Church v. Federal Emergency Management Agency, (SD TX, Dec. 7, 2017), a Texas federal district court refused to issue a preliminary injunction against a FEMA Policy Guideline that bars disaster relief grants to facilities that are used primarily for religious activities. (The Guideline also bars grants to facilities used primarily for political, athletic, recreational, vocational, or academic activities.)  The court concluded that plaintiff had not shown a substantial likelihood of success on its Free Exercise challenge to the Guideline.  It held that the case is governed not by the U.S. Supreme Court's Trinity Lutheran decision, but instead by the Supreme Court's decision in Locke v. Davey:

[T]he Locke plaintiff was not denied a scholarship because of what he was, but “because of what he proposed to do—use the funds to prepare for the ministry.” ... In Trinity Lutheran, on the other hand ... [t]he funds were not denied because of what they would be used for—a non-religious use—but because of the church’s status as a religious institution.... In the instant case, FEMA’s policy is closer to the scholarship in Locke. Plaintiffs would use the FEMA funds to rebuild facilities used primarily to promote religious activities.... Further, FEMA’s policy even distinguishes based on use, rather than status or identity....

MySanAntonio.com reports on the decision. [Thanks to Marty Lederman via Religionlaw for the lead.]

Developments In Church Eligibility For FEMA Aid

As previously reported, three Texas churches have filed suit in federal district court challenging FEMA's policy of refusing disaster aid for houses of worship. FEMA, which is in the process of reviewing its policy, has refused to answer the complaint despite the court setting a Dec.1 deadline. According to the Houston Chronicle, just before the deadline passed, a group of civil rights organizations filed an amicus brief defending FEMA's policy.  Three hours after that brief was filed, federal district judge Keith P. Ellison who was assigned to the case recused himself, without explanation.

Meanwhile, as reported by Christian Times, on Thursday the House Transportation and Infrastructure Committee approved and sent on to the full House H.R. 4460, the Disaster Recovery Reform Act (full text). Section 211 of that bill amends 42 USC Sec. 5172 to add:

A church, synagogue, mosque, temple, or other house of worship, and a private nonprofit facility operated by a religious organization, shall be eligible for [disaster relief] ..., without regard to the religious character of the facility or the primary religious use of the facility.

Challenge To FEMA Policy On Disaster Aid To Churches Moves Ahead

In Harvest Family Church v. Federal Emergency Management Agency, (SD TX, Nov. 9, 2017), a Texas federal district court refused to grant FEMA a 30-day stay in a suit by three churches challenging FEMA's policy denying disaster aid to houses of worship.  FEMA, which refused defend the merits of its policy before the court, sought the stay because it is reconsidering the policy.  The court said it will delay a ruling on plaintiffs' request for a temporary injunction until December 1.  It added:

The Court has received instructive briefing from amici in support of Plaintiffs’ Motion, for which it expresses gratitude. Nevertheless ... “Without opponents, the adversary system cannot function.”... The Court would therefore welcome amici with differing views.

If, by December 1, FEMA’s position remains unchanged, the Court will assume that FEMA concedes, at the very least, Plaintiffs’ likelihood of success on the merits of this case and that the injury being suffered by Plaintiffs is irreparable. The Court will then issue its ruling on Plaintiffs’ request for preliminary relief.

Churches Challenge FEMA's Bar On Disaster Aid To Houses of Worship

This week three Texas churches that suffered significant damage from Hurricane Harvey filed suit against FEMA, challenging its policy that precludes houses of worship from receiving federal disaster assistance aid. The complaint (full text) in Harvest Family Church v. Federal Emergency Management Agency, (SD TX, filed 9/4/2017), relies particularly on the U.S. Supreme Court's recent Trinity Lutheran Church decision in claiming that FEMA's policy unconstitutionally discriminates against churches solely because of their religious status.  Plaintiffs contend:

Were the Churches not religious, their prohibited “worship” services would instead be eligible as “social activities to pursue items of mutual interest”; the impermissible “religious instruction” during religious services would be permissible as “educational enrichment activity”; children’s church and women’s Bible study groups would qualify as a “service or activity intended to serve a specific group of individuals”; and meetings between the clergy and other church leaders would be a “community board meeting.”

Becket issued a press release announcing the filing of the lawsuit.

UPDATE: In a tweet on Friday, President Trump said: "Churches in Texas should be entitled to reimbursement from FEMA Relief Funds for helping victims of Hurricane Harvey (just like others)."