Does FEMA Unconstitutionally Deny Relief to Churches? President Trump Thinks So And He May Be Right

by Jackson Walker
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Jackson Walker

Hurricane Harvey’s devastation has impacted thousands of people and businesses throughout Texas. Private nonprofits and religious organizations have been playing key roles in providing emergency relief to those who have been affected. However, while private nonprofits are currently eligible to receive relief assistance from FEMA, churches and other religious organizations are currently expressly ineligible to receive similar assistance.

President Trump showed his support for churches on this issue with his September 8th tweet:

President Trump may be right.

In light of the Supreme Court of the United States’ recent ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), FEMA’s categorical ban on providing relief to churches through its Public Assistance (PA) Program may be unconstitutional. As a result, churches and religious organizations that have been impacted by Hurricane Harvey should apply for FEMA relief under the PA Program before the upcoming September 24, 2017 deadline in order to potentially protect their rights to such relief.

Who can currently obtain relief from FEMA’s Public Assistance Program?

FEMA’s PA Program provides federal assistance to government organizations and certain private nonprofit organizations following a Presidential disaster declaration. This assistance covers the costs for the repair, restoration, reconstruction, or replacement of the nonprofit’s facility and for associated expenses caused by a major disaster.

To be eligible for relief under the PA Program, a nonprofit must own or operate an “eligible facility,” which is defined as either (1) “A facility that provides a critical service, [such as] education, utility, emergency, or medical,” or (2) “A facility that provides non-critical, but essential governmental services and is open to the general public.” The definition of eligible “non-critical” services is expansive, including “museums, zoos, community centers, libraries, homeless shelters, senior citizen centers, and rehabilitation facilities.”

For eligible nonprofit facilities, the PA Program provides funds for both emergency work and permanent work. Eligible nonprofit facilities that provide non-critical services must apply for a Small Business Administration (“SBA”) disaster loan before seeking PA Program funds for permanent work. PA Program funds are available only for the portion of permanent work that an SBA loan does not cover, or if the SBA loan application is denied. However, nonprofits may seek and receive PA Program funds for emergency work regardless of whether they have applied for an SBA loan.

While most churches and religious organizations would typically qualify for relief under the PA Program, FEMA expressly prohibits providing relief to facilities established primarily for religious activities.

A recent, similar Supreme Court decision may impact FEMA’s policy

The Supreme Court of the United States recently addressed a similar situation in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, (2017). In Trinity, the Missouri Department of Natural Resources (“Department”) offered state grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires.  Trinity Lutheran Church applied for such a grant for its preschool and daycare center, and would have received one, but for the fact that Trinity Lutheran is a church. The Department had a strict policy of categorically disqualifying churches and other religious organizations from receiving grants under its playground resurfacing program.

On June 26, 2017, the Supreme Court of the United States ruled that the Department’s policy violated Trinity Lutheran’s rights under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status. In his opinion, Chief Justice Roberts stated that “[t]he express discrimination against religious exercise [in Trinity] is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant.”

What steps should churches and religious organizations take in the next few weeks.

On August 25, 2017, President Trump declared that Hurricane Harvey had caused a major disaster in Texas. As a result, private nonprofits have until September 24, 2017 to apply for assistance through the PA Program. While churches and religious organizations are currently prohibited from applying for relief through the PA Program, a few churches have already sued FEMA in Federal court in the Southern District of Texas contending that, similar to Trinity, prohibiting churches from obtaining disaster relief is unconstitutional.

In light of the Supreme Court’s decision in Trinity, churches and religious organizations should apply for relief under the PA Program by September 24, 2017 in order to potentially protect their rights to such relief.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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