When last year’s hurricanes leveled whole communities, federal disaster funds helped with the rebuilding. But not for churches. The Federal Emergency Management Agency (FEMA) did not allow taxpayer money to go to religious organizations. But now FEMA has reversed that policy, in time for the 2018 hurricane season. Do you, however, see a problem?
Mark Silk gives us some background that might give us pause, while also pointing to a compromise that is in the works.
He points out that in 1971 the Supreme Court ruled in the case of Tilton v. Richardson that if a religious college built a worship facility with public funds, that would be a violation of the Establishment Clause of the First Amendment.
And isn’t that true? Would you want your church building to have been built with taxpayer money?
So this understanding gave us the FEMA practice. If it violates the First Amendment to build a church, it would be a violation to rebuild the church.
But then came the Supreme Court decision Trinity Lutheran v. Comer decision, involving a Missouri Synod Congregation that had not been allowed to apply for a state program that would have given it access to shredded tires to resurface its school’s playground.
The court ruled that it would violate the First Amendment to deny a public benefit to an otherwise eligible entity simply because it is religious. That ruling had a narrow scope, relating to playground resurfacing, and it allowed states to continue to refrain from giving support to explicitly religious activities.
But FEMA, under the Trump administration, interpreted the Trinity Lutheran ruling to mean that it should change its practices and allow for federal funding to rebuild churches.
However, using taxpayer money for an actual church building–as opposed to a playground–would still seem to conflict with Tilton v. Richardson.
As Silk points out, the new FEMA ruling would doubtless be vulnerable to a lawsuit.
He reports, though, that a legislative solution is in the works. The House of Representatives has passed and the Senate will soon take up a disaster relief bill (H.R. 4667) that allows federal funds to go for the repair of houses of worship, but they
shall only be used to cover costs of purchasing or replacing, without limitation, the building structure, building enclosure components, building envelope, vertical and horizontal circulation, physical plant support spaces, electrical, plumbing, and mechanical systems (including heating, ventilation, air-conditioning, and fire and life safety systems), and related site improvements.
“In other words,” says Silk, a church could get funding to repair its physical plant, but it “would not be able to use public funds to repair or replace its altar, pulpit, pews and other items of a strictly religious character.”
Is that a Solomonic solution, one that preserves the principle of church-state separation while giving common-sense aid to churches as parts of the wider community in need of rebuilding?
Or is this needless nit-picking, since money that a church doesn’t have to spend on its air-conditioning and site improvements can go towards its pulpit and altar?
I think what the conflicting rulings and this proposed new law do demonstrate is that issues of government funding are better resolved by legislative action than by either court rulings from the judicial branch or bureaucratic regulations from the executive branch.
Photo, Church Damaged by Hurricane Ike, Sabine Pass, TX, by Jocelyn Augustino (This image is from the FEMA Photo Library.) [Public domain], via Wikimedia Commons
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