Written by Don Byrd
A federal judge in Texas has denied a motion filed by plaintiff churches seeking an injunction against the Federal Emergency Management Agency’s (FEMA) policy prohibiting disaster aid grants to facilities established primarily for religious use. The churches are seeking funding to repair facilities damaged by Hurricane Harvey earlier this year, and claim the policy excluding them is an unconstitutional discrimination against religion. FEMA, for its part, is not defending the current policy, and is reviewing it for possible changes. Several organizations, however, including the BJC, filed a brief with the court arguing that the policy is a proper means of enforcing the separation of church and state. In denying the injunction request, the judge agreed that the policy is likely to withstand constitutional scrutiny.
Specifically, he rejected arguments made by the plaintiffs that the Supreme Court’s ruling in Trinity Lutheran Church earlier this year bars the exclusion of churches from FEMA’s grant policy. Here is an excerpt from the opinion:
Plaintiffs argue that FEMA’s policy has the same effect as Missouri’s policy in Trinity Lutheran. They argue that FEMA denies the churches an otherwise available public benefit on account of their religious status. However, Trinity Lutheran is distinguishable from the instant case. Trinity Lutheran involved the funding of a playground, not a religious activity. In fact, four justices joining the majority even acknowledged that “[the Court] does not address religious uses of funding.”
As the Court recognized in Locke and reaffirmed in Trinity Lutheran, the government has a historical and justifiable interest in avoiding an establishment of religion and using public funds to support religion. The difference the Court draws between Trinity Lutheran and Locke is that Trinity Lutheran involved playgrounds and was not an “essentially religious endeavor,” like that of pursuing a religious education. Thus, the government had different interests in the two cases. Here, the funding would be used to repair church facilities so that Plaintiffs could use their facilities for their primary service, which Plaintiffs admit is providing religious activities.
The plaintiff churches have filed notice that they intent to appeal this ruling to the 5th Circuit.