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Catholic and Jewish houses of worship are supporting protestant churches’ challenge to denials of Hurricane Harvey relief aid grants ( Harvest Family Church v. FEMA , S.D. Tex., No. 4:17-cv-2662, defendants’ opposition to plaintiffs’ renewed motion for preliminary injunction filed 10/3/17 ).
The plaintiffs, three Texas churches, sued the Federal Emergency Management Agency last month, alleging that it unconstitutionally discriminates against houses of worship by categorically excluding them from its public assistance program.
Harvey was a Category 4 hurricane that hit Houston in August, causing $180 billion in damage in some estimates.
The agency denied that it categorically excludes houses of worship or faith-based organizations from its program, in its opposition to the plaintiffs’ renewed motion for preliminary injunction filed Oct. 3.
FEMA’s policy going forward is unclear after Attorney General Jeff Sessions said agencies can’t discriminate against religious organizations in making grants, in an Oct. 6 memo. President Donald Trump said that FEMA shouldn’t exclude churches from receiving aid for helping Hurricane Harvey victims in a tweet last month.
It’s unfair to exclude houses of worship considering they’re “often at the very forefront of providing immediate relief in the wake of severe storms and natural disasters,” the Archdiocese of Galveston-Houston said in an amicus brief supporting the churches filed Oct. 2.
The archdiocese cited as an example “Sister Margaret Ann, who was caught on tape by the Miami-Dade Police wielding a chainsaw in her habit and clearing debris after Hurricane Irma struck Florida.”
FEMA’s alleged exclusion of churches would apply to disaster relief “in Puerto Rico just like it would apply in Florida and Texas,” Michael B. Bennett of Baker Botts LLP, Houston, who is representing the archdiocese, told Bloomberg BNA by telephone.
Each of the churches “may be facing structural damage that requires emergency repair,” but FEMA’s “policy guides since at least 1998 have explicitly and consistently informed the public that houses of worship are ineligible” for grants, the plaintiffs said.
The churches are essentially asking the court to require that “public funds be used to rebuild or make major repairs to the churches themselves,” Alex Luchenitser of Americans United for Separation of Church and State told Bloomberg BNA Oct. 4.
“Using tax dollars to rebuild a church implicates the core concerns that our founding fathers had when they concluded that public funds should not be spent to support religion,” he said.
A spokesperson for the Department of Justice, which represents FEMA, declined to comment.
Jews for Religious Liberty and a Texas synagogue are also supporting the plaintiff churches.
FEMA’s “policy puts Houston’s Jewish institutions to a choice: They may participate in an otherwise available benefit program or remain a Jewish institution,” they said in an amicus brief filed Sept. 29.
The policy “encourages Jews and Jewish organizations to hide or refrain from public practice of the Jewish faith,” the brief said.
“Host too many kosher community barbeques and you will not qualify for hurricane assistance,” it said.
“We think this case has implications far beyond the three churches who are plaintiffs,” Jamie Alan Aycock of Kirkland & Ellis LLP, Houston, who represents the amici pro bono, told Bloomberg BNA in an Oct. 3 email.
Under FEMA’s policy, “groups that are ‘too Jewish’ are denied funds,” he said.
“In particular, we are concerned here because Hurricane Harvey had such a disproportionate impact on Houston’s Jewish community,” he said.
Meyerland, Texas, “the center of Houston’s Jewish community, was particularly hard hit,” and “an estimated 71 percent of Houston’s Jewish population lived in areas that experienced massive flooding,” the amicus brief said.
The “First Amendment protects all U.S. citizens, including the significant Jewish population in Puerto Rico,” Aycock said.
FEMA’s policy violates the U.S. Supreme Court’s recent decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, the plaintiffs argue.
That decision ruled in favor of a church denied state funding for playground resurfacing.
“The Supreme Court clarified in June that it violates the free exercise clause to discriminate against churches in basic government services just because they’re religious,” Diana M. Verm of The Becket Fund for Religious Liberty, Washington, which represents the plaintiffs, told Bloomberg BNA.
But Trinity “expressly limits itself to situations involving nonreligious uses,” Americans United’s Luchenitser said.
If the churches were only seeking reimbursement for providing non-religious services such as emergency shelters, “that would probably be permissible,” he said.
But providing some shelter services doesn’t entitle a church “to be reimbursed for rebuilding portions of the building that will be used for religious worship,” Luchenitser said.
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