[Congressional Record Volume 159, Number 23 (Wednesday, February 13, 2013)]
[House]
[Pages H465-H479]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FEDERAL DISASTER ASSISTANCE NONPROFIT FAIRNESS ACT OF 2013
Mr. BARLETTA. Madam Speaker, I move to suspend the rules and pass the
bill (H.R. 592) to amend the Robert T. Stafford Disaster Relief and
Emergency Assistance Act to clarify that houses of worship are eligible
for certain disaster relief and emergency assistance on terms equal to
other eligible private nonprofit facilities, and for other purposes.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 592
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federal Disaster Assistance
Nonprofit Fairness Act of 2013''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Hurricane Sandy inflicted catastrophic damage in the
Northeastern United States.
(2) Houses of worship across the Northeast's many faiths
and denominations were among the private nonprofit facilities
that sustained damage.
(3) Churches, synagogues, mosques, temples, and other
houses of worship throughout communities in New York, New
Jersey, Connecticut, and elsewhere play an essential role in
the daily lives of the communities.
(4) The Federal Emergency Management Agency's (FEMA) public
assistance program provides financial grants for the repair
of various types of private nonprofit facilities.
(5) Among the types of nonprofits to which FEMA provides
such grants are those in which citizens gather and engage in
a variety of educational, enrichment, and social activities.
These activities are essential to community building and
occur in houses of worship.
(6) Under the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5121 et seq.), FEMA's
disaster relief program is a general government program under
which assistance is provided in the wake of a natural
disaster using criteria that are neutral with regard to
religion.
(7) Congress has previously enacted legislation providing
financial assistance to religious nonprofit institutions,
including houses of worship, on terms equal to other eligible
nonprofit institutions.
(8) Such legislation is consistent with recent precedents
of the Supreme Court of the United States and legal opinions
issued by the Office of Legal Counsel of the Department of
Justice.
SEC. 3. INCLUSION OF HOUSES OF WORSHIP AS PRIVATE NONPROFIT
FACILITIES ELIGIBLE FOR DISASTER RELIEF.
(a) Definition of Private Nonprofit Facility.--Section
102(10)(B) of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5122(10)(B)) is amended
to read as follows:
``(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 services of a governmental nature to the
general public (including museums, zoos, performing arts
facilities, community arts centers, community centers,
including houses of worship exempt from taxation under
section 501(c) of the Internal Revenue Code of 1986,
libraries, homeless shelters, senior citizen centers,
rehabilitation facilities, shelter workshops, and facilities
that provide health and safety services of a governmental
nature), as defined by the President.''.
(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) Houses of worship.--A church, synagogue, mosque,
temple, or other house of worship, and a private nonprofit
facility operated by a religious organization, 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.''.
(c) Applicability.--This section and the amendments made by
this section shall apply to the provision of assistance in
response to a major disaster or emergency declared on or
after October 28, 2012.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Pennsylvania (Mr. Barletta) and the gentleman from West Virginia (Mr.
Rahall) each will control 20 minutes.
The Chair recognizes the gentleman from Pennsylvania.
General Leave
Mr. BARLETTA. Madam Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and include extraneous material on H.R. 592.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Pennsylvania?
There was no objection.
Mr. BARLETTA. Madam Speaker, I yield myself such time as I may
consume.
First, I want to acknowledge the work of the gentleman from New
Jersey (Mr. Smith) for his leadership on this bipartisan legislation.
Currently, the Robert T. Stafford Disaster Relief and Emergency
Assistance Act, also known as the Stafford Act, provides for assistance
to nonprofit organizations to rebuild damaged facilities following a
declared disaster.
Like other nonprofit organizations, religious-based organizations
have seen significant damage to their facilities from disasters. Just
last year, for example, we saw facilities owned by both religious and
nonreligious organizations alike damaged or destroyed by Hurricane
Sandy.
The administration is interpreting current law to allow some
religious nonprofits to receive reconstruction assistance, while others
do not. For example, parochial schools and religious hospitals receive
funds, while a soup kitchen or a shelter may not, depending on how
often it is used for purely religious purposes.
H.R. 592 clarifies that facilities owned by religious-based
organizations qualify for certain types of disaster assistance.
[[Page H466]]
Again, let me thank the gentleman from New Jersey for his efforts on
behalf of his constituents to rebuild the storm-ravaged areas of his
State.
I reserve the balance of my time.
Mr. RAHALL. Madam Speaker, I yield myself such time as I may consume.
I rise in support of H.R. 592, the Federal Disaster Assistance
Nonprofit Fairness Act of 2013. This bill designates houses of worship
as eligible private nonprofit organizations to receive Federal
Emergency Management Agency funds to repair or rebuild after a disaster
strikes.
When most people think of disaster damage, they think of the physical
damage that is often shown on television, that is, of downed trees,
flooded streets and homes, snow piled high, et cetera.
But for disaster survivors, the impact is often also emotionally
traumatic. In some cases, survivors have lost loved ones or all of
their worldly possessions. In these trying times, survivors often look
to houses of worship for spiritual instruction, guidance, and
counseling. The services provided by houses of worship are critical to
survivors' full healing and recovery after a disaster.
During and after disasters, houses of worship are there at a time
when the emotional toll inflicted by a disaster is at its worst. While
some may have concerns about providing any type of Federal assistance
to houses of worship, some types of Federal assistance should be, and
are, provided on a neutral basis.
Funding provided to a broad class of entities for secular purposes
such as government-funded and -sponsored police and firefighting
assistance and protection and recovery from terrorist activities are
such examples.
Likewise, disaster assistance has been provided to religious
institutions in the past. In 1995, after the Oklahoma City bombing,
Congress approved funds for the U.S. Department of Housing and Urban
Development that specifically allowed for the repair and reconstruction
of houses of worship damaged by the bombing.
In addition, under FEMA's current policy, funds are provided to
repair or rebuild religiously affiliated private nonprofit
organizations such as schools, nursing homes, food shelters, and
daycare centers.
Assisting with recovery from a disaster does not promote or establish
religion. There is no intrinsically religious purpose in providing
disaster assistance. This provision simply recognizes that houses of
worship are one aspect of community recovery.
This bill helps ensure that our communities fully recover physically,
emotionally, and mentally after a disaster. I urge my colleagues to
join in supporting this bill.
I reserve the balance of my time.
Mr. BARLETTA. Madam Speaker, I wish to yield 7 minutes to the
gentleman from New Jersey (Mr. Smith), who is the sponsor of this bill.
Mr. SMITH of New Jersey. I thank my good friend, the chair, for
yielding. I thank him for his support and for Mr. Rahall. And I want to
thank Gracie Meng for her cosponsorship and leadership on this
important bill, and all the cosponsors, and to Eric Cantor and the
leadership for scheduling it for a vote today. This is extremely
important and very timely.
Madam Speaker, Superstorm Sandy inflicted unprecedented damage on
communities in the Northeast, including my district in New Jersey.
Congress and the President have responded by providing $60 billion in
emergency and recovery aid.
Today's debate and vote, however, isn't at all about whether or how
much funding Congress appropriates to mitigate the impact of Sandy.
We've had that vote.
Rather, it's about those who are being unfairly left out and left
behind. It's about those who help feed, comfort, clothe, and shelter
tens of thousands of victims now being told they are ineligible for a
FEMA grant.
It's unconscionable that foundational pillars of our communities
damaged by Sandy--synagogues, churches, mosques, temples and other
houses of worship--have been categorically denied access to these
otherwise generally available relief funds.
Current FEMA policy is patently unfair, unjustified, and
discriminatory and may even suggest hostility to religion. FEMA has a
policy in place to aid nonprofit facilities damaged in the storm, but
the agency has excluded houses of worship from their support. That is
wrong, and it's time Congress ensures fundamental fairness for these
essential private nonprofits.
The bipartisan Federal Disaster Assistance Nonprofit Fairness Act
will ensure that houses of worship are eligible for Federal funds
administered by FEMA.
Madam Speaker, it's worth noting here that FEMA's discriminatory
policy of exclusion is not prescribed by any law. Nothing in the
Stafford Act or any other law, including the Hurricane Sandy Disaster
Relief Appropriations Act, precludes funds to repair and to replace and
to restore houses of worship.
Indeed, the congressional precedent favors enacting H.R. 592, as
there are several pertinent examples of public funding being allocated
to houses of worship. For example, FEMA grants were explicitly
authorized by Congress back in 1995 and provided to the churches
damaged by the Oklahoma City terrorist attack, as my friend from West
Virginia pointed out.
{time} 1230
The Homeland Security Department and UASI provides funding to houses
of worship for security upgrades. The Interior Department provides
funding to grants for historically significant properties, including
active churches and active synagogues. And the SBA provides low
interest loans--no hint at all by anyone that there's an Establishment
Clause issue.
It's important to note that a controlling Justice Department Office
of Legal Counsel memorandum explains in detail the legal principles
that make H.R. 592 constitutional. In a 2002 written opinion, the
Office of Legal Counsel concluded it was constitutional for Congress to
provide disaster relief and reconstruction funds to a religious Jewish
school, along with all sorts of other organizations, following a
devastating earthquake. The same principles apply to protect religious
organizations following a devastating hurricane.
As the Office of Legal Counsel memo concluded:
Provisions of disaster assistance to religious
organizations cannot be materially distinguished from aid
programs that are constitutional under longstanding Supreme
Court precedent, establishing that religious institutions are
fully entitled to receive generally available government
benefits and services, such as fire and police protection.
The Supreme Court handed down its first modern Establishment Clause
decision in the Everson v. Board of Education decision, which involved
a program in my own home State of New Jersey. In that case, the Court
held that religious institutions are entitled to receive ``general
government services'' made available on the basis of neutral criteria.
The Court held that the Establishment Clause does not bar, in that
case, students attending religious schools from receiving generally
available school busing services provided by the government.
As Nathan Diament, Executive Director of Public Policy for the Union
of Orthodox Jewish Organizations of America, notes in his excellent
legal analysis, which I will include in the Record:
Disaster relief is analogous to aid that qualifies as
general government services approved by the Court in Everson.
Madam Speaker, the bill before us today simply makes clear and
clarifies that Federal disaster relief includes religious entities,
along with every other sort of entity.
As the Court later stated in Widmar v. Vincent:
The provision of benefits to so broad a spectrum of groups
is an important index of secular, that is, constitutional
effect.
As it stated more recently in Texas Monthly v. Bullock:
Insofar as that subsidy is conferred upon a wide array of
nonsectarian groups as well as religious group organizations
in pursuit of some legitimate secular end, the fact that
religious groups benefit incidentally does not deprive the
subsidy of the secular purpose and primary effect mandated by
the Establishment Clause.
Significantly, Madam Speaker, when three churches in Detroit received
taxpayer-funded grants to repair and spruce up their buildings prior to
the 2006 Super Bowl, American Atheists sued the City of Detroit and
lost.
[[Page H467]]
In a sweeping decision offered by Judge Sutton, the U.S. Court of
Appeals for the Sixth Circuit, unanimously held that the direct
assistance to the churches did not violate the Establishment Clause.
Judge Sutton said, and I quote, in pertinent part:
Detroit sought to fix up its downtown, not to establish a
religion. And as will generally be the case when a
governmental program allocates generally available benefits
on a neutral basis and without a hidden agenda, this program
does not have the impermissible effect of advancing religion
in general or any one faith in particular. By endorsing all
qualifying applicants, the program has endorsed none of them,
the Court went on to say, and accordingly it has not run
afoul of the Federal and State religious clauses . . . In the
Establishment Clause context, that means evenhanded neutral
laws generally, though not invariably, will be upheld. So
long as the government benefit is neutral and generally
applicable on its face, it presumptively will satisfy the
Establishment Clause.
H.R. 592 exhibits no government preference for or against religion,
or any particular religion, since it merely permits houses of worship
to receive the same type of generally available assistance.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. BARLETTA. I yield the gentleman an additional minute.
Mr. SMITH of New Jersey. Again, this legislation permits houses of
worship to receive the same type of generally available assistance in
picking up the pieces after stunning devastation that many other
similarly situated nonprofits receive. Thus, the bill not only passes
the test of constitutionality, it passes the test of basic decency.
Indeed, to do otherwise would be to single out churches for adverse
treatment, which is in itself constitutionally suspect.
The Supreme Court held, Madam Speaker, in Lukumi Babalu Aye v. City
of Hialeah, that ``at a minimum, the protections of the Free Exercise
Clause pertain if the law at issue discriminates against some or all
religious beliefs.''
And in Employment Division v. Smith, the Court held that under the
Free Exercise Clause, the State may not ``impose special disabilities
on the basis of religious views or religious status.''
To continue to single houses of worship out for discrimination does
not express government neutrality; it expresses government hostility.
And there's no place for government hostility toward religion under our
Constitution.
I thank the gentleman for yielding.
Mr. RAHALL. Madam Speaker, how much time do I have remaining?
The SPEAKER pro tempore. The gentleman from West Virginia has 17\1/2\
minutes remaining.
Mr. RAHALL. Thank you.
I yield 4 minutes to the gentleman from New York (Mr. Nadler).
(Mr. NADLER asked and was given permission to revise and extend his
remarks.)
Mr. NADLER. Madam Speaker, I reluctantly rise in opposition to this
bill. The purpose of this bill is laudable. Unfortunately, there are
real constitutional problems.
This bill would provide direct cash grants to rebuild houses of
worship. Direct government funding of churches, synagogues, and mosques
has always been held to be unconstitutional, and the decisions of the
Supreme Court establishing that principle remain good law to this day.
While some recent decisions have raised questions of these prior
decisions' validity, they remain binding precedent. Most legal
authorities would hold this bill to be constitutional, although some
would disagree.
At the very least, given the serious constitutional questions raised
by this legislation, I am deeply troubled that it has received no
committee consideration and is being rushed to the floor just a few
days after being introduced under a procedure that allows only 40
minutes of debate and no amendments. One would think that we were
naming a post office rather than passing legislation with significant
constitutional implications that could alter the relationship between
government and religion.
While I have serious reservations about this bill and the way it is
being considered, I wanted to commend the sponsors, the gentleman from
New Jersey (Mr. Smith) and my colleagues from New York, Ms. Meng and
Mr. King, who have been outstanding champions of the people hard hit by
Hurricane Sandy.
So what is the concern?
Let's start with the basics. This bill would direct Federal taxpayer
dollars to the reconstruction of houses of worship. The idea that
taxpayer money can be used to build a religious sanctuary or an altar
has consistently been held unconstitutional.
This is entirely different from government working with religious
institutions to deliver social services. FEMA money, under the law this
bill would amend, is already available to those institutions.
FEMA Disaster Assistance Policy 9521.1 states:
Just because a community center is operated by a religious
institution does not automatically make it ineligible. In
addition to worship services, many religious institutions
conduct a variety of activities that benefit the community.
Many of these activities are similar or identical to those
performed by secular institutions and local governments.
The law now permits funding to religious institutions that provide
those services to the general public, on an equal basis with secular
institutions doing the same work. Although the title of this bill
suggests otherwise, there is no unequal treatment of religious
institutions.
So what we are really talking about is whether we should be in the
business of using taxpayer money to build and rebuild houses of worship
and rebuild sanctuaries and altars that are not available for use to
the general public.
I think, at the very least, we need to exercise caution. I know that
people have been circulating letters making extravagant claims about
the current state of the law, but what is clear is that the Supreme
Court has never overruled its prior decisions specifically prohibiting
this kind of use of public money.
{time} 1240
In Tilton v. Richardson, the Court held that a 20-year ban on using
publicly financed college facilities for religious or other purposes
was not sufficient. The Court made the ban permanent, saying:
If, at the end of 20 years, the building is, for example,
converted into a chapel or otherwise used to promote
religious interests, the original Federal grant will in part
have the effect of advancing religion.
And that, of course, is not permissible.
Similarly, in Committee for Public Education v. Nyquist, the Court
struck down a State program of ``maintenance and repair grants'' for
the upkeep of religious elementary and secondary schools. The Court
said:
If the State may not erect buildings in which religious
activities are to take place, it may not maintain such
buildings or renovate them when they fall into disrepair.
Some proponents have pointed to the Court's ruling in Mitchell v.
Helms. The question in that case was whether publicly financed
educational materials could be lent to religious schools. The
controlling opinion, written by Justice O'Connor, made it clear that it
was not sufficient that the publicly furnished materials be provided on
a nondiscriminatory basis; they must never be diverted to religious
activities. That is clearly not the case here.
The majority has made a big issue of respecting the Constitution. We
read the Constitution at the beginning of each Congress, and we are
required to provide a statement of constitutional authority when we
introduce a bill.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. RAHALL. I yield the gentleman an additional minute.
Mr. NADLER. But all of that means very little if, when faced with a
genuinely significant constitutional question, the House gives it the
bum's rush. This bill should be subject to hearings in the Judiciary
Committee, with input from constitutional scholars, and due
consideration of these significant constitutional issues, before we
take such a radical step.
At the very least, for those who support this bill, I would think
that they would want to get it right, to ensure that it is not done in
a way that would make it susceptible to successful legal challenge. I
urge my colleagues to put the brakes on this legislation until we can
review it with the care it deserves.
Because I believe this bill to be unconstitutional, and because the
constitutional issues have not been properly considered, I must
reluctantly vote ``no.''
[[Page H468]]
I thank the gentleman for yielding.
Mr. BARLETTA. Madam Speaker, I wish to yield 3 minutes to the
gentleman from Virginia (Mr. Goodlatte), chairman of Judiciary.
Mr. GOODLATTE. I thank the gentleman from Pennsylvania, the chairman
of the subcommittee, for his hard work on this legislation and the
gentleman from New Jersey (Mr. Smith) for introducing it and leading
this bipartisan effort to address what I think is a serious problem.
I rise today in support of the Federal Disaster Assistance Nonprofit
Fairness Act of 2013.
Churches, synagogues, and also houses of worship are essential to the
fabric of communities throughout this great Nation. In times of need,
it seems that faith and the charitable acts that faith inspire are
essential to rebuilding and healing our communities. When disasters
occur, like Hurricane Sandy in the Northeast, it's often houses of
worship whose faith calls them to spring into action to help their
fellow man, to feed the hungry and house the homeless. Faith inspires
hope that communities can become whole again.
Every Member of Congress has seen the good works and deeds that
houses of worship and nonprofit organizations do in our communities.
There is no reason that the Federal Government should treat churches,
synagogues, and houses of worship differently than other nonprofits in
times of disaster.
I want to note that the so-called ``pervasively sectarian doctrine,''
which absolutely prohibited any aid to pervasively sectarian
organizations such as churches, is no longer supported by Supreme Court
precedent. While that doctrine was a central part of Supreme Court
jurisprudence during the 1970s when the Supreme Court handed down
decisions cited by opponents of this bill, including Tilton v.
Richardson in 1971, Hunt v. McNair in 1973, and Committee for Public
Education v. Nyquist, also 1973, it is no longer controlling, as the
pervasively sectarian doctrine was subsequently rejected by a majority
of the Supreme Court in the 1999 case of Mitchell v. Helms. Indeed, as
the Congressional Research Service concluded in its December 27, 2000,
report to Congress:
In its most recent decisions, the Supreme Court appears to
have abandoned the presumption that some religious
institutions are so pervasively sectarian that they are
constitutionally ineligible to participate in direct public
aid programs. It also seems clear that the question of
whether a recipient institution is pervasively sectarian is
no longer a constitutionally determinative factor.
Today's legislation is important because it will ensure that houses
of worship are treated equitably to other private nonprofit facilities,
and that they are eligible for Federal Emergency Management Agency
disaster relief and emergency assistance. I am glad that we are acting
today to clarify that FEMA should treat churches, synagogues, and all
houses of worship the same as other nonprofit organizations that are
working to rebuild affected communities.
I thank Congressman Smith for introducing this legislation, and I
urge all Members to join with me to support this important
clarification of existing law.
Mr. RAHALL. Madam Speaker, I'm very honored to yield 3 minutes to a
cosponsor of the pending legislation, the gentlelady from New York (Ms.
Meng).
Ms. MENG. Madam Speaker, I rise today to strongly urge my colleagues
to support H.R. 592, the Federal Disaster Assistance Nonprofit Fairness
Act of 2013. I want to also thank my colleague, Congressman Chris Smith
of New Jersey, for his wonderful leadership on this issue.
On October 29 of last year, Hurricane Sandy tore through New York
City and its surrounding areas and left an unprecedented amount of
damage in its wake. Homes burned to the ground, our communities were
devastated, properties flooded, and over 120 lives were lost.
Rightfully so, one of the 113th Congress' first actions was ensuring
that adequate funding was made available to begin repairing the damage,
and I was happy to be part of that effort.
The $60 billion in aid that Congress made available was a great start
to rebuilding our communities and making them whole, but it was only a
start. If we as Members of Congress want our affected communities to
recover in the aftermath of any natural disaster, we must ensure that
FEMA public assistance grants are available to help rebuild all
institutions that are vital to a community's way of life.
H.R. 592 is a bipartisan bill. It would allow houses of worship, such
as churches, synagogues, temples, or mosques, to receive the fair
treatment they deserve. The bill places these vital community
institutions on the same playing field as other private nonprofits that
are already eligible for FEMA disaster relief. This bill provides no
new funds. It sets forth no difference, no favoritism, no promotion of
religion; it simply provides for the community and its well-being.
Facilities that already are able to apply for funding include zoos,
museums, community centers, and homeless shelters, and it is important
that houses of worship not be discriminated against when they need our
help. These houses are vital community centers that serve so many of
our constituents. The centers' existence, safety, and ability to serve
should not be infringed upon, especially because the funds are
available under our broadly available program without regard to the
religious nature of these facilities. Indeed, to deny FEMA relief to
these important institutions would be to discriminate against them
because they are religious institutions, in violation of the First
Amendment to our Constitution.
Not every facility, home, or place that engages in religious activity
will be made available for FEMA assistance because this bill uses a
predefined, accepted definition for what these facilities are under
section 501(c) of the Internal Revenue Code of 1986. This is how the
IRS currently recognizes and provides tax benefits to houses of
worship, and this definition will help prevent erroneous claims.
The concerns about promotion of religion are unfounded. Alan
Derschowitz, a widely respected expert on these issues, supports this
bill on its constitutional grounds. He wrote that:
Under precedents of the U.S. Supreme Court, religious
institutions may receive government aid if it is in the
context of a broadly available program with criteria that are
neutral toward religion and pose no risks of religious
favoritism. This is certainly the case in the context of FEMA
disbursing aid to repair buildings in the wake of a natural
disaster.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. RAHALL. I yield the gentlelady an additional minute.
Ms. MENG. Many of the groups opposing this bill also oppose Nonprofit
Security Grant funding, historic preservation grants, and parochial
school funding after Katrina. They oppose Federal assistance that
helped rebuild the Trinity Parish Episcopal Church in Seattle after an
earthquake; aid made available after the tragic Oklahoma City bombing
in which money was made available to the First United Methodist Church,
First Baptist Church, St. Paul's Episcopal Cathedral, and St. Joseph's
Catholic Church. This is not precedential; this is taking care of our
constituents and their needs, our most important task in Congress.
Congress erred by not including an important part of our communities
in these rebuilding efforts, and I hope we can correct that today.
Diocese of Rockville Centre,
Rockville Centre, NY, February 11, 2013.
Hon. Chris Smith,
House of Representatives,
Washington, DC.
Dear Representative Smith: A few weeks ago I wrote to your
office to call your attention to the sad situation of houses
of worship that were severely damaged by Hurricane Sandy. At
that time I could cite Catholic churches and Jewish
synagogues who had been told that FEMA would not offer them
grants to re-build their place of worship but only loans.
Today I learned that you plan to offer in Congress a bill
that would offer houses of worship the same access to
disaster relief as other community centers.
I write to thank you for doing this as well as to add my
voice of support for just such a correction of a previous
position that surely does not reflect either our traditions
or our current realities. Houses of worship have been one of
the first centers of response across Long Island. The Sunday
after Sandy I visited the four parishes most damaged by the
storm where I witnessed in parish halls without heat or
electricity two signs of hope: faithful people worshipping
and the same faithful people reaching out to one another to
share food, clothing and other necessities even when their
own homes had been destroyed.
To discriminate against houses of worship would be a mark
of sectarianism that denies
[[Page H469]]
the generosity of the people who helped one another and
narrows the American spirit to an arbitrary sectarianism.
Please know that my parishioners, my priests and all the
volunteers in our various outreach centers are one with me in
support of your bill.
William Murphy,
Bishop of Rockville Centre.
____
American Jewish Committee,
Washington, DC, February 12, 2013.
Re H.R. 592.
Dear Representative: We write on behalf of AJC (American
Jewish Committee) to endorse the necessity and
constitutionality of legislation to ensure that FEMA provides
disaster-relief assistance to houses of worship and other
facilities on an equal footing with analogous not-for-profit
organizations.
We do not support such legislation lightly, since AJC
usually opposes direct government aid to pervasively
religious institutions, such as houses of worship. AJC has a
long record of opposing aid to pervasively religious
institutions as an ingredient of the separation of church and
state that is an essential component in the protection of our
religious liberties. Nevertheless, we believe disaster relief
is constitutionally different.
First, disaster relief, such as the ongoing efforts
following Hurricane Sandy, presents special circumstances
that do not amount to a transfer of the costs of operating a
place of worship from the collection plates to the taxpayer,
a core concern of the Framers when they authored the First
Amendment's prohibition on government establishment of
religion. It is instead a form of social insurance in which
society shares the burden of recovering from extraordinary
disasters. There is a strong societal interest in aiding
those who have suffered damage from such a broad-sweeping
event, even institutions that for compelling constitutional
and policy reasons would not otherwise be eligible for
government assistance.
Second, houses of worship are not uniquely beneficiaries of
the aid--a wide variety of not-for-profit institutions are
eligible for aid under the existing statutory framework,
including zoos and museums. These latter are undeniably
important social institutions, but it is clearly the case
that houses of worship play at least as important a role in
providing essential response services to people in need.
Disaster relief is thus available under religiously neutral
criteria, which leave no room for discretionary or
discriminatory judgments of the sort that generate
Establishment Clause concerns.
For these reasons, we support in principle the goal to
which H.R. 592 is directed.
We do wish to note how we read the proposed language in
Section 3(b), lines 15-16, that makes eligible for aid a
``house of worship and a private nonprofit facility operated
by a religious organization . . . without regard to the
religious character of the facility or the primary use of the
facility.'' (emphasis supplied) We read this section, as we
believe it is intended; as meaning that an otherwise
qualified institution is not disqualified from aid merely
because it is religious, and that in its implementation, FEMA
must apportion aid between secular and religious functions.
Thank you for your consideration of our views.
Respectfully,
Marc D. Stern,
Director of Legal Advocacy.
Richard T. Foltin,
Director of National and Legislative Affairs.
____
UJA Federation of New York,
New York, NY.
Memorandum of Support for H.R. 592
equal treatment of houses of worship
Houses of worship for all faiths are a crucial part of the
New York region's fabric and while they have always been
beacons of support, comfort and community resources, since
Hurricane Sandy New Yorkers have needed these institutions
more than ever. These organizations are an essential part of
neighborhoods and enable rites of passage, community
gatherings, charitable activities and are sources of comfort
and prayer. In the face of lost homes and distressed
property, disruption of employment opportunities and
dislocated families, houses of worship have helped many find
stability and fulfillment in an uncertain time. In the
aftermath of Sandy, as with so many other natural disasters,
churches, synagogues and other houses of worship have been
places offering essential response services to people in
need--even while the church, mosque or synagogue itself is
damaged.
Toward that end, UJA-Federation is proud to have funded
close to $1 million to 76 synagogues to help these
institutions support their communities through respite and
relief and enlisted dozens of volunteers to help rebuild
damaged buildings. Our efforts have made a significant impact
at synagogues including West End Temple in Belle Harbor,
Queens, Congregation Khal Yeraim in Sea Gate, Brooklyn and
The Jewish Russian Learning Center in Staten Island and these
houses of worship have helped the Jewish and broader
communities in the neighborhoods they are serving.
Each of these synagogues serves as vital hubs of community
providing physical, spiritual and emotional shelter for
community members. That said, during Hurricane Sandy, many of
the synagogues suffered severe damage and lack the resources
to rebuild. UJA-Federation while helping houses of worship
serve individuals in need does not have the resources to
support capital needs.
Many houses of worship function similar to other non-
profits by providing day care programming, schooling for
children and youth, senior centers and resource centers for
immigrants. These services are the lifeblood for communities.
Houses of worship have worked closely with elected officials
and government on city, state and federal levels to
coordinate disaster relief efforts to the benefit of the
entire community.
The Stafford Act provides that private nonprofit entities--
such as schools, hospitals and community centers--damaged in
a natural disaster may receive financial grants from FEMA to
repair their buildings. The Act does not list houses of
worship among its list of examples of nonprofits so eligible;
neither does the Act exclude houses of worship in any way. To
the extent that FEMA has provided aid to eligible programs
run by houses of worship, the aid has not been provided on
the same terms as the aid provided to other eligible
nonprofits. It is, therefore, entirely appropriate for FEMA's
aid program for private nonprofits to assist houses of
worship with their rebuilding needs.
Current Supreme Court jurisprudence makes clear that
religious institutions may receive government financial aid
in the context of a broad program administered on the basis
of religion neutral criteria. This is why houses of worship
and other religious nonprofits can, and do, currently receive
grants from the Department of Homeland Security to improve
their security and the Interior Department for historic
preservation.
Numerous houses of worship have suffered financially from
this crisis and federal funding would significantly alleviate
the effects of building damage and their contents.
Accordingly, UJA-Federation supports passage of H.R. 592.
____
University of Virginia
School of Law,
Charlottesville, VA, February 12, 2013.
Re H.R. 592.
Hon. Chris Smith,
Hon. Grace Meng,
House of Representatives,
Washington, DC.
Dear Rep. Smith and Rep. Meng: I write to support your
efforts to include places of worship in federal relief
efforts in response to Hurricane Sandy. As Professor
Dershowitz has already explained, there is no constitutional
obstacle to including places of worship in this measure,
which is entirely neutral and very broadly applicable.
The Supreme Court has permitted government funds to flow
without discrimination to broad categories of schools,
including religious schools (Zelman v. Simmons-Harris). And
when a university undertook to subsidize publications, the
Court has actually required government funds to flow without
discrimination to a broad category that included religious
publications (Rosenberger v. University of Virginia).
Charitable contributions to places of worship are tax
deductible, without significant controversy, even though the
tax benefits to the donor are like a matching grant from the
government. These deductions have been uncontroversial
because they are included without discrimination in the much
broader category of all not-for-profit organizations devoted
to charitable, educational, religious, or scientific
purposes.
The neutral category here is equally broad. To include
places of worship in disaster relief is neutral; to exclude
them would be affirmatively hostile. There is no
constitutional obstacle to including them.
Very truly yours,
Douglas Laycock.
____
Cambridge, MA.
Hon. Chris Smith,
Hon. Grace Meng,
House of Representatives,
Washington, DC.
Dear Representatives Smith and Meng: I write to express my
support for your legislation (H.R. 592) which will ensure
that churches, synagogues, mosques and other houses of
worship damaged in Hurricane Sandy will be eligible to
receive federal disaster relief funds to repair their
facilities on the same terms as other, similarly situated,
private nonprofit organizations.
While the Establishment Clause of the First Amendment
properly restricts government funds flowing to religious
institutions, this restriction is not absolute. Under
precedents of the U.S. Supreme Court, religious institutions
may receive government aid if it is in the context of a
broadly available program with criteria that are neutral
toward religion and pose no risks of religious favoritism.
This is certainly the case in the context of FEMA disbursing
aid to repair buildings in the wake of a natural disaster.
Once FEMA has the policy in place to aid various nonprofit
organizations with their building repairs, houses of worship
should not be excluded from receiving this aid on the same
terms. This is all the more appropriate given the neutral
role we have witnessed houses of worship play, without regard
to the religion of those affected, in the wake of Sandy and
countless previous disasters. Federal disaster relief aid is
a form of social insurance and a means of helping battered
communities get back on their feet. Churches, synagogues,
mosques and other houses of worship are an essential part of
the recovery process.
[[Page H470]]
I hope Congress will move quickly to enact your
legislation.
Sincerely,
Alan Dershowitz,
Felix Frankfurter Professor of Law,
Harvard Law School.
____
Agudath Israel of America,
Washington, DC, February 12, 2013.
Re FEMA Aid and Religious Institutions.
Hon. Christopher H. Smith,
House of Representatives,
Washington, DC.
Dear Representative Smith: On behalf of Agudath Israel of
America, a national Orthodox Jewish organization, I write to
congratulate you on sponsoring H.R. 592, the Federal Disaster
Assistance Nonprofit Fairness Act of 2013, which is intended
to make clear that houses of worship and other religious
institutions are eligible to receive FEMA disaster relief on
an equal footing with other eligible nonprofits. A vote on
the measure is scheduled for this week.
Over the years--most recently, during Hurricane Sandy--
Agudath Israel has been engaged in helping to ensure that
religious institutions obtain a full measure of FEMA aid for
the repair and restoration of their disaster-damaged
facilities. Unfortunately, due to unnecessary and unfair
limitations placed on how and when disaster assistance may be
provided specifically to religious entities--including houses
of worship and religious schools--this has been an ongoing
challenge. Without the much needed aid, they often face
staggering costs that make rebuilding prohibitive.
There is no reason to treat religious entities in this
manner. Supreme Court decisions, as well as executive action,
in recent years that have allowed federal aid to go to
religious institutions when the assistance is made broadly
available and is distributed on a religion-neutral basis--as
the FEMA program does.
Religious institutions are an integral part of American
communities and play an important role in assisting
devastated neighborhoods revitalize and rebuild. After
natural disasters, they provide both material and nonmaterial
help to those in need. They should be treated like other
vital nonprofits and receive federal assistance without
prejudice or discrimination.
Sincerely yours,
Rabbi Abba Cohen.
____
The Council of the City
of New York
New York, NY, February 12, 2013.
Hon. Grace Meng,
Congress Member, House of Representatives, Washington, DC.
Hon. Chris Smith,
Congress Member, House of Representatives, Washington, DC.
Dear Congress Members Meng and Smith: We are writing in
support of H.R. 592, the Federal Disaster Assistance
Nonprofit Fairness Act of 2013. This important legislation
will ensure that houses of worship affected by Hurricane
Sandy will be eligible to receive assistance from FEMA to
rebuild their damaged properties. At stake are the interests
of New Yorkers in the many neighborhoods that were hit hard
by Sandy.
Churches, synagogues and mosques serve as a bedrock for our
citizens and our communities. They not only provide places
for people to worship but operate after-school programs, food
pantries, and other critical services. Many of the churches,
synagogues and mosques that were damaged by the hurricane are
now facing great difficulty reopening their doors.
Although we understand that some oppose this change due to
the constitutional requirement of separation of church and
state, in this case we don't agree. Recovery from a natural
disaster like Hurricane Sandy isn't a matter of state
sponsoring religion. It's a matter of helping those in need
after one of the worst natural disasters our country has ever
seen.
Under such extraordinary and painful circumstances, houses
of worship should be eligible to receive aid on the same
basis as all other non-profits damaged by the hurricane. We
applaud you for your leadership on this matter and are happy
to lend our support to your bill.
Sincerely,
Christine C. Quinn,
Speaker.
Peter F. Vallone, Jr.,
Chair, Public Safety Committee.
Fernando Cabrera,
Council Member.
Mr. BARLETTA. Madam Speaker, how much time do I have remaining?
The SPEAKER pro tempore. The gentleman from Pennsylvania has 7\1/2\
minutes remaining.
Mr. BARLETTA. Madam Speaker, I wish to yield 1\1/2\ minutes to the
gentleman from Pennsylvania (Mr. Pitts).
{time} 1250
Mr. PITTS. Madam Speaker, I'm pleased to speak on behalf of my friend
Mr. Smith's sensible legislation to help rebuild communities destroyed
by Hurricane Sandy.
Federal assistance is intended to make communities whole; and if we
leave behind ruined houses of worship, we're taking the soul out of
those places. Churches, synagogues, and other houses of worship are an
essential piece of any community. They provide shelter in storms,
assistance to the needy, and support for families. And they provide
essential services and support to people of all faiths.
In previous disasters, including Katrina, the Seattle earthquake and
the Oklahoma City bombing, the Federal Government has extended
assistance to places of worship. Areas affected by Sandy should be no
different.
I'm a strong supporter of the First Amendment, and I believe that
this assistance is completely compatible with our Constitution.
Assistance will be distributed without prejudice against any particular
religion. Government cannot endorse religion, but that does not mean we
should discriminate against those of faith during a time of disaster.
Recovery cannot be considered successful if sacred places of our
community are left empty.
Family Research Council,
Washington, DC, February 12, 2013.
U.S. Representative,
Washington, DC.
Dear Representative: On behalf of the Family Research
Council (FRC) and the families we represent, I am writing
today in strong support of H.R. 592, the ``Federal Disaster
Assistance Nonprofit Fairness Act of 2013'' by Reps. Chris
Smith (R-NJ) and Grace Meng (D-NY). H.R. 592 would ensure
that houses of worship would not be denied the same relief
offered to other entities following a major storm or
disaster.
Following every disaster, natural and man made that has hit
the United States, our houses of worship have been there to
help. Following the terrorist attacks of September 11, 2001,
churches, relief organizations and Christian organizations
went into emergency response mode sending help in the form of
money, food, supplies and volunteers. When Katrina struck
Louisiana, it was religious entities that helped the victims
and refugees despite being affected by the storm as well.
This is just as true with the recent Hurricane Sandy that
struck our Eastern seaboard.
Houses of worship across the Northeast including many
faiths and denominations were among the private nonprofit
facilities that sustained damage. However, it was the
churches, synagogues, mosques, temples, and other houses of
worship throughout communities in New York, New Jersey,
Connecticut, and elsewhere that provided relief to many
individuals while the federal government seemingly did
little.
The Federal Emergency Management Agency's (FEMA) own
policies allow for grants to nonprofit organizations where
citizens are known to gather and engage in a variety of
educational, enrichment, and social activities. However, it
is internal FEMA policy that does not believe houses of
worship are worthy of the same type of relief.
H.R. 592 is consistent with recent precedents of the
Supreme Court of the United States and legal opinions issued
by the Office of Legal Counsel of the Department of Justice.
We strongly urge your vote for this necessary legislation.
Sincerely,
Tom McClusky,
Senior Vice President.
Mr. RAHALL. How much time do I have remaining, please, Madam Speaker?
The SPEAKER pro tempore. The gentleman from West Virginia has 8\1/2\
minutes remaining.
Mr. RAHALL. I yield 5 minutes to the gentleman from Virginia (Mr.
Scott).
Mr. SCOTT of Virginia. Madam Speaker, I thank the gentleman for
yielding.
I rise in opposition to H.R. 592, the Federal Disaster Assistance
Nonprofit Fairness Act of 2013, which would add ``houses of worship''
to the list of eligible entities that can receive direct government
assistance from FEMA. While the devastation caused to many communities
after Hurricane Sandy is severe, and while I empathize with the desire
to assist all who have suffered severe losses, direct government
funding for houses of worship, whether for building or rebuilding,
remains unconstitutional.
The establishment clause in the First Amendment protects religious
freedom by preventing the government from endorsing and funding any one
religion--or all religions. And while well intended, this bill would
violate years of precedents interpreting the establishment clause.
In Committee for Public Education v. Nyquist, a 1973 case which
upheld the principles of Everson v. Board of Education, from 1947, the
U.S. Supreme Court held that no taxpayer funds could be used for
maintenance and repair of facilities in which religious activities take
place, explaining:
If the State may not erect buildings in which religious
activities are to take place,
[[Page H471]]
it may not maintain such buildings or renovate them when they
fall into disrepair.
Accordingly, longstanding precedent specifically holds that taxpayer
funds cannot go to construct, rebuild or repair buildings used for
religious activities. The type of buildings that this bill seeks to
make eligible for direct government funding--houses of worship--are
inherently used for religious activities and the bill would have the
effect of unconstitutionally funneling taxpayer money for religious
activities.
Other cases have also upheld the precedent established in Everson v.
Board of Education and have further clarified the application of the
establishment clause to cases of direct religious funding. In Tilton v.
Richardson, the Supreme Court unanimously held that a government
subsidy used to construct buildings at colleges and universities was
constitutional but only if the buildings were never used for religious
activities.
In Hunt v. McNair, 1973, the Supreme Court upheld a South Carolina
law which established an ``educational facilities authority'' that
issued bonds to finance construction and renovation of facilities at
educational institutions was upheld because it included a condition
that government-financed buildings could never be used for religious
worship or instruction.
All of these cases firmly establish that it is constitutionally
impermissible for the government to provide direct subsidization of
religious institutions for the construction, repair or maintenance of
any building that is, or even might be, used for religious purposes.
Houses of worship clearly fall within this category of buildings and
based on a long line of Supreme Court cases cannot be publicly funded
and cannot be recipients of direct grant funding.
Now, there are constitutional ways to assist churches along with
other community organizations. Loan programs, such as the government-
sponsored small business loan programs available to any business in a
community, could also be used by churches. Such loan programs have been
upheld as constitutional so long as they are both neutral on their face
and in their application and so long as their purpose is not to aid
religious institutions specifically.
In Mitchell v. Helms, 2000, the Supreme Court held that loan programs
for religious institutions are allowable in some cases. However, such
programs are distinguishable from grants and are further
distinguishable from the direct funding of church facilities that are,
or may be, used for religious purposes. The opinion included that:
Of course, we have seen special establishment clause
dangers when money is given to religious schools or entities
rather than indirectly.
Justice O'Connor noted the Court's ``continued recognition of the
special dangers associated with direct money grants to religious
institutions.'' Now, therefore, H.R. 592 clearly violates the
principles prohibiting direct government grants to religious
institutions. It also violates any possible exemption that could be
available under the theory of neutrality--the standards in this bill
applicable to houses of worship are different from the standards for
other entities.
While I'm in favor of constitutionally permissible ways to assist
churches that have been damaged by natural disasters, this bill clearly
does not do so in a constitutionally permissible way; and for this
reason, I must oppose the bill and urge my colleagues to instead work
together to ensure that all entities affected by Hurricane Sandy can be
assisted in an expeditious and constitutionally permissible manner.
American Civil Liberties Union,
Washington, DC, February 12, 2013.
Re Oppose H.R. 592, the so-called Federal Disaster Assistance
Nonprofit Fairness Act of 2013.
Dear Representative: On behalf of the American Civil
Liberties Union (ACLU), a non-partisan organization with more
than a half million members, countless additional activists
and supporters, and 53 affiliates nationwide dedicated to the
principles of individual liberty and justice embodied in the
U.S. Constitution, we are writing to urge you to vote ``No''
on H.R. 592 when the measure comes up on the suspension
calendar on Wednesday. This bill, which would authorize FEMA
to provide houses of worship with direct grants of taxpayer
funds, would flout longstanding constitutional law and harm
religious liberty.
The Supreme Court has recognized that the First Amendment
was devised to prohibit ``[t]he imposition of taxes to . . .
build and maintain churches and church property,'' because
such funding is an affront to ``individual religious
liberty.'' Accordingly, longstanding Court precedent
specifically holds that taxpayer funds cannot go to
construct, rebuild, or repair buildings used for religious
activities--which clearly includes houses of worship. The
Court has never retreated from this bedrock Establishment
Clause principle. In fact, the Supreme Court continues to
recognize ``special Establishment Clause dangers where the
government makes direct money payments to sectarian
institutions,'' which is exactly the use of taxpayer funds at
issue here. And in a variety of bills over the past several
decades, Congress has prohibited the use of funds to
construct buildings used for religious purposes. Indeed, in
the American Recovery and Reinvestment Act, Congress again
recognized this prohibition and limited green construction
funding to buildings in which secular activities take place.
Under current policy, houses of worship may obtain
government loans--just not direct grants--to rebuild. All
for-profit businesses and non-profit organizations--including
houses of worship--are eligible to participate in the SBA
Disaster Loan Program. Houses of worship, therefore, are not
without government help to rebuild. Moreover, houses of
worship are not the only non-profit facilities that would
otherwise be ineligible for direct grants for reconstruction.
Only non-profits with facilities used for emergency,
essential, and government-like activities are eligible for
grants. Thus, FEMA grants are not the same as ``general
government services,'' like police or fire, which are
available to every business, nonprofit, private residence,
and house of worship. To say that the policy is unfair or
that houses of worship are treated unequally--singled out
among all other non-profits--therefore, is untrue.
Although houses of worship may serve a central role in the
lives of their congregants, it is impossible to see how the
prayer and worship conducted in these sacred buildings is
equivalent to the essential, government-like activities in
facilities that would be eligible for government grants. It
would be a dangerous precedent to equate religious worship
with the vital services government provides. And while houses
of worship may host educational and social activities, only
community centers that are open to the general public on a
nondiscriminatory basis, serve the entire community (not just
congregants), and are used for a range of different
activities are eligible for a FEMA grant.
In the aftermath of Hurricane Katrina, the Bush
administration directed that houses of worship would remain
ineligible for FEMA funds. The Bush administration respected
longstanding Supreme Court precedent and continued to adhere
to this constitutional requirement. Churches, synagogues,
mosques, and temples were damaged in Katrina just as they
were in Sandy. As an organization whose offices were closed
for weeks as a result, we very much understand the serious
difficulties faced by people who were impacted by superstorm
Sandy--so many of our friends and colleagues in New York and
New Jersey continue to deal with its aftermath. But, the harm
would be compounded if this misfortune were used as a reason
to erode fundamental religious liberty protections enshrined
in the First Amendment.
Religious liberty is one of our nation's most fundamental
values and it starts from the principle that religion thrives
when both religion and government are safeguarded from the
undue influences of the other. Barring federal funds for the
rebuilding of houses of worship is not discriminatory or
hostile to religion--it is one of the most fundamental ways
we have to protect and defend religious liberty for all.
Indeed, the Establishment Clause protects religious freedom
by preventing the government from endorsing and funding any
one religion--or all religions.
Because H.R. 592 would flout longstanding constitutional
law and harm religious liberty, we urge you to oppose the
measure and vote ``No'' when the measure comes up on the
suspension calendar on Wednesday.
Please contact Legislative Counsel Dena Sher if you have
questions or comments about our concerns.
Sincerely,
Laura W. Murphy,
Director, Washington Legislative Office.
Dena Sher,
Legislative Counsel.
____
Americans United for
Separation of Church and State,
Washington, DC, February 12, 2013.
Re Oppose H.R. 592, the Federal Disaster Assistance Nonprofit
Fairness Act of 2013.
Dear Representative: Americans United writes to express our
strong opposition to H.R. 592, the Federal Disaster
Assistance Nonprofit Fairness Act of 2013, which will be
debated on the House floor tomorrow, Wednesday, February 13.
The sole purpose of the bill is to authorize the Federal
Emergency Management Agency (FEMA) to issue direct grants to
fund the rebuilding of houses of worship. We oppose this bill
because such funding would violate the Constitution and
represent a significant shift in longstanding federal policy.
Indeed, the George W. Bush
[[Page H472]]
Administration followed the policies of the Reagan, George
H.W. Bush, and Clinton Administrations when it disallowed
FEMA grants for the rebuilding of ``houses of worship'' after
Hurricane Katrina.
As someone who was born and raised at the Jersey shore and
whose parents are still making repairs to their home and
cleaning up after the storm, I certainly appreciate the needs
the community faces. But, I also recognize that the
Constitution places certain limits on the government's
ability to fund houses of worship. The Tilton/Nyquist line of
Supreme Court cases firmly establish that it is
constitutionally impermissible for the government to provide
aid for the construction and repair of houses of worship. In
accordance with these cases, ``the State may not erect
buildings in which religious activities are to take place''
and ``it may not maintain such buildings or renovate them
when they fall into disrepair.''
The rule set down by the Supreme Court in these cases
remains controlling law as neither they, nor the principle
behind them, have ever been overruled in any subsequent
Supreme Court decision. To the contrary, in its more recent
cases examining the constitutionality of government aid to
religious institutions, the Supreme Court has maintained that
direct money grants create ``special Establishment Clause
dangers.'' Congress too just recently recognized the
applicability of this precedent when it limited green
construction funding in the Recovery Act to buildings in
which secular activities take place.
Furthermore, proponents' claims that Tilton and Nyquist are
inapplicable and that Congress should instead look to free
speech forum and in-kind aid cases must be rejected. The
Supreme Court has squarely held that free speech forum cases
are inapposite to federal aid cases and that money grants are
distinct from in-kind funds.
It is also important to note that houses of worship, like
most non-profit organizations and businesses, are eligible
for government loans--just not direct grants--to rebuild. In
addition, houses of worship are not the only nonprofits that
are ineligible for direct grants for reconstruction. To the
contrary, only nonprofits with facilities that are used for
emergency, essential, and government-like activities are
eligible. And, eligible facilities, such as community
centers, must also be open to the general public. To say that
houses of worship are singled out among all other non-
profits, therefore, is untrue. It is similarly inaccurate to
claim that FEMA grants should be extended to houses of
worship because the grants are akin to ``general government
services,'' such as police or fire. FEMA grants--unlike
general government services--are not available to every
business, nonprofit, private residence, or other building.
Although it may not seem easy in times of tragedy to tell
those seeking aid that they are ineligible for government
grants, the bar on the government rebuilding of houses of
worship is an important limitation that exists to protect
religious freedom for all. It upholds the fundamental
principle that no taxpayer should be forced to fund a
religion with whom he or she disagrees and that the
government should never support building (``establishing''
religion in its most basic form) religious sanctuaries. And,
it protects against the government favoring, or creating the
perception of favoritism for, certain religions over others.
Houses of worship are special in our country and our
constitution. They are both the place where worship takes
place, and, adorned with religious symbols and iconography,
are themselves expressions of worship. Accordingly, they are
accorded special protections--exemptions, accommodations, and
tax deductions. Restrictions on government funding of
religion is also a special protection--they protect the
conscience of the individual taxpayer, safeguard the autonomy
of the religious institution, and ensure an equal playing
field for all religions by prohibiting the government from
playing favorites.
For the reasons listed above, we urge you to oppose H.R.
592.
Sincerely,
Maggie Garrett,
Legislative Director.
____
Hindu American Federation,
Washington, DC, February 12, 2013.
Re Please Oppose H.R. 592, the Federal Disaster Assistance
Nonprofit Fairness Act of 2013.
Dear Representative, We at the Hindu American Foundation
(HAF), a 501(c)(3) advocacy organization, write to express
our deep concern about H.R. 592, the Federal Disaster
Assistance Nonprofit Fairness Act of 2013, sponsored by
Congressman Chris Smith (R-NJ). The act provides for direct
grants to fund the rebuilding of ``houses of worship.'' We
believe such funding violates the Constitution and represents
a significant shift in longstanding federal policy. As such,
HAF opposes H.R. 592.
We believe constitutionally problematic because the Supreme
Court has long held that taxpayer funds cannot go to
construct, rebuild, or repair buildings used for religious
activities, including houses of worship without invoking
``special Establishment Clause dangers.'' In fact, the
controlling law proscribing such funding was set down by the
Supreme Court in three major cases--Tilton v. Richardson,
Hunt v. McNair, and Committee for Public Education v.
Nyquist. Even Congress has recognized the applicability of
this precedent when green construction funding in the
Recovery Act was limited to buildings in which secular
activities take place. Past administrations, from George W.
Bush to Ronald Reagan, have also all recognized that direct
financial support to build and reconstruct houses of worship
raises serious Establishment Clause concerns.
There are some government grant programs that benefit other
non-profit facilities, such as the Stafford Act. But these
grants are limited to only ``educational, utility,
irrigation, emergency, medical, rehabilitation, and temporary
or permanent custodial'' facilities,'' and ``any private
nonprofit facility that provides essential services of a
governmental nature to the general public.'' Even among
potentially eligible facilities, there are prohibitions on
funding structures used for religious purposes. That houses
of worship are amongst non-profit facilities which sustain
damage and destruction wrought by natural disasters, is a sad
reality. However, providing direct funding for rebuilding, as
Sec 3 of H.R. 592 seeks to do, would be unprecedented, would
unnecessarily entwine government with religion, and
ultimately would threaten the autonomy of religion.
This is not to suggest that houses of worship are not
deserving or in need of assistance after a natural disaster;
only that direct federal funding should not be granted for
such uses. There are many government loans, which houses of
worship could apply for should they choose. The SBA Disaster
Loan Program, for example, provides loans of up to $2 million
to cover losses that are not fully covered by insurance, and
they can be used to reconstruct or repair property damaged
after a disaster.
Since its inception, the Hindu American Foundation (HAF)
has made legal advocacy one of its main areas of focus. From
issues of religious accommodation and religious
discrimination to defending fundamental constitutional rights
of free exercise and the separation of church and state, HAF
has educated Americans at large about various aspects of
Hindu belief and practice in the context of religious
liberty, either as a party to the case or an amicus curiae.
These have included a successful suit against the State of
South Carolina over a special Christian license plate
mandated by the state's legislature, and amicus briefs filed
before the U.S. Supreme Court in cases involving the public
display of the Ten Commandments and legislative prayer in
which the county allowed only those prayers which invoked a
Judeo-Christian deity.
HAF seeks to be a resource for your office with regards to
matters involving the Establishment Clause. Please feel free
to reach out us should you need further clarification to the
facts presented in this letter.
Respectfully,
Suhag A. Shukla, Esq.,
Executive Director/Legal Counsel.
____
Baptist Joint Committee
for Religious Liberty,
Washington, DC, February 12, 2013.
Re Oppose H.R. 592, the Federal Disaster Assistance Nonprofit
Fairness Act of 2013.
Dear Representative: On behalf of the Baptist Joint
Committee for Religious Liberty (BJC), a 76-year-old agency
dedicated to defending and extending religious freedom for
all, I am writing to express our opposition to H.R. 592, to
be considered on the floor tomorrow, Wednesday, February 13.
The BJC, supported by fifteen national Baptist bodies and
hundreds of congregations and individual supporters, believes
religion is best served when it is neither advanced nor
inhibited by government. H.R. 592, which would authorize FEMA
to provide houses of worship with direct grants of taxpayer
funds, would flout well-established constitutional principles
and harm religious liberty.
The First Amendment's Establishment Clause prohibits
government from providing outright grants or similar
financial support to churches and other houses of worship.
Supreme Court jurisprudence has been clear on this point,
having repeatedly reaffirmed the principle that direct
monetary contributions of taxpayer dollars to religious
institutions create ``special Establishment Clause dangers.''
Simply put, we do not allow taxpayer dollars to build
churches; we likewise should not allow taxpayer dollars to be
used to rebuild churches.
The damage wrought upon the Northeast by Hurricane Sandy is
an instance in which our moral and humanitarian instincts may
seem at odds with the constitutional requirement of no-
establishment. Happily, we have ways to empathize with and
provide aid to churches and other religious organizations
damaged by the terrible storm. Repairs may be financed by
denominational efforts, private foundation grants and
contributions of the faithful. Additionally, insurance
proceeds are available for rebuilding efforts, and churches
and houses of worship may be eligible to obtain low-interest,
long-term loans under the Small Business Administration
disaster loan program for damages not covered by insurance.
Natural disasters and other times of crisis serve as a call
to action for citizens of faith. When we answer that call
using voluntary, private donations, we reflect the very best
of America's longstanding commitment to religious liberty for
all. Public funding of houses of worship threatens to
undermine religious autonomy and impermissibly involve
government in the private affairs of religious bodies. It is
simply not a good idea--however
[[Page H473]]
our heartstrings are tugged--to give churches access to the
public till. H.R. 592 would do just that, and we therefore
urge you to oppose it.
Sincerely,
Nan Futrell,
BJC Staff Counsel.
Mr. RAHALL. Madam Speaker, I yield 2 minutes to the gentlewoman from
Texas (Ms. Jackson Lee).
Ms. JACKSON LEE. Madam Speaker, I absolutely agree with my colleagues
of the necessity of an absolute firewall around the protection of the
First Amendment. And I do believe that Members understand the sacred
aspect of freedom of religion and the separation of church and state.
But I rise today to support H.R. 592, and I support it so that it can
be considered by the Senate and that we can reinforce the distinctive
separation between church and state. But coming from Hurricane, if you
will, Valley, coming from the gulf, living through Hurricane Rita and
Hurricane Katrina, the pain I saw that places of worship, of any kind,
were devastated, the members are taxpayers. And for all that we could
do, we could never get those places to be restored.
The small business loan program does not work because many of our
churches are just that, they give their money to the poor. They are not
rich institutions. That is the bulk of places of worship no matter what
your faith may happen to be.
And as the Federal Emergency Management Agency does, in fact, support
nonprofits, I would argue to the authors of this bill whether or not
they would be open to ensure that the funding is specifically for the
devastation that occurred on that specific natural disaster, that there
was a time limit, that there were specific items of which the church--
or the place of worship, let me be general--could utilize it for.
I come to the floor because I have lived the pain of pastors, I have
lived the pain of rabbis, imams and priests who have suffered the
devastation of their faith. It is not a fault of their own.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. RAHALL. Madam Speaker, the gentlewoman is making such a
persuasive case, I yield her all the balance of my time.
The SPEAKER pro tempore. The gentlewoman is recognized for 1\1/2\
minutes.
Ms. JACKSON LEE. I thank the distinguished gentleman for his
kindness. Let me thank the ranking member very much.
I think we can make this work. And I also want to just mention an
anecdotal story: when we had Hurricanes Katrina and Rita, the places of
worship opened their doors to the surviving members out of Louisiana or
survivors out of Louisiana and just opened their doors.
{time} 1300
They had leaking roofs. They were damaged. But in Texas, they opened
their doors. We took a quarter of a million, and they opened their
doors. They put cots up, and they fed them. All of those items could
not be reimbursed.
We saw places of worship--no matter what their faith--literally shut
down. They just could not survive because they had given their all with
their leaking roof, their non-resources to give food in a place that
these people could stay.
So in this instance, having walked through a number of disasters,
from the tragedy of 9/11, a heinous manmade disaster, to every
hurricane that we've had, including the tsunami way across the ocean,
to see what a natural disaster can do and to preclude these places who
can legitimately document--I would even suggest that it be on a
reimbursement form. But we can work together so that we can document
that what these dollars are used for will be used for the restoration
of the physical plant that houses or allows those who are Americans,
who pay taxes, and are contributing to this Nation.
I ask my colleagues to consider H.R. 592 and how we can make it
better so that it can go forward and help the places of worship.
Mr. BARLETTA. Madam Speaker, I yield 4 minutes to the gentleman from
New Jersey (Mr. Smith).
Mr. SMITH of New Jersey. I thank my good friend for yielding, and I
thank the gentlelady from Texas for her very strong and passionate
remarks.
I especially again want to thank Congresswoman Meng for her excellent
statement and her support and cosponsorship of this important bill.
Let me just say a couple of points to my colleagues. First of all, I
will be submitting for the Record a very fine analysis by the Becket
Fund for Religious Liberty, an outstanding public interest law firm
that has done yeoman's work throughout the country on religious
liberty.
It's a statement to us as Members of Congress by its leaders. It
points out first not only does the Establishment Clause provide no
support for FEMA's practice of discriminating against houses of
worship, that practice itself runs afoul of the First Amendment by
discriminating against religious institutions.
Second, the bill you have proposed will not lead to Establishment
Clause violations because no act of Congress can purport to repeal the
First Amendment. Arguments to the contrary are constitutional
scaremongering.
Eric Rassbach and Daniel Blomberg have authored again a very
important contribution to this debate.
Madam Speaker--and Ms. Meng mentioned this earlier and it bears
repeating--in letters of support for H.R. 592, Harvard Professor Alan
Dershowitz concludes:
Religious institutions may receive government aid if it is
in the context of a broadly available program with criteria
that are neutral toward religion and pose no risk of
religious favoritism.
He states further:
Once FEMA has a policy in place to aid various nonprofit
organizations with their building repairs, houses of worship
should not be excluded from receiving this aid on the same
terms.
This is all the more appropriate given the neutral role that we have
witnessed houses of worship play without regard to religion to those
afflicted in the wake of Sandy and countless previous disasters.
Federal disaster relief aid in the form of social insurance and other
means of helping battered communities get them back on their feet.
Churches, synagogues, mosques, and other houses of worship are an
essential part of the recovery process.
Madam Speaker, religious liberty scholar Professor Douglas Laycock of
the University of Virginia School of Law wrote a letter endorsing H.R.
592 and said in part:
Charitable contributions to places of worship are tax
deductible without significant controversy, though the tax
benefits to the donor are like a matching grant from the
government. These deductions have been uncontroversial
because they're included without discrimination in a much
broader category of all not-for-profit organizations devoted
to charitable, educational, religious, or scientific
purposes. The neutral category here is equally broad; to
include places of worship in disaster relief is neutral. To
exclude them would be affirmatively hostile. There is no
constitutional obstacle to including them.
That is according to Professor Laycock of the University of Virginia
School of Law, a preeminent expert on these matters.
Madam Speaker, houses of worship are an integral, irreplaceable part
of the contour and fabric of our communities. Like any other private
nonprofit organization, their recovery is essential to the recovery of
neighborhoods, towns, and States. They should not be excluded from
Federal programs that ensure community recovery, especially since they
so selflessly provide assistance to all in need.
In conclusion, Madam Speaker, this legislation has been backed by a
number of important organizations, including the Union of Orthodox
Jewish Congregations of America, the United States Conference of
Catholic Bishops, the National Association of Evangelicals.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. BARLETTA. I yield the gentleman an additional 30 seconds.
Mr. SMITH of New Jersey. Just to underscore for my colleagues the
broad support that this has, the American Jewish Committee has also
supported it, the Family Research Council. As I said earlier, the
Becket Fund and so many others have written very extensive remarks in
favor of it.
I do hope there will be very strong support for this important
legislation. It's a matter of inclusion to stop current-day, present-
day exclusion.
[[Page H474]]
Memorandum
To: Interested Parties
From: Nathan J. Diament, Exec. Director of Public Policy
Date: February 6, 2013
Re Legal Analysis Supporting Including Houses of Worship,
Among Private Nonprofit Facilities, Eligible for Federal
Disaster Relief Funds Administered by FEMA Under the
Stafford Act.
Conclusion: The Establishment Clause does not bar the award of federal
grants to houses of worship for the repair of facilities damaged in a
natural disaster, in the context of the Stafford Act's ``private
nonprofit facility'' aid program.
I.
A. Background
The Robert T. Stafford Disaster Relief and Emergency
Assistance Act provides that the Federal Emergency Management
Agency (FEMA) may provide funding, through its Public
Assistance program, to restore facilities of certain private
nonprofit organizations which were damaged in a natural
disaster. 42 U.S.C. 5122, 5172.
The private nonprofit organizations eligible for such aid
include those which provide ``critical services'' (ie:
utilities, hospitals and schools) and those which provide
``essential services'' (ie: museums, community centers,
libraries, day care centers and more). The Stafford Act does
not explicitly include or exclude houses of worship from
eligibility for public assistance. In its regulations and
policies, FEMA has imposed restrictions on eligibility for
aid to houses of worship. FEMA excludes facilities whose
``primary use'' is religious from eligibility.
It is worth noting an illustrative example of FEMA's
unequal policy. One eligible category of nonprofit providing
``essential services'' is community centers. FEMA policy
defines these entities as ``a gathering place for a variety
of social, educational . . . and community service
activities.'' FEMA policy describes a broad array of
activities that fit this definition--but excludes a facility
that hosts the very same activities if that facility and
those activities are in a house or worship in a religious
context.
FEMA's exclusion of houses of worship from eligibility
cannot be exclusively on constitutional grounds because, as
noted, FEMA awards aid to religious entities that operate
what it deems to be eligible nonprofits. FEMA's exclusion is
also not on statutory grounds as the statute does not
explicitly exclude houses of worship.
FEMA's policy is unfair, discriminatory and not required by
constitutional jurisprudence.
B. Possible Constitutional Concerns
Those who would contend that providing government funds for
the repair of houses of worship is barred by the Constitution
would argue that a two-part rule governs direct financial
support of religious institutions. First, that direct aid may
be given to ``non-pervasively sectarian'' religious
institutions, provided the aid is not used to fund
specifically religious activity and is channeled exclusively
to secular functions. Second, that there are institutions--
``pervasively sectarian'' institutions--in which ``religion
is so pervasive that a substantial portion of [their]
functions are subsumed in the religious mission.'' (Hunt v.
McNair, 413 U.S. 734, 743 (1973)). The opponents would
further contend that, because houses of worship would qualify
as ``pervasively sectarian'' institutions, in which the
``secular and religious functions'' are ``inextricably
intertwined,'' the government may not provide direct aid to
them ``with or without restrictions,'' because the aid will
inevitably end up advancing religion. (Tilton v. Richardson,
403 U.S. 672 (1971), and Committee for Public Educ. v.
Nyquist, 413 U.S. 756 (1973)).
In addition, the opponents of fair inclusion of houses of
worship would contend that to the extent that it is possible
to distinguish between the religious and secular, any
governmental effort to separate out the facilities and
functions that engage in exclusively religious activities
could well involve the kind of monitoring of a religious
entity otherwise prohibited by the Establishment Clause.
Opponents would again cite Tilton and Nyquist, which imposed
certain restrictions on the government's provision of
construction, maintenance, and repair aid to properties used
by religious educational institutions.
As the following discussion will demonstrate however, in
the context of disaster response and relief, these
contentions are inconsistent with current constitutional
jurisprudence.
II
A. General Constitutional Perspective
A proper reading of Supreme Court decisions and
jurisprudence developed in the decades since Tilton and
Nyquist clearly lead to the conclusion that providing federal
grants to houses of worship, among many types of nonprofits,
as part of a broad disaster relief program, is
constitutionally acceptable. Most notably, the Supreme
Court's ruling in Mitchell v. Helms, 550 U.S. 793 (2000),
explicitly undermined the continued application of Tilton and
Nyquist.
First, Congress may legitimately conclude that the federal
government has a secular interest in aiding a community's
recovery from a natural disaster, that repairing damaged
private nonprofit facilities is an essential component of
that recovery and that houses of worship are among those
nonprofit facilities which should be aided.
Second, the public assistance grants are not an isolated
initiative designed to aid religion--it is but one part of a
much larger legislative effort to assist a disaster stricken
region with its recovery. In this critical way, it is quite
distinguishable from the targeted aid programs considered in
the Tilton and Nyquist cases.
Third, the aid to houses of worship is within the context
of the Stafford Act's broader provision of aid to nonprofit
entities. In this respect, inclusion of houses of worship is
consistent with many existing and past examples of inclusion
of religious institutions in broader infrastructure
improvement and federal aid programs. Notable examples of
such programs include:
i) the Interior Department's ``Save America's Treasures''
program provides grants for the repair and maintenance of
historically significant properties, which have included the
Boston's Old North Church and Newport's Touro Synagogue;
ii) FEMA awards disaster relief grants to repair facilities
under the Stafford Act, 42 U.S.C. 5121-5206, damaged in
natural disasters to religious institutions including, for
example, a Seattle parochial school;
iii) following the Oklahoma City bombing, Congress
authorized FEMA and other federal agencies to provide
disaster relief funds to houses of worship on the same basis
as all other nonprofit facilities;
iv) the California Missions Preservation Act, P.L. 108-420
(Nov. 30, 2004), authorizes federal grants for restoring
colonial era missions in California, many of which are still
used for religious worship;
v) Congress has overwhelmingly authorized grants for
security upgrades for nonprofits, including houses of
worship, under the Department of Homeland Security's UASI
program;
and many other examples abound.
Therefore, a federal disaster relief program which includes
houses of worship among its eligible grantees cannot be
materially distinguished from other aid programs that
are constitutional under longstanding precedents
establishing that religious institutions are fully
entitled to receive widely available government benefits
and services.
B. Disaster Relief and Repair Grants Are ``General Gov't Services''
It is highly significant that eligibility for FEMA's public
assistance grants extends to a broad class of beneficiaries,
defined without reference to religion and including both
public and private institutions. Ever since 1947, the year of
its decision in Everson, the Supreme Court has indicated that
religious institutions are entitled to receive ``general
government services'' made available on the basis of neutral
criteria. 330 U.S. at 17. Everson held that the Establishment
Clause does not bar students attending religious schools from
receiving generally available school busing services provided
by the government. In reaching its decision, the Court
explained that even if the evenhanded provision of busing
services increased the likelihood that some parents would
send their children to religious schools, the same could be
said of other ``general state law benefits'' that were even
more clearly constitutional because they were equally
available to all citizens and far removed from the religious
function of the school. Id. at 16. As examples, the Court
cited ``such general government services as ordinary police
and fire protection, connections for sewage disposal, public
highways and sidewalks,'' concluding:
``cutting off church schools from these services, so
separate and so indisputably marked off from the religious
function, would make it far more difficult for the schools to
operate. But such is obviously not the purpose of the First
Amendment. That Amendment requires the state to be a neutral
in its relations with groups of religious believers and non-
believers; it does not require the state to be their
adversary. State power is no more to be used so as to
handicap religions, than it is to favor them.''
Id. at 17-18. See also id. at 16 (``[The state] cannot
exclude individual Catholics, Lutherans, Mohammedans,
Baptists, Jews, Methodists, Non-believers, Presbyterians, or
the members of any other faith, because of their faith, or
lack of it, from receiving the benefits of public welfare
legislation. . . . [W]e must be careful, in protecting the
citizens of New Jersey against state-established churches, to
be sure that we do not inadvertently prohibit New Jersey from
extending its general state law benefits to all its citizens
without regard to their religious belief.'').
Federal disaster aid is analogous to aid that qualifies as
``general government services'' approved by the Court in
Everson.
As the Supreme Court explained in Widmar v. Vincent, 454
U.S. 263, 274 (1981), ``[t]he provision of benefits to so
broad a spectrum of groups is an important index of secular
effect.'' Accord Zobrest v. Catalina Foothills Sch. Dist.,
509 U.S. 1, 8 (1993) (``we have consistently held that
government programs that neutrally provide benefits to a
broad class of citizens defined without reference to religion
are not readily subject to an Establishment Clause
challenge''); Board of Educ. of Kiryas Joel Village Sch.
Dist. v. Grumet, 512 U.S. 687, 704 (1994) (``we have
frequently relied explicitly on the general availability of
any benefit provided religious groups or individuals in
turning aside Establishment Clause challenges''). Thus, the
aid here is closely analogous to the provision of ``general''
government aid like that sanctioned by the Court in Everson.
See also Church Arson Prevention Act of 1996, Pub. L. No.
104-155, 110 Stat. 1392
[[Page H475]]
(creating a program that provides low-income reconstruction
loans to nonprofit organizations, including churches,
destroyed by arson motivated by racial or religious animus).
As Justice Brennan expressed the point in Texas Monthly:
``Insofar as [a] subsidy is conferred upon a wide array of
nonsectarian groups as well as religious organizations in
pursuit of some legitimate secular end, the fact that
religious groups benefit incidentally does not deprive the
subsidy of the secular purpose and primary effect mandated by
the Establishment Clause.'' 489 U.S. at 14-15 (plurality
opinion) (footnote omitted).
When viewed in the context of disaster response, Walz v.
Tax Commission, 397 U.S. 664 (1970), strongly supports this
conclusion. There the Court rejected an Establishment Clause
challenge to a property tax exemption made available not only
to churches, but to several other classes of nonprofit
institutions, such as ``hospitals, libraries, playgrounds,
scientific, professional, historical, and patriotic groups.''
Id. at 673; see also id. at 667 n.1. In upholding the tax
exemption, the Court relied in part upon its breadth: the
exemption did ``not single[] out one particular church or
religious group or even churches as such,'' but rather was
available to ``a broad class of property owned by nonprofit,
quasi-public corporations.'' Id. at 673. As the Court stated
in reference to Everson, if ``buses can be provided to carry
and policemen to protect church school pupils, we fail to see
how a broader range of police and fire protection given
equally to all churches, along with nonprofit hospitals, art
galleries, and libraries receiving the same tax exemption, is
different for purposes of the Religion Clauses.'' Id. at 671.
Thus, just as a broad category of beneficiary institutions
was sufficient to sustain the inclusion of religious
institutions in the tax benefit in Walz--which, after all,
substantially benefitted churches' property--the breadth of
programs funded in the Stafford Act weighs heavily in favor
of the constitutionality of including houses of worship.
C. No Risk of Perceived Endorsement of Religion
No reasonable observer would perceive an endorsement of
religion in the government's evenhanded provision of funds to
repair a house of worship damaged in a natural disaster such
as Hurricane Sandy. See Mitchell, 530 U.S. at 842-44
(O'Connor, J., concurring in judgment). While it is true that
in a narrower direct aid program one could argue that if a
school ``uses the aid to inculcate religion in its students,
it is reasonable to say that the government has communicated
a message of endorsement,'' Id. at 843, that is not the case
in the context of this broader disaster relief effort. A
presumption of governmental endorsement is not present where
the aid is provided to a wide array of public and private
entities for the sake of recovery from a disaster and where
the government is indifferent to the religious or secular
orientation of the facility's function. Moreover, we think a
reasonable observer--one informed about the purpose, history,
and breadth of the program, see Zelman, 536 U.S. at 655--
would understand that the federal government is not paying
for religious activity; it is paying to help devastated
communities recover. That is not an endorsement of religion.
D. Distinct from Tilton and Nyquist
Opponents will contend that the Supreme Court's decisions
in Tilton and Nyquist, which involved construction and
maintenance aid to religious schools, should be read to
support the conclusion that FEMA aid to houses of worship
violates the Establishment Clause. We disagree.
In Tilton, the Court sustained the provision of federal
construction grants to religious colleges insofar as the
program at issue barred aid to facilities ``used for
sectarian instruction or as a place for religious worship,''
but invalidated such grants insofar as the program permitted
funding the construction of buildings that might someday be
used for such activities. See 403 U.S. at 675, 683 (plurality
opinion) (citations omitted). The Court concluded that a 20-
year limitation on the statutory prohibition on the use of
buildings for religious activities was insufficient because
``[i]f, at the end of 20 years, the building is, for example,
converted into a chapel or otherwise used to promote
religious interests, the original federal grant will in part
have the effect of advancing religion.'' Id. The Court
therefore held that the religious use restriction had to run
indefinitely. Id.
Similarly, Nyquist involved a program that provided
maintenance and repair grants to religious elementary and
secondary schools. The grants at issue were limited to 50
percent of the amount spent for comparable expenses in the
public schools, but the Court invalidated the program. ``No
attempt [was] made to restrict payments to those expenditures
related to the upkeep of facilities used exclusively for
secular purposes,'' the Court stated, and the 50 percent
restriction would not necessarily prevent rehabilitation of
entire religious schools. 413 U.S. at 774. The Court thus
concluded that such aid would have the effect of advancing
religion, in violation of Lemon's second prong. Id.
These holdings have been severely undermined and limited.
See Mitchell v. Helms, 530 U.S. 793, 856-57 (2000) (O'Connor,
J., concurring in judgment).
A broad reading and application of Tilton and Nyquist does
not apply here for several reasons. First, Tilton and Nyquist
are in considerable tension with a more recent line of cases
holding that the Free Speech Clause does not permit the
government to deny religious groups equal access to the
government's own property, even where such groups seek to use
the property ``for purposes of religious worship or religious
teaching.'' Widmar v. Vincent, 454 U.S. 263, 265 (1981). See
Lamb's Chapel v. Center Moriches Sch. Dist., 508 U.S. 384,
394 (1993); Capital Square Rev. & Advisory Bd. v. Pinette,
515 U.S. 753 (1995); Good News Club v. Milford Central Sch.,
533 U.S. 98 (2001); see also Westside Community Bd. of Educ.
v. Metgens, 496 U.S. 226 (1990). Providing religious groups
with access to property is a form of direct aid, and allowing
such groups to conduct worship services plainly ``advances''
their religious mission. The Court, however, has consistently
refused to permit (let alone require) state officials to deny
churches equal access to public school property on the
basis of these officials' argument ``that to permit its
property to be used for religious purposes would be an
establishment of religion.'' Lamb's Chapel, 508 U.S. at
394.
The Supreme Court's Establishment Clause jurisprudence has
greatly evolved since the Court's decisions in Tilton and
Nyquist were rendered, and many of the legal principles that
supported those decisions have been discarded. In 1985, for
example, the Court struck down programs under which the
government provided religious and other schools with teachers
who offered remedial instruction to disadvantaged children.
See Aguilar v. Felton, 473 U.S. 402 (1985); School Dist. of
Grand Rapids v. Ball, 473 U.S. 373 (1985). The Court reasoned
that teachers in the program might ``become involved in
intentionally or inadvertently inculcating particular
religious tenets or beliefs.'' Ball, 473 U.S. at 385. In
Agostini v. Felton, 521 U.S. 203, 223 (1997), however, the
Court overruled Aguilar and substantial portions of Ball,
explaining that the Court had abandoned the presumption that
placing public employees in religious schools ``inevitably
results in the impermissible effect of state-sponsored
indoctrination or constitutes a symbolic union between
government and religion.'' Similarly, in the 1970s the Court
held that the state could not provide any ``substantial aid
to the educational function of [religious] schools''
reasoning that such aid ``necessarily results in aid to the
sectarian school enterprise as a whole.'' Meek v. Pittenger,
421 U.S. 349, 366 (1975); accord Wolman v. Walter, 433 U.S.
229, 250 (1977). In Agostini and Mitchell, however, the Court
expressly abandoned that view, overruling Meek and Wolman.
See Agostini, 521 U.S. at 225; Mitchell, 530 U.S. at 808,
835-36 (plurality opinion); id. at 837, 851 (O'Connor, J.,
concurring in judgment). In addition, other portions of
Nyquist have been substantially narrowed or overruled. As the
Court stated in Zelman, ``[t]o the extent the scope of
Nyquist has remained an open question in light of these later
decisions, we now hold that Nyquist does not govern neutral
educational assistance programs that, like the program here,
offer aid directly to a broad class of individual recipients
defined without regard to religion.'' 536 U.S. at 662.
Perhaps more important, recent Supreme Court decisions have
brought the demise of the ``pervasively sectarian'' doctrine
that comprised the basis for numerous decisions from the
1970s, such as Tilton and Nyquist. As noted above, that
doctrine held that there are certain religious institutions
in which religion is so pervasive that no government aid may
be provided to them, because their performance of even
``secular'' tasks will be infused with religious purpose.
That doctrine, however, no longer enjoys the support of a
majority of the Court. Four Justices expressly abandoned it
in Mitchell, see 530 U.S. at 825-29 (plurality opinion), and
Justice O'Connor's opinion in that case set forth reasoning
that is inconsistent with its underlying premises, see id. at
857-58 (O'Connor, J., concurring in judgment, joined by
Breyer, J.) (requiring proof of actual diversion of public
support to religious uses to invalidate direct aid to schools
and explaining that ``presumptions of religious
indoctrination are normally inappropriate when evaluating
neutral school-aid programs under the Establishment
Clause''). See also Columbia Union College v. Oliver, 254
F.3d 496, 502-04 (4th Cir. 2001) (explaining that the
pervasively sectarian test is no longer valid in light of the
holdings of six Justices in Mitchell). Justice O'Connor
rejected the view that aid provided to religious primary and
secondary schools will invariably advance the schools'
religious purposes, and that view is the foundation of the
pervasively sectarian doctrine.
Such was the reasoning and conclusion reached by a federal
district court in a current case highly analogous to the FEMA
aid program--American Atheists Inc. v. City of Detroit DDA,
503 F.Supp.2d 845 (2007). There, plaintiffs challenged
Detroit's ``Facade Improvement Plan'' under which the city
provided funds to buildings in a particular section of
downtown in order to improve their appearance for the
Superbowl which was to be held in the city. Three churches
received such grants and this was challenged in the lawsuit.
The federal court concluded that the program was available to
a broad array of buildings and its grant criteria were
religion neutral and the FIP was thus constitutional.
For all of these reasons, Tilton and Nyquist do not control
the question at issue in the case of FEMA's public assistance
aid to private nonprofit facilities, including houses of
worship.
[[Page H476]]
E. Singling Out Faith-Related Entities for Exclusion Runs Counter to a
Proper Application of the Establishment Clause
In recent years, Justice Breyer has insightfully invoked
the balanced and practical approach to the Establishment
Clause previously championed by Justices Goldberg and Harlan.
In Van Orden v. Perry, 545 U.S. 677 (2005), Justice Breyer
wrote that ``the Court has found no single mechanical formula
that can accurately draw the constitutional line in every
case. See School Dist. of Abington Township v. Schempp, 374
U.S., at 306 (1963) (concurring opinion). Where the
Establishment Clause is at issue, tests designed to measure
``neutrality'' alone are insufficient, both because it is
sometimes difficult to determine when a legal rule is
``neutral,'' and because ``untutored devotion to the concept
of neutrality can lead to invocation or approval of results
which partake not simply of that noninterference and
noninvolvement with the religious which the Constitution
commands, but of a brooding and pervasive devotion to the
secular and a passive, or even active, hostility to the
religious.'' Ibid. In proceeding to rule that a display of
the Ten Commandments on the grounds of the State of Texas'
capitol was acceptable, Justice Breyer argued that, in so
many of these cases, context matters. Thus, ``to reach a
contrary conclusion here [and declare the display to violate
the Establishment Clause], based primarily upon on the
religious nature of the tablets' text would, I fear, lead the
law to exhibit a hostility toward religion that has no place
in our Establishment Clause traditions.''
If we apply Justice Breyer's principled pragmatism to the
issue at hand, if Congress and the President decide to
appropriate billions of dollars to help private nonprofits
rebuild after a natural disaster, but also determine to
deliberately exclude houses of worship when they otherwise
meet the relevant criteria, such a decision would be the very
exhibition of hostility toward religion that the Justices
have inveighed against pursuing in the name of the
Establishment Clause.
In the wake of Hurricane Sandy and every major disaster
within recent memory--churches, synagogues and other houses
of worship have been essential in a community's recovery and
response effort. Even while the church may have its HVAC
system destroyed it will welcome the homeless. Even while the
synagogue may have been flooded, it will feed the hungry.
Basic fairness and principles of nondiscrimination, let
alone compassion, should compel Congress and the Executive
Branch to change policy and declare houses of worship
eligible for disaster relief assistance administered by FEMA.
____
United States Conference of Catholic Bishops, Ad Hoc
Committee for Religious Liberty,
Washington, DC, February 11, 2013.
Hon. Chris Smith,
House of Representatives, Rayburn House Office Building,
Washington, DC.
Dear Representative Smith: As the House of Representatives
prepares to consider H.R. 592, the Federal Disaster
Assistance Act, we write in support of the legislation, which
would ensure the fair and equal treatment for houses of
worship damaged in a natural disaster.
Your legislation is consistent with Supreme Court
jurisprudence, which recognizes the right of religious
institutions to receive public financial aid in the context
of a broad program administered on the basis of religion-
neutral criteria. The bill is not asking for special
treatment, just equal treatment that conforms to
constitutional protections.
It should be noted that in the aftermath of a natural
disaster houses of worship often play an irreplaceable role
in the recovery of a community. Discrimination that treats
houses of worship as ineligible for federal assistance in the
wake of a natural disaster, beyond being a legal violation,
hurts the very communities most affected by the
indiscriminate force of nature.
The best approach to address questions of eligibility for
houses of worship is a permanent clarification of federal
law. For this reason we support your bill and ask that it be
adopted by Congress.
Sincerely,
Most Reverend William E. Lori,
Archibishop of Baltimore, Chairman, USCCB Ad Hoc Committee
for Religious Liberty.
Most Reverend Denis J. Madden,
Auxiliary Bishop of Baltimore, Chairman, USCCB Committee
for Ecumenical and Interreligious Affairs.
____
Union of Orthodox Jewish Congregations of America,
Institute for Public Affairs,
Dear Representatives Smith and Meng: We write to express
our strong support for the Federal Disaster Assistance
Nonprofit Fairness Act of 2013. Your legislation will ensure
the fair and equal treatment for houses of worship damaged in
Hurricane Sandy and future natural disasters.
The Stafford Act provides that private nonprofit entities--
such as schools, hospitals, museums and community centers--
damaged in a natural disaster may receive financial grants
from FEMA to repair their buildings. The Act does not list
houses of worship among its list of examples of nonprofits so
eligible; neither does the Act exclude houses of worship in
any way.
In the aftermath of Sandy, as with so many other natural
disasters, churches, synagogues and other houses of worship
have been places offering essential response services to
people in need--even while the church or synagogue itself is
damaged.
It is, therefore, entirely appropriate for FEMA's aid
program for private nonprofits to assist houses of worship
with their rebuilding needs. Moreover, if houses of warship
are excluded from this otherwise religion neutral program--
that unfair treatment would be improper anti-religious
discrimination.
Current Supreme Court jurisprudence makes clear that
religious institutions may receive government financial aid
in the context of a broad program administered on the basis
of religion neutral criteria. This is why houses of worship
and other religious nonprofits can, for example, currently
receive grants from DHS to improve their security and the
Interior Department for historic preservation.
Your legislation clarifying the Stafford Act is consistent
with these precedents and policies and we urge the House of
Representatives to pass this measure as soon as possible.
Thank you,
Yehuda Neuberger.
Nathan Diament.
____
NJ State Association
of Jewish Federations,
February 11, 2013.
Hon. Christopher H. Smith,
House of Representatives,
Washington, DC.
Dear Congressman Smith: The N.J. State Association of
Jewish Federations and its eleven constituent federations and
their network of affiliated and beneficiary agencies are
pleased to acknowledge your leadership in introducing H.R.
592, the Federal Disaster Assistance Nonprofit Fairness Act.
We support the legislation which would authorize those houses
of worship impacted and devastated by Hurricane Sandy to
receive assistance through the recently enacted Sandy relief
funding.
Our houses of worship, as with other faith based
institutions, play a crucial role every day providing
stability, comfort and serving as a community resource. With
the hurricane's impact still very much in evidence for our
state, we have needed houses of worship more than ever to
ease the path of recovery for community and each of their
individual members. Even though the church, mosque, temple or
synagogue may have been physically damaged, houses of worship
continue to provide essential response services to people in
need.
Jewish Federations in those areas that suffered most from
Sandy's might assisted their synagogues and congregants to
overcome the immediate crisis through financial aid, respite
and relief while securing dozens of volunteers to help
rebuild damaged buildings in the greater local community. The
Jewish Federation of Monmouth County, as one of the
communities hardest hit by the hurricane, the relief funding
provided by it and its partner Federations in the state have
enabled Monmouth to meet a wide array of human service needs
in the county. Their approach has been strategic, identifying
both short-term and long-term needs and dislocations
following the storm, empowering our partners in their efforts
to respond, and connecting those who could most benefit to
these resources. Most importantly, the Federation has been
proactive in spreading word throughout Monmouth County that
the Jewish community is here to help in storm recovery
efforts.
Jewish Family and Children Service organizations replaced
lost clothing, provided gift cards for food, counseled Sandy
victims easing their anxiety and emotional pain and made
available flexible repayment loans to help families and
businesses recover. The Jewish Federation of Greater Metro
West has provided $50,000 to JFS agencies to assist with the
medium and long term needs. Chabad of Hoboken received $5,000
for counseling assistance, while federation is also
developing a partnership with Union Beach, a community
outside their catchment area and will provide $10,000 toward
relief efforts there.
Many of our synagogues suffered severe damage and lack the
resources to rebuild. Jewish Federations, while helping
houses of worship serve individuals in need, do not have the
resources to support capital needs. Assistance from the
Jewish Federation of Monmouth County helped ``Chabad of the
Shore'' roof and carpet repaid, as well as providing plywood
to cover vulnerable windows. Temple Shalom in Aberdeen had
roof damage which was repaired through Federation assistance.
There were a number of other similar actions of relief
provided by the Monmouth federation.
This is not only the Jewish community experience, but one
shared with houses of worship of all religions. It is
entirely appropriate for FEMA's aid program for private
nonprofits to assist houses of worship with
[[Page H477]]
their rebuilding and community outreach needs.
For all the reasons stated, herein, the passage of H.R. 592
will bring equity in a time of crisis and will recognize the
unselfish sacrifices made by our houses of worship in
response to an event that left devastation in its wake and
tragic consequences for its victims. Accordingly, the NJ
State Association of Jewish Federations is pleased to support
the enactment of the Federal Disaster Assistance Nonprofit
Fairness Act.
Sincerely,
Ruth Cole,
President.
Jacob Toporek,
Executive Director.
____
Diocese of Trenton,
Trenton, NJ, February 11, 2013.
Hon. Chris Smith,
Rayburn House Office Building, House of Representatives,
Washington, DC.
Dear Congressman Smith: I understand that you will soon be
presenting a bill to Congress which would provide federal
funding in the form of grants to houses of worship which were
devastated by the hurricane last October.
I applaud your efforts and offer my full support for this
bill. Volunteers from the Catholic churches as well as other
denominations were on the front line with food, clothing,
shelter and other basic necessities as soon as the storm
passed. They were surely the first responders and just as
surely will be there as long as they are needed. To exclude
houses of worship from which these volunteers have come is a
grave injustice.
On behalf of the clergy, religious and lay people who live
and work within the Diocese of Trenton, I thank you for being
our advocate and for taking the initiative to introduce this
bill on behalf of all faith communities.
Sincerely,
Most Reverend David M.
O'Connell, C.M.,
Bishop of Trenton.
____
Congregation Sons of Israel,
Lakewood, NJ, February 12, 2013.
Hon. Christopher H. Smith,
Rayburn House Office Building, House of Representatives,
Washington, DC.
Dear Congressman Smith: As the House of Representatives
prepares to consider H.R. 592, the Federal Disaster
Assistance Nonprofit Fairness Act, we write in support of the
important legislation that you have introduced. Thank you for
your effort to ensure the fair and equal treatment for houses
of worship in the aftermath of this devastating natural
disaster.
It is universally acknowledged that houses of worship play
a central role in the recovery of a community in the
aftermath of any natural disaster. Faith-based volunteers are
the first responders providing aid and comfort to those who
have lost so much, and they persevere with their efforts as
long as help is needed. To exclude the houses of worship from
where these volunteers have come from government assistance
would be a grave injustice.
Discrimination that treats houses of worship as ineligible
for federal assistance in the wake of a natural disaster,
beyond being a legal violation, hurts the very communities
most affected by the devastating storm.
We strongly feel that you have identified the best approach
to address recurring questions of eligibility for houses of
worship by proposing a permanent clarification of federal
law. We therefore strongly support your bill and ask that it
be adopted by Congress.
With much appreciation for your efforts,
Rabbi Samuel Tendler,
Congregation Sons of Israel.
____
National Association
of Evangelicals,
February 12, 2013.
Hon. Chris Smith,
Hon. Grace Meng,
House of Representatives,
Washington, DC.
Dear Representatives Smith and Meng: Thank you for your
efforts to correct a misguided policy of the Federal
Emergency Management Agency (FEMA) that currently bars houses
of worship from receiving federal disaster assistance for
rebuilding damaged structures. Your work to insure that
government assists private nonprofit entities, including
houses of worship, in an evenhanded way is very much
appreciated.
In any major natural disaster, churches, synagogues and
other houses of worship play indispensable roles in providing
comfort and relief to those who have experienced loss. They
bring food, water, clothing and other essential supplies to
those who are stranded or displaced. They care for the
wounded and comfort the bereaved. Our communities are
stronger because they are there.
When the houses of worship themselves have been damaged,
the effects are often felt far beyond the membership. When an
important part of the community infrastructure is damaged,
the entire community suffers. Many times, churches continue
serving their communities even after their own buildings have
been destroyed.
FEMA does not violate the establishment clause when it
administers a religion-neutral program of support for the
rebuilding of community infrastructure. In fact, if religious
organizations are specifically excluded when comparable
secular organizations are included, the government's practice
would be discriminatory. This is the clear conclusion of
Supreme Court jurisprudence, and is consistent with current
federal practice in the Department of Homeland Security and
the Interior Department.
Thank you for your leadership in working to restore
fairness to FEMA disaster assistance.
Sincerely,
Galen Carey,
Vice President, Government Relations.
____
Bais Kaila Torah Preparatory
High School for Girls,
Lakewood, NJ, February 12, 2013.
Hon. Christopher H. Smith,
Rayburn House Office Building, House of Representatives,
Washington, DC.
Dear Congressman Smith: I hope that all is well with you
and your family. With your introduction of H.R. 592, the
Federal Disaster Assistance Nonprofit Fairness Act, we see
that you are again taking the initiative to do what is right,
especially considering that houses of worship are always at
the forefront of the recovery process when communities are
hit with natural disasters. It is therefore very appropriate
that they be able to participate on an equal footing with
other nonprofits in receiving federal aid, as a means of
helping damaged communities get back on their feet.
As I understand it, the Federal Emergency Management Agency
is charged with ensuring that communities are prepared for
natural disasters, and then responding to facilitate recovery
in the wake of such disasters. FEMA has historically provided
disaster-related aide to parochial schools damaged by
earthquakes. Other examples of federal aid to houses of
worship, includes grants for security improvements from the
U.S. Department of Homeland Security and historic
preservation grants from the U.S. Department of the Interior.
Your legislation, H.R. 592, would simply ensure that the
Stafford Act is consistent with these policies.
In conclusion, once again we thank you for your leadership
and advocacy and we look forward to seeing the passage of
H.R. 592.
Sincerely yours,
Rabbi Yisroel Schenkolewski,
Dean.
____
The Jewish Federations
of North America,
Washington, DC, February 11, 2013.
Hon. John A. Boehner,
Speaker of the House of Representatives, Capitol Building,
Washington, DC.
Hon. Nancy Pelosi,
House Democratic Leader, House of Representatives, Capitol
Building, Washington, DC.
Dear Speaker Boehner and Leader Pelosi: The Jewish
Federations of North America (JFNA) is writing to express our
support for H.R. 592, the Federal Disaster Assistance
Nonprofit Fairness Act. This bill, scheduled to be on the
suspension calendar this coming Wednesday, February 13, 2013
and co-sponsored by Representatives Chris Smith (R-NJ) and
Grace Meng (D-NY), will ensure the fair and equal treatment
for houses of worship damaged in Hurricane Sandy.
JFNA is the national organization that represents and
serves 154 Jewish Federations and 300 independent Jewish
communities across North America. In their communities,
Jewish Federations and volunteers in the central address for
fundraising and an extensive network of Jewish health,
education and social services. In response to Hurricane Sandy
Jewish Federations have raised almost $7 million in direct
Sandy-related relief and allocated almost $11 million to
Sandy victims in Connecticut, New Jersey and New York.
The Stafford Act provides that private nonprofit entities--
such as schools, hospitals and community centers--damaged in
a natural disaster may receive financial grants from FEMA to
repair their buildings. The Act does not list houses of
worship among its list of examples of nonprofits so eligible;
neither does the Act exclude houses of worship. To the extent
that FEMA has provided aid to eligible programs run by houses
of worship, the aid has not been provided on the same terms
as the aid provided to other eligible nonprofits.
In the aftermath of Sandy, as with so many other natural
disasters, churches, synagogues and other houses of worship
are locations where essential response services have been
provided to people in need--even while the church or
synagogue itself has suffered extensive damage. It is,
therefore, entirely appropriate for FEMA's aid program for
private nonprofits to assist houses of worship with their
rebuilding needs. Moreover, if houses of worship are excluded
from this otherwise religion neutral program--that unfair
treatment would be improper anti-religious discrimination.
Additionally, for almost 30 years, it has been FEMA's mission
to lead America to prepare for, prevent, respond to, and
recover from domestic disasters. This has led to FEMA's
provision of disaster-related aide to parochial schools
damaged by earthquakes.
Current Supreme Court jurisprudence makes clear that
religious in receive government financial aid in the context
of a broad program administered on the basis of religion
neutral criteria. This is why houses of worship and other
religious nonprofits can, and do, currently receive grants
from DHS to improve their security and the Interior
Department for historic preservation.
H.R. 592, the Federal Disaster Assistance Nonprofit
Fairness Act, would ensure that the Stafford Act is
consistent with these
[[Page H478]]
policies, and we ask that you vote in favor of this
legislation.
Sincerely yours,
William C. Daroff,
Vice President for Public Policy &
Director of the Washington office.
____
The Becket Fund
For Religious Liberty.
Hon. Christopher Smith,
House of Representatives, 2373 Rayburn House Office Building,
Washington, DC.
Re FEMA's discriminatory treatment of houses of worship.
Dear Congressman Smith: You and others have asked us to
examine the application of the Establishment Clause of the
United States Constitution to the disbursement of federal
disaster relief funds to houses of worship damaged in severe
weather events such as Superstorm Sandy. In particular, you
would like us to examine (1) whether the Federal Emergency
Management Agency's practice of not funding repairs to houses
of worship is justified by the Establishment Clause grounds,
and (2) whether your proposed act preventing FEMA's practice
would give rise to Establishment Clause problems.
The answer to both questions is no. First, not only does
the Establishment Clause provide no support for FEMA's
practice of discriminating against houses of worship; that
practice itself runs afoul of the First Amendment by
discriminating against religious institutions. Second, the
bill you have proposed will not lead to Establishment Clause
violations because no Act of Congress can purport to repeal
the First Amendment. Arguments to the contrary are
constitutional scaremongering.
Background
Superstorm Sandy devastated many of the Northeast's coastal
cities. The federal government is expected to spend about $60
billion to help restore these hard-hit communities. Yet FEMA
has categorically denied foundational elements of those
communities--synagogues, churches, mosques, and other houses
of worship--access to this otherwise generally-available
relief funding. A broad range of nonprofit organizations,
including zoos and museums, qualify for disaster-relief
grants administered by FEMA. But when religious organizations
asked FEMA for the same assistance it provides many other
nonprofits, FEMA told them that it considered them ineligible
for the grants. This leaves houses of worship like All Saints
Church of Bay Head, New Jersey, which was built by
shipbuilders in 1889 and now has a sinkhole for a sanctuary,
without access to the help that is available to the
neighborhood zoo.
Despite acknowledging that religious facilities can meet
the threshold aid requirement that the facility be ``used for
a variety of community activities,'' FEMA considers
``churches, synagogues, temples, mosques, and other centers
of religious worship'' categorically ineligible simply
because of their religious use. Nor is this a recent problem:
the George W. Bush Administration took the same stance after
Hurricane Katrina, based on a federal regulation promulgated
in 1990 by the George H.W. Bush Administration. (As noted
below, though, the federal government has often departed from
this stance to assist houses of worship through neutral and
generally available funding programs.)
Analysis
FEMA's discriminatory policy. To justify its discrimination
against houses of worship, FEMA has cited arguments asserting
that the Establishment Clause of the United States
Constitution prevents houses of worship from having equal
access to FEMA disaster assistance grants. Others make the
same claim. For instance, Barry Lynn of Americans United for
Separation of Church and State has stated that, ``even after
the devastation of [Superstorm] Sandy,'' the federal
government cannot provide relief to destroyed synagogues,
churches, and mosques.
But this argument is simply not true. When Lynn recently
made a similar argument in an amicus brief to the U.S. Court
of Appeals for the Sixth Circuit, the court--in an opinion
authored by Judge Sutton--flatly and unanimously rejected the
argument. The court noted that long-standing Supreme Court
precedent allowed ``churches, synagogues, and mosques'' to
receive ``generally available benefits'' like ``police and
fire-protection services'' and access to ``sewers and
sidewalks.'' The court reasoned that ``[i]f a city may save
the exterior of a church from a fire,'' it could certainly
provide equal access to government funds that ``help that
same church with peeling paint.''
That conclusion is all the more true here, where the
problem the government seeks to remedy is not peeling paint
but complete devastation. Notably, the Sixth Circuit
supported its conclusion by explicitly noting the widespread
legal acceptance ``of government programs designed to provide
one-time emergency assistance through FEMA . . . to churches
devastated by natural disasters.''
Indeed, the federal government--including FEMA--has
repeatedly given disaster relief to religious groups in the
past. For instance, after Seattle Hebrew Academy was damaged
by a major earthquake in 2002, FEMA awarded a disaster relief
grant for repair. Before it did so, FEMA asked the Department
of Justice's Office of Legal Counsel whether that was
constitutionally permissible. OLC's detailed response
concluded that ``a FEMA disaster grant is analogous to the
sort of aid that qualifies as `general government services'
approved by the [Supreme] Court'' for provision to houses of
worship. The OLC letter pointed out that, far from banning
equal access to government funding, the First Amendment bans
the government from ``deny[ing] religious groups equal access
to the government's own property,'' and ``require[s] equal
funding'' of religious expression. The letter ended by noting
that an argument could be made that ``excluding religious
organizations from disaster assistance made available to
similarly situated secular institutions would violate the
Free Exercise Clause and the Free Speech Clause.''
OLC has likewise approved, and the federal government has
permitted, the participation of houses of worship in the Save
America's Treasures program, which authorizes matching grants
for preservation of properties with historical significance.
For instance, the OLC approved a National Park Service
grant to restore Boston's Old North Church--a church which
is currently used by an active Episcopal congregation and
was once used to warn Paul Revere of British military
plans. Similar grants have been provided for Atlanta's
Ebenezer Baptist Church, where Martin Luther King, Jr.,
preached, the historic Franciscan missions in California,
and Touro Synagogue in Rhode Island. All of those houses
of worship needed repairs for damage caused by the ravages
of time--why would damage caused by the ravages of Sandy
be any different?
Several other federal statutes permit federal funding or
support for houses of worship that have been damaged or
destroyed. Indeed, after the Oklahoma City bombing, Congress
specifically authorized FEMA and other agencies to provide
disaster relief to damaged churches on the same basis that
any other private nonprofit facilities may receive such aid.
Finally, FEMA's policy of discriminating against houses of
worship is itself problematic under the Establishment Clause
because it denies religious institutions access to a
generally available benefit, solely because they are
religious. The Supreme Court has repeatedly held that ``[t]he
First Amendment mandates governmental neutrality between
religion and nonreligion.'' Singling out religious
institutions for special disfavor is not neutral. Similarly,
FEMA's approach also creates a potential conflict with
federal civil rights law, specifically the Religious Freedom
Restoration Act, which forbids government imposition of
substantial burdens on religious exercise. As courts have
frequently held, denial of a generally available benefit to
religious persons because they are religious constitutes a
substantial burden on the exercise of religion.
In short, FEMA is wrong to claim that the Establishment
Clause--which combats discrimination--justifies its decision
to discriminate. It is instead FEMA's discrimination policy
that is more likely to trigger scrutiny under the First
Amendment and related civil rights laws.
The proposed bill. For the same reasons, it is our opinion
that your proposed bill will not raise Establishment Clause
problems. Instead, it will alleviate them by offering a way
to stop discrimination against houses of worship in federal
disaster relief funding.
On the night before your bill was set for a vote, FEMA
issued a statement in opposition to the bill. As an initial
matter, much of FEMA's three-page statement does nothing more
than lay out existing law and reiterate what we've
established above: Congress has made similar regulatory fixes
before and the OLC has provided legal opinions supporting
religious organizations' equal access to generally available
government funds.
FEMA really makes only two complaints against the proposed
bill. First, it warns that entities like the ACLU have
threatened to sue unless it keeps discriminating against
religious organizations. But, as explained above, such
threats are meritless and will be met in court by the Becket
Fund and other organizations that are happy to defend equal
access for houses of worship that have been devastated by
natural disasters. Further, it is imprudent to allow such
threats to take federal legislation hostage, as giving in to
them will only encourage future threats. Finally, concerns
about litigation might make some sense if FEMA were run by a
tiny village government with a small budget that might be
intimidated by the prospect of litigating against the ACLU.
But given the resources of the Department of Justice, this
argument from fear of litigation makes no sense.
FEMA's second complaint is that the bill could require them
to choose whether to fund ``arks of the covenant [and] prayer
books.'' But, as a factual matter, it appears FEMA is trying
to manufacture this particular controversy in order to scare
legislators. As Rabbi David Bauman of Temple Israel in Long
Beach--which was flooded by up to 14 feet of storm-surge
saltwater--explained, no one is asking the government to
restore prayer books; they need help with basic structural
repairs, just like other buildings in the neighborhood. More
importantly, the bill cannot repeal the Establishment Clause:
FEMA will remain bound by the Constitution. Thus to the
extent a religious organization requests funds that would
result in a constitutional violation, FEMA will still be
bound to turn them down. What the bill actually does is get
rid of the artificial and discriminatory standard created by
FEMA and replace it with the standard of neutrality required
under the First Amendment.
In addition, to the extent that there is any problem it is
one of FEMA's own making. As
[[Page H479]]
it admits in its statement of opposition, it is FEMA's own
regulatory interpretations that would require it to pay for
prayer books or other similar items. But neither of the
regulations that FEMA cites as forcing it to make the
apparently unpalatable choice appear to require any such
decision. And FEMA can always exercise its interpretive power
to avoid a constitutional violation.
Again, no one is asking the government to buy prayer books
or Torahs. Instead, synagogues, churches, and mosques are
simply asking that they receive the same disaster relief as
many other private nonprofits. Doing anything less would not
live up to the neutrality required by the Establishment
Clause--it would express a blatant hostility to religion that
the Establishment Clause rejects.
In conclusion, it is our opinion that FEMA cannot rely on
the Establishment Clause to categorically ban houses of
worship from competing for disaster relief funds on the same
terms as other eligible nonprofits. Your proposed bill will
not violate the Constitution but will instead protect it.
Very truly yours,
Eric C. Rassbach,
Daniel Blomberg,
The Becket Fund for Religious Liberty.
Mr. BARTLETT. Madam Chair, I yield myself such time as I may consume.
I know all too well and firsthand what happens when disaster strikes
at home. My constituents were affected by Hurricane Irene and Tropical
Storm Lee.
So I would like to commend the gentleman from New Jersey for his hard
work for the constituents back home. It's times like this that we need
to come together in a bipartisan fashion to help Americans who need
that help.
With that, Madam Speaker, I yield back the balance of my time.
Mr. LEVIN. Madam Speaker, in the wake of the devastation caused by
Superstorm Sandy, Congress must be an active partner in the effort to
rebuild, so I will vote in favor of the bill before the House today,
which extends FEMA disaster relief assistance to houses of worship on
an equal footing with other not-for-profit organizations affected by
the storm.
I wish, however, that the House had taken the time to hold hearings
on this legislation before bringing it to the House Floor so that we
could have more fully explored the constitutional issues involved with
this matter. Clearly, the federal government can and does provide
federal resources to houses of worship for a variety of purposes,
including homeland security grants and small business loans, but we
must tread carefully in this area to ensure that the assistance
extended passes muster with the basic provisions of the Constitution.
It would have been better to thoroughly vet the language of this bill,
among ourselves in the House and with constitutional scholars before
bringing it up for a vote. As this legislation must pass the Senate in
order to become law, I hope there will be in their proceedings a
careful review of these issues before they act, including making any
needed changes, which would bring the bill back to the House for final
enactment.
Mr. FRANKS of Arizona. Madam Speaker, we often come to this floor to
advocate any number of controversial issues--issues that often produce
strong disagreement from the given Speaker's opposing party. But I
stand here today stating what I'm confident an overwhelming majority of
Americans would deem simple common sense: if the government responds to
a disaster--like Hurricane Sandy, which caused devastating damage and
losses in the tens of billions of dollars--it should strive to help the
entire community recover, not pick and choose some to receive help and
others to go it alone.
But, stunningly, that's not the way it currently works, Madam
Speaker. As it stands, many of the strongest, most necessary pillars in
our society--churches and other places of worship--are being excluded
from even being considered for the recovery aid provided by FEMA in the
wake of Sandy.
Since the policy has come to light, some have attempted to defend it,
invoking that all-too-commonly abused notion of the separation of
church and state. But, Madam Speaker, even if we accept the most
radical definition of this phrase, there would still be no reasonably
legal explanation for this inexcusable oversight.
The Supreme Court responded to a similar issue when it decided
Everson v. Board of Education. In that decision, the court criticized
the ``imposition of taxes to pay ministers' salaries and to build and
maintain churches and church property.'' But in the very same decision,
the court makes clear the obvious exception to this policy, stating
that the state has the duty to maintain neutral relations with places
of worship, and that they should be granted access to the same basic
government services as the rest of the community--``such general
government services as ordinary police and fire protection, connections
for sewage disposal, public highways and sidewalks.''
Who can, with any modicum of intellectual honesty, suggest that
disaster relief does not fit the definition of a basic government
service? The government is not maintaining neutral relations with
houses of worship in this sphere. It is actively and specifically
excluding them from a basic government service enjoyed by every other
member of the community.
Of course, perhaps the cruelest irony of this entire situation is the
fact that it is so often the churches who step in to help in the
immediate aftermath of such disasters. They are the ones sending their
congregations to feed, clothe, and house a desperate community. They
are the ones taking up donations en masse to help the most afflicted.
And they are the ones selflessly emptying their food closets to
sustain, for just a little while longer, families anxiously awaiting
government aid--the same government aid for which they will
inexplicably not even be considered.
Madam Speaker, this unconstitutional, un-American, unreasonable
discrimination against these essential, compassionate members of our
society simply must not continue. Churches and other places of worship
must be held to the same criteria as other members of the community in
these decisions. I urge my colleagues to strongly support H.R. 592.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Pennsylvania (Mr. Barletta) that the House suspend the
rules and pass the bill, H.R. 592.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. BARLETTA. Madam Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this motion will be postponed.
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