[Congressional Record Volume 159, Number 24 (Thursday, February 14, 2013)]
[Extensions of Remarks]
[Pages E143-E145]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       FEDERAL DISASTER ASSISTANCE NONPROFIT FAIRNESS ACT OF 2013

                                 ______
                                 

                               speech of

                       HON. CHRISTOPHER H. SMITH

                             of new jersey

                    in the house of representatives

                      Wednesday, February 13, 2013

  Mr. SMITH of New Jersey. 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 is about those who are being unfairly left out and left 
behind. It's about those who helped feed, comfort, clothe and shelter 
tens of thousands of victims now being told they are ineligible for a 
FEMA grant.
  It is 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 this 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 of 
2013--H.R. 592--will ensure that churches, synagogues, mosques, temples 
and other houses of worship are eligible for federal funds to 
effectuate repairs, restoration and replacement of damaged facilities.
  Madam Speaker, it's worth noting here that FEMA's discriminatory 
policy of exclusion isn't 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, restore or replace 
houses of worship. Indeed, congressional precedent favors enacting H.R. 
592 as there are several pertinent examples of public funds bein 
allocated to houses of worship.
  For example:
   FEMA grants were explicitly authorized by Congress and provided to 
churches damaged in the Oklahoma City terrorist attack;
  Homeland Security Department and UASI provides funding to houses of 
worship for security upgrades;
  Interior Department provides funding for grants for historically 
significant properties including churches and synagogues;
  It is important to note that a controlling Justice Department Office 
of Legal Counsel Memorandum explains in detail the legal principles 
which make H.R. 592 constitutional. In a September 25, 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 ``provision 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 Everson v. Board of Education, which involved a program in 
my own 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 students 
attending religious schools from receiving generally available school 
busing services provided by the government. In reaching its decision, 
the Court

[[Page E144]]

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.
  As examples, the Court cited ``such general government services as 
ordinary police and fire protection, connections for sewage disposal, 
public highways and sidewalks,'' concluding that ``cutting off church 
schools from these services . . . 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.''
  As Nathan J. Diament, Executive Director of Public Policy for the 
Union of Orthodox Jewish Congregations of America notes in his 
excellent legal analysis which I will include in the Record ``federal 
disaster relief is analogous to aid that qualifies as 'general 
government services' approved by the Court in Everson.
  That same Supreme Court also held that ``[Government] 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.''
  In Walz v. Tax Commission, 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.'' 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.''
  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, 
``[t]he provision of benefits to so broad a spectrum of groups is an 
important index of secular [that is, constitutional] effect.'' And as 
it stated more recently in Texas Monthly, Inc. v. Bullock, ``[i]nsofar 
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.''
  Significantly, Madam Speaker, when three churches in Detroit received 
taxpayer funded grants to repair and spruce up their buildings prior to 
the 2006 Superbowl, American Atheists sued the City of Detroit and 
lost. In a sweeping decision authored 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: ``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, and accordingly it has not run afoul 
of the federal or state religion 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.''
  In sum, 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 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 human 
decency.
  Indeed, to do otherwise would be to single out churches for adverse 
treatment, which is itself constitutionally suspect. The Supreme Court 
held in Church of Lukumi Babalu Aye v. City of Hialeah, that ``[a]t 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.'' Similarly, in 
Rosenberger v. Rector and Visitors of the University of Virginia, the 
Court held that ``the government offends the First Amendment when it 
imposes financial burdens on certain speakers based on the content of 
their expression,'' including religious expression. To continue to 
single houses of worship out for discrimination does not express 
government neutrality, it expresses government hostility. And there is 
no place for government hostility toward religion under our 
constitution.
  The constitution clearly allows, and arguably requires, that 
religious organizations be treated equally when it comes to Congress' 
providing for the well-being of Americans following the onslaught of 
Superstorm Sandy and other natural disasters.
  The damage unleashed by Sandy has taken a huge toll on houses of 
worship. According to the N.J. Catholic Conference more than 145 
churches suffered significant damage in my state alone. Another 125 
churches in New York have been damaged and are seeking FEMA help with 
more to be counted as repairs and ongoing work are addressed and 
contracted out for completion.
  Similarly, dozens of synagogues and temples in both states are now 
looking to see how they repair after spending months of providing goods 
and services--with no regard to religion--to those who needed it.
  In testimony just last week before the New York City Council, Joseph 
Rosenberg of the Catholic Community Relations Council poignantly noted 
that when Sandy hit, the leaders of the churches, synagogues and other 
houses of worship did not first ask if their facilities would be 
eligible for federal assistance before providing food and shelter and 
relief to thousands of displaced persons.
  Nor did these providers of assistance ask the religious affiliation 
of the victims. No, they went to work providing tangible, life-saving 
aid to all comers.
  In his letter of support for H.R. 592, Harvard professor Alan 
Dershowitz concludes that ``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.''
  Professor Dershowitz notes further:

       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 religion of those affected, in the wake of Sandy and 
     countless previous disasters. Federal disaster relief aid is 
     a form of social insurance and 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.

  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, 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.''
  America's houses of worship are an integral, irreplaceable part of 
the contour and fabric of our communities. Like any other private non-
profit 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 
selflessly provide assistance to all in need.
  H.R. 592 has been endorsed by several organizations including the 
Union of Orthodox Jewish Congregations, the United States Conference of 
Catholic Bishops, the Council of Churches of the City of New York and 
the American Jewish Committee.
  I would like to take this moment to submit one more additional letter 
of support for H.R. 592 from Carl H. Esbeck, Professor of Law, 
University of Missouri, and my full statement for the Record.

                                            University of Missouri


                                                School of Law,

                                                February 11, 2013.
     Re Federal Disaster Assistance Nonprofit Fairness Act of 
         2013.

     Hon. Chris Smith,
     Rayburn HOB, Washington, DC.
     Hon. Grace Meng,
     1317 Longworth HOB, Washington, DC.
       Dear Representatives Smith and Meng: I have been asked to 
     give an opinion concerning the constitutionality of the 
     Federal

[[Page E145]]

     Disaster Assistance Nonprofit Fairness Act of 2013. The bill 
     was introduced in the House of Representatives on Friday, 
     February 8, 2013. It would amend Sections 102(10)(B) and 
     406(a)(3) of the Robert T. Stafford Disaster Relief and 
     Emergency Assistance Act (42 U.S.C. 5122(10)(B) and 
     5172(a)(3)), to clarify that houses of worship are eligible 
     for disaster relief and emergency assistance on the same 
     terms as other nonprofit facilities providing certain defined 
     essential services to the public. Stated differently, houses 
     of worship that are otherwise eligible for relief and 
     assistance are not to be discriminated against because of 
     their religious character.
       FEMA's current policy is set forth in its memorandum 
     captioned ``Houses of Worship--FEMA Public Assistance 
     Eligibility.'' Concerning multiple-use facilities, FEMA 
     denies relief and assistance to otherwise eligible houses of 
     worship unless the primary use of the space in a facility is 
     for essential services of a governmental nature. FEMA 
     converts ``primary use'' into a simple fifty-percent (50%) 
     rule, but it does not state the legal authority for the rule.
       The matter of interest is compliance with the Establishment 
     Clause in the First Amendment to the U.S. Constitution. The 
     United States Supreme Court has formulated a neutrality 
     principle to assess general programs of aid to the 
     nongovernmental sector. The principle requires: (i) that the 
     program have a secular purpose, and (ii) that the recipients 
     of the aid be eligible without regard to religion. Under the 
     above-referenced bill, Section 102(10)(B) defines an eligible 
     private nonprofit (PNP) as a facility that provides: (a) 
     essential services; (b) while not by government, of that 
     ``nature;'' and (c) available to the public. The three-part 
     definition is secular in purpose. True, the bill expressly 
     mentions houses of worship as eligible. But that makes sense 
     and is secular in purpose, because in the past they were 
     sometimes excluded by FEMA. So Congress, in passing this 
     amendment, is just bringing matters back from a 
     discriminatory situation to one of religious neutrality.
       A parenthetical in 102(10)(B) gives several examples of 
     such eligible PNP facilities providing essential services. If 
     a private ``museum'' is an essential service in the 
     ``nature'' of ``governmental,'' the eligible recipients are 
     not as narrowly limited as might at first appear. ``Community 
     centers'' are expressly named as eligible, and this bill has 
     ``houses of worship'' as a type of community center. The 
     findings in Section 2(5) of the bill further help to define 
     how houses of worship serve as a type of community center. 
     The findings also help to explain how a community center 
     provides ``essential services,'' namely activities central to 
     community rebuilding and reconstruction after a natural 
     disaster.
       Several U.S. Supreme Court cases prepared the way for the 
     neutrality principle as we presently recognize it. In Bowen 
     v. Kendrick, 487 U.S. 589 (1988), the Court upheld a 
     congressional program funding counseling centers targeting 
     adolescent sexuality that was available to religious as well 
     as secular providers. In Zobrest v. Catalina Foothills Sch. 
     Dist., 509 U.S. 1 (1993), the Court held that a public school 
     district had to provide the same special education services 
     to a student when he switched enrollment from a public to a 
     religious high school. In Witters v. Washington Dep't of 
     Servs. for the Blind, 474 U.S. 481 (1986), the Court upheld a 
     state vocational rehabilitation program, available without 
     regard to religion, even when it resulted in aid to a student 
     to attend a seminary.
       The neutrality principle became fully grounded with the 
     Court's decision in Agostini v. Felton, 521 U.S. 203 (1997). 
     Agostini involved the implementation of federal funding for 
     K-12 special educational services in schools in the State of 
     New York. The special educational services were rendered by 
     special education teachers employed by the local public 
     school district. For those special education students in 
     religious schools, it was more effective and less costly to 
     have the teachers travel to the religious school campus to 
     deliver the services. But this had been barred by prior case 
     law. In Agostini, the Court overruled its prior precedent and 
     approved the delivery of services to all special needs 
     students on a basis neutral as to religion. The services were 
     secular, and there was no reason because of the Establishment 
     Clause to discriminate against children enrolled in the 
     religious schools.
       The Agostini secular-purpose/religion-neutral analysis was 
     carried forward by the Supreme Court in Mitchell v. Helms, 
     530 U.S. 793 (2000). The case involved a challenge to a part 
     of the Primary and Secondary Education Act of 1965, which 
     provide educational materials and services to all K-12 
     schools without regard to religion. The challengers wanted 
     the aid denied to religious schools. The nature of the 
     educational materials was secular. Accordingly, the Court 
     upheld the practice of treating all schools neutrally. These 
     religious schools were intensely religious, but that was no 
     reason to discriminate against them. Care should be exercised 
     so that no governmental aid is diverted from its intended 
     secular purpose, in particular that the aid not be diverted 
     to an explicitly religious purpose.
       It is my opinion that the above-referenced proposed 
     amendment to the Robert T. Stafford Disaster Relief and 
     Emergency Assistance Act is consistent with the Establishment 
     Clause of the First Amendment to the U.S. Constitution.
       Thank you for your kind consideration of this letter 
     opinion.
           Sincerely,
     Carl H. Esbeck,
       R.B. Price Professor of Law and Isabelle Wade & Paul C. 
     Lyda Professor of Law, University of Missouri.

                          ____________________