- The Washington Times - Tuesday, September 5, 2017

Three Texas churches damaged by Hurricane Harvey sued the Federal Emergency Management Agency (FEMA) on Monday, demanding access to disaster relief money they say nonreligious nonprofits are able to get.

Hi-Way Tabernacle, one of the three churches, said it served as a shelter for storm evacuees, so it was particularly unfair to refuse funding that is available to nonprofits such as zoos and museums to rebuild after disasters.

“Hurricane Harvey didn’t cherry-pick its victims; FEMA shouldn’t cherry-pick who it helps,” said Diana Verm, counsel at the Becket Fund for Religious Liberty, which is representing Harvest Family as well as Rockport First Assembly of God and Hi-Way Tabernacle.

FEMA allows nonprofits that serve the public benefit to apply for disaster relief funds, but the agency explicitly excludes facilities primarily used for religious activities.

The three churches suffered roof damage and flooding after Hurricane Harvey hit the Texas coast. They are asking the District Court for the Southern District of Texas in Houston to rule FEMA’s policy unconstitutional.

A spokesperson for FEMA declined to comment on the new lawsuit, while a spokesperson for the Justice Department said they are aware of the complaint and will examine the claims.

Robert Tuttle, a law professor at George Washington University, said there is a memo from the Justice Department’s Office of Legal Counsel, written during the Obama administration, that said it’s fine for disaster relief funding to go to churches, but FEMA never implemented it.

“It’s entirely possible that before this gets litigated out, FEMA will just change its rules on what counts as a private facility under the act for eligibility,” said Mr. Tuttle.

The Becket Fund points to the Supreme Court’s ruling earlier this year permitting a church in Missouri to receive a state grant to improve the safety of its playground surface.

“One would think, then, that houses of worship would also get federal government disaster-relief help on an equal basis with other private nonprofit societal institutions such as community centers and zoos,” the churches’ lawsuit reads.

In the church playground case, the justices held that a state cannot refuse to fund a church’s secular activities just because it is a religious institution, in a decision Christian conservatives hailed as a major win for religious freedom.

“The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand,” Chief Justice John G. Roberts Jr. wrote.

Alex Luchenitser, associate legal director for Americans United for Separation of Church and State, said the playground case is different because state funds went to secular purposes — improving safety at a playground — rather than assisting the church’s religious mission.

Mr. Luchenitser said the churches are eligible for loans to pay for repairs, and the fact that the churches are helping shelter evacuees shouldn’t matter.

“They can be reimbursed [for] those nonreligious services they might be providing,” he said.

But Lawrence Gostin, a law professor at Georgetown University, said he thinks the churches have a good chance for a win if the lawsuit makes its way to the high court.

“The Supreme Court has progressively been unraveling much of prior precedent on separation of church and state,” said Mr. Gostin.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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