After three churches in Texas were damaged last year during Hurricane Harvey, they discovered they were ineligible for federal disaster aid under a policy of the Federal Emergency Management Agency. Last week, the Trump administration came to their rescue — by abolishing a rule that prohibited federal aid for the repair or rebuilding of facilities used primarily for religious activities.
We don't often agree with the administration, including on matters involving the separation of church and state. But this was the right decision.
A lawyer for the organization Americans United for Separation of Church and State objected that the policy change was a "clear violation of the U.S. Constitution and its protection of the separation of church and state." But the constitutional issue isn't that clear.
The 1st Amendment's religious clauses pull in two different directions. The Establishment Clause indeed prevents government from giving official support to religion. But the Free Exercise Clause means that citizens can't be penalized for practicing their faith, including when it comes to the allocation of government benefits. Withholding government benefits in this case from the churches would violate the 1st Amendment.
The Supreme Court cited the Free Exercise Clause last June when it ruled 7-2 that the state of Missouri couldn't exclude a Lutheran parochial school from a program that provided grants to nonprofits for the resurfacing of playgrounds. In its statement revising its regulations, FEMA cited that decision.
Lawyers can disagree about whether that ruling required FEMA to revise its rules; a federal judge in a lawsuit brought by the Texas churches concluded that it didn't, noting that the ruling involved state funding of a playground, not state funding for religious activity. But the larger principle underlying the Supreme Court's decision is that if the government provides a service, whether it's police and fire protection or disaster relief, it shouldn't deny that service to religious organizations. If a church were on fire, it's hard to imagine anyone arguing that the 1st Amendment bars firefighters from responding.
Critics of the new FEMA policy make another argument: that the agency has limited funds for disaster relief and should focus on helping institutions that serve the larger community. They note that FEMA continues to withhold reconstruction aid from a variety of facilities that serve various purposes, such as vocational training, athletics and political education. Houses of worship, the critics say, should remain in this disfavored category.
FEMA's eligibility criteria do seem arbitrary and may need to be revised. But a church whose stained-glass windows are shattered by an earthquake should be eligible for the same assistance as the school or community center down the street. Help for a library destroyed by a hurricane to restock its shelves shouldn't come with the condition that only secular books will be replaced. Such evenhanded assistance is not an "establishment of religion."