Hurricane Sandy Disaster Relief for Houses of Worship: Why the Establishment Clause Forbids this Most Recent Attempt by Religious Lobbyists to Obtain Government Support and Funding

Posted in: Constitutional Law

Democrats and Republicans are flirting with letting our government fall over the fiscal cliff into “sequestration,” which will result in massive layoffs and cuts in vital programs, like the military.   From where I am sitting, it appears as though they are suspended in space like Wile E. Coyote, awaiting certain disaster with irrational hope that the disaster will not materialize.  Unlike Wile E., though, they will not personally experience the debacle that awaits, though they will be responsible for it.  Of course, sequestration is not the only Acme bomb that awaits us.  The debt also sits there, ready to explode on our next generation.

If you or I were in the same financial landscape, I do not believe we would be seeking out new ways to spend money, but then there is our beloved Congress, the approval rating of which is barely above single digits at this point.  While the country faces these scary financial issues, Congress is considering expanding the disaster relief for Hurricane Sandy to categories not covered in previous disasters.

Who are the special interests that are making a new case for funding in the midst of our current budget woes?  Who else?  Religious groups seem to know no end of opportunities for the government to spend money on them and for them.  The vast majority of funding for religiously-based social services organizations like Catholic Charities comes from local, state, and federal funds.  Not content with those subsidies, which came with strings so that the government was not underwriting religious observance and goods in violation of the Establishment Clause, President Clinton introduced “charitable choice,” which was then institutionalized as the Office of Faith-based and Community Initiatives in the White House, now called the Office of Faith-based and Neighborhood Partnerships.  This program is intended to reduce the “burdens” of ensuring the government’s money is only spent for social services; since the Bush Administration, religious groups may obtain federal funding and use it in programs where they discriminate on the basis of religion in hiring.  (President Obama pledged to repeal the Executive Order during his first election, but never did.)

There was a time when religious groups, especially Republicans, eschewed government support for fear of the strong hand of the government meddling in their religious observance, as I discuss in this essay, but that day is long gone, and today, religious lobbyists demand funding in every conceivable situation, and argue that the Establishment Clause is no barrier so long as they are receiving a benefit.  For them, the Establishment Clause is no barrier to greater financial benefits, and is not a restraint on the unity of church and state or on taxpayers’ funding their religious observance and worship.  The cases do not support them, but they have no compunction about saying they do.

Thus, the House just passed the foolhardy Federal Disaster Assistance Non-Profit Fairness Act, H.R. 592, 113th Cong. (2013).  This silly bill is a waste of Members’ time, would increase the already high cost of disaster relief from Hurricane Sandy at a time when there are no spare dollars to go around, and is unconstitutional.  That last point means that that the cost is not just in the price of funding to repair the houses of worship, but also the cost of defending the inevitable federal lawsuits likely to result in a holding that the law is, in fact, unconstitutional as a violation of the separation of church and state.

According to FEMA, in past emergencies and disasters, religious schools and social service centers were permitted to obtain government relief funds, but houses of worship themselves were not.  Why?  Because it would be inappropriate for the federal government to entangle itself in decisions about restoring altars, stained glass, and worship spaces.  Restoration of a house of worship was up to the believers, and their mother organization, not the government.

This reasoning is straight out of settled Establishment Clause doctrine.  Under the 1971 case of Lemon v. Kurtzman, and many others, the government may not entangle itself in directing or deciding religious belief or the content of religious worship.  The layout, construction, and elements of a worship space are determined by belief.  FEMA has no business directing what elements will be placed in the sacred space of the house of worship, or making judgment calls about whether a golden cross is necessary on the back of the altar, or whether the altar must be constructed to match a certain size, or out of a particular, rare, expensive material.   Nor should the government be in the business of subsidizing stained-glass windows as opposed to ordinary windows.

Indeed, when historical-preservation laws are applied to churches, it is widely understood that the government may not dictate how the interior of the worship space is laid out, or what symbols must stay or go.  Churches, synagogues, and mosques and their lawyers cry foul the minute a government would even pretend to impose its views on the elements, symbols, or images included in the worship space.  But now they want the government to pay to reconstruct their most sacred spaces?

Religious groups have already obtained the right to be extraordinarily privileged in the land-use process, with the Religious Land Use and Institutionalized Persons Act (RLUIPA).  It is remarkable, particularly in this era of severe budget crises, how little self-restraint they have when it comes to asking for government favors and treats.

The Establishment Clause is not going to allow them to have it both ways, and it should not.  There should be something in a house of worship that is fully owned both literally and figuratively by the faith.  FEMA opposes the bill as a dramatic change from previous law, and rightly fears lawsuits, with the ACLU already expressing strong opposition.  Members should oppose it as an expensive waste of taxpayers’ dollars on lengthy, federal Establishment Clause litigation.

Members of the Senate have yet to take up the bill, and given the looming fiscal cliff, sequestration, and the debt limit, perhaps they will just table it.  If Members cannot say “no” to churches this time, it is hard to imagine what they will not do for organized religion if asked.