(RNS) — Disaster relief is the latest front in our never-ending conflict over church and state. Specifically, the question is whether Federal Emergency Management Agency aid should be available to help houses of worship rebuild when disaster strikes.
Earlier this month, FEMA issued new guidelines removing restrictions on such aid. This flies in the face of a 1971 Supreme Court decision, Tilton v. Richardson, which said it would violate the establishment clause for religious colleges or universities ever to use a facility they built with public funds for religious purposes.
But last year's Trinity Lutheran decision, which said a church could not be barred from applying to a public program to resurface its playground, opened the way for a challenge to Tilton. Three Texas churches harmed by Hurricane Harvey sued to obtain FEMA rebuilding funds, a federal judge turned them down, and the churches took their case to the 5th U.S. Circuit Court of Appeals.
Now, of course, the legal challenge will come from the other side — as in the church-state separationists who filed a brief supporting FEMA's prior position: Americans United, the American Civil Liberties Union, the Anti-Defamation League and the Baptist Joint Committee.
The Trump administration, which embraces any religious rights claim not made by Muslims, will be defending the new FEMA rule.
In the meantime, however, the U.S. House of Representatives passed, and the Senate will soon be taking up, a disaster relief bill (H.R. 4667) that carves out a middle ground. It says that houses of worship can apply for FEMA aid in rebuilding, but that the aid
shall only be used to cover costs of purchasing or replacing, without limitation, the building structure, building enclosure components, building envelope, vertical and horizontal circulation, physical plant support spaces, electrical, plumbing, and mechanical systems (including heating, ventilation, air-conditioning, and fire and life safety systems), and related site improvements.
In other words, a church would not be able to use public funds to repair or replace its altar, pulpit, pews and other items of a strictly religious character.
No doubt, FEMA support for repairing the building structure, etc., would help the church carry out its religious mission. But this could be seen as state aid comparable to its (constitutionally permitted) exemption from having to pay property taxes.
Under existing law, nonprofit facilities that are eligible for FEMA aid include museums, zoos, performing arts facilities, community arts centers, community centers, libraries, homeless shelters, senior citizen centers, rehabilitation facilities, shelter workshops, food banks and broadcasting facilities. Ineligible are facilities used primarily for political, athletic, recreational, vocational, academic training and conferences.
I think most people would agree that houses of worship fall more into the former category than the latter. Regardless, it's worth considering the question posed by Marc Stern, general counsel of the American Jewish Committee (which is not opposing the pending federal legislation), to wit: Is the government substituting for the parishioner or is it dealing with extraordinary circumstances?
"Tilton involved substituting the public fisc for a private donor," says Stern. "Disaster relief provides no opportunity for the government to become a supporter of the church."
The separationists aren't likely to be persuaded by this distinction, if for no other reason than their belief that every compromise just gives the other side an excuse to push the envelope further. If you think they're mistaken, just recall how that side treated the Obama administration's accommodation for religious nonprofits on the Affordable Care Act's contraception mandate.
And so we have yet another sad chapter in the religious polarization of American life today.