Taking FEMA to Court

Hurricane Harvey left a path of devastation in its wake in Texas: ruined roadways, flooded homes, uprooted trees and power lines and a multi-billion dollar repair bill.

The hurricane also left behind a legal issue that has been blocking repairs for some of the hardest-hit — and most deserving — applicants for federal relief assistance.

On Tuesday, three churches sued FEMA in the Houston federal court over the agency’s refusal to give them access to disaster relief money after their buildings were damaged by Hurricane Harvey.

The religious community in Texas was at the forefront of providing emergency assistance during the hurricane and its aftermath, giving food and shelter to people whose homes had been washed away. Yet, when they came forward to receive federal help along with everyone else, they were turned away. Sports centers and shopping malls were eligible for help, but not houses of worship.

FEMA’s position has been that the First Amendment principle of separation of church and state prevents it from providing aid to religious institutions. For government officials worried about the Constitutional prohibition against making a law regarding the establishment of religion, here is establishment of religion in the most literal sense — repairing the physical structure of a house of worship.

To be sure, FEMA does not discriminate — it refuses disaster relief to all religious institutions, whether Christian, Muslim, Jewish or any other. Hundreds of religious organizations in disaster areas around the country have been denied federal assistance on this specious constitutional premise.

The Jewish community is no exception. For example, Congregation Torah Vachesed, a Houston-area shul that was flooded out by Harvey, filed a brief in support of the churches that are suing. Agudath Israel of America has come out on their side and also endorsed legislation being reintroduced in Congress to rectify the situation once and for all.

FEMA’s obduracy is not new, nor is the effort to change it. The devastation wrought by Superstorm Sandy in 2012 prompted a legislative proposal to include religious bodies in FEMA’s purview at that time. It passed the House of Representatives, but was headed off in the Senate by the Obama administration.

Now Harvey has blown the roof off FEMA’s policy again, and this time the outcome is likely to be different. In court on Tuesday, FEMA lawyers said a review of the policy is under way.

The change of administration in Washington may have something to do with this timely rethink. In September, President Trump tweeted: “Churches in Texas should be entitled to reimbursement from FEMA Relief Funds for helping victims of Hurricane Harvey (just like others).” So at least this time around the White House will not stand in the way of disaster aid to religious organizations.

Furthermore, a recent U.S. Supreme Court decision suggests that the constitutional firewall between FEMA and religion may not be as impenetrable as it seems to some. Last June, the Court found in favor of a church in Columbia, Missouri, which had been denied a state grant to install a padded playground surface. Chief Justice John Roberts called it “odious to our Constitution” to deny an otherwise eligible recipient safety equipment solely because it’s a church.

Essentially the same reasoning should apply to the Hurricane Harvey case as well. If it is odious to deny materials to prevent bodily injury, isn’t at least as odious to deny funding to rebuild houses of worship that have been knocked out by storm?

“It defies common sense or any sense of fairness to deny disaster relief to houses of worship, especially when zoos and other recreational facilities are eligible to receive such aid,” said Rabbi Abba Cohen, vice president for federal affairs and Washington director of the Agudath Israel of America.

The judge reportedly is expected to make a ruling in the coming month. Meanwhile, the churches and shuls must wait.

The law is known to work slowly and methodically, and so it must. In judicial terms, a month is not a long time. But judges have also been known to expedite the judicial process when called for, when the public welfare will be harmed by delay.

Diana Verm, an attorney representing the churches, said, “We’re hopeful that the judge will issue relief and will issue it quickly.”

It would not require a complicated overhaul of the federal codes. “It’s only a couple of pages in their policy guide that excludes churches because they’re religious,” she said.

We can only hope and wait.