A Houston federal judge has rejected an attempt bythree religious organizations to receive disaster funding from theFederal EmergencyManagement Agency (FEMA) to repair their churches that weredamaged by Hurricane Harvey.

The churches include Harvest Family Church, Hi-Way Tabernacle,and Rockport First Assembly of God, which all suffered damage totheir sanctuaries, a steeple and a fellowship hall during the Aug.27 storm, along with countless other buildings in the Houstonarea.

Private, nonprofit organizations

Government emergency relief is available under the Stafford Act, which allows for certain privatenonprofit organizations to receive disaster funds when a naturaldisaster exceeds a state or local government's ability torespond.

To receive disaster funds from FEMA under the act, the privatenonprofit must operate an eligible facility that providesnoncritical, but essential government service. However, the actexcludes some services, including facilities used for political,athletic or religious services. But when a private nonprofitfacility provides multiple services, it is allowed to receivefunding if FEMA determines that less that 50% of the facility'sphysical space is dedicated to ineligible services.

The churches conceded that more than 50% of the physical spacein their facilities were dedicated to religious services. But theylater sued FEMA before U.S. District Judge Gray Miller, asking foran injunction order relieving them from the exclusion policy underthe First Amendment because they are religious organizations.

Rebuilding for religious activities

In his Dec. 7 ruling, Miller denied the churches' request to beexempt from FEMA policy because the money they requested would beused for religious activities. The government is prohibited fromendorsing religion under the Establishment Clause.

Miller noted in his decision that the government has ahistorical and justifiable interest in avoiding an establishment ofreligious and using public funds to support religion.

“Plaintiffs do not have to choose between being a church andreceiving a government benefit because FEMA's funds are notcontingent on plaintiffs' status as churches,” Miller wrote.“Rather, FEMA's funds are contingent on how plaintiffs plan to usethe funds — here, rebuilding facilities used for religiousactivities.”

Miller determined that the churches did not show a substantiallikelihood of success on the merits and denied their request for aninjunction.

Appeal filed

Eric Rassbach, deputy general counsel for The Becket Fund forReligious Liberty who represents the Harvest Family Church, saidthe churches have filed an appeal before the U.S. Court ofAppeals for the Fifth Circuit.

“FEMA is giving Scrooge a run for his money,” Rassbach said.“FEMA already left these devastated churches in the cold forThanksgiving, and now it's trying to shut them out for Christmas.Enough is enough. A flooded building is a flooded building, whetherit's a theater, a church, or a synagogue, and they should all betreated equally, every one.

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John Council is a reporter with TexasLawyer. Contact him at [email protected].