A Houston federal judge has rejected an attempt by three religious organizations to receive disaster funding from the Federal Emergency Management Agency (FEMA) to repair their churches that were damaged by Hurricane Harvey.

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

Private, nonprofit organizations

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

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

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

Rebuilding for religious activities

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

Miller noted in his decision that the government has a historical and justifiable interest in avoiding an establishment of religious and using public funds to support religion.

“Plaintiffs do not have to choose between being a church and receiving a government benefit because FEMA's funds are not contingent on plaintiffs' status as churches,” Miller wrote. “Rather, FEMA's funds are contingent on how plaintiffs plan to use the funds — here, rebuilding facilities used for religious activities.”

Miller determined that the churches did not show a substantial likelihood of success on the merits and denied their request for an injunction.

Appeal filed

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

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

John Council is a reporter with Texas Lawyer. Contact him at jcouncil@alm.com.

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Houston federal judge denies churches' request for Hurricane Harvey relief funding

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