FEMA CHANGES DISASTER AID RULES

In the wake of a federal lawsuit in Houston by three Texas churches damaged during Hurricane Harvey, the Trump administration has followed through this week on its promise to reverse a long-standing disaster aid policy that denied relief to houses of worship.

The announcement of a Federal Emergency Management Agency rule change late Tuesday - which a Justice Department attorney had previously told a judge was pending - means the three churches and any other religious institutions that provide services to their broader local communities can immediately be eligible for Harvey aid, according to a newly published FEMA guide. Opponents said the move also marks a significant blurring of the line separating church and state.

President Donald Trump had signaled his support for churches getting aid shortly after the Houston lawsuit was filed, tweeting on Sept. 8 that "Churches in Texas should be entitled to reimbursement from FEMA Relief Funds for helping victims of Hurricane Harvey (just like others)."

The new FEMA guide states that the change was precipitated by a U.S. Supreme Court ruling in June in a Missouri case, Trinity Lutheran Church of Columbia, Inc. v. Comer, in which state officials denied a church a grant for rubberized playground resurfacing. In the Trinity case, a 7-2 majority on the court found Missouri violated the First Amendment in denying the church a widely available public benefit on account of its religious status.

The 217-page FEMA guide clarifies in its introduction that "private nonprofit houses of worship will not be singled out for disfavored treatment." The rule change applies to all disasters declared since August 23, 2017, FEMA said.

Pastor Charles Stoker of Hi-Way Tabernacle in Cleveland, one of three Texas churhes that filed suit, said in a news release that the policy shift was a perfect way to kick off the new year.

A long-fought victory

"It's been a cold day, and this news will warm us all up here! We're delighted that FEMA will start treating us like other charitable groups. And we look forward to continuing to help our neighbors as they recover from Harvey," Stoker said.

Likewise, the Union of Orthodox Jewish Congregations of America celebrated the news in a news release as a long-fought victory.

"We at the Orthodox Union have been working for more than 15 years to have this policy changed," said Nathan Diament, executive director for public policy. "We thank the Trump Administration for righting this long-time wrong and treating disaster- damaged churches, synagogues & other houses of worship fairly - on the same terms as other nonprofits such as museums, community centers and libraries stricken by natural disasters."

Opponents of the rule change called the policy problematic, among them Alex Luchenitser, associate legal director of Americans United for Separation of Church and State in Washington, D.C., whose organization has filed briefs in support of the former FEMA policy.

"We are deeply troubled by this policy change," Luchenitser said. "It's a clear violation of the U.S. Constitution and its protection of the separation of church and state."

The September lawsuit filed by Harvest Family Church in Cypress, Hi-Way Tabernacle and Rockport First Assembly of God challenged FEMA's policy of denying aid to faith-based nonprofits. In December, two Florida synagogues damaged during Hurricane Irma filed a parallel lawsuit.

After a federal judge in Houston denied the Texas churches' emergency injunction in December, the three Texas churches asked U.S. Supreme Court Justice Samuel Alito for emergency relief. Alito gave FEMA a deadline to respond to the churches' request. FEMA planned to publish its new policy Thursday in the federal register, according to court documents.

"Better late than never," said Daniel Blomberg, an attorney at Becket, a law firm specializing in religious liberty cases that represents the Texas churches and the Florida synagogues, in a statement. "By finally following the Constitution, FEMA is getting rid of second-class status for churches, which in the words of the Supreme Court was 'odious' to the First Amendment. We will watch carefully to make sure that FEMA's new policy is implemented to provide equal treatment for churches and synagogues alongside other charities."

The judge's denial of Texas churches' injunction has been appealed to both the U.S. 5th Circuit Court of Appeals and the U.S. Supreme Court. The Florida synagogues' case is pending in federal district court in Key West, according to Becket.

'FEMA needed a nudge'

Those lawsuits will remain in place, said Eric Rassbach, co-counsel with Blomberg.

"It seems that FEMA needed a nudge from the lawsuit to follow the Constitution. However, the lawsuit is not over - for instance, FEMA has not yet actually started processing our clients' applications. But this is a move in the right direction," he said.

On Wednesday, Rassbach filed a brief with the appeals court explaining the churches do not yet know if "this announced-but-not-published change will translate into immediate relief" for his clients. Their FEMA relief applications, as of Wedneday were still on hold, he said in the Wednesday court filing.

The lawyers are asking the appeals court to issue an immediate injunction.