In the wake of Hurricane Harvey, massive amounts of federal aid are being sent to Texas, helping victims of that natural disaster rebuild. FEMA permits funds to go to museums, zoos, and even community centers that host sewing classes and stamp-collecting clubs.
But houses of worship are left out in the cold. That’s because of a FEMA policy that categorically excludes houses of worship from equal access to disaster-relief grants. Unfair? Yes. And unconstitutional, too. In a lawsuit filed earlier this week, three small churches in Texas are challenging FEMA’s policy, arguing that it violates the free-exercise clause of the First Amendment under the Supreme Court’s recent decision in Trinity Lutheran Church v. Comer.
What does Trinity Lutheran say about FEMA’s denial of disaster-relief grants to churches? A lot. In a 7-2 decision, the Supreme Court held that excluding churches from a generally available public benefit constitutes religious discrimination and “imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.” Missouri had created a grant program to help non-profit organizations resurface their playgrounds. Many non-profits were eligible, but churches were excluded because Missouri interpreted its constitution to block funding to churches. The state’s exclusion of churches from the program violated the free-exercise clause because it “puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution.”
The Court’s decision in Trinity Lutheran will help religious organizations in several ways. First, the Court held that the federal free-exercise clause requires that churches be included in generally available government funding programs. Going forward, Trinity Lutheran provides a solid foundation for government funding programs to include churches in a variety of contexts, from security grants to asbestos-remediation grants to historic-preservations grants and to disaster-relief grants, such as FEMA’s.
Second, Trinity Lutheran provides clear guidance on something the Court has referred to as “play in the joints” — the idea that there are some state actions allowed by the establishment clause but not compelled by the free-exercise clause. The Supreme Court concluded that the so-called “play in the joints” stops here: “Missouri’s policy preference for skating as far as possible from religious establishment concerns” cannot justify a “clear infringement on free exercise.
Third, the Supreme Court articulated that anti-establishment interests beyond the establishment clause itself are not compelling governmental interests. To be sure, the Court recognized that Locke v. Davey had affirmed Washington’s “antiestablishment interest in not using taxpayer funds to pay for the training of clergy.” But the Court held that Missouri’s interest did not constitute an interest of the highest order necessary to override the blatant free-exercise violation at issue there. Going forward, Trinity Lutheran teaches that courts should treat as suspect the argument that establishing greater separation of church and state warrants religious discrimination.
Finally, Trinity Lutheran distinguishes and limits the holding in Locke v. Davey. In Locke, the Court upheld Washington’s denial of a government-funded scholarship to a religious student because he intended to use the scholarship to pursue a degree in devotional theology. In Trinity Lutheran, the Court made clear that Locke was an entirely different kind of case. Although the Court declined to overrule Locke, the Court also made clear that Locke does not condone discrimination against religious groups based on their religious status.
Despite these very important developments in the law, some commentators have suggested that Trinity Lutheran applies narrowly only to playground-resurfacing cases because of a short footnote that garnered only four votes. Footnote 3 says that this case “involves express discrimination based on religious identity with respect to playground resurfacing,” and does not address “religious uses of funding or other forms of discrimination.”
But footnote 3 must be read in context. Placed at the end of the discussion of Locke, footnote 3 then makes sense as a statement of the Court’s focus. Instead of revisiting Locke’s treatment of “religious uses of funding” — as Justices Thomas and Gorsuch were prepared to do — the Court left the question of Locke’s continued viability for another day. In Locke, the funding at issue would have been used for a religious degree. Read in context, then, footnote 3 clarified that the Court’s opinion in Trinity Lutheran did not reach such religious uses of government funding, and Trinity Lutheran declined to extend Locke’s reasoning to “express discrimination based on religious identity.”
Finally, footnote 3 was joined by only four members of the Court — Chief Justice Roberts, Justices Kennedy, Alito, and Kagan – and as such does not have the force of law. (Justices Thomas and Gorsuch joined all of the Court’s opinion except for footnote 3, and Justice Breyer concurred in the judgment but did not join the Court’s opinion including footnote 3.) The footnote may well have been added to secure the vote of a justice who did join the opinion in full. But since it is what the courts call obiter dictum — something said in passing — footnote 3 may end up being, well, just a footnote.
The Hurricane Harvey lawsuit — Harvest Family Church v. FEMA — will provide an opportunity to apply Trinity Lutheran to government disaster-relief grants. Especially when houses of worship play such a vital role in recovery efforts, the court should hold that FEMA must discontinue its policy of irrational discrimination against churches and start helping the helpers bring lasting recovery to Texas.
– Hannah Smith is Senior Counsel and Diana Verm is Counsel at the Becket Fund for Religious Liberty, a non-profit law firm that defends religious liberty for all.