The question of federal aid eligibility for certain Hurricane Harvey victims has come into focus as an issue of separation of church and state. As we noted in a posting on July 13, 2017, Neil Gorsuch began his time as a Supreme Court Justice hearing oral arguments in Trinity Lutheran Church of Columbia v. Comer, on a challenge brought by a church in Missouri from a state program providing nonprofits grants to resurface their playgrounds with recycled tires.  Trinity argued that the preschool was excluded from the state program because the preschool is operated by a church whereas the State argued that it wished to both avoid the appearance it was favoring one church or religious institution over another.

The Supreme Court, in a 7-2 decision, held that the State of Missouri Department of Natural Resources’ denial of funds to Trinity due to Trinity’s religious status violated the Free Exercise Clause of the First Amendment.  It appears the Court took issue with the denial of the funds to Trinity when considering both the use of the playground by all children (regardless of religion) and that Trinity was ranked the 5th best application of the 44 received.  The Court appears to have taken issue with the denial based upon the remainder of Footnote 3 which includes the statement that the Court is not “religious uses of funding or other forms of discrimination.”  In other words, the denial of funds to the church in Trinity was unconstitutional because the proposed use was not a religious use.  The Trinity case and Footnote 3 may already be having an impact on other matters.

While the extent of the damage done by Hurricane Harvey is not yet fully known, the Federal Emergency Management Agency (“FEMA”) requires applications for aid be submitted within thirty days of the declaration of a disaster.  The Harvest Family Church, Hi-Way Tabernacle and Rockport First Assembly of God (the “Churches”) have challenged FEMA’s policy of not providing disaster aid relief grants to religious institutions and citing the recent ruling in Trinity allege this policy denies equal access solely due to their religious status.

The churches are seeking a court order to immediately block FEMA’s policy which the Churches allege would prevent them from receiving federal aid because all applications are due no later than September 26 for FEMA funds. A copy of the complaint can be found here.