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The Continuing "War on Religion"

A report in today's NY Times from the front lines of the continuing liberal war on religion:

WASHINGTON The House of Representatives has overwhelmingly approved legislation that would allow the use of federal money to rebuild churches and synagogues damaged byHurricane Sandy, despite concern that such aid could violate the doctrine of separation of church and state.The bill, approved last week by a vote of 354 to 72, had support from Roman Catholic and Jewish organizations. It was opposed by 66 Democrats and 6 Republicans.The prospects for the bill in the Senate are uncertain. Senator Kirsten E. Gillibrand, Democrat of New York, said Monday that she supported the measure and was working to secure its passage in the Senate. She noted that religious institutions likeSt. Francis de Sales Catholic Churchin Belle Harbor, Queens, had provided aid to many storm victims.

The fact that the overwhelming majority of Democrats in the House supported the bill or that it is being pushed in the Senate by Democrat Kirsten Gillibrand will, I'm certain, do nothing to dispel the useful narrative that the Democrats are hostile to religion. Surely, someone will say, this bill would not even have been necessary if the Kenyan socialist Obama administration had not denied disaster aid for rebuilding houses of worship in the first place. I'm not a FEMA expert, but I spent some time this morning poking around the Federal Register, and, as far as I can tell, the Obama administration was merely following FEMA regulations put into place during the first Bush administration. The Bush regulations excluded from eligibility for federal assistance "buildings, structures and related items used primarily for religious purposes." (See 44 CFR 206.221; the language was adopted into Part 206 on January 23, 1990, see 55 FR 2297-01)The Bush administration no doubt inserted this language to avoid any Establishment Clause problems, and, per the NY Times, the ACLU is rattling its saber about the House bill. But I suspect thatif the bill passes and the question actually gets litigated, the courts will ultimately conclude thatincluding religious houses of worship within a generally applicable disaster relief program would pass Establishment Clause muster. The case is complicated by the fact that, unlike, say, school vouchers, there is no intervening individual choice that separates the government's action from the funds going to rebuild houses of worship. But disaster relief seems akin to the sorts of general governmental services, such as police and fire protection,that the state routinely and uncontroversially provides to religious institutions. At the same time, I suspect the existing carve-out is also legal under the "play in the joints" theory the Supreme Court affirmed in 2004 in Locke v. Davey, which permits states to exclude religious activities from generalized funding schemes out of a cautious desire to avoid Establishment violations. (In Locke, the issue involved a Free Exercise challenge to a state-funded scholarship that allowed students to use the scholarship for any education-related expense but prohibited students from receiving the scholarship if they were enrolled in a program of study to become a minister.) I don't think theLamb's Chapel,Rosenberger, line of cases applies here because those cases were decided under free-speech theories that seem like a poor fit in the disaster relief context.UPDATE: Here's a thorough memo by the Becket Fund outlining the Establishment Clause. I think this gets the Establishment issue right, though I disagree with its suggestion that the existing policy is (legally) invalid.

About the Author

Eduardo Moisés Peñalver is the Allan R. Tessler Dean of the Cornell Law School. He is the author of numerous books and articles on the subjects of property and land use law.



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This can't be the first disaster where church-state issues have arisen. Katrina? Hurricane Andrew? Etc. How have these earlier examples been settled?

Here's an article about FEMA funds given to a New Orleans church part of which was for repairs. (The money was misused, or so it was being claimed.)'s the Times-Picayune Archives for Katrina.

Inasmuch as I don't live in an area at risk for hurricanes, I'm not familiar with this: wouldn't the churches' property insurance policies, if adequate, provide the funds to rebuild?

Jim --I don't think that churches are required to have property insurance here. The Archdiocesesan properties did badly in Katrina and some buildings did not have enough insurance to cover the damage.This question is related to the new thread on government paternalism, is it not? When should the government help under-insured churches (or should it help at all)?

If the government helps all denominations evenhandedly, strictly for repair of damage and not for original building, in what sense is it establishing any of them? Would that kind of help be available to secular societies promoting ethical values?

Any church that doesn't maintain adequate property insurance is simply courting disaster.

'adequate property insurance ??" I think most dioceses are self insured

Jim - I do have property in a storm prone area and all reasonably priced policies have exclusions related to wind and water damage. That's why so many home owners in NJ, NY, CT and LA needed so much help both from organizations like Habitat and Federal and State governments.

And how about that "liberal war on religion" whereby Obama declared for an increase in the minimum wage so that anyone who is working full time should not be poor. Is that not the essence of religious liberty "to set the captives free?"

My flood insurance is separate from the rest of my house insurance. Flood insurance is a federal program. I don't know if there are still private flood insurance programs. Insurance rates are partly determined by how high your house is off of the ground. My house is on "high" ground -- it used to be all of 4 feet above sea level, but it has sunk some since I have lived here. I didn't have any flooding in Katrina, but insurance, both for the house and the flood ins., is still very expensive. Here's a good site on flood insurance.

"adequate property insurance ?? I think most dioceses are self insured."It's both. When fire gutted a portion of our church, we covered the deductible, $500. We were insured for half a million. And the archdiocese covered the overage.Jim's right. These churches should have been insured. If the arch/diocese told them less was enough, clearly that was bad advice.

The church may not need the funds but the idea of help from this Senate should be noted since they have gutted so many areas relating to THE church like busing, non reimbursement of state mandated testing and the anything looking like school vouchers/tax credits etc.

Insurance in hurricane prone areas is extremely expensive. I'm sure very poor churches can't afford full coverage.

I use to like the ACLU but they seem to have forgotten that religious freedom means that you have freedom to believe in religion too. If the government can aid private businesses whose main religion is the almighty dollar why can it not help religious structures who generally not only provide a place of worship but also a place of refuge for those exploited by private businesses.

I'm showing my ignorance, but if a church is named to the National Register of Historic Places is there any economic benefit? (I'm aware that many think the NRHP, far from being an economic advantage, actually makes life more difficult for the owners). Wikipedia's article on the Register shows a picture of an Orthodox church in Berlin, NH -- a wonderful mishmash of New England vernacular architecture and gold onion domes.And for that matter, do places like Westminster Abbey, or Lincoln Cathedral, or Chartres or Amiens get any help from the UK and France to help with upkeep?

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