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.

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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