Federal Disaster Assistance Nonprofit Fairness Act of 2013

Madam Speaker, Superstorm Sandy inflicted unprecedented damage on communities in the Northeast including my district in New Jersey. Congress and the President have responded by providing $60 billion in emergency and recovery aid.

Today's debate and vote however isn't at all about whether or how much funding Congress appropriates to mitigate the impact of Sandy. We've had that vote.

Rather, it is about those who are being unfairly left out and left behind. It's about those who helped feed, comfort, clothe and shelter tens of thousands of victims now being told they are ineligible for a FEMA grant.

It is unconscionable that foundational pillars of our communities damaged by Sandy--synagogues, churches, mosques, temples and other houses of worship--have been categorically denied access to these otherwise generally-available relief funds. Current FEMA policy is patently unfair, unjustified and discriminatory and may even suggest hostility to religion.

FEMA has a policy in place to aid nonprofit facilities damaged in the storm, but the agency has excluded houses of worship from this support. That is wrong. And it's time Congress ensures fundamental fairness for these essential private nonprofits.

The bipartisan Federal Disaster Assistance Nonprofit Fairness Act of 2013--H.R. 592--will ensure that churches, synagogues, mosques, temples and other houses of worship are eligible for federal funds to effectuate repairs, restoration and replacement of damaged facilities.

Madam Speaker, it's worth noting here that FEMA's discriminatory policy of exclusion isn't prescribed by any law. Nothing in the Stafford Act or any other law including the Hurricane Sandy Disaster Relief Appropriations Act precludes funds to repair, restore or replace houses of worship. Indeed, congressional precedent favors enacting H.R. 592 as there are several pertinent examples of public funds bein allocated to houses of worship.

For example:

FEMA grants were explicitly authorized by Congress and provided to churches damaged in the Oklahoma City terrorist attack;

Homeland Security Department and UASI provides funding to houses of worship for security upgrades;

Interior Department provides funding for grants for historically significant properties including churches and synagogues;

It is important to note that a controlling Justice Department Office of Legal Counsel Memorandum explains in detail the legal principles which make H.R. 592 constitutional. In a September 25, 2002, written opinion, the Office of Legal Counsel concluded it was constitutional for Congress to provide disaster relief and reconstruction funds to a religious Jewish school, along with all sorts of other organizations, following a devastating earthquake.

The same principles apply to protect religious organizations following a devastating hurricane. As the Office of Legal Counsel memo concluded ``provision of disaster assistance to [religious organizations] cannot be materially distinguished from aid programs that are constitutional under longstanding Supreme Court precedent establishing that religious institutions are fully entitled to receive generally available government benefits and services, such as fire and police protection.''

The Supreme Court handed down its first modern Establishment Clause decision in Everson v. Board of Education, which involved a program in my own state of New Jersey. In that case the Court held that religious institutions are entitled to receive ``general government services'' made available on the basis of neutral criteria.

The Court held that the Establishment Clause does not bar students attending religious schools from receiving generally available school busing services provided by the government. In reaching its decision, the Court

explained that even if the evenhanded provision of busing services increased the likelihood that some parents would send their children to religious schools, the same could be said of other ``general state law benefits'' that were even more clearly constitutional because they were equally available to all citizens.

As examples, the Court cited ``such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks,'' concluding that ``cutting off church schools from these services . . . would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.''

As Nathan J. Diament, Executive Director of Public Policy for the Union of Orthodox Jewish Congregations of America notes in his excellent legal analysis which I will include in the Record ``federal disaster relief is analogous to aid that qualifies as 'general government services' approved by the Court in Everson.

That same Supreme Court also held that ``[Government] cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation . . . [W]e must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general state law benefits to all its citizens without regard to their religious belief.''

In Walz v. Tax Commission, the Court rejected an Establishment Clause challenge to a property tax exemption made available not only to churches, but to several other classes of nonprofit institutions, such as ``hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups.'' As the Court stated in reference to Everson, if ``buses can be provided to carry and policemen to protect church school pupils, we fail to see how a broader range of police and fire protection given equally to all churches, along with nonprofit hospitals, art galleries, and libraries receiving the same tax exemption, is different for purposes of the Religion Clauses.''

The bill before us today simply makes clear and clarifies that federal disaster relief includes religious entities along with every other sort of entity. As the Court later stated in Widmar v. Vincent, ``[t]he provision of benefits to so broad a spectrum of groups is an important index of secular [that is, constitutional] effect.'' And as it stated more recently in Texas Monthly, Inc. v. Bullock, ``[i]nsofar as [a] subsidy is conferred upon a wide array of nonsectarian groups as well as religious organizations in pursuit of some legitimate secular end, the fact that religious groups benefit incidentally does not deprive the subsidy of the secular purpose and primary effect mandated by the Establishment Clause.''

Significantly, Madam Speaker, when three churches in Detroit received taxpayer funded grants to repair and spruce up their buildings prior to the 2006 Superbowl, American Atheists sued the City of Detroit and lost. In a sweeping decision authored by Judge Sutton, the U.S. Court of Appeals for the Sixth Circuit unanimously held that the direct assistance to the churches did not violate the Establishment Clause.

Judge Sutton said: ``Detroit sought to fix up its downtown, not to establish a religion. And as will generally be the case when a governmental program allocates generally available benefits on a neutral basis and without a hidden agenda, this program does not have the impermissible effect of advancing religion in general or any one faith in particular. By endorsing all qualifying applicants, the program has endorsed none of them, and accordingly it has not run afoul of the federal or state religion clauses . . . In the Establishment Clause context, that means evenhanded, neutral laws generally (though not invariably) will be upheld. So long as the government benefit is neutral and generally applicable on its face, it presumptively will satisfy the Establishment Clause.''

In sum, H.R. 592 exhibits no government preference for or against religion, or any particular religion, since it merely permits houses of worship to receive the same type of generally-available assistance in picking up the pieces after stunning devastation that many other similarly situated nonprofits receive. Thus, the bill not only passes the test of constitutionality, it passes the test of basic human decency.

Indeed, to do otherwise would be to single out churches for adverse treatment, which is itself constitutionally suspect. The Supreme Court held in Church of Lukumi Babalu Aye v. City of Hialeah, that ``[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs.'' And in Employment Division v. Smith, the Court held that under the Free Exercise Clause, the state may not ``impose special disabilities on the basis of religious views or religious status.'' Similarly, in Rosenberger v. Rector and Visitors of the University of Virginia, the Court held that ``the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression,'' including religious expression. To continue to single houses of worship out for discrimination does not express government neutrality, it expresses government hostility. And there is no place for government hostility toward religion under our constitution.

The constitution clearly allows, and arguably requires, that religious organizations be treated equally when it comes to Congress' providing for the well-being of Americans following the onslaught of Superstorm Sandy and other natural disasters.

The damage unleashed by Sandy has taken a huge toll on houses of worship. According to the N.J. Catholic Conference more than 145 churches suffered significant damage in my state alone. Another 125 churches in New York have been damaged and are seeking FEMA help with more to be counted as repairs and ongoing work are addressed and contracted out for completion.

Similarly, dozens of synagogues and temples in both states are now looking to see how they repair after spending months of providing goods and services--with no regard to religion--to those who needed it.

In testimony just last week before the New York City Council, Joseph Rosenberg of the Catholic Community Relations Council poignantly noted that when Sandy hit, the leaders of the churches, synagogues and other houses of worship did not first ask if their facilities would be eligible for federal assistance before providing food and shelter and relief to thousands of displaced persons.

Nor did these providers of assistance ask the religious affiliation of the victims. No, they went to work providing tangible, life-saving aid to all comers.

In his letter of support for H.R. 592, Harvard professor Alan Dershowitz concludes that ``religious institutions may receive government aid if it is in the context of a broadly available program with criteria that are neutral toward religion and pose no risks of religious favoritism.''

Professor Dershowitz notes further:

Once FEMA has the policy in place to aid various nonprofit

organizations with their building repairs, houses of worship

should not be excluded from receiving this aid on the same

terms. This is all the more appropriate given the neutral

role we have witnessed houses of worship play, without regard

to religion of those affected, in the wake of Sandy and

countless previous disasters. Federal disaster relief aid is

a form of social insurance and means of helping battered

communities get back on their feet. Churches, synagogues,

mosques and other houses of worship are an essential part of

the recovery process.

Religious liberty scholar Professor Douglas Laycock of the University of Virginia School of Law wrote a letter endorsing H.R. 592 and said in part: ``Charitable contributions to places of worship are tax deductible, without significant controversy, even though the tax benefits to the donor are like a matching grant from the government. These deductions have been uncontroversial because they are included without discrimination in the much broader category of all not-for- profit organizations devoted to charitable, educational, religious, or scientific purposes. The neutral category here is equally broad. To include places of worship in disaster relief is neutral; to exclude them would be affirmatively hostile. There is no constitutional obstacle to including them.''

America's houses of worship are an integral, irreplaceable part of the contour and fabric of our communities. Like any other private non- profit organization, their recovery is essential to the recovery of neighborhoods, towns and states. They should not be excluded from federal programs that ensure community recovery, especially since they selflessly provide assistance to all in need.

H.R. 592 has been endorsed by several organizations including the Union of Orthodox Jewish Congregations, the United States Conference of Catholic Bishops, the Council of Churches of the City of New York and the American Jewish Committee.

I would like to take this moment to submit one more additional letter of support for H.R. 592 from Carl H. Esbeck, Professor of Law, University of Missouri, and my full statement for the Record.

University of Missouri

School of Law,

February 11, 2013.

Re Federal Disaster Assistance Nonprofit Fairness Act of

2013.

Hon. Chris Smith,

Rayburn HOB, Washington, DC.

Hon. Grace Meng,

1317 Longworth HOB, Washington, DC.

Dear Representatives Smith and Meng: I have been asked to

give an opinion concerning the constitutionality of the

Federal

Disaster Assistance Nonprofit Fairness Act of 2013. The bill

was introduced in the House of Representatives on Friday,

February 8, 2013. It would amend Sections 102(10)(B) and

406(a)(3) of the Robert T. Stafford Disaster Relief and

Emergency Assistance Act (42 U.S.C. 5122(10)(B) and

5172(a)(3)), to clarify that houses of worship are eligible

for disaster relief and emergency assistance on the same

terms as other nonprofit facilities providing certain defined

essential services to the public. Stated differently, houses

of worship that are otherwise eligible for relief and

assistance are not to be discriminated against because of

their religious character.

FEMA's current policy is set forth in its memorandum

captioned ``Houses of Worship--FEMA Public Assistance

Eligibility.'' Concerning multiple-use facilities, FEMA

denies relief and assistance to otherwise eligible houses of

worship unless the primary use of the space in a facility is

for essential services of a governmental nature. FEMA

converts ``primary use'' into a simple fifty-percent (50%)

rule, but it does not state the legal authority for the rule.

The matter of interest is compliance with the Establishment

Clause in the First Amendment to the U.S. Constitution. The

United States Supreme Court has formulated a neutrality

principle to assess general programs of aid to the

nongovernmental sector. The principle requires: (i) that the

program have a secular purpose, and (ii) that the recipients

of the aid be eligible without regard to religion. Under the

above-referenced bill, Section 102(10)(B) defines an eligible

private nonprofit (PNP) as a facility that provides: (a)

essential services; (b) while not by government, of that

``nature;'' and (c) available to the public. The three-part

definition is secular in purpose. True, the bill expressly

mentions houses of worship as eligible. But that makes sense

and is secular in purpose, because in the past they were

sometimes excluded by FEMA. So Congress, in passing this

amendment, is just bringing matters back from a

discriminatory situation to one of religious neutrality.

A parenthetical in 102(10)(B) gives several examples of

such eligible PNP facilities providing essential services. If

a private ``museum'' is an essential service in the

``nature'' of ``governmental,'' the eligible recipients are

not as narrowly limited as might at first appear. ``Community

centers'' are expressly named as eligible, and this bill has

``houses of worship'' as a type of community center. The

findings in Section 2(5) of the bill further help to define

how houses of worship serve as a type of community center.

The findings also help to explain how a community center

provides ``essential services,'' namely activities central to

community rebuilding and reconstruction after a natural

disaster.

Several U.S. Supreme Court cases prepared the way for the

neutrality principle as we presently recognize it. In Bowen

v. Kendrick, 487 U.S. 589 (1988), the Court upheld a

congressional program funding counseling centers targeting

adolescent sexuality that was available to religious as well

as secular providers. In Zobrest v. Catalina Foothills Sch.

Dist., 509 U.S. 1 (1993), the Court held that a public school

district had to provide the same special education services

to a student when he switched enrollment from a public to a

religious high school. In Witters v. Washington Dep't of

Servs. for the Blind, 474 U.S. 481 (1986), the Court upheld a

state vocational rehabilitation program, available without

regard to religion, even when it resulted in aid to a student

to attend a seminary.

The neutrality principle became fully grounded with the

Court's decision in Agostini v. Felton, 521 U.S. 203 (1997).

Agostini involved the implementation of federal funding for

K-12 special educational services in schools in the State of

New York. The special educational services were rendered by

special education teachers employed by the local public

school district. For those special education students in

religious schools, it was more effective and less costly to

have the teachers travel to the religious school campus to

deliver the services. But this had been barred by prior case

law. In Agostini, the Court overruled its prior precedent and

approved the delivery of services to all special needs

students on a basis neutral as to religion. The services were

secular, and there was no reason because of the Establishment

Clause to discriminate against children enrolled in the

religious schools.

The Agostini secular-purpose/religion-neutral analysis was

carried forward by the Supreme Court in Mitchell v. Helms,

530 U.S. 793 (2000). The case involved a challenge to a part

of the Primary and Secondary Education Act of 1965, which

provide educational materials and services to all K-12

schools without regard to religion. The challengers wanted

the aid denied to religious schools. The nature of the

educational materials was secular. Accordingly, the Court

upheld the practice of treating all schools neutrally. These

religious schools were intensely religious, but that was no

reason to discriminate against them. Care should be exercised

so that no governmental aid is diverted from its intended

secular purpose, in particular that the aid not be diverted

to an explicitly religious purpose.

It is my opinion that the above-referenced proposed

amendment to the Robert T. Stafford Disaster Relief and

Emergency Assistance Act is consistent with the Establishment

Clause of the First Amendment to the U.S. Constitution.

Thank you for your kind consideration of this letter

opinion.

Sincerely,

Carl H. Esbeck,

R.B. Price Professor of Law and Isabelle Wade & Paul C.

Lyda Professor of Law, University of Missouri.

I thank my good friend, the chair, for yielding. I thank him for his support and for Mr. Rahall. And I want to thank Gracie Meng for her cosponsorship and leadership on this important bill, and all the cosponsors, and to Eric Cantor and the leadership for scheduling it for a vote today. This is extremely important and very timely.

Madam Speaker, Superstorm Sandy inflicted unprecedented damage on communities in the Northeast, including my district in New Jersey. Congress and the President have responded by providing $60 billion in emergency and recovery aid.

Today's debate and vote, however, isn't at all about whether or how much funding Congress appropriates to mitigate the impact of Sandy. We've had that vote.

Rather, it's about those who are being unfairly left out and left behind. It's about those who help feed, comfort, clothe, and shelter tens of thousands of victims now being told they are ineligible for a FEMA grant.

It's unconscionable that foundational pillars of our communities damaged by Sandy--synagogues, churches, mosques, temples and other houses of worship--have been categorically denied access to these otherwise generally available relief funds.

Current FEMA policy is patently unfair, unjustified, and discriminatory and may even suggest hostility to religion. FEMA has a policy in place to aid nonprofit facilities damaged in the storm, but the agency has excluded houses of worship from their support. That is wrong, and it's time Congress ensures fundamental fairness for these essential private nonprofits.

The bipartisan Federal Disaster Assistance Nonprofit Fairness Act will ensure that houses of worship are eligible for Federal funds administered by FEMA.

Madam Speaker, it's worth noting here that FEMA's discriminatory policy of exclusion is not prescribed by any law. Nothing in the Stafford Act or any other law, including the Hurricane Sandy Disaster Relief Appropriations Act, precludes funds to repair and to replace and to restore houses of worship.

Indeed, the congressional precedent favors enacting H.R. 592, as there are several pertinent examples of public funding being allocated to houses of worship. For example, FEMA grants were explicitly authorized by Congress back in 1995 and provided to the churches damaged by the Oklahoma City terrorist attack, as my friend from West Virginia pointed out.

The Homeland Security Department and UASI provides funding to houses of worship for security upgrades. The Interior Department provides funding to grants for historically significant properties, including active churches and active synagogues. And the SBA provides low interest loans--no hint at all by anyone that there's an Establishment Clause issue.

It's important to note that a controlling Justice Department Office of Legal Counsel memorandum explains in detail the legal principles that make H.R. 592 constitutional. In a 2002 written opinion, the Office of Legal Counsel concluded it was constitutional for Congress to provide disaster relief and reconstruction funds to a religious Jewish school, along with all sorts of other organizations, following a devastating earthquake. The same principles apply to protect religious organizations following a devastating hurricane.

As the Office of Legal Counsel memo concluded:

Provisions of disaster assistance to religious

organizations cannot be materially distinguished from aid

programs that are constitutional under longstanding Supreme

Court precedent, establishing that religious institutions are

fully entitled to receive generally available government

benefits and services, such as fire and police protection.

The Supreme Court handed down its first modern Establishment Clause decision in the Everson v. Board of Education decision, which involved a program in my own home State of New Jersey. In that case, the Court held that religious institutions are entitled to receive ``general government services'' made available on the basis of neutral criteria. The Court held that the Establishment Clause does not bar, in that case, students attending religious schools from receiving generally available school busing services provided by the government.

As Nathan Diament, Executive Director of Public Policy for the Union of Orthodox Jewish Organizations of America, notes in his excellent legal analysis, which I will include in the Record:

Disaster relief is analogous to aid that qualifies as

general government services approved by the Court in Everson.

Madam Speaker, the bill before us today simply makes clear and clarifies that Federal disaster relief includes religious entities, along with every other sort of entity.

As the Court later stated in Widmar v. Vincent:

The provision of benefits to so broad a spectrum of groups

is an important index of secular, that is, constitutional

effect.

As it stated more recently in Texas Monthly v. Bullock:

Insofar as that subsidy is conferred upon a wide array of

nonsectarian groups as well as religious group organizations

in pursuit of some legitimate secular end, the fact that

religious groups benefit incidentally does not deprive the

subsidy of the secular purpose and primary effect mandated by

the Establishment Clause.

Significantly, Madam Speaker, when three churches in Detroit received taxpayer-funded grants to repair and spruce up their buildings prior to the 2006 Super Bowl, American Atheists sued the City of Detroit and lost.

In a sweeping decision offered by Judge Sutton, the U.S. Court of Appeals for the Sixth Circuit, unanimously held that the direct assistance to the churches did not violate the Establishment Clause. Judge Sutton said, and I quote, in pertinent part:

Detroit sought to fix up its downtown, not to establish a

religion. And as will generally be the case when a

governmental program allocates generally available benefits

on a neutral basis and without a hidden agenda, this program

does not have the impermissible effect of advancing religion

in general or any one faith in particular. By endorsing all

qualifying applicants, the program has endorsed none of them,

the Court went on to say, and accordingly it has not run

afoul of the Federal and State religious clauses . . . In the

Establishment Clause context, that means evenhanded neutral

laws generally, though not invariably, will be upheld. So

long as the government benefit is neutral and generally

applicable on its face, it presumptively will satisfy the

Establishment Clause.

H.R. 592 exhibits no government preference for or against religion, or any particular religion, since it merely permits houses of worship to receive the same type of generally available assistance.

Again, this legislation permits houses of worship to receive the same type of generally available assistance in picking up the pieces after stunning devastation that many other similarly situated nonprofits receive. Thus, the bill not only passes the test of constitutionality, it passes the test of basic decency.

Indeed, to do otherwise would be to single out churches for adverse treatment, which is in itself constitutionally suspect.

The Supreme Court held, Madam Speaker, in Lukumi Babalu Aye v. City of Hialeah, that ``at a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs.''

And in Employment Division v. Smith, the Court held that under the Free Exercise Clause, the State may not ``impose special disabilities on the basis of religious views or religious status.''

To continue to single houses of worship out for discrimination does not express government neutrality; it expresses government hostility. And there's no place for government hostility toward religion under our Constitution.

I thank the gentleman for yielding.

I thank my good friend for yielding, and I thank the gentlelady from Texas for her very strong and passionate remarks.

I especially again want to thank Congresswoman Meng for her excellent statement and her support and cosponsorship of this important bill.

Let me just say a couple of points to my colleagues. First of all, I will be submitting for the Record a very fine analysis by the Becket Fund for Religious Liberty, an outstanding public interest law firm that has done yeoman's work throughout the country on religious liberty.

It's a statement to us as Members of Congress by its leaders. It points out first not only does the Establishment Clause provide no support for FEMA's practice of discriminating against houses of worship, that practice itself runs afoul of the First Amendment by discriminating against religious institutions.

Second, the bill you have proposed will not lead to Establishment Clause violations because no act of Congress can purport to repeal the First Amendment. Arguments to the contrary are constitutional scaremongering.

Eric Rassbach and Daniel Blomberg have authored again a very important contribution to this debate.

Madam Speaker--and Ms. Meng mentioned this earlier and it bears repeating--in letters of support for H.R. 592, Harvard Professor Alan Dershowitz concludes:

Religious institutions may receive government aid if it is

in the context of a broadly available program with criteria

that are neutral toward religion and pose no risk of

religious favoritism.

He states further:

Once FEMA has a policy in place to aid various nonprofit

organizations with their building repairs, houses of worship

should not be excluded from receiving this aid on the same

terms.

This is all the more appropriate given the neutral role that we have witnessed houses of worship play without regard to religion to those afflicted in the wake of Sandy and countless previous disasters.

Federal disaster relief aid in the form of social insurance and other means of helping battered communities get them back on their feet. Churches, synagogues, mosques, and other houses of worship are an essential part of the recovery process.

Madam Speaker, religious liberty scholar Professor Douglas Laycock of the University of Virginia School of Law wrote a letter endorsing H.R. 592 and said in part:

Charitable contributions to places of worship are tax

deductible without significant controversy, though the tax

benefits to the donor are like a matching grant from the

government. These deductions have been uncontroversial

because they're included without discrimination in a much

broader category of all not-for-profit organizations devoted

to charitable, educational, religious, or scientific

purposes. The neutral category here is equally broad; to

include places of worship in disaster relief is neutral. To

exclude them would be affirmatively hostile. There is no

constitutional obstacle to including them.

That is according to Professor Laycock of the University of Virginia School of Law, a preeminent expert on these matters.

Madam Speaker, houses of worship are an integral, irreplaceable part of the contour and fabric of our communities. Like any other private nonprofit organization, their recovery is essential to the recovery of neighborhoods, towns, and States. They should not be excluded from Federal programs that ensure community recovery, especially since they so selflessly provide assistance to all in need.

In conclusion, Madam Speaker, this legislation has been backed by a number of important organizations, including the Union of Orthodox Jewish Congregations of America, the United States Conference of Catholic Bishops, the National Association of Evangelicals.

Just to underscore for my colleagues the broad support that this has, the American Jewish Committee has also supported it, the Family Research Council. As I said earlier, the Becket Fund and so many others have written very extensive remarks in favor of it.

I do hope there will be very strong support for this important legislation. It's a matter of inclusion to stop current-day, present- day exclusion.

Memorandum

To: Interested Parties

From: Nathan J. Diament, Exec. Director of Public Policy

Date: February 6, 2013

Re Legal Analysis Supporting Including Houses of Worship,

Among Private Nonprofit Facilities, Eligible for Federal

Disaster Relief Funds Administered by FEMA Under the

Stafford Act.

Conclusion: The Establishment Clause does not bar the award of federal grants to houses of worship for the repair of facilities damaged in a

natural disaster, in the context of the Stafford Act's ``private

nonprofit facility'' aid program.

Madam Speaker, I thank the gentleman for yielding.

I rise in opposition to H.R. 592, the Federal Disaster Assistance Nonprofit Fairness Act of 2013, which would add ``houses of worship'' to the list of eligible entities that can receive direct government assistance from FEMA. While the devastation caused to many communities after Hurricane Sandy is severe, and while I empathize with the desire to assist all who have suffered severe losses, direct government funding for houses of worship, whether for building or rebuilding, remains unconstitutional.

The establishment clause in the First Amendment protects religious freedom by preventing the government from endorsing and funding any one religion--or all religions. And while well intended, this bill would violate years of precedents interpreting the establishment clause.

In Committee for Public Education v. Nyquist, a 1973 case which upheld the principles of Everson v. Board of Education, from 1947, the U.S. Supreme Court held that no taxpayer funds could be used for maintenance and repair of facilities in which religious activities take place, explaining:

If the State may not erect buildings in which religious

activities are to take place,

it may not maintain such buildings or renovate them when they

fall into disrepair.

Accordingly, longstanding precedent specifically holds that taxpayer funds cannot go to construct, rebuild or repair buildings used for religious activities. The type of buildings that this bill seeks to make eligible for direct government funding--houses of worship--are inherently used for religious activities and the bill would have the effect of unconstitutionally funneling taxpayer money for religious activities.

Other cases have also upheld the precedent established in Everson v. Board of Education and have further clarified the application of the establishment clause to cases of direct religious funding. In Tilton v. Richardson, the Supreme Court unanimously held that a government subsidy used to construct buildings at colleges and universities was constitutional but only if the buildings were never used for religious activities.

In Hunt v. McNair, 1973, the Supreme Court upheld a South Carolina law which established an ``educational facilities authority'' that issued bonds to finance construction and renovation of facilities at educational institutions was upheld because it included a condition that government-financed buildings could never be used for religious worship or instruction.

All of these cases firmly establish that it is constitutionally impermissible for the government to provide direct subsidization of religious institutions for the construction, repair or maintenance of any building that is, or even might be, used for religious purposes. Houses of worship clearly fall within this category of buildings and based on a long line of Supreme Court cases cannot be publicly funded and cannot be recipients of direct grant funding.

Now, there are constitutional ways to assist churches along with other community organizations. Loan programs, such as the government- sponsored small business loan programs available to any business in a community, could also be used by churches. Such loan programs have been upheld as constitutional so long as they are both neutral on their face and in their application and so long as their purpose is not to aid religious institutions specifically.

In Mitchell v. Helms, 2000, the Supreme Court held that loan programs for religious institutions are allowable in some cases. However, such programs are distinguishable from grants and are further distinguishable from the direct funding of church facilities that are, or may be, used for religious purposes. The opinion included that:

Of course, we have seen special establishment clause

dangers when money is given to religious schools or entities

rather than indirectly.

Justice O'Connor noted the Court's ``continued recognition of the special dangers associated with direct money grants to religious institutions.'' Now, therefore, H.R. 592 clearly violates the principles prohibiting direct government grants to religious institutions. It also violates any possible exemption that could be available under the theory of neutrality--the standards in this bill applicable to houses of worship are different from the standards for other entities.

While I'm in favor of constitutionally permissible ways to assist churches that have been damaged by natural disasters, this bill clearly does not do so in a constitutionally permissible way; and for this reason, I must oppose the bill and urge my colleagues to instead work together to ensure that all entities affected by Hurricane Sandy can be assisted in an expeditious and constitutionally permissible manner.

American Civil Liberties Union,

Washington, DC, February 12, 2013.

Re Oppose H.R. 592, the so-called Federal Disaster Assistance

Nonprofit Fairness Act of 2013.

Dear Representative: On behalf of the American Civil

Liberties Union (ACLU), a non-partisan organization with more

than a half million members, countless additional activists

and supporters, and 53 affiliates nationwide dedicated to the

principles of individual liberty and justice embodied in the

U.S. Constitution, we are writing to urge you to vote ``No''

on H.R. 592 when the measure comes up on the suspension

calendar on Wednesday. This bill, which would authorize FEMA

to provide houses of worship with direct grants of taxpayer

funds, would flout longstanding constitutional law and harm

religious liberty.

The Supreme Court has recognized that the First Amendment

was devised to prohibit ``[t]he imposition of taxes to . . .

build and maintain churches and church property,'' because

such funding is an affront to ``individual religious

liberty.'' Accordingly, longstanding Court precedent

specifically holds that taxpayer funds cannot go to

construct, rebuild, or repair buildings used for religious

activities--which clearly includes houses of worship. The

Court has never retreated from this bedrock Establishment

Clause principle. In fact, the Supreme Court continues to

recognize ``special Establishment Clause dangers where the

government makes direct money payments to sectarian

institutions,'' which is exactly the use of taxpayer funds at

issue here. And in a variety of bills over the past several

decades, Congress has prohibited the use of funds to

construct buildings used for religious purposes. Indeed, in

the American Recovery and Reinvestment Act, Congress again

recognized this prohibition and limited green construction

funding to buildings in which secular activities take place.

Under current policy, houses of worship may obtain

government loans--just not direct grants--to rebuild. All

for-profit businesses and non-profit organizations--including

houses of worship--are eligible to participate in the SBA

Disaster Loan Program. Houses of worship, therefore, are not

without government help to rebuild. Moreover, houses of

worship are not the only non-profit facilities that would

otherwise be ineligible for direct grants for reconstruction.

Only non-profits with facilities used for emergency,

essential, and government-like activities are eligible for

grants. Thus, FEMA grants are not the same as ``general

government services,'' like police or fire, which are

available to every business, nonprofit, private residence,

and house of worship. To say that the policy is unfair or

that houses of worship are treated unequally--singled out

among all other non-profits--therefore, is untrue.

Although houses of worship may serve a central role in the

lives of their congregants, it is impossible to see how the

prayer and worship conducted in these sacred buildings is

equivalent to the essential, government-like activities in

facilities that would be eligible for government grants. It

would be a dangerous precedent to equate religious worship

with the vital services government provides. And while houses

of worship may host educational and social activities, only

community centers that are open to the general public on a

nondiscriminatory basis, serve the entire community (not just

congregants), and are used for a range of different

activities are eligible for a FEMA grant.

In the aftermath of Hurricane Katrina, the Bush

administration directed that houses of worship would remain

ineligible for FEMA funds. The Bush administration respected

longstanding Supreme Court precedent and continued to adhere

to this constitutional requirement. Churches, synagogues,

mosques, and temples were damaged in Katrina just as they

were in Sandy. As an organization whose offices were closed

for weeks as a result, we very much understand the serious

difficulties faced by people who were impacted by superstorm

Sandy--so many of our friends and colleagues in New York and

New Jersey continue to deal with its aftermath. But, the harm

would be compounded if this misfortune were used as a reason

to erode fundamental religious liberty protections enshrined

in the First Amendment.

Religious liberty is one of our nation's most fundamental

values and it starts from the principle that religion thrives

when both religion and government are safeguarded from the

undue influences of the other. Barring federal funds for the

rebuilding of houses of worship is not discriminatory or

hostile to religion--it is one of the most fundamental ways

we have to protect and defend religious liberty for all.

Indeed, the Establishment Clause protects religious freedom

by preventing the government from endorsing and funding any

one religion--or all religions.

Because H.R. 592 would flout longstanding constitutional

law and harm religious liberty, we urge you to oppose the

measure and vote ``No'' when the measure comes up on the

suspension calendar on Wednesday.

Please contact Legislative Counsel Dena Sher if you have

questions or comments about our concerns.

Sincerely,

Laura W. Murphy,

Director, Washington Legislative Office.

Dena Sher,

Legislative Counsel.

Madam Speaker, I rise today to strongly urge my colleagues to support H.R. 592, the Federal Disaster Assistance Nonprofit Fairness Act of 2013. I want to also thank my colleague, Congressman Chris Smith of New Jersey, for his wonderful leadership on this issue.

On October 29 of last year, Hurricane Sandy tore through New York City and its surrounding areas and left an unprecedented amount of damage in its wake. Homes burned to the ground, our communities were devastated, properties flooded, and over 120 lives were lost. Rightfully so, one of the 113th Congress' first actions was ensuring that adequate funding was made available to begin repairing the damage, and I was happy to be part of that effort.

The $60 billion in aid that Congress made available was a great start to rebuilding our communities and making them whole, but it was only a start. If we as Members of Congress want our affected communities to recover in the aftermath of any natural disaster, we must ensure that FEMA public assistance grants are available to help rebuild all institutions that are vital to a community's way of life.

H.R. 592 is a bipartisan bill. It would allow houses of worship, such as churches, synagogues, temples, or mosques, to receive the fair treatment they deserve. The bill places these vital community institutions on the same playing field as other private nonprofits that are already eligible for FEMA disaster relief. This bill provides no new funds. It sets forth no difference, no favoritism, no promotion of religion; it simply provides for the community and its well-being.

Facilities that already are able to apply for funding include zoos, museums, community centers, and homeless shelters, and it is important that houses of worship not be discriminated against when they need our help. These houses are vital community centers that serve so many of our constituents. The centers' existence, safety, and ability to serve should not be infringed upon, especially because the funds are available under our broadly available program without regard to the religious nature of these facilities. Indeed, to deny FEMA relief to these important institutions would be to discriminate against them because they are religious institutions, in violation of the First Amendment to our Constitution.

Not every facility, home, or place that engages in religious activity will be made available for FEMA assistance because this bill uses a predefined, accepted definition for what these facilities are under section 501(c) of the Internal Revenue Code of 1986. This is how the IRS currently recognizes and provides tax benefits to houses of worship, and this definition will help prevent erroneous claims.

The concerns about promotion of religion are unfounded. Alan Derschowitz, a widely respected expert on these issues, supports this bill on its constitutional grounds. He wrote that:

Under precedents of the U.S. Supreme Court, religious

institutions may receive government aid if it is in the

context of a broadly available program with criteria that are

neutral toward religion and pose no risks of religious

favoritism. This is certainly the case in the context of FEMA

disbursing aid to repair buildings in the wake of a natural

disaster.

Many of the groups opposing this bill also oppose Nonprofit Security Grant funding, historic preservation grants, and parochial school funding after Katrina. They oppose Federal assistance that helped rebuild the Trinity Parish Episcopal Church in Seattle after an earthquake; aid made available after the tragic Oklahoma City bombing in which money was made available to the First United Methodist Church, First Baptist Church, St. Paul's Episcopal Cathedral, and St. Joseph's Catholic Church. This is not precedential; this is taking care of our constituents and their needs, our most important task in Congress.

Congress erred by not including an important part of our communities in these rebuilding efforts, and I hope we can correct that today.

Diocese of Rockville Centre,

Rockville Centre, NY, February 11, 2013.

Hon. Chris Smith,

House of Representatives,

Washington, DC.

Dear Representative Smith: A few weeks ago I wrote to your

office to call your attention to the sad situation of houses

of worship that were severely damaged by Hurricane Sandy. At

that time I could cite Catholic churches and Jewish

synagogues who had been told that FEMA would not offer them

grants to re-build their place of worship but only loans.

Today I learned that you plan to offer in Congress a bill

that would offer houses of worship the same access to

disaster relief as other community centers.

I write to thank you for doing this as well as to add my

voice of support for just such a correction of a previous

position that surely does not reflect either our traditions

or our current realities. Houses of worship have been one of

the first centers of response across Long Island. The Sunday

after Sandy I visited the four parishes most damaged by the

storm where I witnessed in parish halls without heat or

electricity two signs of hope: faithful people worshipping

and the same faithful people reaching out to one another to

share food, clothing and other necessities even when their

own homes had been destroyed.

To discriminate against houses of worship would be a mark

of sectarianism that denies

the generosity of the people who helped one another and

narrows the American spirit to an arbitrary sectarianism.

Please know that my parishioners, my priests and all the

volunteers in our various outreach centers are one with me in

support of your bill.

William Murphy,

Bishop of Rockville Centre.

Madam Speaker, I reluctantly rise in opposition to this bill. The purpose of this bill is laudable. Unfortunately, there are real constitutional problems.

This bill would provide direct cash grants to rebuild houses of worship. Direct government funding of churches, synagogues, and mosques has always been held to be unconstitutional, and the decisions of the Supreme Court establishing that principle remain good law to this day. While some recent decisions have raised questions of these prior decisions' validity, they remain binding precedent. Most legal authorities would hold this bill to be constitutional, although some would disagree.

At the very least, given the serious constitutional questions raised by this legislation, I am deeply troubled that it has received no committee consideration and is being rushed to the floor just a few days after being introduced under a procedure that allows only 40 minutes of debate and no amendments. One would think that we were naming a post office rather than passing legislation with significant constitutional implications that could alter the relationship between government and religion.

While I have serious reservations about this bill and the way it is being considered, I wanted to commend the sponsors, the gentleman from New Jersey (Mr. Smith) and my colleagues from New York, Ms. Meng and Mr. King, who have been outstanding champions of the people hard hit by Hurricane Sandy.

So what is the concern?

Let's start with the basics. This bill would direct Federal taxpayer dollars to the reconstruction of houses of worship. The idea that taxpayer money can be used to build a religious sanctuary or an altar has consistently been held unconstitutional.

This is entirely different from government working with religious institutions to deliver social services. FEMA money, under the law this bill would amend, is already available to those institutions.

FEMA Disaster Assistance Policy 9521.1 states:

Just because a community center is operated by a religious

institution does not automatically make it ineligible. In

addition to worship services, many religious institutions

conduct a variety of activities that benefit the community.

Many of these activities are similar or identical to those

performed by secular institutions and local governments.

The law now permits funding to religious institutions that provide those services to the general public, on an equal basis with secular institutions doing the same work. Although the title of this bill suggests otherwise, there is no unequal treatment of religious institutions.

So what we are really talking about is whether we should be in the business of using taxpayer money to build and rebuild houses of worship and rebuild sanctuaries and altars that are not available for use to the general public.

I think, at the very least, we need to exercise caution. I know that people have been circulating letters making extravagant claims about the current state of the law, but what is clear is that the Supreme Court has never overruled its prior decisions specifically prohibiting this kind of use of public money.

In Tilton v. Richardson, the Court held that a 20-year ban on using publicly financed college facilities for religious or other purposes was not sufficient. The Court made the ban permanent, saying:

If, at the end of 20 years, the building is, for example,

converted into a chapel or otherwise used to promote

religious interests, the original Federal grant will in part

have the effect of advancing religion.

And that, of course, is not permissible.

Similarly, in Committee for Public Education v. Nyquist, the Court struck down a State program of ``maintenance and repair grants'' for the upkeep of religious elementary and secondary schools. The Court said:

If the State may not erect buildings in which religious

activities are to take place, it may not maintain such

buildings or renovate them when they fall into disrepair.

Some proponents have pointed to the Court's ruling in Mitchell v. Helms. The question in that case was whether publicly financed educational materials could be lent to religious schools. The controlling opinion, written by Justice O'Connor, made it clear that it was not sufficient that the publicly furnished materials be provided on a nondiscriminatory basis; they must never be diverted to religious activities. That is clearly not the case here.

The majority has made a big issue of respecting the Constitution. We read the Constitution at the beginning of each Congress, and we are required to provide a statement of constitutional authority when we introduce a bill.

But all of that means very little if, when faced with a genuinely significant constitutional question, the House gives it the bum's rush. This bill should be subject to hearings in the Judiciary Committee, with input from constitutional scholars, and due consideration of these significant constitutional issues, before we take such a radical step.

At the very least, for those who support this bill, I would think that they would want to get it right, to ensure that it is not done in a way that would make it susceptible to successful legal challenge. I urge my colleagues to put the brakes on this legislation until we can review it with the care it deserves.

Because I believe this bill to be unconstitutional, and because the constitutional issues have not been properly considered, I must reluctantly vote ``no.''

I thank the gentleman for yielding.