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Robert S.
Democrat VA 3

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  • Federal Disaster Assistance Nonprofit Fairness Act of 2013

    by Representative Robert C. "Bobby" Scott

    Posted on 2013-02-13

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    SCOTT of Virginia. 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, [[Page H471]] 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.

    ____ Americans United for Separation of Church and State, Washington, DC, February 12, 2013.

    Re Oppose H.R. 592, the Federal Disaster Assistance Nonprofit Fairness Act of 2013.

    Dear Representative: Americans United writes to express our strong opposition to H.R. 592, the Federal Disaster Assistance Nonprofit Fairness Act of 2013, which will be debated on the House floor tomorrow, Wednesday, February 13. The sole purpose of the bill is to authorize the Federal Emergency Management Agency (FEMA) to issue direct grants to fund the rebuilding of houses of worship. We oppose this bill because such funding would violate the Constitution and represent a significant shift in longstanding federal policy. Indeed, the George W. Bush [[Page H472]] Administration followed the policies of the Reagan, George H.W. Bush, and Clinton Administrations when it disallowed FEMA grants for the rebuilding of ``houses of worship'' after Hurricane Katrina.

    As someone who was born and raised at the Jersey shore and whose parents are still making repairs to their home and cleaning up after the storm, I certainly appreciate the needs the community faces. But, I also recognize that the Constitution places certain limits on the government's ability to fund houses of worship. The Tilton/Nyquist line of Supreme Court cases firmly establish that it is constitutionally impermissible for the government to provide aid for the construction and repair of houses of worship. In accordance with these cases, ``the State may not erect buildings in which religious activities are to take place'' and ``it may not maintain such buildings or renovate them when they fall into disrepair.'' The rule set down by the Supreme Court in these cases remains controlling law as neither they, nor the principle behind them, have ever been overruled in any subsequent Supreme Court decision. To the contrary, in its more recent cases examining the constitutionality of government aid to religious institutions, the Supreme Court has maintained that direct money grants create ``special Establishment Clause dangers.'' Congress too just recently recognized the applicability of this precedent when it limited green construction funding in the Recovery Act to buildings in which secular activities take place.

    Furthermore, proponents' claims that Tilton and Nyquist are inapplicable and that Congress should instead look to free speech forum and in-kind aid cases must be rejected. The Supreme Court has squarely held that free speech forum cases are inapposite to federal aid cases and that money grants are distinct from in-kind funds.

    It is also important to note that houses of worship, like most non-profit organizations and businesses, are eligible for government loans--just not direct grants--to rebuild. In addition, houses of worship are not the only nonprofits that are ineligible for direct grants for reconstruction. To the contrary, only nonprofits with facilities that are used for emergency, essential, and government-like activities are eligible. And, eligible facilities, such as community centers, must also be open to the general public. To say that houses of worship are singled out among all other non- profits, therefore, is untrue. It is similarly inaccurate to claim that FEMA grants should be extended to houses of worship because the grants are akin to ``general government services,'' such as police or fire. FEMA grants--unlike general government services--are not available to every business, nonprofit, private residence, or other building.

    Although it may not seem easy in times of tragedy to tell those seeking aid that they are ineligible for government grants, the bar on the government rebuilding of houses of worship is an important limitation that exists to protect religious freedom for all. It upholds the fundamental principle that no taxpayer should be forced to fund a religion with whom he or she disagrees and that the government should never support building (``establishing'' religion in its most basic form) religious sanctuaries. And, it protects against the government favoring, or creating the perception of favoritism for, certain religions over others.

    Houses of worship are special in our country and our constitution. They are both the place where worship takes place, and, adorned with religious symbols and iconography, are themselves expressions of worship. Accordingly, they are accorded special protections--exemptions, accommodations, and tax deductions. Restrictions on government funding of religion is also a special protection--they protect the conscience of the individual taxpayer, safeguard the autonomy of the religious institution, and ensure an equal playing field for all religions by prohibiting the government from playing favorites.

    For the reasons listed above, we urge you to oppose H.R. 592.

    Sincerely, Maggie Garrett, Legislative Director.

    ____ Hindu American Federation, Washington, DC, February 12, 2013.

    Re Please Oppose H.R. 592, the Federal Disaster Assistance Nonprofit Fairness Act of 2013.

    Dear Representative, We at the Hindu American Foundation (HAF), a 501(c)(3) advocacy organization, write to express our deep concern about H.R. 592, the Federal Disaster Assistance Nonprofit Fairness Act of 2013, sponsored by Congressman Chris Smith (R-NJ). The act provides for direct grants to fund the rebuilding of ``houses of worship.'' We believe such funding violates the Constitution and represents a significant shift in longstanding federal policy. As such, HAF opposes H.R. 592.

    We believe constitutionally problematic because the Supreme Court has long held that taxpayer funds cannot go to construct, rebuild, or repair buildings used for religious activities, including houses of worship without invoking ``special Establishment Clause dangers.'' In fact, the controlling law proscribing such funding was set down by the Supreme Court in three major cases--Tilton v. Richardson, Hunt v. McNair, and Committee for Public Education v. Nyquist. Even Congress has recognized the applicability of this precedent when green construction funding in the Recovery Act was limited to buildings in which secular activities take place. Past administrations, from George W. Bush to Ronald Reagan, have also all recognized that direct financial support to build and reconstruct houses of worship raises serious Establishment Clause concerns.

    There are some government grant programs that benefit other non-profit facilities, such as the Stafford Act. But these grants are limited to only ``educational, utility, irrigation, emergency, medical, rehabilitation, and temporary or permanent custodial'' facilities,'' and ``any private nonprofit facility that provides essential services of a governmental nature to the general public.'' Even among potentially eligible facilities, there are prohibitions on funding structures used for religious purposes. That houses of worship are amongst non-profit facilities which sustain damage and destruction wrought by natural disasters, is a sad reality. However, providing direct funding for rebuilding, as Sec 3 of H.R. 592 seeks to do, would be unprecedented, would unnecessarily entwine government with religion, and ultimately would threaten the autonomy of religion.

    This is not to suggest that houses of worship are not deserving or in need of assistance after a natural disaster; only that direct federal funding should not be granted for such uses. There are many government loans, which houses of worship could apply for should they choose. The SBA Disaster Loan Program, for example, provides loans of up to $2 million to cover losses that are not fully covered by insurance, and they can be used to reconstruct or repair property damaged after a disaster.

    Since its inception, the Hindu American Foundation (HAF) has made legal advocacy one of its main areas of focus. From issues of religious accommodation and religious discrimination to defending fundamental constitutional rights of free exercise and the separation of church and state, HAF has educated Americans at large about various aspects of Hindu belief and practice in the context of religious liberty, either as a party to the case or an amicus curiae. These have included a successful suit against the State of South Carolina over a special Christian license plate mandated by the state's legislature, and amicus briefs filed before the U.S. Supreme Court in cases involving the public display of the Ten Commandments and legislative prayer in which the county allowed only those prayers which invoked a Judeo-Christian deity.

    HAF seeks to be a resource for your office with regards to matters involving the Establishment Clause. Please feel free to reach out us should you need further clarification to the facts presented in this letter.

    Respectfully, Suhag A. Shukla, Esq., Executive Director/Legal Counsel.

    ____ Baptist Joint Committee for Religious Liberty, Washington, DC, February 12, 2013.

    Re Oppose H.R. 592, the Federal Disaster Assistance Nonprofit Fairness Act of 2013.

    Dear Representative: On behalf of the Baptist Joint Committee for Religious Liberty (BJC), a 76-year-old agency dedicated to defending and extending religious freedom for all, I am writing to express our opposition to H.R. 592, to be considered on the floor tomorrow, Wednesday, February 13. The BJC, supported by fifteen national Baptist bodies and hundreds of congregations and individual supporters, believes religion is best served when it is neither advanced nor inhibited by government. H.R. 592, which would authorize FEMA to provide houses of worship with direct grants of taxpayer funds, would flout well-established constitutional principles and harm religious liberty.

    The First Amendment's Establishment Clause prohibits government from providing outright grants or similar financial support to churches and other houses of worship. Supreme Court jurisprudence has been clear on this point, having repeatedly reaffirmed the principle that direct monetary contributions of taxpayer dollars to religious institutions create ``special Establishment Clause dangers.'' Simply put, we do not allow taxpayer dollars to build churches; we likewise should not allow taxpayer dollars to be used to rebuild churches.

    The damage wrought upon the Northeast by Hurricane Sandy is an instance in which our moral and humanitarian instincts may seem at odds with the constitutional requirement of no- establishment. Happily, we have ways to empathize with and provide aid to churches and other religious organizations damaged by the terrible storm. Repairs may be financed by denominational efforts, private foundation grants and contributions of the faithful. Additionally, insurance proceeds are available for rebuilding efforts, and churches and houses of worship may be eligible to obtain low-interest, long-term loans under the Small Business Administration disaster loan program for damages not covered by insurance.

    Natural disasters and other times of crisis serve as a call to action for citizens of faith. When we answer that call using voluntary, private donations, we reflect the very best of America's longstanding commitment to religious liberty for all. Public funding of houses of worship threatens to undermine religious autonomy and impermissibly involve government in the private affairs of religious bodies. It is simply not a good idea--however [[Page H473]] our heartstrings are tugged--to give churches access to the public till. H.R. 592 would do just that, and we therefore urge you to oppose it.

    Sincerely, Nan Futrell, BJC Staff Counsel.

    Mr. RAHALL. Madam Speaker, I yield 2 minutes to the gentlewoman from Texas (Ms. Jackson Lee).

    Ms. JACKSON LEE. Madam Speaker, I absolutely agree with my colleagues of the necessity of an absolute firewall around the protection of the First Amendment. And I do believe that Members understand the sacred aspect of freedom of religion and the separation of church and state.

    But I rise today to support H.R. 592, and I support it so that it can be considered by the Senate and that we can reinforce the distinctive separation between church and state. But coming from Hurricane, if you will, Valley, coming from the gulf, living through Hurricane Rita and Hurricane Katrina, the pain I saw that places of worship, of any kind, were devastated, the members are taxpayers. And for all that we could do, we could never get those places to be restored.

    The small business loan program does not work because many of our churches are just that, they give their money to the poor. They are not rich institutions. That is the bulk of places of worship no matter what your faith may happen to be.

    And as the Federal Emergency Management Agency does, in fact, support nonprofits, I would argue to the authors of this bill whether or not they would be open to ensure that the funding is specifically for the devastation that occurred on that specific natural disaster, that there was a time limit, that there were specific items of which the church-- or the place of worship, let me be general--could utilize it for.

    I come to the floor because I have lived the pain of pastors, I have lived the pain of rabbis, imams and priests who have suffered the devastation of their faith. It is not a fault of their own.

    The SPEAKER pro tempore. The time of the gentlewoman has expired.

    Mr. RAHALL. Madam Speaker, the gentlewoman is making such a persuasive case, I yield her all the balance of my time.

    The SPEAKER pro tempore. The gentlewoman is recognized for 1\1/2\ minutes.

    Ms. JACKSON LEE. I thank the distinguished gentleman for his kindness. Let me thank the ranking member very much.

    I think we can make this work. And I also want to just mention an anecdotal story: when we had Hurricanes Katrina and Rita, the places of worship opened their doors to the surviving members out of Louisiana or survivors out of Louisiana and just opened their doors.

    {time} 1300 They had leaking roofs. They were damaged. But in Texas, they opened their doors. We took a quarter of a million, and they opened their doors. They put cots up, and they fed them. All of those items could not be reimbursed.

    We saw places of worship--no matter what their faith--literally shut down. They just could not survive because they had given their all with their leaking roof, their non-resources to give food in a place that these people could stay.

    So in this instance, having walked through a number of disasters, from the tragedy of 9/11, a heinous manmade disaster, to every hurricane that we've had, including the tsunami way across the ocean, to see what a natural disaster can do and to preclude these places who can legitimately document--I would even suggest that it be on a reimbursement form. But we can work together so that we can document that what these dollars are used for will be used for the restoration of the physical plant that houses or allows those who are Americans, who pay taxes, and are contributing to this Nation.

    I ask my colleagues to consider H.R. 592 and how we can make it better so that it can go forward and help the places of worship.

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