What do issues of historic preservation, hurricane recovery, and playground safety have in common? All are, or have been, at the center of court cases and arguments around separation of church and state.
In the already settled playground case covered by NPQ, the issue of playground safety and whether or not a church preschool could receive state-distributed ground cover made its way to the Supreme Court. That 7-to-2 decision (Trinity Lutheran v. Missouri) in favor of the church further blurs the line between religious practice and state function. Two additional cases, each of which pushes the issue of using public funds for religious institutions, now make their way through the courts.
In Massachusetts, the Acton Congregational Church is seeking public funds for the preservation of stained glass windows in its historic church. Residents of the town of Acton are opposing this grant, based on the state constitution that limits taxpayer-funded grants to $100,000. Town leaders are urging the state Supreme Court to uphold a lower court ruling that support the grants on the grounds that it is supporting the preservation of a historic structure, not furthering a religious purpose.
“Whether a historic resource is owned by the Town, a religious institution, a non-profit or another private party, the ravages of time are equally destructive, the need for protection is equally compelling the irreplaceable loss would be equally unforgiving,” a lawyer for the town said in its brief.
Opposing this expenditure of public funds on behalf of local citizens is the American Civil Liberties Union on the grounds that local tax dollars should not be used for religious purposes. “Acton citizens may choose to support (or not support) the Church here, or any other house or worship, through personal contributions of money or other resources. The Town may not make that choice for them,” an attorney for the residents said in their brief.
In this case, precedent may be on the side of the church, as more than 300 projects involving religious institutions have already been funded through the Community Preservation Act. The outcome will rest with higher courts and could turn on whether the religious purpose of the institution becomes an important factor.
In the case of recovery and rebuilding of churches from hurricane damage, religious purpose will also be a critical issue and have reverberations for faith-based nonprofits. Immediately following the damage of Hurricane Harvey, three small Texas churches have filed a lawsuit against the Federal Emergency Management Agency (FEMA) seeking access to relief funding that is available to nonprofits but denied to religious institutions. Their suit cites the precedent of the Supreme Court decision handed down this spring in the Missouri playground case.
Nonprofits that have sustained damage from Harvey have 30 days to apply for emergency cleanup grants. FEMA rejected requests for funding of religious institutions after hurricanes Katrina and Sandy. The question of whether, under the current administration, religious organizations’ requests will be received differently is at the heart of this lawsuit. The Department of Justice has indicated that they are aware of the suit and will give it consideration. President Trump tweeted his support for the churches suit, adding to the controversy.
“The churches are not seeking special treatment; they are seeking a fair shake,” the lawsuit reads. “And they need to know now whether they have any hope of counting on FEMA or whether they will continue to be excluded entirely from these FEMA programs. If the Churches were to cease all religious activity in their houses of worship, those buildings would become assistance-eligible.”
FEMA excludes buildings that provide “critical service” or “essential government services” from repair if more than half their space is used for religious programming. Exceptions have been made, but how FEMA, under the Trump administration will respond, remains an open question.