Federal Aid for Reconstruction of Houses of Worship: A Legal Analysis

Summary

In late October 2012, Hurricane Sandy struck the East Coast of the United States, causing severe damage to the mid-Atlantic and northeast regions of the country. The resulting destruction led to major disaster declarations in 12 states and the District of Columbia, making those states eligible for certain federal supplemental assistance to aid in the recovery process. The damage resulting from Hurricane Sandy devastated a wide range of communities, and many individuals and organizations sought federal assistance for recovery, including churches, which, in turn, raised constitutional concerns regarding the provision of federal assistance to religious organizations.

The First Amendment of the U.S. Constitution generally prohibits the government from sponsoring or financing religious activities. The U.S. Supreme Court has interpreted the restrictions on federal aid provided to religious institutions in a number of contexts. In the context of providing aid to fund the construction or maintenance of religious buildings, the Court has permitted such aid if the building is not used for worship or religious instruction in a series of decisions issued in the early 1970s. Over time, however, the focus of the Court’s analysis in Establishment Clause cases involving public aid to religious institutions has shifted. More recent cases arguably suggest that neutrality in the eligibility of participants competing for public funds may be paramount. At least one federal court of appeals and the U.S. Department of Justice’s Office of Legal Counsel (OLC) have relied on this shift to support conclusions that funding may be permitted to provide assistance to religious facilities in some scenarios, such as urban development, emergency and disaster assistance, and historic preservation.

This report examines the constitutional rules governing federal funding for religious buildings and analyzes the Court’s previous decisions on this issue. It also analyzes more recent lower court and administrative opinions that have distinguished the Court’s decisions and allowed public funds to be awarded to houses of worship. Finally, the report discusses examples in which Congress has proposed or provided funding related to the construction and maintenance of religious buildings, including the Federal Disaster Assistance Nonprofit Fairness Act (H.R. 3066, 114th Cong.), which would authorize the Federal Emergency Management Agency (FEMA) to provide disaster recovery assistance to houses of worship and other buildings operated by religious organizations.