Calls for Discriminatorily Excluding Religious Institutions

from Getting Generally Available FEMA Funds: Cathy Young comments on these.

I should say that under a plausible reading of current Establishment Clause doctrine (see the Mitchell v. Helms case from 2000, and Justice O'Connor's controlling concurrence there), the government indeed must discriminatorily exclude religious institutions from FEMA benefits programs, including programs aimed at repairing damage incurred when the institution was trying to help disaster victims: The theory would be that in such "direct aid" (as opposed to private-choice voucher) programs, no government money — even money that's distributed evenhandedly to all property owners damaged in a disaster — may flow to religious institutions unless there are up-front controls instituted to make sure that the money couldn't be used for religious purposes. I suspect there are no such controls on FEMA money, given that FEMA programs weren't designed with this in mind.

But that, it seems to me, just shows how wrong current Establishment Clause doctrine is on this score — and how much better current Establishment Clause doctrine is when it comes to private-choice vouchers, where the law now recognizes that equal treatment is not establishment. For more on this, see my Equal Treatment Is Not Establishment piece (which was written before Mitchell v. Helms and Locke v. Davey, but which is in a sense a prospective criticism of those decisions, as well as a prospective defense of Zelman v. Simmons-Harris, the private-choice voucher case).

Finally, just to make clear the current legal rule (to the extent that one can make it clear), here's a summary from my Religion Clauses textbook:

  1. Evenhanded "private choice" funding programs — in which funds are routed by private individuals to institutions of their choice — are generally permissible even when these funds end up being used for religious purposes. See Zelman v. Simmons-Harris (2002).
  2. Evenhanded "direct aid" programs — in which benefits are given directly to religious institutions — are
    1. Permissible if and only if there's some assurance that the funds will not be used for religious purposes.
      • Thus, a program that funds new buildings in all universities, and then lets the universities use those buildings for religious purposes, is forbidden. Tilton v. Richardson, 403 U.S. 672 (1971).
      • The program in Mitchell v. Helms (2000), or a program that gives schools secular equipment, such as secular books, Board of Ed. v. Allen, 392 U.S. 236 (1968), is permitted.
      • This is the result of Mitchell, in which the two swing Justices (O'Connor and Breyer) took this view. Four other Justices (Rehnquist, Scalia, Kennedy, and Thomas) take the view that there is no Establishment Clause problem with religious institutions participating in any evenhanded benefit programs, so long as the benefits are not themselves religious (i.e., so long as the benefits are money or secular books or supplies).
      • This is also pretty much the rule for direct-aid "charitable choice" programs, in which the government subsidizes a range of public service programs (for instance, alcohol and drug abuse rehabilitation programs), some of which are run by religious organizations. See Bowen v. Kendrick, 487 U.S. 589 (1988).
    2. Justice O'Connor also voted to uphold the program in Rosenberger, even though it was not a "private choice" program — religious newspapers were directly subsidized, rather than getting funds through the private choices of individual students — and even though the funds were certain to be used for religious purposes. Query how this can be reconciled with her position in Mitchell.

UPDATE: I originally wrote "per-capita voucher" where I meant to say "private-choice voucher"; silly mental crossed wires on my part — "private-choice voucher" is the Establishment Clause term of art. Thanks to Marty Lederman for correcting me on this.

Thorley Winston (mail) (www):
Question: the article doesn't make it clear, but does anyone know if the federal government has provided this sort of reimbursement to non-religious groups who've incurred these sorts of expenses above their normal operations by responding to a request for assistance by State and local governments? Or does FEMA normally not reimgurse private groups (as opposed to only government agencies) who provide disaster-relief assistance at the request of government?
9.28.2005 1:46pm
Zed (mail) (www):
The article isn't clear, but I got the impression that secular groups are upset because funds are being driven to religious groups only, not just to any group that provided relief assistance. If that view is correct, then the Federal government is basically discriminating against secular relief efforts and using taxpayer funds to subsidize (presumably specific types of) churches in affected regions -- and that is, in fact, a separation of church and state problem. The article goes so far as to point out that it's unclear as to whether even the Salvation Army would be eligible.

If Operation Rescue gets subsidized, and the Salvation Army doesn't, there is obviously a problem.
9.28.2005 1:48pm
Nobody Special:
The Salvation Army is a religious group.
9.28.2005 2:13pm
M. Lederman (mail):
A couple of very minor -- but potentially quite important -- quibbbles, Eugene, about the law established in Justice O'Connor's governing opinion in Mitchell v. Helms:

1. You refer at two places to "per capita vouchers." Not sure what you had in mind there. In Mitchell, SOC makes a critical distinction *between* a true "private choice" voucher program and a "per capita" aid program: The former is permissible; the latter is impermissible. 530 U.S. at 841-844. The key is that the individuals must be permitted to make a choice about where the money goes -- including choosing to put a brake on diversion of the aid to religious recipients, even if they themselves may be making use of a religious school or other institution. If the state instead simply sends aid to a religious organization based on a "per capita" calculation of the number of persons who have "chosen" to use such an organization, the aid may not be diverted to religious uses.

ii. There appear to be some sorts of religious institutions -- probably including churches, but SOC does not specify -- that cannot receive any *monetary* aid, regardless of whether it is diverted to religious uses. Thus, SOC writes (id. at 856): "[O]ur concern with direct monetary aid is based on more than just diversion. In fact, the most important reason for according special treatment to direct money grants is that this form of aid falls precariously close to the original object of the Establishment Clause's prohibition." See also O'Connor's reaffirmation (id. at 859-860) of the Court's decision invalidating the Community Education program in Grand Rapids v. Ball; and the plurality opinion at 818-819 ("Of course, we have seen 'special Establishment Clause dangers,' Rosenberger, 515 U. S., at 842, when money is given to religious schools or entities directly rather than, as in Witters and Mueller, indirectly").
9.28.2005 2:16pm
Thorley Winston (mail) (www):
Well then that's something I think we should know-- is this a situation where religious groups are the only ones receiving funds for reimbursement (I actually didn't get that impression from the article and I think if that had been the case, it's something that would have explicitly pointed out) or is this a case where previously non-religious groups were able to receive funds while religious groups were previously excluded before but have now become eligible.
9.28.2005 2:22pm
"FEMA outlined the policy in a Sept. 9 internal memorandum on "Eligible Costs for Emergency Sheltering Declarations." Religious groups, like secular nonprofit groups, will have to document their costs and file for reimbursement from state and local emergency management agencies, which in turn will seek funds from FEMA."

I think it's fairly clear that FEMA is considering reimbursing religious groups as well as secular groups.
9.28.2005 3:45pm

That also sounds to me like it might qualify as an "upfront control" (assuming what it means is that you basically have to document that the money is only supporting the secular purpose of providing emergency shelter). However, I should admit I have no idea what "upfront control" actually means in this context.
9.28.2005 4:09pm