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Federal Disaster Assistance Nonprofit Fairness Act of 2013

Floor Speech

Location: Washington, DC


Mr. SMITH of New Jersey. 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.


Mr. SMITH of New Jersey. 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.


Mr. SMITH of New Jersey. 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.


Mr. SMITH of New Jersey. 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.


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