As printed in Mishpacha Magazine

Three Houston churches are suing the Federal Emergency Management Agency (FEMA) for its refusal, at press time, to provide them funding for disaster relief on the grounds that it would violate the First Amendment’s separation of religion and state. We spoke with Nathan Diament, the director of the Institute for Public Affairs of the OU, the Union of Orthodox Jewish Congregations of America, which has successfully fought similar rulings in the past and is lobbying to reverse the current FEMA policy

Is the FEMA ruling affecting any Jewish organizations right now?

It’s potentially affecting the shuls in Houston that were flooded. It’s potentially going to affect shuls in Florida that may have been flooded by the current storm, although it sounds as if the large Jewish communities in Boca Raton and Miami may have been spared. But it’s still early to say yes, it’s affecting them, or no, it’s not, because it’s only been two weeks since the Houston storm. It’s still early for applications for federal disaster money.

But aren’t they facing a 30-day deadline?

An initial application has to be submitted within 30 days of the president’s disaster declaration [on August 25 —Ed.]. It’s not like you put in the application and get a check in the mail the next day. That’s just the start of a process. But ideally, they need to know within the next week to ten days if they are going to be eligible.

What are you doing to push things forward?

This is an issue that we at the OU have worked on for many years, after many natural disasters. In the immediate aftermath of the hurricane in Houston, we began talking to key people at FEMA, the White House, and Capitol Hill. We’ve had very encouraging conversations with key staff people at FEMA and with Trump administration officials who are working toward changing the policy. On Friday night, after Shabbos started, the president tweeted that churches should get assistance similar to others. That’s an excellent sign, and we’re optimistic the administration will change the policy in very short order. We’re also working with partners in Congress. Even though the president doesn’t need legislation to change this policy, we want to get the statute amended so that this is not going to be a problem in the future.

FEMA contends that if they change the policy, they will face lawsuits from the American Civil Liberties Union and other civil society groups. Could that tie up aid?

Even though it’s been our view for many years that there are no constitutional issues here in terms of the separation of church and state, that is clearer now after the ruling the Supreme Court issued in June in Trinity Lutheran Church v. Comer. The court basically said in that case that if you have a government grant program that’s awarded based on neutral criteria — meaning, not based on religion — and the program is related to safety and security, you cannot deny churches and other houses of worship grants under those programs only because of their status as houses of worship. That ruling is about as close to the case involving FEMA now that you can get.

But Trinity Lutheran was a safety issue regarding school playgrounds. The current case is about federal funding to rebuild houses of worship. Isn’t that different?

First, it’s the same general principal in terms of neutral treatment of a house of worship in a government aid program. Second, it also relates to safety. After a natural disaster, you want all kinds of facilities where people gather to be rebuilt properly and safely, otherwise it’s an ongoing danger, especially if there’s a future hurricane.

What’s FEMA afraid of? That they don’t have enough money to defend themselves, or is this a case of bureaucrats trying to throw their weight around?

We were fighting them in past years when we were trying to change the rule after Hurricane Sandy and FEMA said they thought it was a constitutional problem. Now again, in light of Trinity Lutheran, we think it is clearly not, and our sense is that the White House agrees with us on that. Is it as simple as overturning an executive order? It’s even easier than overturning an executive order. FEMA policy is not in a statute or even in a federal regulation. It’s their own policy they developed, though their own policy process with various types of internal memos. The president just has to say, “Guys, change the policy,” and they have to change it.

How fast will that happen?

I don’t want to put an exact time on it, but I would say based on the president’s tweets and the communication I’ve had with the administration over the weekend, I’m hoping it will be very soon.

Until then, what guidance can you give to a synagogue to prepare for an eventual filing?

We are in regular communication with the shuls in Houston, and not just the shuls, but also schools and other Jewish community institutions — although they don’t have this barrier. FEMA used to have this same policy in relation to parochial schools, but we succeeded in getting that changed in the Bush administration and got it codified in FEMA statutes. Thank G-d, the schools that might have been impacted in Texas and Florida will be fine. We are intending to give them some further guidance this week, depending on how things develop on this specific issue.