THE perennial debate about religion and politics in America has a new point of reference: a bill passed a few weeks ago by a bipartisan majority in the House of Representatives to permit the allocation of federal disaster relief money for the reconstruction of houses of worship damaged last fall during Hurricane Sandy. The bill is vigorously opposed by the Federal Emergency Management Agency (FEMA), the organisation that distributes relief funds. The editorial board of the New York Times is against the proposed change, as is the American Civil Liberties Union. (The Anti-Defamation League initially objected to the bill, but has backtracked.) Opponents are worried that the move will breach the constitutional “wall of separation” between church and state—a metaphorical partition introduced to American jurisprudence by Thomas Jefferson in his 1802 letter to the Danbury Baptists.

The dual religion clauses of the first amendment trace a tricky path for public policy. The Establishment Clause prevents the government from being too friendly toward religion: no endorsement of religious doctrines, no favouring specific faiths or religion over non-religion, no excessive entanglement between state institutions and religious organisations. The Free Exercise Clause, meanwhile, prohibits the state from obstructing religious practice, discriminating against religious organisations or showing hostility toward them. As the dispute over FEMA funds illustrates, the conduit of neutrality through these hazards can be quite narrow.

The ACLU critique of the House bill is predictable but oddly tepid:

FEMA's policy not only ensures that FEMA grants are used to rebuild facilities that provide the most critical services to the entire community, but also reflects an important constitutional principle. Religious liberty is one of our nation's most fundamental values and it starts from the precept that religion and religious institutions thrive when both religion and government are safeguarded from the undue influences of the other....longstanding precedent holds that taxpayer funds cannot go to construct or rebuild buildings used primarily for religious activities.

Platitudes aside, what actual harm to the constitutional order would ensue if FEMA helped to rebuild devastated houses of worship? Doesn’t it seem discriminatory to repair zoos and museums with federal funds while devastated synagogues rot? The ACLU anticipates this charge:

This principle is not discriminatory or hostile to religion. Rather, as James Madison forcefully argued centuries ago, and is equally valid today, it is one of the most fundamental ways we have to protect and defend religious liberty for all. It protects the conscience of each of us, ensuring that no taxpayer is required to fund a religious institution with tenets he or she may not believe in.

Admittedly, there is something to the complaint. It does seem odd to imagine woodcarvers crafting an ark for a synagogue and then cashing a cheque from the federal government. If the Senate passes the bill and the president signs it, taxpayer funds will flow right into the bricks and mortar of houses of worship. But is that a “dangerous precedent”, as the ACLU argues? If you buy the argument in James Madison’s famous “Memorial and Remonstrance” (1785) that forcing a citizen to “contribute three pence” in taxes to a religious organisation will grease a slippery slope toward full ecclesiastical establishment and the decimation of religious freedom, you’ll side with the ACLU. But on inspection, the claim lacks plausbility. There is no logic linking emergency aid to rebuild destroyed churches, mosques and synagogues with a plan to strategically fund other houses of worship in the future, just as supplying FEMA funds to repair a damaged zoo entails no commitment on the part of the federal government to build new zoos years down the line.

In an advisory letter to Congress defending the expansion of FEMA aid to religious institutions, the Becket Fund for Religious Liberty points out a 2009 Sixth Circuit case in which government funds used to renovate religious buildings were found to be within first-amendment bounds:

The court noted that long-standing Supreme Court precedent allowed “churches, synagogues, and mosques” to receive “generally available benefits” like “police and fire-protection services” and access to “sewers and sidewalks.” The court reasoned that “[i]f a city may save the exterior of a church from a fire,” it could certainly provide equal access to government funds that “help that same church with peeling paint.” That conclusion is all the more true here, where the problem the government seeks to remedy is not peeling paint but complete devastation.

Consider the context. The damaged synagogue in Rockaway, Queens and the devastated church in Bay Head, New Jersey will not be built from scratch. These are not new institutions that will court fresh flocks of congregants. The construction contracts will not be motivated by a desire to inculcate religious values or to promote any particular religion, or religion at all. The idea is to help bring non-profits, including houses of worship, back to the status quo ex ante: the rough shape they were in before the winds and the water of Superstorm Sandy wreaked their havoc. It is hard to see how this assistance foretells the demise of religious liberty in America.

(Photo credit: AFP)