Today, Congressman Jerrold Nadler (D-NY), ranking member on the House Judiciary Subcommittee on the Constitution, and a vigorous advocate for the clear separation between Church and State, reluctantly opposed  H.R. 592, the Federal Disaster Assistance Non-Profit Assistance Act, which would amend the Stafford Act to allow direct funding of houses of worship following disasters.  Such funds would be in direct violation of the Establishment Clause of the First Amendment of the Constitution.

“This bill would provide direct cash grants to rebuild houses of worship,” said Nadler.  “Direct government funding of churches, synagogues, and mosques has always been held to be unconstitutional, and the decisions of the Supreme Court establishing that principle remain good law to this day.  While some recent decisions have raised questions of these prior decisions’ validity, they remain binding precedent.”

Nadler delivered the following statement on the House floor during debate on the bill:

“Madame Speaker, I reluctantly rise in opposition to H.R. 592, the Federal Disaster Assistance Non-Profit Fairness Act.  The purpose of the bill is laudable.  Unfortunately, it has real constitutional problems.

“This bill would provide direct cash grants to rebuild houses of worship.  Direct government funding of churches, synagogues, and mosques has always been held to be unconstitutional, and the decisions of the Supreme Court establishing that principle remain good law to this day.  While some recent decisions have raised questions of these prior decisions’ validity, they remain binding precedent.  Most legal authorities would hold this bill to be unconstitutional, although some would disagree.

“At the very least, given the serious constitutional questions raised by this legislation, I am deeply troubled that it has received no committee consideration, and is being rushed to the floor just a few days after being introduced, under a procedure that allows only 40 minutes of debate, and no amendments.  One would think that we were naming a post office rather than passing legislation with significant constitutional implications that could alter the relationship between government and religion.

“While I have serious reservations about this bill, and the way it is being considered, I want to commend the sponsors, the Gentleman from New Jersey [Mr. Smith], and my colleagues from New York [Ms. Meng and Mr. King], who have been outstanding champions of the people hard hit by Sandy.  

“So what’s the concern? 

“Let’s start with the basics.  This bill would direct federal taxpayer dollars to the reconstruction of houses of worship.  The idea that taxpayer money can be used to build a religious sanctuary or an altar has consistently been held unconstitutional. 

“This is entirely different from government working with religious institutions to deliver social services.  FEMA money under the law this bill would amend is already available to those institutions. 

“FEMA Disaster Assistance Policy 9521.1 states,

Just because a community center is operated by a religious institution does not automatically make it ineligible.  In addition to worship services, many religious institutions conduct a variety of activities that benefit the community.  Many of these activities are similar or identical to those performed by secular institutions and local governments.

“The law now permits funding to religious institutions that provide those services to the general public, on an equal basis with secular institutions doing the same work.  Although the title of this bill suggests otherwise, there is no unequal treatment of religious institutions. 

“So what we’re really talking about is whether we should be in the business of using taxpayer money to build and rebuild houses of worship: rebuild sanctuaries and altars that are not available to the general public.

“I think that, at the very least, we need to exercise caution.  I know that people have been circulating letters making extravagant claims about the current state of the law, but what is clear is that the Supreme Court has never overruled its prior decisions specifically prohibiting this kind of use of public money.

“In Tilton v. Richardson, the court held that a 20 year ban on using publicly financed college facilities for religious or other purposes was not sufficient.  The Court made the ban permanent, saying ‘[i]f, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will in part have the effect of advancing religion.’

“Similarly, in Committee for Public Education v. Nyquist, the Court struck down a state program of ‘maintenance and repair grants’ for the upkeep of religious elementary and secondary schools.  The Court said, ‘[i]f the state may not erect buildings in which religious activities are to take place, it may not maintain such buildings or renovate them when they fall into disrepair.’

“Some proponents have pointed to the Court’s ruling in Mitchell v. Helms.  The question in that case was whether publicly financed educational materials could be lent to religious schools.  The controlling opinion, written by Justice O’Connor, made clear that it was not sufficient that the publicly furnished materials be provided on a non-discriminatory basis; they must never be diverted to religious activities.  That is clearly not the case here.

“The Majority has made a big issue of respecting the Constitution.  We read the Constitution at the beginning of this Congress, and we are required to provide a statement of constitutional authority when we introduce a bill.  But all of that means very little if, when faced with a genuinely significant constitutional question, this House instead gives it the bum’s rush.  This bill should be subject to hearings in the Judiciary Committee, with input from constitutional scholars, and due consideration of these significant constitutional issues, before we take such a radical step.

“At the very least, for those who support this bill, I would think that you would want to get it right, to ensure that it is not done in a way that would make it susceptible to successful legal challenge.  I urge my colleagues to put the brakes on this legislation until we can review it with the care it deserves.

“Because I believe this bill to be unconstitutional, and, because the constitutional issues have not even been considered, I must reluctantly vote no.”

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