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Latest Trump administration action on religious freedom shrinks the distance between church and state

Kelsey Dallas, Deseret News

The Trump administration has shown where it stands on church-state separation, encouraging deeper ties between government agencies and faith communities in an Oct. 6 memo on religious liberty law.

Throughout the document, Attorney General Jeff Sessions advocates for the participation of faith groups in government programs, arguing for robust expressions of belief in the public square.

“Government may not exclude religious organizations as such from secular aid programs, at least when the aid is not being used for explicitly religious activities such as worship or proselytization,” explains the memo to all executive departments and agencies.

It’s up to individual agencies to apply the new guidelines to their work, so the ultimate impact of the memo is still unknown. However, the memo does seem to signal support for the three Texas churches that sued FEMA for access to disaster-relief funding, said Rabbi Jack Moline, president of Interfaith Alliance, a national organization that promotes religious freedom and challenges extremism.

“The attorney general has nothing to do with whether FEMA gives funding to churches. But the president can use this (memo) as justification to make that decision if he wants to,” he said.

That policy shift wouldn’t be shocking, given that President Donald Trump tweeted his support for the churches just three days after the lawsuit was filed on Sept. 5, experts said.

What’s more surprising is that not all supporters of religious freedom see decreased church-state separation as a good thing.

“I think that even houses of worship who would like to see funding coming their way know that government money comes with government strings,” Rabbi Moline said.

Church-state separation

Religious freedom advocates view current laws guiding church access to government funds in two distinct ways: either these guidelines constitute discrimination against houses of worship or they protect faith communities from government interference.

Both viewpoints were featured in the flurry of press releases issued after the Supreme Court’s June decision in Trinity Lutheran Church of Columbia, Inc. v. Comer. A majority of justices ruled that a religiously affiliated preschool can receive government funds because the money is for playground-safety improvements.

“Today’s decision is a triumph for religious freedom and a victory not just for this church, and not just for people of faith, but for all who believe American citizens should be treated equally by their government,” said Russell Moore, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, in a statement.

Holly Hollman, associate executive director of the Baptist Joint Committee for Religious Liberty, responded to the same ruling by saying: “The U.S. Supreme Court today rejects an important aspect of America’s history of protecting religious liberty. By treating a state ban on aid to churches as a mark of discrimination, the court’s decision upends precedent and adds confusion to the law.”

The FEMA lawsuit features the equal treatment line of thinking. The three churches — Hi-Way Tabernacle in Cleveland, Texas; Harvest Family Church in Cypress, Texas; and Rockport First Assembly of God in Rockport, Texas — say it’s unfair for them to be deemed ineligible for disaster relief funds.

“Under the Free Exercise clause of the First Amendment — particularly as interpreted by the Supreme Court Decision in Trinity Lutheran Church — government may not discriminate against a church, or a synagogue or a mosque simply because of its status as a place of religious teaching and worship,” the complaint reads.

In the aftermath of a disaster like Hurricane Harvey, FEMA does reimburse houses of worship for providing emergency services, such as food or shelter. But churches are ineligible for the public assistance program, which channels disaster relief money toward other private nonprofits, including schools, clinics, libraries and zoos, according to FEMA. Houses of worship generally must rely on private donations to repair storm damage.

“We’re hearing from some churches that they’re not going to be able to rebuild” unless they can get FEMA support, said Diana Verm, one of the Becket law firm’s attorneys representing the churches.

It’s a devastating situation, and yet many religious freedom supporters argue that FEMA’s current eligibility rules benefit houses of worship in the long run, said Maggie Garrett, legislative director for Americans United for Separation of Church and State.

“Strings are attached” to government money, she said. “Officials may get to look through your books and open up the inner workings of your church.”

Houses of worship need to accept being treated differently than other nonprofits in government funding programs if they’re going to ask for special treatment elsewhere, Hollman told the Deseret News in a June interview about the Trinity Lutheran ruling.

“Now, we have religious groups and churches saying, ‘Treat me like everyone else. Give me the money like everyone else,'” she said. “Our concern is that it will harm religious liberty because … the next time (churches) ask for special accommodation or exemptions, it may be more difficult, I think, to justify special treatment when you’ve asked to be treated the same elsewhere.”

Religious freedom’s future

The diverse reactions to the Trinity Lutheran case shared a notable conclusion: The Supreme Court’s ruling changed the traditional separation of church and state.

With its new memo on religious freedom, the Trump administration appears to welcome further transformation, Garrett said.

“There are all these things about (religious organizations) not having to give up religious-liberty protections if they get (federal) grants or contracts,” she said.

The memo doesn’t mention disaster relief funds by name, but its guidance does relate to the issues underlying the ongoing case, Verm said.

“It says the government shouldn’t discriminate in making grants,” she said. “It does seem like that language would apply to FEMA in this instance.”

However, the Justice Department memo doesn’t directly impact the lawsuit, because FEMA hasn’t yet changed its policies to reflect the guidelines, Verm added. Individual government agencies will apply the memo to their rule-making in their own time.

FEMA is reviewing the Department of Justice guidance for any potential impacts or changes it may have to current policies, according to a FEMA spokesman.

In general, it’s unclear how the religious freedom memo will be applied to situations related to the separation of church and state, Rabbi Moline said, noting that “we will see the results of this guidance down the road.”

However, it’s fair to say that the Trump administration has shown its hand on government funding for religious organizations, he added.

“The fact that religious freedom has been interpreted this way shows that the president wants to make good on a promise he made to a certain segment of society” who want a weaker division between church and state, Rabbi Moline said.

Email: Twitter: @kelsey_dallas

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