HOUSTON (CN) – Rejecting the government’s bid to halt the case, a federal judge gave the Federal Emergency Management Agency three weeks to respond to Texas churches trying to block its policy of denying disaster relief to houses of worship.
U.S. District Judge Keith Ellison wrote in a seven-page order issued Friday that he is leaning towards enjoining FEMA’s policy with a preliminary injunction on Dec. 1, and denied the agency’s motion to stay the case.
Harvest Family Church, Hi-Way Tabernacle and Rockport First Assembly of God sued FEMA on Sept. 4, seeking funds to repair their property damage from Hurricane Harvey. They claim the agency’s ban on aid to religious nonprofits violates the First Amendment.
FEMA has been stretched thin this year – responding to hurricanes in Texas, Florida and Puerto Rico and wildfires in California – and has enlisted churches to help with disaster relief. Its officials have said that churches serve an essential role in disaster recovery.
Hi-Way Tabernacle, a Pentecostal church in Cleveland, Texas, 55 miles northeast of Houston, housed 70 people displaced by Hurricane Harvey even though it suffered flood damage from the hurricane.
It also served as a staging center for FEMA, which distributed more than 8,000 emergency meals from the church, according to the churches’ attorney, Daniel Blomberg with the Becket Fund for Religious Liberty in Washington, D.C.
Hi-Way Tabernacle has continued to help despite its court battle with FEMA, Becket said.
Its congregants unloaded food from several semi trucks for hundreds of needy people in Cleveland last week, the law firm said in a statement Friday.
The churches argue that FEMA’s policy of denying disaster relief to religious nonprofits if more than 50 percent of their physical space is used for religious purposes violates the First Amendment’s Free Exercise Clause, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
They say the policy is no different from a Missouri benefits program that excluded churches from applying for aid to resurface their playgrounds.
The U.S. Supreme Court ruled 7-2 in June that the Missouri program violates the Free Exercise Clause, with Chief Justice John Roberts writing in the majority opinion that it is “odious to our Constitution” to deny a public benefit to an applicant solely because they are a church.
Justice Department attorney Kari E. D’Ottavio declined to defend the merits of FEMA’s church-exclusion policy at a Nov. 7 hearing, but asked Judge Ellison to stay the case for 60 days while FEMA is reviewing the policy, which it has stopped enforcing.
“Plaintiffs have asked FEMA to enjoin applying current policies. And FEMA has done just that, put its policy on hold. Plaintiffs are essentially getting the same relief as if a preliminary injunction was granted because FEMA has stopped enforcing that policy and is considering whether it should be applied or not,” D’Ottavio said via speaker phone at last week’s hearing.
But Ellison said at the hearing that he’s never stayed a case because a policy is under consideration. He also said he has reservations about unelected judges making decisions that affect national policy.
In Friday’s order, Ellison denied FEMA’s motion to stay the case and indicated he will likely grant the churches’ motion for a preliminary injunction on Dec. 1, if FEMA does not either defend its church-aid policy or articulate a new one.
“If, by December 1, FEMA’s position remains unchanged, the court will assume that FEMA concedes, at the very least, plaintiffs’ likelihood of success on the merits of this case and that the injury being suffered by plaintiffs is irreparable,” the judge wrote.
FEMA does not offer disaster-relief grants to businesses, but nonprofits such as zoos, nursing homes, museums and homeless shelters that provide “noncritical, but essential governmental services” to the public may be eligible, according to the churches’ lawsuit.
Ellison, a Bill Clinton appointee who was born in New Orleans and has a bachelor’s degree from Harvard University, said in his order that FEMA’s policy of evaluating nonprofits based on the services they provide “creates complications” because nonprofits “frequently provide multiple services to their communities.”
The Justice Department declined Monday to comment on Ellison’s order, and did not respond when asked if FEMA’s policy review will be done by Dec. 1.
Blomberg praised the order for putting FEMA on the clock.
“Discriminating against houses of worship—which are often on the front lines of disaster relief—is not just wrongheaded, it strikes at our nation’s most fundamental values,” he said in a statement.