United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
KEITH P. ELLISON UNITED STATES DISTRICT JUDGE
in this case ask the Court to hold unconstitutional the
policy of the Federal Emergency Management Agency
("FEMA") not to provide assistance to most houses
of worship. The request comes at a time when FEMA confronts
the aftermath of emergencies from California to Puerto Rico
and many points in between, and is aimed at a policy that is
fraught with Establishment Clause and Free Exercise issues.
Court acknowledges its heavy sense of humility in undertaking
the task before it. Particularly so in that it is asked to
grant preliminary relief before plenary consideration. It
also acknowledges the handicap imposed by FEMA's
unwillingness either to defend the current policy or to
articulate a new one.
a First Amendment case. Plaintiffs are three churches, all of
which provided emergency relief services during and after
Hurricane Harvey, and all of which also suffered significant
damage in the storm. Defendants are FEMA and its
Administrator, which are responsible for coordinating the
federal government's response to any natural disaster.
Plaintiffs are suing FEMA because they contend that the
agency's grant policy violates the Free Exercise Clause.
Pending before the Court are two motions: Plaintiffs'
Renewed Motion for Preliminary Injunction (Doc. No. 12) and
Defendants' Motion to Stay (Doc. No. 24).
August 25, Hurricane Harvey made landfall in Texas and the
federal government began to respond. That response was
governed in large part by the Robert T. Stafford Disaster
Relief and Emergency Assistance Act ("Stafford
Act"), which authorizes the President to provide federal
assistance when the magnitude of a natural disaster exceeds
the affected state or local government's ability to
respond. Many of FEMA's regulations implementing the
Stafford Act fall under the Public Assistance Program
("PA Program"). The PA Program specifically allows
for "private nonprofit facilities"
("PNPs") to receive disaster relief grants-as long
as those facilities satisfy certain eligibility criteria.
order to be an eligible facility, a PNP must own or operate a
facility that either (1) "provides a critical service,
which is defined as education, utility, emergency, or
medical" or (2) "provides a non-critical, but
essential governmental service AND is open to the general
public." Fed. Emergency Mgmt. Agency, Public Assistance
Program and Policy Guide 12 (2017),
d79ba9eledbl6e60b51634af00f490ae/2017 PAPPG 2.0 508
FINAL(2).pdf ("Policy Guide"). Plaintiffs here
argue that they fall under category (2) because they provide
"non-critical, but essential governmental
service[s]" and are "open to the general
public." Their openness to the general public is not in
dispute. Instead, the nature of the "non-critical, but
essential governmental service[s]" that they would need
to provide in order to be eligible for PA Program funding is
the crux of this case.
order to satisfy the "non-critical, but essential
governmental service" requirement, a facility must
provide a service that is "eligible." The list of
"eligible" non-critical, essential governmental
services includes "hobby or at-home pursuits, such as
car care, ceramics, [or] gardening, " "child care,
" "rehabilitation programs, " and
"homeless shelters." The list of
"ineligible" services includes "[r]eligious
activities, such as worship, proselytizing, [or] religious
instruction . . . ." Policy Guide at 15. The
"eligible'V'ineligible" distinction creates
complications because PNPs frequently provide multiple
services to their communities. In such cases, FEMA reviews
the facilities' "[tax] documentation, "
"pre-disaster charter, bylaws, and amendments, "
and "evidence of longstanding, routine (day-to-day)
use" in order to determine what the "primary
use" of the facility is. Policy Guide at 12. As FEMA
"Primary use" is the use for which more than 50
percent of the physical space in the facility is dedicated
.... If FEMA determines that 50 percent or more of physical
space is dedicated to ineligible services, the entire
facility is ineligible. If the [mixed-use] facility is
eligible, FEMA prorates funding based on the percentage of
physical space dedicated to eligible services. The Applicant
is responsible for the balance of costs to restore the
facility and must restore the entire facility to receive
funding for repairs to the eligible-use portions of the
Guide at 17. Under the "primary use" test, a house
of worship that dedicates more than 50 percent of its space
to religious activities is ineligible to receive any funds.
In this case, Plaintiffs identify as houses of worship
dedicating nearly all of their space to religious activities.
They argue that the "primary use" test violates
their rights under the Free Exercise Clause of the First
preliminary injunction is an 'extraordinary remedy'
that should not be granted unless its proponent clearly
shows: (1) a substantial likelihood that he will prevail on
the merits, (2) a substantial threat that he will suffer
irreparable injury if the injunction is not granted, (3) his
threatened injury outweighs the threatened harm to the party
whom he seeks to enjoin, and (4) granting the preliminary
injunction will not disserve the public interest."
Google, Inc. v. Hood, 822 F.3d 212, 220 (5th Cir.
Substantial likelihood of success on the merits
rely on Trinity Lutheran Church of Columbia, Inc. v.
Comer, which held that a public benefits program with an
express policy of rejecting grant applications from any
applicant owned or controlled by a religious entity violates
the Free Exercise Clause by denying that entity an otherwise
available public benefit on account of its religious status.
137 S.Ct. 2012, 2022 (2017). Plaintiffs insist that they
claim no "entitlement to a subsidy, " but rather
"a right to participate in a government benefit program
without having to disavow [a] religious character."
Id. at 2022. Plaintiffs also maintain that there is
no substantive distinction between the program at issue in
Trinity Lutheran, which categorically excluded any
applicant owned or controlled by a religious entity, and the
PA Program, which effectively excludes any applicant owned or