Written by Don Byrd

A federal judge in Texas agreed to delay, temporarily, ruling on a preliminary injunction in a case challenging FEMA’s longstanding policy not to provide grants to houses of worship. The judge, however, declined the agency’s request to halt the suit while it reconsiders its grant eligibility rules. He called on FEMA lawyers (and, really, anyone) to offer arguments in defense of the policy.

The plaintiff churches, who are asking for an injunction halting FEMA’s policy, argue the denial violates their Free Exercise rights by discriminating against houses of worship when secular organizations are allowed to receive grants. They point to the Supreme Court’s recent decision in Trinity Lutheran Church, which ruled unconstitutional a state policy denying houses of worship access to a playground improvement grant.

The judge noted the position of the plaintiffs, and then requested that FEMA (and other interested parties) participate in the argument:

FEMA has declined to defend the merits of its policy. FEMA has also declined to engage in a substantive analysis of the four-part criteria that govern the issuance of a preliminary injunction. . . .  The Court has received instructive briefing from amici in support of Plaintiffs’ Motion, for which it expresses gratitude. Nevertheless, as the Fifth Circuit has recognized, “Without opponents, the adversary system cannot function.” The Court would therefore welcome amici with differing views.

If FEMA has not responded with a defense of the policy by December 1, the judge says he will assume the agency concedes the plaintiffs’ likelihood of success on the merits of the case.