Litigation Update: Harvest Family Church v. FEMA

Announcer:                        Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group was recorded on Friday, January 5th, 2018, during a live teleform conference call held exclusively for Federalist Society members.

Laura Flint:                          Welcome to the Federalist Society's teleform conference call. This afternoon, we will be having a litigation update on Harvest Family Church v FEMA. My name is Laura Flint. I'm the Deputy Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call. Today, we are happy to have with us Diana Verm, counsel at The Beckett Fund for Religious Liberty. After remarks from Diana, we'll go to audience question and answer. Thank you for speaking with us. The floor is yours.

Diana Verm:                       Hi, Laura. Thanks so much for having me. Um, so, 2017 was an unusual year for a lot of reasons. And, uh, one of those that is regretful is the hurricane season in August and September that causes a lot of damage and it left a lot of communities facing a long recovery process. Uh, that meant that FEMA funding has been a central question for a lot of people's futures. And it put a spotlight on FEMA's policy of denying recovery grants to churches, uh, just because they're religious. And it raised the question of whether this blatant discrimination against churches and other houses of worship is constitutional. Uh, the short answer is no, it isn't. Uh, and four months later, FEMA has abandoned that policy and adopted a new one. So, I'll talk a bit today about how we went from unconstitutional discrimination to treating houses of worship equally and what the situation looks like moving forward.

                                                Um, I'll start by talking about FEMA's old policy. Uh, it's been in place since 1998. Uh, FEMA offers public assistance grants that go to non-profits if they are open to all, uh, and if they provide services to their communities. Uh, but FEMA's policy excludes non-profits if they are used primarily for religious activities and if the organization is established for a religious purpose. So, the quote from the policy guide is, uh, "Facilities established or primarily used for religious activities are not eligible for public assistance grants." Uh, practically speaking, that means that if you have a house of worship trying to repair its main facility after a hurricane or a natural disaster, it is ineligible. Um, churches and sc- synagogues are categorically excluded.

                                                And one question we're gotten a lot through the course of this case is, uh, whether churches should even receive government grants if they don't pay taxes. Uh, but these grants are available, uh, to state and local governments, but also only to non-profit organizations. None of which pay taxes. And that it the purpose of the grants. They are meant to help restore communities after disaster. And FEMA recognizes that non-profits contribute to their communities in really important ways, uh, which makes it all the more confounding that they would exclude houses of worship, which no one disputes are at the forefront of disaster relief.

                                                Uh, so this creates a situation where, uh, under FEMA's policy, uh, zoos, museums, uh, community centers, stamp clubs are all eligible to receive funding, uh, but houses of worship are not. Uh, this is not a statutory requirement. Uh, the Stafford Act is the, is the l- legislation that, uh, provides for the grants, and all it says on this topic is that FEMA shouldn't discriminate on the basis of religion. Uh, there's no regulation. This is just a FEMA policy guide that it has up on its website.

                                                Um, so you've had churches denied funding after Hurricane Katrina and Superstorm Sandy. Like, uh, for example, Mount Nebo Baptist Church is a, uh, was a church in New Orleans. It had boats tied to its steeple during Hurricane Katrina. Uh, and it finally received a denial from FEMA nine years later. Uh, so that's the policy that we've been working with, uh, since 1998. And, uh, last summer, we got a decision from the Supreme Court in, at Trinity Lutheran Church Becomber. Uh, in that case, the Supreme Court clarified the longstanding principle, uh, that it violates the free exercise clause for the government to discriminate against churches just because they're religious.

                                                Um, in Trinity Lutheran, as many of us know, uh, Missouri had a grant program that provided, uh, shredded tires for, as, uh, playground resurfacing. Trinity Lutheran Church applied for a grant and was within the top number of applicants, so it should have been eligible for a grant, uh, but it was denied because it was a church. The Supreme Court, uh, took the case and held that it is a clear violation of the free exercise clause to exclude churches from generally available public benefits simply because they're religious. Uh, so, that decision came out in June.

                                                And that brings us to Hurricane Harvey in August, uh, which is, uh, was unexpectedly one of the costliest disasters in our nation's history. Uh, and it caused a lot of, um, unexpected problems for homes, and businesses, and, uh, non-profit organizations in Houston and, and, uh, in parts of Texas and Louisiana. Um, one of the churches damaged in Harvey was Highway Tabernacle. It's an Assemblies of God church, uh, located outside of Houston, in Cleveland, Texas.

                                                Uh, Highway Tabernacle has two buildings. Um, and both experienced flash flooding during the hurricane. Uh, as soon as they were able, people at, uh, people at Highway including the pastor, uh, got over to the building and cleaned out as much of the water as they could, and then they opened their doors to buses of people who had been displaced from their homes. Uh, FEMA partnered with Highway and used them as a staging center to take relief applications and to provide shelter. Uh, the church, uh, sheltered up to 80 people at one time, and fed them three meals a day, and, uh, actually has been a home for people for, for a while now.

                                                Um, Highway was, Highway Tabernacle was damaged. Its, uh, its sanctuary was basically destroyed. It's going to, it's going, it'll have to be demolished and rebuilt. Uh, the, um, its, its gym is currently being used as a, um, staging center for, uh, as a warehouse for supplies that they, they distribute to people in need. So, people still come to the church to get, uh, supplies, uh, after the hurricane. And, uh, Highway has been involved in hurricane relief efforts alongside FEMA at, in, not only in Harvey, but after Hurricane Ike and Hurricane Rita. Um, it's never received FEMA funding, uh, despite working alongside FEMA.

                                                Uh, so, the day that the federal courthouse opened after the floods, uh, Highway joined with two other Texas churches to challenge FEMA's policy under the free exercise clause. Um, Harvest Family Church and Rockport First Assembly of God. Uh, Beckett represented the three churches. And, uh, we recognize that they were in a pretty urgent situation. For one thing, applications are due, uh, 30 days after the disaster declaration. Uh, so, they, they had an urgent s- they had an urgent, uh, decision whether or not FEMA was going to give them, uh, the ability to apply. Uh, and they also, um, had lots of decisions to make following the disaster about what they were going to do to rebuild and where their funding was going to come from.

                                                Uh, so we asked for as, a preliminary injunction in the district court. And, uh, after we brought the lawsuit, FEMA stopped denying applications for houses of worship, uh, but it didn't change its policy. Instead, it, uh, it put them on hold and, uh, stopped giving eligibility determinations to houses of worship. So, uh, this is not the equal treatment that the churches were asking for and the case continued. Um, on December 7th, the district court denied a preliminary injunction and the churches asked for, uh, an injunction pending appeal, uh, from the fifth circuit. They also asked for an expedited appeal. Uh, the fifth circuit denied the emergency injunction, but it granted an expedited appeal.

                                                Uh, without an injunction in place, the churches were still being treated unequally. So, they were still facing First Amendment injury. Uh, and they were still trying in an urgent situation, trying to figure out what to do with their buildings following the hurricane. So we asked the circuit justice, uh, in an application, uh, for an injunction under the All Writs Act, and the, that was an application to Justice Alito at the Supreme Court.

                                                Uh, we a- uh, Justice Alito asked the government to respond, uh, to our application by January 10th. And on January 2nd, we heard from the government that it was changing its policy. Uh, so, uh, the policy was established yesterday. Uh, and it is, um, it's a good new policy. It treats houses of worship equally. Uh, it removes the religious criteria from the grant policy. And, um, the next step is to keep an eye on FEMA to make sure it, uh, it does process our clients' applications, uh, and treat them equally.

                                                Um, I want to address a couple of interesting points and different arguments on this case. Um, for the most part, this has been a pretty popular move by FEMA to change its policy. There aren't a lot of folks, um, speaking out against the new policy. Uh, there's, the churches have had a lot of support. Uh, there are a few groups who, uh, couldn't resist threatening to sue over the new policy as an establishment clause violation. So, uh, that may mean there's litigation over this for some time. And we're looking forward to seeing how those arguments play out in court.

                                                Uh, and I can just address some of the arguments that the district court, uh, used in denying our, uh, initial preliminary injunction. Uh, we argued that the policy was unconstitutional under both Trinity Lutheran, as a religio- as a religious discrimination, and under, uh, Church of the Lukumi, uh, as targeting religious conduct by making a value judgment against religion. Um, one interesting thing about this case is that the government, uh, didn't defend its policy on the merits. It argued that, uh, we do not have standing because we had not been injured, uh, because we had, our applications had not been denied. Um, but, uh, it did not defend its policy on the likelihood of success on the merits or reparable injury.

                                                Um, and the district court told the government that if it didn't change its position by December 1st, it would be, it would be deemed to have conceded the case, uh, and the government did not change its position. So, uh, the district court instead of, uh, instead of allowing the government to concede the case, it ruled, um, against us on Trinity Lutheran and Lukumi, and it, uh, imputed an anti-establishment interest to the government that the government had never raised, uh, and said that the, uh, the policy had an anti-establishment interest.

                                                Um, but on Trinity Lutheran, the district court ruled, um, saying that, uh, Trinity Lutheran only applied to playgrounds. It referred to, uh, footnote three of the Supreme Court opinion. A footnote that was joined only by four of the justices and that isn't part of the majority opinion. Uh, and, it, the district court also said that it wasn't discrimination to disclude churches because FEMA was only refusing to give funds that would go to a religious use. Uh, the problem with that is that it mischaracterizes Trinity Lutheran's holding, as well as FEMA's policy.

                                                But Trinity Lutheran expressly held, um, that based on its own pr- the Supreme Court precedent, um, makes clear that a policy that quote, "Expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character." Uh, a policy like that raises free exercise clause problems. And FEMA's policy expressly excludes organizations that were established for religious purposes, purpose. So, it, it's denied grants to houses of worship, even if they point out all the services that they provide to the community, uh, secular or religious, simply because they're a r- religious organization. And that's religious discrimination.

                                                Um, the district court also held that th- excluding churches doesn't violate Lukumi because, uh, Lukumi involved a criminal or civil sanction and that's not the case here. But the Supreme Court has long held, uh, and reaffirmed in Trinity Lutheran, uh, the free exercise clause. And, here's a quote, "Uh, protects against indirect coercion or penalties." Uh, not just civil or criminal sanctions. Uh, the p- this policy required churches to choose between their religious beliefs and receiving the government benefit of emergency aid and that violates the constitution.

                                                Uh, and so finally, to address the district court's antiestablishment interest, um, that was raised by an amicus brief and not by the government. Uh, aside from the problem with the courts address- adopting arguments of the parties in an address and adopting an interest that the government didn't raise, um, the d- district court's reasoning would basically require the government to abandon a lot of other programs that provide subsidies to houses of worship, including the loans that the government has offered the churches in lieu of grants. Uh, it is never violated the establishment clause to provide generally available relief to churches. And this is emergency disaster relief provided to any community struggling to get back on its feet. So, this is something that the government, uh, that should not be an establishment clause problem at all.

                                                Uh, so, uh, with that, we, um, I'm happy to take any questions.

Laura Flint:                          Let's go to audience questions. In a moment, you'll hear a prompt indicating that the floor mode has been turned on. After that, to request the floor, enter star, then the pound key.

                                                When we get to your request, you will hear a prompt and then you may ask your question. We will answer questions in the order in which they are received. Again, to ask a question, please enter star, then the pound key on your telephone keypad. Not seeing any questions pending. While we wait for our first, I'll ask one of my own. Um, so what is the current status of the case?

Diana Verm:                       Okay, sure. So, uh, we filed, we found out about the policy change on Tuesday the 2nd and our opening brief was due at the 5th Circuit on the 3rd. Uh, so we went ahead and filed our opening brief, um, because the new policy hadn't yet been published and it hadn't yet been implemented. So the, the question on appeal is really the, the reason for the expedited appeal is really because, uh, the policy hadn't changed and the churches were not being treated equally. Uh, so once the policy is implemented, uh, then there may not be a reason, uh, a, a need for the appeal, but we are keeping an eye on that. So, uh, the 5th Circuit has, after we filed our opening brief, the 5th Circuit asked us, uh, to address, uh, moot-ness and a supplemental brief on Monday and the government will do that as well. So we'll be doing that on Monday.

Laura Flint:                          Again, to ask questions, please enter star, then the pound key on your telephone keypad. While we wait for a question from the audience, um, I'll make a brief announcement. Our next teleform conference call is scheduled for Monday, January 8th at 3:00 pm Eastern. That call will be on the voting rights challenges of the Nevada Senate election recall and will feature Christian Adams of the Election Law Center. Again, to ask a question, please enter star, then the pound key on your telephone keypad.

                                                Um, I'll ask one more question while we wait for questions from the audience. Um, can you talk a little bit more about the facts of the cases and what happened to the churches and how they are re- rebuilding?

Diana Verm:                       Sure. So, um, th- this is actually, um, we, we represent three churches. One is in Rockport, which was hit the hardest by the hurricane. It was actually hit by hurricane force winds as well as the rain. Um, th- in Houston it was more, just a lot of flooding. Uh, so in Rockport, uh, the, the church sanctuary, uh, was destroyed and had to be demolished. Um, o- one problem with that is that FEMA's policy requires, uh, requires you to check in with FEMA over the course of the process. So before you d- demolish, FEMA is supposed to be allowed to inspect the po- inspect or you jeopardize your grant. And so we were asking for urgent relief partially because, uh, the churches had to make decisions about demolishing. So Rockport has had to, um, demolish its sanctuary, uh, without waiting for a grant. Uh, Highway is going to have to demolish, but it's trying to wait to see what, uh, wait for FEMA to inspect it, uh, once it starts processing its application.

                                                Uh, and then Harvest Family Church, uh, is in Houston, um, and it has two buildings, and they both were flooded and they both had to be gutted, basically, but, uh, they won't have to be demolished. So it's still, there's, there's a long process of rebuilding for all the churches. And, uh, we also represent, uh, two synagogues in Florida who were damaged in Hurricane Irma, uh, and they, they both, uh, have, they both have, uh, water damage and wind damage and need, uh, bold remediation and some other emergency relief. Uh, and they are also waiting for their applications to be processed.

Laura Flint:                          Let's go to our first audience question.

Roger:                                   Hi, this is Roger [inaudible 00:17:48]. I'm sorry I turned in a little late though. Forgive me if you've already covered this, but, uh, are there any implication of this case or, uh, for the Blaine Amendment or for, uh, things like, uh, educational vouchers to, uh, schools that are church related?

Diana Verm:                       Sure. Absolutely. I- I- you know, Trinity Lutheran, uh, ruled against the application of a Blaine Amendment in Missouri. Uh, so I definitely think that this will have implication for other cases involving school scholarship programs and, uh, vouchers. Uh, the one that I'm, I'm the most aware of right now is in New Mexico involving a textbook lending program where the governments has a, a, a program that allows students at public and private schools, including religious schools, uh, it allows students to borrow textbooks from the government that they, um, that the students, that the schools take care of, but the, uh, students are on possession of. Uh, and the New Mexico Supreme Court stripped that program down before the Trinity Lutheran decision, um, and it was, the, uh, that decision, that New Mexico Supreme Court decision was vacated by the Supreme Court after Trinity Lutheran. So, uh, the New Mexico Supreme Court is reconsidering its opinion on that. And we should have a decision, um, this year on that issue.

                                                Um, there's also a case in Colorado that the Colorado Supreme Court may be reconsidering involving a school scholarships program. So this, so Trinity Lutheran's principles on discriminating against, uh, churches w- and religious organizations will have far reaching effects.

Laura Flint:                          Our lines are wide open. Again, to ask a question, please enter star, then the pound key on your telephone keypad. Not seeing any. I'll ask a final question. Um, could you talk a little bit more about why these grants will be able to go to an organization like a church if they're supposed to go to, uh, organizations with government functions?

Diana Verm:                       Sure. So the, the, um, FEMA policy guide, so the are- uh, the statute allows, um, non-profit organizations to receive grants if they, uh, provide govern- services of a governmental nature to their communities. Uh, but the statute and the FEMA policy guide both, uh, have a pretty broad definition for what it, governmental services mean. And so the, uh, actually under that category, uh, FEMA includes, uh, zoos, museums, art clubs, stamp club- stamp clubs, uh, community centers. So anything basically that provides a service to the community. Uh, so th- you know, something that we pointed out in our briefs is that churches provide all these same services. To say that they're excluded simply because they're, they come, uh, with religious, uh, they have a religious, um, motivation is discriminatory.

Laura Flint:                          I'll make a final call for questions. To ask a question, please enter star, then the pound key on your telephone keypad. Not seeing any. Would you like to make any closing remarks?

Diana Verm:                       Um, just that, uh, this has been sort of a fun case to work on and that it's been a quick case and it's, it's been good to see the government, uh, do the right thing and change its policy, uh, in response to this lawsuit. So I, um, this is a good outcome and we're looking forward to, uh, seeing the, the fruits of that new policy.

Laura Flint:                          On behalf of The Federalist Society, I want to thank our expert for the benefit of her valuable time and expertise today. We welcome listener feedback by email at inputfedsoc.org. Thank you all for joining us. We are adjourned.

 

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