The Volokh Conspiracy
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Texas S. Ct. Interprets Texas Constitution's Religious Services Clause (enacted in 2021)
The Clause provides:
This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.
In Friday's Perez v. City of San Antonio, the Texas Supreme Court concluded that this provision, when it applies, "is absolute and categorical, meaning it forbids governmental prohibitions and limitations on religious services regardless of the government's interest in that limitation or how tailored the limitation is to that interest." It also concluded that it's a substantive protection, not just an antidiscrimination rule that bars "orders that treated religious services less favorably than secular activities." And it concluded that "the Clause protects not only the right to gather for religious services but also worship practices that are part of religious services."
But the court also concluded that the provision is limited in scope, in relevant part reasoning:
[T]he Clause protects only "religious services"; it does not, for example, purport to protect the broader concept of the "free exercise of religion." … [I]t [also] protects only religious services "conducted … in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief." And … it forbids only government actions that "prohibit[] or limit[]" such services….
Because the Clause supplements and does not supplant the protections already provided by the Free Exercise Clause, the Freedom of Worship Clause, and the Texas RFRA, the linguistic context suggests that the Religious Services Clause does not attempt to independently and comprehensively address all governmental limitations on religious freedoms. And the historical context also confirms that those who drafted and proposed the amendment did not intend that its scope be unlimited.
The House sponsor, for example, stated during the floor debates that "existing local laws and ordinances and rules dealing with the fire code, with health and safety hazards, with zoning restrictions, those with criminal justice and public safety laws, those would still be able to be enforced and this constitutional amendment does nothing to affect those." He went on to say he did not intend the amendment to address "every single instance where a fire code may be violated or where a police officer may need to enter a church to do his or her job." As another House member told the committee, "I don't think there's anybody, any court, anywhere that would read this to say that if there's a true health and safety issue, that you cannot enforce that health and safety issue."
Although we need not address here whether the Clause reaches fire codes, police activity, or "true health and safety issue[s]," we can conclude with assurance, based on the Clause's text and historical context, that it generally forbids governmental enactments that prohibit people from gathering for a religious service (like the COVID lock-down orders), restrict the number or relationships of people who can gather for a religious service (like the COVID orders imposing capacity caps), or regulate the activities in which people may engage when they gather (like the COVID orders prohibiting singing, chanting, or communion).
Beyond that, to provide a helpful answer to this certified question, we need only consider and address the facts as the Fifth Circuit presents them to us. {[Native American] Church members believe that at certain times throughout the year they must participate in certain religious services in the "Sacred Area" [in a local park]—a twenty-by-thirty-foot space among cypress trees on the south shore of the river bend—facing north so they can observe the trees and the cormorants nesting and flying within the "spiritual ecology."} The City's decision to remove and replace trees and deter migratory birds in a popular City park does not purport to prohibit the Church from gathering or regulate what the Church may do when it gathers. Instead, at most, it eliminates or reduces natural elements of the City's real property that the Church believes are necessary components of its religious services. This type of governmental conduct is indisputably different in character from the type of governmental conduct the people sought to proscribe by adopting the new Religious Services Clause.
Unlike the COVID orders that gave rise to the adoption of the Religious Services Clause, the governmental decisions at issue here involve the preservation and maintenance of public property that is owned and managed by the government, not by the Church or its members. Perez agrees that the Clause does not require the City to provide the Church with components that are necessary for its religious services or to prevent limitations on those components caused by other sources. And Perez concedes the Clause does not prevent the City from selling this very property to a private developer or from taking actions that are necessary to ensure that all members of the public can access and enjoy the Lambert Beach area equally with the Church. But in Perez's view, for as long as the City owns the property, the Clause at least forbids the City from taking any action that would deprive the Church of trees and birds that are necessary components of the Church's religious services….
[A]lthough the Religious Services Clause forbids the government from prohibiting or limiting religious services, nothing in its text purports to address governmental preservation and management of public lands or the tensions between such activities and religious liberties. To whatever extent we could construe the text broadly to encompass Perez's claims, the Clause's linguistic and historical context establishes that it does not encompass "limitations" on religious services that result from the government's preservation and maintenance of the natural features of public lands….
