The Texas Supreme Court has accepted a certified question from the U.S. Fifth Circuit Court of Appeals calling for an interpretation of Article I, § 6-a, Texas Constitution, the “religious-service-protections” clause.
Gary Perez; Matilde Torres v. City of San Antonio (No. 23-50746; No. 24-0714; accepted September 6, 2024) arose from the city’s development plan for Breckenridge Park. Plaintiffs, members of the Lipan-Apache Native American Church, filed suit in federal court seeking declaratory and injunctive relief blocking the city from repairing retaining walls on the San Antonio River, renovating the historic Pump House, and constructing a handicap-accessible ramp in an area of the park known as Lambert Beach. Plaintiffs allege that the city’s project plan will deny them access to an area of religious worship and result in the destruction of certain trees for nesting cormorants, a necessary component of religious ceremonies. From about February 2023 to November 2023, the city temporarily prevented Native American Church members and peyote pilgrims from entering the area, triggering this lawsuit. Plaintiffs sought a preliminary injunction providing for access to the area for services, minimizing tree removal, and allowing cormorants to nest in the area. After a four-day hearing, the district court held that although Plaintiffs demonstrated a sincerely held religious belief, the city’s plan did not burden their free exercise of religion. The court did, however, grant access for religious services involving 15 to 20 people for about an hour on specified astronomical dates. As to deterring cormorants from nesting, the court determined that the “operation was within the realm of public health and safety,” and that the city had met its burden of proving “a compelling government interest for public health and safety.” Plaintiffs sought emergency relief from the Fifth Circuit.
In April 2024, the Fifth Circuit issued an original opinion holding that Plaintiffs failed to establish a likelihood of success on the merits of their Article I, § 6-a claim that the city’s project will “prohibit or limit” religious services.” Plaintiffs asked the court to certify that question to the Texas Supreme Court, given the paucity of authority on the issue. Plaintiffs argue that § 6-a categorically bars the city from doing anything in that part of the park, regardless of whether the city can satisfy the strict scrutiny test by showing a compelling public interest in public health and safety. The Fifth Circuit thus certified the following question to SCOTX: Does the “Religious Service Protections” provision of the Constitution of the State of Texas—as expressed om Article I, Section 6-a—impose a categorical bar on any limitation of any religious service, regardless of the sort of limitation and the government’s interest in that limitation?
SCOTX has issued a briefing schedule and scheduled oral arguments on December 4.
