New York County Clerk Refuses to File Texas Default Judgment Against Doctor Who Sent Abortion Pills to Texas Woman

New York state's Shield Law (EXECUTIVE 837-x) provides in part:

No state or local government employee ... shall cooperate with ... any out-of-state individual or out-of-state agency or department regarding any legally protected health activity in this state, or otherwise expend or use time, moneys, facilities, property, equipment, personnel or other resources in furtherance of any investigation or proceeding that seeks to impose civil or criminal liability or professional sanctions upon a person or entity for any legally protected health activity occurring in this state... 

Invoking this provision, an Ulster, New York County Clerk yesterday refused a request by Texas Attorney General Ken Paxton to enforce in New York a Texas default civil judgment against a New York physician charged with providing abortion medication to a woman in Texas. Ulster County Clerk Taylor Bruck's statement (full text) reads in part:

Today, I informed Texas State Attorney General Ken Paxton that the Ulster County Clerk’s Office will not be filing a summary judgment against a New Paltz physician who is facing charges in Texas for providing mifepristone via telehealth to a Texas resident. The judgment in question seeks a civil penalty exceeding $100,000 due to the doctor’s failure to appear in court. 

As the Acting Ulster County Clerk, I hold my responsibilities and the oath I have taken in the highest regard. In accordance with the New York State Shield Law, I have refused this filing and will refuse any similar filings that may come to our office...

The case will provide an interesting test of the extent of exceptions to the federal Constitution's "full faith and credit" clause which generally requires one state to enforce judgments of another state's courts.

Texas Tribune Reports on these developments.

Texas Supreme Court Hears Arguments on State Closure of Catholic Agency Serving Migrants

On January 13, the Texas Supreme Court heard oral arguments (video of full oral arguments) in Paxton v. Annunciation House, Inc. (Links to documents and briefs in the case.) At issue is an attempt by the Texas Attorney General to shut down Annunciation House, a Catholic agency serving migrants and refugees in El Paso. The Attorney General claims that the agency is sheltering migrants who have entered the country illegally. A Texas state trial court held that Texas statutes which bar harboring migrants to induce them to stay illegally in the U.S. are pre-empted by federal law and cannot be used as the basis for a quo warranto action to revoke the agency's registration to operate in Texas. Also at issue is the state's subpoena for records of Annunciation House. (See prior posting.) Annunciation House contends that the attempt to close it down violates the Texas Religious Freedom Restoration Act. Reform Austin reports on the oral arguments.

HIPPA Rule Barring Reporting of Legal Abortions to Out-of-State Enforcement Authorities Is Preliminarily Enjoined

In April of this year, the Department of Health and Human Services adopted new privacy rules under HIPPA designed to protect women (and those who assist them) who travel out of state for an abortion that is not legal in their state of residence. The rules prohibit doctors, clinics and insurance companies from disclosing information about patients' reproductive health care that is lawful where provided when the information is sought by the patient's home state for the purpose of an investigation that may lead to civil or criminal liability there. (See prior posting.) In Purl v. U.S. Department of Health and Human Services, (ND TX, Dec. 22, 2024), a Texas federal district court issued a preliminary injunction barring enforcement of the rule against the physician and the clinic that are plaintiffs in the suit. The court held that the HHS rule violates a provision of HIPPA protecting state rules requiring reporting of child abuse. The court said in part:

Congress mandated that HIPPA cannot be "construed to invalidate or limit the authority, power, or procedures established under any law providing for the reporting of disease or injury, child abuse, birth, or death, public health surveillance, or public health investigation or intervention." ...

Plaintiffs argue that the 2024 Rule "unlawfully limits disclosures about child abuse" to states like Texas..... They aver HHS limits such disclosures by curtailing doctors' ability to freely report suspected "child abuse" and instead forces them into a "labyrinth of criteria" to determine what can and cannot be disclosed....

The 2024 Rule "limits" practitioners from reporting "child abuse" in several ways. It requires "covered entities" to determine whether the relevant "reproductive healthcare" was "lawful" under the circumstances it was acquired.... 

But, of course, many "covered entities" are not prepared or equipped to make nuanced legal judgments....

Again, even if a more nuanced reading of the 2024 Rule allowed child-abuse reporting to Texas CPS, a nonlawyer licensed physician is not equipped to navigate these intersecting legal labyrinths. And it is precisely such restraints and impediments that Congress forbade when it comes to child-abuse reporting.

Texas Supreme Court Hears Arguments on Interpretation of "Religious Service Protections" Constitutional Amendment

Last Wednesday, The Texas Supreme Court heard oral arguments (video of full oral arguments) in Perez v. City of San Antonio. The court is being asked to respond to a certified question from the U.S. 5th Circuit Court of Appeals in a case in which members of the Lipan Apache Native American Church claim that improvements to a park that include tree removal and rookery management destroy their ability to use a sacred site in the park for certain religious ceremonies. The certified question involves interpretation of a provision in the Texas state Constitution that was adopted in response to restrictions imposed during the Covid pandemic.  The constitutional provision prohibits the state and localities from placing limits on religious services, without specifying whether the ban applies even in cases of a compelling governmental interest in doing so. (See prior posting.) The certified question reads:

Does the “Religious Service Protections” provision of the Constitution of the State of Texas—as expressed in Article 1, 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?

The Texas Supreme Court has links to pleadings and briefs (including amicus briefs) filed in the case. Oral argument for appellants was presented by a faculty member from the University of Texas College of Law, Law and Religion Clinic. Religion News Service reports on the oral arguments.

Texas AG Sues Church-Run Homeless Center Alleging It Has Become a Public Nuisance

Texas Attorney General Ken Paxton this week filed a lawsuit in state court against a church-run homeless center that receives over $1 million in funding from the city of Austin. The complaint (full text) in State of Texas v. Sunrise Community Church, Inc. d/b/a Sunrise Homeless Navigation Center, (TX Dist. Ct., filed 11/26/2024), alleges that the homeless shelter's operations constitute a statutory common nuisance and a common law public nuisance. The complaint says in part:

In South Austin, a once peaceful neighborhood has been transformed by homeless drug addicts, convicted criminals, and registered sex offenders. These people do drugs in sight of children, publicly fornicate next to an elementary school, menace residents with machetes, urinate and defecate on public grounds, and generally terrorize the surrounding community....

The state asks for injunctions closing the homeless center for one year.  It also asks that the center be prohibited from operating within 1,000 feet of any school playground or youth center and from operating in any location "in a manner that frequently attracts patrons whose conduct violates the rights of neighborhood residents, school children, businesses, and the general public to peacefully use and enjoy the surrounding area."

Attorney General Paxton issued a press release announcing the filing of the lawsuit. Austin American- Statesman reports on the lawsuit.

Texas State Board of Education Adopts Suggested Curriculum That Includes Numerous Biblical References

As reported by KERA News:

The Texas State Board of Education today gave final approval to a controversial new elementary curriculum that features numerous Biblical references, from stories about King Solomon to Jesus’ Sermon on the Mount.

The board voted 8 to 7 in favor of the state-developed “Bluebonnet Learning” English and language arts materials, which critics say privilege Christianity over other religions....

Schools aren’t required to use Bluebonnet Learning, but the state will offer financial incentives to districts that do....

All the English Language Arts and Reading Instructional Materials are posted on the Board's website. The Texas Freedom Network Education Fund has posted an analysis of the materials entitled Turning Texas Public Schools Into Sunday Schools? A press release supporting the Board's adoption of the curriculum was issued by Texas Values.

Texas Top Court Gives New Trial to Death Row Inmate Because of Trial Judge's Antisemitism

 In Ex Parte Halprin, (TX Ct. Crim. App., Nov. 6, 2024), the Texas Court of Criminal Appeals in a 6-3 decision granted a new trial to one of the so-called Texas Seven prison escapees who had been sentenced to death for murdering a police officer during the robbery of a sporting goods store shortly after their escape. The court concluded that the trial judge, Vickers Cunningham, was biased against Halprin because Halprin is Jewish.  The court said in part:

The evidence adduced in these habeas proceedings concerning Halprin’s judicial bias claim consists primarily of anti-Semitic statements attributed to Cunningham that, according to the witnesses, he made in generally private or semi-private settings rather than from the bench in open court or in chambers....

The uncontradicted evidence supports a finding that Cunningham formed an opinion about Halprin that derived from an extrajudicial factor—Cunningham’s poisonous anti-Semitism. Cunningham’s references to Halprin are not to “the fucking [murderer]” or “the filthy [criminal]” or “the [murderer] Halprin,” which might be fairly said to derive from the evidence presented at Halprin’s capital murder trial. Rather, Cunningham’s derogatory references to Halprin are expressly tied to Halprin’s Jewish identity.

Judge Richardson, joined by Judges Newell and Walker filed a concurring opinion, saying in part:

This is not a case in which the action of a trial judge may just “look bad.” This is not a case in which there is merely the “appearance of impropriety.” This is a case where a person’s lifelong hatred and prejudice against Jews made him unfit to preside over this case. And that toxic viewpoint runs counter to our concept of the Rule of Law because “[o]ur law punishes people for what they do, not who they are.”

Thus, no precedent, rule, technicality, or excuse can justify allowing such a demonstrably biased person to constitutionally stand in judgment over a member of a class of people the judge espouses to hate. It violates our fundamental sense of fair play and the Supreme Court’s motto “Equal Justice Under Law” beneath which our precedent arises.

Judge Yeary filed a concurring opinion saying that the majority reached the correct result but used the wrong standard to reach it.  He said in part: 

... [T]he question is “not whether the judge is actually, subjectively biased, but whether the average judge in [the challenged judge’s] position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”

Presiding Judge Keller, joined by Judges Keel and Slaughter filed a dissenting opinion saying in part:

The Court misunderstands the law regarding disqualification of a judge for bias.  It grants Applicant relief on the basis of the trial judge’s personal views and out-of-court comments about Applicant’s religion.  But under Supreme Court precedent, in order for a judge who holds derogatory views about a defendant’s religion to be disqualified, there must be a showing that the judge’s conduct in the criminal proceedings was influenced by his derogatory views.  What a judge does can violate the Constitution.  What he thinks cannot.  Nothing in the record on habeas or at trial shows, or even suggests, that the trial judge’s views influenced how he conducted the criminal proceedings in this case.

Texas Public Radio and AP report on the decision. [Thanks to Thomas Rutledge for the lead.]

Suit Challenges HIPPA Rules Barring Reporting of Out-of-State Abortions

As previously reported, in April of this year the Department of Health and Human Services issued new privacy rules under HIPPA designed to protect women (and those who assist them) who travel out of state for an abortion that is not legal in their state of residence. Yesterday, suit was filed in a Texas federal district court challenging the rules.  The complaint (full text) in Purl v. U.S. Department of Health and Human Services, (ND TX, filed 10/21/2024), alleges that the new privacy rules cover not only abortion, but also hormone and drug interventions for gender dysphoria and surgical procedures on an individual's reproductive system. The complaint alleges in part:

5. ... [T]he 2024 Rule purports to limit the circumstances when a HIPAA-covered entity can share information with government agencies, such as state child-welfare agencies and law enforcement agencies, both state and federal.  

6. HIPAA-covered entities that share information in contravention of HHS’s regulations incur criminal liability. 

7. Yet the HIPAA statute explicitly preserves government authority to investigate and to require disclosures concerning abuse. 

8. The 2024 Rule lacks statutory authority and is arbitrary and capricious. As such, the Court should vacate and set aside the Rule and preliminarily and permanently enjoin its enforcement....

ADF issued a press release announcing the filing of the lawsuit.

Texas Judicial Conduct Commission Withdraws Reprimand of Judge Who Refused to Perform Same-Sex Weddings

As previously reported, in 2019 the Texas State Commission on Judicial Conduct issued a Public Warning to Justice of the Peace Dianne Hensley because she refused on religious grounds to perform same-sex weddings, while continuing to perform other weddings. The Commission stated that her conduct cast doubt on her capacity to act impartially to persons appearing before her as a judge.  Hensley sued contending that the Commission's action violated the Texas Religious Freedom Restoration Act as well as her free speech rights. In July 2024, the Texas Supreme Court held that the suit could move forward. (See prior posting.) Now, in Public Statement PS-2024-1, (Sept. 9, 2024), the Commission on Judicial Conduct has withdrawn the prior Public Warning "in light of the decision handed down by the Texas Supreme Court and the underlying facts and evidence...." However, according to a report yesterday by KWTX News, Hensley will continue her lawsuit. Quoting her attorneys, First Liberty Institute:

Unfortunately, Judge Hensley has incurred damages and attorney fees fighting for religious liberty, the Constitution, other judges who feared coming forward and her own reputation. We intend to complete the mission. Other judges who feared retaliation from the Commission and hid in the shadows may now be able to step forward and file their own cases seeking damages up to $10,000, plus costs and fees.

Texas Sues HHS Over Rule Protecting Privacy of Information About Out-of-State Abortions

Last week, Texas Attorney General Ken Paxton filed suit against the U.S. Department of Health and Human Services challenging two HHS privacy rules that limit entities covered by HIPPA from disclosing certain health care information about patients to state law enforcement officials. The rule adopted earlier this year (see prior posting) specifically prohibits disclosure of information to enforcement officials in a woman's home state for their use in a civil, criminal or administrative proceeding investigating reproductive health care (including abortions) provided in another state where the health care was lawful in the state where it was provided. The complaint (full text) in State of Texas v. U.S. Department of Health and Human Services, (ND TX, filed 9/4/2024), alleges in part that HIPAA explicitly preserves state investigative authority and does not give HHS authority to promulgate rules limiting has HIPPA regulated entities may share information with state governments. The Texas Attorney General's office issued a press release announcing the filing of the lawsuit.  AP reports on the lawsuit. [Thanks to Thomas Rutledge for the lead.]

Factual Issues Remain in Chaplain's Suit Over Ouster for Anti-Trans Blog Post

 In Fox v. City of Austin, (WD TX, Sept. 4, 2024), a Texas federal district court refused to grant summary judgment to either side on several claims in a suit brought by a volunteer chaplain for the Austin, Texas fire department.  Plaintiff was fired because of his blog posts saying that God created each person as male or female, that sex is immutable and that it is unfair to allow males to compete in women's sports. Applying the balancing test in the Supreme Court's Pickering decision, the court concluded that there is a genuine dispute of material fact as to the extent of the disruption that the blog posts caused within the Fire Department.  Thus, the court refused to grant summary judgment on plaintiff's free speech retaliation claim, his free exercise claim and his claim under the Texas Religious Freedom Restoration Act. The court did dismiss plaintiff's claim that his free speech rights were violated when the Department requested that plaintiff write an apology note and it found that the fire chief had qualified immunity in the claim against him for damages.

5th Circuit Reopens Lipan-Apache's Suit Objecting to Park Modifications

 In 2021, Texas voters approved an amendment to the state constitution that 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.

The amendment was a response to orders during the Covid pandemic that limited the size of gatherings for religious services. (Background.)

In Perez v. City of San Antonio, (5th Cir., Aug. 28, 2024), the U.S. 5th Circuit Court of Appeals certified to the Texas Supreme Court the question of whether this ban is an absolute one, or whether the amendment merely imposes a strict scrutiny requirement on any limitation. The issue arises in a suit by members of the Lipan-Apache Native American Church who claim that improvements to a park that include tree removal and rookery management destroy their ability to use a sacred site in the park for certain religious ceremonies. In a prior decision, the 5th Circuit rejected plaintiffs' claim under the Texas Religious Freedom Restoration Act. It then held that plaintiffs had not adequately briefed the question of whether the Religious Services Amendment to the constitution covers a compelled preservation of spiritual ecology. (See prior posting.) Plaintiffs filed a motion for a rehearing, and in this week's decision the panel withdrew its original opinion and certified the question of the meaning of the Religious Services Amendment to the Texas Supreme Court, saying in part:

Neither party has cited any cases interpreting this constitutional provision, nor has this court found any. This potentially outcome determinative issue raises novel and sensitive questions....

Court Enjoins Enforcement Against Texas of DOE Guidance Documents on Transgender Students

In State of Texas v. Cardona, (ND TX, Aug. 5, 2024), a Texas federal district court in a 113-page opinion enjoined enforcement against Texas schools of a Notice of Interpretation, a Dear Educator Letter and a Fact Sheet ("Guidance Documents") issued by the U.S. Department of Education that interpreted Title IX's ban on sex discrimination to include discrimination on the basis of gender identity.  The court said in part:

The Guidance Documents' interpretation of "sex" and the accompanying requirement that schools treat "gender identity" the same as biological sex flouts Title IX. The Department lacks the authority to "rewrite clear statutory terms to suit its own sense of how the statute should operate," particularly in a way that undercuts a statute's purpose.... Yet this is exactly what the Guidance Documents do. By interpreting the term "sex" in Title IX to embrace "gender identity" as distinct from biological sex, the Guidance Documents are contrary to law and exceed the Department's statutory authority....

The Guidance Documents' expanded definition of "sex" are contrary to law due to violating another rule of interpretation. That is, Congress must "speak clearly when authorizing an agency to exercise powers of 'vast economic and political significance.'"... Known as the Major Questions Doctrine, it promotes the principle of statutory interpretation that courts should not assume Congress delegated questions of "deep 'economic and political significance'" unless done expressly....

Despite the Department's lack of authority, Defendants nonetheless maintain that Bostock supports the expanded definition of "sex." But this argument falls flat. Bostock stated without equivocation that its holding only applies to Title VII....

The Guidance Documents are substantively and procedurally unlawful in violation of the APA. They are substantively unlawful because the Department's purported interpretations of Title IX squarely conflict with the statute.... Additionally, the Guidance Documents are procedurally unlawful because they impose new substantive obligations on states and other regulated entities without adhering to the APA's notice-and-comment requirements—which were designed to ensure public participation....

Court Rejects Texas AG's Challenge To Catholic Agency Assisting Migrants

 As previously reported, a legal battle has been underway between Annunciation House, a Catholic agency serving migrants and refugees in El Paso, and Texas Attorney General Ken Paxton who accuses the agency of sheltering migrants who have entered the country illegally. This week the Attorney General failed in his efforts to close down Annunciation House.  In Annunciation House, Inc. v. Paxton (I), (TX Dist. Ct., July 1, 2024), a Texas state trial court held that Texas statutes which bar harboring migrants to induce them to stay illegally in the U.S. are pre-empted by federal law and cannot be used as the basis for a quo warranto action to revoke the agency's registration to operate in Texas. The court said in part:

The State’s proposed counterclaim in the nature of quo warranto violates the Texas Religious Freedom Restoration Act by substantially burdening Annunciation House’s free exercise of religion and failing to use the “least restrictive means” of securing compliance with the law.

In Annunciation House, Inc. v. Paxton (II), (TX Dist. Ct., July 1, 2024), the court dismissed the Attorney General's suit against Annunciation House, saying in part:

The record before this Court makes clear that the Texas Attorney General’s use of the request to examine documents from Annunciation House was a pretext to justify its harassment of Annunciation House employees and the persons seeking refuge.

El Paso Times reports on the case.

Justice of the Peace's Challenge to Reprimand for Refusing Same-Sex Marriage Officiation Is Remanded

 In Hensley v. State Commission on Judicial Conduct, (TX Sup. Ct., June 28, 2024), the Texas Supreme Court, in an 8-1 decision, held that a Justice of the Peace may move ahead with her suit brought against members of the Judicial Conduct Commission who issued a formal warning to the Justice of the Peace because of her refusal to perform same-sex marriages. The Justice of the Peace would perform marriages for heterosexual couples, but referred same-sex couples to others that would perform a ceremony for them. She contended that the Commissioners' actions violated the Texas Religious Freedom Restoration Act as well as her free speech rights. The court held that there was no requirement to exhaust administrative remedies before filing suit, nor was the suit against individual commissioners (as opposed to the Commission itself) barred by sovereign immunity.

Justice Blacklock, joined by Justice Devine, filed a concurring opinion, agreeing that as a procedural matter the case can move forward, but said that the Supreme Court should have reached the substantive claims and dismissed them.  He said in part:

There are no victims. There was no crime. We have a Christian justice of the peace in a small Texas city doing her best to navigate her duties to God and to the public. We have no real people even claiming to be harmed by her actions. We certainly have no same-sex couples denied a marriage—or anything even close to that. There is no good reason for this case to exist.

But it does exist. It exists because of the Judicial Conduct Commission, which veered far outside its proper lane by self-initiating this victimless but politically and emotionally charged case. The Commission misinterpreted the Code of Judicial Conduct and violated Judge Hensley’s religious-freedom rights by publicly sanctioning her and by continuing to hold over her head the threat of a future, harsher sanction should she resume her marriage-referral policy. To her credit, Judge Hensley did not capitulate. And for the last several years, the Commission has doubled down again and again on this misbegotten case, all the way to the Texas Supreme Court.

Justice Young filed a brief concurring opinion. Justice Lehrmann filed a dissenting opinion contending that plaintiff failed to exhaust her administrative remedies before filing suit.

First Liberty Institute issued a press release announcing the decision.

Texas Supreme Court Rejects Expansion of Medical Exceptions to Abortion Ban

 In State of Texas v. Zurawski, (TX Sup. Ct., May 31, 2024), the Texas Supreme Court vacated a temporary injunction entered by a state trial court which had broadened the medical exception to Texas' abortion ban. The trial court had relied on the Due Course of Law and Equal Protection clauses of the Texas Constitution. The Supreme Court said in part:

Under the Human Life Protection Act, a woman with a life-threatening physical condition and her physician have the legal authority to proceed with an abortion to save the woman’s life or major bodily function, in the exercise of reasonable medical judgment and with the woman’s informed consent. As our Court recently held, the law does not require that a woman’s death be imminent or that she first suffer physical impairment. Rather, Texas law permits a physician to address the risk that a life-threatening condition poses before a woman suffers the consequences of that risk. A physician who tells a patient, “Your life is threatened by a complication that has arisen during your pregnancy, and you may die, or there is a serious risk you will suffer substantial physical impairment unless an abortion is performed,” and in the same breath states “but the law won’t allow me to provide an abortion in these circumstances” is simply wrong in that legal assessment. 

Given this construction, we conclude that Dr. Karsan has not demonstrated that the part of the Human Life Protection Act that permits life-saving abortion is narrower than the Texas Constitution allows.

Justice Lehrmann filed a concurring opinion. Justice Busby also filed a concurring opinion which Justice Lehrmann joined.

CBS News reported on the decision.

Texas School Sues Over New Title IX Rules on Sex Discrimination

Suit was filed this week in a Texas federal district court challenging the Biden administration's new rules under Title IX on sex discrimination by educational programs receiving federal financial assistance. Among other things, the new rules provide that sex discrimination includes discrimination on the basis of sexual orientation or gender identity.  The complaint (full text) in Carroll Independent School District v. U.S. Department of Education, (ND TX, filed 5/21/2024), alleges in part:

7.... This bureaucratic fiat prevents Carroll ISD from protecting private spaces like bathrooms, locker rooms, and showers for both girls and boys, opens girls’ sports to males, and infringes on the constitutional rights of students and staff.  

8. The administrative rewrite achieves the exact opposite of Title IX’s goal to promote equal opportunity for women. For fifty years, “sex” has meant the biological binary—differences between male and female. Respecting these biological differences is essential to achieving that goal—and Title IX recognizes as much. But now the Biden administration’s regulations will require schools to ignore sex to promote a person’s subjective “sense” of their gender.  

9. Schools must do so even though it deprives their female students of the equal opportunities in education that Title IX promised.

ADF issued a press release announcing the filing of the lawsuit.

Feds Sue Texas Correctional Authorities for Failing to Accommodate Employee's Religious Head Covering

The Justice Department today filed suit against the Texas Department of Criminal Justice alleging that it violated Title VII by failing to accommodate a clerical employee's religious practice of wearing a head covering pursuant to her Ifa faith. The complaint (full text) in United States v. Texas Department of Criminal Justice, (SD TX, filed 5/3/2024), alleges in part:

34. Though Spears identified her belief in the Ifa faith and her religious practice of wearing a head covering, TDCJ was not satisfied that her religious beliefs were sincere or should be accommodated. 

35. Instead, when Spears turned in her accommodation form, Fisk informed her that TDCJ would further research her religion and its practices. Spears questioned whether it was a normal practice to research religions. Specifically, she asked whether research would be done for more mainstream religions. Fisk indicated that it was not TDCJ’s normal practice.

 36. On October 15, 2019, Fisk conducted an internet search of the Ifa religion and practices and faxed the search results along with Spears’s accommodation request to Terry Bailey for her consideration. 

37. Then, on October 16, 2019, TDCJ further questioned the sincerity of Spears’s faith when Bailey mailed a letter demanding documentation or a statement from a religious institution pointing to the specific Ifa belief or doctrine that supported the necessity of Spears’s head covering. The letter also stated that TDCJ would not take any further action to review Spears’s accommodation request until the additional information was submitted.

The Department of Justice issued a press release announcing the filing of the lawsuit.

5th Circuit Remands Muslim Inmate's RLUIPA and Establishment Clause Claims

 In Lozano v. Collier, (5th Cir., April 11, 2024), the U.S. 5th Circuit Court of Appeals reversed a portion of the district court's decision and vacated another portion of it in a challenge by a Muslim inmate to practices that allegedly burdened plaintiff's ability to exercise his religion. The court said in part:

In his first RLUIPA claim, Lozano alleges that the [Texas Department of Criminal Justice] Defendants burdened his religious exercise by denying him the opportunity to shower privately with other Muslim inmates for Jumah.  He alleges that the shower conditions—which include inmates who are “naked, cussing, speaking idol talk” and inmates who are “homosexuals and predators”—make it impossible for him to meet his “holy obligation for cleanliness in prayer for Jumah”...   

Lozano’s second RLUIPA claim, alleges that the TDCJ defendants burdened his religious liberty by denying him a private cell to pray..... Lozano alleges... that other inmates in his cell intruded into his prayer space and tried to provoke him to fight them during his attempts to pray....

Lozano’s third RLUIPA claim involves an alleged lack of access to religious programming and instruction, namely, Taleem and Quranic studies. ...

In his § 1983 claim, Lozano contends that the existence of Jewish- and Native-American-designated units, and the absence of a Muslim-designated unit, constitutes a neutrality problem and violates the Establishment Clause.  

Lozano also alleges that the TDCJ’s faith-based dormitories have a curriculum that requires inmates to attend Christian-based classes, despite the faith-based dorms being nominally open to inmates of all religions. ...

... [W]e reverse the district court’s order granting summary judgment on Lozano’s RLUIPA claims... and vacate and remand for further consideration....

The district court held that Lozano failed to demonstrate a genuine issue of material fact on whether the absence of a Muslim-designated unit or dorm violates the Establishment Clause.... We vacate and remand this claim to the district court to reconsider, in a manner consistent with applicable precedent and this opinion....

5th Circuit Denies Further Relief to Native American Church Objecting to Park Modifications

As previously reported, last year a Texas federal district court held that members of the Lipam-Apache Native American Church should be given access for religious services to a point on the San Antonio River which is a Sacred Site for them.  The court refused to grant plaintiffs' request that the proposed improvements to the park in which the Sacred Site is located be limited so that the spiritual ecology of the Sacred Area would be preserved by minimizing tree removal and allowing cormorants to nest. Plaintiffs appealed the injunction denials.  In Perez v. City of San Antonio, (5th Cir., April 11, 2024), the U.S. 5th Circuit Court of Appeals affirmed the district court. Rejecting appellants' claim under the Texas Religious Freedom Restoration Act, the court said in part:

In analyzing Appellants’ contention that the destruction of the tree canopies, where cormorants nest, and the driving away of the cormorants themselves will burden their religions, we consider whether the presupposed burden is real and significant....

Appellants continue to have virtually unlimited access to the Park for religious and cultural purposes. Appellants’ reverence of the cormorants as sacred genesis creatures from the Sacred Area is not implicated here because the City’s rookery management program does not directly dictate or regulate the cormorants’ nesting habits, migration, or Park visitation. For example, the record shows that, regardless of the rookery management program, no cormorants, due to their migration patterns, inhabit the area for extended periods of time each year. Moreover, the City’s rookery management program does not substantially burden Appellants’ religious beliefs because cormorants can still nest elsewhere in the 343-acre Park or nearby. The deterrent activities are deployed only within the two-acre Project Area and only to persuade the birds to nest elsewhere....

The record indicates that various areas of the Park “become nearly unusable for 10 months of the year due to the bird density/habitat.”...

 [T]he City’s tree removal plan is narrowly tailored to achieve the City’s compelling governmental interest of making the Project Area safe for visitors to the Park....

Appellants assert that the City’s plan violates the religious-service protections provision of the Texas Constitution....

Even accepting that the “relatively new provision bars any government action that prohibits or limits religious services,” Appellants do not sufficiently brief the question of whether a compelled “preservation of spiritual ecology” was envisioned in the statute’s definition of a “religious service” protected from state sanctioned prohibitions or limitations.

Judge Higginson dissented in part, contending that the city should have done more to accommodate plaintiffs as to tree removal and anti-nesting matters.