Indian Tribe Loses Free Exercise Claim In Suit Over Handling of Human Remains At Alamo

In Tap Pilam Coahuiltecan Nation v. Alamo Trust, Inc., 2020 U.S. Dist. LEXIS 201209 (WD TX, Sept. 23, 2020), a Texas federal district court dismissed a suit brought by an Indian tribe complaining that-- because they are not a federally recognized tribe-- they were excluded from the human remains protocol governing remains found during renovations at the Alamo. Plaintiffs contended that their exclusion discriminates against them because of their race and religion, and violates their free exercise rights. The court said in part:

Plaintiffs state that their core religious beliefs require that when a body is moved, they must perform a "forgiveness ceremony," seeking the deceased ancestor's forgiveness for disturbing their final resting place....

Plaintiffs are seeking to gain participation in the human remains protocol and permission to conduct their ceremony in the Alamo Chapel. Indeed, as Defendants point out, inclusion in the human remains protocol and permission to enter the Alamo Chapel outside of operating hours to conduct a religious ceremony are both "benefit[s] that [are] not otherwise generally available[.]" Patterson, 398 F. Supp. 3d at 123. Rather, they are benefits Plaintiffs seek to exact from Defendants. Such relief is unavailable under Lyng. 485 U.S. at 451; Patterson, 398 F. Supp. 3d at 123....

5th Circuit: Exception To Notice Requirement Under Texas RFRA Applies

 In Gonzales v. Mathis Independent School District, (5th Cir., Oct. 22, 2020), the U.S. 5th Circuit Court of Appeals affirmed a Texas federal district court's issuance of a preliminary injunction to prevent a public school's exclusion of a student from extracurricular activities. The school invoked its hair length requirement to bar two brothers from such activities. The brothers had each made a religious promise (promesa) to wear one lock of hair uncut and braided to protect their mother's pregnancy and to ask for a cure for one of the brothers who had contracted meningitis. The court concluded that one of the brothers was precluded from suing under the Texas Religious Freedom Restoration Act because he had not complied with the statutory requirements of giving 60 days advance notice of the suit. It found, however, that the other brother fell within an exception from the notice requirement

Church Says Eminent Domain Proceeding Violates It Religious Freedom Rights

 In Duncanville, Texas, the city has filed a condemnation petition seeking to take land owned by the Canaan Baptist Church in order to build a new fire station.  The property, which currently has no buildings on it, was acquired by the church in 2002 with plans to eventually build church buildings on it. In the meantime it is used for various outdoor church events by the 125-member, largely African-American church.  On Wednesday the church filed a motion seeking dismissal of the city's eminent domain proceedings.  The motion (full text) in City of Duncanville, Texas v. Canaan Baptist Church, (TX County Ct., filed 10/7/2020) contends that the condemnation proceedings violate the Texas Religious Freedom Restoration Act and the federal RLUIPA. First Liberty issued a press release announcing the filing of the lawsuit.

Parents' Suit Against Christian High School Dismissed On Ecclesiastical Abstention Grounds

 In In re Prince of Peace School, (TX App., Sept. 23, 2020), a Texas state appellate court dismissed on ecclesiastical abstention grounds a suit by parents whose children were expelled from a Lutheran high school after the parents accused school personnel of harassing and bullying their children in connection with disciplinary issues. The court said in part:

Parents’ claims are premised on allegations that Prince of Peace failed to hire qualified staff and appropriately supervise its staff’s interactions with Students, including by failing to report suspected abuse of Students by its staff. Defense of these claims rests on Prince of Peace’s internal and religiously-informed policies and code of conduct. Judicial resolution of the claims would thus require impermissible intrusion in Prince of Peace’s management of these matters.

Church Says Signage Required To Exclude Guns Burdens Free Speech

Suit was filed in a Texas federal district court earlier this week by a Unitarian Church (and another plaintiff) challenging a Texas law that makes it difficult to exclude individuals carrying firearms from one's property. The complaint (full text) in Bay Area Unitarian Universalist Church v. Paxton, (SD TX, filed 9/2/2020) alleges in part:

Texas has ignored the First Amendment and enacted legislation that singles out a group with which it disagrees—those who prefer to keep guns off of their property—and selectively burdens their speech. Specifically, Texas property owners who espouse this viewpoint must post multiple large, text-heavy signs containing language specified by the State in order to exercise the longest established and most fundamental of their property rights: the right to exclude. If these property owners use other means of indicating that firearms are not welcome on the premises—even if entirely reasonable and understandable—they cannot avail themselves of Texas’s criminal trespass laws. By contrast, property owners who wish to exclude others for any other reason at all do not face these same burdens. This viewpoint-based discrimination was entirely intentional....

The Church has an official policy that forbids carrying firearms, whether open or concealed, onto church property....  One of the most fundamental religious tenets of the Church is to address conflict through conversation, non-violence, love, and compassion. The Church believes that the signs required by the Acts detract from those religious principles.

[Thanks to Scott Mange for the lead.] 

5th Circuit Denies Stay of Decision Invalidating Texas Abortion Restrictions

In Whole Woman's Health v. Paxton, (5th Cir., Aug. 21, 2020), the U.S. 5th Circuit Court of Appeals in a 2-1 decision refused to stay a district court decision handed down nearly 3 years ago which struck down a Texas abortion law banning  the standard dilation and evacuation procedure. The majority explained:

[W]e address our dissenting colleague’s [Judge Willett's] view that the motion should be granted, and this case remanded, because the governing legal standards have supposedly changed in light of the Supreme Court’s decision in June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020).  Respectfully, this is not so. June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020), has not disturbed the undue-burden test, and Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), remains binding law in this Circuit.

The State’s stay motion is also patently procedurally defective.... [T]he problem here is that the State does not even attempt to explain why it would be “pointless” to move first in the district court.

[Thanks to Scott Mange for the lead.] 

Limits On Street Preacher At Farmers Market Are Upheld

In Denton v. City of El Paso, 2020 U.S. Dist. LEXIS 135896 (WD TX, July 28, 2020), a Texas federal district court rejected free speech, free exercise and other challenges to a policy that prevents plaintiff, a street preacher, from proselytizing at the El Paso Art and Farmers Market. The city bars fundraising, political campaigning or religious proselytizing at the event. It also requires non-profits to distribute information only from designated booth space and bars organizations from approaching or shouting to those passing by.

The court said in part:

[C]onsidering the evidence in the record thus far, Plaintiff has not carried his burden to demonstrate a clear likelihood that the City's policy is content based. Instead, the evidence strongly suggests that the policy is content neutral.

...Because the City seeks to preserve the Market as a space for its visitors to converse with each other and local artisans and enjoy buskers' performances, it has a substantial interest in eliminating disruptive noise....

Moreover, the City also asserts a related economic interest in promoting vendors' ability to sell their wares without "having to shout over someone"...

Texas AG Says Cities Cannot Restrict Reopening of Religious Private Schools

A July 17 press release from Texas Attorney General Ken Paxton reads in part:

Attorney General Ken Paxton today issued a guidance letter to religious private schools in Texas, informing them that local public health orders attempting to restrict their reopenings violate the United States and Texas Constitutions and the Texas Religious Freedom Restoration Act. Moreover, local orders seeking to restrict the reopening of religious private schools or institutions is inconsistent with Governor Abbott’s executive orders, and therefore, are invalid.

Here is the full text of the letter, which concludes:

Thus, as protected by the First Amendment and Texas law, religious private schools may continue to determine when it is safe for their communities to resume in-person instruction free from any government mandate or interference. Religious private schools therefore need not comply with local public health orders to the contrary.

Expulsion of Catholic Elementary School Students Covered By Ecclesiastical Abstention Doctrine

In Doe v. Archdiocese of Galveston- Houston, (TX App., July 7, 2020), a Texas state appellate court affirmed the dismissal on ecclesiastical abstention grounds of a suit against a Catholic elementary school claiming breach of contract, violations of the Texas Deceptive Trade Practices Act, fraud, intentional infliction of emotional distress, tortious interference, and conspiracy.  The school claimed that one of plaintiffs' sons, Bob, was seriously misbehaving, including hitting and kicking classmates. Bob's parents in turn suspected that Bob's teacher was bullying and verbally abusing Bob.  The parents hid a recording device on Bob to determine what was going on.  When the school discovered this, they expelled both of plaintiffs' sons. The court said in part:

Jane and Peter ... contend that their children were expelled for reasons that have nothing to do with religion, i.e., not because the children “did not want to attend mass, say their prayers, or genuflect when entering the Church.” Rather, they argue that Bob’s misbehavior and their advocacy on his behalf were secular in nature and therefore, their causes of action do not require a review or interpretation of the teachings of the Catholic church.

The jurisdictional evidence supplied by the school defendants and the Archdiocese tells a somewhat different story—one involving a breach of trust by Jane and Peter and breach of the rules broadly included in the school’s Family Handbook.... [T]he trial court did not err ... because the management of internal affairs, conformity of members to the moral standards required of them, and, in the context of an educational faith-based institution, the expulsion or retention of students are considered ecclesiastical matters to which the ecclesiastical abstention doctrine applies.

Supreme Court Stays Execution Of Prisoner Denied A Chaplain In the Execution Chamber

The U.S. Supreme Court today granted a stay of execution pending its decision on whether to grant review in Gutierrez v. Saenz. Ruben Gutierrez's execution was scheduled for today.  In the case the U.S. 5th Circuit Court of Appeals vacated a stay of execution that had been granted to a convicted murderer who complained about Texas' exclusion of chaplains from the execution chamber. (See prior posting.)  The Supreme Court, while now granting a stay until it either denies certiorari or it grants review and decides the case (full text of Order), added as part of its order:

The District Court should promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.

USA Today reports on the Court's decision.

5th Circuit Upholds Texas Prison Chaplain Execution Protocol

In Gutierrez v. Saenz, (5th Cir., June 12, 2020), the U.S. 5th Circuit Court of Appeals vacated a stay of execution that had been granted to a convicted murderer who complained about Texas' exclusion of chaplains from the execution chamber.  The court said in part:

Gutierrez fails to make a strong showing of a likelihood of success in establishing that TDCJ’s execution policy is not “reasonably related to legitimate penological interests.” ...

Perhaps Gutierrez is being denied the final measure of spiritual comfort that might be available. As important as that is, government action does not rise to the level of a substantial burden on religious exercise if it merely prevents the adherent from enjoying some benefit that is not otherwise generally available.

Abortion Rights Groups Sues For Defamation

A lawsuit was filed last week in a Texas state trial court by an abortion rights group charging Right To Life East Texas and its director with defamation.  The complaint (full text) in The Lilith Fund for Reproductive Equity v. Dickson, (TX Dist. Ct., filed 6/11/2020), alleges that plaintiff has been defamed as part of defendants' successful efforts to get various municipalities to enact ordinances, contingent on the Supreme Court's overturning of Roe v. Wade, declaring abortion to be murder. Defendants have labeled plaintiff a criminal organization. The complaint alleges in part:

To be perfectly clear, Lilith Fund is not arguing it has been defamed because Defendants believe or argue that abortion is murder in some moral sense; instead, Lilith Fund has been defamed because Defendants have falsely accused it of assisting in the commission of the specific crime of murder. Lilith Fund has not been defamed because Defendants hope one day to make abortion a crime, but because Defendants presently state that Lilith Fund is, at this moment, breaking the law. These statements are baseless and provably false, and Defendants knew these statements were false when they were uttered as their own statements and the text of the ordinance itself demonstrates. In Texas, this is enough, on its own, to support a claim of defamation, even in the absence of damages.

[Thanks to Scott Mange for the lead.]

Texas Supreme Court Rules In Favor of Break-Away Episcopal Diocese

The Texas Supreme Court today issued a decision in the long-running property dispute between the Episcopal Diocese of Fort Worth and its former parent body.  (See prior related posting.) In 2007 and 2008, the Diocese withdrew from The Episcopal Church (TEC) and affiliated with the more conservative Anglican Province of the Southern Cone.  In Episcopal Diocese of Fort Worth v. The Episcopal Church, (TX Sup. Ct., May 22, 2020), the court held:

Applying neutral principles to the undisputed facts, we hold that (1) resolution of this property dispute does not require consideration of an ecclesiastical question, (2) under the governing documents, the withdrawing faction is the Episcopal Diocese of Fort Worth, and (3) the trial court properly granted summary judgment in the withdrawing faction’s favor....

Explaining its holding, the court said in part:

At bottom, the disagreement centers on what effect the majority’s disassociation vote had on the Fort Worth Diocese’s identity specifically, whether the majority faction constitutes the continuation of that entity or whether the majority left as individuals and became something else. ...

In sum, TEC’s determinations as to which faction is the true diocese loyal to the church and which congregants are in good standing are ecclesiastical determinations to which the courts must defer. But applying neutral principles to the organizational documents, the question of property ownership is not entwined with or settled by those determinations. The Fort Worth Diocese’s identity depends on what its documents say. To that end, the Diocesan Constitution and Canons provided who could make amendments and under what circumstances; none of those circumstances incorporate or rely on an ecclesiastical determination by the national church; and nothing in the diocese’s or national church’s documents precluded amendments rescinding an accession to or affiliation with TEC. Applying neutral principles of law, we hold that the majority faction is the Fort Worth Diocese and parishes and missions in union with that faction hold equitable title to the disputed property under the Diocesan Trust.

The court went on to also reject TEC's claim that the Diocese's property was held in trust for TEC.

5th Circuit Upholds Part of TRO Issued Against Texas COVID-19 Abortion Ban

As previously reported, on April 7, the US. 5th Circuit Court of Appeals permitted Texas Gov. Gregg Abbott's COVID-19 related ban on elective abortions to go into effect. After additional skirmishing that led to a new temporary restraining order by the district court, on April 9 in In re Abbott, the 5th Circuit by a 2-1 vote upheld the TRO insofar as it permitted abortions for patients who would be past the 22-week limit for abortions by April 22, but otherwise stayed the TRO pending consideration of the case by the 5th Circuit.  Judge Dennis dissented saying he would not have stayed any part of the district court's TRO.  AP reports on these developments.

5th Circuit: Texas Elective Abortion Ban During COVID-19 Emergency Is Upheld

In In re Greg Abbott, (5th Cir., April 7, 2020), the U.S. 5th Circuit Court of Appeals issued a writ of mandamus that allowed the portion of Governor Greg Abbott's COVID-19 emergency order limiting elective abortion procedures to go into effect. All abortions other than those medically necessary to preserve the life or health of the mother are banned in order to preserve medical resources and limit the spread of coronavirus. Relying on the Supreme Court's 1905 decision in Jacobson v. Massachusetts, the court said in part:

The bottom line is this: when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” ... Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive.... At the same time, however, courts may not second-guess the wisdom or efficacy of the measures....

Properly understood, GA-09 merely postpones certain non-essential abortions, an emergency measure that does not plainly violate Casey in the context of an escalating public health crisis.... Respondents will have the opportunity to show at the upcoming preliminary injunction hearing that certain applications of GA-09 may constitute an undue burden under Casey, if they prove that, “beyond question,” GA-09’s burdens outweigh its benefits in those situations.

Judge Dennis filed a dissenting opinion. Texas Tribune reports on the decision.

5th Circuit Clarifies Test For Prior Restraints In Limited Public Forums

In Freedom From Religion Foundation, Inc. v. Abbott, (5th Cir., April 3, 2020), the U.S. 5th Circuit Court of Appeals remanded to the district court a lawsuit by Freedom From Religion Foundation which was denied the right to display its "Bill of Rights Nativity Scene" in the Texas State Capitol building.  The court rejected Texas' sovereign immunity defense and held that under the Ex part Young exception an injunction barring future conduct could be issued. However, it said, under the 11th Amendment the district court cannot grant retrospective relief. It went on:

Among out sister circuits, however, “there is broad agreement that, even in limited and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment.” ...

[W]e hold that prior restraints on speech in limited public forums must contain neutral criteria sufficient to prevent (1) censorship that is unreasonable in light of the purpose served by the forum and (2) viewpoint-based censorship. Because the district court only considered whether the public purpose criteria at issue in this case was reasonable, we REVERSE and REMAND for the district court to apply the correct unbridled discretion analysis in the first instance.

Courts Grapple With State Abortion Bans In COVID-19 Responses

As previously reported, Texas and Ohio have included abortions as non-essential medical procedures which are banned to preserve resources for treatment of COVID-19 patients. Alabama has also imposed a similar ban. Wall Street Journal reports that district court judges in each of those states have blocked the bans. However yesterday in In re Abbott, (5th Cir., March 31, 2020), the U.S. 5th Circuit Court of Appeals in a 2-1 decision temporarily stayed the Texas federal district court's injunction, allowing the ban on abortions to remain, at least for the time being. The state however was directed to file an initial response by 8:00 a.m. today.

Suits In NY and Texas Say Stay-At-Home Orders Infringe Religious Rights

New York Post reports that a lawsuit was filed last Friday in a New York federal district court against the state of New York and Gov. Andrew Cuomo challenging the constitutionality of Cuomo's stay-at-home order imposed to limit the spread of COVID-19. Among other things, plaintiff, a Brooklyn lawyer, alleges that the ban violates his rights to free speech and to observe his Jewish faith.

A mandamus action filed in the Texas Supreme Court similarly challenges a Harris County, Texas stay-at-home order. Houston Chronicle reports that the challenge filed by three pastors and a conservative Republican activist claims that the order violates the 1st Amendment by ordering the closure of churches and also violates the Constitution by failing to classify gun shops as essential businesses.

UPDATE: Here is the full text of the complaint in the Texas case, In re Hotze, (TX Sup. Ct., filed 3/30/2020).

UPDATE 2: Front Porch News reports on an April 21 updated version of Texas' “Guidance to Houses of Worship During the COVID-19 Crisis.”

Student Who Objects To Reciting Pledge May Move Ahead On Compelled Speech Claim Against Teacher

In Oliver v. Klein Independent School District, (SD TX, March 25, 2020), a Texas federal district court, while dismissing a number of plaintiff's claims, allowed a high school student to move ahead with her 1st Amendment compelled speech claim against her sociology teacher Benji Arnold.  Plaintiff Mari Oliver  objected to reciting the Pledge of Allegiance. As described by the court:

Arnold played the Bruce Springsteen song “Born in the U.S.A.,” and told the class to write down how the song made them feel.... He then gave the students a timed assignment to transcribe the Pledge of Allegiance, stating that, because the assignment was written, the students were not actually pledging allegiance to the United States.... Oliver refused, drawing a “squiggly line” instead.

The court held:

The parties disagree about whether Arnold was hostile to those who abstain from the pledge and refuse to assimilate into American society. The complaint alleges that Arnold compared people who abstain from the pledge to Soviet communists, supporters of Sharia, and people who condone pedophilia.... The parties’ interpretations of Arnold’s remarks inform their arguments about whether the pledge assignment had an impermissible patriotic intent. Oliver and Arnold also dispute whether Oliver’s refusal to write the pledge was protected speech or a mere refusal to do coursework.... Granting summary judgment for Arnold on the compelled-speech claim is clearly inappropriate. Granting partial summary judgment for the plaintiffs is a closer question, but the full record at trial will provide a more secure basis for an accurate ruling.

Texas and Ohio COVID-19 Limits On Elective Medical Procedures Include Elective Abortions

Texas Tribune reports:

Citing the need to preserve health care capacity for COVID-19 patients, Texas Attorney General Ken Paxton said Monday that abortions should not be performed unless the mother's life is in danger.

The warning comes one day after Gov. Greg Abbott ordered health care facilities and professionals to postpone all procedures that are deemed “not medically necessary” as the state gears up for an influx of patients with COVID-19, the disease caused by the new coronavirus.

The attorney general said that the order, set to expire April 21, should also be interpreted to cover abortion clinics in the state.

Here is the Attorney General's press release.

New York Times reports that Ohio imposed a similar ban last week.