In Baker v. City of Fort Worth, (ND TX, Dec. 8, 2020), a Texas federal district court held that Fort Worth's sign ordinance is facially unconstitutional as a content-based prior restraint on speech. The suit was brought by two plaintiffs who were cited for placing 18-inch crosses on a public right-of-way in front of an abortion clinic. The city ordinances require city council approval in order to display signs on public property, except for political signs at election polling locations.
Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Thursday, December 10, 2020
Wednesday, December 02, 2020
Factional Dispute In Church Is Dismissed
In St. John Missionary Baptist Church v. Flakes, (TX App., Nov. 30, 2020), a Texas state appeals court affirmed the dismissal, on ecclesiastical abstention grounds, of a suit between two factions of a church. One faction attempted to remove the pastor through a church meeting. The pastor refused to step down and the other faction continued to pay him. In dismissing the suit, the court said in part:
Texas courts have consistently held that the relationship between an organized church and its ministers is its lifeblood, and matters concerning this relationship must be recognized as of prime ecclesiastical concern.
The court similarly held that the questions of whether members excommunicated by one faction could enter the church and whether they could vote on sale of church property were also covered by the ecclesiastical abstention doctrine.
Wednesday, November 25, 2020
5th Circuit En Banc Holds Medicaid Patients Cannot Challenge Planned Parenthood Defunding
In a procedurally complex holding, the U.S. 5th Circuit Court of Appeals en banc in Planned Parenthood of Greater Texas Family Planning and Preventive Health Services, Inc. v. Kauffman, (5th Cir., Nov. 23, 2020), vacated a preliminary injunction that had prevented Texas from terminating its Medicaid contracts with Planned Parenthood. Eleven of the 16 judges joined the majority opinion in full. Three others joined it in part. Two dissented. The termination was prompted by a controversial video from a pro-life organization involving procurement of fetal tissue for research. In vacating the injunction, the majority said in part:
[T]he district court grant[ed] the Providers and Individual Plaintiffs’ [who were Medicaid patients] motion for a preliminary injunction and prohibit[ed] the termination of the Providers’ Medicaid provider agreements. The district court held that § 1396a(a)(23) granted rights to the Individual Plaintiffs upon which a § 1983 action challenging the OIG’s termination decision could be based. The district court concluded ... [that] the OIG “did not have prima facie . . . evidence, or even a scintilla of evidence, to conclude the bases of termination set forth in the Final Notice merited finding the . . . Providers were not qualified.” This appeal ensued.
A three-judge panel of this court held ... that the Individual Plaintiffs [Medicaid patients] could maintain a § 1983 suit.... We granted en banc review.
The preliminary injunction issued by the district court was based solely on the claims of the Individual Plaintiffs. The district court did not consider whether the Providers were entitled to a preliminary injunction. The question before us is whether the Individual Plaintiffs may bring a § 1983 suit to contest the State’s determination that the Providers were not “qualified” providers.... We hold that they may not. We accordingly vacate the preliminary injunction.
Because the district court did consider the Providers’ claims, no aspect of those claims is before us in this interlocutory appeal. Accordingly, we do not reach an issue addressed by JUDGE HIGGINSON’s opinion concurring in part and dissenting in part, which is whether the Medicaid agreements of entities affiliated with PP Gulf Coast were properly terminated.
UPDATE: Law & Crime reports on the decision.
Friday, October 30, 2020
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....
Friday, October 23, 2020
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
Friday, October 09, 2020
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.
Sunday, September 27, 2020
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.
Saturday, September 05, 2020
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.]
Wednesday, August 26, 2020
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.]
Sunday, August 02, 2020
Limits On Street Preacher At Farmers Market Are Upheld
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"...
Wednesday, July 22, 2020
Texas AG Says Cities Cannot Restrict Reopening of Religious Private Schools
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.
Thursday, July 09, 2020
Expulsion of Catholic Elementary School Students Covered By Ecclesiastical Abstention Doctrine
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.
Tuesday, June 16, 2020
Supreme Court Stays Execution Of Prisoner Denied A Chaplain In the Execution Chamber
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
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.
Sunday, June 14, 2020
Abortion Rights Groups Sues For Defamation
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.]
Friday, May 22, 2020
Texas Supreme Court Rules In Favor of Break-Away Episcopal Diocese
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.
Sunday, April 12, 2020
5th Circuit Upholds Part of TRO Issued Against Texas COVID-19 Abortion Ban
Wednesday, April 08, 2020
5th Circuit: Texas Elective Abortion Ban During COVID-19 Emergency Is Upheld
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.
Sunday, April 05, 2020
5th Circuit Clarifies Test For Prior Restraints In Limited Public Forums
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.